scholarly journals A Consistent Inconsistency—An Interpretationof Sections 23 and 56(1) of the Charter of Human Rights and Freedoms of Québec

2016 ◽  
Vol 28 (3) ◽  
pp. 379-403
Author(s):  
Barbara Pierre
Keyword(s):  
Human Rights ◽  
Separation Of Powers ◽  
Attorney General ◽  
Supreme Court Decision ◽  
The State ◽  
Fundamental Rights ◽  
The Law ◽  
The Difference ◽  
The Government ◽  
The Right

The writer advocates the view that courts interpret statutes so as to achieve their aim; that being justice in the case: as between the parties and in respect of the law. This is identified as the common thread that explains the apparent erratic behaviour of the courts in their use of the various methods or rules of interpretation. The Supreme Court decision, Attorney General of Québec v. 2747-3174 Québec Inc., is analysed against the background of this theory and is seen to give support to it. The court is shown to use various rules of interpretation, which lead the majority to a wide, and the minority to a narrow, interpretation of the Charter of Human Rights and Freedoms of Québec. Yet it is clear that in both cases the rules are merely a means to an end: justice as between the parties and in respect of the law. In context of the case, this means establishing a balance between the competing interests of the State and the citizen that conforms to the law relating to fundamental rights and in particular, the Charter of Human Rights and Freedoms of Québec. As far as the State is concerned, it has a vested interest in confirming the constitutionality of its many administrative tribunals, which play an essential role in enabling the State to discharge its responsibility to govern. Citizens, on the other hand, need to be protected from the violation of their rights, in particular the right to an independent and impartial tribunal in matters relating to the determination of their rights and obligations, or charges brought against them. The Charter must be interpreted so that, in its scope and content, it gives real protection, but, consistent with the separation of powers doctrine, the interpretation must not amount to a usurpation by the courts of the role of the government to govern. The writer concludes that the opposing conclusions of the majority and minority are more a consequence of the difference in the opinion of the judges as to the manner in which the balance should be struck, as opposed to the rules of interpretation used by them.

The Development of the Notion of Separation of Powers

1992 ◽  
Vol 26 (1) ◽  
pp. 1-15 ◽  
Author(s):  
Michel Troper
Keyword(s):  
Human Rights ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Universal Suffrage ◽  
The Law ◽  
The Government ◽  
Constitutional System

It suffices to examine two of the most important texts which form the basis of France's constitutional system, the Declaration of Human Rights of 1789, and the Law of June 3, 1958, in order to become convinced that separation of powers is one of those immutable principles which imposes itself as self-evident on every liberal constituent body. Article 16 of the Declaration of 1789 proclaims that “any society in which the protection of rights is not ensured, nor the separation of powers established, has no constitution”. The constitutional Law of June 3, 1958, for its part, authorizes the government to establish a constitutional project, provided that five principles be respected; among these principles appears, immediately following the necessity of universal suffrage, the separation of powers.

scholarly journals Advocacy as a tool for the realization of the fundamental right of a person to professional legal assistance

2021 ◽  
Vol 66 ◽  
pp. 240-243
Author(s):  
P. Badzeliuk
Keyword(s):  
Human Rights ◽  
Civil Society ◽  
Legal Status ◽  
Legal Profession ◽  
The State ◽  
Fundamental Rights ◽  
Access To Justice ◽  
Legal Assistance ◽  
The Right ◽  
Legal Entities

This article is devoted to the study of the implementation of the fundamental right of a person to professional legal assistance through the vectors of influence of the bar, the role of the human rights institution in the mechanism of such a right and its place in public life.An effective justice system provides not only an independent and impartial judiciary, but also an independent legal profession. Lawyers play an important role in ensuring access to justice. They facilitate the interaction between individuals and legal entities and the judiciary by providing legal advice to their clients and presenting them to the courts. Without the assistance of a lawyer, the right to a fair trial and the right to an effective remedy would be irrevocably violated.Thus, the bar in the mechanism of protection of human and civil rights and freedoms is one of the means of self-limitation of state power through the creation and active functioning of an independent human rights institution, which is an active subject in the process of fundamental rights. The main constitutional function of the state is to implement and protect the rights and freedoms of man and citizen, and the constitutional and legal status of the legal profession allows it to actively ensure the rights of civil society as a whole and not just the individual. Effectively implement the human rights function of the state by ensuring proper interaction between the authorities and civil society, while being an active participant in the law enforcement mechanism and occupying an independent place in the justice system.Thus, the activities of lawyers are a complex manifestation of both state and public interest. After all, it is through advocacy and thanks to it that the rule of law realizes the possibility of ensuring the rights and freedoms of its citizens. Advocacy, on the one hand, has a constitutionally defined state character, and on the other hand, lawyers should be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. Thus, the bar is a unique legal phenomenon that performs a state (public-law) function, while remaining an independent, non-governmental self-governing institution.

scholarly journals Overview Of The Rights Of Person With Disabilities: A Human Rights Approach

2021 ◽  
Vol 5 (IV) ◽  
pp. 34-42
Author(s):  
Dr. Ram Charan Meena,
Keyword(s):  
Human Rights ◽  
Human Beings ◽  
Social Approach ◽  
Persons With Disabilities ◽  
Psychological Barriers ◽  
Contemporary Situation ◽  
The Law ◽  
The Government ◽  
Definition Of ◽  
The Right

Persons with disabilities have the right to enjoy the human rights to life, liberty, equality, security and dignity as human beings. However, due to social apathy, psychological barriers, a limited definition of “disability” entitled to the protection of the law and lack of proper data, persons with disabilities in India remain an invisible category. Although many laws set out to ensure their full and effective participation in society, they remain inadequate as they are based primarily on the discretion of the government. Also, the judiciary acts as the real protector of persons with disabilities whenever an opportunity arises, but it is not possible to approach the judiciary for every request. Unless the foundation of the law is strengthened, persons with disabilities cannot fully exercise their rights. The present research paper mentions the contemporary situation of people with disabilities with the current laws and concepts, and also the researcher believes that it is not only the law that will provide a solution to this problem, it is the change in the outlook of the society which may provide a solution to this problem. Thus, the horizons of the law should be expanded to provide a “human friendly environment” for all persons with disabilities to remove the barriers that impede their development. With timely implementation the time has come for effective legislation to protect their interests and empower their capabilities which are based on “rights–based approach” rather than charity, medical or social approach.

Definition and content of the right to freedom of conscience

2021 ◽  
Vol 66 (05) ◽  
pp. 145-148
Author(s):  
Ниджат Рафаэль оглу Джафаров ◽  
Keyword(s):  
Human Rights ◽  
Human Behavior ◽  
The State ◽  
Human Beings ◽  
Freedom Of Conscience ◽  
Key Words Human ◽  
The People ◽  
The Law ◽  
The Right

It can be accepted that the classification of human rights, its division, types, and groups, is of particular importance. The syllogism for human rights can be taken as follows: law belongs to man; human beings are the highest beings on earth like living beings. Therefore, the regulation prevails. The right to freedom is conditional. Man is free. Consequently, human rights are dependent. Morality is the limit of the law. Morality is the limit and content of human actions. Therefore, the law is the limit of human activities. Morality is related to law. Law is the norm of human behavior. Thereby, human behavior and direction are related to morality. The people create the state. The state has the right. Therefore, the right of the state is the right of the people. The state is an institution made up of citizens. Citizens have the privilege. Such blessings as Dignity, honor, conscience, zeal, honor, etc., and values are a part of morality and spiritual life. Morality is united with law. Therefore, moral values are part of the law. Everyone has the right to freedom of thought and conscience. Space is about the law. Therefore, everyone has the right to opinion and conscience. Key words: human rights, freedom of conscience, conceptuality, citizenship

scholarly journals Problem of Statelessness in Nepal

NUTA Journal ◽  
2019 ◽  
Vol 6 (1-2) ◽  
pp. 64-69
Author(s):  
Rameshwor Upadhyay
Keyword(s):  
Human Rights ◽  
The State ◽  
Fundamental Rights ◽  
The Other ◽  
Universal Principle ◽  
Legal Obligations ◽  
The World ◽  
Women And Children ◽  
The Government ◽  
International Instruments

This paper highlighted Nepalese statelessness issue from Nationality perspective. Nationality is one of the major human rights concerns of the citizens. In fact, citizenship is one of the major fundamental rights guaranteed by the constitution. According to the universal principle related to the statelessness, no one shall be arbitrarily deprived of his or her nationality. In this connection, on one hand, this paper traced out the international legal obligations created by the conventions to the state parties in which state must bear the responsibility for making national laws to comply with the international instruments. On the other hand, this paper also appraised statelessness related lacunae and shortcomings seen in Municipal laws as well as gender discriminatory laws that has been supporting citizens to become statelessness. By virtue being a one of the modern democratic states in the world, it is the responsibility of the government to protect and promote human rights of the citizens including women and children. Finally, this paper suggests government to take necessary initiation to change and repeal the discriminatory provisions related to citizenship which are seen in the constitution and other statutory laws.

scholarly journals THE INTERNATIONAL HUMAN RIGHT TO HOUSING & THE CANADIAN CHARTER: A CASE COMMENT ON TANUDJAJA V. CANADA (ATTORNEY GENERAL)

2015 ◽  
Vol 32 (1) ◽  
pp. 121
Author(s):  
David DesBaillets
Keyword(s):  
Human Rights ◽  
Attorney General ◽  
Legal Doctrine ◽  
Housing Rights ◽  
International Human ◽  
The Government ◽  
Government Of Canada ◽  
Droit International ◽  
The Right ◽  
The Impact

The case of Tanudjaja v. Attorney General, represents an unprecedented opportunity for Canadian legal scholars to examine the right to adequate housing in the Canadian human rights context. It is the only legal challenge that broaches directly the right to housing under Canadian law, basing its arguments on two key elements contained in Charter of Rights and Freedoms: sections 7 and 15. Moreover, the case represents an attempt by the claimants to bolster their Charter claim with reference to housing rights found in international human right’s law. For Canadian housing rights’ scholars, this decision, though ultimately quite negative in its conclusions, demonstrates the need for a better understanding of the intersection between international legal norms on human rights on the one hand, and the Charter, on the other. It does not, however, adequately portray the full extent of the former’s influence on the latter, as Justice Lederer of the Ontario Superior Court of Justice, failed to address the importance of international legal doctrine with respect to the interpretation of positive social and human rights in the Canadian legal context. In particular, he ignored the growing body of Charter related cases and precedents in Canadian jurisprudence that shed light on the complex relationship between fundamental human rights enshrined in various international legal documents and the recognized positive obligations they impose on the government of Canada to implement them under such long established treaties as the Covenant of Economic Social and Cultural Rights.   In this comment, the author makes a critique of the analysis undertaken by Judge Lederer with regards to the relevance of international human rights norms in the context of Tanudaja, by comparing it with past Charter jurisprudence involving the impact of these on Canadian human rights claims.  L’affaire Tanudjaja c. Attorney General est une occasion unique pour les spécialistes en droit du Canada d’examiner le droit à un logement adéquat dans le contexte des droits de la personne protégés au Canada. Il s’agit du seul litige dans lequel le droit au logement en droit canadien est abordé directement sous l’angle de deux dispositions clés de la Charte canadienne des droits et libertés : les articles 7 et 15. De plus, dans cette même affaire, les demandeurs ont tenté d’étoffer leur allégation fondée sur la Charte en invoquant les droits au logement reconnus dans le droit international sur les droits de la personne. Pour les spécialistes en matière de droits au logement au Canada, malgré les conclusions plutôt négatives qui y sont tirées, cette décision illustre la nécessité de mieux comprendre l’interaction entre les normes juridiques internationales sur les droits de la personne, d’une part, et la Charte, d’autre part. Cependant, elle ne décrit pas adéquatement l’ampleur de l’influence des premières sur la seconde, puisque le juge Lederer, de la Cour supérieure de justice de l’Ontario, n’a pas abordé l’importance de la doctrine juridique internationale relative à l’interprétation des droits sociaux et humains positifs dans le contexte juridique canadien. Plus précisément, il a ignoré le nombre croissant de décisions canadiennes liées à la Charte qui ont mis en lumière la relation complexe entre les droits humains fondamentaux garantis dans différents documents juridiques internationaux et les obligations positives reconnues que ces textes imposent au gouvernement du Canada en ce qui a trait à la mise en œuvre de ces droits en conformité avec des traités d’aussi longue date que le Pacte international relatif aux droits économiques, sociaux et culturels. Dans ce commentaire, l’auteur critique l’analyse que le juge Lederer a menée au sujet de la pertinence des normes internationales à l’égard des droits de la personne dans le contexte de l’affaire Tanudaja, en comparant cette analyse à des décisions antérieures concernant la Charte et faisant état des répercussions de ces normes sur les revendications fondées sur les droits de la personne au Canada. 

scholarly journals POLITIK HUKUM PENGENDALIAN TENAGA KERJA ASING YANG BEKERJA DI INDONESIA

Media Iuris ◽  
2018 ◽  
Vol 1 (2) ◽  
pp. 236
Author(s):  
Anis Tiana Pottag
Keyword(s):  
The State ◽  
Responsibility To Protect ◽  
Foreign Workers ◽  
Controlling System ◽  
Foreign Labor ◽  
Huge Impact ◽  
The Law ◽  
The Government ◽  
National Constitution ◽  
The Right

The inception of the regulation No. 6 year concerning immigration 2011 and No. 13 year 2003 and regarding the employment has had a huge impact in the political direction of the law controlling foreign workers who works in Indonesia. The controlling system of foreign workers who work in Indonesia aims to protect the rights of Indonesian citizens from losing their jobs because of the high number of foreign workers who come to work in Indonesia. As the implementation of an Article 27 paragraph 2 of the national constitution in 1945 specifies where every citizen of Indonesia has the right to work and a decent subsistence for humanity. As the state which constituted by the law, Indonesia has a responsibility to protect the rights of its citizens in accordance with Article number 28, paragraph 4 where the protection, promotion, enforcement and fulfillment of human rights is the responsibility of the state, especially in this case is the responsibility of the government. The utilization of foreign labor in Indonesia should be limited in number and areas that can be occupied by the foreign labor. The Labor law and regulation limit the positions that can be occupied by the foreign labor. The positions which are prohibited (closed list) should be considered by the employer before filing the utilization of foreign labor. Apart from having to comply with the provisions regarding the positions, the employer should also pay attention to the standards of an applicable competency.

scholarly journals Legal Aspects of the Right to Nationality Pursuant to Myanmar Citizenship Law

2019 ◽  
Vol 3 (2) ◽  
pp. 277 ◽  
Author(s):  
Su Yin Htun
Keyword(s):  
Human Rights ◽  
Legal Aspects ◽  
International Standards ◽  
Legal Analysis ◽  
Human Rights Abuses ◽  
Communal Violence ◽  
Legal Reforms ◽  
The Law ◽  
The Government ◽  
The Right

It is universally accepted that everyone has the right to citizenship. Myanmar’s framework on the right to nationality constitutes a unique, exclusive, ethnic citizenship system based on jus sanguinis or the law of blood. Myanmar’s Citizenship Law was enacted in 1982 by repealing the Union Citizenship Act of 1948. As citizenship parameters were changed by the Law, many people in the Kachin, Karen, and Rakhine states lost their nationality rights and consequently suffered human rights abuses. In the Rakhine state, serious communal violence occurred in 2012, 2016, and 2017, and the government declared a state of emergency. This research paper focuses on how Myanmar can adhere to international standards for nationality rights. It provides a historical overview and legal analysis of citizenship laws in Myanmar using a human rights lens and offers suggestions for legal reforms that can help address the problem of statelessness in Myanmar. Specifically, it recommends the use of the jus soli, or the law of the soil, approach to citizenship.

8. Law, Constitutions, and Federalism

2017 ◽  
Author(s):  
Peter Ferdinand
Keyword(s):  
Human Rights ◽  
Basic Structure ◽  
The State ◽  
Fundamental Rights ◽  
Universal Declaration ◽  
Political Life ◽  
Constitutional Courts ◽  
Alternative Approach ◽  
The Law

This chapter examines how laws, constitutions, and federalism provide structure to the context of political life. It first considers the importance of constitutions in determining the basic structure of the state and the fundamental rights of citizens that they establish before asking whether the Universal Declaration of Human Rights is Western-centric. It then explores different ways in which states may attempt to realize justice in applying the law, with particular emphasis on differences between Islamic and Western practice. It also discusses the importance of constitutional courts, the ways that the institution of federalism contains the powers of the state and manage diverse societies, and consociationalism as an alternative approach to managing such diversity. Finally, it comments on the increasing legalization of political life.

LEGAL PROTECTION RELATED TO THE DENSITY RIGHTS IN TERMS OF REWARDED IN CORRECTIONAL INSTITUTION

2018 ◽  
Vol 5 (2) ◽  
pp. 175
Author(s):  
Lily Faradina ◽  
Kadek Wiwik Indrayanti
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
The State ◽  
Correctional Institution ◽  
Human Beings ◽  
The People ◽  
The Law ◽  
The Right ◽  
Work Done

The rights of prisoners have been explicitly regulated in Act No.12 of 1995 on Corrections. The law therein outlines 13 (thirteen) rights reserved for a prisoner while in a Penitentiary. The right to get a wage or premium for the work done is a right that is often neglected in practice in the correctional institution located in our country. This happens because of the stigma of the people who still tend to assume that a prisoner is a party that deserves to be treated arbitrarily because of the crime he has committed. It is this kind of thinking that ultimately also affects officials or prison officers who end up treating incendiary people like humans who are unfit to accept the rights that have been provided by the state. Many inmates are employed in penitentiaries who are not paid for by their employers. If this continues to be done then the purpose of punishment will actually violate human rights inherent in the Prisoners as human beings. However, prisoners must also be protected by their rights as human beings.

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