scholarly journals THE JUSTICIABILITY OF RELIGION

2017 ◽  
Vol 32 (2) ◽  
pp. 285-310
Author(s):  
Satvinder S. Juss
Keyword(s):  
Supreme Court ◽  
Objective Assessment ◽  
Belief System ◽  
Public Law ◽  
Religious Institutions ◽  
Religious Institution ◽  
The Public ◽  
The Supreme Court ◽  
The Uk ◽  
Court Of Appeal

AbstractInShergill & Others v. Khaira & Others[2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of theNirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. InShergillthe Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). ButShergillalso went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.

The UK courts and EU law post-Brexit

2021 ◽  
Vol 20 (3) ◽  
pp. Christopher-Vajda
Author(s):  
Christopher Vajda
Keyword(s):  
Supreme Court ◽  
Transition Period ◽  
Case Law ◽  
Eu Law ◽  
National Courts ◽  
The Supreme Court ◽  
The Future ◽  
The Status ◽  
The Uk ◽  
Court Of Appeal

Following the expiry on 31 December 2020 of the ‘transition period’ under the UK/EU Withdrawal Agreement, the relationship between UK and EU law had changed. Whilst much EU legislation at that date will continue to apply in UK law as ‘retained EU law’ and judgments of the EU courts handed down before that date will remain binding on UK courts as ‘retained EU case law’, the Court of Appeal and Supreme Court can depart from that case law. Whilst EU court judgments handed down after that date are not binding on UK courts, they may be taken into account. This article considers both the status of EU retained case law and when the Supreme Court and Court of Appeal may depart from it, and the future of EU law that is not ‘retained EU case law’ and how judgments of the European Courts and national courts of its Member States may influence UK judges in the future.

scholarly journals DOCTRINAL SANCTION AND THE PROTECTION OF THE RIGHTS OF RELIGIOUS ASSOCIATIONS: ECCLESIA DE LANGE v THE PRESIDING BISHOP OF THE METHODIST CHURCH OF SOUTHERN AFRICA (726/13) [2014] ZASCA

2016 ◽  
Vol 19 ◽  
Author(s):  
Shaun De Freitas
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Southern Africa ◽  
Religious Institutions ◽  
Methodist Church ◽  
Religious Doctrine ◽  
The Supreme Court ◽  
Religious Associations ◽  
Sexual Conduct ◽  
Court Of Appeal

Scholarship on the protection of religious rights and freedoms in the context of religious associations in South Africa has gained in momentum since the decision by the Equality Court in Johan Daniel Strydom v Nederduitse Gereformeerde Gemeente Moreleta Park some years ago. Emanating from this were diverse scholarly insights on what the parameters of religious associations should be, with specific focus on sexual conduct, religious doctrine and membership of religious associations. The South African judiciary has not been confronted with a similar challenge since the decision. However, with the advent of the judgment by the Supreme Court of Appeal in Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa in 2014, questions as to the parameters of the rights of religious associations in the context of sexual conduct and religious doctrine again present themselves. This article consequently analyses the mentioned judgment by the Supreme Court of Appeal to further an understanding of the parameters of associational rights of religious institutions against the background of a truly plural and democratic society, as supported by the Constitution of South Africa.

scholarly journals Crown act of state and detention in Afghanistan

2020 ◽  
Vol 71 (2) ◽  
pp. 109-133
Author(s):  
Jane Rooney
Keyword(s):  
Supreme Court ◽  
Armed Conflict ◽  
Public Law ◽  
Private Law ◽  
The Public ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
Uk Supreme Court ◽  
The Uk

The Serdar Mohammed litigation signalled a decisive change in judicial attitude towards scrutiny of extraterritorial executive action in armed conflict. The most significant indicator of a change in judicial attitude was the reinstatement of the act of state doctrine in the private law claim in tort. Act of state bars tort claims against the Crown when the Crown acts outside of its territory. The UK Supreme Court characterised act of state as a non-justiciability doctrine. The article argues that the UK Supreme Court exercised extreme deference in its adjudication of the act of state in the private law claim. This deference was then mirrored in the reasoning employed in the public law claim under the Human Rights Act 1998, departing from international and domestic standards on detention in armed conflict.

Morrisons off the hook as employers welcome clarity on vicarious liability for data breach

2020 ◽  
Vol 15 (7) ◽  
pp. 504-506
Author(s):  
Emma Flett ◽  
Jenny Wilson ◽  
Rebecca Gover
Keyword(s):  
Supreme Court ◽  
Causal Chain ◽  
Cautionary Tale ◽  
Vicarious Liability ◽  
The Supreme Court ◽  
Protection Legislation ◽  
Uk Supreme Court ◽  
The Uk ◽  
Data Controller ◽  
Court Of Appeal

Abstract The UK Supreme Court has granted the appeal of supermarket chain WW Morrison Supermarkets plc (Morrisons), finding that the Court of Appeal had misunderstood a number of the governing principles of vicarious liability. Considering Morrisons’ liability afresh, the Supreme Court clarified that the motive and authorized acts of the wrongdoing employee are highly material to a finding of vicarious liability, whilst a causal chain of events is not. Whilst Morrisons’ victory is a welcome clarification on the law of vicarious liability, data controllers should take note: had Morrisons not been a sophisticated data controller paying particular attention to its obligations under data protection legislation, the outcome would likely have been more of a cautionary tale.

scholarly journals Collective proceedings in the Competition Appeal Tribunal: taking stock and looking ahead

2019 ◽  
Vol 18 (3) ◽  
pp. 104-115
Author(s):  
Ricky Versteeg ◽  
Alexandra Malina
Keyword(s):  
Supreme Court ◽  
Policy Implications ◽  
Collective Actions ◽  
Appellate Courts ◽  
The Past ◽  
The Supreme Court ◽  
Opportune Time ◽  
The Uk ◽  
Key Aspects ◽  
Court Of Appeal

A new collective actions regime for competition damages claims was introduced in the UK in 2015. Although seven proposed collective proceedings have been brought since that time, none have, as yet, continued beyond the certification stage, and no further cases are likely to proceed to a full certification hearing pending an appeal to the Supreme Court in the Merricks v Mastercard proceedings in 2020. It is, therefore, an opportune time to take stock of the new regime. This article explores the development of the regime to date, considers what lies ahead, and assesses the overall status and progress of the regime. It is suggested that the forthcoming Supreme Court appeal in Merricks provides a welcome opportunity both to build on the significant progress that has already been made on a number of key aspects of the new regimen over the past four years, and to redress some of the legal and policy implications of the recent Court of Appeal judgment in the Merricks proceedings, which risk undermining the important ‘gatekeeping’ function afforded to the Competition Appeal Tribunal under the legislation. The UK collective proceedings regime ought to then be on a strong footing to resume, albeit its development will remain necessarily iterative and cumulative as further important aspects of the new regime are considered by the CAT and appellate courts over the coming years.

scholarly journals The Supreme Court of Canada and the Alberta Court of Appeal: Do the Top Courts Have a Fundamental Philosophical Difference of Opinion on Public Law Issues

1969 ◽  
pp. 703
Author(s):  
Barbara Billingsley ◽  
Bruce P. Elman
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Divergence Of Opinion ◽  
The Supreme Court ◽  
Precise Analysis ◽  
Difference Of Opinion ◽  
Court Of Appeal

Prompted by the marked clash between the Supreme Court of Canada and the Alberta Court of Appeal in R. v. Ewanchuk, the authors ask whether this conflict is indicative of a fundamental divergence of opinion between the two courts. To answer this question, the authors embark on a review of all 132 public law cases appealed from the Alberta Court of Appeal to the Supreme Court of Canada between 1982 and December 2000. The authors examine these cases to determine the extent of the Supreme Court’s overt criticism of the reasoning employed by the Alberta Court of Appeal. While acknowledging the obvious difficulties of subjecting this data to precise analysis, the authors find that the data reveals some predictable patterns regarding the manner in which the two courts react to certain public law questions. The authors conclude that there are some fundamental philosophical differences between the courts, a finding which indicates that the class between the courts in the Ewanchuk case was not a completely unique or unpredictable circumstance.

scholarly journals PEMIDANAAN TERHADAP PERBUATAN MENGHILANGKAN MAYAT YANG DILAKUKAN ANAK (STUDI TERHADAP PUTUSAN MAHKAMAH AGUNG NO. 774K / PID.SUS / 2015)

2018 ◽  
Vol 1 (1) ◽  
pp. 636
Author(s):  
Heppi Florensia ◽  
Mety Rahmawati
Keyword(s):  
Supreme Court ◽  
Criminal Code ◽  
District Court ◽  
Public Prosecutor ◽  
Court Ruling ◽  
Supreme Court Ruling ◽  
The Public ◽  
Criminal Offenses ◽  
The Supreme Court ◽  
Court Of Appeal

Criminalization of the offender especially in the perpetrators of children under age is as a sanction that tells implied to someone who performs acts meet certain conditions. Often in prosecuting a criminal case the Public Prosecutor is wrong in deciding what articles should be imposed on the perpetrator. As one case of Supreme Court verdict No.774K/PID.SUS/2015 with 16-year-old defendant Dicky Pranata prosecuted by the Prosecutor with Article 340 of the Penal Code juncto Article 56 of the Criminal Code is a criminal act of premeditated murder, in which the elements of Article 340 of the Criminal Code are not fulfilled the defendant's self but the existence of other crimes Article 181 of the Criminal Code of disappearance committed by the defendant. The defendant was sentenced to 10 years in prison at the District Court, while the defendant was released from the sentence of the Court of Appeal and Cassation. The problem in this research is whether the act of the perpetrator fulfills the elements in Article 340 juncto Article 56 paragraph (1) of the Criminal Code juncto Article 1 paragraph (3) SPPA Act and Article 181 of the Criminal Code? How to base criminal offenses in the Supreme Court ruling case No.774K/PID.SUS/2015? The researcher examines the problem with normative juridical method. Based on the analysis result that the defendant is not proven to commit element of crime Article 340 KUHP, but the existence of criminal act Article 181 of Criminal Code which has been done by defendant.

DEVOLUTION AND DISCRIMINATION BETWEEN CITIZENS UNDER ARTICLE 14 ECHR: PRESERVING LOCAL PROVISION

2017 ◽  
Vol 76 (3) ◽  
pp. 472-475
Author(s):  
Leanne Cochrane
Keyword(s):  
Human Rights ◽  
National Health Service ◽  
Northern Ireland ◽  
Health Service ◽  
Supreme Court ◽  
National Health ◽  
Public Law ◽  
The Public ◽  
Secretary Of State ◽  
The Supreme Court

Many women from Northern Ireland (NI) travel to England each year to pay for abortion services because of the limited availability of the service in NI. In R (on the application of A and B) (Appellants) v Secretary of State for Health (Respondent) [2017] UKSC 41; [2017] 1 W.L.R. 2492, the Supreme Court was asked whether it was unlawful for the Secretary of State for Health to have failed to make provision for abortion services free of charge under the National Health Service in England to women who are UK citizens usually resident in NI. The majority answered “no” and, on delivering the judgment, Lord Wilson (for the majority) described the Court as “sharply divided” on both the public law and human rights arguments that had been before it.

scholarly journals Planting Seeds for the Future: Dissenting Judgments and the Bridge from the Past to the Present

Fundamina ◽  
2020 ◽  
pp. 91-127
Author(s):  
Clive Plasket
Keyword(s):  
South Africa ◽  
Supreme Court ◽  
Public Law ◽  
Public Power ◽  
The Past ◽  
The Supreme Court ◽  
The Face ◽  
Court Of Appeal ◽  
Democratic Constitution

The principal focus of this contribution concerns five cases involving questions of public law, namely the meaning of discrimination; the meaning of public power and its control; whether administrative actions may be reviewed for unreasonableness; the rights of prisoners; and the control of emergency powers in the face of an ouster clause. All five cases were decided in the Appellate Division of the Supreme Court of South Africa, now known as the Supreme Court of Appeal, and all were decided prior to 1994: in 1934, 1958, 1976, 1979 and 1988. In each, a dissenting judgment was delivered that articulated values that we today associate with our present democratic Constitution. Before dealing with those cases in detail, it is necessary to say something about the connection between the pre- and post-1994 law, and then to consider the role of some dissenting judgments in the development of the law.

The Problem of the Non-justiciability of Religious Defamations

2015 ◽  
Vol 18 (1) ◽  
pp. 36-52
Author(s):  
Peter Smith
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Public Law ◽  
European Convention ◽  
Religious Doctrine ◽  
The Supreme Court ◽  
The Common ◽  
Uk Supreme Court ◽  
The Uk ◽  
The Right

English courts have historically been wary of deciding cases that rest on contested findings of fact about the practices and doctrines of religions. This is particularly true in defamation cases. However, the recent case of Shergill and others v Khaira and others [2014] UKSC 33 in the UK Supreme Court has narrowed the principle of non-justiciability on the grounds of subject matter. Defamation cases such as Blake v Associated Newspapers Limited [2003] EWHC 1960 (QB) have treated religious doctrine and practice as matters not justiciable per se, even if a determination is essential for the exercise of private or public law rights and obligations. The Supreme Court indicated in Khaira that it may be appropriate for courts to treat such disputes as justiciable. The common law, domestic statute and the European Convention on Human Rights protect the right to reputation, and Khaira indicates that it is time that defamation claims resting on disputes about religious doctrine and practice were entertained by the courts to a much greater extent than recent cases have allowed. However, the judgment has left open the possibility of some religious disputes still being non-justiciable.

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