scholarly journals Constitutionalizing Access

2021 ◽  
Vol 3 (1) ◽  
pp. 1-17
Author(s):  
Jessica Terkovich ◽  
Aryeh Frank
Keyword(s):  
Case Law ◽  
State Constitutions ◽  
The Supreme Court ◽  
Explicit Recognition ◽  
Constitutional Right ◽  
The Government ◽  
Right To Information ◽  
The Right ◽  
Right Of Access ◽  
The U.S

State constitutions receive relatively little academic attention, yet they are the source of significant substantive rights—and, when compared to the U.S. Constitution, they are relatively easily amended to comport with contemporary needs and values. Unlike the constitutions of dozens of other nations, the U.S. Constitution contains no explicit recognition of a right to information from the government, and the Supreme Court has declined to infer that such a right exists, apart from narrow exceptions. Conversely, seven states expressly memorialize the public’s right of access to government meetings and records in their constitutions. In this paper, the authors examine case law applying the constitutional right of access, concluding that the right is somewhat underutilized and rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone. 

Divergence of European Union and Strasbourg Standards on Defence Rights in Criminal Proceedings? Ibrahim and the others v. the uk (13th of September 2016)

2017 ◽  
Vol 25 (4) ◽  
pp. 327-346 ◽  
Author(s):  
Anneli Soo
Keyword(s):  
Case Law ◽  
European Court Of Justice ◽  
Criminal Proceedings ◽  
Case File ◽  
Court Of Justice ◽  
European Court ◽  
The Supreme Court ◽  
The Uk ◽  
The Right ◽  
Right Of Access

In Directive 2013/48/eu the standard for remedies applicable in cases the right of access to a lawyer has been violated was built on the European Court of Human Right’s judgment Salduz v. Turkey (27 November 2008). Shortly before the deadline to implement Directive 2013/48/eu, the Strasbourg Court handed down its judgment on Ibrahim and the others v. the uk (13 September 2016) significantly lowering this standard. In its ruling on 4 May 2016, the Supreme Court of Estonia interpreted the right of access to a case file upon arrest in conjunction with the Strasbourg case law, without considering that eu law might raise the standard. This article argues that the question whether to follow the Salduz- or Ibrahim-standard serves as a perfect opportunity for the European Court of Justice to clearly articulate that Strasbourg standards on defence rights form just a part of the foundation that eu standards consist of.

scholarly journals Delinquent Directors under the Companies Act 71 of 2008: Gihwala v Grancy Property Limited 2016 ZASCA 35

2016 ◽  
Vol 19 ◽  
pp. 1 ◽  
Author(s):  
Rehana Cassim
Keyword(s):  
Company Law ◽  
Foreign Law ◽  
Wide Range ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Right ◽  
Effective Use ◽  
Right Of Access ◽  
A Company ◽  
Court Of Appeal

The Companies Act 71 of 2008 has introduced into our company law an innovative provision which permits a wide range of persons to apply to court to declare a director delinquent. This provision is contained in section 162 of the Companies Act 71 of 2008. The effect of an order of delinquency is that a person is disqualified for a specified period from being a director of a company. In Gihwala v Grancy Property Limited [2016] ZASCA 35 the Supreme Court of Appeal was faced with some important questions surrounding the declaration of delinquency of a director. It was contended by the appellants that section 162(5)(c) of the Companies Act 71 of 2008 is unconstitutional on the grounds that it was retrospective in its application, and that there was no discretion vested in a court to refuse to make a delinquency order or to moderate the period of such order to less than seven years. It was further contended that section 162(5)(c) of the Companies Act 71 of 2008 infringed the constitutional right to dignity, the right to choose a trade, occupation or profession and the right of access to courts. In assessing these contentions, the SCA addressed and clarified some important questions surrounding the declaration of delinquency of a director. This note discusses and analyses the judgment of the SCA. It points out some anomalies in section 162 of the Companies Act 71 of 2008. This note contends that, in assessing the rationality of section 162(5) of the Companies Act 71 of 2008, the SCA ought to have considered the equivalent provisions in leading foreign jurisdictions that have influenced our Act, particularly since section 5(2) of the Companies Act 71 of 2008 permits a court where appropriate to consider foreign law in interpreting the Act. Further, this note analyses the test applied by courts in determining whether the offences set out in section 162(5) of the Companies Act 71 of 2008 have been committed, and argues that the courts ought to make more effective use of their power to impose ancillary conditions to declarations of delinquency. 

scholarly journals El derecho de acceso a la información pública en la jurisprudencia del TEDH: un derecho instrumental imprescindible para la eficacia del Convenio desde la teoría general de los derechos

2019 ◽  
pp. 483
Author(s):  
Mario Hernández Ramos
Keyword(s):  
General Theory ◽  
Public Information ◽  
Case Law ◽  
Fundamental Rights ◽  
Explicit Recognition ◽  
Definition Of ◽  
The Right ◽  
Right Of Access

El debate en torno al reconocimiento del derecho de acceso a la información pública en el CEDH ha girado principalmente en torno al art. 10 CEDH. Esta postura se ha visto reforzada con la última sentencia de la Gran Sala Magyar Helsinki Bizottsag c. Hungría (2016) que ha dado carta de naturaleza al mencionado derecho descrito a pinceladas en la jurisprudencia del TEDH más o menos constante desde el 2006, pero destacando el carácter instrumental del mismo. No obstante, este enfoque abarca solo una parte, la principal sin duda, del ámbito que protege el derecho de acceso a la información pública. Sin prestar atención a otros derechos apuntados en la jurisprudencia del TEDH a través de los cuales se ha hecho efectivo el acceso a la información pública, como el art. 8 CEDH y el art. 6.1 CEDH, también de manera instrumental, la definición de este importante derecho estaría inacabada. Por ello, a través de la teoría general de derechos fundamentales, se reconstruyen los elementos configuradores de un derecho fundamental sin reconocimiento explícito en el texto del CEDH pero muy presente en la jurisprudencia del TEDH.The debate on the recognition of the right of access to public information in the ECHR has dealt mainly with art. 10 ECHR. This has been reinforced by the last ECtHR ruling Magyar Helsinki Bizottsag v. Hungary (2016) that has been declared in the case law of the ECtHR since 2006, but highlighting its instrumental nature. However, this approach covers only one part, the main one, of the scope that protects the right of access to public information. Without paying attention to other rights pointed out in the ECHR jurisprudence through which access to public information has become effective, such as art. 8 ECHR and art. 6.1 ECHR, also instrumentally, the definition of this important right would be unfinished. Therefore, through the general theory of fundamental rights, the constitutive elements of a fundamental right without explicit recognition in the text of the ECHR but very present in the jurisprudence of the ECHR are reconstructed.

ANALISIS YURIDIS NORMATIF PUTUSAN PERKARA MAHKAMAH AGUNG KONSTITUSI RI No. 004/PUU-II/2004

2013 ◽  
Vol 7 (1) ◽  
pp. 7
Author(s):  
Doni Budiono
Keyword(s):  
The Body ◽  
Supreme Courts ◽  
Military Justice ◽  
State Administration ◽  
The Supreme Court ◽  
Directorate General ◽  
The Government ◽  
Government Rules ◽  
The Right ◽  
Tax Court

The  authority  of justice in Indonesia  is executed by  the Supreme Courts and  the  justice  boards/body under the Supreme Courts, including  the general  justice, religious affairs justice, military justice,  state administration  justice,  and  the Constitution Court. According to  certainty in  the Act of  Tax Court, Article1, clause  (5),  tax  dispute   refers to the legal dispute arising in the  taxation  affairs between the  tax payer or the  body  responsible for the  tax with   the government   executives  ( Directorate General of Tax) as the consequence of   the issue of  the decree for the  appeal  to the Tax  Court in accordance with the  tax Act, including the  charge  against the  execution of collection   in accordance with the  Act of Tax Collection by force. The  formation of Tax Court is  designed by  the Executives, in this case, the  Department of Finance, specifically  the Directorate   General  of Tax  which has the right to issue  law  more technical about  tax accord to Article 14,  letter A,  President Decree  no. 44  year 1974,  concerning the  basic  organization of the Department.  Based on  it,  it  is clear that  in addition to execute the government  rules and policy,  this body  has to execute judicial   rules and policy. This is against the  principles of  Judicative  Power/Authority in Indonesia,  which   clearly states that this body  should be under the Supreme Court.   Therefore. It is suggested that   the Act  No UU no.14 Year 2012 concerning  Tax Court   be revised  in accordance with the system of  Power Division  of Justice  as  stated in 45 Constitutions.

The Right to Information in India Implementation and Impact

2015 ◽  
Vol 2 (1) ◽  
pp. 17
Author(s):  
_______ Naveen ◽  
_____ Priti
Keyword(s):  
Public Life ◽  
Public Authorities ◽  
The Public ◽  
Know How ◽  
The People ◽  
The Government ◽  
Right To Information ◽  
The Right ◽  
The Impact

The Right to Information Act 2005 was passed by the UPA (United Progressive Alliance) Government with a sense of pride. It flaunted the Act as a milestone in India’s democratic journey. It is five years since the RTI was passed; the performance on the implementation frontis far from perfect. Consequently, the impact on the attitude, mindset and behaviour patterns of the public authorities and the people is not as it was expected to be. Most of the people are still not aware of their newly acquired power. Among those who are aware, a major chunk either does not know how to wield it or lacks the guts and gumption to invoke the RTI. A little more stimulation by the Government, NGOs and other enlightened and empowered citizens can augment the benefits of this Act manifold. RTI will help not only in mitigating corruption in public life but also in alleviating poverty- the two monstrous maladies of India.

Fundamental Rights in the Indian Constitution: Could it include ‘Right to Sanitation’?

2016 ◽  
Vol 5 (6) ◽  
pp. 291-296
Author(s):  
Anil Kumar Mohapatra
Keyword(s):  
Fundamental Rights ◽  
Safe Drinking Water ◽  
Right To Life ◽  
Personal Liberty ◽  
Sanitation Facility ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The World ◽  
The Government ◽  
The Right

Long before India gained independence, M.K. Gandhi remarked that the availability of Sanitation facility is more important than gaining Independence for an Indian. Of late, it is now increasingly felt and realized in India that facilities like toilet, safe drinking water, accompanied by good hygienic conditions are fundamental necessities of a person. These are prerequisites of social and economic justice and genuine development. The Supreme Court of India in one judgement held that Right to life and personal liberty, should include right to privacy and human dignity etc. Despite that it has been an admitted shame that India still has the largest number of people defecating in open in the world. There are reported incidences of rape and murder of women in many places in India as women rely on open field for attending to the call of nature in morning and evening. The attempts like Community toi-let system, pay-and-use toilet system and schemes like ‘Mo Swabhiman -Mo Paikhana’ have been found to be less effective. In this connection the ‘Clean India Mission’ campaign launched by the Government of India in 2014 has been regarded as a right approach in that direction. Government of the day is actively considering the demand to convert the Right to Sanitation from a developmental right to a fundamental right. It would make the state more accountable and responsible. Against this background, the paper argues that spending huge money on that would yield good dividend in future for the country.

scholarly journals Victim’s Right of Access to International Criminal Courts

2016 ◽  
Vol 10 (1) ◽  
pp. 279
Author(s):  
Fazlollah Foroughi ◽  
Zahra Dastan
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Level ◽  
Human Beings ◽  
International Crimes ◽  
The Government ◽  
The Right ◽  
Right Of Access

Due to quantitative expansion and evolution in committing the crime at the international level, the scope of criminal proceedings has been widened significantly. Tolerance and forgiveness towards crimes that happen at international level not only is a double oppression on the victims, but also provide a fertile context for others to commit crimes more daringly. Thus, it is essential that international criminals are held accountable to the law and competent institution, and the realization of this issue leads to the victim satisfaction in international law. Not only in international law, but also in domestic law, show respect and protection of human rights is effective only when there is an effective justice system to guarantee the rights. Although some international crimes practically occur by the government or at least high-ranking government officials, the Statute of the International Criminal Court has reiterated this point that they only have jurisdiction over the crimes committed by natural persons rather than legal entities, which one good example is governments, and although the real victims of these crimes have been human beings, in the case of action and referring the case to the competent international courts, these are the states (rather than the victims) that actually have the right of access to the authorities and not beneficiaries .Thus, at the first step, we should see whether the Court has jurisdiction over the crime committed by the government and whether people can file an action independently in the International Criminal Court or not? When people, rather than governments, are beneficiaries in some international crimes, why only the government and not the people is the plaintiff? And what is the right of the victim in such category of crimes? Accordingly, the current research seeks to examine these rights and restrictions, and relevant limitations.

scholarly journals State Legislatures Have the Courage to Pass Antiabortion Laws and Test the Ideology of the “New” United States Supreme Court

2020 ◽  
Vol 3 (1) ◽  
pp. 136-150
Author(s):  
Jill Oeding
Keyword(s):  
United States ◽  
Supreme Court ◽  
State Legislatures ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Undue Burden ◽  
Constitutional Right ◽  
Reported Data ◽  
The Right

Many state legislatures are racing to pass antiabortion laws that will give the current Supreme Court the opportunity to review its stance on the alleged constitutional right to have an abortion. While the number of abortions reported to be performed annually in the United States has declined over the last decade, according to the most recent government-reported data, the number of abortions performed on an annual basis is still over 600,000 per year. Abortion has been legal in the United States since 1973, when the Supreme Court recognized a constitutional right to have an abortion prior to viability (i.e. the time when a baby could possibly live outside the mother’s womb). States currently have the right to forbid abortions after viability.  However, prior to viability, states may not place an “undue burden” in the path of a woman seeking an abortion. The recent appointments of two new Supreme Court justices, Neil Gorsich and Brett Kavanaugh, give pro-life states the best chance in decades to overrule the current abortion precedent. The question is whether these two new justices will shift the ideology of the court enough to overrule the current abortion precedent.

scholarly journals Pravni položaj poštenog i nepoštenog posjednika u odnosu na vlasnika stvari

2017 ◽  
Vol 38 (1) ◽  
pp. 527-543
Author(s):  
Jadranko Jug
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Basic Method ◽  
Unjust Enrichment ◽  
The Supreme Court ◽  
Legal Position ◽  
The Republic ◽  
Basic Characteristics ◽  
The Right

This paper deals with the problems related to the legal position of honest and dishonest possessors in relation to the owner of things, that is, it analyses the rights belonging to the possessors of things and the demands that possessors may require from the owners of things to whom the possessors must submit those things. Also, in contrast, the rights and requirements are analysed of the owners of things in relation to honest and dishonest possessors. In practice, a dilemma arises in defi ning the essential and benefi cial expenditure incurred by honest possessors, what the presumptions are for and until when the right of retention may be exercised for the sake of remuneration of that expenditure, when the statute of limitations expires on that claim, and the signifi cance of the provisions of the Civil Obligations Act in relation to unjust enrichment, management without mandate and the right of retention, and which provisions regulate these or similar issues. The answers to some of these dilemmas have been provided in case law, and therefore the basic method used in the paper was analysis and research of case law, especially decisions by the Supreme Court of the Republic of Croatia. The introduction to the paper provides the basic characteristics of the concept of possession and possession of things, and the type and quality of possession, to provide a basis for the subsequent analysis of the legal position of the possessor of a thing in relation to the owner of that thing.

scholarly journals International legal guarantees for the realization of human and citizen rights to environmental information

2021 ◽  
Vol 12 (4) ◽  
Author(s):  
Butsmak Artem ◽  
Keyword(s):  
Environmental Information ◽  
Public Authorities ◽  
Legal Norms ◽  
Legal Documents ◽  
Ecological Information ◽  
Right To Information ◽  
The Right ◽  
International Instruments ◽  
Right Of Access ◽  
To Receive

In the article considered guarantees of the right on access to ecological information fixed in international legal documents. Also made a research on state of implementation such international instruments in national Ukrainian legislation, separate legal instruments of realization the right to get ecological information. Made examples of successful defence of the broken right on access to ecological information. In order to exercise the right to information, it is important not only to have the norms enshrined in the legislation, but also the system of guarantees and opportunities for their implementation, which should be provided by public authorities. International legal documents establish only general approaches to the protection of rights, and their further development and consolidation is undoubtedly entrusted to national authorities. The analysis of the current national legislation allows to state that in general the international legal norms have found the reflection in national regulatory legal acts. However, over time, approaches to understanding environmental information, expanding its list, the subjects who have the right to receive it, so work in this direction should continue in order to increase the possibility of exercising the right of access to such information. Keywords: ecolaw, right on access to ecological information, guarantees of right on access to ecological information, international guarantees of right on access to ecological information

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