scholarly journals The prerogative writs - indian perspective

2021 ◽  
pp. 44-54
Author(s):  
HARSH PATHAK
Keyword(s):  
Legal Status ◽  
Fundamental Rights ◽  
Habeas Corpus ◽  
Natural Justice ◽  
Administrative Action ◽  
Legal Limits ◽  
Application Procedure ◽  
The Right ◽  
Indian Perspective ◽  
Administrative Actions

The Constitution of India broadly provides for five kinds of “prerogative” writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition. This study presents their legal status, namely their application, procedure and grounds for their application. The study concludes that, in India, the rule of law is supreme and judiciary has the right to interfere whenever there is deviation from this supremacy. The judiciary shall ensure that all administrative actions comply with legal limits and consider administrative measures to assess whether the authority has exercised powers, the authority misused or exceeded its powers, the authority committed an error of law, the authority violated principles of impartiality of the judiciary, the authority has violated the fundamental rights of individuals. The Judiciary stands to ensure that all administrative actions are confined to the limits of the law and examines administrative action to assess whether the authority has exercised its powers, whether the authority has abused or exceeded its powers, whether the authority has committed an error of law, whether the authority has violated the principles of natural justice, whether the authority has infringed the fundamental rights of persons.

scholarly journals Advocacy as a tool for the realization of the fundamental right of a person to professional legal assistance

2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Status ◽  
Legal Profession ◽  
The State ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Legal Assistance ◽  
The Right ◽  
Legal Entities

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.

scholarly journals Reseña a la obra del profesor SÁNCHEZ GÓMEZ, R. "El derecho de defensa en la investigación de los delitos de terrorismo", Thomson Reuters Arazandi, Pamplona 2017, 297 págs.

2020 ◽  
pp. 615
Author(s):  
José Mª Contreras Mazarío
Keyword(s):  
Criminal Justice ◽  
Detailed Analysis ◽  
Legal Status ◽  
Fundamental Rights ◽  
Technological Research ◽  
Thomson Reuters ◽  
Procedural Code ◽  
The Right

La obra comentada desarrolla el estatuto jurídico básico aplicable a los detenidos por causa de terrorismo, realizándose un recorrido desde la aplicación de la Ley Orgánica 4/1988, de 25 de mayo, de reforma de la LECrim hasta la Ley Orgánica 13/2015, de 5 de octubre, de modificación de la LECrim para el fortalecimiento de las garantías procesales y la regulación de las medidas de investigación tecnológica y la Ley 41/2015, de 5 de octubre, de modificación de la LECrim para la agilización de la justicia penal y el fortalecimiento de las garantías procesales. Tras un pormenorizado análisis del derecho de defensa, se pone en relación éste con la suspensión de derechos fundamentales prevista en el artículo 55.2 de la CE a partir de su correspondiente desarrollo orgánico.The work develops the basic legal status applicable to detainees due to terrorism, analyzed from the application of the Organic Law 4/1988 of May 25, that modifies Criminal Procedural Code to Organic Law 13/2015, of October 5 that modifies Criminal Procedural Code regarding the strengthen of procedural guarantees and regulates technological research measures and Law 41/2015, of  October 5, that modifies Criminal Procedural Code to streamline criminal justice and to strengthen procedural guarantees. After a detailed analysis of the right of defense, it is related to the suspension of fundamental rights provided by art. 55.2 CE and its corresponding organic development.

scholarly journals The Protection of the Fundamental Rights of the Child in the Light of the African Charter on the Rights and Welfare of the Child

2018 ◽  
pp. 175-184
Author(s):  
Boubacar Sidi Diallo
Keyword(s):  
Legal Status ◽  
Fundamental Rights ◽  
Protection Mechanism ◽  
United Nations General ◽  
Optional Protocol ◽  
Rights Of The Child ◽  
Welfare Of The Child ◽  
African Charter ◽  
The Right ◽  
Judicial Protection

The adoption of a binding international treaty on the rights of the child is presented by practitioners and researchers as a “revolution”, marking the transition from the legal status of the child as a subject of the right, to a full actor of rights protection. For the fundamental rights of the child not to remain merely theoretical, but to become concrete and meaningful, it is important to provide them with effective judicial protection. This issue is more than ever topical, with the adoption by the United Nations General Assembly of the Optional Protocol to the Convention on the Rights of the Child establishing a procedure for the submission of communications, which entered into force on 14 April 2014. This new Optional Protocol gives children the right to appeal to the Committee on the Rights of the Child when the rights protected by the Convention and its firsttwo protocols are violated. The purpose of this brief study is to analyze the African Charter on the Rights and Welfare of the Child (African Charter), adopted in 1990, which is the firstregional legal text for children specificallyand as such unique, since no other region in the world has so far developed such a protection mechanism.

Notes: Investigations, natural justice and reviewability: Msiza v Motau NO & another

2021 ◽  
Vol 138 (1) ◽  
pp. 20-39
Author(s):  
D M Pretorius
Keyword(s):  
Procedural Fairness ◽  
Natural Justice ◽  
Administrative Action ◽  
Potential Impact ◽  
The Right ◽  
Public Bodies

The case of Msiza v Motau NO & another 2020 (6) SA 604 (GP) dealt with a report prepared by the first respondent pursuant to an investigation into the VBS Bank looting scandal. The investigation was conducted on behalf of the second respondent, the Prudential Authority. The applicant applied for, and was granted, an order reviewing and setting aside aspects of the report that reflected adversely on him. This was because the first respondent had not afforded the applicant an opportunity to be heard before he wrote the report and submitted it to the second respondent. As such, the case raised questions about the applicability of the right to procedural fairness in investigative proceedings and about the reviewability of reports produced by investigators. This note explores whether (and, if so, in what circumstances) investigations conducted by or on behalf of public bodies constitute administrative action that must be performed in accordance with the audi alteram partem rule. It concludes that the reasoning for the court’s view (that it is incumbent on an investigator who should foresee that his findings will have adverse consequences for another person to hear that person before making such findings) lacked depth and nuance. In determining whether there is a right to be heard in an investigative context, due attention should be given to the applicable statutory framework, the powers of the investigator, the potential impact on affected persons, and relevant precedent.

scholarly journals Human rights and women's reproductive health in the countries of Latin America

2021 ◽  
Vol 25 (1) ◽  
pp. 164-178
Author(s):  
Gular A. Mustafa
Keyword(s):  
Latin American ◽  
Legal Status ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Termination Of Pregnancy ◽  
Fundamental Rights ◽  
Scientific Methods ◽  
Special Scientific ◽  
The Right ◽  
Latin American Countries

The problem of induced termination of pregnancy has been a burning issue for mankind for centuries. An analysis of doctrine and legislation demonstrates that there is no consensus on this issue. The problem of induced termination of pregnancy is defined by ethical, religious, medical, social and legal aspects, which is also associated with the uncertainty of the legal status of the embryo. The aim of the study is to analyze the legislation of Latin American countries regarding the legal regulation of abortion, in order to verify its compliance with the fundamental rights - the right to life, the right to health and the right to inviolability. Special scientific methods were used in the research: comparative law, legal and technical methods. The relevance of the problem stems from the need to solve the controversial issue of legalization of artificial termination of pregnancy. The existence of disagreement lies in the lack of a unified approach in seeking to resolve this situation.

THE RIGHT TO BE FORGOTTEN IN THE PRACTICE OF THE CONSTITUTIONAL JUSTICE BODIES OF THE RUSSIAN FEDERATION AND THE FEDERAL REPUBLIC OF GERMANY

2020 ◽  
Vol 6 (3) ◽  
pp. 170-187
Author(s):  
Evgeniya V. GERASIMOVA
Keyword(s):  
Legal Status ◽  
Legal Regulation ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Federal Republic Of Germany ◽  
Legal Method ◽  
Right To Be Forgotten ◽  
Federal Constitutional ◽  
Constitutional Justice ◽  
The Right

The development of digital technologies affects the legal status of an individual. The task of constitutional justice is the constitutional interpretation of new legal phenomena such as the right to be forgotten. This article aims to analyze the right to be forgotten in the decisions of the Russian Constitutional Court and German Constitutional Court in a comparative aspect. The research methodology is primarily a dialectical method. This method helps the author to identify the content of the right to be forgotten, as well as to determine its role in relation to other constitutionally significant values. The comparative legal method is of particular importance for achieving the objectives of the research and helps to highlight the general and specific in the approaches of the courts to the concept of this right. This approach distinguishes the novelty of this research in comparison with other papers. The use of the dialectical and comparative legal research methods allows drawing the following conclusions. The distinctive feature of the right to be forgotten is its dualistic nature. On the one hand, this is a civil right associated with the right to privacy; on the other, it acts as a way to protect other constitutional rights (for example, the dignity of the individual). This right is not absolute. Some information may be of public interest. To resolve the issue of the prevailing constitutionally significant value in a particular case, the Russian Constitutional Court suggests using the method of finding a balance. The Federal Constitutional Court of Germany emphasized that the right to free personal development and dignity sometimes prevails over freedom of information, especially considering the time factor in the case, as well as the degree of harm caused to a person by links to information posted on the Internet. The German Federal Constitutional Court, characterizing the legal relationship regarding the exercise of the right to be forgotten, highlights that this is a relationship between private subjects with fundamental rights, and refers to the concept of the horizontal effect of fundamental rights (“mittelbare Drittwirkung”) developed in German constitutional law. This article concludes that the decisions of the Russian Constitutional Court and the Federal Constitutional Court of Germany on the right to be forgotten are the guidelines for other courts, as well as the legislator for further improving legal regulation. Taking into account the development of information technologies, the author believes that the constitutional courts will more than once turn to the digital aspects of the legal status of an individual and, in particular, the concept of the right to be forgotten.

Habeas Corpus: from England to Empire

2011 ◽  
Vol 7 (2) ◽  
pp. 257-269
Author(s):  
Michael Lobban
Keyword(s):  
Seventeenth Century ◽  
Common Law ◽  
Fundamental Rights ◽  
Habeas Corpus ◽  
Personal Liberty ◽  
General Terms ◽  
Magna Carta ◽  
The Common ◽  
Iconic Status ◽  
The Right

The ‘Great Writ’ of habeas corpus has long had an iconic status as the ‘writ of liberty’ which ensured that no person could be detained in prison without being put to trial by a jury of his peers. According to the traditional version, popularised by Whiggish constitutional writers from the late seventeenth century onwards, the English constitution as embodied in the common law had, since time immemorial, striven to protect the fundamental rights of Englishmen and women, which included the right to personal liberty. The common law had supplied the writ of habeas corpus, which secured the provision of Magna Carta, that no freeman be imprisoned save by the judgment of a jury of his peers. In the course of the seventeenth century, the Whig version ran, kings with an absolutist bent sought to undermine ancient liberties, by claiming prerogative powers to imprison without trial, and by appointing supine judges who would not protect people's liberties. It took the triumph of Parliament to restore and perfect them. For William Blackstone, one of the key statutes which secured ‘the complete restitution of English liberty’ was the Habeas Corpus Act of 1679, ‘that second magna carta’. As Blackstone put it: ‘Magna carta only, in general terms, declared, that no man shall be imprisoned contrary to law: the habeas corpus act points him out effectual means, as well to release himself, though committed even by the king in council, as to punish all those who shall thus unconstitutionally misuse him.’

Recognition of a Person’s Rights and Ethical Fulfilment

2017 ◽  
Vol 4 (3) ◽  
pp. 33
Author(s):  
Vereno Brugiatelli
Keyword(s):  
Human Rights ◽  
Self Esteem ◽  
Private Life ◽  
Fundamental Rights ◽  
Ethical Life ◽  
Institutional Conditions ◽  
Level I ◽  
The Right ◽  
Forms Of Violence ◽  
Desperate Attempt

Man's ethical fulfilment often faces objective obstacles in the deprivation of rights. The negation of the recognition of certain fundamental rights, or worse, the radical misrecognition of man, which translates into different forms of violence, often artfully disguised both on an individual and collective level, produces devastating consequences in the private life of a person upsetting all forms of positive self-esteem. The recognition of human qualities, accompanied by the right to express and extend them, is an integral part of the ethical life of each individual and, at the same time, constitutes a fundamental moment in the construction of a responsible civilized community. In this dissertation, I aim to analyse the connection between ethical life and human rights in order to draw attention to the repercussions that the recognition and misrecognition of liberty produce with regard to man's ethical fulfilment. From this perspective, I intend to highlight the importance of the existence of favourable juridical and institutional conditions to ensure ethical fulfilment. At this level, I will underline that the deprivation of capabilities is often the main cause of the profound sense of discontent affecting individuals in their desperate attempt to realise a type of existence which corresponds to their ambitions.

Ensuring Reproductive Rights of Women in Nepal: Law and Praxis

2020 ◽  
Vol 4 (1) ◽  
pp. 41-62
Author(s):  
D. N. Parajuli
Keyword(s):  
Human Rights ◽  
Reproductive Health ◽  
Health Services ◽  
Reproductive Rights ◽  
School Curriculum ◽  
Fundamental Rights ◽  
Reproductive Health Services ◽  
Women And Girls ◽  
The Right ◽  
Health Rights

 Reproductive rights are fundamental rights and freedoms relating to reproduction and reproductive health that vary amongst countries around the world, but have a commonality about the protection, preservation and promotion of a woman‘s reproductive health rights. Reproductive rights include the right to autonomy and self-determination , the right of everyone to make free and informed decisions and have full control over their body, sexuality, health, relationships, and if, when and with whom to partner, marry and have children , without any form of discrimination, stigma, coercion or violence. The access and availability of reproductive health services are limited due to geography and other issues, non-availability and refusal of reproductive health services may lead to serious consequences. The State need to ensure accessibility, availability, safe and quality reproductive health services and address the lifecycle needs of women and girls and provide access of every young women and girls to comprehensive sexuality education based on their evolving capacity as their human rights, through its inclusion and proper implementation in school curriculum, community-based awareness program and youth led mass media. It is necessary for strengthening compliance, in a time-bound manner, with international human rights standards that Nepal has ratified that protect, promote, and fulfill the basic human rights and reproductive health rights in Nepal and also need to review standards and conventions that Nepal has had reservations about or those that have been poorly implemented in the country.

Standardy należytego uzasadnienia w świetle orzecznictwa Trybunału Konstytucyjnego i Europejskiego Trybunału Praw Człowieka

2014 ◽  
pp. 33-48
Author(s):  
Przemysław Florjanowicz-Błachut
Keyword(s):  
European Union ◽  
Human Rights ◽  
Due Process ◽  
Case Law ◽  
Fair Trial ◽  
Fundamental Rights ◽  
European Convention ◽  
European Court ◽  
Judicial Reasoning ◽  
The Right

The core function of the judiciary is the administration of justice through delivering judgments and other decisions. The crucial role for its acceptance and legitimization by not only lawyers, but also individulas (parties) and the hole society plays judicial reasoning. It should reflect on judge’s independence within the exercise of his office and show also judicial self-restraint or activism. The axiology and the standards of proper judicial reasoning are anchored both in constitutional and supranational law and case-law. Polish Constitutional Tribunal derives a duty to give reasoning from the right to a fair trial – right to be heard and bring own submissions before the court (Article 45 § 1 of the Constitution), the right to appeal against judgments and decisions made at first stage (Article 78), the rule of two stages of the court proceedings (Article 176) and rule of law clause (Article 2), that comprises inter alia right to due process of law and the rule of legitimate expactation / the protection of trust (Vertrauensschutz). European Court of Human Rights derives this duty to give reasons from the guarantees of the right to a fair trial enshrined in Article 6 § 1 of European Convention of Human Rights. In its case-law the ECtHR, taking into account the margin of appreciation concept, formulated a number of positive and negative requirements, that should be met in case of proper reasoning. The obligation for courts to give sufficient reasons for their decisions is also anchored in European Union law. European Court of Justice derives this duty from the right to fair trial enshrined in Articles 6 and 13 of the ECHR and Article 47 of the Charter of Fundamental Rights of the European Union. Standards of the courts reasoning developed by Polish constitutional court an the European courts (ECJ and ECtHR) are in fact convergent and coherent. National judges should take them into consideration in every case, to legitimize its outcome and enhance justice delivery.

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