Judge Of High Court Research Articles

좁은 수로의 항법 적용에 관한 한국·영국 법원 판결의 논증구조 비교 평석 - The “Alexandria 1” and “Ever Smart” Case와 “한림페리9호·민호호 충돌사건”를 중심으로 -

Since the description of the Collision Regulations for narrow channel does not cover all specific situations, substantial applications may be contested in many respects. For example, in situations where ships sailing on narrow channels intersect with vessels outside the channel, questions could arise as to whether rule of narrow channels will be applied or if rule of crossing will be applied. The judgements of the Queen`s bench and Court of appeal on the Alexandria 1 v. Ever Smart case in 2018 was of great significance in that it has come to the conclusion that a universal solution to this problem, the rule of narrow channel should be applied if even one vessel is on a narrow channel. On the other hand, the Daejeon High Court's judgment on the "Hallim Ferry 9 and Minho Collision" in 2017 is not much different from the above judgements on appearance, but the structure of the argument is different and does not seem to have made a ruling that is a guideline in the future. In this paper, I will examine in terms of legal argumentation theory how the process of justifying the navigation application of narrow channels in the crossiong situation between ships in the vicinity of narrow channels was different. Although both courts reached similar conclusions, the lack of justification is pointed out in that the Korean courts failed to provide a reasonable basis for argument. The purpose of these discussions is not to reveal which navigation rules are correct in special circumstances, but to suggest a desirable direction for providing evidence for the judgment.

Cart Judicial Reviews through the Lens of the Upper Tribunal

Cart judicial reviews constitute the largest single group of claims for judicial review in the High Court. However, they are difficult to study because they rarely result in a High Court judgment and thus are reflected in the popular case law databases. I analysed the best public source of information on the fate of successful Cart judicial reviews: Upper Tribunal decisions following successful Cart claims from 2018 to 2020 selected programmatically from a dataset of over 42,000—mostly unreported—decisions. Thus, I can discuss the key aspects of successful Cart challenges, including the question what claims succeed in meeting the ‘second-tier appeals’ test for permission set in CPR 54.7A(7). This study complements previous quantitative work on rates of success in Cart and non Cart judicial reviews and contributes to the broader discussion on the appropriateness of retaining the Cart procedure in the context of the proposal to discontinue Cart claims made by the Independent Review of Administrative Law and adopted by the Government in the Judicial Review and Courts Bill.

Menstrual “impurity”, women’s access to public worship and the law: a feminist re-writing of the Sabarimala judgement S. Mahendran v The Secretary, Travancore Devaswom Board AIR 1993 Ker 42

ABSTRACT The central concern of the case was the constitutional validity of a long-enforced prohibition on women aged 10–50 from entering the Hindu temple at Sabarimala, Kerala, with the intersection of freedom of religion and equality rights of women as its backdrop. The Kerala High Court’s judgement of 1991, which upheld its validity, was followed by a complex web of litigation and protests, culminating in the Supreme Court judgement of 2018 in Indian Young Lawyers’ Association v. State of Kerala. The 2018 judgement, with a majority of 4:1, held that the prohibition was unconstitutional and discriminatory against women. However, by adopting a feminist analysis, I demonstrate not only that the Kerala High Court judgement overlooked women’s right to freedom of religion, but that the tools to deliver a more gender-equal judgement were fully available to the High Court in 1991, and had the potential to be applied to the issue.

SANKSI PELAKU PENGGELAPAN PAJAK DALAM PERSPEKTIF HUKUM PIDANA ISLAM (ANALISIS PUTUSAN MAHKAMAH AGUNG NOMOR: 1030K/PID.SUS/2016

In the Decision of the Supreme Court Number: 1030K / PID.SUS / 2016, it is known that the decision of the District Court Judge is not in accordance with the Law because it sub-subsidizes the fine, while in the High Court Judge Decision has also wrongly applied the sentence because it only gave a fine sentence in the year 2008 whereas 2009 was not awarded. Therefore, it is interesting to see the verdict that will be given by the Supreme Court Judge. There are two things that are raised to be the focus of the research, namely the basis for the consideration of Supreme Court judges and the analysis of Islamic criminal law on the sanctions for tax evasion perpetrators in Decision Number: 1030K / PID.SUS / 2016.
 The method used in this research is Normative Law Research, which aims to obtain theoretical matters through library research (Library Research). The type of data used is qualitative, while the source of the data taken in this study is secondary data which is obtained from data that has been processed and obtained from library materials. Then this discussion is described in a deductive way of thinking, namely from general to specific questions so that the presentation of the research results can be understood easily.
 The basis for consideration of Supreme Court judges in Decision Number: 1030 K / PID.SUS / 2016 is in accordance with juridical, philosophical, and sociological aspects. As for Islamic law, the sanctions for tax evasion perpetrators in the decision Number: 1030 K / PID.SUS / 2016 are categorized into Jarimah ta'zir.
 Keywords: Criminal Sanctions, Tax Embezzlement, Ta'zir

ANALISIS YURIDIS PENYELESAIAN SENGKETA HIBAH DI PENGADILAN TINGGI MEDAN (Studi Kasus Putusan No.142/PDT/2015/PTMDN)

This gift is regulated in article 1882 of the Civil Code which states, among other things, that the gift must be made with a notary deed, especially for immovable property, while for movable property it can be granted just like that, a gift made outside of it is canceled. Likewise, a grant cannot be renewed, even if it is made with a notary deed, which means that updates on the grant or by making changes or additions from the time the grant was originally made are not allowed. Regarding the reasons for the cancellation of the grant, the cancellation of this grant is regulated by Article 1666 of the Civil Code, which states that a grant cannot be withdrawn or canceled because of it. The problems that will be investigated are: How do you prove the validity of a grant deed in the Case Study of Decision No. 142 / PDT / 2015 / PT.Mdn ?, Why can't a grant be withdrawn but can be canceled? decide the case No. 142 / PDT / 2015 / PT-MDN ?. This study uses a normative legal approach. Normative legal research in this research is carried out on the procedure for settlement of grant disputes through courts. The type of data used in this legal research is secondary data. Secondary data sources in this legal research were obtained from: Primary legal materials, among others: Civil Code, Law No. 48/2009 concerning Judicial Power, Decision No.142 / PDT / 2015 / PTMDN. In proving the validity of a Grant Deed, it must have physical, formal and material evidentiary strength, and the process of making a Grant Deed meets the elements stipulated by Article 1868 of the Civil Code. Basically, a grant is irrevocable but can be canceled based on exceptions that have been determined based on statutory regulations. The Legal Considerations of the Medan High Court Judge against the Simalungun District Court Decision No.55 / Pdt.G / 2014 / PN-Sim regarding the settlement of grant disputes in this case were declared incorrect and wrong because the appellate's memory of appeal is very reasonable based on law and can prove that the object of the dispute is the right of the appellant whose truth cannot be denied by the party being appealed against in the counter memorandum of appeal.

ANALISIS YURIDIS PENYELESAIAN SENGKETA HIBAH DI PENGADILAN TINGGI MEDAN (Studi Kasus Putusan No.142/PDT/2015/PTMDN)

This gift is regulated in article 1882 of the Civil Code which states, among other things, that the gift must be made with a notary deed, especially for immovable property, while for movable property it can be granted just like that, a gift made outside of it is canceled. Likewise, a grant cannot be renewed, even if it is made with a notary deed, which means that updates on the grant or by making changes or additions from the time the grant was originally made are not allowed. Regarding the reasons for the cancellation of the grant, the cancellation of this grant is regulated by Article 1666 of the Civil Code, which states that a grant cannot be withdrawn or canceled because of it. The problems that will be investigated are: How do you prove the validity of a grant deed in the Case Study of Decision No. 142 / PDT / 2015 / PT.Mdn ?, Why can't a grant be withdrawn but can be canceled? decide the case No. 142 / PDT / 2015 / PT-MDN ?. This study uses a normative legal approach. Normative legal research in this research is carried out on the procedure for settlement of grant disputes through courts. The type of data used in this legal research is secondary data. Secondary data sources in this legal research were obtained from: Primary legal materials, among others: Civil Code, Law No. 48/2009 concerning Judicial Power, Decision No.142 / PDT / 2015 / PTMDN. In proving the validity of a Grant Deed, it must have physical, formal and material evidentiary strength, and the process of making a Grant Deed meets the elements stipulated by Article 1868 of the Civil Code. Basically, a grant is irrevocable but can be canceled based on exceptions that have been determined based on statutory regulations. The Legal Considerations of the Medan High Court Judge against the Simalungun District Court Decision No.55 / Pdt.G / 2014 / PN-Sim regarding the settlement of grant disputes in this case were declared incorrect and wrong because the appellate's memory of appeal is very reasonable based on law and can prove that the object of the dispute is the right of the appellant whose truth cannot be denied by the party being appealed against in the counter memorandum of appeal.

Ude Jones Udeogu v FRN & Ors no SC. 622C/2019: its implication on fighting financial crime and the way forward

Purpose The purpose of this paper is to show how fighting financial crime suffered a setback in Nigeria as a result of the Supreme Court ruling in an appeal case – Ude Jones Udeogu v FRN and Ors no SC. 622C/2019. Design/methodology/approach This paper is a critical analysis of the implication of Supreme Courts’ ruling in Ude Udeogu Jones, its implication to law enforcement’s effort in fighting financial crime and the way to get around the ruling. The paper adopts qualitative methods. It is conducted through the analysis of the ruling and the relevant laws. Findings Due to the ruling in UdeUdeogu Jones, Section 396(7) of the Administration of Criminal Justice Act 2015 is no longer good law. Federal High Court judges elevated to the Court of Appeal no longer have special dispensation to conclude criminal cases they part heard. Furthermore, the ruling is a serious setback on the law enforcement’s efforts in fighting corruption. However, the drastic effect of the ruling can be mitigated by amending Section 396(7). Research limitations/implications Because the ruling is very recent, analysis is based on the relevant enactments and case laws including recent decisions of the Court of Appeal and the Supreme Court. Originality/value There is no comprehensive work on this ruling. Therefore, this paper adds value to knowledge as it makes clear the background of the appeal case, as well as the impact of the ruling of the Supreme Court on fighting financial crime in Nigeria and the way to get around the ruling.

T and Its Garment of Controversy: A Legal Analysis of the Federal High Court's Judgment in Ag Rivers v. Firs Ag Federation vis a Vvis The Provisions of 1999 Constitution of the Federal Republic of Nigeria (As Amended)

T and Its Garment of Controversy: A Legal Analysis of the Federal High Court's Judgment in Ag Rivers v. Firs Ag Federation vis a Vvis The Provisions of 1999 Constitution of the Federal Republic of Nigeria (As Amended)

VAT and Its Garment of Controversy: A Legal Analysis of the Federal High Court's Judgement in AG Rivers V. FIRS & AG Federation Vis a Vis the Provisions of the 1999 Constitution of the Federal Republic of Nigeria (As Amended)

VAT and Its Garment of Controversy: A Legal Analysis of the Federal High Court's Judgement in AG Rivers V. FIRS & AG Federation Vis a Vis the Provisions of the 1999 Constitution of the Federal Republic of Nigeria (As Amended)

The Convention-Constitution Standoff: Resolving the Most-Senior-Judge Conundrum in Appointment of Substantive Chief Judges for States in Nigeria

The head of the High Court of a State in Nigeria is known as the Chief Judge of the State. Section 271(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides that the appointment of a person to the office of substantive Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State. By virtue of section 271(4) of the Constitution, if the office of Chief Judge of a State becomes vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the Governor of the State shall appoint the most senior Judge of the State High Court to perform those functions. However, the Governor as the appointing authority and the National Judicial Council as the recommending authority, have always been at loggerheads over the latter`s insistence that the most senior judge in a State be appointed the substantive Chief Judge of the State. The position of the NJC is based on the convention within the legal profession, which places great premium on adherence to seniority and professional hierarchy. On the other hand, State Governors believe they possess a constitutional discretionary powers to appoint as the substantive Chief Judge of the State, any person qualified for such appointment, irrespective of whether such a person is or is not the most senior judge in the State. The insistence of the NJC that the convention pertaining to seniority must be respected, has more often than not, set the NJC on a collision course with various State Governors in Nigeria, usually leading to stalemates in the process of such appointments which, in turn adversely affect the smooth operations of affected State High Courts and the administration of justice in general. The latest of such conflicts was in Gombe State of Nigeria where the NJC insistence on seniority (conventionalism) and the Gombe State Governor’s insistence on constitutionalism has left the State without a substantive Chief Judge up to the time of this paper. This paper is the first part of a two-armed dispassionate examination of all issues surrounding this seemingly unending conflict, the aim of the authors being to expose the actual position of extant law on the subject with a view to recommending solutions founded on rule of law, realism and democratic constitutionalism. Using the scenario in Gombe State as a case study, and drawing from provisions of the National Judicial policy, the paper discusses the position of rule of law, and why religious adherence to the supremacy of rule of law is the best way out of the persistent logjam. The second part of this discussion, already concluded and sent for publication, is titled “Limits of the Recommending Powers of the National Judicial Council in the Process of Appointment of State Chief Judges in Nigeria: Gombe State as a Case Study”

Pandemic and PILs: A Study on the Approach of the High Courts in India

Studies in Public interest Litigation (PIL) in India are predominantly about the Supreme Court's approach in meeting the ends of justice through indigenously evolved jurisdiction. The High Courts as important constitutional bodies are more often than not remain out of detailed discussion. As the High Courts enjoy concurrent jurisdiction with the Supreme Court with regard to PILs, this paper aims to study the pattern of invocation of the jurisdiction at the regional level. It surveys the variety of pleas and consequent action under PIL jurisdiction (or inaction, as the case may be) of different High Courts in India relating to covid crisis and consequential matters. To that end, it undertakes a survey of High Court orders or judgments from April to July, 2020. It seeks to lay bare the extent of demands that are made before the Courts through PIL. What kinds of action were expected from the High Courts during the pandemic? How did different Courts respond to such pleas? Were the directions and level of response homogenous or varied? The paper pursues these questions, and describes the pandemic though the lens of PIL in Indian High Courts. It goes on to argue that the High Courts in India need to take greater cognizance of their orders inter-se especially in PIL matters, as human rights protection through PIL cannot have contradictory voices.

Equity and certainty in contract law

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Hadiya, Hinduism and Heterosexuality

Depending on one’s point of view, the Hadiya case caught the national imagination for being a shocking example of “love jihad” or a horrifying instance of the growing criminalisation of desire. Since the latter view is informed by the former, this essay looks at the ways in which the nexus of patriarchy, nationalism, and sexual phobia has built up in India over the centuries, beginning with the laws promulgated under British rule. The emphasis on “personal laws” separable by religious community, the very creation of a religious community as a singular entity, the inexorable march towards a religiously-inflected nationalism, have all gone hand in hand with increasing legal and social control over women’s bodies and queer desires. A public investment in muscular masculinity requires laws and judgments to support its agenda, and the Hadiya case takes its place in a long line of such examples of legal capitulations. Even the Supreme Court’s overturning of the Kerala High Court judgment depended on gendered and nationalistic assumptions that were every bit as regressive as what was being overturned. The law in both cases seemed unable to accommodate non-heteronormative desire except in the register of terror. Desire in the Hadiya case became terrorising and anti-national because it refused to adhere by commonplace notions of how women should behave. This essay is an account of that legal attitude to women’s desire.

Selective assertiveness and strategic deference: explaining judicial contestation of military prerogatives in Pakistan

ABSTRACT How do we explain variation in judicial assertiveness towards politically powerful militaries? This article argues that the judiciary’s willingness to assert itself against the military is contingent upon the type of military prerogative being challenged. Focusing on Pakistan, I find that courts are more willing to contest military prerogatives connected to the military’s political authority, than prerogatives connected to its institutional autonomy. This selective assertiveness is strategic, as concerns about military retaliation against the judiciary are more likely to outweigh judicial preferences, on questions of the military’s institutional autonomy than on questions of the military’s political authority. I test this hypothesis using an original dataset of 720 high court and supreme court judgments pertaining to military prerogatives from Pakistan. I then discuss a sample of judgments selected from the dataset to demonstrate how variation in judicial assertiveness is guided primarily by strategic concerns about the likelihood of military retaliation against the judiciary. In studying the interactions between the judiciary and the military in Pakistan, the article provides a new perspective on the sources of judicial assertiveness and restraint, and the role the judiciary can play in bringing militaries under civilian control in authoritarian and post-authoritarian states.

Issues Involving 'Close-out Netting' and 'Collateral' for OTC Derivatives Transactions

Issues Involving 'Close-out Netting' and 'Collateral' for OTC Derivatives Transactions

Prisoners’ right to vote in Uganda: Comment on Kalali Steven v Attorney General and the Electoral Commission

Article 59 of the Constitution of Uganda (1995) provides for the right to vote. Although the Constitution does not prohibit prisoners from voting, the Uganda Electoral Commission has never made arrangements for prisoners to vote. On 17 June 2020, in the case of Kalali Steven v Attorney General and the Electoral Commission, the Ugandan High Court held that prisoners and Ugandans in the diaspora have a right to vote and that the Electoral Commission should put in place arrangements for them to vote. Uganda will have elections in 2021. The purpose of this article is to suggest practical ways in which the Electoral Commission can comply with the High Court judgement. It is argued, inter alia, that there is no need for legislation to be enacted or amended to give effect to the High Court judgment.

Judicial Evasion, Judicial Vagueness, and Judicial Revisionism: A Study of the NCT of Delhi vs Union of India Judgment(s)

Through a study of two recent important judgments of the Indian Supreme Court – arising out of the same dispute – this paper will illustrate the Court’s role in strengthening the central executive, at the cost of other constitutional authorities in India’s bicameral Parliamentary system. The dispute turned upon the division of powers between the central government, and the government of the National Capital Territory of Delhi (NCT), governed by Article 239AA of the Indian Constitution. The case involved critical questions of representative democracy and the federal structure, and reached the Supreme Court at a time when two opposing parties were in government at the centre and in the NCT, and had a publicly acrimonious relationship with each other. The paper will discuss how (a) first, the Supreme Court delayed hearing the case for many months (despite the fact that the dispute involved consequences for both governments on a daily basis), allowing a status quo in which the central government called the shots (thanks to a favourable High Court judgment). This technique – where the Court favours one party to a litigation simply by not deciding a case – is called judicial evasion; (b) second, when a five-judge bench of the Court finally heard and decided the case, despite laying down the principles that governed the relationship between the centre and the NCT government, refused to demarcate their respective spheres of competence with any specificity. Instead, the Court left day-to-day disputes to be resolved through “political statesmanship.” This created a situation where the Court’s judgment could be interpreted by political actors in the way that they chose. This technique – where abstract judicial pronouncements leave wide interpretive scope for more powerful political actors to exploit – is called judicial vagueness; (c) third, when a smaller bench of the Court was called upon to deliver judgment on specific disputes, the judges handed down a split verdict that was at open odds with the judgment of the five-judge bench (despite the fact that two of the judges had sat on that very bench!). This technique – where the Court seemingly departs from its own binding precedent to favour the executive in a specific case, is called judicial revisionism. A combination of judicial evasion, judicial vagueness, and judicial revisionism – it will be shown – created a situation that, contrary to the constitutional scheme, effectively left the elected government of the NCT at the mercy of the central executive. In the final part of this paper, I will take other contemporary examples to show how the Supreme Court has regularly invoked a combination of judicial evasion, judicial vagueness, and judicial revisionism to empower the central government, without ever seeming to give an actual judgment in those terms.

Liability in Joint Military Operations—The Green Desert Case

Abstract Almost all international military operations today are joint military operations where several states collaborate to carry out concrete operations, such as combat or arrest operations. This raises pertinent and difficult questions in relation to state responsibility if international law obligations are breached during the operation, not least: Which state or states are responsible? In June 2018, a Danish High Court found Denmark responsible in its complicity for Iraqi ill-treatment of 18 Iraqis who were detained by the Iraqi military in a joint Danish–Iraqi military operation in Iraq in November 2004. Danish soldiers did not exercise control over the Iraqi troops; the detainees were not captured by Danish soldiers or at any time subject to their control or jurisdiction; and Danish forces did not participate in or witness any ill-treatment during the operation. Nevertheless, the Danish High Court found that the Danish defence forces were liable to pay compensation to the 18 Iraqi detainees because Danish defence forces ‘should have known’ that there was a real risk of Iraqi ill-treatment of detainees and paid to little attention to the risk when planning and participating in the operation. The article discusses the Danish High Court judgment. Is it a problem that the High Court decided the case on the basis of Danish compensation law and largely ignores international law standards? And would the Danish defence forces have been responsible if assessed on the basis of State responsibility standards in international law?

Women in the Nigerian judiciary: considerable headway or organised progress?

ABSTRACT Women have made considerable progress in terms of their entrance into the legal profession, such that they are advancing towards parity with men on the High Court benches in Nigeria. This study is a product of qualitative empirical data gathered from interviews with judges and information gleaned from government records and personal files of judges in the Archives of the judiciaries in Mid-Western Nigeria. It identifies reasons for the increase in the number of women on the High Court Bench in the area. Women entering the legal professions in Nigeria from the 1930s opted for a career in government legal service and the Magistracy with less financial remuneration but regular work hours, than in private legal practice that provides higher remunerations and irregular work hours. Findings reveal that the number of women judges increased when it became fairly established to tunnel 90% of appointments to the High Court from these channels. The preliminary conclusion therefore, is that, although women lawyers have made considerable headway as High Court judges, the increase in their numbers on the High Court bench was not as a result of any organised policy to increase the number of women judges in Nigeria.

High Court judgment illustrates English courts’ reluctance to imply terms for contractual interpretation

In January 2020, the High Court ruled (in TAQA Bratani Ltd v RockRose UKCS8 LLC [2020] EWHC 58 (Comm)) that a right of non-operators to remove an existing operator ‘without cause’ under a long-term joint operating agreement was not subject to any implied terms, such as the duty to act rationally and/or in good faith. The judgment highlights the weight placed by English courts on the natural and ordinary meaning of words selected by the parties in interpreting their contractual rights, particularly in the context of detailed written contracts between sophisticated commercial parties. The court also rejected the defendant’s claim that the role of an operator was akin to that of an agent—it stated that joint operating agreements between parties did not create a partnership or any other relationship that was subject to either express or implied fiduciary duties which would require the parties to act in the interest of the joint venture rather than in their own interests.