scholarly journals YTTRANDEFRIHET: Om rättigheter som politik och kulturell praktik

2008 ◽  
Author(s):  
Ulf Johansson Dahre
Keyword(s):  
Supreme Court ◽  
Free Speech ◽  
Hate Speech ◽  
Democratic Society ◽  
The State ◽  
The Other ◽  
Freedom Of Religion ◽  
Court Cases ◽  
The Supreme Court ◽  
The Church

The principle of free speech is considered fundamental for the democratic society. Free speech is a non-partisan principle that serves and favours no one. However, two recent controversial court cases in the Swedish Supreme Court show that the neutral free speech principle does not exist. The Supreme Court argued, in spite of the presumed neutrality of who says what, that it does matter who says what. The two cases concerned hate speeches against homosexuals. In the case against the speech of the church cleric, the court argued that freedom of religion is more fundamental than free speech and thus considered the disdain of homosexuals within the confi nes of the law. In the other case concerning the hate speech by a Nazi-nationalistic group, the same court argued that this was illegitimate speech. The speeches were similar in content. The conclusion from this might be that there is no such thing as free speech. The free speech arena is just a battlefi eld where different ideas and ideologies are competing for political and cultural hegemony in the state. Law, moreover, is an expression of the court’s defi nition of the cultural content in society.  

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

scholarly journals LAWSUIT IN ADMINISTRATIVE COURT AFTER ADMINISTRATIVE PROCEEDINGS BASED ON PERMA NO. 6 OF 2018

2019 ◽  
Vol 8 (3) ◽  
pp. 458
Author(s):  
Muhammad Adiguna Bimasakti
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Government Administration ◽  
The Supreme Court ◽  
Administrative Proceedings

The enactment of Law No. 30 of 2014 concerning Government Administration very much changes the paradigm of the proceedings in the State Administrative Court. One of the fundamental things is about administrative proceedings as pre-litigation proceedings. Under Article 75 of Law No. 30 of 2014 concerning Government Administration, citizens who feel disadvantaged by a Government’s Decision or Action can file an administrative proceedings, and then file a lawsuit in the Administrative Court. Regarding this regulation, two interpretations arise regarding the obligation of administrative proceedings as pre-litigation proceedings. One party argues that the administrative proceedings as pre-litigation proceedings must be carried out before filing a lawsuit in the Court, and the other argues this is not mandatory. For a period of four years, the interpretation of the obligation of administrative proceedings as a pre-litigation proceedings in Law No. 30 of 2014 concerning Government Administration is floating in the realm of discourse. It was only on December 4th, 2018 that the Supreme Court issued a Supreme Court Regulation (PERMA) No. 6 of 2018 concerning Guidelines for Resolving Disputes Regarding Government Administration After Administrative Proceedings, finally the Supreme Court dictates that administrative proceedings as a pre-litigation proceedings is a must. However, the PERMA does not regulate fundamental things regarding lawsuit after administrative proceedings, namely, who will be seated as the defendant, and what is the object of the lawsuit. In addition, there are also a number of things that needed to be reviewed regarding the arrangements in the PERMA, such as regarding the deadline for a lawsuit in the Court.

The Reckoning

2021 ◽  
pp. 483-520
Author(s):  
Eric Van Young
Keyword(s):  
Supreme Court ◽  
Mexico City ◽  
The State ◽  
The Other ◽  
Grand Jury ◽  
The Supreme Court ◽  
The Government ◽  
The U.S

Alamán’s internal self-exile in Mexico City, when he hid for nearly two years only to emerge in 1834, is discussed in as much detail as is possible for a largely undocumented episode. Having left the government along with the other ministers during 1832, he was being pursued by agents of the state and political enemies to stand trial before a congressional grand jury for his involvement in the judicial murder of Vicente Guerrero. The chapter also discusses his cordial relationship with the U.S. envoy who replaced the recalled Joel Poinsett, Anthony Butler. The fall of the Anastasio Bustamante government to an uprising led by Santa Anna is narrated, along with Alamán’s eventual trial, his spirited defense of himself, the intervention of Carlos María de Bustamante (not the president) on his behalf before the Supreme Court, and the ex-minister’s exoneration at the hands of President Santa Anna.

Scandalizing the judiciary: An analysis of the uneven response of the Supreme Court of India to sexual harassment allegations against judges

2020 ◽  
Vol 18 (2) ◽  
pp. 563-590
Author(s):  
Sanjay Jain ◽  
Saranya Mishra
Keyword(s):  
Sexual Harassment ◽  
Supreme Court ◽  
The State ◽  
Fundamental Rights ◽  
The Other ◽  
Lower Court ◽  
High Courts ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Systematic Pattern

Abstract The Supreme Court of India (SC) pronounced a momentous judgment in Vishaka v. State of Rajasthan in 1997, categorically recognizing the menace of sexual harassment (SH) at workplace and constitutionally rendering it as being in violation of fundamental rights guaranteed by Articles 15, 19, and 21 of the Constitution of India 1950. The Court also provided a mechanism for redressal against SH, which was ultimately reinforced by Parliament with the enactment of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act). However, when it comes to allegations of SH against judges in the SC and High Courts by its employees, interns, or lower court judges, the response of the SC has been abysmal to say the least. There is a systematic pattern to suggest foul play and conspiracy in each such allegation, and judges, including even the Chief Justice of India (CJI), have not hesitated to openly indulge in victim-shaming and-blaming. In other words, the court has not been able to uphold its own jurisprudence on sexual harassment, which it expects to be scrupulously adhered to by other organs of the state. It is submitted that in not supporting the cause of victims alleging SH against judges, the other organs of the state are also party to this constitutional decay and serious infraction of fundamental rights. It leads us to ask the question, how can we guard against the guardians?

The Supreme Court in the Era of Bifurcated Review III

2019 ◽  
pp. 510-599
Author(s):  
G. Edward White
Keyword(s):  
Supreme Court ◽  
Free Speech ◽  
Due Process ◽  
Freedom Of Religion ◽  
The Supreme Court

The Supreme Court’s decisions interpreting the Due Process Clauses of the Fifth and Fourteenth Amendments followed an uneven pattern in the period covered in this volume. From a posture of aggressive review in cases posing due process challenges to state and judicial legislation, the court retreated to one of deference when the legislation affected “social and economic transactions.” But in other cases, such as when free speech and freedom of religion were restricted by legislative or administrative policies, the Court retained an aggressive posture. Eventually, after initially announcing that it eschewed “substantive” interpretations of the Due Process Clauses, the Court began advancing those interpretations in cases involving restrictions on the use of contraceptives and abortion decisions.

scholarly journals Meaning in the Use of Freedom: The Free Press Underground, the University of Missouri, and Students for a Democratic Society

2020 ◽  
Vol 5 (1) ◽  
pp. 20
Author(s):  
Chris Drew
Keyword(s):  
Public Opinion ◽  
Supreme Court ◽  
Free Speech ◽  
Historical Context ◽  
Democratic Society ◽  
Power Struggle ◽  
Free Press ◽  
University Of Missouri ◽  
The Supreme Court ◽  
The University

The Free Press Underground was an independent newspaper edited and published by University of Missouri students in the 1960’s. Four students were arrested for distributing a February,1969 edition of the paper. One of those students was ultimately expelled. Her name was Barbara Papish. She and the ACLU took the MU’s Board of Curators to court, and ultimately made it to the Supreme Court in 1973. Papish’s expulsion was ruled unconstitutional. A deeper analysis of the historical context surrounding this incident will reveal the ongoing power struggle and antagonism shared between the University and the student publishers, and draw lessons for contextualizing free speech incidents. This will be shown as necessary for seeing the underlying purpose, intent, and meaning buried beneath the oft over simplified struggle for public opinion surrounding morality and freedom, as exemplified by this incident.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

scholarly journals National institute of family and life advocates (NIFLA) : V. Becerra, or the right to be informed about your own reproductive rights.

Soft Power ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 322-346
Author(s):  
Vitulia Ivone
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Free Speech ◽  
Reproductive Rights ◽  
The State ◽  
Fundamental Issue ◽  
Health Clinics ◽  
The Supreme Court ◽  
History Of ◽  
The Right

The Supreme Court has issued its decision in NIFLA v. Becerra, a 5–4 vote holding that the state of California cannot compel pregnancy-resource centers to advertise for the state’s abortion services. This decision represents a considerable victory for both the right to free speech and the conscience rights of pro-life Americans. The case concerned California’s Reproductive FACT Act, which mandated that both licensed and unlicensed women’s-health clinics (crisis-pregnancy or pregnancy-resource centers) not performing abortions had to provide a pre-written notice to clients. Though the law related specifically to abortion, free speech was the fundamental issue at stake. This paper analyzes the history of abortion in US legislation and the perspective of one of its fundamental civil rights.

scholarly journals Censorship as Free Speech - Free Expression Values and the Logic of Silencing in R. v. Keegstra

1969 ◽  
pp. 835 ◽  
Author(s):  
Terry Heinrichs
Keyword(s):  
Supreme Court ◽  
Free Speech ◽  
Hate Speech ◽  
Political Process ◽  
Target Group ◽  
Free Expression ◽  
Critical Space ◽  
The Supreme Court ◽  
Group Members

In this article, the author criticizes the Supreme Court of Canada's view in Keegstra that free expression values — and by extension free expression itself — are furthered rather than hindered by the suppression of free speech. The author examines in detail, first, the majority's reasoning in its consideration of the relation of hate speech to the "truth," "self-fulfillment," and "political process" rationales, and second, the thesis underpinning the contention that tolerating hate speech will effectively "silence " the expression of target group members. In fact, a significant portion of the critical space of the article is devoted to an examination of the merits of this controversial "silencing" argument. The author contends that this second argument poses the relevant problem, not as a conflict between free expression and other Charter values (such as equality or multicultural ism), but as one occurring entirely within the free expression guarantee itself. In this aspect of its reasoning, the author views Keegstra as pioneering an argument that would suppress free expression in its very name.

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