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Journal articles on the topic 'Supreme Council for the Northern Jurisdiction'
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1
Roshanzadeh, Javad, and Seyed Ahmad Habibnejad. "LEGISLATIVE RESTRICTIONS OF THE ISLAMIC CONSULTATIVE ASSEMBLY DUE TO THE LEGISLATIVE JURISDICTION OF OTHER AUTHORITIES IN THE PROCEDURE OF THE GUARDIAN COUNCIL." Humanities & Social Sciences Reviews 7, no. 6 (December 19, 2019): 813–25. http://dx.doi.org/10.18510/hssr.2019.76123.
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Purposes: In the Constitution of the Islamic Republic of Iran, in accordance with Article 71, legislation is the responsibility of the Islamic Consultative Assembly and has general jurisdiction which does not mean that the Islamic Consultative Assembly has no restrictions on legislation, but has limitations in terms of the various Constitutional principles including, the exclusive and particular jurisdiction of other authorities to legislate the law. The Islamic Consultative Assembly cannot legislate in the jurisdiction of these institutions. In the Constitution, a series of authorities have got the right to legislate.
Methodology: Using an analytical descriptive method, the present article seeks to examine the question of what are the legislative constraints of the Islamic Republic Consultative Assembly in the Guardian Council's procedure.
Results: In the procedure of the Guardian Council, other authorities, such as the Assembly of Experts of the Leadership, the Expediency Discernment Council of the system, the Supreme National Security Council, the Supreme Council of the Cultural Revolution, etc. have found the right to legislate. In other words, this general jurisdiction has been assigned in a way.
Implications/Applications: The application of this study is to introduce the laws of the Islamic Republic of Iran. The exercise of this jurisdiction by the Islamic Consultative Assembly has a framework that cannot be explained except by referring to the Constitutional principles
Novelty/Originality: In the Constitution of the Islamic Republic of Iran, due to the nature and type of government and the particular aspirations pursued, other legislative authorities include the Assembly of Experts, the Expediency Council, the Supreme National Security Council. It is accepted that by referring to the views of the Guardian Council as the Constitutional body, they have protected them in cases where the jurisdiction of these authorities has been invaded.
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Marrah, Augustine Sorie-Sengbe. "A Critique of the Supreme Court of Sierra Leone’s Conviction of Augustine Marrah for Criminal Contempt." Strathmore Law Journal 5, no. 1 (June 8, 2021): 209–16. http://dx.doi.org/10.52907/slj.v5i1.148.
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The Legal Practitioners Act of 2000 authorises the Sierra Leone Bar Association to elect six legal practitioners for membership of the General Legal Council (Council), which is the regulatory body of the legal profession in Sierra Leone. In April 2019, Ibrahim Sorie was among the legal practitioners elected to the Council. Subsequently, I—another legal practitioner—objected to and petitioned in the High Court of Sierra Leone Sorie’s election to the Council on the basis of ineligibility.
The thrust of my objection was that Sorie, a two-term ex-president of the Sierra Leone Bar Association had not yet attained the necessary fifteen-year standing qualification at the date of his appointment to the Council, based on his year of enrolment into the Permanent Register or Roll of Court in 2011.
Sorie filed an action in the Supreme Court against the Council invoking the exclusive original jurisdiction of the Supreme Court to interpret certain portions of the Constitution of Sierra Leone vis-à-vis the eligibility provision for membership to the Council in the Legal Practitioners Act.2 The Supreme Court delivered a controversial 97-paged judgment on 27 October 2020.
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Miller, Forrie. "Reflections on the Roles of Apex and Intermediate Courts in New Zealand." Amicus Curiae 4, no. 1 (November 2, 2022): 1–42. http://dx.doi.org/10.14296/ac.v4i1.5486.
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The Supreme Court of New Zealand replaced the Privy Council as New Zealand’s final appeal court in 2004. Appeals to the Privy Council in the general civil jurisdiction lay as of right, but all appeals to the Supreme Court were to be by leave. The legislature chose not to change appellate structures and pathways which had long been designed to limit the number of appeals by leave. Rather, it was hoped that the Supreme Court’s broader jurisdiction and accessible location would allow it to meet its objectives as a final appellate court.
The Supreme Court has done much to develop law for New Zealand conditions. But the number and quality of leave applications constrain its substantive output, which has apparently stabilized at a level substantially lower than was predicted in 2004. The underlying causes can be located in appellate structures and pathways which constrain demand and also affect the Court of Appeal.
This paper examines those constraints and the Supreme Court’s attempts to address them. It identifies consequences for the distribution of law development and supervision of precedent as between the Supreme Court and Court of Appeal. The paper is a call for dialogue rather than a prescription for reform, but it does suggest that consideration should be given to adjusting pathways to improve the range and quality of work decided by panels of three and five judges. It argues that courts in an appellate hierarchy must pursue a collaborative approach if law is to be developed in a reasonably timely and cost-effective way in the common law case-by-case tradition, and it suggests that is best done through appellate restraint and conservative application of the rules of precedent.
Keywords: appellate courts; distribution of responsibility for precedent; appeal pathways and leave criteria.
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Zholobov, Yaroslav B. "The powers of presidents of general jurisdiction courts in the Russian Federation: Classification issues." Vestnik of Saint Petersburg University. Law 13, no. 4 (2022): 860–76. http://dx.doi.org/10.21638/spbu14.2022.402.
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Based on the practical experience of the retired court president, the article covers the issues of systematizing the powers of presidents of general jurisdiction courts in Russia through creating their classification. The material is presented in a problematic manner. The author identified four key issues related to the powers of presidents of general jurisdiction courts: the compliance of powers with new tasks and challenges that arise before the justice system; the binding nature of the powers of presidents of general jurisdiction courts; differences in the powers of presidents of general jurisdiction courts, despite the consolidation of the principle of unity of the system of general jurisdiction courts; distribution of powers between, on the one hand, the court president and, on the other hand, the Chief Justice of the Supreme Court of the Russian Federation, bodies of the judiciary and administrator — a professional manager, who is not a judge. It is shown that the powers of presidents of general jurisdiction courts are governed by various regulatory sources, which differ considerably in terms of their legal nature: the Constitution, federal constitutional laws, federal laws, presidential decrees, orders of the Judicial Department at the Supreme Court of the Russian Federation and decisions of the Council of Judges of the Russian Federation. The author considers the procedural powers divided into general powers and special procedural powers and the nonprocedural powers of presidents of general jurisdiction courts which are grouped into the powers related to personnel matters, the powers broken down by subjects and the powers categorized by the nature of actions. The article promotes the idea of interaction between the court president and judges following the principle of primus inter pares (first among equal) and the partnership model in the distribution of powers between the court president and the court administrator (professional manager), who is offered to take over all operational functions.
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Cruickshank, Johnathon. "Counteracting Settler Legal Systems." Federalism-E 22, no. 1 (May 3, 2021): 58–65. http://dx.doi.org/10.24908/fede.v22i1.14559.
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The 1997 Supreme Court case Delgamuukw v. British Columbia was groundbreaking in its recognition of oral histories as evidence of Aboriginal title. Brought forth by the Wet’suwet’en and Gitxsan nations, the trial would decide the title to territory in northern British Columbia, a jurisdiction which notably had never signed any treaties with the Canadian government. The Supreme Court overturned an earlier judgement from lower B.C. courts that had claimed Aboriginal title did not exist in law, allowing an appeal and leading to a retrial. The Supreme Court’s ruling not only defined the scope of Aborginal title, but ensured it was a constitutionally protected right that cannot be extinguished by the provinces, although it could be “infringed upon.” Additionally, it set the precedent for all future cases that Indigenous oral history must be given the same weight as written colonial history.
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Masterman, Roger. "The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence?" Northern Ireland Legal Quarterly 71, no. 2 (August 14, 2020): 285–302. http://dx.doi.org/10.53386/nilq.v71i2.320.
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It is often claimed that the constitutional role of the UK’s apex court is enriched as a result of the experiences of the Judicial Committee of the Privy Council as interpreter of constitutions within its overseas jurisdiction. This paper considers the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system(s), further seeking to assess how far the jurisprudence of the Judicial Committee has influenced constitutional decision-making in the UK apex court. While ad hoc citation of Privy Council authorities in House of Lords/Supreme Court decisions is relatively commonplace, a post-1998 enthusiasm for reliance on Judicial Committee authority – relating to (i) a ‘generous and purposive’ approach to constitutional interpretation and (ii) supporting the developing domestic test for proportionality – quickly faded. Both areas are illustrative of a diminishing reliance on Judicial Committee authority, but reveal divergent approaches to constitutional borrowing as the UK apex court has incrementally mapped the contours of an autochthonous constitutionalism while simultaneously recognising the trans-jurisdictional qualities of the proportionality test.
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BRANCO, Paulo Gonet, and Ilton Norberto ROBL FILHO. "JUDICIAL REVIEW OF LEGISLATION BY ADMINISTRATIVE BODIES AND NATIONAL COUNCIL OF JUSTICE: LIMITS AND POSSIBILITIES IN DIALOGUE WITH CONSTITUTIONAL JURISDICTION." Revista Juridica 4, no. 57 (October 5, 2019): 221. http://dx.doi.org/10.21902/revistajur.2316-753x.v4i57.3763.
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ABSTRACT Objectives: The constitutional powers of the National Council of Justice challenge a constitutionally appropriate interpretation of its functions and constitutional consequences. This article analyzes the incidental control of constitutionality of administrative acts by such Council, based on article 37 of the Constitution of 1988, with the possibility to decline application of the law interpreted as unconstitutional. Methodology: The methodology used in this study is phenomenological-hermeneutic with literature review and analysis of the jurisprudence of the National Council of Justice and the Federal Supreme Court. Results:The thesis sustained in this paper states that the control of constitutionality of laws by administrative bodies loses relevance with the adoption of a robust system of judicial review in incidental and abstract forms, as currently observed in Brazil. On the other hand, exceptionally, due to the powers of article 103-B, I and II of § 4 of the Federal Constitution, the National Council of Justice may carry out judicial review by administrative bodies, having as its control parameter especially article 37 of Federal Constitution, but with limitations and due deference to the precedents of the Federal Supreme Court to apply the constitutional principles of government and to resolve the conflict between constitutional norms. Contributions: The study mentions the peculiarities of the National Council of Justice (instituted by Constitutional Amendment No. 45/2004) that are of special interest to analyze its institutional design and its place in rule of law, discussing the possibility of judicial review of administrative acts by the National Council of Justice with the nonapplication of laws not yet declared unconstitutional by the Courts.KEYWORDS: National Council of Justice; judicial review by administrative bodies; jurisdiction; Federal Supreme Court. RESUMO Objetivos: As competências constitucionais do Conselho Nacional de Justiça desafiam uma interpretação constitucionalmente adequada das funções e das suas consequências constitucionais. Este artigo analisa o controle incidental de constitucionalidade dos atos administrativos do mencionado Conselho, a partir do art. 37 da Constituição de 1988, com a possibilidade de afastamento da lei interpretada como inconstitucional. Metodologia: A metodologia utilizada neste estudo é fenomenológico-hermenêutica com revisão da literatura e análise da jurisprudência do Conselho Nacional de Justiça e do Supremo Tribunal Federal. Resultados:A tese sustentada neste trabalho afirma que o controle de constitucionalidade de leis por órgãos administrativos perde relevância com a adoção de robusto sistema de controle judicial de constitucionalidade nas modalidades incidental e abstrata, conforme se observa atualmente no Brasil. De outro lado, excepcionalmente em razão das competências dos incisos I e II do § 4º. do art. 103B, da Constituição de 1988, o Conselho Nacional de Justiça pode realizar controle administrativo de constitucionalidade, tendo como parâmetro de controle especialmente o art. 37 da Constituição de 1988, mas tendo limite e devendo deferência à jurisprudência do Supremo Tribunal Federal para concretizar os princípios constitucionais da administração pública e para solucionar a colisão entre normas constitucionais. Contribuições: O estudo traz as peculiaridades do Conselho Nacional de Justiça (instituído pela Emenda Constitucional nº. 45/2004), que são de especial interesse para analisar-se sua estrutura institucional e seu lugar no regramento do Direito ao discutir a possibilidade de revisão judicial de atos administrativos pel Conselho Nacional de Justiça co a não aplicação de leis ainda não declaradas inconstitucionais pelos tribunais. PALAVRAS-CHAVE: Conselho Nacional de Justiça; controle de constitucionalidade administrativo; jurisdição; Supremo Tribunal Federal.
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Bortnikova, Alla. "The Activity of the Lutsk Government's in Conditions of the Magdeburg Law Implementation." Історико-політичні проблеми сучасного світу, no. 35-36 (December 20, 2017): 320–27. http://dx.doi.org/10.31861/mhpi2017.35-36.320-327.
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The political and legal analysis of the principles of organization and main directions of the city government in Lutsk activity according to the normative and legal acts of the Grand Duchy of Lithuania supreme authority and materials of local administrative and judicial institutions in the conditions of the of Magdeburg lawimplementation has been carried out. Grand privilege to the city of Lutsk for the Magdeburg law in 1497 has been considered in details. The city’s government structure, its bodies’ functions: council and lava and chief officials ─ Vogt, Landvogt, burgomasters, advisers and lavnyks have been found out. The activities of the local government officials’ in the field of administration and justice, tax and customs policy, the organization of bids and fairs, support for the development of a handicraft trade, etc. has been revealed. It has been proven, that that in the middle of the 16thcentury the city government in Lutsk actually gained the value of a higher judicial and administrative body for the burghers who belonged to the jurisdiction of the city self- government. The confirmation of this was the participation of members of the city council and lava in criminal cases and taking over of such sentences as the death penalty.
Considerable attention has been paid to the issue of the rights and freedoms of burghers’ protectiongranted to them by Magdeburg law and local customs from attacks of the landowners and city officials. The examples of the conflict’s resolution between Lutsk burghers and property owners in connection with the unauthorized placement by private landowners of private customs and the unlawful introduction of bids have been given. It has been proven, that theviolations of ancient customs and traditions in the field of customs and tax policy, as well as other abuse of local authorities and landowners met with collective resistance from the burghers of Magdeburg jurisdiction. During their appeal by the Lutsk burghers, the Grand Duke stood on the side of the burghers, confirming the authority and power of the urban community, as well as respect to the traditions and law, that was publicly demonstrated by the supreme power.
Keywords: Grand Duchy of Lithuania, local self-government, the Magdeburg law, city, Luts’k, burghers, council, lava, administration, court
9
McIntosh, Ian. "Renegade Rockets & the Darwin Space Base Fiasco: The Relations Between Aborigines, Developers, and Anthropologists in Australia's Northern Territory." Practicing Anthropology 21, no. 1 (January 1, 1999): 24–27. http://dx.doi.org/10.17730/praa.21.1.hu58583525p62237.
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The most significant employer of anthropologists in Australia's Northern Territory is not the university or museum. It is the Aboriginal land councils. As I detail in this article, the primary role of the land council anthropologist is to mediate between Aboriginal groups and developers. But there is a catch. While anthropologists are usually employed because they have already developed a relationship with particular clans as a result of Masters or Ph.D. studies, in performing the duties as required by a council, one often alienates the people who we owe our careers to. This is because any land council has a dual function. On the one hand it pursues land and sea rights for the Aboriginal people under its jurisdiction. On the other, it is trying to sell the idea of Aboriginal property rights to the rest of Australia, where Aborigines enjoy nowhere near the same level of rights.
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Malbin, Michael J., and Michael Parrott. "Small Donor Empowerment Depends on the Details: Comparing Matching Fund Programs in New York and Los Angeles." Forum 15, no. 2 (July 26, 2017): 219–50. http://dx.doi.org/10.1515/for-2017-0015.
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Abstract Political campaigns have long been financed by people with well above average incomes, but the balance has tilted dramatically since the Supreme Court’s 2010 decision in Citizens United v. FEC. A number of jurisdictions have been looking to rebalance the incentives through new (or updated) public financing programs. Much of the discussion about their potential effects, however, has been sweepingly generic. But we know that these programs do differ from each other and have good reason to expect that “success” or “failure” will depend both on their goals and the programs’ details. This article focuses on one type of program that has become a model in recent years. Until recently New York City was the only jurisdiction with a multiple matching system explicitly designed to increase the role of small donors.Previous studies noted apparent successes, but it has been difficult to feel comfortable with only one jurisdiction to test. After Los Angeles revised its system in 2013, serious comparisons became possible. This article finds that New York City’s campaign finance matching fund program increased the number, proportional role, and diversity of small donors in city council elections but that the Los Angeles program was substantially less effective. The findings were confirmed through a difference-in-differences procedure that tested each city council over time against state legislative districts representing the same geographical space. A series of explanations relating to the programs’ details were tested, leading us to conclude that the policy details were affecting the results. The results were also different in both cities for mayoral and city council candidates. This suggests alterations may be needed if one were to consider the model for offices with larger constituencies, such as Governor or the US Congress. Finally, the article concludes with a discussion of major arguments for and against increasing small donor participation as a goal for public policy.
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Dani, Umar. "MEMAHAMI KEDUDUKAN PENGADILAN TATA USAHA NEGARA DI INDONESIA: SISTEM UNITY OF JURISDICTION ATAU DUALITY OF JURISDICTION? SEBUAH STUDI TENTANG STRUKTUR DAN KARAKTERISTIKNYA / UNDERSTANDING ADMINISTRATIVE COURT IN INDONESIA: UNITY OF JURISDICTION OR DUALITY OF JURISDICTION SYSTEM? A STUDY OF HIERARCHY AND CHARACTERISTIC." Jurnal Hukum dan Peradilan 7, no. 3 (December 18, 2018): 405. http://dx.doi.org/10.25216/jhp.7.3.2018.405-424.
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Ada dua perbedaan prinsip sistem peradilan di berbagai negara hukum, yaitu: pertama: sistem unity of jurisdiction yang dianut oleh negara-negara hukum rule of law yang hanya mengenal satu set pengadilan yaitu pengadilan biasa (pengadilan umum) dan tidak mengenal eksistensi PTUN. Kedua: sistem duality of jurisdiction yang dianut oleh negara-negara hukum rechtsstaat dikenal adanya dua set pengadilan yaitu pengadilan biasa (pengadilan umum) dan PTUN, pengadilan umum berpuncak ke Mahkamah Agung sedangkan PTUN berpuncak ke Dewan Negara (Conseil d’Etat). Kedua sistem ini bukan hanya struktur organisasi pengadilan yang berbeda, tetapi substansi hukum maupun hukum acaranya juga berbeda. Untuk di Indonesia, hasil penelitian menunjukkan bahwa sistem peradilan di Indonesia sangat unik, jika dilihat dari struktur organisasi peradilan maka lebih dekat pada sistem unity of jurisdiction, sedangkan jika dilihat dari prinsip-prinsip pengadilan atau tata cara penyelesaian sengketa maka lebih dekat pada sistem duality of jurisdicton sehingga penulis menyimpulkan bahwa sistem peradilan Indonesia adalah sistem campuran.The two main different principles in judicial system in the various legal states are namely (first): as the unity of jurisdiction system applied by rule of law which only consisted of civil court and, (second): the duality of jurisdiction system which applied by rechtstaat law states that is known consisted of civil court and administrative court. Civil court culminates in the Supreme Court while the Administrative Court culminates in the State Council (Conseil d'Etat). These two systems are not just different in court organizational hierarchy, but also different ini the legal substance and the legal procedural. The research reports show that the judicial system in Indonesia is very unique, from the judicial organizational hierarchy perspective is closer to the system of unity of jurisdiction, whereas from the principles of the court and the procedure of dispute settlement perspective is closer to the duality of system jurisdicton so the authors finally conclude that the judicial system of Indonesia is a mixture system.
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Bodansky, Daniel, and Geoffrey R. Watson. "Mara’abe v. Prime Minister of Israel." American Journal of International Law 100, no. 4 (October 2006): 895–901. http://dx.doi.org/10.1017/s0002930000031973.
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Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.
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Kudryashova, Alla V. "About administrative powers of the chairman of district court and need of improvement of their legal regulation." Vestnik of Kostroma State University, no. 4 (2019): 166–69. http://dx.doi.org/10.34216/1998-0817-2019-25-4-166-169.
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The article investigates legal status of the chairman of the district court as head, marked differences in the volume and nature of its managerial powers similar to the powers of the heads of other state bodies, due to their executions of the preservation of the independence of judges, as well as a significant role in providing the district court of the Judicial Department under the Supreme Court of the Russian Federation. The conclusion is made about the need to reduce administrative powers of the chairman due to the transfer of most of these issues to the jurisdiction of the court administrator and the concentration of the chairmen on the problems of ensuring the uniform application of law, improving the efficiency of justice through the organisation of interaction between judges, joint discussion of law enforcement issues, participation in formation of educational programmes on courses of improvement of qualification of judges etc. It is proposed to create the necessary legislative prerequisites for the implementation of this role of chairpersons, taking into account the recommendations of the Consultative Council of European Judges, acting under the Council of Europe.
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LESNYKH, ELENA A. "Certain issues of the formation of the administrative and legal status of the Judicial Department at the Supreme Court of the Russian Federation." Public Administration 22, no. 3 (2020): 70–76. http://dx.doi.org/10.22394/2070-8378-2020-22-3-70-76.
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The subject of this article is the administrative and legal status of the Judicial Department under the Supreme Court of the Russian Federation. A critical analysis of some provisions of the Federal law ‘On the Judicial Department’, which are not quite successful, in the author’s opinion, reveals a trend in the development of the legal status of the Department, which does not go beyond the narrowly utilitarian implementation of the functions of financial, material, technical and personnel support for real access to justice. Based on the analysis of scientific and practical literature, normative material, the author reveals a contradiction between the recognized in the literature some uncertainty of legal status, on the one hand, and adequate and effective work that corresponds to the tasks facing the Department, on the other. There are obvious contradictions and gaps in the legal regulation of the Department’s activities that require correction. Thus, the definition of the Department ‘under’ the Supreme Court of the Russian Federation puts it formally and legally, in terms of literal interpretation of the law, in direct administrative subordination. To ensure full independence of the Judicial Department as ‘non-systemic’ beyond the branches of government, public authority proposed to withdraw it from the jurisdiction of the Supreme Court in personnel matters with the appointment of the Head of Department by the decree of the President of Russia on representation of the Council of judges.
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Carrington, Paul. "Protecting the Right of Citizens to Aggregate Small Claims against Businesses." University of Michigan Journal of Law Reform, no. 46.2 (2013): 537. http://dx.doi.org/10.36646/mjlr.46.2.protecting.
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Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I renewed my accusation last year in South Carolina while commenting on the Court's ruling protecting a manufacturer from the local enforcement of New Jersey tort law by shortening the reach of that state's courts' jurisdiction over the claim of a local plaintiff who sought compensation for an injury caused by the defendant's negligent construction of a tool shipped to New Jersey with the help of its insolvent marketing distributor. Now, for the third time in two years, I find myself protesting the Court's identification with the Quayle Commission and the Chamber of Commerce in its 2011 subversion of Rule 23(b) (3), which provides for the aggregation of small claims.
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Pogson, Fiona. "Wentworth and the Northern Recusancy Commission." Recusant History 24, no. 3 (May 1999): 271–87. http://dx.doi.org/10.1017/s003419320000251x.
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In June 1629 Thomas, Viscount Wentworth was given control of the Northern Commission for Compounding with Recusants and appointed Receiver-General of northern recusant revenues. He was already Lord President of the Council of the North and Lord Lieutenant of Yorkshire, but this new appointment was to extend his power geographically far outside the Council’s jurisdiction. It gave Wentworth the opportunity to demonstrate further his administrative abilities and brought him personal financial advantages. Wentworth’s biographers have customarily given this aspect of his work only cursory attention, but in 1961 Clare Talbot edited a Catholic Record Society volume (n. 53) containing a selection of texts relating to Wentworth’s management of the commission, prefaced by a very informative introduction by the late J. C. H. Aveling which has added much to our knowledge of this part of Wentworth’s administrative work. The texts include over eighty documents, in whole or in part, from the Strafford Papers held in Sheffield Archives which shed much light on the work of the northern commission. There are, however, a number of other important letters, accounts and texts of speeches, both in the Strafford Papers and elsewhere, which deserve attention as they usefully supplement, and occasionally correct, Aveling’s introductory comments.
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Dudley, Miriam. "A Legal Information Service for Practitioners." International Journal of Legal Information 29, no. 2 (2001): 420–28. http://dx.doi.org/10.1017/s0731126500009495.
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I am now going to transfer you rapidly from the global information service to a locally targeted and focused legal information service designed to meet the particular needs of a small jurisdiction like Northern Ireland.SLS Legal Publications was established in 1980 as a unique and profoundly innovative experiment in Northern Ireland (N.I.). Its continued existence 20 years later is testament to the fact that it has not only become a success story but is now an integral part of the legal system in Northern Ireland. SLS Legal Publications is a legal publishing and training company based within the Queen's University of Belfast (QUB) and sponsored by the NICS, the Law Society of N.I. and the Bar Council of N.I. QUB's sponsorship takes the form of the provision of accommodation and accounting services. The purpose of SLS is to provide a legal information service in various ways to the Northern Ireland legal profession and the wider community and I will expand on those various ways later in this talk.
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KRESS, CLAUS. "The Crime of Aggression before the First Review of the ICC Statute." Leiden Journal of International Law 20, no. 4 (December 2007): 851–65. http://dx.doi.org/10.1017/s0922156507004499.
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A few years before the expected convening of the First Review Conference on the Statute of the International Criminal Court, the Special Working Group for the Crime of Aggression has made very significant progress in preparing the ground for enabling the Court to exercise its jurisdiction over what the Nuremberg Tribunal famously called the ‘supreme international crime’. The complex structure of this absolute leadership crime has been fully explored, including its implications for the interplay between the definition of the crime and the general principles of international criminal law. At the same time, the crucial analytical distinctions between state and individual conduct as well as between the substantive elements of the crime and the possible procedural role of the UN Security Council appear to be generally accepted. In the light of the momentum achieved on the diplomatic level, the First Review Conference presents a distinct and historic window of opportunity to the world's political leadership to complete the Rome Statute and thereby prevent its prominent lacuna from becoming permanent and thus turning into a legitimacy gap. The final phase of the negotiations should be guided by two principles. First, the substantive definition of the state act of aggression should stay within the legitimate limits of international criminal justice by not exceeding undisputed general customary international law. Second, a possible procedural role for the Security Council must not have the practical effect of placing the permanent members of the Security Council beyond the reach of the law.
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Afeadie, Philip Atsu. "Ambiguities of Colonial Law: the Case of Muhammadu Aminu, Former Political Agent and Chief Alkali of Kano." History in Africa 36 (2009): 17–52. http://dx.doi.org/10.1353/hia.2010.0002.
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Colonial law in Africa involved European moral and legal codes representing some rules of western law, as well as elements of African customary law. However, the colonial situation embodying political and economic domination necessarily negated the ideal practice of the rule of law. Nevertheless, the need arose to introduce some aspects of western law and codes of administration, including salary and benefits schemes for African employees of the colonial government, and legal entitlements such as court trials for accused government employees. These considerations were deemed necessary, if at least to propitiate metropolitan critics of the colonial establishment. Also some rule of law was required for the organization of the colonial economy, including regulation of productive systems and commercial relations. As well, the need for indigenous support necessitated dabbling in indigenous customary conventions. In Muslim polities such as Kano in northern Nigeria, customary conventions included Islamic law.On the establishment of colonial rule in Kano, judicial administration was organized on three principal institutions, involving the resident's provincial court, the judicial council (emir's court), and the chief alkali's court in Kano City with corresponding district alkali courts. The resident's provincial court had jurisdiction over colonial civil servants, including African employees such as soldiers, police constables, clerks and political agents. Also, the provincial court was responsible for enforcing the abolition of the slave trade in the region. The judicial council, classified as “Grade A” court, was composed of the emir, thewaziri(chief legal counselor), the chiefalkaliof Kano (chief judge), theimam(the religious leader of Kano mosque), thema'aji(treasurer), and general assistants including some notable scholars of Kano city. The council adopted thesha'ria(Muslim law) and local Hausa custom, and its jurisdiction extended over “matters of violence, questions of taxation and administration, and cases involving property rights, whether over land, livestock, trade goods, or slaves.” On the issue of capital sentencing, the judicial council required the approval of the resident. The council was also prohibited from authorizing punishments involving torture, mutilation, or decapitation.
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Anyia, Albert. "Muslim Organisation and the Mobilisations for Sharia Law in northern Nigeria: The JNI and The NSCIA." Journal of Asian and African Studies 52, no. 1 (July 28, 2016): 82–102. http://dx.doi.org/10.1177/0021909614560246.
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This paper examines the role of Muslim religious organisations in northern Nigeria as religious interest groups in relation to government decision-making, including their role as ‘superior Muslim influence’ in the introduction and dissemination of Sharia law in 12 northern states in Nigeria. Two of the most prominent Muslim organisations in Nigeria, the J’amatu Nasril Islam (JNI) and Nigerian Supreme Council for Islamic Affairs (NSCIA), are examined in this regard to compare and highlight their lobbying strategies in their attempt to justify claims to representing over 80 million Muslims in Nigeria. This paper suggest that Islam and the support from Muslim organisations were significant influences on government policy-makers involved in the process of adopting Sharia law in the northern states. Overall, this paper concludes that Muslim organisations have superior influence, have significantly marginalised non-Muslims and have focused on Sharia law policy, thus enabling an analysis of the relationship between religion and politics in Nigeria.
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Stram, Diana L., and Diana C. K. Evans. "Fishery management responses to climate change in the North Pacific." ICES Journal of Marine Science 66, no. 7 (May 14, 2009): 1633–39. http://dx.doi.org/10.1093/icesjms/fsp138.
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Abstract Stram, D. L., and Evans, D. C. K. 2009. Fishery management responses to climate change in the North Pacific. – ICES Journal of Marine Science, 66: 1633–1639. In the North Pacific, warming trends, coupled with declining sea ice, raise concerns about the effects of climate change on fish populations and ecosystem dynamics. Scientists are only beginning to understand the potential feedback mechanisms that will affect everything from plankton populations to major commercial fish species distributions, yet fishery managers have a responsibility to prepare for and respond to changing fishing patterns and potential ecosystem effects. There are ways for fishery managers to be proactive, while waiting for better information to unfold. The North Pacific Fishery Management Council (Council) and the National Marine Fisheries Service have jurisdiction over offshore fisheries in Alaska, USA. Recently, the Council has undertaken risk-averse management actions, in light of uncertainty about the effects of warming trends (and loss of sea ice) and resulting changes to fishing activities in the North Pacific. The Council has assessed whether opportunities for unregulated fishing could result from changes in fish distribution, has closed the Arctic Ocean to all commercial fishing pending further research, and has established extensive area closures where fishing with bottom-trawl gear is prohibited to protect vulnerable crab habitat and to control the northern expansion of the trawl fleet into newly ice-free waters. In cases where linkages between climate variables and fish distributions can be identified, the Council is developing adaptive management measures to respond to varying distributions of fish and shellfish. Finally, the Council has also tried to re-examine existing information to gain a better understanding of climate and ecosystem effects on fishery management. The pilot Fishery Ecosystem Plan for the Aleutian Islands maps interactions among climate factors and ecosystem components and suggests indicators for the Council to monitor.
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Rehman, Qurrat-Ul-Ain. "WHEN PEN SWALLOW’S JUSTICE: A STUDY ON RECTIFICATION OF LAWS: ERROR FREE PUBLICATION OF LAWS OF PAKISTAN." Pakistan Journal of Social Research 03, no. 04 (December 31, 2021): 432–36. http://dx.doi.org/10.52567/pjsr.v3i4.305.
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The Supreme Court of Pakistan took Suo moto action and passed an order on 3rd March, 2015 directing that legislation shall be made for the purpose of regulating the publication of law books and keeping a strict eye on the sale of inaccurate law book publically, as it led to adverse consequences. In August, 2015 Supreme Court of Pakistan passed an order directing that notices be issued to Pakistan Bar Council, Provincial Bar Councils as well as Federal Law Ministry and Provincial Law Departments so that the matter of error in publication of law books can be adequately addressed and this serious issue can be properly attended. The committee of government bodies convened its meetings on 21.11.2014 & 01.12.2014. It was unanimously of the view that at present no regulatory framework for error free publication of either primary or delegated legislation is available to cater for present issue. The committee, therefore, recommended establishing a separate organization/autonomous body/board or directorate to ensure error free publication of statutes in books and on websites. Extent of jurisdiction Text of books or websites/electronic publication would require certification where the entire Statutes/ Act/ Ordinance/ Rules or Regulations have been reproduced after a careful comparison with its authentic and updated version. Publication of law book in Pakistan was a huge disaster because they contained mistakes. The current standards of the Law publications have been highly affected by the inattentiveness of the government and private publishing bodies. The Ministry of law and justice has been advised by the Supreme Court of Pakistan to form a criterion for restriction of cause of error in Law books. In persons thereof a cell namely “The Publication of laws of Pakistan” cell was established by the Ministry under the Ordinance, the Ordinance later on was converted into the Act of the Parliament “The Publication of Laws of Pakistan Act, 2016”. Instead of establishing a cell under the supervision and control of Ministry of law and justice it would have been far batter if an independent commission would have established for the realization of purpose. Keywords: Supreme Court, Bar Councils, Sou moto, Laws, Ministry and Pakistan.
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Campagnolo, Yan. "Cabinet Immunity in Canada: The Legal Black Hole." McGill Law Journal 63, no. 2 (March 20, 2019): 315–74. http://dx.doi.org/10.7202/1058195ar.
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Fifteen years ago, in Babcock v. Canada (A.G.), the Supreme Court of Canada held that section 39 of the Canada Evidence Act, which deprives judges of the power to inspect and order the production of Cabinet confidences in litigation, did not offend the rule of law and the provisions of the Constitution. The aim of this article is to revisit this controversial ruling and challenge the Supreme Court’s reasoning. The first part seeks to demonstrate that the Supreme Court adopted a very thin conception of the rule of law in its jurisprudence, a conception which is of limited use as a normative framework to assess the legality of statutory provisions. To that end, the author turns to the thicker theory of law as justification which insists upon the requirements of fairness, transparency, and accountability. Pursuant to the theory of law as justification, an executive decision to exclude relevant evidence in litigation must comply with two requirements: it must be made following a fair decision-making process; and it must be subject to meaningful judicial review. The second part seeks to demonstrate that section 39 does not comply with these requirements. The decision-making process established by Parliament under section 39 is procedurally unfair, in violation of paragraph 2(e) of the Canadian Bill of Rights, because: the identity of the final decision-maker—a minister or the Clerk of the Privy Council—gives rise to a reasonable apprehension of bias; and the decision-maker is not required to properly justify his or her decision to exclude relevant evidence. In addition, section 39 infringes the core, or inherent, jurisdiction and powers of provincial superior courts, in violation of section 96 of the Constitution Act, 1867, as it unduly limits their authority to: control the admissibility of evidence in litigation; and review the legality of executive action. As a result of these flaws, the author argues that section 39 is an unlawful privative clause, a form of legal black hole, which offends the rule of law and the provisions of the Constitution.
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Mikuli, Piotr. "Poland: Current Debates on the Supervision over the Administrative Activity of the Common Courts." European Public Law 20, Issue 3 (September 1, 2014): 521–37. http://dx.doi.org/10.54648/euro2014034.
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This article examines the institution of the supervision over the administrative activity of the courts of general jurisdiction (the so-called common courts) in Poland. This kind of supervision is performed in Poland by the Minister of Justice, judges seconded to the Ministry, as well as the presidents of the courts. The author considers the basic constitutional principles referring to the status of the judiciary and draws the reader's attention to the discussion on the current regulations concerning such supervision. The problem, first of all, lies in the ambiguous wording of the statutory regulations, which makes it difficult to clearly distinguish administrative tasks in a strict sense from duties connected with the dispensation of justice. Despite the friendly attitude of the Constitutional Tribunal towards the supervisory competences of the Minister of Justice, the author argues, like many scholars and judges in Poland, that the administrative activity of the common courts should instead be controlled by judicial organs (i.e., the First President of the Supreme Court on his own or with the cooperation of the Judicial Council of the Judiciary). At the same time, the author is convinced on the necessity of pending general debates concerning the competence of executive power towards the judiciary in future.
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Folkerth, Megan, Kelley Adcock, Mary Singler, and Elizabeth Bishop. "Citizen Science: A New Approach to Smoke-Free Policy Advocacy." Health Promotion Practice 21, no. 1_suppl (January 2020): 82S—88S. http://dx.doi.org/10.1177/1524839919883586.
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Kentucky has the second highest adult smoking rate, has the highest incidence of lung cancer in the nation, and does not have a state law prohibiting smoking inside workplaces. These tobacco disparities and policy gap leave Kentucky behind tobacco control progress made in other areas of the United States. Williamstown is a rural community with a population of 3,900 and a strong history of tobacco use. In 2017, the Northern Kentucky Health Department, in partnership with Interact for Health, worked with two coalitions to collect data, educate the community, and advocate for a local smoke-free policy. Coalition members collected 227 public opinion surveys. Community leaders—including the mayor—and advocates participated in Citizen Science, a research collaboration between scientists and volunteers. Advocates were trained on AirBeam monitors, wearable devices that gather air quality data in real time, and then were deployed in six establishments. The indoor air quality in smoking establishments was two times worse than the outdoor air quality standard. Community leaders and advocates then mobilized to educate City Council members on the benefits of a smoke-free policy, focusing on business, health, and tourism. In 2018, the Williamstown City Council voted in favor of the smoke-free policy, becoming the first jurisdiction in the Northern Kentucky region with a comprehensive smoke-free policy. The Citizen Science process helped develop coalition capacity, build community support, and engage policymakers in a successful smoke-free policy effort. Through participatory and inclusive efforts, local residents were able to affect policy change in the direction of health for all people.
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Feldman, David. "PULLING A TRIGGER OR STARTING A JOURNEY? BREXIT IN THE SUPREME COURT." Cambridge Law Journal 76, no. 2 (July 2017): 217–23. http://dx.doi.org/10.1017/s0008197317000435.
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FOLLOWING a referendum on 23 June 2016 in which 52% of voters (38% of the total electorate) had expressed a preference for the UK to leave the EU, the Government announced that it would start the process of withdrawal, in accordance with Article 50 of the Treaty on European Union (“TEU”), by notifying the European Council of the UK's decision, exercising the Government's prerogative power to conduct foreign relations. A number of legal challenges were fast-tracked to the Supreme Court. In R. (Miller) v Secretary of State for Exiting the European Union (Birnie and others intervening) [2017] UKSC 5; [2017] 2 W.L.R. 583 after an expedited hearing, the Court decided two issues: (1) whether the Government could exercise its power under the royal prerogative to give notice, or needed an Act of Parliament to authorise the giving of notice; and (2) whether the Government required the consent of devolved legislatures in Northern Ireland, Scotland and Wales before giving notice or introducing to Parliament a Bill authorising the giving of notice. The Court sat unprecedentedly with all 11 serving members. On issue (1), the Court, by an 8–3 majority, held that an Act of Parliament would be required in order to authorise the giving of notice. On issue (2), the Court unanimously held that there was no legal requirement for consent by the devolved institutions.
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Burenko, Roman. "Transformation of the Judiciary in Turkmenistan after 1991. Aspects of Development of Administrative Judiciary." National Technical University of Ukraine Journal. Political science. Sociology. Law, no. 3(51) (December 7, 2021): 44–56. http://dx.doi.org/10.20535/2308-5053.2021.3(51).246462.
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The article examines the process of formation of the Turkmen judicial system after Turkmenistan declared independence in 1991. The stages of reforming and transformation of the judicial system in the Republic of Turkmenistan in different periods are studied: 1990–2000, 2001–2020. In addition, the structure of the judicial system of Turkmenistan, the system of courts of general jurisdiction (regional courts and local courts), the system of arbitration courts, judicial boards of the Supreme Court of the Republic of Turkmenistan (in civil cases, arbitration cases, administrative cases, criminal cases) is analyzed, and the judicial selfgovernment bodies of the Republic of Turkmenistan are also investigated: the National Conference of Judges, the Qualification Board of Judges, the Council of People’s Assessors at district courts. In addition, the norms of the Civil Procedure Code of the Republic of Turkmenistan, the Arbitration Procedure Code of the Republic of Turkmenistan and the Code of the Republic of Turkmenistan on Administrative Procedures on issues arising from administrative and public legal relations are analyzed. The article draws attention to the lack of functioning of the constitutional judicial system and the Constitutional Court in the Republic of Turkmenistan, as well as the need to establish constitutional control over normative acts of the legislative and executive branches of the republic in the country. It is proposed to establish administrative courts in Turkmenistan in all regional centres of the country and the capital of the republic, as well as to adopt the Code of Administrative Procedure of Turkmenistan in the country. The article draws attention to the fact that the creation or liquidation of arbitration, regional or local courts would be carried out not only on the basis of a Presidential Decree, but also on the basis of a proposal of the Supreme Court of the Republic of Turkmenistan with the consent of the Parliament of the Republic of Turkmenistan.
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Herych, A. "The Access to Administrative Justice during Wartime." Analytical and Comparative Jurisprudence, no. 5 (December 30, 2022): 227–32. http://dx.doi.org/10.24144/2788-6018.2022.05.42.
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The article is devoted to the study of the issue of access to justice during the war, as it stipulated by the other conditions for the implementation of justice in the state. Active hostilities are taking place in most regions of Ukraine, which makes it impossible to administer justice in administrative courts. However, the Supreme Council of Justice has resolved this issue properly, so the access to justice in Ukraine is currently available and the opportunity to defend one's violated right in accordance with the Constitution of Ukraine is guaranteed. Courts are obliged to implement justice even under state of war, and their powers are not suspended. In order to ensure access to the court, the Supreme Court changed the territorial jurisdiction of about one hundred courts of Ukraine. In connection with the introduction of state of war in Ukraine, all procedural terms are renewed, case consideration is not stopped, and excessive formalism by the judges is not allowed.
An attention is drawn to the fact that access to court is an integral element of the right to a fair trial, but such access must be effective. In the conditions of war, the Council of Judges of Ukraine recommends postponing the consideration of cases. Attention is focused on the fact that remote justice ensures better safety of participants in the legal process. According to the author, it is necessary to take care of the safety of court employees and give them the opportunity to work remotely. It is noted that electronic proceedings ensure full access to justice. The demand for remote justice is growing, access to the court is improving, as it is possible to participate in the court session even outside the court.
The article analyzes the decision of the HUDOC and based on this, the author comes to the conclusion that the HUDOC considers financial costs as an obstacle to access to justice. Access to court is effective only if a person has a real opportunity to challenge wrongful actions in practice. According to the HUDOC, the construction of Art. 6 of the Convention is effective only if the case will be considered in court. The HUDOC highlights the right to access the court as a component of the right to a fair trial. Attention is drawn to the fact that the courts must take all measures to restore the violated right.
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Tetley, William. "Canadian Interpretation and Construction of Maritime Conventions." Revue générale de droit 22, no. 1 (March 21, 2019): 109–28. http://dx.doi.org/10.7202/1058170ar.
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In this article, the author first describes the essentially civilian nature and origin of maritime law in the United Kingdom, the United States and Canada, a point unfortunately overlooked in the Supreme Court of Canada’s decision in the Buenos Aires Maru case [1986] 1 S.C.R. 752, but recognized in the judgement of the same Court in Chartwell Shipping Ltd v. Q.N.S. Paper, [1989] 2 S.C.R. 683. The article touches briefly on the federal jurisdiction over maritime law in Canada, the dual jurisdiction of the Federal Court and the superior courts of the provinces in maritime matters and the mixed civilian / common law system in Quebec. Consideration is then given to the Constitution Act, 1867, as interpreted by the much-criticized Labour Conventions decision of the Privy Council [1937] A.C. 326. The decision held that although the power to conclude international treaties and conventions in Canada is vested in the federal government alone, the enactment of the domestic legislation required to secure the implementation of such international agreements is not an exclusively federal matter, but may be a question of either federal or provincial competence, depending on the subject matter of the treaty or convention concerned. The author then reviews the principal rules of statutory interpretation which are provided for by the Vienna Convention on the Law of Treaties of 1969. He points out that, notwithstanding Canada’s ratification of this Convention in 1970, Canadian courts still tend to apply traditional (and often narrow) techniques of statutory interpretation when called upon to construe treaty texts, rather than keeping the goals of the agreement and intent of the parties in view, as the Vienna Convention requires. He indicates, however, a more recent judicial trend towards a more liberal methodology, as evidenced in decisions like R. v. Palacios, (1984) 45 O.R. (2d) 269 (Ont. C.A.) The article concludes with a brief overview of the major statutory interpretation rules applied by Canadian courts in construing local laws and international agreements and some aids to such interpretation. Professor Tetley, as a last tribute, applauds what he sees to be the slowly emerging "general consensus" on statutory and treaty interpretation in Canada.
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Bray, Judith. "THE EFFECT OF ‘FAIRNESS’ ON PRE-NUPTIAL AGREEMENTS." Denning Law Journal 26 (September 25, 2014): 261–73. http://dx.doi.org/10.5750/dlj.v26i0.932.
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Until the seminal judgment of Radmacher v Granatino pre-nuptial or pre-marital agreements were given limited weight in English law. Prior to this decision there had been considerable debate about the status in law of all nuptial settlements both pre and post marriage. The key question for Radmacher was whether pre-nuptial settlements should attract equal weight as agreements drawn up during the course of a marriage. In MacLeod v MacLeod the Privy Council finally resolved the issue with regard to post-nuptial settlements holding that agreements drawn up post marriage would carry weight when the court decides a claim for financial relief under s.25 Matrimonial Causes Act 1973. The English courts, unlike other jurisdictions, have always been reluctant to uphold agreements, which purport to deprive the court of its jurisdiction in deciding financial provision. There was also an underlying presumption that parties to a marriage did not intend their agreements to form legally binding contracts and finding adequate consideration within such agreements was often difficult unless the agreement is incorporated in a deed. The effect of the Supreme Court’s decision in Radmacher was not to reverse this approach. Pre-nuptial agreements were not made binding on the court but rather the court is invited to give weight to all nuptial agreements subject to certain safeguards. The subsequent decision in Luckwell v Limatagives guidance as to when the court will be prepared to deviate from pre-marital agreements even when the parties have been given independent legal advice and both parties are fully aware of the possible effect of such an agreement.
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Bourque, Denis. "L'« affaire des omelettes » et ses conséquences sur le partage des compétences législatives en matière de taxation et de commerce." Chronique de jurisprudence 19, no. 4 (April 12, 2005): 1115–40. http://dx.doi.org/10.7202/042290ar.
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The Supreme Court of Canada has recently rendered judgment in what has come to be known as the Omelet Case. The Court was called upon to rule on the constitutionality of several provisions in federal and Ontario law, the purpose of which was to set up a plan for the marketing of eggs in Canada. The plan provided for a levy on producers and had as its objectives the attribution to each province of a share of the national market for eggs, and the setting of production quotas within each province as regards its part of the market. Such quotas were to be set in an identical manner for all producers, whether they be engaged in intraprovincial, inter provincial, or export trade. The province of Ontario also provided for the imposition of quotas as to the means of production, particularly as to the number of domestic hens a producer could possess. This paper shows how the distribution of legislative powers in respect of taxation and commerce is affected by the Supreme Court's decision. It is suggested that the Court has completely abandoned the doctrine of the Crystal Dairy case, in which the Privy Council had ruled that the levying of fees on producers was a matter of taxation. The paper also outlines the consequences of certain remarks by Chief Justice Laskin on the spending power of Parliament. The paper then discusses the reticence of certain members of the Court to approve the measures adopted by Ontario concerning the control of means of production. Such reticence illustrates the difficulties faced by the Court when trying to define or identify which measures can be adopted by the provinces, within the framework of agricultural marketing plans, without encroaching upon federal jurisdiction over interprovincial trade under subs. 91(2) of the BNA Act. Finally, the paper attempts to show how the scope of s. 121 of the BNA Act is limited by the ruling that it cannot hamper federal regulation of interprovincial trade under subs. 91(2). This latest decision confirms the broadening of the scope of subs. 91(2), already apparent in the Caloil case and the Manitoba Egg reference. The strenghtening of subs. 91(2) may imply that s. 121 will be applied differently, according to whether federal or provincial legislation is involved.
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Haljan, David P. "A Constitutional Duty to Negotiate Amendments:Reference Re Secession of Quebec." International and Comparative Law Quarterly 48, no. 2 (April 1999): 447–57. http://dx.doi.org/10.1017/s0020589300063296.
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In the aftermath of the 1995 referendum on Quebec unilateral secession,1the then Minister of Justice, Allan Rock, proposed that the legality of a province's attempting to secede unilaterally be referred to the Supreme Court of Canada for a judicial opinion, pursuant to that Court's special advisory jurisdiction.2Accordingly, on 30 September 1996, the Governor General in Council submitted three questions of law, discussed in detail below, concerning the legal authority of Quebec, under both Canadian and international law, to secede from the Canadian federation. In addition to the government of Canada, two provinces, the two territories, and a number of special interest groups and individuals (all given leave to intervene) submitted written arguments and rejoinders over the course of 1997.3The government of Quebec did not participate in the hearing and submitted no argument. Accordingly, the Court appointed an (from Quebec) to represent the secessionist interest. The Court heard argument from 16 to 19 February 1998. On 20 August 1998 the Court released its unanimous opinion, rather earlier than expected.4The Court rejected the legal right of Quebec to separate unilaterally under Canadian constitutional law, and the right to do so under international law as recognised in Canada. Given the latter holding, the Court did not consider further the third question relating to reconciling a possible conflict between the two legal orders. The following extended case comment proposes to outline and discuss briefly the reasoning of the Court, in what is a significant exercise of judicial power in the service of constitutional affairs. The structure of this comment will follow that of the Court's resaoning, dealing first with a preliminary objection, then turninh to question 1(introduction and discussion) and then to Question 2 and 3.5
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Kravtsova, M., and T. Datsyuk. "Peculiarities of the work of courts under martial law." Analytical and Comparative Jurisprudence, no. 5 (December 30, 2022): 390–94. http://dx.doi.org/10.24144/2788-6018.2022.05.72.
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The work of the judicial system in wartime is a subject of debate, because, despite the fact that the order of court work is fixed, most often, in the constitutions of countries, there are various precedents and experience of the work of courts in emergency situations. Important factors influencing the work of courts are the safety of judges and other participants in the process due to the occupation of some regions, massive shelling of Ukrainian cities, possible sabotage, etc. In international practice, emergency situations include: state of emergency, state of war, state of siege, state of public danger, state of war, state of tension, state of defense, state of threat, state of readiness. Independent Ukraine applied martial law for the first time in its existence in 2022, after the beginning of open aggression by the Russian Federation. In addition to the Constitution of Ukraine, during the period of martial law, the work of courts is regulated by the Law of Ukraine "On the Legal Regime of Martial Law" and the Law of Ukraine "On Amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" on Changing the Jurisdiction of Courts" No. 2112-IX.The main aspects of the work of the courts in Ukraine during martial law in 2022 were: the work of the courts cannot be stopped; the safety of people is the primary goal; all judicial bodies must develop plans that include: measures to preserve personal files and personal data of judges and employees; lists of court cases to be evacuated, as well as those to be destroyed; the places where such documents will be evacuated and the routes of such movement; issues of information technology evacuation and data preservation; heads of justice bodies are responsible for organizing emergency measures; Parliament should promptly respond to the need for legislative support for the stable functioning of the judicial system; the authorities should ensure the information security of judges and limit public access to registers containing information about them; subjects responsible for the formation of the Supreme Council of Justice to form its composition as soon as possible; an operational headquarters was created at the Council of Judges of Ukraine. The experience of Ukraine and the conclusions made by the authorities regarding the effectiveness of such an algorithm of court work in martial law conditions can be used by European countries.
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Beljo, Mijo, and Hrvoje Mandić. "Background and chronology of the crimes committed by the Army of Bosnia and Herzegovina in the village of Trusina on April 16, 1993." Review of Croatian history 18, no. 1 (December 14, 2022): 403–36. http://dx.doi.org/10.22586/review.v18i1.24297.
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The authors analyze events that have occurred in the municipality of Konjic throughout the March and April of 1993. Special emphasis was placed on crimes committed against the Croatian population of that municipality. In the early morning of April 16, 1993, Army of the Republic of Bosnia and Herzegovina (BiH) committed a war crime in the northern Herzegovinian village of Trusina, where 22 Croatian civilians and captured Croatian Defence Council (HVO) soldiers were killed. This crime was the result of a previously planned attack by the Army of BiH on the Croatian population and the HVO in the Konjic municipality, which began on April 14, 1993. The main attacking forces of the Army of BiH on the village Trusina on April 16, 1993, were members of the Zulfikar Special Purposes Detachment . They were under the direct command of the Supreme Command Staff (SVC) (i.e., General Staff of the Army of BiH) from their formation to just a few days before the crime in Trusina was committed. They have then become an integral part of the 1st Corps of the Army of BiH based in Sarajevo. As an integral part of the 1st Corps, members of the Zulfikar Special Purposes Detachment became the main perpetrators of a previously planned attack and war crime against the Croatian population of Trusina.
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Tuganov, Yuri, and Vladimir Aulov. "Criminological Policy of the Russian Federation: the Concept of Judicial Reform and Justice of the Peace." Russian Journal of Criminology 15, no. 5 (November 25, 2021): 624–36. http://dx.doi.org/10.17150/2500-4255.2021.15(5).624-636.
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The article presents a legal approach to the problem of the influence of the judicial system segment of Russian criminological policy on the effectiveness of the general prevention of deviant behavior. Within this framework, the authors compare the assumptions of the program documents that described the criminological parameters of justice of the peace during its introduction in the contemporary judicial system, and the results achieved by this introduction. By analyzing the Decree of the Supreme Council of the RSFSR «On the Concept of Judicial Reform in the RSFSR», the authors demonstrate that this document was aimed at legitimizing confederative relationships in the Russian Federation with the design of the judicial system of «cooperative federalism» type. The justice of the peace, whose status and jurisdiction are only schematically outlined in the Concept of Judicial Reform, was to play a decorative role in the political and ideological support of the achievement of a far more ambitious goal. The transformation of Russia into a state of «cooperative federalism» with extreme asymmetry of its subjects would have meant the removal of the opportunity for the justices of the peace to perform the criminological function of courts. The introduction of justices of the peace simultaneously with the adoption of their own codes of material and procedural law in the republics of the RSFSR predetermined the creation of legal systems independent of the federal center in each Russian subject and the blocking of the criminological function of the courts. At the same time, a retrospect reference to the legal tradition of the Russian Empire formed an erroneous understanding of Russian justice of the peace as a unified (since 1864) judicial system, and lead to the development of abstract projects that hindered the implementation of the crime prevention potential of justice of the peace. The result of the criminological policy of the Russian Federation in 1991–1996 was the structuring of the court system of the Russian Federation which was different from the model presented in the Concept of Judicial Reform. The conducted research showed that justice of the peace in Russia duly influences crime prevention.
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Revina, I. V., and N. V. Petrov. "IMPROVEMENT OF GUARANTEES FOR THE SUPPORT OF the RIGHTS of MINORs IN CRIMINAL PROCEDURES BY IMPLEMENTing the IDEAS OF JUVENILE JUSTICE: LEGAL ASPECTS." Proceedings of the Southwest State University 22, no. 1 (February 28, 2018): 197–203. http://dx.doi.org/10.21869/2223-1560-2018-22-1-197-203.
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Russia's accession to the Council of Europe and the signing of relevant international agreements contributed to the development of regulations on the rights of a child and branching juvenile law in the Russian legal system. Meanwhile, it should be pointed out that processes of legal regulation in the field of the formation of the legislative basis of juvenile law are in some way incomplete, which is the result of the imperfection of the existing legal acts affecting the rights and interests of minors. The issue of the expediency of creating juvenile justice in Russia is being discussed for a long time in the legal papers and at the legislative level. The provision on the formation of juvenile justice was included in the 1991 Concept of Judicial Reform in the Russian Federation. Later, different authors worked out several draft Laws on Juvenile Justice. At parliamentary hearings in the State Duma, the prospects of creating juvenile courts in the system of courts of general jurisdiction were considered. Meanwhile, such close attention to the indicated problem does not have a significant impact on the increasing child and adolescent crime in the country. The plurality of the above-mentioned legal problems and their multifaceted nature necessitate improvement of justice in relation to minors. This raises a number of theoretical, legal, practical and ethical issues that require studying and adopting relevant decisions at the legislative level. Therefore, studies that allow analyzing the current Russian criminal procedure legislation from the point of view of the possibility of functioning of juvenile justice on its basis relying on international legal standards are really urgent. The criminal procedure legislation in the Russian Federation as a whole is focused on continuous improvement in the context of ensuring the maximum number of procedural guarantees of the legality of criminal proceedings, as well as observance of human rights with the application of their minimum restrictions, including in relation to such category of persons involved in criminal proceedings as minors. In this article, the authors consider the institution of juvenile justice as an additional guarantee of securing the rights of minors in criminal proceedings in Russia, propose the ways to address current and debatable aspects of this problem. The paper analyzes the current criminal procedural legislation, decisions of the Plenums of the Supreme Court of the Russian Federation as well as the judgements of the courts in specific cases concerning the problems of the study. In the study of individual topics of the issue, scientific literature as well as statistical data have been used. The conclusions and proposals made in the work are aimed at improving the current legislation of the Russian Federation and law enforcement practice, and can also be used in the educational process.
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Labetskaya, E. "The Trans-Arctic in the Context of Russian Priorities." World Economy and International Relations, no. 2 (2015): 106–14. http://dx.doi.org/10.20542/0131-2227-2015-2-106-114.
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In terms of the space concept, the prospects of Russia's new formats of global co-operation development through mutually beneficial transnational partnership in the Arctic are analyzed in the article. The possibility of implementation of Russia’s Eurasian and Arctic advantages in the Trans-Arctic as the key element of global connection between Trans-Atlantic and Trans-Pacific spaces is considered. Until now the "Eurasian dividends" for Russia have been associated with strengthening of its positions in the Pacific Asia. However, the scale of Russian socio-economic and naval presence in this area does not allow the country to become a leader. The situation is completely different in the Trans-Arctic, where Russia’s total capacity is equal to that of other Arctic states. Moreover, in the Trans-Arctic the "Eurasian factor" may become an "influence multiplier" for Russia. This refers to Russia’s key role in the connection between Trans-Atlantic and Trans-Pacific through the logistic chain: Northwest Passage – Northern sea route – Eastern Siberia’s river system – Trans-Siberian Railway. The Trans-Arctic may become a "testing ground" for neutralisation of attempts to isolate Russia from global governance, which appeared in G-8 dismantling. The initiation of a new structure with participation of global “extraregional” actors, first of all Russia's strategic BRICS partners, could become its efficient Arctic pivot. Special attention is paid to subjects of the multilevel governance over the Trans-Arctic, to aspects of connection between transnational spaces, to the potential conflictogenity of the Arctic macroregion, and to the problem of the sovereignty concept classical understanding transformation, which appeared in the Arctic context. The relevance of the topic stems from decisions of the RF Security Council special extended meeting (April 2014), which put the "qualitative strengthening" of Russian positions in the Arctic, "preservation of Russian influence" in the region, and "advancing of partners" as major priorities. The tendencies of the Arctic transnationalisation and of the Trans-Arctic formation indicate a serious challenge for the Russian expert community and policy-makers. On one hand, Russia cannot sacrifice its national interests and restrict its rights and powers in the areas, to which its sovereignty and jurisdiction extend. On the other hand, formation of a new global governance regime in the Arctic gives Russia a chance to strengthen its leadership in this polar area, since the socio-economic, political and reputation dividends brought by such regime might be extremely high.
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Łukaszewski, Marcin. "Czy parlament może zmienić mężczyznę w kobietę? Granice i miejsce zasady supremacji parlamentu w brytyjskim porządku konstytucyjnym wobec europejskich procesów integracyjnych (wybrane problemy)." Przegląd Politologiczny, no. 2 (June 19, 2018): 71–82. http://dx.doi.org/10.14746/pp.2013.18.2.6.
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The political system of the United Kingdom of Great Britain and Northern Ireland is of interest to researchers for several reasons. One of the most important motivations certainly involves the unique construction of its Constitution, the content of which is not formulated in a single legal act of a supreme status. This unwritten Constitution encompasses at least four parts. The most important part is undoubtedly constituted by one of three principles of the political system, namely the principle of the sovereignty (omnipotence) of parliament. This principle, which is regarded as a constitutional principle by some and as a principle above the Constitution by others, constitutes the core of British constitutional law. The topic of this paper is an attempt to indicate the boundaries of this principle in the British constitutional order and to place it in relation to remaining principles. The boundaries of this principle have been considered by British constitutionalists on numerous occasions. Considerations on the relation of this principle to the remaining elements of the Constitution have been the subject of interest for courts of law, including the House of Lords, which used to function as the court of last instance in judicial proceedings prior to the 2005 reform. It is worth emphasizing that even the lords/judges frequently disagreed on the boundaries of the principle and even on whether the principle can be examined by any court. There were also views that the principle is only a virtual construct, and even if it had ever applied to the political system at all, it can no longer be referred to, given contemporary European integration processes. The complicated combination of elements of the British constitution with the presence of the United Kingdom in the structures of the European Council and European Union (preceded by the European Community) have produced a number of interpretations of the principle of the omnipotence of the parliament in the new political reality the UK has found itself in. It was the adoption of the European Communities Act 1972, followed several decades later by the adoption of the European Union Act 2011 that led to the discussion on the construction of the British Constitution and either the approval or rejection of the concept that the Constitution of the United Kingdom with its meta-principle should be interpreted anew.
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Huzjan, Vladimir. "Expropriation of feudal property in the interwar period." Review of Croatian history 15, no. 1 (December 20, 2019): 151–63. http://dx.doi.org/10.22586/review.v15i1.9745.
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Prior to the agricultural reform, the free and royal town of Varaždin owned 1.228 jutros of arable land. The agricultural reform divided 1.038 jutros, the army claimed 100 jutros for its needs, whereas only 90 jutros were left under the ownership of the Town. Previous to the agricultural reform, in the war year of 1917, money received from the lease of the land made up more than 5 percent of the town income. However, having entered the new state union and due to the introduction of the agricultural reform as well as new and higher taxes in 1923, the land lease revenue made up barely 0,2 percent of the town budget. A buyer could enter expropriated land of the Town of Varaždin into the land register only when reimbursement had been payed off, and he also had to build a house there within the next three years. Farmers obtained the land on a temporary one-year lease. Having taken everything into consideration, the agricultural reform failed to increase prosperity, on the contrary, it brought along direct financial losses for the Town of Varaždin. Namely, in March 1939, during a Municipal Council sitting members commented that the Town of Varaždin ceased to be the administration centre of the northern Croatia due to the loss of financial directive and county jurisdiction, whereas it also lost significant financial income due to the seizure of large amounts of land for the agricultural reform. For the purpose of illustration, it would be interesting to see where the properties owned by the Town of Varaždin were located; however, due to the large number of cadastral parcels, its drawing is beyond the scope of this paper. Regarding the seniorate possession of the Stari grad, Rudolf II Habsburg gave it to count Toma Erdödy and his heirs who managed the property up to the first half of the 20th century. As opposed to the property belonging to the Town of Varaždin, in this case, the number of cadastral parcels is smaller and therefore it was be possible to make an illustration depicting the surface it occupied in the area of the Town of Varaždin. The seniorate possession belonging to the counts of Erdödy was smaller than the then Town of Varaždin and consisted of 1.091 jutros of land. After the agrarian reform had been conducted, 825 cadastral jutros remained. Moreover, the process caused conflicts within the Erdödy family and short time after they vanished from Varaždin.
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Kaminska, Ilona. "FUNCTIONAL PRINCIPLES OF EU LAW IN THE LAW ENFORCEMENT PRACTICE OF THE COURT OF JUSTICE." Visnyk of the Lviv University. Series Law 71 (December 18, 2020): 11–23. http://dx.doi.org/10.30970/vla.2020.71.011.
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The article is devoted to the study of the principles of law that determine the fundamentals of the EU functioning. The concepts of general principles of law, international principles of law as well as principles of EU law are distinguished. The principles of EU law are classified into international, democratic, economic, organizational, functional, sectoral. The study of the principles of EU law is important for Ukrainian science in the context of Ukraine's integration into the EU. The results of the research will help the judiciary to integrate the principles of EU law into its case law. The Constitutional Court of Ukraine and the Supreme Court will play an important role in the integration of EU law into the national legal order. The following definition of the concept is proposed: the principles of EU law are the fundamental ideological principles of the EU legal system, which determine legal status of the EU as a subject of law and international relations; legal status of EU citizens; basic principles of organization and functioning of the EU; areas, limits and mechanisms for exercising the powers of the EU institutions; principles of legal regulation in the areas that fall within the competence of the EU. The principle of conferral is singled out as a fundamental functional principle from which other principles of EU law originate, namely: the principle of coherence of policies and actions; the principle of open EU cooperation with Member States; the principle of subsidiarity; the principle of proportionality; the principle of open cooperation between EU institutions; the principle of institutional balance. Their relationship and the mandatory nature of compliance are established. The operation of any of the institutions contrary to the principle of conferral or any of the principles named is a ground for appealing against such actions before the Court of Justice. According to Article 263 TFEU, the Court of Justice has the jurisdiction to review the legality of legislative acts, decisions or actions of the European Council, the European Parliament, the European Commission and the European Central Bank, as well as bodies, offices and agencies intended to produce legal effects vis-à-vis third parties. The content of the functional principles of EU law is revealed and the order of their application by the Court of Justice of the EU is analyzed on the example of one of the decisions. The classification of principles of EU law on a source of their placement is offered. In the system of principles of EU law should also be distinguished: 1) the principles of law that follow from the provisions of international law (the principle of peaceful cooperation and the principles of the UN Charter); 2) the principles of law derived from the principles of market economy and social policy (the principle of economic, social, territorial unity of the Member States and solidarity between them); 3) the principles of law derived from democratic principles (principle of respect for human dignity, freedom, representative democracy, equality, rule of law, respect for human rights, including the rights of minorities). Therefore, in a general sense, the system of principles of EU law includes: international principles of law, general (democratic principles of law, economic principles, principles of EU law) (organizational, functional, sectoral). KEYWORDS Key words: general principles of law, principles of EU law, EU Court of Justice, the principle conferral, EU goals
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Smith, Alastair David. "Some Aspects of South African Cross-Border Insolvency Relief: The Lehane Matter." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (December 14, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1221.
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The Lehane matter wound its way through the Cape Provincial Division of the High Court and reached the Supreme Court of Appeal. Mr Dunne, the debtor, lived in the United States of America and ran an international web of companies. One of these companies, Lagoon Beach Hotel, operated a Cape Town hotel. Mr Dunne later filed for chapter 7 bankruptcy in the United States and soon was also bankrupted by the Irish High Court. The Irish official trustee, Lehane, applied to the Cape court for the recognition of his status as a foreign trustee and for an anti-dissipation order preventing the disposal of South African property to which Mr Dunne was connected. Lehane succeeded at every stage of the South African proceedings.Initially, Steyn J recognised Lehane as the trustee as though a sequestration order had been granted against Mr Dunne in terms of the Insolvency Act 1936, thus diverging from the approach taken by the Judicial Committee of the Privy Council in Singularis Holdings Ltd v PricewaterhouseCoopers (Bermuda). Subsequently, Yekiso J's approach to applying the Insolvency Act without derogating from its generality opens up the possibility of applying section 21 of the Insolvency Act to significant effect against Mrs Dunne's South African property. Yet the territorialist restriction in Yekiso J's order that only creditors with causes of action which arose in South Africa were entitled to claim against the insolvent estate excluded many foreign creditors, even those from Ireland.Of the many issues raised by the Lagoon Beach Hotel company, two that are chosen for discussion in this case note are the possible application of the automatic stay under section 362 of the United States Bankruptcy Code 1978 to the South African proceedings, and the standing of Lehane because of the litigants' dispute whether Mr Dunne was domiciled in the United States or Ireland.Yekiso J and subsequently Leach JA held that the American automatic stay did not govern the South African proceedings. Significantly, the American and the Irish trustees were co-operating with respect to proceedings in Ireland and South Africa that involved Mr Dunne. And Leach JA deftly deferred to the Irish court the decision regarding the application of the American automatic stay and its relevance to the Irish proceedings.As for the disputed domicile of Mr Dunne, Yekiso J and Leach JA both considered that Mr Dunne had retained his Irish domicile. The established principles of recognising a foreign domiciliary trustee before he might deal with South African property, whether movable or immovable, were confirmed. Leach JA, however, went on to discuss the assistance that might cautiously be accorded to Lehane if Mr Dunne were domiciled elsewhere than in Ireland. Even then, the relevance of domicile could not be gainsaid.In the comments, it is pointed out that trustees appointed in countries other than the insolvent's domicile may still be recognised by South African courts. The insolvent's submitting to the jurisdiction of a court that is not the court of his domicile is discussed; on its facts, the cited authority does not bear out the relevant principle. And the possibility of recognising non-domiciliary trustees in exceptional circumstances and for exceptional convenience is explored. The cases cited in support of this principle are shown to yield differing results.
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Casey, Peter M. "The Contract Dispute Act's Statute of Limitations." Texas A&M Journal of Property Law 5, no. 1 (October 2018): 57–105. http://dx.doi.org/10.37419/jpl.v5.i1.4.
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The Contract Disputes Act of 1978 (“CDA”) governs disputes “relating to a contract” between federal executive agencies and contractors. It establishes the process for parties to seek administrative remedies for claims under covered contracts. It also limits the right to judicial review of agency decisions to specific “boards of contract appeals” (“BCA”) and the United States Court of Federal Claims (“COFC”). According to the CDA’s sponsors, Congress enacted the law to bring reliability and order to a hodgepodge of conflicting and inconsistent rules for adjudicating contract disputes used by the various executive agencies. The law aimed to simplify the process for resolving agency-contractor disputes in light of the growing complexities and importance of Government procurement programs. In introducing the bill, its primary sponsor underscored the need for an efficient adjudicatory process in which both Government agencies and the contracting industries had confidence: One cannot dispute the almost universal expressions of industry and the practicing bar that the system needs change. A good remedies system is a major element in good procurement, and a good system depends not only on fairness and justice, but also on whether the people who are subject to the system believe it is fair and just. In some respects, the CDA fell short of providing a comprehensive framework for Government contract dispute resolution and its stated aim to “provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes.” In particular, the Act did not prescribe any period of time for a party to submit an administrative claim for monetary or other relief after occurrence of the breach or other injury. After sixteen years and many complaints from both Government agencies and contractors about dealing with stale claims, Congress finally adopted a CDA limitations period as part of the Federal Acquisition Streamlining Act of 1994 (“FASA”). That statute of limitations, now codified at 41 U.S.C. §7103(a) (4), provides: Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim. Decisions by BCAs and Federal Circuit courts under the CDA statute of limitations were relatively rare in the several years following the amendment. Since the early 2010s, however, the number of cases has skyrocketed. This spike in limitations disputes undoubtedly is attributable to the massive increase in military procurement following September 11, including unprecedented spending for goods and services in Afghanistan, Iraq, and other conflict zones. The sheer volume of defense contracts and contractual activity often made it difficult for the parties to recognize and submit claims within six years of the occurrence of the underlying facts. In a relatively short period of time, the tribunals with jurisdiction over defense contract litigation had to decide a large number of limitations disputes with little guidance from direct precedent or legislative or regulatory history. These circumstances have led to case law that is not always consistent in analysis or reconcilable in outcome. Part I of this Article provides an overview of the architecture and key features of the CDA. Part II examines the salient legislative and regulatory history surrounding the adoption of the CDA statute of limitations. Part III discusses when a CDA claim “accrues” and triggers the six-year time period for submitting a claim. In Part IV, we review some of the major issues that arise under the statute in significant and recurrent types of contractor-agency disputes. Part V concludes with a brief evaluation of whether the CDA statute measures up to the “long tradition of judicial authority to formulate rules ensuring fair and predictable enforcement of statutes of limitations.” Increasing litigation about limitations periods are challenging CDA tribunals to develop coherent and consistent criteria for parties to determine when the six-year period begins to run on their potential claims. Arguably, the trial judges have made that challenge more difficult by attempting to impose precedent under the Tucker Act’s non- discovery-accrual standard on FAR 31.201’s “discovery” rule language. That challenge has been compounded by a general tendency of the BCAs and COFCs to find that claims do not accrue until the claimant possesses the information on which the claim is based. It is reasonable to conclude that the decisional law has not matured to the ideal, and perhaps, idealistic, state of consisting of “rules ensuring fair and predictable enforcement of statutes of limitations.” It may also be observed that, despite the FAR Council’s express intent and “knew or should have known” definition of “accrual” in FAR 33.201, the decisional law to date has not developed or applied typical discovery rule analysis in examining the facts of the cases or in judgments whether claims are timely or untimely. With rare exception, the decisions have not dismissed as untimely claims based on when a claimant “should have known” or been aware of the relevant facts where the claimant did not have actual knowledge or possess the information showing that it had a claim. As a result, the precedent offers virtually no guidance on issues traditionally fundamental to a “reasonably should have learned” analysis, which include the following: (1) What information is sufficient to put a claimant on “notice”? (2) Does “notice” itself trigger the period (as Gray suggests), or does the statute initiate when a diligent claimant discovers the facts, or reasonably would have discovered the facts? (3) When and under what circumstances does a claimant have an affirmative duty to make a reasonable inquiry aimed towards “discovery” of potential claims? (4) When and under what circumstances may a claimant rely on the other party’s contractual duties to provide information in deter- mining the nature and extent of any “diligence” expected of the claimant? On a more fundamental level, however, the cases have never ad- dressed whether the FAR’s discovery rule definition of “accrual” appropriately serves as controlling over the definition of the otherwise undefined term “accrual” in section 7103(4)(a) of the CDA. The FAR Council undertook to define the word “accrue” in Section 4(a) pursuant to its general authority to promulgate regulations “as may be necessary to implement this Act,” and not in response to any specific delegation. The failure to examine whether the FAR Council’s adoption of its definition of “accrue” is sufficient under the recent Supreme Court decision relating to proper construction of statutory limitations provisions and, separately, deference to federal agencies in implementing regulations, raises questions of whether any “discovery rule” should apply in CDA statute of limitations cases. In several recent cases, the Supreme Court has sent a strong signal that the courts should not “graft” a “discovery rule” on the term “accrues” or the like in a federal statute of limitations absent “textual, historical, or equitable reasons” to do so. In Gabelli v. SEC, the SEC in 2008 filed a civil enforcement action against defendants for securities law violations between 1999 and 2002 and sought civil penalties, which are subject to a statute of limitations that require an action to be brought “within five years from the date when the claim first accrued.” The SEC argued that the statute is subject to a “discovery rule,” delaying accrual until it discovered or “could have been discovered with reasonable diligence.” The Court rejected that argument: “In common parlance a right accrues when it comes into existence . . . .” . . . Thus the “standard rule” is that a claim accrues “when the plaintiff has a complete and present cause of action.” . . . That rule has governed since the 1830’s when the predecessor to §2462 was enacted. . . . And that definition appears in dictionaries from the 19th century up until today. See, e.g., 1 A. Burrill, A Law Dictionary and Glossary 17 (1850) (“an action accrues when the plaintiff has a right to commence it”); Black’s Law Dictionary 23 (9th ed. 2009) (defining “accrue” as “[t]o come into existence as an enforce- able claim or right”). The Court added: “[T]he cases in which ‘a statute of limitation may be suspended by causes not mentioned in the statute itself . . . are very limited in character, and are to be admitted with great caution; other- wise the court would make the law instead of administering it.’” At a minimum, the CDA forums will need to address, if and when any litigant raises the question, whether “accrues” in section 7103(a) (4) (A) means (1) when the claimant “knew or should have known” of the cause, or (2) in light of Gabelli and other recent precedent, when the claimant “has a complete and present cause of action” regardless of the claimant’s state of mind. In this regard, while the FAR Council and the CDA forums have relied significantly on Tucker Act precedent, neither appears to have considered that, as in the CDA, the Tucker Act does not define “accrue,” and since its enactment, the federal courts consistently have construed “accrue” in the Tucker Act to mean the date when “when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” The Supreme Court, moreover, recently clarified that under the Chevron deference analysis, “deference is not due [a regulatory definition of a statutory term] unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity. . . . Where . . . the canons supply an answer, ‘Chevron leaves the stage.’” Notably, there is no indication in the record that the FAR Council determined that the CDA statute’s use of “accrue” was “ambiguous,” or adopted its “discovery” definition standard to clarify an ambiguity. On the contrary, it noted the “discovery requirement must remain,” notwithstanding little support and much objection among commentators, because “many pricing defect cases have their original events at the beginning of the contract or on contract award, but often cannot be discovered by the Government until years later.” The CDA forum’s “discovery” rule, and the CDA forum’s default use of that definition, may be vulnerable in light of Gabelli, a growing hostility to Chevron deference, and the regulatory record.
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Svjatkovski, Vadim. "Vene valitsuse tollipoliitika 18. sajandi esimesel poolel ja selle rakendamine Narvas [Abstract: Customs Policies of the Russian Government in the first half of the Eighteenth Century and their Implementation in Narva]." Ajalooline Ajakiri. The Estonian Historical Journal 167, no. 1 (December 31, 2019): 37–68. http://dx.doi.org/10.12697/aa.2019.1.02.
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Abstract: Customs Policies of the Russian Government in the first half of the Eighteenth Century and their Implementation in Narva
The 18th century in Northern Europe began with a long war that profoundly altered the correlation of forces in the Baltic Sea region. During the war, the Russian authorities carried out large-scale reforms, the objective of which was to modernise the Russian state. The war and the reforms called for large expenditures, and the areas conquered during warfare were treated as a source of revenue, where customs duties could be imposed and collected. The authorities implemented a set of measures to increase state revenues, and the replacement of the old export customs duty system by a new one was among those measures. Russian authorities extended and imposed these reforms on Narva and Vyborg, which were annexed by the Russian state at the time. Though there is a sufficient number of research papers on the 18th century Russian customs duty system, they mainly focus on the subject of either the duty system in general or its implementation in St Petersburg or Arkhangelsk. Less attention has been paid to Narva in this matter. The subject of this article is the examination of the Russian government customs policy in the first half of the 18th century and its implementation in Narva. The causes of the government’s customs policy measures will be researched and the changes that took place will be noted. The object of this article is to analyse the formulation and introduction of customs tariffs in the first half of the 18th century and also to clarify how consistently Russian customs duty policy was implemented in Narva. Particular cases in relation to the introduced tariffs will be examined and the consequent steps taken by the government to resolve them will be observed. Also, incoming receivables of the city treasury received from half of the portorium duty in periods when different tariffs were in effect will be discussed and compared. In the course of this research, records preserved in the Estonian National Archives were consulted: i.e., orders from the Russian government to the Narva customs office, and statistical data on customs duty income.
It has become evident from this research that the new customs tariff was introduced in Narva in 1724 because the authorities wished to promote the recently built St Petersburg port, while at the same time hindering competition from Narva in trade. By comparison, hitherto existing tariffs from the era of Swedish rule remained in effect nearly throughout the entire 18th century in other Estonian and Livonian trading cities. The Russian authorities consistently extended the subsequent tariffs of 1731 and 1757 to Narva. Thereby the Russian government altered the customs system that had been in effect in the era of Swedish rule, setting Narva apart from other Baltic trading cities. In this way, Russian customs policy affected Narva considerably more than any other Baltic trading city, and these alterations influenced the operations of the Narva customs office and the customs duties collected. The tariff of 1724 was by its nature protectionist and therewith high rates were set up.
Depending on the capability of Russian enterprises to supply the state with commodities, the import rate amounted to 37.5, 25 and 12.5 kopecks from a rouble ad valorem. At the same time it was necessary to pay customs duties in standard weight thalers at the compulsory exchange rate of 50 kopecks for a thaler. Nonetheless, the actual price of a thaler was higher than the price of a rouble; consequently the real import rate corresponded to 75, 50 and 25 per cent ad valorem. The required payment of the duty in thalers stemmed from the Russian government’s need for silver. The fact that imported commodities came from the west, where roubles were not in use, also contributed to this requirement.
After the death of Peter I, the government’s point of view changed. The ruling circles realised that Russian industry was not yet sufficiently advanced and was unable to completely satisfy the state’s needs. Moreover, the privileges granted to entrepreneurs did not always contribute to the development of enterprises because their owners abused the rights they had obtained and produced defective products. Additionally, such measures hindered trade by also depriving Russian consumers of the opportunity to buy essential products. On the whole, this also proved harmful for the state, since it furnished favourable conditions for the development of smuggling. The written petitions of foreign and Russian merchants to the Collegium of Commerce, the Senate and Empress Catherine I show that customs duties rates were too high. Therefore it became a necessity to decrease the tariff rate that had been introduced in 1724. In 1726, the Supreme Privy Council decided to establish a trade committee to improve commerce and work out a new customs tariff. As a result of the committee’s activity, the new customs tariff was published in 1731. This tariff considerably reduced the import rate. The previous 75, 50 and 25 per cent import rates were decreased to 20, 10 and 5 per cent, respectively. The first rate was to be levied on commodities that were produced sufficiently in Russia, the second rate was for goods that were produced in relatively small quantities, and the latter rate was for goods that were in short supply in Russia. The customs tariff of 1731 was in force until 1757, when it was replaced with a new one that was also protectionist, similarly to the tariff of 1724.
During the era of Swedish rule, Narva was granted the right to half of the portorium duty, i.e. the accrued revenue of the port duty. The Russian authorities preserved this privilege of Narva; however, the portorium was allotted according to different principles than before. Thus, in the era of Swedish rule, Narva received half of the portorium from all articles of commerce, whereas under Russian rule, the portorium from only a certain portion of commodities was allotted to the city.
Customs tariffs, particularly in 1724, were implemented in haste, without the respective preliminary notification. As a result, merchants could not prepare the necessary documents or modify contracts in time. For that reason, the authorities admitted numerous exceptions and gave in to merchants, replacing trade prohibitions with temporary permissions.
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"Effective Remedy for Excessive Length of Proceedings: A Macedonian Perspective." Access to Justice in Eastern Europe 4, no. 1 (March 1, 2021): 61–78. http://dx.doi.org/10.33327/ajee-18-4.1-a000046.
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In the spirit of Latin maxim Ubi jus, ibi remedium, it is claimed that the right to an effective remedy permeates the entire European Convention human rights system, giving it a real and effective dimension. An argument is also made for a right to a trial within a reasonable time, meaning that an excessive length of proceedings can be remedied as well. As the principle of subsidiarity lies at the heart of the jurisdiction of the European Court of Human Rights, the establishment of an effective remedy before the national bodies/authorities is required. In the light of these general considerations, while celebrating the 70th anniversary of the European Convention of Human Rights, the underlying idea of this article is to highlight the fundamental standards of assessing the effectiveness of the remedies with regard to the length of proceedings established in European Court of Human Rights case-law. The focus is placed on the development, current status and functioning of the remedy for excessive length of proceedings in North Macedonia as a Member State of the Council of Europe. The article attempts to answer the question of whether the legal remedy for excessive length of proceedings that exists in Northern Macedonia can be considered effective within the meaning of the European Convention of Human Rights and the European Court of Human Rights case-law. Keywords: a right to a trial within a reasonable time; excessive length of proceedings; undue delays; an effective remedy; an effective length-of-proceedings remedy; ECtHR case-law; jurisprudence of the Supreme Court of North Macedonia.
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"Regina (Akarcay) v. Chief Constable of the West Yorkshire Police." International Law Reports 201 (2023): 423–43. http://dx.doi.org/10.1017/ilr.2022.54.
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423Relationship of international law and municipal law — Treaties — Treaty of Guarantee between United Kingdom, Turkey, Greece and Cyprus, 1960 — Need for incorporation of international treaties — Effect of United Nations Security Council Resolutions 541 and 550 in international and domestic lawRecognition — Recognition of Northern Cyprus — Non-recognition of Northern Cyprus by United Kingdom — Acts amounting to recognition — Co-operation with law enforcement authorities of unrecognized entityJurisdiction — European Arrest Warrant — Jurisdiction over individuals from unrecognized States — Jurisdiction for crimes committed within England and Wales — Jurisdiction under European Convention on Human Rights, 1950Human rights — Human Rights Act 1998 — European Convention on Human Rights, 1950 — Article 3 of European Convention prohibiting torture and inhuman or degrading treatment or punishment — Article 6 of European Convention providing right to a fair trial — Conditions within prisons and courts of Northern Cyprus — Evidence relevant in European Convention on Human Rights claims — Extent of territorial jurisdiction — Whether claimant within jurisdiction of United Kingdom for purposes of European Convention — Whether claimant being granted permission to challenge provision of material to Northern Cyprus police on this ground — The law of England
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"Local Authority B v. X, V and T; (Re T)." International Law Reports 201 (2023): 444–74. http://dx.doi.org/10.1017/ilr.2022.55.
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444States — Recognition — Turkish Republic of Northern Cyprus (“TRNC”) — Whether TRNC a Member State for purposes of European Council Regulation No 2201/2003Jurisdiction — Turkish Republic of Northern Cyprus — Whether TRNC capable of being a country of habitual residence for determining jurisdiction in care proceedings — Whether child can retain habitual residence when parent deported from country — Effect of having no place of habitual residenceTreaties — Interpretation — Application — Protocol No 10 of the 2003 Act of Accession of Cyprus to European Union — Effect of suspension of acquis communautaire to the TRNC — The law of England
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motiaurrahman. "دور المحكمة الشرعية الفيدرالية في تطبيق الشريعة الإسلامية في باكستان." الدراسات الإسلامية 56, no. 4 (March 27, 2022). http://dx.doi.org/10.52541/adal.v56i4.1785.
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Soon after the creation of Pakistan, the Islamization process started. The Objectives Resolution 1949, and the Islamic provisions of the constitutions of Pakistan 1956, 1962, and 1973 provided sufficient materials for the Islamization of laws in Pakistan. The Council of Islamic Ideology examined the laws and submitted its recommendations to the Parliament. The Federal Shariat Court declared several laws repugnant to the injunctions of Islam. The Federal Shariat Court was established on May 26, 1980. It had the mandate to strike down existing as well as future laws, except the constitution, Muslim Personal Law, any law relating to the procedure of any court or tribunal. Fiscal laws were debarred for ten years from the jurisdiction of this Court. The Court was also vested with the powers of hearing appeals or revisions against the decisions passed by any criminal court relating to the enforcement of ḥudūd. Appeals against the judgments of the Federal Shariat Court can be filed before the Shariat Appellate Bench of the Supreme Court of Pakistan. The paper concludes that the Federal Shariat Court is unique in judicial history. It played a significant role in introducing Islamic laws in Pakistan and offered solid interpretations to various laws to remove the ambiguity in the laws. It critically evaluated a considerable number of laws and directed the government to Islamize them.
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"Prize, procedure and costs, Determination of a prize case according to romano-canonical procedure by the Admiralty Court and the Great Council of Malines during the English-Scottish War of 1547 Prijs, procedure en proceskosten De afhandeling van een prijszaak volgens de Romano-canonieke procedure voor de Admiraliteit en de Grote Raad van Mechelen tijdens de Engels-Schotse oorlog van 1547." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 71, no. 3-4 (2003): 337–57. http://dx.doi.org/10.1163/157181903322708184.
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AbstractThe present article, dedicated to Prof. J.Th. De Smidt on the occasion of his 80th birthday, discusses the case of Jacques du Gal, a French merchant, and the Netherlands privateers Claes de Doot and Meeus Pietersz from Flushing. The former departed from the harbour of Dieppe in France with one vessel, headed for Scotland. During this journey, on the open seas, Du Gal bought an English ship, denoted in the records as the Mary Dertenny. This ship had been taken by the Scottish privateers Jehan Edinestone and Jehan Gourlat. Near the Scottish coast, the ships of Du Gal were boarded by De Doot and Pietersz. After the latter had returned with their prizes to their harbour of origin, Flushing in the Low Countries, the Admiralty Court of Veere took jurisdiction of the case. It decided that Du Gal's own ship should be returned to him, but it declared that the Mary Dertenny was good prize. On appeal, however, the Great Council of Malines, the then supreme court of the Low Countries, ruled that De Doot and Pietersz should also return the Mary Dertenny to Du Gal. The case of Du Gal v. De Doot and Pietersz is of interest, not only because it contains detailed information on the costs and the procedural steps to be taken before the Admiralty Court in a prize case, but also because it proves that, apart from legal arguments, diplomatic considerations may have been of importance when deciding prize cases before courts of law.
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Monereo Pérez, José Luis. "Derechos fundamentales y prevención de riesgos en el trabajo en el contexto crítico de la Pandemia Covid-19." Revista de Jurisprudencia Laboral, April 16, 2021. http://dx.doi.org/10.55104/rjl_00228.
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Esta sentencia del Tribunal Supremo versa la Tutela de los derechos fundamentales a la vida, salud y prevención de riesgos en el trabajo ante la situación de riesgo creada por la Pandemia Covid-19 en el ámbito de trabajo. Se confirma la estimación parcial de la demanda interpuesta por el sindicato Ertzaintzaren Sindikatu Abertzale Nazionala (ESAN) contra la Consejería de Seguridad del Gobierno Vasco en materia de derechos fundamentales y prevención de riesgos laborales, que declaró la obligación de aquella Consejería de suministrar a todos los efectivos de la Ertzaintza determinados medios de protección frente a la Covid-19. Existe el derecho del trabajador y el correlativo deber del empleador de disponer de los medios suficientes. Por otra parte, se insistirse, así, en la competencia «plena» de la jurisdicción social en materia de prevención de riesgos en el trabajo (STS, 4a, 14 de octubre 2014, rec. 265/2013, reiterada por otras posteriores, y STS, Pleno Sala 4a; 483/2019, 24 de junio de 2019, rec. 123/2018), aun cuando los afectados sean personal funcionarial o estatutario (y no laboral) de la Administración empleadora. El Derecho regulador de la Prevención de Riesgos en el Trabajo genera la vis atractiva completa o plena de la jurisdicción social con independencia del estatuto regulador público o privado de la prestación de servicios profesionales. This judgment of the Supreme Court deals with the protection of the fundamental rights to life, health and the prevention of risks at work in the face of the situation of risk created by the Covid-19 pandemic in the workplace. The partial estimate of the complaint filed by the union Ertzaintzaren Sindikatu Abertzale Nazionala (ESAN) against the Basque Government Security Council on fundamental rights and prevention of labor risks is confirmed, That it declared the obligation of that Council to provide all Ertzaintza personnel with certain means of protection against Covid-19. There is the right of the worker and the correlative duty of the employer to have sufficient means. In addition, emphasis should be placed on the "full" competence of the social jurisdiction in the field of occupational risk prevention (STS, 4a, 14 October 2014, rec. 265/2013, reiterated by subsequent ones, and STS, Plenary Hall 4a; 483/2019, 24 June 2019, rec. 123/2018), even if those affected are civil service or statutory (and non-labor) staff of the Employer Administration. The Regulatory Law on Risk Prevention in the Job generates the full or complete attractive vis of the social jurisdiction regardless of public or private regulatory status the provision of professional services.
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Souza, José Patriarca Brandão, and Rômulo Guilherme Leitão. "Questões políticas e Supremo Tribunal Federal: da autolimitação ao moralismo." Revista da Faculdade de Direito 1, no. 39 (December 31, 2018). http://dx.doi.org/10.22456/0104-6594.84631.
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RESUMOO presente artigo trata das questões políticas no âmbito do Supremo Tribunal Federal a partir de uma perspectiva histórica da matéria. Em que pese a tripartição das funções do Estado, algumas razões históricas levaram ao modelo atual de jurisdição constitucional no Brasil, sendo possível identificar que, desde a Primeira República (1889-1930), o Poder Judiciário é provocado a se manifestar acerca dos limites de sua atuação em temas dessa natureza. Com a promulgação da Constituição de 1988, sob o prisma de uma nova democracia, o quadro institucional brasileiro foi substancialmente alterado a partir do novo paradigma constitucional, ao qual foi atribuído um papel estratégico ao Poder Judiciário conferindo-lhe autonomia funcional com o intuito de impedir que o Direito continuasse a ser instrumentalizado. Dois momentos serão analisados neste trabalho: i) os habeas corpus 300 (1892), 1063 (1898), 1073 (1898) e a obra clássica O Direito do Amazonas ao Acre Setentrional (1910); e ii) a atuação do Supremo Tribunal Federal na Ação Direta de Inconstitucionalidade (ADI) 5526 (2016) e nas Ações Cautelares números 4039 (2015), 4070 (4010) e 4327 (2017), que determinaram o afastamento e até prisões de parlamentares federais entre 2015 e 2017. O trabalho busca discutir se o Supremo Tribunal Federal mantém em aberto uma questão constitucional histórica – a delimitação da sua atuação no tema denominado “questões políticas” – ou optou por justificar o avanço nas atribuições privativas do Congresso Nacional a partir de uma perspectiva moralista. PALAVRAS-CHAVEPoder Judiciário. Questões políticas. Ativismo judicial. Democracia. Moralismo. ABSTRACTThis article examine the "Political question doctrine" within the scope of the Supremo Tribunal Federal (Federal Supreme Court) from a historical view of the matter. Despite the tripartite functions of the State, some historical reasons have led to the current model of constitutional jurisdiction in Brazil, and it is possible to identify that, since the First Republic (1889-1930), the Judiciary has been led to express its limits on its nature. With the promulgation of the 1988 Constitution, under the prism of a new democracy, the Brazilian institutional framework was substantially altered from the new constitutional paradigm, which was assigned a strategic role to the Judiciary, granting it functional autonomy in order to prevent that the law continued to be instrumentalized. Two moments will be analyzed in this work: i) habeas corpus 300 (1892), 1063 (1898), 1073 (1898) and the classic work The Law of the Amazon to the Northern Acre (1910); and (ii) the actions of the Federal Supreme Court in the Direct Action of Unconstitutionality (ADI) 5526 (2016) and in the Precautionary Actions number 4039 (2015), 4070 (4010) and 4327 (2017), which determined the removal and even arrests of members of parliament federal courts between 2015 and 2017. The paper seeks to discuss whether the Federal Supreme Court holds open a historical constitutional issue - delimiting its action on the theme called "political issues" - or has chosen to justify the advance in the exclusive attributions of the National Congress from from a moralistic perspective. KEYWORDSJudiciary Branch. Political issues. Judicial activism. Democracy. Moralism.