Process Of Law Reform Research Articles

Good Governance in Pakistan Through Effective Laws: A Case Study of Legislative Drafting and Law Reform Processes in Pakistan

Good Governance in Pakistan Through Effective Laws: A Case Study of Legislative Drafting and Law Reform Processes in Pakistan

Listening to Survivors in Sexual Harassment Law Reform

In Australia, the #MeToo movement triggered a comprehensive inquiry into workplace sexual harassment lead by the Australian Human Rights Commission. This article explores the dynamic relationship between voice and listening in the Commission's National Inquiry into Sexual Harassment in Australian Workplaces and the resulting Respect@Work Report (2020). Drawing on a range of methodologies including thematic coding, citation analysis and discourse analysis, I explore what it means to victim-survivors to have a voice in the National Inquiry, narratives of law and justice that emerge in victim-survivor submissions and how the Commission responds in its role as institutional listener. These methodologies enable analysis of the politics and practices of listening within a law reform process, revealing hierarchies of attention that influence who is heard and how they are heard by the Commission. The Commission's listening practices, and its capacity to listen to victim-survivors with openness, attentiveness, receptivity and responsiveness, are shown to limit its engagement in transformative change to address workplace sexual harassment.

Donor conception, direct-to-consumer genetic testing, choices, and procedural justice: an argument for reform of the Human Fertilisation and Embryology Act 1990.

In this article, using theories of procedural justice and 'slow violence', we consider potential reform of the Human Fertilisation and Embryology Act 1990. Our theoretical discussion is underpinned by findings from the ConnecteDNA project, exploring how people affected by donor conception experience direct-to-consumer genetic testing (DTCGT). The negative impacts of DTCGT, especially shock discoveries about the circumstances of someone's conception in adulthood, are linked to donor anonymity, and how its continued protection is experienced as a barrier to the rights and agency of donor-conceived people. We focus on two key issues relating to the donor information access process set out in section 31ZA of the 1990 Act. The first is that it excludes certain cohorts of donor-conceived people, creating inequalities of access to donor information. The second is the impact of the use of DTCGT to search for that information. We discuss what a procedurally just process of law reform would look like, concluding that, whatever (prospective) approach to donor anonymity is taken, the donor information access process should be the same for all donor-conceived people. We thus argue that, even were the status quo to be maintained, reform of the donor information access process with retrospective effect would be required.

The reform of Irish mental health law: Aligning with human rights obligations?

This article critically examines the proposed reforms to Irish mental health law the Mental Health Act 2001 (2001 Act). The article will provide background to the 2001 Act and the lengthy law reform process, which has resulted in the publication of the Heads of Bill that propose significant amendments. The article assesses the suggested reforms, considering Ireland's 2018 ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD), which provides important context to the law reform process. The 2001 Act is the primary piece of legislation regulating mental health services and safeguarding the rights of persons subject to the legislation in Ireland. While passed in 2001, the legislation did not come into effect until 2006. The 2001 Act was seen as bringing Irish mental health law into compliance with international human rights law, in particular the European Convention on Human Rights (ECHR). However, Ireland's ratification of the CRPD has necessitated closer scrutiny of the legislation. This review has culminated in the publication of a Heads of Bill in July 2021 and pre-legislative scrutiny by the responsible parliamentary committee in 2022. The long title of the Heads of Bill explicitly states its goal of safeguarding individual autonomy and underscores its commitment to upholding and advancing the rights of people subject to the legislation. The analysis of the Heads of Bill addresses several key areas. These areas include a background to the long process of review, new guiding principles, the category of persons under the mental health legislation, mental health tribunals, consent to treatment, advance healthcare directives, provisions relating to children and young people, and independent advocacy. Based on this analysis of the Heads of Bill, recommendations are suggested which would strengthen respect for the human rights of persons subject to the legislation.

Towards a New Criminal Offence of Intimate Intrusions

This article suggests a new approach to tackling women’s experiences of harm and abuse, particularly online, namely a criminal law of ‘intimate intrusions’. It seeks to reinvigorate Betsy Stanko’s (1985) concept of intimate intrusions, developing it particularly in the context of the ever-increasing prevalence of online abuse against women and girls, as well as establishing how this conceptualisation might manifest in law reform. Intimate intrusions, it is argued, provides a valuable umbrella concept that may better encompass both the range and nature of existing harms, as well as, crucially, the yet-to-be-imagined modes of abuse. Further, in suggesting a new criminal offence of intimate intrusions, this article challenges the common process of piecemeal criminal law reform, with each new manifestation of abuse resulting in a specific offence tackling that specific behaviour. While such an approach provides new redress options, it remains limited. Following an examination of recent reforms in Northern Ireland, where three distinct new criminal offences were adopted covering downblousing, upskirting and cyberflashing, this article suggests that the concept of ‘intimate intrusions’ provides a better foundation for a new criminal offence and outlines its potential nature and scope.

LEGAL POLITICS CHILD PROTECTION BASED ON LAW NO. 1 YEAR 2023 ON THE CRIMINAL CODE

The formulation and drafting of Law Number 1 Year 2023 on the Criminal Code (hereinafter referred to as KUHP) is intended to replace the Wetboek van Strafrecht or the Criminal Code as stipulated by Law Number 1 Year 1946 on Criminal Law Regulations which has been amended several times. The effort is carried out in a directed, integrated, and planned manner so that it can support national development in various fields in accordance with the demands of development as well as the level of legal awareness and dynamics that develop in society. Child protection is based on Law Number 1 of 2023 concerning the Criminal Code which stipulates that criminal responsibility cannot be imposed on children who at the time of committing a criminal offense were not yet 12 (twelve) years old, which is an excuse. As well as considering the provisions referred to in Article 51 through Article 54, imprisonment should not be imposed if it is found that the defendant is a child. This research uses the type and type of normative legal research that examines and analyzes legal theories, legal principles and things written in legislation (law in book) and legal literature to answer problem issues. The research method uses a statutory approach (The Statue Approach) and a conceptual approach (The Conceptual Approach). The legal material collection technique used is a literature study document study. The legal materials that have been collected are then processed and analyzed prescriptively with deductive method. Thus, the politics of criminal law underlying the criminal law reform process involves policies in determining whether an act should be considered a violation of the law (criminalization) or not (decriminalization). One important aspect of community protection is the protection of victims and efforts to restore disturbed values in the community. Legal protection is manifested in the presence of various laws and regulations. The forms of protection or categories vary, examples of legal protection include civil law protection, consumer law protection, child protection, and so on

The Renewal of National Criminal Law: An Analysis of the Pancasila Law Philosophy

Introduction: Reform of criminal law is an important aspect in organizing the politics of criminal law so that it can meet the legal needs of society. The legal philosophy of Pancasila occupies an important position in efforts to reform criminal law.Purposes of the Research: Reflection on criminal law renewal in terms of the legal philosophy of Pancasila.Methods of the Research: Normative legal research with conceptual, statutory and philosophical approaches.Results of the Research: The legal philosophy of Pancasila has relevance in relation to the reform of criminal law, including that the philosophy of Pancasila law can be a guide as well as a guide in both normative aspects and the practice of criminal law reform. In addition, the legal philosophy of Pancasila can also direct the orientation of criminal law reform in order to improve five important aspects of criminal law reform, namely aspects of legal substance, culture, structure, leadership, and the professionalism of law enforcement officials. The reading of Pancasila values in a hierarchical-pyramidal manner is important as a guide and direction for a criminal law reform process. Pancasila's legal philosophy has also become a norm of criticism in criminal law reform, namely providing criticism of norms and legal behavior of criminal law reform whether it is in accordance with Pancasila values or not.

International Investment Law and Climate Change: Reframing the ISDS Reform Agenda

Abstract Ongoing investment law reform processes take the investment treaty system as the starting point. While this can generate actionable reform options, it also entrenches ‘path dependency’ and forecloses space for more foundational questions. This article argues that, in the context of climate change, effective reform requires re-embedding debates within a policy space that places climate at its centre. The argument entails recognising: (i) climate change as a comprehensive ecological, economic and social challenge; (ii) the preferential nature of the protections investment treaties establish for foreign investment; and (iii) the structural misalignments that exist between this legal regime and climate action. It also involves interrogating the normative considerations invoked to justify investment protection treaties. The findings highlight the need to reorient collective reflection towards designing reforms that – rather than address narrowly defined concerns within the current system – develop a new system that can respond to 21st century challenges.

From Prohibition to Permission: The Winding Road of Medical Assistance in Dying in Canada.

In this paper, I offer a personal and professional narrative of how Canada went from prohibition to permission for medical assistance in dying (MAiD). I describe the legal developments to date and flag what might be coming in the near future. I also offer some personal observations and reflections on the role and impact of bioethics and bioethicists, on what it was like to be a participant in Canada's law reform process, and on lessons that readers in other jurisdictions might take from Canada's experience.

Beyond Women’s Voices: Towards a Victim-Survivor-Centred Theory of Listening in Law Reform on Violence Against Women

Australia is witnessing a political, social and cultural renaissance of public debate regarding violence against women, particularly in relation to domestic and family violence (DFV), sexual assault and sexual harassment. Women's voices calling for law reform are central to that renaissance, as they have been to feminist law reform dating back to nineteenth-century campaigns for property and suffrage rights. Although feminist research has explored women’s voices, speaking out and storytelling to highlight the exclusions and limitations of the legal and criminal justice systems in responding to women’s experience, less attention has been paid to how women's voices are elicited, received and listened to, and the forms of response they have received. We argue that three recent public inquiries in Australia reveal an urgent need for a victim-survivor-centred theory of listening to women’s voices in law reform seeking to address violence against women. We offer a nascent theory of a victim-survivor-centred approach grounded in openness, receptivity, attentiveness and responsiveness, and argue that in each of our case studies, law reform actors failed to adequately listen to women by silencing and refusing to listen to them; by hearing them but failing to be open, receptive and attentive; and by selectively hearing and resisting transformation. We argue that these inquiries signal an acute need for attention to the dynamics of listening in law reform processes, and conclude that a victim-survivor-centred theory of listening is a critical foundation for meaningful change to address violence against women.

THE ENLIGHTENED-SHAREHOLDER-VALUE APPROACH VERSUS PLURISM IN THE MANAGEMENT OF COMPANIES

Social, safety, health and environmental factors have recently been reconsidered in the managing of a company. The so-called triple bottom line is the buzzphrase, embracing not only financial performance but also social and environmental responsibility of companies (Crook “The Good Company” January 2005 The Economist 1-18; and Freemantle and Rockey The Good Corporate Citizen (2004) 7).Executive and non-executive directors are the people responsible for monitoring and controlling companies. The issue is, however, in whose interests this should be done? (Havenga Fiduciary Duties of Company Directors with Specific Regard to Corporate Opportunities (1998) 1; Mongalo “The Emergence of Corporate Governance as a Fundamental Research Topic in South Africa” 2003 SALJ 176-177, and generally Du Plessis “Direkteure se Pligte Teenoor Partye Anders as die Maatskappy” 1992 De Jure 378-392). The generally accepted viewpoint is that the paramount fiduciary duty of directors, individually and collectively, is to exercise their powers in good faith and in the best interest of the company as a whole (see generally Du Plessis 1992 De Jure 378-392; Havenga “The Company, the Constitution, and the Stakeholders” 1997 Juta Business Law Journal 134, 136; and Sealy “Directors‟ „Wider‟ Responsibilities – Problems Conceptual, Practical and Procedural” 1989 Monash University Law Review 164-188).This note focuses on arguments for and against exclusive shareholder protection. The current company law reform process in South Africa and the recent reform process in the United Kingdom are discussed and evaluated. The consideration of matters affecting stakeholders and whether they are subordinate to that of the directors' primary goal to promote the success of the company in the best interest of the shareholders is discussed.

Law Reform Processes and Criminalising Coercive Control

ABSTRACT In 2005, Reg Graycar and Jenny Morgan published ‘Law Reform: What’s in It for Women?’ in which they raised a number of issues and tensions faced in feminist engagements with law reform processes. Relying on Graycar and Morgan’s work I explore three recent law reform processes focused on whether coercive control should be criminalised: the NSW Joint Select Committee on Coercive Control, the Queensland Women’s Safety and Justice Taskforce, and the South Australian exposure Bill. All answered this question in the affirmative. However, there were distinct differences in terms of their respective terms of reference, processes undertaken, participation of diverse and marginalised groups, consideration of implementation issues, and engagement with existing research. This article explores the strengths and weaknesses of these processes. The importance of Graycar and Morgan’s work is that it insists that we examine the processes of law reform, and not just the outcomes. While outcomes are obviously critical, the processes necessarily shape what those outcomes might be. The diversity of views around criminalisation of coercive control meant that attention to these processes was critical, particularly for those who are most likely to experience violence and state interventions in their lives.

РОЗВИТОК І СТАНОВЛЕННЯ ПРОКУРАТУРИ УКРАЇНИ ЯК СУБ’ЄКТА ВЛАДНИХ ПОВНОВАЖЕНЬ: ІСТОРИКО-ПРАВОВИЙ АСПЕКТ

The study of the historical origins of the prosecution in Ukraine is a mandatory component of its study not only as a socio-legal phenomenon of public law, but also as a specific subjective institution endowed with an appropriate array of powers. The activities of the prosecution and its officials have always been included in the permanent process of state formation, so the context of finding the prerequisites for such a body and its development is a structural part of research aimed at researching the current legal status of the prosecution bodies of Ukraine and its formation. At the same time, given the staged development of the prosecution in Ukraine in different historical periods, it should be noted the accumulation of interest of the scientific community in comparative academic research to compare the current process of development of the prosecution bodies within the general changes in Ukraine. Therefore, given this and the continuous process of public law reform, it is not superfluous to trace the nature of structural and functional metamorphoses of the prosecution, as well as their analogues and prototypes, in previous historical times, including from the standpoint of the rule of law. to date. Based on the analysis of the genesis of the historical development of the prosecution in Ukraine of different epochs, research approaches to understanding the concept of the prosecution as such and its functional load in different historical periods, outlined the main stages in the periodization of the history of development, its place and role in historical and state formations, the main model approaches to the organization of activity and functioning of prosecution, interrelation of prosecution bodies in Ukraine and other branches of power in different times from emergence of prototypes of bodies of prosecution bodies to the present are found out.

Formulating the legislative structure of a hate crime

While hate crime legislation is well established in England and Wales, Scotland, and Northern Ireland, Ireland has failed to address the issue of hate crime on a statutory basis. Law reform processes are currently underway across these jurisdictions, and this article seeks to explore a fundamental question in this context, that is, the relative merits of various approaches to structuring hate crime legislation.

Criminal offenses against morality: comparative legal characteristics of the legislation of Ukraine and the Baltic countries

Purpose. While comparing the Criminal Code of Ukraine with the criminal legislation of Baltic States (Lithuania, Latvia, Estonia), the goal is to find the best options for further development of the criminal legislation of Ukraine on liability for offenses against morality, taking into consideration current aspirations to radically update the relevant legal framework. Methodology. The comparative method is the key one for the purposes of the research. Critical comparison of the criminal law provisions of the Baltic States and Ukraine on the grounds of liability for offenses against morality has been made with reference to this method. The research also used such methods of academic cognition as: historical-legal, system-structural analysis, formal-logical, modeling. Results. Based on the study of the advantages and disadvantages of the legal framework of the grounds of liability for criminal offenses (crimes and misdemeanors) against morality in accordance with the Criminal Codes of the Baltic States recommendations for optimizing and improving the effectiveness of such rules has been developed, while taking into consideration criminal law reform processes in Ukraine. Scientific novelty. The study has revealed a number of positive and progressive legislative decisions, reflected in the Criminal Codes of the Baltic States on liability for offenses against morality. It makes possible to carry out their potential adoption in the process of further rule-making activities in Ukraine. Practical significance. The conclusions and suggestions formulated in the article can be used in law-making activities to improve criminal law of Ukraine in terms of combating encroachments upon morality, as well as in research and educational process as a basis for further comparative research on liability for offenses against morality in Ukraine and other countries.

Pidana Adat Baduy dalam Perspektif Pembaharuan Hukum Pidana Nasional

The renewal of the National Criminal Law is a discourse that has long been held by the Indonesian people. The Criminal Code (KUHP) is considered no longer able to fully accommodate legal interests in the era of globalization. The Criminal Code is actually a memento from the colonial period, where the criminal code was adopted from the criminal law system of the Dutch colonial nation. One of the things discussed in the discourse and travel or criminal law reform process is the accommodation of customary law in the draft revision of the KUHP law (RUU KUHP). This research makes the Bedouin customs as the object of study. The selection of the Bedouin community itself is because the Bedouin has its own customary criminal code and is the closest indigenous tribe to the capital city. The Baduy are a strong indigenous tribe who defend their customs from the influence of modernization. Then on the existence of such facts, the question arises how is the existence of Bedouin customary law in the discussion of national criminal law reform, these questions will be answered in this study using qualitative methods that will produce descriptive data.

Reform of Banking Laws and Regulations in Iran

Abstract The law reform process entails government policies and plans for the liberalization, privatization and deregulations of the economy including the banking and money markets. The International financial institutions (IFIs), International Development Agencies (IDAs) and the International Financial Architecture have pioneered law reform initiatives based on the rule of law practice and good governance. The dominant theory advocated by Perry-kessaris postulates that a sound legal system is attractive for foreign direct investment (FDI). The bilateral investment treaties (BITs) contain international law standards which can be used as a model for reforming laws and institutions in the host state including prudential regulation of banking and finance. Iran – a resource-rich country has signed many BITs with capital-exporting countries indicating its willingness to enforce the rule of law on the international level.

Reflections on Ethiopia's Media Law Reform

Freedom of expression and the media is a lifeblood of democracy and the bedrock of any democratic society. The vitality of freedom of expression and the media is particularly significant in transitional democracies such as Ethiopia as it pacifies tension in society and reduces the risks of violence. Despite the unparalleled significance of freedom of expression and the media, however, Ethiopia’s legal framework on the media had some significant challenges that crippled the political space and created a chilling effect on free expression. This has led to extensive criticism by rights groups and international observers. Over the past two years, however, there have been some significant legal and political developments that paved the way for the media law reform in Ethiopia. The major part of reforming the media law in Ethiopia included amending the hitherto applicable Freedom of Mass Media and Access to Information Proclamation and the Broadcasting Service Proclamation. The purpose of this article is two-fold. At the normative level, it will discuss the key areas of the legal reform envisaged under the new Media Proclamation. Secondly, it will also highlight the process and different phases that the law reform process passed through as a way of reflection.

Formal Debt-Relief, Rescue and Liquidation Options for External Companies in South Africa

This article discusses how foreign companies doing business in South Africa during periods of financial distress and registered locally as external companies are, as a recent High Court decision confirms, denied the formal debt-relief measures of business rescue and therefore a compromise with creditors because of being excluded by the definition of “company” in the Companies Act 71 of 2008. Nor, for the same reason, may these companies, if solvent, rely on the current liquidation procedures. But they may possibly use the procedure preserved in the otherwise repealed Companies Act 61 of 1973 for liquidation as far as the transitional arrangements in the Companies Act 71 of 2008 allow. The purposive solution suggested in this article for the interplay between the two Acts may need legislative attention. This article surveys other possibilities relevant to these companies such as informal voluntary arrangements, applications for winding-up, ordinary debt collection, and perhaps compulsory sequestration applications. Finally, it raises the policy issue for the legislature to consider why these companies should be denied business rescue and/or a compromise with their creditors when these formal debtrelief measures might help them survive their financial stress and emerge stronger, to the advantage of themselves, their creditors, their stakeholders and communities, and the entire nation. It is submitted that these issues could and should be considered as part of the current law reform process of South African insolvency law.

A Strange Genesis: Section 2 of the Trusts (Scotland) Act 1961

In all jurisdictions which recognise the trust, a third party who receives trust property in breach of trust will be protected from a claim by the trust beneficiary only if in good faith. The sole exception is Scotland. In Scots law, a third party is secure even if they take in bad faith (that is, knowing that the property was transferred in breach of trust). This exceptional protection was created by section 2 of the Trusts (Scotland) Act 1961, a provision which, in its distinctiveness, is of significance to the Scottish law of trusts as well as of major comparative relevance. The purpose of the article is to investigate the origins of the section 2 protection. It begins by introducing the provision before the exceptional degree of protection it confers is placed in external and internal comparative context. With reference to preparatory materials, the article then moves to consider how the basis of section 2 lay in problems with the precise scope of the powers of a trustee in Scots law as well of a closely related institution, the judicial factor. It demonstrates that these problems led to the initiation of a law reform process which, principally by mistake and misunderstanding, resulted in an unsatisfactory solution in the form of section 2. The article then traces the later history of the provision from its inception to the present day, taking account the further attempts at reform which have had varying degrees of success. The article closes with some reflections on section 2 and the process of law reform which was its genesis.