Constitutional Guarantee Of Freedom Research Articles

Forensic identification by keystroke dynamics features: search for balance between constitutional guarantees of freedom and security.

Forensic identification by keystroke dynamics features: search for balance between constitutional guarantees of freedom and security.

A Contextual Analysis of the Hate Speech Provisions of the Equality Act

The article presents a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Equality Act. It is argued that this provision is not primarily intended to describe and effectively regulate the extreme expression that falls within the narrow ambit of "hate speech" as defined in section 16(2)(c) of the Constitution. Rather, it is concerned with the promotion of equality in the broad societal context. It acknowledges the hurt and harm that discriminatory expression may entail and it condemns the reinforcement of systemic discrimination by means of expression. Therefore, the principal interpretive frame of reference for the analysis of section 10(1) of the Equality Act is the explicit constitutional obligation in terms of sections 9(3) and (4) of the Constitution to enact legislation to prevent and prohibit unfair discrimination, and not section 16(2)(c) of the Constitution. The fact that section 10(1) categorically prohibits hate speech, instead of premising its prohibition on the unfairness analysis generally applicable to discrimination in other contexts, however, implies that only expression with no reasonable prospect of meeting the constitutional fairness standard ought to be covered by section 10. Put differently, the prohibited expression may in no way promote rather than jeopardise the achievement of equality. The interpretation takes into account that section 10(1) applies only to engagement in expression that, in terms of an objective reasonableness assessment, is clearly primarily aimed at hurting or harming others, or at inciting others to hurt or harm, or at promoting hatred based on group identity. Furthermore, bona fide expression in accordance with the essential characteristics of the freedoms of expression mentioned in section 16(1) of the Constitution is explicitly excluded from its ambit. An analysis of the expression covered by section 10(1) leads to a conclusion that it prohibits only low-value discriminatory expression that obstructs the constitutional quest for the healing of our injured society. It manages to achieve this without jeopardising the constitutional guarantee of freedom of expression, construed in the light of the foundational values of the Constitution.

A Study of Compatibility of Anti-Conversion Laws with Right to Freedom of Religion in India

This study analyses the constitutionality of the so called 'anti-conversion laws' in general as well as provisions in all the legislations in particular. The report of the entire study has been divided into four chapters. The first chapter being introductory, second chapter has been titled as 'Constitutional Framework of Right to Freedom of Religion in India'. In this chapter, the scope and ambit of freedom of religion and the permissible restrictions thereon have been discussed in the light of relevant judicial pronouncements, which appear to be very pertinent in the context. The questions whether 'right to conversion' is envisaged in our Constitution and who has the legislative competence to regulate the exercise of the said freedom have also been addressed in the chapter. Reference has also been made to the Constituent Assembly Debates wherever necessary. The third chapter, being the most cardinal part of the study, has been titled as 'Anti-conversion Laws in India: An Analysis in the Light of Constitutional Guarantee of Freedom of Religion'. In this chapter all the provisions of anti-conversion laws of various states and their implications on Constitution have been examined. Important cases where the constitutional validity of some of these laws has been challenged have also been discussed at appropriate places. Chapter IV is the concluding part of the study. In this chapter, the decision of the apex court in Rev. Stainislaus has been analyzed in the light of legislative history, constitutional philosophy and relevant provisions in UDHR, and ICCPR, etc., the findings and remedial legal measures have also been suggested wherever it appears to be necessary.

The Legal Structure of Freedom of Association

This essay seeks to set out a clear view of the legal structure of freedom of association in Canada. It takes the ideas of legality and legal grammar seriously and argues that current Canadian constitutional labour law is in a state of legal disarray because our leading cases fail to do so. In a series of very important decisions, the most recent of which is Fraser v Ontario, the Supreme Court of Canada has set about articulating a new interpretation of s 2(d) – the constitutional guarantee of freedom of association. But its effort to create a new and richer narrative of s 2(d) has been undermined by its failure to attend to the legal grammar necessary to articulate it in legal terms. As a result, our account of freedom of association is now incoherent and fails to live up to our constitutional commitments. Clearer thinking about legal grammar will not construct our new interpretation of s 2(d) for us – but it will remove one very real and present barrier to our progress toward that goal. This essay tries to clear that now obstructed path.

Access to Information and Freedom of Expression: The Case of South Korea Since 1996

From an FOI perspective, South Korea is a fascinating case study. As a thriving democracy, Korea represents a rule-of-law nation in which citizens and the government resort to the courts, not extra-legal mechanisms, to resolve disputes. In this context, the FOI law in Korea has been one of the most liberalizing statutes that “make the government increasingly transparent.” Korea’s evolving experience with freedom of information deserves a systematic analysis. This is all the more compelling, considering that this year marks the 20th anniversary of the Korean Constitutional Court’s landmark case on access to information as a constitutional right. Especially noteworthy is the growing relevance of the Korean FOI to international and comparative law, as recently showcased by American legal scholars’ discussion of the 1989 case of the Korean Constitutional Court. The present study examines the right to information in South Korea as it has evolved since 1989, when the right was first read into the constitutional guarantee of freedom of expression. Three questions provide the main focus of the study. First, what is the conceptual and theoretical framework of the right to information in Korea? Second, how is the right to information guaranteed as a constitutional and statutory right in Korea? And finally, how has the right to information been interpreted by Korean courts?

Can Economics Justify the Constitutional Guarantee of Freedom of Expression?

The purpose of this article is to explore the resources available within the economic analysis of law for rationalizing the constitutional right to freedom of expression. I have sought to falsify the hypothesis that economics is incapable of supplying a rationale for the constitutional guarantee of freedom of expression. I have argued that, from an economic perspective, the guarantee may be understood as a device for the facilitation of political competition and the mitigation of the agency costs of government. Nevertheless, economics provides no support for the notion that the fact that an act is undertaken by a person in the exercise of her “autonomy” is a licence for that person to set back another individual’s welfare. This applies to expressive acts as it does to all other acts that produce external consequences. There might be good reasons to require each of us to suffer the negative consequences of other individuals' self-fulfillment, or to place the information marketplace as a whole (and not only that part which relates to the political marketplace) under judicial protection. However, any such reasons do not appear to sound in economics; they require other frameworks of analysis and evaluation.

Fundamental Human Rights and Religious Apostasy

Protection of freedom of religion was one of the Allied war aims in World War II. It found its way into the declarations of fundamental human rights that followed the war. Some describe it as the ‘oldest human right’. However, it is inherently disputable amongst many religious believers. If God authentically commands, how can humans be permitted to challenge or deny religious teachings? The author examines this issue by reference to the divided decision in the Malaysian courts in the Lina Joy case (2004–07). He explains the reasoning which reflected a clash between a secular constitutional guarantee of freedom of religion and readings of Islamic religious texts prohibiting apostasy. He describes earlier Christian views about this issue and examines recent English, Australian and other case law relevant to religious freedom. He suggests the special role that Australia might play to promote interfaith dialogue and respectful exchanges about divisive issues of human rights, including over religious beliefs.

Freedom of Political Communication in Australia

In three important decisions,1 handed down on the same day in October 1994, the Australian High Court continued its exploration of the implied constitutional guarantee of freedom of political communication. Two years previously, in the judgments in Nationwide News Pty Ltd v. Wills2 and Australian Capital Television Pty Ltd v. The Commonwealth,3 a majority of the High Court had distilled an implication of freedom of political communication from the provisions and structure of the Australian Constitution.4 This was not an implication of freedom of expression generally, since it was derived from the concept of representative government which the majority considered to be enshrined in the Constitution: “not all speech can claim the protection of the constitutional implication of freedom … identified in order to ensure the efficacious working of representative democracy and government”.5 The extent of this implied constitutional guarantee was left rather unclear, since a number of different views were expressed. As Justice Toohey has now explained,6 there were two possibilities. The first was a more limited “implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government”. The second was a rather more expansive “freedom to communicate in relation to public affairs and political matters generally”. In the recent trilogy of cases a majority of the High Court was prepared to endorse the second of these alternatives.7 In Cunliffe v. The Commonwealth Chief Justice Mason concluded that it would be too restrictive to limit the implied freedom to “communications for the purposes of the political processes in a representative democracy”.8

Should Pre-Trial Release Programs Be Expanded?

Bail ostensibly increases the likelihood that a defendant released from jail will appear in court. Because of the constitutional guarantees of freedom and pragmatic concerns for the increasing cost of housing defendants awaiting trial, federal, state, and local governments have experimented with a wide range of pre-trial release methods. This paper compares the rates of nonappearance of persons participating in a Pre-Trial Release Program with others who were disqualified from the program but released prior to trial. The findings indicate that while, overall, PTR participants have a statistically significant lower rate of nonappearance than non-participants, these differences are effectively limited to persons accused of traffic offenses and persons released on unsecured appearance bond. Policy recommendations include extension of pre-release supervision and application of simplified selectivity criteria.

License Plate Language

less, their primary function is motor vehicle identification. In the United States, auto tags have been standardized by the federal government to a six-by-twelve-inch rectangle. Certain features are uniform: name of the political entity; year;' and an identification code which contain arabic numerals and/or upper case Roman letters. Normally, states permit a maximum of six characters (seven in California and New York).2 In addition, license plates have other variable elements: colors; brief mottoes;3 and different visual images which have distinctive and recognizable features of a given political unit.4 The states vary in what combinations of numbers and letters they use. A few of the possibilities include: three letters followed by three numerals (Kentucky, New Jersey, Ohio); three numerals and three letters (New York); all numbers (Illinois up to one million) and two or three letters followed by one to four numbers (Connecticut, Rhode Island). A recent innovative phenomenon in license plates is the advent of the personalized or VANITY plate, which permits an individual to purchase an exclusive identifying statement at extra cost.5 In the remainder of this study two sets of constraints imposed on the creative component of these individualized license plates will be examined. The first section deals with sociolinguistics. The second concerns purely linguistic factors. The highly visible and mobile language of personalized plates is subject to routine and often vigorous censorship by officials of the state agency which is charged with overseeing their dissemination (Division of Motor Vehicles, Department of Revenue or Office of the Secretary of State). This practice is widespread and it has received frequent coverage in the press.6 Such institutional or governmental disapproval is often arbitrary and reflective of the personal tastes of one or more powerful individuals within a bureaucracy who try to act as guardians of public decency. To a certain extent, the objectionable lexical fields of vanity plates reflect cultural fears and national and regional psychoses. The realms of official censure, however, are usually in the areas of sex and drugs. This type of official prejudgment is actually a form of prior restraint and as such is probably a violation of first-amendment constitutional guarantees of freedom of speech.

Organizations Promoting Civil Rights and Liberties

ficials hold their positions by the consent of large constituencies in which the individual is lost. Our days are shaped by vast corporations which may be regarded as supplemental governments in themselves. The individual has no power over these vast forces. Organizations, therefore, exist for the purpose of uniting the forces of those who share a belief in some objective. But, even among those who share a common desire to implement the constitutional guarantees of freedom and equality, there is wide divergence as to objectives. There is further divergence as to the best means to achieve agreedupon objectives. It sometimes appears as if at least one organization now exists in America for each objective and for each conceivable path to that objective, and that these organizations are supplemented by a vast number combining two or more objectives, plus a superstructure of coordinating and special-purpose agencies. To most citizens, therefore, the network of organizations now seeking to effectuate democracy is a jerry-built affair which must be inefficient to the point of ineffectiveness. Before considering whether that is true, a brief review of the existing organizations is in order. Since no entirely logical system of classification is possible, the classification below necessarily has as haphazard an appearance as the organizational structure itself.

Freedom of Speech and Commercial Solicitation

THE ambiguity and confusion that have existed regarding the extent of protection accorded by the constitutional guarantee of freedom of speech' to utterances concerning commercial transactions have received some clarification in recent decisions by the United States Supreme Court,2 the Supreme Court of California3 and the District Court of Appeal of California.' The questions that remain unanswered by these cases are many and confounding; however the following generalizations can safely be drawn from these decisions: