Judicial Activism Research Articles

Powództwo o ustalenie prawa do wydziedziczenia w prawie polskim – de lege lata

The authors agree with the standpoint expressed in few rather laconic statements of the legal doctrine that the discussed court action is allowed under the Polish civil law. They claim that this possibility arises from the fact that disinheritance, which has been characterized in the article, is an entitlement (a “narrow” subjective right) which can be established on the basis of Article 189 of the Polish Civil Procedure Code (PCPC). According to them, only a bequetaher in spe possesses the legal interest in bringing the court action (can be a plaintiff) and this interest exists only in relation to the person who is to be disinherited (can be a defendant). The burden of proof is divided in accordance with the general rules of the civil procedure. In the authors’ opinion, a regional court which territorial jurisdiction is determined by the Article 41, 42 or 43 PCPC (it depends on the circumstances of a specific case) is appropriate to examine the discussed court action and a prorogation contract is not allowed.

PROTECTION OF WIFE'S RIGHT TO MAINTENANCE IN BANGLADESH: AN OVERVIEW

Muslim wife has a legal right of maintenance which devolves upon her husband. This rights exclusively created by the marriage and wife is entitled to maintenance during the subsistence of the marriage and after divorce for iddat period under the Islamic Shariah and Muslim personal law in Bangladesh. Usually, the Muslim women enforces the claim for her maintenance while obtaining divorce. Divorce brings distress in her life and it also creates jeopardized situation in the society. In doing so, the controversy arises regarding the post-divorce maintenance beyond iddat period of Muslim women under Islamic Shariah. Though the judiciary of many countries are trying to reform on the post-divorce maintenance but judicial activism of the country have not much advancement in this issue. Hence, the divorced Muslim women are not entitled post-divorce maintenance beyond iddat period in the country. In addition, often women are not get access to family justice rather they suffered adversely for difficulties of legal procedure, male oriented society and non implementation of Islamic values. Therefore, majority divorced woman face many challenges of social justice and not being protected in the present legal system. The study focuses how and to what extent Muslim wife's are being protected through maintenance under the Islamic Shariah as well as the Muslim personal law in Bangladesh.

Problematic Aspects of Judicial Protection against the Inaction of Administrative Authorities in the Czech Republic

One of the three most important types of actions in the Czech administrative judiciary is the action for protection against the inaction of an administrative body. Judicial protection follows on from the protection within the administrative proceedings (according to the Administrative Procedure Code). Its entrenchment in the Czech law in 2002 was a huge positive. Nevertheless, in practice there are some controversial issues or issues for discussion which relate to this action. The article analyses the essence of this action, its conditions and hearing in court. However, the main attention is paid to the problematic aspects of the action, both those regarding its legislation and those arising from the practice and case law relating to protection against administrative inaction.

Functioning of National Green Tribunal: Prospective and Problems

So far as the importance and degradation of environment is concerned; the nature and environment has its own path. The human being is only factor who has disturbed the balance of nature and environment through various means by so called “Development programs”. It gives rise the use of unnatural factors, which affect the environment in various ways such as air pollution , water pollution ,frequency pollution ,hazardous waste pollution . India being a developing country trying to achieve number of objectives for the benefit of general public and for nation as a whole. India has ample of natural resources and it uses such resources in order to bring about the development, but control over such unilateral use and over exploitations of such resources is required to be made. On the other hand Indian judiciary is playing the vital role in the development of Environmental Law, almost in all forms of pollution whether it is on air, land or water. Supreme Court of India has issued directions to save environment from continues pollution but with the rapid development, the consequential rapid pollution also emerged and that is the problem every developmental activity is supposed to reach under the scrutiny of the Court. To control overcome the world wide degradation; some efforts and steps were initiated by united nation at Stockholm conferences in the year 1972, which resulted a milestone in the human history; where the active initiative taken place at National and International level for the protection of Environment. And so far as India is concerned; the awareness and influence of these conferences is seen by enactment of various environmental laws over the period time. At the same time judiciary has also shown judicial activism to safeguard the environmental interest and thereby lessened the interference of human being in the parlance of degradation of environment. In (M. C. Mehta case)1, Supreme court said that where the environmental matter involves the assessments of scientific data requires to set up environmental court regional basis with professional Judge and two experts, keeping in view expertise required for such adjudication involves assessment of scientific data.

The Battisti Case: A Legal-Historical Reconstruction

Abstract The Battisti Case constitutes a rare high-profile case of decision-making and judicial ruling on the (hardly ever explored) interpretation and implementation of refugee law by political, technical, and judicial actors in Latin America. It concerns an Italian citizen, Cesare Battisti, sentenced twice to life imprisonment who, after escaping from prison, fled to Mexico, France, Brazil, and Bolivia. Even though Italy had twice attempted to have Mr Battisti extradited from both France (1991 and 2003) and Brazil (2007 and 2017), his extradition has never been materialised. In 2019 he was removed from Bolivia to Italy, where he has been serving his sentences. This study analyses the facts prior to the 2007 Italian extradition request, Mr Battisti’s application for refugee status, the Brazilian Supreme Court’s main extradition ruling, the presidential decision on his non-extradition, Mr Battisti’s last years in Brazil and removal from Bolivia, and his confession and the execution of his prison sentence. This piece analyses a case where several parties seem to be in the wrong: the prosecuted criminal and former protecting States have misused the asylum regime, and the country where the prisoner is serving his sentence is seemingly aggravating his situation as a result of his “personal condition”.

DASTLABKI TERGOVDA QO‘LLANILAYOTGAN AXBOROT-KOMMUNIKATSIYA TEXNOLOGIYALARI TUSHUNCHASI VA UMUMIY TAVSIFI

The article discusses both positive and negative aspects of the development of such a phenomenon as an electronic criminal case. It is noted that, taking into account the general digitalization of society, criminal proceedings in the future will undergo significant changes. This will be facilitated by the widespread introduction of electronic document management, remote forms of investigative and judicial actions, the use of algorithms and mathematical calculations in making procedural decisions, the use of robotics. Much will depend on the successful solution of problems related to ensuring information security, protecting the legal rights and freedoms of citizens, as well as the interests of society and the state. At the same time, some private IT issues have not been resolved at the legal level, the current Criminal Procedure Code focuses on the removal of electronic media and the copying of electronic data is not sufficiently regulated, and the legal literature continues to discuss these issues. carried out. In addition, as the withdrawal of electronic media in practice poses increasing challenges for legal entities and individuals, it is considered necessary to regulate in detail the procedure for copying electronic information, taking into account the rights and legitimate interests of owners and users of electronic media.

Judging as Crime: A Transatlantic Perspective on Criminalizing Excesses of Judicial Discretion

Abstract Drawing on over a century and a half of Germany’s experience with a statute that criminalizes (mis)judging, this Article seeks to substantiate that criminal penalties for judges were largely ineffectual, and that courts proved ill-suited to police themselves even with a judiciary-specific criminal statute in place. To reach this conclusion, this post hoc longitudinal study examines German statutory foundations for the crime of “law bending” (Rechtsbeugung), related legal history, and jurisprudence during three distinct periods: (1) the codification of Rechtsbeugung in 1851 through the end of World War II; (2) Rechtsbeugung jurisprudence in postwar Germany, particularly as related to Nazi-era judicial actions; and (3) Rechtsbeugung legislative changes and jurisprudence leading up to and following Germany’s reunification. The German experience with Rechtsbeugung provides a cautionary tale of judges’ unwillingness to hold other judges criminally responsible, even for the worst of judicial transgressions, such as those committed by judges in Nazi Germany. Following German reunification, the court was less lenient in cases of East German judges. In this context, the court came to renounce its postwar Rechtsbeugung jurisprudence in clear and decisive terms, and affirmed convictions of East German judges. Yet, German high court jurisprudence remains elusive to this day.

ДАСТЛАБКИ ТЕРГОВДА АХБОРОТ-КОММУНИКАЦИЯ ТЕХНОЛОГИЯЛАРИНИ ҚЎЛЛАШНИНГ ПРОЦЕССУАЛ-ҲУҚУҚИЙ АСОСЛАР

The article discusses the procedural and legal framework for the use of information and communication technologies during the preliminary investigation from the author’s point of view. It is noted that, taking into account the general digitalization of society, criminal proceedings in the future will undergo significant changes. This will be facilitated by the widespread introduction of electronic document management, remote forms of investigative and judicial actions, the use of algorithms and mathematical calculations in making procedural decisions, the use of robotics. Much will depend on the successful solution of problems related to ensuring information security, protecting the legal rights and freedoms of citizens, as well as the interests of society and the state.

Mediation in Criminal Misdemeanor Cases

Diversion of criminal misdemeanors to mediation by district attorneys has been practiced since the 1970s, but research on its impact on critical outcomes like recidivism is scant and outdated. This quasi-experimental study compares 78 mediated cases from a county that diverts cases to mediation with 128 cases in a similar neighboring county that does not, using phone surveys and case review to ask whether recidivism in mediated cases differs from cases prosecuted or treated as usual over the subsequent year. Controlling for case factors and attitudes toward conflict, a case that is not mediated was five times more likely to result in judicial action, five times more likely to result in jury trial demand, and ten times more likely to result in supervised probation or jail time, and mediated cases were almost five times less likely to return to criminal court in the subsequent year than those that were not mediated.

Of Carbon Budgets, Factual Uncertainties, and Intergenerational Equity–The German Constitutional Court’s Climate Decision

AbstractThe German Federal Constitutional Court’s climate decision provides a nuanced acknowledgment of climate change’s constitutional relevance. In this Article, the author critically assesses how the Court innovatively sought to capture the intergenerational equity dimension of climate mitigation through a combination of negative and positive duties stemming from constitutional law. The Article demonstrates how despite progressive findings on intergenerational equity and the innovative invocation of negative duties, the operative part of the decision turned out to be rather limited. Because of remaining uncertainties about the allowable national carbon budget, the Court was unable to require the legislator to enact a stricter reduction path. The author argues that the Court could have narrowed remaining uncertainties, without engaging in judicial activism, by adopting an international and constitutional minimum approach to calculating the national budget and by adjusting the burden of proof. Finally, the Article highlights how the German legislator, by going beyond what was required by the Court “trapped itself” on an ambitious reduction path, opening opportunities for future constitutional complaints.

Cling Together, Swing Together: On the Relationship Between the EU and Euratom

The aim of this article is twofold: first, to show, through a brief historical overview of the European Union (EU) and the European Atomic Energy Community (Euratom) in particular, why the latter has achieved a controversial status and is yet unlikely to be reformed by the Member States (MS). The second is to illustrate that, despite this deadlock, the Euratom Treaty has undergone a change in legal significance, driven in particular by the case law of the European Court of Justice (ECJ), with the result that conflicts between the two Treaty regimes are almost completely avoided. European Atomic Energy Community, European Atomic Energy Community, Euratom Treaty, relationship to the EU, judicial activism

The Mercosur Socio-Labour Declaration: The Development of a Common Regional Framework in the Global South

The Socio-Labour Declaration is the legal instrument that protects fundamental labour rights within Mercosur and its Member States legal orders. Its 2015 revision enhanced quantitively and qualitatively the rights enshrined therein. Relying upon recent literature on Latin American regional integration, this article considers the complex institutional and legal framework in which the Declaration has been adopted and implemented. It examines how the intergovernmental character of Mercosur has shaped the legal content of the Socio-Labour Declaration. The institutional context of the Declaration requires the active cooperation and intervention of both regional and national actors. This article explores how Mercosur bodies have taken advantage of the flexible institutional framework to implement the Declaration through regional plans and policies. It also analyses the contrasting enforcement roles of the national executive and legislative powers, characterized by their timidity, and the judicial activism that is essential to consider the Declaration as a justiciable instrument. The article concludes that the Socio-Labour Declaration is a crucial instrument in protecting workers’ rights in this trade bloc, and that the 2015 revision introduced substantial improvements that may provide the legal basis for future judgments, and regional and national labour laws reforms. Mercosur, Socio-Labour Declaration, Argentina, Brazil, Uruguay, Paraguay, Venezuela, Regional Integration, Labour Rights, Regional Trade Blocs, Latin America, Global South

Improving Our Understanding of Medical Decision-Making Competence in Puberty Suppression.

Improving Our Understanding of Medical Decision-Making Competence in Puberty Suppression.

The Brazilian Federal Supreme Court and the Normalisation of Barbarity

This paper aims to explain the legal-political vocabulary that informs the decisions of the Brazilian Supreme Court on prison issues, giving prominence to the dimensions of race, gender, class and sexuality. In particular, it seeks to show the role of judicial action in the reproduction of black genocide, with significant implications for women, and how the Supreme Court acts as an authority over the barbarism installed in the criminal justice system. This article was originally published in Portuguese by the Brazilian journal Revista Direito e Praxis available at https://www.e-publicacoes.uerj.br/index.php/revistaceaju/article/view/50270 DOI: 10.1590/2179-8966/2020/50270

Climate Change Litigation: Indian Perspective

AbstractThis article covers the recent trends in climate change litigation in India, capturing the peculiarities of the Indian judicial system that lend it the will, ability, and credibility to accommodate emerging principles of climate change laws within the law of the land. While tracing the historical underpinnings of judicial activism, environmental considerations, and strength of democratic institutions, this Article discusses some of the current developments in climate change case law in the country. Finally, in showcasing an increasing and immersive trend towards the inculcation of international principles of environmental law, this article establishes the dichotomy between an active judicial system applying international environmental principles at the domestic level and the roadblocks in terms of climate litigation in the recent times.

Through selective activism towards greater resilience: the Czech Constitutional Court's interventions into high politics in the age of populism

ABSTRACT With technocratic populist Andrej Babiš leading the Czech government coalition, the country has experienced some democratic backsliding. In contrast to its Hungarian and Polish counterparts, however, the Czech Constitutional Court has been spared from executive capture. This article argues that resilient constitutional courts may act as one of the key safeguards against illiberal populism. We demonstrate that resilient constitutional courts are products of an institutional framework, which prevents court-packing by loyal allies of populist leaders, and of courts’ activities that increase their reputation with the public, thus making political attacks against them overly costly. We argue that the Czech Constitutional Court has exercised an approach of selective judicial activism that focuses on keeping political competition fair while avoiding involvement in controversial socially transformative judicial decision-making which would outrage large parts of the population. Moreover, by acting as a guardian of fair political competition, the Court contributed to the further fragmentation of the political landscape, which in turn prevented the accumulation of political power, and hence the Court shielded itself from political attacks.

Commission

This overview highlights the Commission’s (i) work programme for 2022, (ii) support for the OECD-led global tax agreement for reforming the international tax framework, (iii) roadmap for tackling withholding tax relief procedures for cross-border investors, (iv) support of the Council’s decision for adopting a public Country-by-Country Reporting Directive, (v) proposal to authorize Estonia to allow a 50% input VAT deduction on purchase or lease of passenger cars, (vi) approval of Italian aid scheme to support affected companies, and (vii) withdrawal of Court action against the United Kingdom for its failure to recover illegal State aid.

Defending Guardians of the Constitution against Ruinous Criticism

Court decisions on bail applications by governors who face prosecution over corruption related crimes have come under sharp criticism from those who believe orders barring the governors from accessing their offices during trial offend the law since they amount to constructive and unprocedural removal from office. One such critic is Duncan O’kubasu who has penned a piece criticizing the decision of Lady Justice Mumbi Ngugi in the Moses Lenolkulal Case. This paper responds to that criticism by highlighting several flaws in the arguments presented by O’kubasu. He starts by understating the threat that corruption poses to the Kenyan society as the basis for undermining the inter-agency collaboration to address the vice, as well as the Judiciary’s own efforts as part of that collaboration. The rest of his arguments are founded on the wrong question, that is, whether the governors facing trial should be removed from office. Beyond these foundational errors, the rest of the paper contains a number of errors that culminate in his flawed conclusion that the decision amounts to ruinous judicial activism. When looked at in the context of the constant blame the Judiciary has faced in recent years when it has been labelled as the weakest link in the fight against corruption as well as the quest of the Kenyan people for ethical leadership, this paper argues that the decision is sound and Judges like Mumbi Ngugi J ought to be celebrated for sticking their necks out in defence of Chapter Six of the Constitution of Kenya.

Court action against the Ministry of the Health of the Russian Federation concerning changing the statutory requirements for the field of plastic surgery

The Ministry of Health of the Russian Federation at the year 2018 has approved a new procedure for plastic surgeons. An administrative claim was filed to the Supreme Court of the Russian Federation, containing arguments about procedural violations during the adoption of a regulatory legal act, as well as challenging some provisions (mandatory requirements), which, in the opinion of the administrative plaintiff, do not contribute to the quality and safety of medical care. The paper presents the modern regulation as well, associated with the enactment of the Federal Law “On mandatory requirements in the Russian Federation”.

A Tale of Judicial Courage

This paper responds to and critiques the foregoing paper by O’kubasu: “Ruinous Judicial Activism: What a Solemn Scrutiny of the Ruling of Justice Mumbi Ngugi in the Moses Kasaine Lenolkulal Case Reveals.” The author argues that contrary to the assertions by O’kubasu, the ruling, which barred Lenolkulal from accessing his office, did not seek to have the governor step aside, like other public officers, neither did it remove him from office as contemplated by Article 181 of the Constitution and section 33 of the County Government Act. The condition was/ is reasonable and fits perfectly within Articles 24, 27, 49(1) (h) and 50 of the Constitution and therefore is legal and proper. Having noted the magnitude to which corruption levels have grown, in spite of an impressive array of existing laws and institutions to fight it, and the ascent to public office by persons with unresolved issues of integrity, it is argued that the decision of Mumbi J in the Lenolkulal case is not only a brave stand for the values of Chapter Six and the Rule of Law, but it also provides an opportunity to further salvage Chapter Six of the Constitution, which has for a long time been on its death bed. With the decision having been relied on in other cases, it is hoped that Chapter 6 of the Constitution shall fully resurrect and give a beacon of hope for the continued constitutional transformation of the democracy that is Kenya.