Pakistan Powers of High Courts to Stay Legal Proceedings and Protect the Right to Foreign Arbitration

2013 ◽  
Author(s):  
Faisal Daudpota
2019 ◽  
Vol 21 (2) ◽  
pp. 227-240
Author(s):  
Elda Maisy Rahmi ◽  
Ali Abu Bakar ◽  
Suhaimi Suhaimi

Penelitian ini ingin menjawab faktor apa saja yang meleatarbelakangi tidak terlaksananya ‘uqubat restitusi, serta upaya yang dapat dilakukan untuk memperoleh hak restitusi terhadap korban perkosaan. Selama tahun 2018, wilayah hukum Mahkamah Syar’iyah Jantho yang menanggani kasus perkosaan tidak pernah menerapkan uqubat restitusi terhadap pelaku perkosaan. Penelitian ini menggunakan pendekatan yuridis empiris, lokasi penelitian di wilayah hukum Mahkamah Syar’iyah Jantho. Hasil penelitian menunjukkan bahwa Qanun Jinayat telah menjamin pemberian hak kepada korban perkosaan. Hak restitusi terhadap korban perkosaan belum terlaksana disebabkan upaya dari korban sendiri tidak membuat laporan, pengaduan, dan pengakuan untuk ditinjaklanjuti oleh penegak hukum. Pada dasarnya upaya yang dapat dilakukan untuk mendapatkan restitusi bagi korban tindak pidana perkosaan adalah adanya pengakuan dari korban, yang menderita dan juga adanya dukungan dari pihak keluarga atau masyarakat yang partisipasi terhadap korban sehingga mengajukan permohonan kepada yang berwajib untuk menjalani proses selanjutnya dengan tujuan agar terpenuhi hak korban. The Implementation of ‘Uqubat Restitution to Rape Victim This research wants to answer what factors are the underlying that have not been implemented the ‘uqubat restitution’, and the efforts to obtain restitution rights for rape victims. During 2018, the Jantho jurisdiction of the Syar'iyah Court never applied the restitutionary sentence to rape perpetrators. This study uses an empirical juridical approach, the location of the study is in the Jantho Jurisdiction of the Syar'iyah Court. The results showed that Qanun Jinayat had guaranteed granting rights to rape victims. The right to restitution of rape victims has not been realized due to the efforts of the victims themselves not to make reports, complaints, and confessions to be followed up by law enforcement. Basically, efforts that can be made to obtain restitution for victims are recognition of the victim and also support from the family or community so that the victim submits an application to the authorities to undergo legal proceedings in order to fulfill the victims' rights.


2003 ◽  
Vol 4 (12) ◽  
pp. 1277-1291 ◽  
Author(s):  
Christian Kersting ◽  
Clemens Philipp Schindler

In its most recent judicature the European Court of Justice (ECJ) continued its tendency of deciding in favor of the freedom of establishment by holding that rules submitting pseudo-foreign companies to the company law of the host state were inadmissible. It clarified that a foreign company is not only to be respected as a legal entity having the right to be a party to legal proceedings, but rather has to be respected as such, i.e. as a foreign company that is subject to the company law of its state of incorporation. Any adjustment to the company law of the host state is, hence, not compatible with European law. In addition to commenting on the decision and its effects, this article points out potential for corporate restructuring in the field of codetermination.


2017 ◽  
Vol 1 (36) ◽  
Author(s):  
Morton Luiz Faria de Medeiros

RESUMOO artigo busca analisar o conceito e a natureza jurídica da denúncia anônima, a partir dos métodos de abordagem hipotético-dedutivo e hermenêutico, por intermédio da interpretação de textos jurídicos extraídos de documentos legislativos, jurisprudenciais e doutrinários. Para tanto, principia-se pela definição de anonimato, investigando-se se a denúncia anônima constitui manifestação da liberdade de expressão ou de manifestação de pensamento, ideia ou opinião, a partir de depuração desses conceitos elementares que a circundam. Embora não haja uniformidade normativa ou doutrinária quanto a delimitações terminológicas para distinguir entre as liberdades de expressão, de manifestação de pensamento, de manifestação de opinião e de imprensa, conclui-se que o direito fundamental de liberdade de manifestação de pensamento é mais abrangente, possuindo dimensões individual (liberdade de expressão) e social (liberdade de prestação de informação), além da modalidade de liberdade de provocação de autoridade pública – em que se enquadram a denúncia anônima e os direitos de petição e de ação, por exemplo. Contudo, se, por um lado, a denúncia anônima não se confunde com o direito de petição – em face de este ostentar caráter político e estar atrelado ao direito a ser informado (o que é dificultado pelo anonimato) – tampouco pode ser equiparado ao direito de ação, que para instaurar processo judicial já demanda um mínimo de elementos de prova.ABSTRACTThis paper analyzes the concept and legal basis of anonymous reporting, using hypothetical-deductive and hermeneutics methods, through the interpretation of legal texts extracted from legislative, doctrine and jurisprudence documents. It begins with the definition of anonymity, investigating whether anonymous report constitutes manifestation of freedom of expression or manifestation of thought, idea or opinion, from the depuration of the elementary concepts that surround it. Although there is no normative or doctrinal uniformity regarding terminological delimitations to distinguish between the freedoms of expression, of expression of thought, of expression of opinion and of the press, it is concluded that the fundamental right of freedom of expression of thought is wider, including individual (Freedom of expression) and social (freedom to provide information) dimensions, in addition to the modality of freedom of provocation of public authority - which include anonymous reporting and petition and action rights, for example. However, if, on the one hand, the anonymous reporting is not the same as the right of petition - because the latter has a political character and is linked to the right to be informed (which is hampered by anonymity), it cannot be the same as the right of action, which in order to institute legal proceedings already requires a minimum of evidence.


2019 ◽  
Vol 7 (5) ◽  
pp. 674-677 ◽  
Author(s):  
Zyufyar Shakirovich Gataullin ◽  
Alexander Yurevich Epihin ◽  
Oleg Aleksandrovich Zaitsev ◽  
Ekaterina Pavlovna Grishina ◽  
Andrey Viktorovich Mishin

Purpose: Scientific views of processualists concerning Institute of jurors are given in the article. Some experts defend activity of jury, others - categorically against such form of legal proceedings. Methodology: The methodological basis of this research is made by a dialectic method. Special methods of knowledge were used: logic-legal; comparative, historical, sociological, system and structural, statistical, method of the analysis and synthesis, legal modeling. Result: On the basis of the analysis of statistical data and materials of jurisprudence the author's position of rather a criminal prosecution in court with the participation of jurors on criminal cases of terrorist orientation, in the conditions of absence at defendants of the right to petition on such court is stated. The need for differentiation of legality and expediency of restriction, constitutional rights of defendants on the jury is proved. The concrete measures directed to an increase in efficiency of criminal prosecution in the conditions of the constitutional state are proposed. Results of a poll of practical workers are given: investigators, prosecutors, and judges who spoke in favor of the made offers directed to an increase in efficiency of criminal legal proceedings. Applications: This research can be used for the universities, teachers, and students. Novelty/Originality: In this research, the model of Criminal Prosecution of Terrorist Crimes in Jury Trial: Legality and Appropriateness is presented in a comprehensive and complete manner.


Author(s):  
Suwari Akhmaddhian ◽  
Haris Budiman ◽  
Yunusrul Zen

Every citizen has the right in law and justice, therefore the government makes Law No. 16 of 2011 on Legal Aid to protect its citizens in the event of a catastrophe. The aim of devotion to this community is to emphasize the people or the villagers, as well as other goals aimed at providing this counseling that parents can add information related to the process of handling criminal acts and how to follow up in the event of a criminal offense. The method used is by way of talk and discussion then terminated with question and answer. The results obtained from the devotion to this community are the more sensitive and know how criminal and legal proceedings and the response to legal issues, especially those related to the criminal act of the present crime, are expected with the devotion to this society parents can become work in keeping his family from various possibilities related to crime and legal assistance.�AbstrakSetiap warga negara mempunyai hak dalam hukum dan keadilan, oleh kerana itu pemerintah membuat Undang-Undang nomor 16 Tahun 2011 tentang Bantuan Hukum untuk melindungi warganya dalam hal terjadi musibah yang menimpa masyarakat. Tujuan pengabdian kepada masyarakat ini lebih menitik beratkan kepada orang-orang atau warga desa, adapun sasaran lain yang menjadi tujuan dari diadakannnya penyuluhan ini yaitu para orang tua yang mana dapat menambah informasi terkait dengan proses penanganan tindak pidana dan bagaimana menindaklanjuti apabila terjadi tindak pidana. Metode yang digunakan yaitu dengan cara ceramah dan diskusi kemudian diakhiri dengan tanya jawab. Hasil yang diperoleh dari pengabdian kepada masyarakat ini yaitu masyarakat lebih peka dan mengetahui bagaimana proses tindak pidana dan bantuan hokum serta respon terhadap permasalahan hukum khususnya yang berkaitan dengan berbagai acaman tindak pidana pada sekarang ini, diharapkan dengan adanya pengabdian kepada masyarakat ini para orang tua dapat menjadi bekal dalam menjaga keluarganya dari berbagai kemungkinan yang terkait dengan tindak pidana dan bantuan hukum.�


2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.


2019 ◽  
Vol 3 (2) ◽  
pp. 99-116
Author(s):  
Arif Suhartono ◽  
H.M. Said Karim ◽  
Marwati Riza

The current study draws attention to analyze the right to salary of Civil Servant (PNS) undergoing legal proceedings and to analyze the qualifications of criminal act of corruption within the scope of the State Civil Apparatus. This study was an empirical legal research. The findings showed that the right to salary and benefits of Civil Servant undergoing legal proceedings was regulated in Article 281 of Law No. 11 of 2017 concerning Management of Civil State Apparatus that Civil Servant who were temporary dismissed due to detention of a suspect shall not be entitled to receive salary, but shall receive temporary dismissal pay. The amount of temporary dismissal pay is 50% (fifty percent) of the last salary as civil servant before being temporary dismissed in accordance with the laws and regulations. Temporary dismissal pay shall be received in the following month since the stipulation the temporary dismissal. On this basis, a comprehensive regulation is needed relating to supervisory oversight mechanism who made an omission against her subordinate civil servants who have committed disciplinary violations, especially those who were suspected of committing criminal act.


Author(s):  
Philippe Cullet

The right to sanitation has been recognized for many years by the Supreme Court of India and high courts. Its recognition is not in question but there is a lack of a comprehensive legal framework that can contribute to making the right a reality on the ground. Administrative directions that have come to define governmental action in practice, particularly in rural areas, fill this gap. The focus on behaviour change, individual household toilet construction and open defecation-free status has helped in achieving some sanitation related targets. It has also raised some important concerns with regard to gender equality, universality of entitlements, and the understanding of rights holders as beneficiaries. This chapter analyses different elements that need to be addressed moving forward, including the need for giving more attention to community toilets, for convergence with other rights, for mainstreaming environmental considerations, and for ensuring equality and dignity in sanitation work.


Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Pieter du Toit

Section 40(1) of the Criminal Procedure Act 51 of 1977 provides for a number of different instances where a peace officer may effect an arrest without an arrest warrant. A perusal of the reported case law pertaining to the lawfulness of arrests without warrant reveals that section 40(1)(b) of the Act, in particular, has received much attention from the courts. In terms of this subsection a peace officer may arrest without warrant any person whom he reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody. It is settled law that any deprivation of freedom is regarded as prima facie unlawful. The arrestor therefore bears the onus of proving that the arrest was justified. The following jurisdictional facts must be present for a peace officer to rely on the defence created by section 40(1)(b) of the Criminal Procedure Act in cases, where it is alleged that the arrest was unlawful: (i) the arrestor must be a peace officer; (ii) the arrestor must entertain a suspicion; (iii) the suspicion must be that the suspect committed an offence in Schedule 1; and (iv) the suspicion must rest on reasonable grounds. For a discussion of the differenttypes of jurisdictional facts provided for in section 40(1) see Watney. In Louw v Minister of Safety and Security Bertelsman J held, with reference to the right to personal liberty, that arresting officers are under a constitutional obligation to consider whether there are no less invasive options to bring the suspect to court than the drastic measure of arrest, thereby effectively requiring a further jurisdictional fact for successful reliance by a peace officer on the provisions of section 40(1). If a reasonable apprehension exists that the suspect will abscond, or fail to appear in court if a warrant is first obtained for his or her arrest, or awritten notice or summons to appear in court is obtained, then the arrest would be constitutionally untenable and unlawful. Bertelsman J relied on academic opinion and an obiter remark made by De Vos J in Ralekwa v Minister of Safety and Security and held that the approach in Tsose v Minister of Justice that there is no rule that requires the milder method of bringing a person to court if it would be as effective as arrest, could no longer be acceptable in a constitutional dispensation. This approach was followed in a number of reported High Court judgments but not approved of in Charles v Minister of Safety and Security. In Minister of Safety and Security v Van Niekerk the Constitutional Court found it not to be in the interests of justice on the facts of the case before it to pronounce on the constitutional tenability of the approach in Tsose, but nevertheless held that the constitutionality of an arrest will be dependent upon its factual circumstances. Watney succinctly discusses some of the abovementioned developments. However, on 19 November 2010 the Supreme Court of Appeal in Minister of Safety and Security v Sekhoto (2011 1 SACR 315 (SCA), also reported in [2011] 2 All SA 157 (SCA)) held that the approach of the different high courts requiring a further jurisdictional fact for the lawfulness of an arrest did nothave proper regard for the principles in terms of which statutes must be interpreted in the light of the Bill of Rights and that they have conflated the issue of jurisdictional facts with the issue of discretion. This lucid judgment brings clarity to the issue of the lawfulness of arrests without warrant. 


2021 ◽  
Vol 1 (1/2020) ◽  
pp. 141-164
Author(s):  
Marie Therese Mundsperger

Although it is largely unknown, women had some voting rights in the 19th century in the Habsburg monarchy, especially the right to vote in the municipality and on the provincial level. Suffrage at that time was based on the two pillars of property and education rather than gender. It was undisputed for a long time that women could get the right to vote due to their tax payments. The fact that women could also be included into the ‘intelligence’ electoral class was controversial, as shown by some decisions by the Austrian high courts. It was only towards the end of the 19th century that the gender criterion began to prevail in election regulations and women were increasingly excluded from the right to vote, which led to the emergence of the Austrian women’s movement. The monarchy fell in 1918 and the granting of universal women’s voting rights was finally embodied in the proclamation of the Austrian republic on 12 November 1918.


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