Interpreting the law: the role of the Supreme Court

1991 ◽  
Vol 28 (06) ◽  
pp. 28-3605-28-3605
Keyword(s):  
Supreme Court ◽  
The Supreme Court ◽  
The Law

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 Tracking the Pendulum Swing on Legislative Entrenchment in New Zealand

2019 ◽  
Vol 41 (2) ◽  
pp. 207-225
Author(s):  
Timothy Shiels ◽  
Andrew Geddis
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Pendulum Swing ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Law ◽  
Near Term ◽  
Over Time ◽  
The Way

Abstract When New Zealand’s Parliament legislates to the effect that law on some particular matter may only be enacted using a mandated procedure, can the New Zealand judiciary enforce this provision against a future Parliament that fails to comply with it? Following the Supreme Court’s recent refusal to conclusively decide this question, we examine why it still remains controversial in New Zealand. We first set the issue in a wider constitutional framework, explaining how such judicial enforcement requires considering the nature of parliamentary sovereignty and the role of the courts in defining this. The way in which the matter has been addressed over time in New Zealand and elsewhere—the pendulum swing of constitutional understandings, to use the Supreme Court’s term—is then outlined. We draw on this analysis to examine why the Supreme Court felt unable to resolve the particular question of enforceability, while also raising an as-yet unexamined question as to how such enforcement implicates the statutorily guaranteed parliamentary privilege of non-interference in the internal affairs of the House. We conclude that because it is unlikely this issue will come before the courts again in the near term, continued uncertainty over the law in this area is set to continue.

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 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 La Legge 194 di fronte alle decisioni della Corte Costituzionale

2008 ◽  
Vol 57 (6) ◽  
Author(s):  
Carlo Casini ◽  
Marina Casini
Keyword(s):  
Supreme Court ◽  
The Self ◽  
Self Determination ◽  
Right To Life ◽  
Crucial Point ◽  
New Born ◽  
The Supreme Court ◽  
The Law ◽  
The Right

Il contributo prende in esame le numerose decisioni della Corte Costituzionale riguardanti la legge 194 del 1978 che ha introdotto la disciplina dell’aborto in Italia. La principale impugnazione riguarda il principio di autodeterminazione della donna, ma vengono in questione anche la mancata previsione dell’obiezione di coscienza del giudice tutelare; il ruolo subordinato ed eventuale del padre del concepito nelle procedure che portano all’autorizzazione dell’aborto; la pretesa lesione dei diritti dei genitori rispetto alla minorenne che intende abortire; il diverso trattamento delle minorenni rispetto alle maggiorenni; la mancanza di difesa del concepito dinanzi al giudice tutelare. Gli Autori esaminano anche le decisioni che riguardano l’ammissibilità dei referenda proposti contro la Legge 194, perché consentono di cogliere elementi dai quali traspare il pensiero della Corte in ordine alla L. 194/1978 sia sotto il profilo dell’interpretazione, sia sotto quello della costituzionalità. Nonostante ripetute richieste di intervento, la Corte ha sempre evitato di pronunciarsi sul punto più critico della legge, ovvero la disciplina dell’aborto infratrimestrale dominata dal “principio di autodeterminazione”. Nello stesso tempo la Consulta non ha mai negato l’umanità del concepito e in un caso ne ha affermato chiaramente il diritto alla vita. ---------- The contribution deals with the large number of Constitutional Court’s decisions concerning the law 194/1978 that has introduced the regulation of abortion in Italy. The main impugnation deals with the principle of woman’s self-determination, but also non-prevision of the tutelary judge’s objection of conscience is argued; the subordinate and possible role of the father of new born in the procedures that lead to the authorization of the abortion; the supposed damage of the parents’ rights compared with minor who intends to abort; the different treatment of minors in comparison with adults; the lack of defence of new born compared with the tutelary judge. The Authors also examine the decisions that concern the admissibility of referenda proposed against the Law 194, because they allow to understand elements from which the Court’s thought for what concern the Law 194/1978 under the interpretative and constitutionality profile is showed. Although the several intervention calls, the Supreme Court has always avoided to pronounce a decision on the crucial point of the law, i.e. the regulation on the midtrimestrial dominated by the “self-determination principle”. At the same time the Council has never denied the humanity of the new born and in one case it has clearly affirmed the right to life.

scholarly journals WŁADZA TRZECIA „NEUTRALNA”

2016 ◽  
Vol 11 (4) ◽  
pp. 29
Author(s):  
Andrzej Sylwestrzak
Keyword(s):  
Supreme Court ◽  
Political Power ◽  
The Political ◽  
Financial Control ◽  
Proper Functioning ◽  
The Supreme Court ◽  
Constitutional Tribunal ◽  
The Law

THIRD POWER: NEUTRAL ONESummary The issues discussed in the article cover six areas: a/ law-based state and the division of power, b/ division of power in the doctrine, c/ division of power in Polish constitutionalism, d/ normative classification of constitutional authority, e/ the political power, opposition power and neutral power, f/ concluding remarks. The aim of the article is to present the arguments for “neutral power” as the creative factor indispensable in the proper functioning of the law-based state. Within Montesquieu tripartite classification, “neutral power” entailes the nessesity to restracture juridical power so thet it will include financial control, constitutional bank control as well as ombudsmen. Accepting the division into ruling power and opposition power, “neutral power” (including the judiciary and the ombudsmen) indicates the kind of power Montesquieu advocated, trough in its more prominent role of the mediator between the powers. “Neutral power”, described in these terms, ought to be independent of the remaining powers through the system of internal elections to all the posts, performer by the Supreme Court representatives. Judges of the Constitutional Tribunal, the Ombudsman or the Cheef of Governmenmt Inspectorate ought to be elected by the Supreme Court Judges.

scholarly journals Gagasan Pembentukan Peradilan Khusus Pilkada Dalam Mewujudkan Electoral Justice

2021 ◽  
Vol 24 (01) ◽  
pp. 14-24
Author(s):  
Surya Mukti Pratama ◽  
Ela Nurlela ◽  
Hendry Gian Dynantheo Sitepu
Keyword(s):  
Supreme Court ◽  
General Election ◽  
Constitutional Court ◽  
The Supreme Court ◽  
The Status ◽  
Election System ◽  
The Law ◽  
Election Results ◽  
Regional Elections

General Election and Regional Election are two different things on a constitutional basis. Then it was strengthened and confirmed by the decision of the Constitutional Court No. 97 / PUU / XI / 2013. This condition encourages the author to discuss the urgency of establishing a special election court with a simultaneous regional election system and a special court format that is effective in realizing electoral justice. This article aims to discuss the problems faced in resolving regional election results disputes in order to realize electoral justice in regional elections. The juridical formation of a special regional elections judicial body is an urgent need because it is a mandate of the law that must be implemented. The regional elections court format in realizing electoral justice includes three important principles that must be possessed by the regional elections court, the status and position of the regional elections court, the regional elections court judges, the role of the Supreme Court as judex juris and is attributed the authority to review the decision of the regional elections special court and relate to absolute competence. from the regional elections court.

scholarly journals The Role of the Supreme Court in a Democracy

1999 ◽  
Vol 33 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Checks And Balances ◽  
Equal Status ◽  
The Third ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Law ◽  
The Relationship

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.

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