scholarly journals THE ROLE OF JUDICIARY IN PAKISTAN: CASE OF NAB

2021 ◽  
Vol 2 (2) ◽  
Author(s):  
Prof. Dr. Syed Salahuddin Ahmad
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Critical Study ◽  
Short Article ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
Law Making

The purpose of this write up is not to analyze the objectives and the features of the NAB Ordinance. This is also not a critical study of the functions and performances of the National Accountability Bureau. The purpose of this short article is to evaluate the performance of the incumbent Chairman Mr. Qamar Zaman Chaudhry through the critical eyes of the Supreme Court of Pakistan. When General Pervaiz Musharraf seized power in October 1999 after over throwing the civilian government of Prime Minister Nawaz Sharif, one of the first tasks that he undertook was to promulgate National Accountability Bureau Ordinance. For its intent and purpose the NAB ordinance was a remarkable piece of legislation in the law making history of Pakistan. NAB is an autonomous apex body to root out corruption from body polity of Pakistan

scholarly journals A Choice among Values: Theoretical and Historical Perspectives on the Defence of Necessity

1969 ◽  
pp. 848 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Historical Perspectives ◽  
Theoretical Approaches ◽  
A Value ◽  
Canadian Law ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
The Way

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.

scholarly journals Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

scholarly journals Takamore v Clarke: Tikanga and Merits-Based Resolution of Burial Disputes, a Just Outcome?

2021 ◽  
Author(s):  
◽  
Matthew Webb
Keyword(s):  
New Zealand ◽  
Cultural Identity ◽  
Supreme Court ◽  
General Application ◽  
The Supreme Court ◽  
The Law ◽  
Court Intervention

<p>Burial disputes are something of a novelty in New Zealand. Most are resolved amicably by those with ties to the deceased. The exception to has been the long-running case of Takamore v Clarke, the matter finally being resolved by the Supreme Court this year. Burial disputes raise fundamental issues of religious and cultural identity (including tikanga Māori), personhood, and the meaning of family. Despite their rarity in New Zealand, the response of the law in resolving such disputes should “fit the fuss”, having regard to the context in which they arise. This essay begins by discussing the form of resolution advocated for by the majority and minority in Takamore. Their respective approaches are essentially the same, especially with regards to tikanga Māori. This is one of Court intervention coupled with a merits-based assessment of the dispute. However the Court failed to apprehend there was no pressing need for burial, prior to creating a solution of general application. The experience of comparable jurisdictions, where speedy resolution has been necessary (such as Australia) demonstrates that the role of the Court applying such a test in burial disputes is misconceived. Rather than providing “justice” for the parties concerned, merits-based resolution produces unfair and unconvincing outcomes. The more just response is to ensure the parties never get to Court, via mediation. Insofar as agreement is not possible, the role of the Court should be supervisory in the application of a prescriptive test emphasising expediency and ensuring the dispute is resolved out of Court.</p>

scholarly journals Texas, Abortion, and State Action

2021 ◽  
Vol 74 (1) ◽  
pp. 139-144
Author(s):  
Alexander Lindvall
Keyword(s):  
Supreme Court ◽  
Short Article ◽  
Enforcement Mechanism ◽  
State Action ◽  
Private Citizen ◽  
The Supreme Court ◽  
State Actors ◽  
The Law ◽  
The Government ◽  
Constitutional Protections

The Texas Legislature recently passed what the Supreme Court describes as an “unprecedented” statutory scheme. Texas’s new law allows private, everyday citizens to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy. It’s clear that Texas chose this unusual enforcement mechanism to try to circumvent the Constitution’s “state action” requirement. Before a plaintiff can challenge a policy or action on constitutional grounds, they must show that the government somehow had a hand in causing their harm. But this Texas law strips the government of its enforcement power and instead gives it to everyday citizens, thereby allowing the law’s defenders to argue that the law does not trigger constitutional protections. This short article argues that the courts should have little trouble concluding that this law and its unusual enforcement mechanism amount to state action, meaning this law is subject to normal constitutional scrutiny. The Supreme Court’s decisions in Shelley v. Kraemer, Edmonson v. Leesville Concrete Co., and Terry v. Adams make clear that private parties can be considered state actors, especially when they are working with the express approval of the government and when the courts are required to hand down rulings that seemingly infringe on well-settled constitutional protections. These decisions, among others, show that the private-citizen plaintiffs deputized under this new Texas law must be treated as state actors who are subject to constitutional limitations.

scholarly journals Judicial Law-making and Its Regulation in Independent Ukraine: Its History and Development

2021 ◽  
Vol 4 (3) ◽  
pp. 82-100
Keyword(s):  
Supreme Court ◽  
Legal Status ◽  
Legal Regulation ◽  
Judicial System ◽  
Judicial Power ◽  
Constitutional Court ◽  
Judicial Reform ◽  
The Supreme Court ◽  
History Of ◽  
Law Making

The article studies the history of the origin and development of legal regulation of judicial law-making in Ukraine. The analysis of doctrinal ideas about judicial law- making, as well as the peculiarities of its formation in Ukraine, allowed us to emphasise that our scientific research is relevant because of: 1) the duration of the domestic judicial system and judicial reform, which dates back to the proclamation of Ukraine’s independence (1991) and continues to this day; 2) the ambiguity of the legal support for judicial law-making in Ukraine, the high level of its variability, and the uncertainty of the legal status of the subjects of judicial power in the mechanism of domestic law-making; 3) the doctrinal uncertainty of the place of judicial law-making in the domestic legal system, the ambiguity of its scientific perception, and the understanding of its function in the domestic mechanism of legal regulation. This paper analyses the provisions of the legislation of Ukraine in terms of legal support for forms and procedures of judicial law-making, the legal significance of judicial law-making acts, and their impact on administering justice in Ukraine. Particular attention is paid to the activities of the judiciary in the areas of law enforcement and law-making, the relationship and interaction of which requires strengthening in the current context of reforming the judicial system and the judiciary in Ukraine. The stages of development of the legal regulation of judicial law-making in Ukraine are revealed, the peculiarities of the legal support for judicial law-making are determined, and the content of the legal regulation of the mechanism of participation of the subjects of the judicial power of Ukraine in the national law-making is characterised. Analysis of the history of the legal regulation of judicial law-making in Ukraine and the current state of its legal provision allowed us to conclude that despite the scale of legislative changes in the legal support for the judicial system of Ukraine today, neither the Supreme Court, nor the Constitutional Court of Ukraine, nor any other court institution is recognised by the legislation of Ukraine as subjects of law-making. The legislation of Ukraine does not contain a clear definition of their status as the subject of law-making with the right to accept generally obligatory acts of this process. It is noted that such uncertainty significantly weakens both the legal support for the courts and their activities. At the same time, it is noted that as a result of the adoption of legislative acts within the judicial reform during 2014-2017, which are still in force today, the legislator has made a significant step towards recognising and consolidating the official status of judicial law-making, namely: 1) a number of legislative powers of the Supreme Court and the Constitutional Court of Ukraine were consolidated; 2) the legislative regulation of the stages of the law-making process by the Supreme Court and the Constitutional Court of Ukraine has been strengthened; 3) the legal consolidation of the status of law-making acts of the Supreme Court and the Constitutional Court of Ukraine has been improved.

scholarly journals Interpretative Discretion of Judiciary and the Well-Being of the Child

2020 ◽  
Vol 29 (3) ◽  
pp. 187
Author(s):  
Katarzyna Hanas
Keyword(s):  
Supreme Court ◽  
Well Being ◽  
Judicial Discretion ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Law ◽  
Common Criterion ◽  
Full Protection ◽  
Law Making

<p>The well-being of the child is a common criterion in many Polish normative regulations pertaining to different branches of law. It is both a tool for the law-making and the executive bodies, employed to direct the law-applying bodies towards ensuring full protection of the child. This article is focused on analysing interpretative judicial discretion with respect to the well-being of the child as manifested in the judicial decisions of the Supreme Court and in the judgements of the Supreme Administrative Court and Constitutional Tribunal. In the course of the research, the author undertakes to determine the essence of interpretative judicial discretion in cases predominantly focused on establishing the current and postulated situation of the child with a view to ensuring the most favourable ruling for the same.</p>

scholarly journals Judicial Review, Judicial Revisionism and Judicial Responsibility

2019 ◽  
Vol 17 (1-2) ◽  
pp. 169-216
Author(s):  
Brian A. Langille
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Early Years ◽  
Supreme Court Of Canada ◽  
New Era ◽  
Second Best ◽  
Labour Relations ◽  
The Supreme Court ◽  
History Of ◽  
The Law

Judicial review of the decisions of labour relations boards has been a nagging problem for the Supreme Court of Canada for decades. The decision of the Court in Le Syndicat des Employés de Production du Québec et de L’Acadie v. Canada Labour Relations Board et al. provides an opportunity for and indeed provokes review of the work of the Court in dealing with this recurring problem. This essay begins by placing in perspective the concrete issue posed in the L’Acadie decision. But the particular facts of that case are used only as a vehicle to explore the nature of the problem of judicial review of labour decisionmakers and the history of the Court's handling of it. A fundamental thesis of this essay is that the Court's work can be best understood as comprising two distinct periods, the early years (pre-1979) and the new era (1979-1984?). This essay articulates the view that during the early years the Court developed a law of judicial review which was wholly inadequate both in functional and doctrinal terms. In the new era the Court simplified and reformed the law of judicial review of labour boards and labour arbitrators. It is only from the perspective of the Court's previous handling of the issue that the decision in L’Acadie can be truly understood. When so viewed the decision is perfectly inadequate. The case creates a new distinction based upon the old confusion of “jurisdiction”. This essay then develops the view that no theory of judicial review which revolves around the notion of “jurisdiction” can ever satisfactorily deal with the issues presented. In this respect the Court's own cases from the “new era” represent a much more sensible, if still a second best approach. Finally, suggestions for a legislative solution to the problem posed by L’Acadie are briefly explored.

scholarly journals When is patent infringement not patent infringement? Merck v Integra and the 'safe harbour'

1969 ◽  
Vol 13 (1) ◽  
Author(s):  
Karen I Boyd
Keyword(s):  
Supreme Court ◽  
Generic Drug ◽  
Patent Infringement ◽  
Commercial Importance ◽  
Safe Harbour ◽  
Current State ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
Research Tools

The Supreme Court recently ruled on the scope of the patent infringement 'safe harbour' of 35 U.S.C. §271(e)(1), which was passed by Congress in 1984 to allow generic drug manufacturers to test their drugs before the expiration of the patents that covered the drugs. The scope of the safe harbour has been interpreted by the courts to be much broader than that, and the Supreme Court confirmed the breadth of the exemption. The Supreme Court did not, however, address the application of the safe harbour to research tools, an issue of vast commercial importance. This paper traces the history of the safe harbour and the Merck v Integra decision, and explains the current state of the law and where the law may be going.

A Committed Judiciary

2018 ◽  
pp. 18-30
Author(s):  
T.R. Andhyarujina
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Judicial Independence ◽  
Tipping Point ◽  
Judicial Appointments ◽  
The Supreme Court ◽  
History Of

The tipping point in the history of judicial appointments in India was the judgment of the Supreme Court in Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). In this essay that spans the tumultuous period between this judgment and the end of the Emergency (in 1977) when Indira Gandhi was prime minister, the author demonstrates how judicial appointments became a proxy for a larger battle for control of the Constitution. Arguing that the independence of the judiciary was imperilled beyond redemption, the author carefully traces the pattern of executive interference up to and after the proclamation of Emergency. This essay argues that the severe blow dealt to judicial independence in this period, in a way, determined the course of how the process for judicial appointments was shaped in future decades.

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