High Court Decision Research Articles

Reimagining the Strange and Familiar in National Belonging: Memory, Heritage, and Exclusion in the Dominican Republic

Recent constitutional reforms and high court decisions in the Dominican Republic made an estimated 200,000 Dominicans of Haitian descent stateless when rulings retroactive to 1929 invalidated their birthright citizenship. Some social actors—including diasporic Dominicans and Haitians—connect the crisis of exclusion to the nation’s difficult heritage—namely, the 1937 massacre of thousands of Haitians and other black bodies in the Dominican Republic borderlands dividing the two nations, and the subsequent decades of authoritarianism that constructed Haitians and blackness as the nation’s strange “other.” A new museum in Santo Domingo, and an annual binational commemoration at the border between Haiti and the Dominican Republic about the 1937 massacre bring attention to the historicity of present-day understandings of Dominicanidad (being Dominican), reminding the public that such definitions are rooted in state violence. This research examines how memory activism strives to transform familiar, though exclusionary, understandings of national belonging in the Dominican Republic.

PUBLIC INTEREST VERSUS FORESTS

ABSTRACT This article analyses role of the concept of “public interest” in forest management, governance and conservation in Turkey and seeks to obtain an insight into the “public interest” through exploring the permit process given by the State, and to help better understanding the roots of current issues. An institutional approach will be followed and various formal and informal legislation will be explored in their complex and dynamic interplay, which leads and shapes practices on the ground and resulting outcomes. The purpose of this paper is to bring some new perspectives to the debate about the proper balance between economic development policies and forest protection. It is also hypothesized that the concept of “public interest” could increase and lead deforestation through legislation. It first explains the theoretical framework on resource management, forest policy, and public interest. This general overview is followed by a more in-depth analysis of the role that public interest plays in deforestation via the permit process in the State forests. Turkey has lost irrevocably an area of 654.833 hectares in the State forests via the 94.148 permits granted. This analysis of public interest confirms that it is important to avoid legislation that overreaches. The concept of public interest may exceed implementation capacity (i.e., there may be an imbalance between the activities, procedures and institutional arrangements prescribed by legislation and high court decisions). Re-organization of decision-making mechanisms/process with a more participative approach is an important step toward achieving good governance and sustainability of the forest resources.

Rep v. Chimkango: The Application of Kafantayeni to Pre-resentencing Appeals Against the Mandatory Death Penalty in Malawi

Despite confirming in several decisions that the striking down of the mandatory death penalty in Kafantayeni v. Attorney General entitled all offenders sentenced under the mandatory death penalty regime to a fresh hearing on sentence, the Malawi Supreme Court of Appeal (MSCA) entertained appeals against the original (now unconstitutional) mandatory death sentences in the absence of resentencing hearings in the High Court. The question that arose in Rep v. Chimkango was whether the High Court has the jurisdiction to hold a resentencing hearing in respect of a death sentence which had already been confirmed by the MSCA on appeal. The High Court, considering itself bound by judicial precedent and wary of running afoul of the doctrine by ‘faulting or refusing to be bound by’ the MSCA's decision, remitted the case to the MSCA for directions or resentencing. This article explores the High Court's decision and the status of appeal decisions against mandatory death sentences before the resentencing hearings. It argues that by entertaining these appeals, the MSCA dubiously assumed an original criminal jurisdiction mode within the confines of appellate principles instead of dismissing them as premature and directing the appellants to pursue a resentencing hearing in the High Court. The article also faults the decision of the High Court for not affording the accused a resentencing hearing.

More Intel on the territorial limits of EU competition law

The recent increased focus of the European Commission on cartels formed and operated outside of the EU, which nonetheless harm competition in the internal market, has led to a corresponding increase in private damages actions being pursued in the English courts for losses occasioned by those cartels. Those private damages actions have tested both the jurisdictional reach of the English courts and the territorial scope of EU competition law. This article discusses the successful appeal by iiyama against the partial strike out of its private damages claims in the English High Court for losses occasioned by the CRT Glass and LCD cartels. The impact of the Court of Justice's decision in Intel, which was handed down between iiyama's damages actions being struck out and its successful appeal, is also discussed, together with the High Court's subsequent decision in Unlockd, which followed Intel and iiyama. Taken together, these cases provide significant increased clarity on the issues of jurisdiction and applicable law in private damages actions before the English courts.

The Scope of the Powers of the Minister of Finance in Terms of Section 48(1)(b) of the Customs and Excise Act 91 of 1964: An Appraisal of Recent Developments in Case Law

This paper evaluates the scope of the powers of the Minister of Finance upon a request from the Minister of Trade and Industry to amend Schedule 1 to the Customs and Excise Act 91 of 1964 (hereafter, CEA) in respect of imported goods as provided by section 48(1)(b) of the CEA. This assessment entails a case analysis of the High Court decisions in South Africa Sugar Association v the Minister of Trade and Industry 2017 4 All SA 555 (GP) and Pioneer Foods (Pty) Ltd v Minister of Finance 2017 ZAWCHC 110 (29 September 2017). These two cases offer for the first time, clarification on the nature of the power conferred on the Minister of Finance by section 48(1)(b) of the CEA. The High Court in these two cases rejected the argument that the role of the Minister of Finance in respect of the power conferred upon him/her by section 48(1)(b) is that of a "registrar" who merely 'rubberstamps' the decision of the Minister of Trade and Industry. Consequently, the High Court in both matters held that a veto power is conferred on the Minister of Finance which permits him/her to either accept or decline the request of the Minister of Trade and Industry to amend Schedule 1 of the CEA.To the contrary, this paper argues that if the Minister of Finance declines the request of the Minister of Trade and Industry, s/he is not 'giving effect' to the request of the Minister of Trade and Industry as required by section 48(1)(b) of the CEA and is thus acting ultra vires because s/he is assuming powers which never conferred on him/her by the legislature. This paper also argues that the High Court in both matters, misconstrued the relationship between section 48(1)(b) and the "public interest" provisions in section 48 and thus unjustifiably stripped the Minister of Trade and Industry of his/her power to implement an amendment to Schedule 1. In the final analysis, this paper explores the impact of the Customs Duty Act 30 of 2014 on the Minister of Finance's powers in this regard.
 

Assisted dying challenges: Dynamic and stasis in the UK courts: Conway v. Secretary of State for Justice

This commentary reviews the High Court Decision in Conway v. Secretary of State for Justice. Mr Conway’s argument, that section 2(1) Suicide Act is incompatible with his right of respect for his private life under Article 8(1) European Convention on Human Rights, adopted as a Convention right for the purposes of the Human Rights Act 1998, was dismissed. The comment discusses four themes arising from the case. First, it examines how the High Court attempts to distinguish claimants who can act to end their own lives, such as Mr Conway, from individuals who cannot carry out any act to commit suicide. This distinction is arguably morally arbitrary and runs counter to principles of equal concern and respect. Second, Mr Conway puts forward an alternative statutory scheme with specific procedural criteria, designed to safeguard relevant competing legitimate interests; to protect the weak and vulnerable while legalizing assisted suicide in certain circumstances. However, the nature of Mr Conway’s argument regarding this alternative statutory scheme misses the point. It is possible for a court to find the current legislative measure, section 2(1) Suicide Act, to disproportionately interfere with a claimant’s Article 8(1) right in principle, without having to be satisfied there is a future legislative measure that does better balance competing legitimate interests. Third, the comment shall consider the High Court’s reasoning behind holding that Nicklinson was not binding insofar as deciding Mr Conway’s case. Finally, the ethical nuance of the court’s consideration of the aim of section 2 shall be considered briefly.

High Court Finds Exports to Foreign Associate Not Comparable with Goods Sold in Domestic Market

This case note reviews the High Court decision in Principal Commissioner of Income-tax-5, Pune v. Keihin Fie (P.) Ltd, which held that margins derived on the export of components and parts to an associated enterprise of the taxpayer were not comparable with the margins derived from sales of goods made in the domestic market because the parts and finished goods were not comparable and the classes of customers to which they were sold were different.

ANALYSIS OF THE HIGH COURT DECISIONS ON INFORMED CONSENT CASES IN TURKEY FROM A FORENSIC POINT OF VIEW

Informed consent is linked to the principle of patient autonomy and has an important place in universal medical ethics rules and legal regulations. The aim of this study is to identify the decisions and criticisms of the high court (Yargıtay) in Turkey related to informed consent and to discuss them from a medicolegal aspect. In the search engine of the website publishing high court decisions, the keywords “informed consent”, “information”, “consent” and “assent” were used without any date limitation. In this study, N=32 high court verdicts were investigated. The data obtained were discussed in light of the literature. In 23 of the cases (71.9%) surgical interventions requiring general anesthesia; in 9 cases (28.1%) surgical interventions not requiring general anesthesia and diagnostic/treatment medical applications were performed. There was a statistically significant difference identified in terms of “surgical interventions not requiring general anesthesia and diagnostic/treatment medical application” between the groups with informed consent and without informed consent. The high court identified that in 17 of the cases (53.1%) informed consent was not present while in 15 (46.9%) informed consent was obtained. The court could not prove that informed consent was obtained in 15/17 cases in the group without consent, while in 7/15 cases in the consent group inadequate informed consent was obtained. The high court questioned the scope and adequacy of informed consent for surgical interventions both requiring and not requiring general anesthesia and for all types of medical intervention with diagnostic/treatment purposes. The types of medical applications that require written informed consent and the aims of informed consent should be re-evaluated.

Personal Laws and the Constitution: Revisiting Narasu Appa Mali

The Constitution of India Guarantees to its citizen the Freedom of Conscience and free profession, practice and propagation of religion, the freedom to manage its religious affairs under Part III i.e The Fundamental Rights chapter of the Indian Constitution. The same part III of the constitution also guarantees to its citizens the right to equality before the law or equal protection of the laws, the prohibition of discrimination on grounds of religion, caste, sex etc, the right to liberty which includes within itself the right to live with dignity and let alone to mention that even article 25 which grants the freedom of religion is also subjected to the other fundamental rights and thus is not absolute. The question which arises is how then some of personal laws being patriarchal, and on face discriminatory against the women like which moves against the fundamental rights can still exist and manage the scrutiny of fundamental rights? In this paper after establishing the current position of law, I have tried to examine and scrutinize the legal reasoning and rational behind the Bombay High Court decision in State of Bombay v. Narasu Appa Mali where the court held that the personal laws are outside the ambit of judicial scrutiny under article 13 and because of which even today, after 65 years of developed constitutional jurisprudence, some of the discriminatory personal laws continues to be in practice.

Montgomery, informed consent and causation of harm: lessons from Australia or a uniquely English approach to patient autonomy?

The UK Supreme Court in Montgomery v Lanarkshire Health Board adopts an approach to information disclosure in connection with clinical treatment that moves away from medical paternalism towards a more...

Shipment of counterfeit goods in Singapore: the extent of liability of freight forwarders

Louis Vuitton Malletier v Megastar Shipping Pte Ltd [2017] SGHC 305 (High Court of Singapore, 24 November 2017) (LV v Megastar) The Singapore High Court held that a freight forwarder of a shipment of counterfeit goods was not liable for trade mark infringement. The High Court decision provides useful guidance in relation to what constitutes an ‘import’ and whether a freight forwarder is an ‘importer’ for the purposes of determining trade mark infringement.

There and Back Again? Police Reforms Through the Prism of the Recruitment Decisions in the High Court and the Court of Appeal

On 30th June 2014, the National Police Service Commission (hereinafter NPSC or the Commission) in exercise of its powers under Article 246 of the constitution put out an advertisement in the local dailies seeking to recruit 10,000 suitable and qualified candidates as Police Constables. The recruitment exercise was to be carried out nationwide in all 294 recruitment centres on 14th day of July 2014. This was to be the largest National Police Service recruitment exercise in the country’s history. After the exercise, a plethora of complaints arose regarding the manner the exercise was carried out, in particular, allegations of massive corruption were made against the sub county recruitment committees which were entities set up by the Commission at sub-county levels to conduct the recruitment exercise at the centres. Following receipt of these complaints and on the basis of its own observations from monitoring the exercise, the Independent Policing Oversight Authority (IPOA), a state agency established under the Independent Policing Oversight Authority Act, Number 35 of 2011, with an oversight mandate over the National Police service, recommended to the Commission to cancel the entire exercise and conduct fresh recruitment. The Commission declined to repeat the exercise and instead formed a multi-agency working committee to investigate the claims. The working committee released its report in which it recommended nullification of the exercise in only 36 of the 294 centres. Dissatisfied with the position adopted by the Commission, IPOA filed a petition before the High Court, seeking inter alia nullification of the entire recruitment exercise. On 31st October 2014 the High Court delivered its decision in which it nullified the entire recruitment exercise and directed that a fresh recruitment exercise be conducted in tandem with the provisions of the Constitution and the National Police Service Commission Act. Dissatisfied with the judgement of the High Court, the Commission on the 17th November 2014 lodged an appeal before the Court of Appeal. However before the Court rendered its decision, following pressure from the executive, the Commission on 20th April 2015 conducted another recruitment exercise . The Court of Appeal on the 8th day of May 2015 rendered its judgement on the 2014 recruitment exercise in which it upheld the high court decision and dismissed the appeal.The case before the High Court and the Court of Appeal raised important legal issues that impact police reforms in Kenya. In particular the High Court considered issues regarding, transparency, accountability public participation and discrimination of women in the recruitment of police officers and both the High court and Court of Appeal considered the question of delegation of constitutional powers and whether recruitment powers constitutionally reposed upon the Commission could be delegated to other entities.This paper analyses the court’s determination on these key legal issues that were canvassed both before the High Court and in the Court of Appeal. In light of that analysis the paper interrogates how the courts’ determinations impact police reforms in Kenya in particular with regard to recruitment of police officers.The first part of the paper therefore briefly looks at police reforms in Kenya focusing on the recruitment of police officers as a key pillar of police reforms and the rationale behind reforms to the recruitment process. The second part of the paper looks at the recruitment case before the High Court and the Court of Appeal. The paper focuses on key legal issues that came up before the courts impacting on police reforms; transparency, accountability, public participation, discrimination and delegation of constitutional powers and how the courts analyzed and dealt with these issues.The third part considers how the courts’ determinations have impacted police reforms with regard to recruitment especially in view of the second recruitment exercise carried out in April 2015.The last part of the paper concludes by interrogating whether the intended entrenchment of the reforms in the recruitment of police officers was achieved through the petition or was it a case of there and then back again.

A cautionary tale regarding Aboriginal and Torres Strait Islander rights: lessons from US Supreme Court limits on American Indian tribal power

ABSTRACTSince the Australian High Court's decision in Mabo v Queensland (No 2), and the Native Title Act that followed, national discussion of the rights of Aboriginal and Torres Strait Islander peoples has primarily focused on land rights. The recent recognition-versus-treaty debate, however, has opened the door for awareness, advocacy and dialogue beyond land rights and including, among others, rights to Indigenous governance and jurisdiction. In the United States, by contrast, American Indians have long held greater rights to governance and jurisdiction than Aboriginal and Torres Strait Islander peoples. Nonetheless, the US Supreme Court has over the past 40 years dramatically restricted this category of rights for Indian peoples. The present article shows how this trend sheds light on potential pitfalls regarding the expansion of Indigenous rights in Australia. An investigation of key US Supreme Court judgments, together with an examination of the historical and contemporary forces that have driven those judgments: (a) reveals possible shortcomings of the Mabo case and the Native Title Act in regard to land rights; and (b) provides insight into the risks of future paths, whether by recognition or especially treaty, to be taken by Aboriginal and Torres Strait Islander peoples in seeking further right.

Classification under Mental Health Act 1983 and consent to treatment

A ruling was recently passed in the Court of Appeal, and this judgment is likely to have a significant bearing on psychiatrists working with patients detained under the category of mental impairment and psychopathic disorder. The Court was hearing an appeal against the decision of the high court

The Common Law Principle of Universality Extended in the Wake of Hanjin Shipping’s Insolvency

The Singapore High Court decision in Re Taisoo Suk is a notable development of the law on cross-border insolvency for two reasons. First, the decision has implications on the relationship between the admiralty jurisdiction in Singapore and the Singapore court’s inherent powers in the context of cross-border insolvency. Second, it is the most recent in a series of cases breaking from Rubin v Eurofinance SA (Rubin) and developing Singapore’s common law authority to assist foreign insolvency proceedings. While Singapore subsequently adopted the UNCITRAL Model Law on Cross-Border Insolvency (Model Law), the increased scope of the court’s inherent authority remains a flexible tool available to debtors and, whereas the Model Law’s adoption in the Companies Act (enacted 1967, amended 2017) does not extend to personal bankruptcy, the decision paved the way for common law recognition of foreign personal bankruptcy proceedings. The case also establishes persuasive precedent for jurisdictions seeking to adopt a more flexible common law approach.

Copyrightability and Formats of Television Shows under English Law

The article discusses the High Court decision in Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd (Ch D) on whether the format for a television game show can be eligible for copyright protection under English law. It analyses the conditions required for the format of such shows to be classified as dramatic works and considers the importance of the decision for the media industry.

Focus: Offshore Workers Challenge Chevron's Offshore Tax: A $10B Win for Australia & Wins for Workers

6 | International Union Rights | 25/1 FOCUS | TAX AND TRADE UNION RIGHTS Offshore Workers Challenge Chevron’s Offshore Tax: A $10B Win for Australia & Wins for Workers An international coalition of unions recently established a new centre for corporate tax accountability. International research will help unions better campaign on corporate tax issues To fight back against a frontal assault on labour standards in Australia, the ITF took on Chevron, the US-based global oil giant. The ITF’s Chevron campaign has been a huge success and should be a lesson for global unions. Unions need to avoid the temptation to bunker down and fight for a shrinking number of members. If unions are going to succeed in turning the tide against a weakening labour movement and growing corporate dominance, we need to adopt new strategies and new tactics that will also help organise and win for new members. The global trade union movement must expand our fight against capital and directly challenge corporate power beyond the shopfloor. Every dollar in tax avoided by multinationals is making inequality worse. It is a theft from our children’s schools, our hospitals, care and dignity for our elders, our communities and other essential public services that workers rely on everyday. Along with actions by the Australian Tax Office (ATO), the ITF’s efforts have helped the Australian government collect an estimated one billion in back taxes from Chevron. The Australian government has predicted that new tax rules -resulting from a major court victory by the ATO against Chevron- will bring in over $10 billion in additional tax revenue from Chevron and other multinationals over the next decade. The ITF has led the way globally in teaching one of the world’s largest and most agressive multinationals that attacking workers and ignoring unions can have serious and costly consequences far removed from any industrial disputes. As a consequence of the ITF’s campaign, corporate tax dodging continues to be a major political and public issue in Australia and even the current conservative government has been forced to take action. Chevron, Offshore Labour Standards & Maritime Unions Chevron and other companies have operated in Australia’s offshore oil and gas industry for decades and have had positive working relationships with the Maritime Union of Australia (MUA) and other unions. In 2009, when Chevron began the constructing the massive Gorgon project off the coast of Western Australia things changed. Chevron and it’s contractors refused to engage in any meaningful dialogue with unions, employed exploited foreign workers and dramatically undercut existing wages and conditions. Several actions were taken by the MUA, culminating in a strike in 2012 which shut down the project for 2 days. Chevron took the union to court. In 2014, federal judges ruled that the strike action was illegal. Chevron pursued the union through the courts and sought $20 million in damages1. The federal court proceedings over damages are still ongoing. Meanwhile, the MUA won a landmark high court decision in mid-2016 which ruled that offshore workers must be covered by Australia’s labour and immigration laws2. In mid-2017, Chevron reached a landmark settlement with the ATO to pay one billion in back taxes and will likely pay hundreds of millions in additional tax payments every year3. The huge tax payments should make Chevron and other multinationals think twice about taking on the MUA and other unions. The ITF: Stand Up, Fight Back! The ITF determined that Chevron’s refusal to engage with the union could not be left unchallenged and that traditional labour tactics alone would not be enough. In mid-2015, the ITF began work to share information about Chevron’s tax affairs in Australia and more broadly challenge the global oil gaint’s social license to operate. Chevron had another large offshore gas project and several other offshore projects were being developed. If Chevron -when confronted with a strong militant, well organised union- could respond this way in Australia then workers’ rights everywhere would be at risk. Other multinationals would be emboldened by Chevron’s approach. Through intensive research, strategic campaigning and working with a broad coalition, the ITF took the union fight where it could not...

High Court Finds Mariner Has Permanent Place of Abode in New Zealand

This note summarizes the New Zealand High Court decision in Commissioner of Inland Revenue v. Van Uden, which found that a master mariner who was at sea for approximately eight months each year had a permanent place of abode in New Zealand. He was therefore a New Zealand tax resident, who was required to pay tax in New Zealand on his foreign sourced employment income and interests in foreign investment funds, including his employer’s contributions made on his behalf to its employee superannuation fund.

Case Notes

The authors outline the decisions in five recent international tax cases delivered by the Delhi, Bombay and Gujarat High Courts.The first case note addresses the July 2017 Delhi High Court decision in Director of Income Tax v. Mitsui & Co. Ltd, which found that the Indian tax department failed to satisfy the onus of proof to show that the taxpayer’s liaison office in India constituted a permanent establishment. Rather, the office met the preparatory and auxiliary activities test in article 5(6)(e) of the 1989 India-Japan Income Tax Treaty.The second case note explains the decision of the Delhi High Court in Valvoline Cummins Private Ltd. v. Deputy Commissioner of Income-tax that the Indian tax department is required to demonstrate the existence of an international transaction between an Indian taxpayer and its foreign associated enterprise before it can make a transfer pricing adjustment to the taxpayer’s advertising, marketing and promotion expenditure, on the grounds that excessive amounts of such expenditure were incurred to enhance the associated enterprise’s brand, and that the associated enterprise should have compensated the taxpayer accordingly.The third case note addresses the recent decision of the Bombay High Court in Commissioner of Income Tax v. JSH Mauritius Ltd, which found that the capital gain derived by a Mauritius company from the disposal of a long-term share investment in an Indian company was not taxable in India by virtue of article 13(4) of the India-Mauritius Income Tax Treaty.The fourth case note reviews the Bombay High Court ruling in Ballarpur Industries Ltd v. Commissioner of Income Tax, which holds that a foreign exchange gain, which arises from a currency fluctuation upon remittance of underlying interest and royalty income does not have the character of that income, and therefore does not qualify for the same treaty exemption from Indian taxation as the interest and royalty income.In case note 5, the authors review the recent short judgement of the Gujarat High Court in Principal Commissioner of Income Tax v. M/s Veer Gems, where the court held that two enterprises must meet the criteria specified in section 92A of the Income-tax Act 1961 before they were associated enterprises, and transfer pricing adjustments could be made. Mere control of each company by the same family members was not sufficient.

Re-Evaluating the Doctrine of Deference in Administrative Law

It is frequently said that Australian administrative law does not have, and cannot accommodate, a doctrine of deference. These statements, from judges and commentators, tend to cite the High Court's decision in Corporation of the City of Enfield v Development Assessment Commission1 as authority. In that case, the High Court of Australia indicated that Australia's strict separation of powers, as manifested by the legality/merits distinction, does not allow courts to defer to administrative bodies in determining the meaning of ambiguous statutory provisions. Since Enfield, there have been considerable developments in the application, and theorisation, of deference across the common law world. This article examines developments in the UK and Canada, and argues that they show that there is no single ‘doctrine’ of deference – deference is applied in administrative law in a range of ways. I argue that some of the ways in which Canadian and UK courts apply deference are not dissimilar from the principles Australian courts already apply in reviewing executive action. I argue that Australian law may benefit from greater attention to, and wider application of, these deferential principles, in order to curb judicial intrusion into administrative discretion.