Judicial Research Articles

Analisis Sistem Pengawasan Hakim Dalam Mewujudkan Peradilan Yang Akuntabel

This study aims to examine and analyze the system of supervision and supervision of judges to realize an accountable judiciary. Research Methods Based on the research focus, this type of research is classified as normative legal research. Normative legal research is "a process rules to find a rule of law, legal principles, and legal doctrines to answer the legal issue at hand. The results showed that the judicial mafia that is endemic in the judicial power environment cannot be separated from the weakness of an institution's internal supervision system, the unconsolidation of internal and external supervision systems, the non-integration of inherent supervision and functional supervision, the non-accommodation of public participation through handling claims and complaints as well as the contribution of ideas and ideas to participate in maintaining dignity and respect Judicial power, weak character and integrity of judges and institutional leadership elements and still closed operational systems and procedures for the implementation of judicial power. With effective supervision, it can be ensured that judges carry out their duties by applicable ethical and legal standards.

The Legal Professional Privilege in Competition Law Cases – A Key Element in Protecting the Proper Administration of Justice

The legal professional privilege is an important principle underpinning the EU judicial system as it ensures the proper administration of justice, procedural efficiency and protects fundamental rights such as a client’s defence rights and the right to privacy enshrined in Articles 47 and 7 of the Charter. In competition cases, the European Commission has relied on an old ruling from the Court of Justice of the European Union (the ECJ), and only acknowledged one of these aims – the protection of the client’s defence rights. While the ECJ has recently received the chance to align the EU standard to that of the ECHR by broadening the scope of protection, the Commission appears unwilling to abandon its previous stance. It is important that the Commission shoulders the responsibility to ensure a procedure that is fair, and which acknowledges the basic principles underpinning a society governed by the rule of law. The current approach breathes life into questions on the legitimacy of its actions and the appropriateness of letting it take on the roles of enforcer, prosecutor and judge in competition cases, where companies not only risk having to pay fines of up to ten percent of their annual turnover, but now also appear to have to face the threat of divestitures should the Commission find that they are infringing the EU competition rules.

INSTALLATIONS OF THE JUDICIAL SETUP IN THE NEWLY MERGED AREAS OF ERSTWHILE FATA: THE FUTURE OF JIRGA

The Pashtun Jirga, a traditional dispute resolution system, has historically played a crucial role in promoting peace and resolving conflicts within Pashtun communities. However, the recent installation of a formal judicial system in the merged areas of the former Federally Administered Tribal Areas (FATA) in Pakistan raises questions about the future of the Jirga. This study examines the significance of the Jirga in Pashtun society and analyses the potential impact of the new judicial system on its continued existence. The research concludes that the formal system has had minimal influence on the prevalence of the Jirga primarily due to two factors: The local population is accustomed to and trusts the traditional Jirga system. Certain complex cases in the region prove challenging for the formal system to handle effectively, necessitating the assistance of the Jirga. Based on these findings, the study recommends the coexistence of both the Jirga and the judicial system. This approach would enable the region to benefit from the strengths of both traditional and formal systems, ultimately contributing to lasting peace and security.

Development and application of intelligent judicial trial assistance system based on generative artificial intelligence and machine learning technology

The intelligent judicial trial assistance system is an intelligent auxiliary judicial trial tool based on generative artificial intelligence and machine learning technology. It can achieve auxiliary functions such as case upload, trial result prediction, and legal document generation through automated, digital, and informational means. It utilizes technologies such as Recurrent Neural Networks (RNN) and Long Short-Term Memory networks (LSTM) to train generative models for generating trial recommendations and assisting in decision-making. Through in-depth research on the working principles and optimization paths of the intelligent judicial trial assistance system, the best applicable path for the system in judicial trial practice is explored. By establishing optimized models, risks and biases are minimized to the greatest extent.

Private schools and inequality

Abstract Among the significant inequalities within Britain’s school system, the greatest lies in the resources gap and the social segmentation between fee-paying and state schools. Published estimated average effects of attending private schools in Britain on academic performance are modest, but nevertheless significant at each stage of education. Cumulatively, by the end of a school career the private school pupil has gained notably higher qualifications compared with a state school pupil with an observably similar background—enough to ensure a distinct advantage in access to a high-status university, a good job and high pay. These gains add to the educational advantages of growing up with an affluent family background. An unusually high proportion of private school alumni occupy highly influential positions in business, in the judicial system, in the press and in politics. A further financial advantage from private school stems from an increased probability of partnering with a richer spouse. The hallmark of a good school policy for reducing inequality would be one that opens up access to private schools, so that participation is no longer constrained as much by financial background, and diminishes substantially the inequalities between schools’ resources. Feasible reforms are of two kinds: those that would lower parental demand for private schooling, inducing enlargement of the state sector, and those that would directly integrate pupils from the state sector into currently private schools. Currently, bursaries are far too small to make a substantial difference.

Same-sex marriage in Japan and the role of courts in a dominant party system

Japan is increasingly isolated among advanced economies in not having made provision for same-sex marriage or same-sex civil unions at the national level. The main political obstacle to legal recognition of same-sex couples is the Liberal Democratic Party (LDP), Japan’s dominant party, which has ruled the country with only two interruptions since 1955; many other parties support legalizing same-sex marriage, while the LDP does not. The literature suggests that the LDP secured its dominant position due to opposition fragmentation and ineffectiveness, and its own clientelist practices. Against this backdrop, cases are progressing through the Japanese judicial system seeking a finding that same-sex marriage is required under the 1947 Constitution. At the time of writing, the results of these cases have been mixed, with one case finding the current marriage law unconstitutional and two finding it constitutional. This article contends that Japanese courts should find in favour of these claims and hold that same-sex marriage is constitutionally required. That is so not merely because it is the better position under existing legal doctrine relating to equality and non-discrimination under Article 14(1) of the Constitution, but also because the dominant party status of the LDP means that there is less reason in constitutional theory for courts to show deference to the legislature. In a dominant party system, there is less reason to expect that the government will pay sufficient heed to rights, while ‘counter-majoritarian’ difficulties with judicial review are less credible given the more ambiguous nature of the democratic mandate of the legislature. This undercuts a significant justification given for judicial deference.

Post-truth and post-trust: how to re-define trust in the judicial system and the media

This article revisits the rational and symbolic elements of assumed and earned trust, and how social and political trust is intertwined with trust in the judiciary and the media, as key control points in a democratic system. As such, they are also primary targets of populist-autocratic movements. The article enumerates how the transformation of the information environment has shattered traditional structures and opened new ways of questioning existing injustices. The result is an information landscape which is not only post-truth but also post-trust. New methods and processes of institutionalising processes of earning trust and structuring distrust have become necessary.

Medical Negligence and Consumer Protection Laws: A Swift Analysis and Recommendations

Medical negligence is a critical issue affecting countless patients and their families globally, with significant implications for all nations. Despite the existence of legal frameworks designed to protect patients’ rights, the implementation and enforcement of these laws are often inadequate. This inadequacy is compounded by the inherent complexity of medical evidence and the stringent legal requirements for establishing negligence. Proving medical negligence involves demonstrating that a healthcare provider owed a duty of care to the patient, breached that duty, and caused harm as a direct result of the breach. This paper delves into the intricacies of Pakistani laws related to medical negligence. It explores notable cases, and discusses the systemic challenges in proving such negligence. The burden of proof, the high threshold for establishing a breach of the care standard, and the scarcity of expert witnesses present significant obstacles for patients seeking justice. Furthermore, the inefficiencies of the judicial system, including prolonged litigation and limited access to legal resources, exacerbate these challenges. The paper argues that a comprehensive and sustainable approach is essential to address these issues effectively. This approach should include raising awareness about patients’ rights, enhancing the quality of healthcare services, and implementing and enforcing robust laws and regulations. Additionally, promoting access to justice through specialised medical tribunals and providing support to collect and present medical evidence are crucial steps toward ensuring accountability in healthcare. By leveraging advancements in digital technology, documentation, and information sharing, stakeholders can work towards a more transparent and accountable healthcare system. Such reforms are vital for protecting patients from medical negligence and ensuring that they receive the care they deserve. Through a detailed examination of the current legal landscape and practical recommendations for improvement, this paper contributes to the ongoing discourse on healthcare reform, ultimately striving for a system that upholds the highest standards of medical care and patient safety.

Digitalization and foreign direct investment performance: The moderating role of corruption and judicial independence

The aim of this paper is to investigate the relationship between digitalization and foreign direct investment (FDI) and test whether corruption (COR) and judicial independence (JUD) moderate this relationship. The sample contains 114 countries during 2016. The author obtains FDI data from the World Development Indicator (WDI) database, which was published by the World Bank in 2016. The World Bank’s digital adoption index (DAI) for 2016 was used to collect digitalization proxies. Finally, the remaining variables are gathered from the Global Competitiveness Report for the same year. Results show a positive and significant association between digitalization and foreign direct investment. This positive association remains stable and more pronounced and significant in countries with low levels of corruption, while it becomes weak and non-significant in countries with high levels of corruption. When the moderating effect of judicial independence is tested on the association between digitalization and foreign direct investment, the positive association between the two variables remains positive but more pronounced and significant in countries with high judicial independence systems, while it becomes low pronounced and non-significant in countries with low judicial independence systems. The findings emphasize the importance of decreasing corruption and strengthening judicial independence in order to maintain the positive relationship between digitization and FDI. Therefore, investors prefer stable environments with transparent legal systems, making anti-corruption policies and independent judiciaries critical in attracting and retaining FDI. These initiatives promote trust, foster a favorable business climate, and ensure that digitalization contributes to long-term economic progress.

What is important in forensic psychiatric evaluation in people with Down syndrome? A sample from Türkiye

PurposeDown syndrome is one of the common genetic causes of intellectual disability. Adult with Down syndrome may have many psychiatric comorbidities. Therefore, their mental health status should be considered in legal proceedings such as criminal responsibility and legal capacity where they are involved. This study aims to highlight that individuals with Down syndrome are often referred directly to forensic psychiatry without undergoing an interview, despite the fact that this is a group with varied mental statuses.Design/methodology/approachThis study analysed the socio-demographic, clinical and forensic characteristics of eight adult individuals with Down syndrome for whom the Council of Forensic Medicine (CFM) requested an opinion on criminal liability and other legal situations between 2018 and 2022. The CFM is an authoritative institution to which cases from all areas of Türkiye are referred.FindingsThe mean age of the individuals with Down syndrome for whom a forensic psychiatric opinion was requested was 24.63 (±7.95) and the mean IQ level was 54.13 (±13.38). All cases were male, 6 / 8 were referred for assessment of criminal responsibility and 4 / 6 of those referred for assessment of criminal responsibility were referred for sexual offences. It was found that 5 / 8 of the cases had moderate intellectual disability and 3 / 8 of the cases had mild intellectual disability.Research limitations/implicationsRegarding the limitations of this study, the first one is the small sample size. Nevertheless, due to the low prevalence of people with Down syndrome in society, it is plausible that their stigmatization may not be reflected in the judicial system, even in cases involving violent behaviour. The second limitation is that the reports lack all psychiatric medical documents, including forensic psychiatric evaluations of individuals with Down syndrome. Additionally, additional diseases were recorded based on familial anamnesis. The third limitation is that this study is the first publication to investigate Down syndrome from a forensic psychiatric perspective. Thus, there is a lack of literature to make direct comparisons and references in the discussion section.Social implicationsThis is the first study about forensic psychiatric aspects for people with Down syndrome. The aim of this study was to examine the forensic psychiatric approach in Down syndrome, one of the most common genetic causes of intellectual disability, the situations in which forensic psychiatric assessment is required and the issues that might be considered important in this regard. Although there are various publications in the literature on the psychiatric conditions of individuals with Down syndrome, to our knowledge, this is the first study to evaluate individuals with Down syndrome in terms of forensic psychiatric evaluation. People with Down syndrome are known to have varying degrees of intellectual disability and different types of psychiatric comorbidity.Originality/valuePeople with Down syndrome are a heterogeneous group in terms of intellectual disability. The criminal responsibility and legal capacity of individuals may vary according to the legal situation. When requesting forensic psychiatric evaluation of these patients with psychiatric co-morbidity, patients should not be prejudged in terms of their level of mental competence and each case should be assessed individually.

The State of American Federalism 2023–2024: Judicialization of Gridlocked Politics

Abstract Contemporary American federalism, while characterized by nationalized policy battles in the states, is also increasingly defined by the centralization of power in the federal judiciary. In this introductory piece of the 2023–2024 Annual Review issue, we unpack the judicialization of federalism politics. This process, we argue, has been facilitated by national political gridlock, defined by increasing dysfunction in Congress, and the growth of the administrative presidency. In policy conflicts on subjects ranging from education and the environment to abortion and other individual rights, courts have played an increasingly significant role as the arbiter of the federal–state balance of power. As the articles in this Annual Review illustrate, with a few exceptions, judicialization of federalism has often resulted in the devolution of authority to the states, with significant implications for public policy and democratic institutions.

Women's representation in higher leadership positions in Ethiopia in the last three decades since 1991.

Gender equality in decision-making positions is crucial to achieving the goals of good governance, peace, democracy, and inclusive/sustainable development. The major aim of this research article is to investigate the representation trend of women in higher decision-making positions over the last thirty years, since 1991. The federal three organs of government (law formulating, law enforcing, and law interpreting bodies) were the focus of this research. This research is a mixed type of research that inculcates both qualitative and quantitative data types. Secondary data sources from relevant government institutions were mostly used. The data was analyzed through content analysis of documents and presented via descriptive data presenting techniques. The research findings reveal that although women's representation in positions of decision-making has advanced considerably in recent years, the empirical data throughout the previous thirty years demonstrated the underrepresentation of women in higher leadership positions within the Ethiopian federal government. Furthermore, Women never held certain higher-level government leadership positions, such as the Prime Minister position, which seems to be forbidden for women. Women made up 23%, 19%, 19%, and 24% of the House of Peoples Representatives (HPR), the House of Federation (HoF), ministerial posts, and judicial bodies, respectively over the last three decades. Women are visibly underrepresented in the executive positions as compared to others. Thus, substantial policy and practical initiatives are needed to remove institutional, social, and economic barriers to boost women's advanced visibility in senior leadership roles.

MISJUDICIAL MISUNDERSTANDING: State Reparation and Criminal Review

Miscarriage of justice is a factor present in the judicial system, affecting the lives of countless people, who suffer directly from their conviction or indirectly from its repercussions. This paper aims to present a study on miscarriage of justice, especially focusing on errors resulting from criminal proceedings, seeking to demonstrate the State's responsibility to make reparations for errors in the provision of criminal jurisdiction. Using an interdisciplinary study of various areas of law and specific cases, the paper seeks to delve deeper into the reasons that may be decisive in the erroneous outcome of the process. The paper is based on data research that allows for a deeper understanding of the problem, as well as on the analysis of the historical case of the Naves brothers and other cases of error. It also presents the Innocence Project program , from the USA and now in Brazil, whose role is to investigate and file review actions in cases where there was an error in the judgment of the criminal action. This research also delves deeper into the autonomous action of criminal review, which presents itself as one of the tools to repair the error and provide due compensation. The use of mechanisms such as adversarial proceedings are ways of reducing errors in actions; furthermore, the possibility of the procedural and constitutional system providing for reparation and compensation is a positive factor, and its application should be favorable to the detriment of res judicata.

A Qualitative Exploration of the Impact of the COVID-19 Pandemic on Parents’ Experiences of Parental Alienation in the United Kingdom

In the aftermath of the global COVID-19 pandemic, it has been highlighted how measures necessary to fight the disease inadvertently exacerbated family violence and placed strain on the judicial system. Across the four countries within the United Kingdom, delays were, and still are, particularly prevalent in family law proceedings, partly due to new breaches in child arrangement orders associated with the pandemic lockdown. The present study therefore examined the experiences of nonresident parents (NRPs) who self-identified as targets of behaviors representative of parental alienation (PA) during the COVID-19 pandemic in the United Kingdom. Using an online survey, 76 nonresidential parents’ responses (92% male;Mage= 45.1 years of age; standard deviation = 7.9) were thematically analyzed. Several themes emerged, including (a) experiences of PA (i.e., risks for children and risks for parents), (b) intimate partner violence (i.e., emotional abuse, physical abuse, and financial abuse), and (c) institutional abuse (i.e., COVID-19, family law, and safeguarding). Specifically, parents detailed several alienating behaviors such as belittling, manipulation, and coercive control, as well as novel forms of coercive controlling patterns, which illustrated how the COVID-19 lockdowns created new opportunities for alienating parents to manipulate the NRP–child relationship. The implications of the results are discussed, including recommendations on improving safeguarding protocols for children with contact orders in place and adopting policy measures to support NRPs. These are also discussed in the context of reforming the justice system utilizing COVID-associated “lessons.”

Strengthening Law Enforcement to Address White-Collar Financial Crime in South Africa's Private Sector

With the government's focus on combatting public sector corruption and violent crime, the plight of white-collar financial crime in the private sector is of subordinate priority. This contribution seeks to explore means to enhance the capacity of law enforcement agencies to combat white-collar financial crime in the private sector. We clarify the salient terminology and give an overview of the role of financial sector regulators in financial crime prevention in South Africa, focussing on the Financial Sector Regulation Act 9 of 2017. Financial sector regulators have an important role to play against financial crime, though they are dependent on the criminal justice system to protect the financial sector against criminals. This section is followed by an overview of the role and functions of the South African Police Service, the National Prosecuting Authority, and the court system. We identify difficulties which may hinder the prosecution of white-collar financial crime. First, there is a tendency that companies do not investigate conduct that may amount to white-collar financial crime, and otherwise do not report such incidents. Second, there is a need for a specialised and independent law enforcement agency to attend to serious white-collar financial crime. There is also a skills shortage in the National Prosecuting Authority relative to the intricacies of white-collar financial crime. As remedial measures, companies ought to apply the corporate governance principles of King IV more robustly. Artificial intelligence can also be utilised to prevent white-collar financial crimes committed in cyberspace. Private sector agencies should be vested with a more comprehensive duty to report white-collar financial crime to the authorities, and the protection and scope of whistle-blowers should be increased. We propose the introduction of Deferred Prosecution Agreements, as well as cooperation between the State and the private sector, to weaken capacity constraints in the prosecution process.

Distinction between law enforcement activity and military activity in article 298(1)(b) of UNCLOS: Commentary on recent international decisions

The war between Russia and Ukraine has brought the previously dormant military activity exception back into the spotlight. Yet, considering the sensitivity of military actions and the multifaceted functions performed by warships and coast guard vessels in practice, one may question whether a viable standard for distinguishing between law enforcement activity and military activity is possible at all. Therefore, instead of focusing on the intricacies of legal doctrines, it might be helpful to look at the issue from the perspective of the role of international judicial bodies in dealing with disputes with wide political ramifications. While it is always possible for courts and tribunals to identify legal issues arising from a broader political context, it must be recognized that piecemeal judicial solution is a poor substitute for political dispute settlement mechanisms. The harsh truth remains that, in a decentralized legal system dominated by the will of states, judicial restraint is perhaps the only way forward for international adjudication.

MAIN TRENDS AND PROSPECTS FOR IMPROVING THE ADMINISTRATIVE JUDICIAL SYSTEM

The article is devoted to the analysis of the judicial system reform in the Republic of Uzbekistan, with a focus on the establishment and development of administrative courts. It describes the necessity of changes driven by democratic transformations and state modernization. The article provides data on judicial practice, highlighting the significance of administrative courts in protecting the rights and freedoms of citizens, as well as the interests of legal entities. Issues related to the jurisdiction of administrative cases and the territorial accessibility of courts are analyzed. The article examines international experience in the functioning of administrative courts, serving as a basis for proposals to further improve the administrative justice system in Uzbekistan. The importance of optimizing the activities of administrative courts is emphasized to ensure the rule of law and protect citizens' rights in the context of New Uzbekistan.

Gender and orientation diversity in the family courts: A guide to terms and present issues

AbstractFamily court systems sort, explore, and resolve many youth, couple, family, and community concerns and issues. Recognizing the vast diversity of all people, and thus the vast diversity of the concept of family, this article defines and discusses many of the ideas central to diversity, identity, and family. This resource can assist family court professionals in interpreting and applying LGBTQ+ family court research, helping to create a more robust awareness and ability to empower those who utilize family court and family support systems.

서울가정법원의 소년법원적 기원과 비인간화의 기술

The Seoul Family Court was established on October 1, 1963 as the successor to the Juvenile Branch Court of the Seoul District Court. The Seoul Family Court considered the investigation of juvenile cases and the investigation and mediation of family cases as the main principles of the family court. This meant that the knowledge and system of the juvenile court, which punished juvenile delinquency, and the techniques of dehumanization using various disciplines were justified under the system of the family court. In this way, the mediators of the Seoul Family Court assumed the role of “therapeutic justice,” which expanded social norms and control over the family and continuously disseminated relevant content to society. This “therapeutic justice” was a combination of public and private intervention, realized primarily through the reconstruction of common-law marriage norms and the reinforcement of heterosexual normal family norms through family court decisions. This technique of dehumanization, which does not recognize the self-determination of the individual, encompassed both heterosexuals and homosexuals in Korea at that time.

Evaluating International Criminal Procedures: Inquisitorial, Adversarial, or Hybrid - Lessons for the Pakistani Legal System

This Article examines two key aspects of international criminal procedure (ICP): the normative frameworks that govern ICP and procedures being utilized by International Criminal Tribunals (ICT) and Courts. It examines the established norms and practices of international tribunals. The discussion encompasses the formulation of standards, guidelines, and guarantees aimed at preventing judicial errors. It evaluates that whether ICP can be characterized as "adversarial," "inquisitorial," or “a blend of both”. It examines the case law and legal framework of international courts and tribunals. Employing a comparative and analytical research methodology, this article demonstrates that a genuinely hybrid procedure has emerged through successive amendments to the ICT for the former Yugoslavia and its rules of Procedure and Evidence (RPE) and the formulation of the Rome Statute. This procedure effectively synthesizes elements from both traditions; common law (adversarial) and civil law (inquisitorial) into a cohesive international legal framework. The article emphasizes the convergence of legal positions across jurisdictions. The observed similarities in legal frameworks arise from the universal recognition of the importance of justice in shaping human coexistence. However, the article acknowledges that the diversity in human minds leads to variations in devising solutions and creating means, explaining the inherent disparities in legal approaches across different contexts. It will be beneficial for Pakistan to adopt Islamic Criminal Procedure having hybrid criminal procedure that will improve the efficiency of our judicial system, ensuring swift resolution of criminal cases with effective outcomes.