scholarly journals Regressive Religious Practices; A Threat to the Fundamental Rights of Women

2022 ◽  
pp. 44-55
Author(s):  
SANTOSHI SHRITHA PYDA
Keyword(s):  
Primary Objective ◽  
Fundamental Rights ◽  
Main Task ◽  
Religious Denomination ◽  
Public Interests ◽  
Individual Citizen ◽  
The Right ◽  
Constitutional Morality ◽  
The Temple ◽  
Insight Into

The paper aims to provide an insight into the famous and revolutionary Sabarimala Judgement - Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors.2 The paper throws light on the background of the case and closely analyses the judgement so pronounced and its consequences. Since the practices of the temple were seen as exclusionary in nature, the implications of a judgement so grave have serious consequences on the immediate category of people directly affected and the society at large. The primary issues addressed in the case; whether or not the said practice is discriminatory and so a violation of Article 17, and whether or not the practice violates the right to equality by lacking an intelligible differential and a reasonable nexus (pertaining to Article 14) have been further deconstructed to paint a better understanding of the interpretation of the Constitution of India.Furthermore, an attempt has been made to establish the judiciary’s primary objective, whether it is to strike a balance between the conflict of liberty, equality, public interest and affected groups of people has been fulfilled in this judgement or not. The main task of the judgement was to figure out whether the exclusionary practice is essential for the religion so as to deem it to be violative of the fundamental right to religion, as granted to the citizens of the country by the Constitution. One of the striking features of this judgement is the dissenting opinion of Justice Indu Malhotra, who, reasoning through constitutional morality: the harmonisation of fundamental rights of every individual citizen, religious denomination to practise their faith in accordance with the tenets of their religion irrespective of it being rational or logical has concluded that the practice is neither exclusionary, nor discriminatory in nature. The paper delves into this dissenting opinion, and proposes a possible approach to balancing public interests and rights of the affected categories.

“De-gendering” the civil status? A public law problem

2020 ◽  
Vol 18 (2) ◽  
pp. 471-475
Author(s):  
Stefano Osella
Keyword(s):  
Public Law ◽  
Fundamental Rights ◽  
Self Determination ◽  
Gender Recognition ◽  
Public Interests ◽  
Men And Women ◽  
Easy Task ◽  
Civil Status ◽  
Gender Categories ◽  
The Right

Abstract This article raises the problem of the inclusion of gender in the civil status of the person and argues that public lawyers are now called on to understand whether a genderless civil status is constitutionally permissible and desirable. Admittedly, this is not an easy task. Gender categories are deeply rooted in our legal systems. Arguably, they may prove necessary for the achievement of constitutionally grounded public interests and protect fundamental rights, such as equality between men and women. The task that public lawyers are faced with is further complicated by the affirmation of the right to gender recognition based on self-determination, and the inclusion of nonbinary genders in the law. These developments are indeed profoundly transforming the way in which gender is registered and controlled. Importantly, they put in doubt the effectiveness of gender as a criterion of legal categorization.

scholarly journals The natural human right to security and security as a constitutional human right

2020 ◽  
pp. 219-233
Author(s):  
Jadwiga Potrzeszcz
Keyword(s):  
Constitutional Law ◽  
Primary Objective ◽  
The State ◽  
Fundamental Rights ◽  
Human Right ◽  
Positive Law ◽  
The Right

In this article it was formulated the thesis on the existence of a natural hu­man right to security, and subsequently the analyse of the issue of the relation­ship between the natural human right to security and security as a constitutional human right. The primary objective of the research was to answer the question whether the natural human right to security influences the existence of security as a human right, guaranteed by positive law, in particular in constitutional law. The above analysis of the provisions of the Polish Constitution proved that the right to security as a constitutional human right was not expressly stated in any of these provisions. Certainly, the formulation of an explicit constitutional human right to security raises concerns about the scope of the citizen’s ability to enforce this right from the state, e.g. by means of a constitutional complaint. Regardless of the difficulties raised, it is worth interpreting the constitution­al human right to security from all the regulations of the Polish Constitution as a function of fundamental rights. In justified individual cases of violations, the constitutional human right to security may be derived from art. 30 of the Pol­ish Constitution, which stipulates that the inherent and inalienable dignity of man is the source of his rights and freedoms.

scholarly journals A releitura da privacidade: do “direito de ser deixado só” ao direito à autodeterminação informativa / A New Understanding of Privacy: From the Right to Be Alone to the Informative Self-Determination

2016 ◽  
Vol 5 (2) ◽  
pp. 185-196
Author(s):  
Kalline Carvalho Gonçalves Eler
Keyword(s):  
Human Dignity ◽  
Current System ◽  
Legal Protection ◽  
Primary Objective ◽  
Fundamental Rights ◽  
Public And Private ◽  
The Right To Privacy ◽  
Surveillance Society ◽  
The Moment ◽  
The Right

ABSTRACTIn the universe of technologically advanced societies, the respect for privacy as a fundamental right presents an increasingly urgent requirement, whereas the right to privacy, in the current system of fundamental rights, it is essential to human  dignity.  It  is  urgent,  in  this  context,  to  inquire  about  the  construction  of  a  new  constitutionalism  of  the  electronic space  in  which  privacy  protection  will  constitute  an  essential  right  in  the  consolidation  of  social  identity,  and  therefore, social  dignity.  The  technology,  despite  allowing  the  construction  of  a  private  sphere  more  diversified,  paradoxically,  becomes more vulnerable in the moment as its’ exposure becomes constant. It justifies the growing need for a further strengthening  of  the  legal  protection  of  privacy  so  that  the  Principle  of  Human  Dignity  is  effectively  implemented.  The  primary objective  of  this  research  is  to  seek  a  new  valuation  of  human,  social  and  juristic  scientific  and  technological  innovations used by public and private institutions, having as imperative the equal social dignity. To attain this end, it will be adopted the Civil Constitutional Law’s methodology, taking as theoretical framework privacy in surveillance society, an object theme of deep studies by the Italian jurist Stefano Rodotà.RESUMONo universo das sociedades tecnologicamente avançadas, o respeito à privacidade como direito fundamental apresenta-se como uma exigência cada vez mais urgente, visto que o direito à privacidade, no sistema atual de direitos fundamentais, revela-se essencial à própria dignidade humana. Urge, nesse contexto, a necessidade de se perquirir acerca da construção de um novo constitucionalismo do espaço eletrônico, no qual a proteção da privacidade venha a se constituir em um direito essencial na consolidação da identidade social, e, portanto, da dignidade social. A tecnologia, apesar de possibilitar a construção de uma esfera privada diversificada, paradoxalmente, a torna mais vulnerável a partir do momento em que sua exposição torna-se constante. Justifica-se, assim, a necessidade de um maior fortalecimento da proteção jurídica da privacidade a fim de que o Princípio da Dignidade da Pessoa Humana seja efetivamente concretizado. O objetivo precípuo deste trabalho está em buscar uma nova valoração humana, social e jurídica das inovações científicas e tecnológicas utilizadas pelas instituições públicas e privadas, tendo-se por imperativo a igual dignidade social. Para persecução deste fim, foi adotada a metodologia do Direito Civil Constitucional, tomando-se por marco teórico a privacidade na sociedade de vigilância, tema objeto de profundos estudos do jurista italiano Stefano Rodotà.

Application of Statutes of Limitations to Islamic Banking: The Case of Malaysia

2020 ◽  
Vol 17 (1) ◽  
pp. 56-69
Author(s):  
Aishath Muneeza ◽  
Zakariya Mustapha
Keyword(s):  
Qualitative Research ◽  
Financial Institutions ◽  
Research Methodology ◽  
Islamic Law ◽  
Islamic Banking ◽  
Legal Action ◽  
Qualitative Research Methodology ◽  
The Right ◽  
Limitation Of Action ◽  
Insight Into

Limitations of action designate extent of time after an event, as set by statutes of limitations, within which legal action can be initiated by a party to a transaction. No event is actionable outside the designated time as same is rendered statute-barred. This study aims to provide an insight into application and significance of Limitations Act 1950 and Limitation Ordinance 1952 to Islamic banking matters in Malaysia as well as Shariah viewpoint on the issue of limitation of action. In conducting the study, a qualitative research methodology is employed where reported Islamic banking cases from 1983 to 2018 in Malaysia were reviewed and analysed to ascertain the application of those statutes of limitations to Islamic banking. Likewise, relevant provisions of the statutes as invoked in the cases were examined to determine possible legislative conflicts between the provisions and the rule of Islamic law in governing the right and limitation of action in Islamic banking cases under the law. The reviewed cases show the extent to which statutes of limitations were invoked in Malaysian courts in determining validity of Islamic banking matters. The limitation provisions so referred to are largely sections 6(1)(a) and 21(1) Limitations Act 1953 and section 19 Limitation Ordinance 1953, which do not conflict with Shariah viewpoint on the matter. This study will prove invaluable to financial institutions and their customers alike in promoting knowledge and creating awareness over actionable event in the course of their transactions.

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.

DIRECTIONS FOR PROVISION OF PUBLIC BODIES’ TRANSPARENCY AND ACCOUNTABILITY IN CONDITIONS OF PARTICIPATORY DEMOCRACY DEVELOPMENT

2018 ◽  
Vol 1 (11) ◽  
pp. 144-154
Author(s):  
Olga Mykhailоvna Ivanitskaya
Keyword(s):  
Public Administration ◽  
Participatory Democracy ◽  
Main Task ◽  
The Public ◽  
State Governance ◽  
Legislative Initiative ◽  
The Government ◽  
Definition Of ◽  
The Right ◽  
Transparency And Accountability

The article is devoted to issues of ensuring transparency and ac- countability of authorities in the conditions of participatory democracy (democ- racy of participation). It is argued that the public should be guaranteed not only the right for access to information but also the prerequisites for expanding its par- ticipation in state governance. These prerequisites include: the adoption of clearly measurable macroeconomic and social goals and the provision of control of the processes of their compliance with the government by citizens of the country; ex- tension of the circle of subjects of legislative initiative due to realization of such rights by citizens and their groups; legislative definition of the forms of citizens’ participation in making publicly significant decisions, design of relevant orders and procedures, in particular participation in local referendum; outlining methods and procedures for taking into account social thought when making socially im- portant decisions. The need to disclose information about resources that are used by authorities to realize the goals is proved as well as key performance indicators that can be monitored by every citizen; the efforts made by governments of coun- tries to achieve these goals. It was noted that transparency in the conditions of representative democracy in its worst forms in a society where ignorance of the thought of society and its individual members is ignored does not in fact fulfill its main task — to establish an effective dialogue between the authorities and so- ciety. There is a distortion of the essence of transparency: instead of being heard, society is being asked to be informed — and passively accept the facts presented as due. In fact, transparency and accountability in this case are not instruments for the achievement of democracy in public administration, but by the form of a tacit agreement between the subjects of power and people, where the latter passes the participation of an “informed observer”.

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.

Is There a Right to Free Movement across Borders?

2018 ◽  
Author(s):  
Sarah Song
Keyword(s):  
Human Rights ◽  
Fundamental Rights ◽  
Free Movement ◽  
Individual Freedom ◽  
Freedom Of Association ◽  
Human Right ◽  
Freedom Of Movement ◽  
The Third ◽  
The Right ◽  
Logical Extension

Chapter 6 examines three rights-based arguments for freedom of movement across borders. Three rights-based arguments have been offered in support of freedom of international movement. The first claims that freedom of movement is a fundamental human right in itself. The second adopts a “cantilever” strategy, arguing that freedom of international movement is a logical extension of existing fundamental rights, including the right of domestic free movement and the right to exit one’s country. The third argument is libertarian: international free movement is necessary to respect individual freedom of association and contract. This chapter shows why these arguments fail to justify a general right to free movement across the globe. What is morally required is not a general right of international free movement but an approach that privileges those whose basic human rights are at stake.

AI and Migration Management

2020 ◽  
pp. 768-787
Author(s):  
Petra Molnar
Keyword(s):  
Human Rights ◽  
New Technologies ◽  
Forced Migration ◽  
Fundamental Rights ◽  
International Human Rights Law ◽  
Privacy Rights ◽  
International Regulation ◽  
Development Technology ◽  
And Migration ◽  
The Right

This chapter focuses on how technologies used in the management of migration—such as automated decision-making in immigration and refugee applications and artificial intelligence (AI) lie detectors—impinge on human rights with little international regulation, arguing that this lack of regulation is deliberate, as states single out the migrant population as a viable testing ground for new technologies. Making migrants more trackable and intelligible justifies the use of more technology and data collection under the guide of national security, or even under tropes of humanitarianism and development. Technology is not inherently democratic, and human rights impacts are particularly important to consider in humanitarian and forced migration contexts. An international human rights law framework is particularly useful for codifying and recognizing potential harms, because technology and its development are inherently global and transnational. Ultimately, more oversight and issue specific accountability mechanisms are needed to safeguard fundamental rights of migrants, such as freedom from discrimination, privacy rights, and procedural justice safeguards, such as the right to a fair decision maker and the rights of appeal.

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