scholarly journals Nuevos enfoques de la independencia judicial. Dos puntas de iceberg en la reforma de la Ley Orgánica del Poder Judicial: la comisión permanente del CGPJ y el gabinete técnico del Tribunal Supremo

2016 ◽  
pp. 375
Author(s):  
Rosa María Fernández Riveira
Keyword(s):  
Supreme Court ◽  
Judicial Independence ◽  
The Other ◽  
General Council ◽  
The Political ◽  
Permanent Commission ◽  
Other Hand ◽  
The Supreme Court ◽  
Made In

Este trabajo estudia dos reformas concretas de la Ley orgánica del Poder Judicial que se producen en octubre de 2015: la Comisión Permanente, como órgano del Consejo que ve incrementado su número de vocales, sus competencias y que situado bajo la dirección del Presidente del Consejo ha ido creciendo en relevancia; y el Gabinete Técnico del Tribunal Supremo, que se regula también como órgano al servicio del Tribunal pero bajo la obediencia y dirección del Presidente. Un órgano que asume unas competencias muy importantes en un momento en el que se reforma la vieja casación pasando a ser un recurso determinado por el «interés casacional objetivo». Estos dos cambios, como puntas de iceberg, son el aviso de nuevos enfoques sobre planteamientos clásicos acerca de la independencia judicial tales como: las relaciones existentes entre el Consejo General del Poder judicial y el Tribunal Supremo, la presencia del elemento político en el corazón de la independencia judicial, la enorme relevancia de un proceso de selección de nuestros jueces justo, plural y confiable y la necesidad de articular mecanismos de responsabilidad judicial institucional e individual.This paper analyses two reforms about Organic Law of Judiciary which have been made in October 2015: the Permanent Commission as part of Council body that it has seen increasing its competences and it works under careful supervision of the President of the General Council of the Judiciary. It has suffered an augmentation of members on its composition and it has got more relevance as important voice in the General Council and, on the other hand, the Technical office of the Supreme Court, which has been redesigned with new competences working under Instructions of President. And all these changes are been implemented at the same time that it has been adopted the new cassation appeal. Both reforms as iceberg’s tips are performing important reflections about classical principles for example: different manners to understand the judicial independence, the political element within judicial independence, the relevance of appointment judicial processes and of course the accountability discourse as essential part within the judicial independence.

scholarly journals La Cour suprême et le rapatriement de la constitution : la victoire du compromis sur la rigueur

2005 ◽  
Vol 22 (3-4) ◽  
pp. 619-648
Author(s):  
Nicole Duplé
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Supreme Court Of Canada ◽  
House Of Commons ◽  
Other Hand ◽  
The Supreme Court ◽  
Distribution Of Powers

On September the 28th 1981, the Supreme Court of Canada made public its opinion as to the constitutionaly of the Federal government's plan to repatriate and amend the B.N.A. Act. Modifications affecting provincial powers require, according to convention, the existance of which is recognized by six of the Judges, a certain degree of provincial consensus. The federal projet, contested by eight of the ten provinces, was therefore considered unconstitutional by a majority of the Judges. The Court mentioned furthermore that the federal plan, should it become law, would impinge upon the distribution of powers set forth in the B.N.A. Act. Seven of the nine Judges so deciding declared, on the other hand, that the Senat and House of Commons' resolution pertaining to the plan of repatriation and amendement was perfectly legal and that the British Parliament was, in law, the only authorized body to bring about the changes sought by said plan.

scholarly journals Defining Judicial Independence and Accountability Post Political Transition

2019 ◽  
Vol 5 (2) ◽  
pp. 294
Author(s):  
Ibnu Sina Chandranegara
Keyword(s):  
Supreme Court ◽  
Political System ◽  
Judicial Independence ◽  
Political Transition ◽  
The Political ◽  
New Order ◽  
Constitutional Court ◽  
Judicial Corruption ◽  
The Supreme Court ◽  
Political Configuration

Indonesian constitutional reform after the fall of Soeharto’s New Order brings favorable direction for the judiciary. Constitutional guarantee of judicial independence as regulated in Art 24 (1) of the 1945 Constitution, has closed dark memories in the past. This article decides that the Judiciary is held by the Supreme Court and the judicial bodies below and a Constitutional Court. Such a strict direction of regulation plus the transformation of the political system in a democratic direction should bring about the implementation of the independent and autonomous judiciary. But in reality, even though in a democratic political system and constitutional arrangement affirms the guarantee of independence, but it doesn’t represent the actual situation. There are some problems that remain, such as (i) the absence of a permanent format regarding the institutional relationship between the Supreme Court, the Constitutional Court, and the Judicial Commission, and (ii) still many efforts to weaken judiciary through different ways such criminalization of judge. Referring to the problem above, then there are gaps between what "is" and what "ought", among others. First, by changing political configuration that tends to be more democratic, the judiciary should be more autonomous. In this context, various problems arise such as (i) disharmony in regulating the pattern of relations between judicial power actors, (ii) various attempts to criminalize judges over their decisions, and (iii) judicial corruption. Second, by the constitutional guarantee of the independence of the judiciary, there will be no legislation that that may reduce constitutional guarantee. However, there are many legislation or regulations that still not in line with a constitutional guarantee concerning judicial independence. This paper reviews and describes in-depth about how to implement constitutional guarantees of judicial independence after the political transition and conceptualize its order to strengthen rule of law in Indonesia

scholarly journals Establishment by virtue of the law of land easement with the content corresponding to transmission easement in the light of the resolution of the Supreme Court of June 5, 2018, in case III CZP 50/17

2019 ◽  
Vol 29 ◽  
pp. 227-236
Author(s):  
Anna Maria Barańska
Keyword(s):  
Property Rights ◽  
Supreme Court ◽  
The Other ◽  
Other Hand ◽  
The Supreme Court ◽  
The Subject ◽  
The Creation ◽  
The Law ◽  
Owned Company

The subject of this article is the resolution of the enlarged composition of the Supreme Court of June 5, 2018, which resolves the issue of acquiring by land easement with the content corresponding to transmission easement together with the acquisition by a state-owned company of transmission facilities developed on State Treasury properties. As a result of granting property rights to state-owned companies of state property in the early 1990s, the ownership of the transmission infrastructure and the property on which they were situated were separated.In the judicature, divergent concepts emerged regarding the solution of the issue of  further use of this land by transmission companies. According to the first one, the transfer of property rights was accompanied by the creation by law of a land easement with the content corresponding to a transmission easement. On the other hand, according to the second concept, obtaining a legal title for further use of the property was possible only through contractual acquisition or prescription of transmission easement. Powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu w świetle uchwały Sądu Najwyższego z dnia 5 czerwca 2018 roku, sygn. akt III CZP 50/17 Tematem artykułu jest uchwała powiększonego składu Sądu Najwyższego z dnia 5 czerwca 2018 roku, która rozstrzyga kwestię nabycia z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu wraz z nabyciem przez przedsiębiorstwo państwowe własności urządzeń przesyłowych posadowionych na nieruchomościach Skarbu Państwa. W wyniku uwłaszczenia mienia państwowego na początku lat dziewięćdziesiątych ubiegłego wieku doszło do rozdzielenia własności infrastruktury przesyłowej oraz nieruchomości, na której były one posadowione. W judykaturze pojawiły się rozbieżne koncepcje odnośnie do rozwiązania kwestii dalszego korzystania przez przedsiębiorstwa przesyłowe z tych gruntów. Zgodnie z pierwszą z nich przeniesieniu prawa własności towarzyszyło powstanie z mocy prawa służebności gruntowej o treści odpowiadającej służebności przesyłu. Na podstawie drugiej — uzyskanie tytułu prawnego do dalszego korzystania z nieruchomości było możliwe wyłącznie w drodze umownego nabycia albo zasiedzenia służebności przesyłu.

Argentina judicial reform points up Fernandez weakness

2021 ◽  
Keyword(s):  
Supreme Court ◽  
Political Power ◽  
Judicial Independence ◽  
Vice President ◽  
The Political ◽  
Judicial Reform ◽  
Content Type ◽  
Her Family ◽  
The Supreme Court

Significance With an agenda increasingly influenced by Vice-President Cristina Fernandez de Kirchner (CFK), the objectives of judicial reform now appear limited to closing pending investigations against her and her family. Impacts CFK’s increasing influence in judicial policy will reinforce the view that Fernandez lacks the political power to advance his own agenda. The confrontational approach is increasing the influence of hardliners, which is ideologically damaging to other government priorities. Moves to reduce judicial independence will further undermine institutional dialogue between the Supreme Court and the executive.

GLOSS to the judgment of the Supreme Court of 7 October 2016, II KK 157/16, Lex/el

2016 ◽  
Vol 294 ◽  
pp. 57-58
Author(s):  
Kazimierz J. Pawelec ◽  
Keyword(s):  
Supreme Court ◽  
General Principle ◽  
The Other ◽  
The Road ◽  
Other Hand ◽  
The Supreme Court ◽  
Timely Response ◽  
On The Road ◽  
The Relationship

The glossed decision of the Supreme Court is particularly important for the practice, inasmuch as it addresses two extremely important issues. On one hand, the decision expresses a general principle that the mere fact of a driver approaching a pedestrian crosswalk does not impose on him the obligation to perform excessive defensive maneuvers. On the other hand, it recognizes the need for a timely response, depending on the road conditions and situations. Thus, the decision addresses an important issue of the relationship between a driver and a pedestrian occurring at a crosswalk. Importantly, the provisions in force impose different obligations on drivers and pedestrians, the only common liability being a requirement for a particular caution. However, the above comments do not solve the conflict, because the existing legislation often imposes the obligation to do the impossible on a stronger traffic participant, i.e. the driver, which was recognized by the Supreme Court, which expressed an opinion diverging from the previous jurisprudence, all the more valuable, as it is sound and realistically approaching the issue in question.

A Requiem for Provocation?

1988 ◽  
Vol 32 (2) ◽  
pp. 194-207 ◽  
Author(s):  
E. O. Isedonmwen
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Other Hand ◽  
The Supreme Court

Provocation is dead! It died at the Supreme Court of Nigeria. The funeral oration was read by Kazeem J.S.C., while the funeral dirge was chorused by four other judges of the same court. The case was Ganiyu Olatokunbo Oladiran v. State The facts of the case were as follows. The appellant was a secretary of Design Group Ltd., a firm of chartered architects based in Ibadan. His marriage with the deceased came to be as a result of a pregnancy presented to him by the deceased. Their matrimonial history was one of intermittent quarrels, accusations and counter-accusations of infidelity against the appellant and insubordination against the deceased. The deceased had always accused the appellant of showing interest in their maid, a girl of about 13 or 14 years of age. The appellant had on the other hand accused the deceased of smoking cigarettes which he disliked.The climax to their matrimonial squabble came, to a head on the 21 September, 1982. On that day, there was as usual a quarrel between the appellant and the deceased. There was an abortive attempt at settlement by the deceased's parents. Later that day the deceased refused to cook for the appellant and told him to ask his “second wife” (the house-maid) to cook for him. She also abused him. Thereafter the appellant got a knife and stabbed the deceased to death. The appellant subsequently made an abortive attempt at committing suicide.

scholarly journals Exercising Unilateral Discretion: Presidential Justifications of Unilateral Powers in a Shared Powers System

2017 ◽  
Vol 47 (1) ◽  
pp. 3-28
Author(s):  
Brandon Rottinghaus
Keyword(s):  
Supreme Court ◽  
The Other ◽  
Executive Orders ◽  
Other Hand ◽  
The Supreme Court ◽  
Unilateral Powers ◽  
Presidential Prerogative

There is a puzzle in the literature on presidential unilateral power that, on one hand, presents executive orders as the outcome of presidential prerogative but on the other hand identifies delegated discretion as a limit to presidential action. To address this question, we examine the use of delegated authority in unilateral orders from 1951 to 2009 and relate these to the ideological underpinnings of the institutions delegating and overseeing the use of this discretion (Congress and the Court). Our findings indicate that presidents are likely to issue unilateral directives with more substantive discretion when ideologically farther away from either the medians in Congress or the Supreme Court, but more likely to scale back their use of discretion when both branches are jointly ideologically distant from the president. The results demonstrate support for both an assertive and restrained president when relying upon delegated authority to act unilaterally.

scholarly journals COMPROMISE, UNDUE INFLUENCE AND ECONOMIC DURESS Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Obiter ◽  
2021 ◽  
Vol 33 (3) ◽  
Author(s):  
CJ Pretorius ◽  
R Ismail
Keyword(s):  
Supreme Court ◽  
Case Note ◽  
The Other ◽  
Undue Influence ◽  
Other Hand ◽  
The Supreme Court ◽  
The Law ◽  
The One ◽  
Court Of Appeal ◽  
Sound Judgment

The matter of Gerolomou Constructions (Pty) Ltd v Van Wyk (2011 (4) SA 500 (GNP)) alludes to two rather problematic aspects of the law of contract: on the one hand it demonstrates that practically speaking the question of what constitutes an enforceable agreement of compromise is still no easy matter, and despite the sound judgment delivered recently by the Supreme Court of Appeal in Be Bop A Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd (2008 (3) SA 327 (SCA)), it seems that the judiciary’s interpretation as to when an offer of compromise exists remains difficult to predict. On the other hand the Gerolomou decision deals with improperly obtained consensus by way of undue influence, whereas the facts actually fit more comfortably into the niche of so-called economic duress, a form of procedural impropriety that has yet to be recognized as an independent ground for setting aside a contract in our law. This case note examines these issues against the backdrop of the manner in which the case was pleaded.

scholarly journals Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada

2013 ◽  
Vol 50 (3) ◽  
pp. 697
Author(s):  
Peter Bowal
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
The Other ◽  
Supreme Court Of Canada ◽  
Judicial Decision ◽  
General Contractor ◽  
General Insurance ◽  
Other Hand ◽  
The Supreme Court

The unanimous judicial decision of the Supreme Court of Canada in Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada resolves divergent appellate judicial holdings, in British Columbia on one hand and Ontario and Saskatchewan on the other hand, on the issue of an insurer’s duty to defend its insured general contractor in the ensuing litigation under commercial general liability (CGL) policies in cases of defective construction workmanship.

scholarly journals Forging Alberta's Constitutional Framework, Richard Connors and John M. Law, eds., and The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger, Ed.

2008 ◽  
Author(s):  
James W. Muir
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
The Other ◽  
Weight Of Evidence ◽  
Recent Issue ◽  
Other Hand ◽  
New Directions ◽  
The Law ◽  
The One ◽  
Made In

In a recent issue I raised the question of whether Canada has developed a distinctive law of its own. With two recent publications it is possible to focus that question more narrowly and ask if there is such a thing as a distinctive Albertan law that has developed over the twentieth century. In the introduction to their book Forging Alberta's Constitutional Framework (Forging), Richard Connors and John Law declare that "Alberta has, in part, forged its own Constitution and its place within Canada's Constitution." This statement perfectly balances the issue: on the one hand, Alberta has its own Constitution that it has made itself; on the other hand, it exists as an entity within the wider Canadian constitutional framework. In his introduction to The Alberta Supreme Court at 100: History and Authority, Jonathan Swainger strikes a similar balance: "In those areas where the Court did act, the weight of evidence suggests that while some aspects of Alberta's jurisprudential path have been creative and forward looking, in others they were less inclined to strike out in new directions.... And if the Court's jurisprudence in a given area might appear tentative or tightly prescribed, in others we find indications of a distinctive "made in Alberta" flavour that did not necessarily tread expected paths."Reading these books introduces us to many interesting parts of Alberta's legal past, but in the end these sometimes unique events do not lead us to conclude that there is much distinct about the law in Alberta, whether in its constitutional framework or in its courts.

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