Liberty Rights Research Articles

Direct claim right of subcontractor - the current status and tasks

Direct claim right of subcontractor - the current status and tasks

A CRITICAL ASSESSMENT OF THE INTRODUCTION OF PROPORTIONAL ANALYSIS BY THE SOUTH AFRICAN COURTS IN CIVIL-FORFEITURE JURISPRUDENCE

This article deals with civil forfeiture in terms of the Prevention of Organised Crime Act1 (POCA) and considers the jurisprudential development of the instrumentality and exclusion analyses, considering in particular the newly introduced and limiting thirdstage, namely proportionality analysis. South African courts, appreciating the objectives of civil forfeiture, have utilized the Constitution to cushion its effects on property and liberty rights by implementing the proportionality analysis as a third criterion. The article also considers the call made by certain authorities that existing legislation ought to be amended in order to codify extant judicial precedent in this regard. In conclusion, it is recommended that civil forfeiture in South Africa should continue along the lines of the three-staged approach that has crystallized in practice by applying an approach incorporating instrumentality, exclusion and proportionality analyses.

Development of a cross-disciplinary constitutional learning program in junior high school social studies using ICT

A nation's constitution is of prime importance to its people as it sets out the fundamental principles a government must adhere to, as well as outlining the rights it must grant its people. A constitution's guarantee of human rights makes it essential for preserving liberty and, as such, it is important that society is informed about the constitution and the rights it affords them. That is why educational institutions should familiarise students with their respective nation's constitution. Dr Hiroyuki Okuno, Doshisha University, Japan, champions the development and implementation of new ways of teaching the Japanese constitution to students. He is developing a cross-disciplinary learning programme for junior high school students called the Constitutional Learning Programme that teaches the constitution using social studies that utilise ICT. His goal is to spark within students an active interest in the constitution and encourage them to play a role in the constitution in terms of expressing opinions and thinking deeply about liberty and human rights. The programme's format is flipped learning, with students acquiring knowledge ahead of time and later deepenging this understanding through interaction with peers and teachers. The use of e-learning is key here as Okuno wants students to learn at their own pace and believes this is facilitated by this style of learning, enabling students to take home ideas learned in the classroom and better familiarise themselves with these concepts independently.

Mangling life trajectories: institutionalised calamity and illegal peasants in Colombia

This article discusses the institutionalisation of calamity – in the form of fumigation and exposure to lethal violence – and its consequences over coca peasants and workers in Colombia. I show how institutionalised calamity indelibly marks their life trajectories, through repeated episodes of ‘total loss’. At the same time, it is a major illustration of a process of co-constitution of class, citizenship and state. In effect, institutionalised calamity endows illicit rural classes and economies with specific characteristics that diverge from the typical identikit attributed to peasants in some agrarian studies. These peasants and workers are much more mobile and risk prone, and less localistic and deferential, than it is frequently assumed, and have different demands with respect to markets, government and land. All this leaves a deep and lasting imprint on the claims for rights and recognition pacts demanded by them, triggering a double and apparently contradictory dynamic of rejection and inducement vis-à-vis the state. They resist state sallies into their territories, and the violence, brutality and stigmatisation associated with them. But, on the other hand, they push for infrastructure and regulation, indispensable not only for coca crops but also for any viable transit to legality. This dynamic has important spatial expressions.

Aspects of Legal Protection in the Agreement of Selling and Purchase of Heritage Land

This study aims to identify and analyze the sale and purchase of land originating from inheritance and to analyze forms of legal protection for buyers in the event of problems in the process of buying and selling inherited land. The method used in this research is using the normative juridical method by taking primary data from the applicable laws and regulations, especially in Indonesia. The results of the study show that legal protection for buyers of inherited land is contained in Article 1492 of the Civil Code which provides an explanation that although at the time of the sale there is no promise of guarantee, the seller, by law, is obliged to bear the buyer against claims of rights through law to surrender all or part of the goods. sold to a third party

Transmigrants Experiences of Recognitional (in)Justice in Indonesia’s Environmental Impact Assessment

This paper unpacks the environmental justice concerns of rural migrants in relation to land tenure and Environmental Impact Assessment (EIA) processes. We explore the “geography of recognition”, whereby sense of community, identity and place interact to produce unequal experiences of recognitional justice in relation to the EIA process. We develop our argument by using qualitative research and a village case study in East Kalimantan, Indonesia, involving transmigrant communities and indigenous Kutai people. This study highlights how a failure to recognize transmigrants’ identity creates barriers to their meaningful participation in the EIA. Structural flaws in the decentralized land-use system mean a failure to address the contested claims for recognition and land rights between transmigrant and indigenous communities, which in turn fuels social and environmental conflict. Resolving land tenure conflicts requires the empowerment of socially marginalized groups in the decision-making over land-use projects affecting them.

The Customs of Conquest: Legal Primitivism and British Paramountcy in Northeast India

The discourse around indigeneity, customary rights of possession and claims to political autonomy in Northeast India conventionally traces the postcolonial protectionist legislation for ‘tribes’ to various acts passed under the late colonial state, the most significant precursor being seen as the Government of India Act, 1935. This article will argue that one can in fact trace the ‘original moment’ in the idea of customary law for ‘tribes’ much further back in history, to the early decades of the nineteenth century. This historical moment was anchored in the beginnings of the East India Company’s conquest of the Garo hills in the late eighteenth and early nineteenth centuries, in the appropriation of the land and revenue of the Garos and in the ethnogenesis of the ‘hill Garo’. The article will explore the ways in which the beginning of the invention of customary law and traditional authority in Northeast India under East India Company rule was impelled by the Company’s demands for revenue and was shielded and secured by the deployment of military power across the hills. Over the course of the nineteenth century, the strategies of imperial control first introduced in the region were reproduced across the rest of Northeast India, underscoring the significance of the Garo hills as the first ‘laboratory’ of colonial rule in the region as well as sharpening our understanding of the character of the early colonial state. The article thus takes as its task the historicization of the categories of ‘customary law’, ‘traditional/indigenous authority’ and the ‘hill tribe’, all of which form the basis of late colonial and postcolonial legislation on the ‘tribe’.

MODEL GERAKAN REKLAIMING TANAH DALAM PERSPEKTIF MASYARAKAT ADAT KASUS DI WILAYAH KABUPATEN KOTAWARINGIN TIMUR

Tenure conflicts between indigenous communities and plantation companies are based on differences in the legality of claims. The community as a subsystem of traditional farmers underlies the claim of management rights based on traditional knowledge. On the other hand, plantation companies based the legality of claims based on agrarian law that is normative positivistic with a capitalistic economic orientation. In Henri Lefebvre's perspective, in fact there is no completely "ideal" space because space itself is spatially in modern capitalist society as an arena of battle that will never be completely contested. All interested parties will continue to try to find ways to dominate the use or utilization of a space and reproduce all knowledge to maintain their hegemony over the use of that space. In that context, social movements can be understood as community efforts in producing social space.

Social Isolation of Older Adults in Long Term Care as a Result of COVID-19 Mitigation Measures During the COVID-19 Pandemic

Social Isolation of Older Adults in Long Term Care as a Result of COVID-19 Mitigation Measures During the COVID-19 Pandemic

The Concept of Money in the Era of Digitalization

The paper examines issues related to the origin of money and the transformation of its forms, the economic and legal nature of money, provides characteristics of "cryptocurrency" and digital currencies of central banks, including the digital ruble. The author makes an attempt to define money based on its obligatory nature. As the author emphasizes, remaining in captivity of traditional approaches (money is a thing, there is full-fledged money and inferior ones, cash is money, but along with this there is “money” that is not money), we will not get an adequate reflection of the phenomenon “money” in national legislation, and we will not achieve effective regulation of money circulation in the country. It seems that the definition of money should be based on its obligatory nature. Money is a universal right of claim, expressing the value of any goods, works, services, recognized in thesociety, supported and provided by the state (central bank). The paper also emphasizes that the digital ruble will require a serious reform of both private law and public law legislation to properly reflect the existing and actually emerging system of monetary circulation. Changes in legislation cannot be limited to legal and technical amendments with the use of the term "digital ruble" and the establishment of some features of its circulation.

‘How Much Longer Will We Allow This Country's Affairs to be Run by Radical Feminists?’ Anti-Feminist Activism in Late 1970s Australia

The historiography of Australia's feminist and sexual revolutions has focused on activists who articulated new claims for rights and protections on the basis of gender and sexuality. Very few scholars have investigated anti-feminist women's groups as part of this history. This article focuses on two anti-feminist women's groups in late 1970s Australia: Women's Action Alliance, and Women Who Want to Be Women. It argues that they adapted the women's movement's slogan ‘the personal is political’, using their identities as wives and mothers to authorise their political campaigns and contesting structures designed to facilitate women's access to policy-making. Finally, the article argues that while these groups were small, they did influence Federal politics. The rapidly changing economic orthodoxies of the late 1970s exerted particular pressures on women. Feminists and anti-feminists both offered a similar analysis of these economic pressures, even though the solutions they advanced were very different.

Benchmarking Indigenous water holdings in the Murray-Darling Basin: a crucial step towards developing water rights targets for Australia

ABSTRACT Australia’s ability to address Indigenous claims for water rights and to advance both national Indigenous and water policy is hampered by a lack of information on Indigenous water entitlements and the communities that hold them. This paper contributes to the policy agenda of increasing Indigenous water rights by developing a method that quantifies and enables spatially explicit comparison of Indigenous-held water within and across Murray-Darling Basin jurisdictions. We construct baselines for (i) Indigenous population (ii) Indigenous holdings of surface water entitlements, and (iii) Indigenous holdings of groundwater entitlements across water management units in the Basin. We estimate that Indigenous surface water holdings constitute no more than 0.17% of the equivalent permitted take across the entire Basin. Groundwater entitlements held by Indigenous entities constitute 0.02% of all available groundwater. The approximate market value of these water entitlements is A$19.2 million in 2015–16 terms, which equates to 0.12% of the total $16.5 billion market value. In contrast, 5.3% of the Murray-Darling Basin population is Indigenous, a proportion that is rapidly increasing. The production of estimates of this type, and Indigenous control of the data needed to generate them, are first steps in a reparations process that can contribute towards Indigenous water justice.

취득시효 완성자의 대상청구권에 관한 고찰 - “取得時效와 代償請求權”을 중심으로 -

취득시효 완성자의 대상청구권에 관한 고찰 - “取得時效와 代償請求權”을 중심으로 -

아브라함계 종교와 세계인권선언: 인권관념 비교연구

This article compares and analyzes the idea of human rights in Abrahamic religions. For this purpose, it reviews Abramamic religions’ contribution to the adoption of the Universal Declaration of Human Rights (UDHR), their theological interpretations of rights-claiming culture, and human dignity. The article identifies two components that have shaped their varied notion of human rights. The first is that the religions have regarded the universalist claim of human rights as a moral challenge against their religious doctrines, which was established to preserve their Divine revelations. The second is that their historical experiences - religious persecution for Judaism, the Enlightenment for Christianity, and the West European Colonialism for Islam - have respectively shaped their initial hostility towards the idea of human rights. The concept of human rights is commonly considered to be founded on the Judeo-Christian tradition and the Western experience of the Enlightenment. Judaism and Christianity, however, alongside Islam, have in actuality often repudiated the idea of universal human rights following the adoption of the UDHR. This paper demonstrates that this conceptual distance between religion and human rights has ultimately been narrowed due to an increase in shared dialogue. In short, the idea of human rights has earned its universality in Abrahamic religions through a set of debates and compromises.

Sam C. Nolutshungu: Race, Reform, Resistance and the Black Consciousness Movement

Abstract This paper excavates and historically contextualizes the political theory of a largely neglected thinker within South African black intellectual history, Sam C. Nolutshungu. It seeks to rectify the current imbalance in South African intellectual history which largely neglects or effaces the contribution of black thinkers in the colonial or Apartheid period notwithstanding significant black contributions in theorizing racial submission, domination, reform and popular resistance in the context of state oppression. In this paper I argue that two such areas of inquiry are present in Nolutshungu’s overall position on political reform. The first is with regards to his intervention in the race- class debates which dominated political and intellectual discussions during the late Apartheid period. Here, Nolutshungu, argues that political domination could not be reformed with simple concessions as a result of its racially exclusionary nature. Thus Nolutshungu argued that race rather than class was the fundamental source of domination. The second is the theoretical evaluation of the social and political significance of the Black Consciousness Movement as an important symbol of resistance and racial solidarity. The link between these two aspects of his thought, I argue are not insignificant and should be carefully considered. Nolutshungu’s valuable analysis on the route to political reform is strengthened by his evaluation of the role of the Black Consciousness Movement, which for Nolutshungu was an instance of how resistance was mobilized along racial rather than class lines. Moreover, the Black Consciousness Movement not only prioritized the question of race as a primary factor in its mode of resistance but served to illustrate how and why meaningful change in South Africa was contingent on the abolition of racial oppression and the overturning of the institutions of Apartheid. Finally, I argue that there is a contextual urgency in undertaking projects that seek to establish the importance of black intellectual ideas and reclaiming these ideas in order to give content and meaning to contested contemporary debates on justice, legitimacy, liberty, equality and land rights in South Africa. While the discourse of the negotiated settlement and reconciliation sparks intense debate often resulting in greater forms of racial polarisation, historical rumination and reflection offers a powerful and enduring opportunity for collective inquiry.

Ethnic trauma in migration: FSU-born Israeli women’s narratives in an online support group

This article lays ground for the concept of ethnic trauma for understanding the crisis of migration and its aftermath. The analysis is based on autobiographical stories recently published by the online community of the women who immigrated to Israel from the USSR/FSU as children or adolescents (Generation 1.5) in the early 1990s. Despite its self-selected nature, this story-telling project captures many generic features of the Russian-Israeli (and other) immigrant experiences. These stories form a collective narrative featuring trauma, coping and eventual victory – a discursive plot quite typical for contemporary Israeli therapeutic culture. In the age of identity politics, ethnic trauma becomes a political tool deployed in the struggle for recognition by different immigrant and minority groups. The discourse of trauma, resilience and overcoming/catharsis incorporates immigrants in the local discourse, letting them negotiate their identity and claim full belonging. Thus, ethnic trauma emerges as a political resource to support immigrants’ claims of equal rights and demands for symbolic reparations.

Terrorising innocence: Australia’s counter-terrorism laws trump freedom of liberty

ABSTRACT Extant threats—from terrorists to health pandemics—test our resolve in the arena of liberty and human rights. Our fidelity to the presumption of innocence often wavers in these circumstances, whether the threat is real or illusory. This article argues that Australia’s counter-terrorism laws worryingly erode the presumption of innocence by shifting the burden of proof to the presumed innocent person to prove exceptional circumstances to justify bail. These far-reaching new laws create a separate bail framework that is inadequately justified, disproportionate to its legitimate objectives, and contrary to the fundamental principles of our liberal democracy. This paper critically analyses the legislative history of bail provisions found in counter-terrorism laws as well as the spawning jurisprudence denying bail where the presumed innocent person is labelled a ‘terrorist’. These laws problematise Australia’s compliance with fair trial rights under new domestic legislation such as the Human Rights Act 2019 (Qld) as well as with its obligations under the International Covenant on Civil and Political Rights. This critique raises questions about the legitimacy of laws that erode fundamental human rights in the name of national security and undermine the very democratic values they purport to protect.

Adherence to behavioral Covid-19 mitigation measures strongly predicts mortality.

In the absence of vaccines or causal therapies, behavioral measures such as wearing face masks and maintaining social distance are central to fighting Covid-19. Yet, their benefits are often questioned by the population and the level of adherence to the measures is variable. We examined in representative samples across eight countries (N = 7,568) whether adherence reported around June 1, 2020 predicted the increase in Covid-19 mortality by August 31, 2020. Mortality increased 81.3% in low adherence countries (United States, Sweden, Poland, Russia), 8.4% in high adherence countries (Germany, France, Spain, United Kingdom). Across countries adherence and subsequent mortality increases correlated with r = -0.91. No African or South American countries were included in the present study, which limits the generalizability of the findings. While reported Covid-19 mortality is likely to be influenced by other factors, the almost tenfold difference in additional mortality is significant, and may inform decisions when choosing whether to prioritize individual liberty rights or health-protective measures.

Constitutional Law: Principles and Practices

The law and its political foundations are constantly changing. These include, for example, immigration, asylum, and prisoners’ rights, the eviction of tenants, pawnbrokers’ rights, and access to adoption records, victims’ rights, press freedom and euthanasia. The Alcon bury Case in particular involved the relationship between political decisions taken by a minister and the rule of law. On the one hand, the Strasburg case law seems to have been systematically applied and a moderate approach adopted. On the other hand also, significant differences of approach are emerging between individual judges. Other developments have been influenced by the ‘’Nolan Principles of Public Life’’ which have pervaded several areas of law, including bringing political parties within a legal regime. There have been also changes in electoral law and developments in the law of judicial review, notably in relation to the doctrines of ‘’unreasonableness’’ and legitimate expectations and the bias rule. There has also been important new literature including extra judicial writings from senior judges and dealing with the influence of the common law on the constitution. The main stand point of this book is that constitutional law pre-eminently concerns the management of disagreement about the exercise of power. As Holmes J remarked, ’the Constitution is made for people of fundamentally different views’’ (Lochner v. New York (1905), 19 US 45 at 767). Hence, in a democracy, the task of constitutional law is to provide mechanisms that prevent one set of values from being permanently dominant while at the same time trying to keep order and to adjudicate fairly between competing pretenders to power. Constitutionalism form the core of good government in the modern democratic world to check on the powers of the different organs of government and the protection of liberty and fundamental rights of individuals within that sovereign territory. All efforts are made by the developed and the developing countries in upholding the rule of law, which are guaranteed through the constitution, to promote democracy for a just and fair society. However good the notion of the constitution is, there are different definitions applied by different stakeholders on the notion of what forms a good democratic polity and good constitution and constitutionalism. It is against this background that an elaborate research has been conducted by the author of the subject matter. At the very basic constitutional law can be described simply as the law relating to the constitution. A constitution represents a set of basic rules and principles which govern the government or the state. H. Barnett identifies constitutional law as concerned with the role and powers of institutions within the state and with the relationship between the citizen and the state. In other words, constitutional law concerns, among others, the following elements: i) The principal institutions of the state, viz, Parliament, the government, the courts and devolved/decentralized state bodies; ii) The specific roles and functions conferred on these institutions, together with the nature and extent of their powers; iii) The procedures and mechanisms used to oversee, regulate and check these powers(parliamentary control over the government and legal controls; iv) The ways in which these institutions relate to one another; v) The ways in which these institutions related to the individual; vi) The basic fundamental rights of the individual( for example, the right to life and free speech and how- and to what extent- these rights and freedoms can be protected from infringement by the state. Hence, constitutional law is the law relating to the constitution, the state institutions, their powers, together with how they relate to the individual.

Inconsistency Between Women and Masculine Approach: A Perspective of Gender Identity in Medieval Indian Society

‘Women and gender studies’ has become a part of social science since 19 th century, when the right of liberty and equality was strongly emphasised to subdue the long-term disparity on masculine and feminine identity. The notion of discrimination on the issue of gender is actually a psychological factor which human being learns from various socio-cultural forces. It has two reasons; one is to regard the males as physically and mentally strong rather than females, and another is to refute them to be a part of human resource through the traditional treatment of only with a capability of bearing child. Now such consideration simply inherited by each and every civilization of the world except few instances of tribal kingdoms where matriarchal culture prevailed. During our period of study, we have numerous cases to trace the contradiction between manliness and the enforcement over the feminine gender. Of course, we have genius lady figures of that age such as - Raziya Sultana, Nurjahan , Mumtaz Mahal , Jahanara and Zebunnisa . But on the basis of historical method of generalization we have an aspect where insufficient data provides incessant conclusion for a particular fact. That’s why, following few such examples we should not determine the overall status of women as quietly good. In this paper, therefore, I shall try to define the patriarchal dominance over the women and nature of gender dissension in both psychological and social sphere of contemporary society.