scholarly journals An Overview on the Public Interest Litigation in Malaysia: Development and Dilemma Under Provision of Remedies for Enforcement of Fundamental Rights

2016 ◽  
Author(s):  
Gan Chee Keong ◽  
Ahmad Azam Mohd Shariff ◽  
Ramalinggam Rajamanickam ◽  
Nazura Abdul Manap
Keyword(s):  
Public Interest ◽  
Fundamental Rights ◽  
Public Interest Litigation ◽  
The Public

scholarly journals Administrative Functions of Implementation and Adjudication Guided by Primacy of Fundamental Rights

2017 ◽  
Vol 6 (2) ◽  
pp. 263-277 ◽  
Author(s):  
Ricardo Perlingeiro
Keyword(s):  
Latin American ◽  
Public Interest ◽  
Fundamental Rights ◽  
Judicial System ◽  
The Public ◽  
American System ◽  
Administrative Functions ◽  
Financial Interests ◽  
Judicial Procedures ◽  
Administrative Adjudication

Abstract This article points out the bottlenecks in the systems of administrative adjudication in Latin America and suggests that the ineffectiveness should not be blamed entirely on the judicial system and judicial procedures. Rather, the Latin-American system of administrative justice should come to terms with its judicial system of general jurisdiction, gradually reducing the jurisdiction of courts over administrative disputes in favor of an administrative reform to ensure administrative functions of implementation and adjudication respecting the primacy of fundamental rights. The author concludes that it is necessary to think about a reform that leads public administrative authorities to act as an instrument for expressing the public interest rather than as end in itself or as an entity to protect self-serving, momentary political and financial interests that are not clearly bound by a duty to protect fundamental rights.

Policy-based Implied Bare Licences

2021 ◽  
pp. 196-230
Author(s):  
Poorna Mysoor
Keyword(s):  
Public Interest ◽  
Common Law ◽  
Fundamental Rights ◽  
Step Test ◽  
The Public ◽  
Policy Goals ◽  
The Uk ◽  
Copyright Enforcement ◽  
Prior Relationship

This chapter addresses policy-based implied bare licences. Unlike in the previous chapter, there is no contract in existence and no voluntariness on the part of the copyright owner, and indeed in some cases, no prior relationship between the parties. Historically, English common law has recognised an open-ended power of the courts to restrict or prevent copyright enforcement in the public interest, which has been acknowledged under section 171(3) of the UK Copyright, Designs, and Patents Act 1988. The chapter considers how a successful invocation of this provision implies a bare licence to achieve policy goals. Although there is no statutory equivalent of this provision in other common law jurisdictions considered here, the chapter explores if the power has nevertheless been exercised by the courts based on their inherent powers. Since policy-based implied bare licences produce the same effect on copyright owners as the statutory limitations or exceptions, the framework for implying this type of licence draws inspiration from the three-step test and the fundamental rights regime.

The Fight against Terrorism, Fundamental Rights and the EU Courts: The Unsolved Conundrum

2012 ◽  
Vol 14 ◽  
pp. 269-295
Author(s):  
Eva Nanopoulos
Keyword(s):  
Public Interest ◽  
Relevant Information ◽  
Fundamental Rights ◽  
Public Security ◽  
The Public ◽  
Rights Protection ◽  
Court Of Justice ◽  
Conflicting Demands ◽  
The Eu

AbstractUsing the example of anti-terrorism measures, this chapter looks at the difficulties experienced by the Court of Justice of the EU (CJEU) in reconciling the conflicting demands of fundamental rights protection and public security. It shows that under the current arrangements, the CJEU cannot have regard to information which has not gone through a proper adversarial hearing, even in cases where disclosure of the relevant information will jeopardise the public interest. The chapter thus envisages the possibility for reform. It examines, in particular, the special advocate procedure and the sort of difficulties that its transposition in the EU context would give rise to.

scholarly journals RIGHTS, DEMOCRACY AND DEVELOPMENT: THE JUDICIAL SYSTEM’S ROLE IN DEVELOPING COUNTRIES

2018 ◽  
Vol 3 (3-4) ◽  
pp. 394-420
Author(s):  
Vivian Maria Pereira Ferreira ◽  
Natalia Langenegger
Keyword(s):  
Developing Countries ◽  
Public Interest ◽  
Current Knowledge ◽  
Public Policies ◽  
Judicial System ◽  
New Paradigm ◽  
Public Interest Litigation ◽  
The Public ◽  
Cultural Rights ◽  
The World

This article seeks to discuss whether and how the judicial system has been assuming a new institutional role in the design of public policies aimed at promoting of Economical Social and Cultural Rights (ESCR) in developing countries. Considering that these rights are crucial for human and social development, the article discusses the ways in which the judicial system might interfere with the process of development.Alongside a theoretical debate, the article presents a functionalist comparative study of the public interest litigation in Brazil, India and South Africa. It focuses on how judges seek to promote ESCR as well as on the benefits and problems of their intervention in public policies created by democratic governments and legislatures.The diagnosis that judicial systems around the world play different roles from the ones recommended by the economic neoliberal mainstream shows that several different institutional arrangements are possible and that some of them might be more adequate to the reality of the developing world. Therefore, the article hopes to provide insights to rethink global governance and the current knowledge on law and political economy from a new paradigm. 

scholarly journals Charter Injunctions, Public Interest Presumption, and the Tyranny of the Majority

2020 ◽  
Vol 29 (1) ◽  
pp. 21-28
Author(s):  
Colin Feasby
Keyword(s):  
Public Service ◽  
Public Interest ◽  
Attorney General ◽  
Minority Rights ◽  
Fundamental Rights ◽  
Short Article ◽  
The Public ◽  
The Face ◽  
The Government ◽  
Court Of Appeal

Quebec’s Bill 21, which seeks to restrict employees in its public service from displaying religious symbols at work, has attracted a number of constitutional challenges. In one of those challenges, Hak v Quebec (Attorney General), the plaintiffs sought an injunction suspending the operation of parts of Bill 21 pending a decision on the merits.1 Both the Quebec Superior Court and the Quebec Court of Appeal declined to issue an injunction. The majority of the Quebec Court of Appeal found that in enacting Bill 21 the legislature must be presumed to have acted in the public interest and, as such, the third part of the injunction test — balance of convenience — could not be satisfied. The idea that Parliament and provincial legislatures must be presumed to be acting in the public interest — what I will call the public interest presumption — is problematic in Charter cases concerning constraints of fundamental rights and the treatment of minorities. Parliament and provincial legislatures are majoritarian institutions; they are the product of elections where the candidates and parties with the most votes win. A core objective of the Charter is to protect minorities from being oppressed by the majority. Giving too much weight to a majoritarian conception of the public interest in interlocutory injunction applications concerning minority rights undermines the Charter and negates injunctions and stays as elective remedies, particularly where an applicant establishes real harm. To fulfill the Charter’s mandate to protect minority rights it must be recognized that the government does not have a monopoly on representing the public interest and that a majoritarian conception of the public interest cannot control the outcome of the balance of convenience test in the face of evidence that other aspects of the public interest are harmed by the impugned legislation. This short article argues for a much weaker public interest presumption: one that may be rebutted by an applicant adducing evidence of harm to an identifiable group. 1  Hak c Procureure Générale du Québec, 2019 QCCA 2145 [Hak].

scholarly journals Environmental Public Interest Litigation in China: A Critical Examination

2021 ◽  
pp. 1-25
Author(s):  
Lei Xie ◽  
Lu Xu
Keyword(s):  
Public Interest ◽  
Environmental Governance ◽  
Noise Pollution ◽  
Environmental Issues ◽  
Critical Examination ◽  
Litigation Risk ◽  
Public Interest Litigation ◽  
The Public ◽  
Governmental Organizations ◽  
Non Governmental Organizations

Abstract Environmental public interest litigation (EPIL) by non-governmental organizations (NGOs) emerged in China over the last decade amidst the growing focus on environmental issues and the increasing political need to bring greater public participation to the area. This article examines the current practice of EPIL by NGOs in order to understand the potential flaws and deficiencies of NGO participation in this relatively new field of environmental litigation. The article sets out by exploring EPIL as a legal pathway for the public to become involved in China's environmental governance. It then analyzes the legal provision of environmental litigation in China before critically examining several instances of EPIL initiated by NGOs between 2015 and 2019. The article finds that NGOs show weaknesses in their current EPIL practice, including in case selection and litigation risk assessment, but are willing to test and potentially expand the scope of EPIL into new areas of environmental protection such as noise pollution and renewable energy. It concludes that these weaknesses and strengths of NGO involvement in EPIL reflect the constantly evolving landscape of environmental governance and environmental litigation in China.

scholarly journals HUMAN RIGHTS, INEQUALITY AND PUBLIC INTEREST LITIGATION: A CASE STUDY ON SANITATION FROM BRAZIL

2018 ◽  
Vol 4 (5-6) ◽  
pp. 149-171
Author(s):  
Ana Paula Barcellos ◽  
Marcia Castro ◽  
Ricardo Moura
Keyword(s):  
Human Rights ◽  
Public Interest ◽  
Public Law ◽  
Regional Inequality ◽  
Public Interest Litigation ◽  
The Public ◽  
Sanitation Services ◽  
Disaggregated Data ◽  
Public Law Litigation

Disaggregated data on the relative success of the UN millennium goals made clear that the progress achieved in many countries, Brazil included, was not equitable, positioning the question “How to address inequalities?” as the next pressing challenge in human rights. Public law litigation could be regarded as a tool to reduce inequality, particularly in Brazil, given a unique institution of its legal system, the Public Prosecutors Office. This paper uses public interest litigation discussing access to sanitation services to test this hypothesis. In 2013, only 58.2% of the households had access to sanitation, with significant regional inequality in coverage. Boolean analysis was applied to assess court orders (2003-2013) and results showed a disconnect between litigation and demand for sanitation, indicating that areas that were better off in various social and economic indicators were the ones receiving attention. The paper suggests reflections on how public interest litigation could target those most in need.

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