The Rights of the Accused in Islam (Part Two)

1994 ◽  
Vol 11 (4) ◽  
pp. 504-518
Author(s):  
Taha J. Al ‘Alwani
Keyword(s):  
Best Interests ◽  
Self Defense ◽  
The Law ◽  
The Right

Under the law of Islam, the accused enjoys many rights. Thesewill be summarized below.The Right to a DefenseThe accused has the right to defend himselfherself against anyaccusation. This may be accomplished by proving that the evidencecited is invalid or by presenting other evidence that contradicts it. Inany case, the accused must be allowed to exercise this right so that theaccusation does not turn into a conviction. An accusation means thatthere is the possibility of doubt, and just how much doubt there is willdetermine the amount and parameters of defense. By comparing theevidence presented by the defense with that of the party making theaccusation, the truth will become clear-which is, after all, the objectiveof the investigation.Therefore, self-defense is not only the right of the accused to useor disregard as helshe pleases, but is also the right and the duty ofsociety as a whole. If it is in the best interests of an individual not tobe convicted when he/she is in fact innocent, the interests of societyare no less important. It is the society’s concern that the innocent arenot convicted and that the guilty do not escape punishment. It is forthis reason that the Shari‘ah guarantees the right to a defense, andprohibits its denial under any circumstances and for any reason ...

scholarly journals The best interests of the child in international law: conceptual framework

Legal Ukraine ◽  
2020 ◽  
pp. 14-23
Author(s):  
Vasyl Datsenko
Keyword(s):  
International Law ◽  
Fundamental Principle ◽  
Best Interests ◽  
Systematic Analysis ◽  
Rights Of The Child ◽  
Legal Principle ◽  
International Legal Order ◽  
The Law ◽  
The Individual ◽  
The Right

On today’s international law, there is a broad consensus on the idea of ​​those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child «On the right of a child to receive respect for the rest of the world». Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child’s best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.

Lawful War of Self-Defense

2018 ◽  
Author(s):  
Yishai Beer
Keyword(s):  
The Self ◽  
The Other ◽  
Legal Issue ◽  
Military Doctrine ◽  
Self Defense ◽  
The Law ◽  
Imminent Threat ◽  
The Right ◽  
Military Professionalism

This chapter deals with the application of the suggested professionalism criterion in the other segment of the law, the ad bellum sphere. An unresolved legal issue in the self-defense context concerns its timing: When can a self-defendant state be proactive in its defense and strike preemptively? On the assumption that a self-defendant is not obliged to remain a sitting duck when confronted by an imminent threat against it, this chapter suggests that the criterion to be used in defining the legal-timing threshold, vindicating the right of self-defense, be taken from the toolbox of military professionalism. It should be the last reasonable point, according to the self-defendant’s military circumstances, at which it can, according to its military doctrine, successfully face the aggressor’s threat and still operationally defend itself—including, when necessary, by taking the initiative in its own self-defense.

scholarly journals The Sexual Orientation of a Parent as a Factor when Considering Care

2017 ◽  
Vol 16 (3) ◽  
pp. 292
Author(s):  
Chantelle Feldhaus
Keyword(s):  
Sexual Orientation ◽  
International Law ◽  
Well Being ◽  
Best Interests ◽  
Best Interest ◽  
The Common ◽  
The Law ◽  
To Come ◽  
The Right

Section 28(2) of the Constitution states that a child's best interest is of paramount importance in every matter concerning the child.  Section 9 further provides that every person is considered equal before the law and has the right to equal protection and benefit of the law. Several grounds are listed relating to the unfair discrimination of persons, including their sexual orientation. The concept of care is incorporated in the Children's Act, and it entails a comprehensive description of parents' daily life regarding children and the powers and duties expected to ensure the general protection, well-being and best interests of the child. The aim of this contribution is to discuss the sexual orientation of a parent as a factor when considering care and the extent to which courts may give consideration to such a factor. The article will also address the question of whether or not the role of a parent's sexual orientation in determining the best interests of the child has changed since the common law concept of custody was replaced by the concept of care in the Children's Act. In this article, care and the best interests of the child will be discussed first. International law will be considered thereafter, followed by a discussion on the approach of our courts, pre- and post-1994, in order to come to a conclusion and make recommendations.

scholarly journals KEADILAN RESTORATIF DALAM PUTUSAN PIDANA ANAK

2018 ◽  
Vol 11 (2) ◽  
pp. 193
Author(s):  
Hesti Septianita
Keyword(s):  
Restorative Justice ◽  
Best Interests ◽  
Deterrent Effect ◽  
Appellate Court ◽  
Court Judge ◽  
Educational Rights ◽  
Adequate Education ◽  
The Law ◽  
Educational Treatment ◽  
The Right

ABSTRAKTulisan ini merupakan sebuah analisis terhadap Putusan Nomor 9/PID.SUS-ANAK/2016/PT.BDG, yang mengkaji sudah tepat atau tidak putusan yang dijatuhkan oleh hakim pengadilan tingkat banding tersebut dengan konsep restorative justice. Metode penelitian yang digunakan dalam tulisan ini adalah metode yuridis normatif dengan pendekatan deskriptif analitis yang menggambarkan sekaligus menganalisis pertimbangan-pertimbangan yang diambil oleh hakim dalam menjatuhkan putusan. Pertimbangan yang diambil oleh hakim pengadilan tingkat banding yang menguatkan putusan hakim pada pengadilan tingkat pertama merupakan pertimbangan yang tepat di mana hakim memutus perkara dengan mempertimbangkan prinsip-prinsip restorative justice. Hakim tidak hanya mempertimbangkan upaya pemberian efek jera tetapi juga mempertimbangkan kepentingan terbaik bagi anak yang berkonflik dengan hukum dengan memastikan pemenuhan hak atas pendidikan dan menghindarkan anak dari risiko pengaruh buruk yang dapat berujung pada berulangnya tindak pidana, karena dalam isu anak yang berkonflik dengan hukum, pendidikan bagi semua anak tanpa memandang asal, ras, gender, kecacatan atau kemampuan dan layanan kesehatan serta advokasi harus diperhatikan. Sejumlah anak tidak sempat mengenyam pendidikan yang lengkap karena situasi penjara yang tidak memungkinkan untuk memberikan pendidikan bagi warga binaannya.Kata kunci: pidana anak, pembinaan, restorative justice. ABSTRACT This is an analysis of Court Decision Number 9/PID. SUS-ANAK/2016/PT.BDG, which examines whether the decision imposed by the appellate court judge using the restorative justice concept is appropriate. Research in the analysis use normative juridical method with analytical descriptive approach, which describes and analyzes considerations taken by judges in making decision. The consideration taken by the appellate court judge reinforcing the decision of the first-level court judges is the right consideration since the judge decides the case by taking heed to the principles of restorative justice. The judge does not only weigh on the effort to provide a deterrent effect, but also the best interests of children in conflict with the law by ensuring the fulfillment of the children’s educational rights and prevent them from the risk of bad influences that may lead to the recurrence of crime. Because in the issue of children in conflict with the law, education for all children regardless of origin, race, gender, disability or ability and health services and advocacy should be taken into account. The children are not able to get an adequate education because of the incapacity of prison conditions to provide education to their inmates. Keywords: juvenile crime, educational treatment, restorative justice.

scholarly journals Divorce Reform in Canada: New Perspectives; An Analytical Review of Bill C-10 (Canada), 1984

2019 ◽  
Vol 15 (2) ◽  
pp. 359-383
Author(s):  
Julien D. Payne
Keyword(s):  
Third Party ◽  
Best Interests ◽  
Legal Process ◽  
Open Court ◽  
Analytical Review ◽  
Major Reform ◽  
The Law ◽  
One Year ◽  
The Right

Bill C-10 (Canada), 1984 is entitled An Act to Amend the Divorce Act (R.S.C., 1970, c. 10). In reality, however, the fundamental character of some of the changes proposed therein constitutes a major reform of substantive divorce law and provides a limited foundation for radical changes in the adversarial legal process. The concept of “no-fault” divorce that was proposed by the Law Reform Commission of Canada in its Working Papers and Report on Family Law constitutes the basis of Bill C-10 with regard to the freedom to divorce and the judicial determination of the right to and quantum of spousal maintenance. But Bill C-10 provides little by way of a framework for the implementation of the Law Commission's recommendations for new processes that would ameliorate the injurious effects of the adversarial legal process. For example, the use of mediation as an alternative to the litigation of disputed issues is endorsed in clauses 5 and 16 of Bill C-10, but these clauses, and particularly clause 5, are badly drafted and are unlikely to foster mediated settlements where either lawyer representing the parties is intent on a battle in open court. Bill C-10 introduces much-needed policy objectives to assist the courts in determining whether spousal maintenance should be ordered on the dissolution of the marriage. Here again, however, the drafting is less precise than might be considered appropriate. The “best interests of the child” is declared to be the paramount criterion in applications for the maintenance, custody, care and upbringing of children, but no specific guidelines are provided with respect to the factors that might be relevant to a determination of a child's best interests. Joint custody orders and third party orders are expressly permitted, but not expressly encouraged, by clause 10 of Bill C-10. The jurisdictional requirements of section 5 (1) of the Divorce Act, R.S.C. 1970, c. D-8 have been simplified by clause 3 of Bill C-10, which retains only the one year ordinary residence requirement. Corresponding adjustments have been made to section 6 of the Divorce Act, which governs the recognition of foreign divorce decrees. Bill C-10 (Canada), 1984 thus constitutes a blending of the old and new. Whether this blend produces vintage wine or vinegar is a matter of opinion.

JUVENILE JUSTICE SYSTEM THROUGH DIVERSION AND RESTORATIVE JUSTICE POLICY

2017 ◽  
Vol 2 (1) ◽  
pp. 168
Author(s):  
Dyah Listyarini
Keyword(s):  
Restorative Justice ◽  
Juvenile Justice System ◽  
Legal Protection ◽  
Law Enforcement Officers ◽  
Children's Rights ◽  
Children’S Rights ◽  
Best Interests ◽  
Rights Of The Child ◽  
The Law ◽  
The Right

Indonesia as a state of law has ratified several international human rights instruments, especially the Convention on the Rights of the Child, in which the state should ensure the protection, respect, fulfillment, promotion, and enforcement of children's rights. In fact, many children have been treated unjustly in the fulfillment of their rights when conflicting with the law.  Methods of legal protection of the rights of children conflicting with the law are based on the provision that “every child has the right to survive, grow and develop as well as the right to protection from violence and discrimination”. Other ways to protect children’s rights may also include the policy that children conflicting with the law should be treated humanely in accordance with their dignity and rights; special personnel should be provided for their companion and counseling; sanctions should be appropriated for the best interests of the children; and special facilities and infrastructure for children should be equally provided. This means that appropriate sanctions should hence be supported through the process of resolving cases using the principle of “diverse and restorative justice  The concept of diverse and restorative justice can be applied to the crime of under 7th-year punishments and non-repeated crime. Methods for handling children who have conflicts with the law have hitherto emphasized on normative juridical processes such as investigation, prosecution, and examination of the case by the judge (in court). The processes, however, have not guidelines or technical manuals for law enforcement officers to implement the non-litigation settlement for children cases

scholarly journals Conceptual framework for the best interests of the child in international law

2020 ◽  
pp. 51-62
Author(s):  
Vasyl DATSENKO
Keyword(s):  
International Law ◽  
Fundamental Principle ◽  
Best Interests ◽  
Systematic Analysis ◽  
Rights Of The Child ◽  
Legal Principle ◽  
International Legal Order ◽  
The Law ◽  
The Individual ◽  
The Right

On today’s international law, there is a broad consensus on the idea of those who want to talk about all the children and the importance of guilty mother’s interests. Buti and the court at the right are guilty of the arrest of nikrashchikh іnterestіv ditini. Vrakhovuchi is the issue of clear legislative regulation of the law and practice of legal practice of securing terminology of the interest of children, the author has analyzed the law of international law. At the statutory international legal order, there is a need for ECHRL, in some ways there is a lack of food for the protection of interested children in case of a viable dispute about it. Analyzed the keys to the position of the court regarding disputes regarding the child’s privacy Order No. 14 (2013) of the United Nations Committee on the Rights of the Child “On the right of a child to receive respect for the rest of the world”. Вased on a systematic analysis of the provisions of General Comment No. 14, the author identified two blocks of key positions that the court must adhere to when resolving a child dispute to ensure its best interests: 1) basic positions; 2) the procedure for assessing and determining the best interests of the child. The Committee underlines that the child's best interests is a threefold concept: a substantive right; A fundamental, interpretative legal principle; A rule of procedure. Another main point is the idea of how to apply it to each child individually. One more fundamental principle of the application of the Convention is that the State has no discretion to determine whether to prioritize the best interests of the child and give them due weight in any action. When assessing and determining the best interests of the child in order to make a decision on a specific measure, the following steps should be followed: (a) First, within the specific factual context of the case, find out what are the relevant elements in a best-interests assessment, give them concrete content, and assign a weight to each in relation to one another; (b) Secondly, to do so, follow a procedure that ensures legal guarantees and proper application of the right. As a result of this scientific research, the author has come to the conclusion that providing the best interests of the child are not universal. It must be obtained by the court as a result of identifying and assessing the individual needs of the child, taking into account the specifics of the subject matter of the case being considered by the court. If the court correctly identified and assessed such needs, followed certain legal guarantees, then the decision taken as a result of the case should be considered to be made in the best interests of the child. Key words: concept of the best interests of the child, family law relations, evaluation and determination of the best interests of the child, legal guarantees.

scholarly journals Child-Friendly Legal Aid and Individual Assessment of Children in Conflict with the Law: Building the Basis for Effective Participation

2021 ◽  
Vol 19 (1) ◽  
pp. 17
Author(s):  
Agnė Limantė ◽  
Rūta Vaičiūnienė ◽  
Jolanta Apolevič
Keyword(s):  
Public Institutions ◽  
Best Interests ◽  
Legal Aid ◽  
Youth Justice ◽  
Individual Assessment ◽  
Child Friendly ◽  
The Law ◽  
The Right ◽  
Relationship Of

This article focuses on the importance of the right to effective participation of children in conflict with the law in criminal (youth justice) proceedings. In particular, it explores two procedural aspects which are closely related to the right to child-friendly legal aid and the role of individual assessment. The authors claim that qualitatively identifying the needs of the child (through the instrument of individual assessment) and establishing a relationship of trust with a specifically trained legal aid lawyer is critical in raising the child’s status to that of an active participant in the proceedings and ensuring that the best interests of the child are observed. The authors also suggest that such an initial encounter within the justice system forms an attitude (of either confidence or rejection) of the child towards public institutions and, accordingly, directly affects the effectiveness of further interventions. To support their position, the authors of the paper bring several examples from the comparative research carried out in two European projects, noting, regretfully, that the initial interventions often suffer from formal implementation and lack a systemic approach.

scholarly journals With regard to the reform of the law of medical ethics

2015 ◽  
pp. 192-193
Author(s):  
Fernando Sánchez Torres
Keyword(s):  
Medical Ethics ◽  
Best Interests ◽  
Scope Of Practice ◽  
Current Standard ◽  
Moral Standards ◽  
The Face ◽  
The Law ◽  
The Right ◽  
The Brain

The law or code of medical ethics must be understood as the moral navigation chart of medicine practitioners, as what it is aimed with it is to help them not to get lost during the course of their work, pointing them out the right way to act with their patients and the community. That guide is the "objective moral", that is, the set of rules that dictates the society for its components, including the doctors themselves. As such, the code of medical ethics has the patient as its first beneficiary, which is the rationale of medicine. What is aimed is that the doctor be a pledge of warranty for the care of the health and life of people, interpreting that the former and the latter represent their best interests. In no way can be thought that the only purpose of the law is to protect the interests of the physicians. In 1981, it was enacted the Law 23, which is the current standard of medical ethics. Since then - 34 years later - customs in the scope of practice have substantially changed. Since customs are morally qualified and valued by society, moral must adjust its approach as those change. So it is then understandable that many of the moral standards referred to in the primal law have become obsolete. Whereas the test of time is the most severe and just laws judge, after nearly seven decades of Act 23 being tested, there have been revealed both its goodness and defects. With the advent of bioethics in the 70s decade of last century, both the face and the brain of traditional ethics suffered fundamental changes. Taken as a specialty of bioethics, medical ethics also changed, to the point that its distance from the Hippocratic ethics - in effect for over twenty centuries - forced to reassess some of the principles that underpinned it.

scholarly journals Providing Legal Assistance to the Rights of the Defendant in the Case of Murder in Self-Defense

2021 ◽  
Vol 3 (4) ◽  
pp. 569-584
Author(s):  
Miftakhul Ihwan
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
Legal Services ◽  
Legal Assistance ◽  
Legal Aid ◽  
Human Right ◽  
Self Defense ◽  
Inhibiting Factors ◽  
The Law ◽  
The Right

Law No. 16 of 2011 concerning legal aid, it is stated that legal aid is legal services provided by legal aid providers free of charge to legal aid recipients. In order to ease the burden of life for groups of people who are economically incapable, and also useful for creating justice and legal protection for the general public, legal aid is formed where the assistance is given to protect the rights of the accused as social beings, especially those included in the incapacitated or poor. Even so, the defendant's actions have clearly violated the law, but the law must also ensure that the rights of the accused are fulfilled as citizens, especially in terms of human rights. Legal aid institutions play an important role in providing legal assistance to people who need legal assistance to guarantee their rights before the law. The problem in this research is how to implement the provision of legal aid to defendants who are economically incapable of murder cases on the basis of self-defense. What are the inhibiting factors for the implementation of providing legal aid to defendants who are economically incapable? The conclusion in this study is that the law clearly stipulates that every citizen has the right to legal guarantees and protection, the state must protect every human right of its citizens well regardless of position status or SARA. 

Sign in / Sign up

Export Citation Format

Share Document