Magistrates Court Research Articles

Master planning ‘as a verb’: enforcing participatory planning through the Brazilian courts

ABSTRACT Brazil is well-known for participatory planning praxis anchored on the right to the city and federal legislation. Yet little is known about how the right to participation materializes through the courts. Focusing on the right to participation beyond legislative and executive branches, we analyze jurisprudence on participatory planning through decisions in two state courts of appeal. We illustrate higher court magistrates’ awareness about the right to participate despite disregard of procedural participation in other instances. Seeing master planning ‘as a verb’, the contentious meaning of participation in the judiciary is intertwined with the standing of master plans in city governance.

Domestic Violence and Custody Proceedings: An Analysis of Judicial Decisions in Portugal

Abstract Purpose To understand court decisions in custody cases involving allegations of domestic violence, a qualitative study was conducted among Portuguese family court magistrates. Methods A nonprobabilistic snowball sampling process, which involved six judges from Portuguese family courts who were authorized by the Superior Magistrate’s Court to participate in an interview, was used to construct the sample. Results When the data were analyzed, three main themes emerged, namely, the characteristics of the processes, the factors considered in the judicial decisions, and the impact of shared custody. The results also revealed several legal and extralegal aspects that influence judicial decisions, such as the characteristics of the violence, the mediation process, and the status attributed to victims, suggesting that there are objective and subjective factors in the perpetuation of violence. Conclusions Allegations of domestic violence in custody proceedings are not uncommon, and these allegations can complicate the process and delay a decision. Efforts by one parent to restrict contact with the other parent raise suspicions of attempted alienation that tend to undermine the risk assessment. There can also be overreliance on shared custody, potentially undermining children’s safety. The negative impacts of exposure to domestic violence and the instrumentalization of children are recognized, but it is questionable whether they are being prevented to the extent advocated by the Istanbul Convention. The effectiveness of communication between criminal and family courts is also debatable, despite its importance for protecting victims.

THE STATE AND FEDERAL HIGH COURTS’ JURISDICTION OVER BANKER-CUSTOMER DISPUTE FROM THE PRISM OF DECIDED CASES: WHITHER THE MAGISTRATE COURT’S JURISDICTION

The Magistrate Court Law of most States in Nigeria, (including Oyo State) gives themjurisdiction over tortious acts of which detinue is one. Thus, where a bank customer, mistakenly makes an intra or interbank transfers to a wrong account whereof the money is withheld by the bank, and the withheld amountis within the monetary jurisdiction of the Magistrate Court, the customer, usually brings an action in detinue for the bank to release the money to him/her. This is usually donenotwithstanding that both the Supreme Court of Nigeria (SCN) and Court of Appeal (CA) have held that the State and Federal High Courts’ have concurrent jurisdiction over banker-customer disputes.This paper, adopts desk-based method in interrogating the jurisdiction of the Magistrate Court of Oyo State under the Oyo State Magistrate Court Law, 2011 vis-à-vis the jurisdiction of the State and Federal High Courts over banker-customer dispute based on decided cases to determine whether there is any conflict. It argues that the cases in which the SCN and CA have held that the State and Federal High Courts have and exercises concurrent jurisdiction over banker-customer disputes, were decided without reference to the jurisdiction of other equally competent courts including the Magistrate Court of Oyo State (and other States as well).It found that there is not jurisdictional conflict between these courts in relation to banker-customer disputes but symbiotic. The paper makes vital recommendations before concluding.

The Prince of the Abrolhos, 2020–2023: On Micronations and Pseudolaw in Western Australia

This article examines the Houtman Abrolhos Micro Nation, established by Kristin MacDonald, a Western Australian man, in 2020. The article draws on media reports and documents prepared by the ‘prince’ in support of his legal claims. Notwithstanding a curious attempt to draw support from the neighbouring micronation of New Westralia, MacDonald’s claims were quickly dismissed by the Geraldton Magistrates Court in 2023, and the micronation has ceased to operate. Nevertheless, its brief existence demonstrates the continuing allure of micronationalism and pseudolaw for some individuals who have allowed what they perceive to be a personal injustice to take on a political dimension.

Российская судебная власть и иностранные подданные, выходцы из приграничных восточноазиатских государств на Дальнем Востоке Российской империи (конец XIX начало – XX в.)

The article is devoted to the peculiarities of the implementation of Russian justice in respect of Chinese and Korean subjects in the Amur and Primorsky regions of the Russian state. It considers the solution of the issue of extraterritoriality of the Chinese subjects, the attempt of the local administration to establish control and gain sustainable influence over the traditional Chinese and Korean courts in, as well as the solution of the problem of jurisdiction of the Russian magistrate court over cases involving Chinese subjects living in the Zazeisky district of Amur region.

Issues of Protection of the Rights of Citizens in Criminal Cases of Private Prosecution at the Stage of Initiation of Criminal Proceedings

The article is devoted to the implementation of the rights of citizens in criminal cases of private prosecution at the stage of initiation of a criminal case. Based on the analysis of the norms of Articles 318, 319 of the Criminal Procedure Code of the Russian Federation, the legal positions of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, attention is drawn to the problems that arise when initiating criminal cases of private prosecution. It is noted that the procedure for initiating a criminal case of private prosecution has been generally developed, but at the same time needs further improvement. The content of the application for the initiation of a criminal case, the procedure for filing it and determining jurisdiction are sufficiently regulated by the criminal procedure law of the Russian Federation, which refers to guarantees of personal rights both in relation to the victim (private prosecutor) and the person accused of committing a crime in a private prosecution case. The article contains an analysis of the procedural procedure for initiating a criminal case by the body of inquiry and the justice of the peace and the conclusion that the justice of the peace (judge of the district (city) court) is in any case obliged to accept the statement of the victim (private prosecutor) in the case of a private prosecution and verify it only in the form of a statement. It is from the moment when the judge makes a decision to accept the application for production that the criminal case of a private prosecution should be considered initiated, while the body of inquiry has the right to make a decision on the initiation of a criminal case, having assessed the sufficiency of the grounds. According to the author, all legal procedural mechanisms in cases of private prosecution have been created by the legislator and are currently being applied by magistrates (district (city) courts).

The History of Violence in Scotland Reconsidered: The Culture, Filtering and Treatment of Assault in Police Courts, c. 1829–1900

While recent scholarly attention has focused on serious, indicatable violent crime in Scotland, this article considers the more common offence of lower-level assault that was dealt with summarily in police magistrate courts in the nineteenth century. It explores the role that police courts played in conceptualising, categorising and processing such violence, the role assault played in Scottish urban communities and the culture that surrounded it. The article also examines how magistrates dealt with assault and what this might suggest about the impact of the police and the courts on violent behavioural patterns. It argues that interpersonal violence had a more important, complex and nuanced role to play in Scottish urban communities than conclusions based on criminal indictments suggest. Assault was a disturbingly accepted facet of conflict resolution, a means of exerting authority and patriarchy in communities and households and an ever-present threat with which a sizeable percentage of the urban masses had to live. The article stresses that the boundaries between lower-level assault that was dealt with summarily and more serious (or ‘aggravated’) assault that was tried in a higher court on indictment were determined not just by the nature of violence wielded or the injury sustained, but by a raft of social, cultural and practical factors. Indeed, the rise of summary justice in the form of police courts helped to lower indictment rates for serious assault, as magistrates often dealt summarily with assaults that warranted a more serious charge. This is a point that historians need to bear in mind when considering what indictment rates for serious assault reveal about violence in Scotland more broadly.

Judicial Interpretations, Findings and Pronouncements of the Nigerian Apex Court: A Review of Mohammed Vs Frn

Purpose: The objective of this review was to challenge the apex court's decision, encompassing its findings, judicial interpretations, and pronouncements (DFIP). A notable issue arises from the discovery that the National Assembly (NA) mistakenly granted 'exclusive' criminal jurisdiction to the Federal High Court (FHC) regarding Indian hemp offenses. Consequently, this study critically examined the DFIP in depth.
 Methodology: This work adopts the doctrinal method of research, which involves the use of primary and secondary sources of law. This study relied on key primary sources, including the constitution of the Federal Republic of Nigeria, Acts of the National Assembly, case laws, and Decrees. Supplementary information was derived from secondary sources such as books and articles. This review extensively employed primary and secondary legal sources, focusing on statutory interpretation rules, the hierarchy of norms, particularly in relation to the principle of inconsistency, and the unalterable nature of jurisdiction prescribed by the Constitution of the Federal Republic of Nigeria (CFRN). These criteria were systematically applied to evaluate the Decision, Findings, Interpretations, and Pronouncements (DFIP) of the apex court.
 Findings: The apex court's determination that Section 8 of the Indian Hemp Act (IHA) was implicitly repealed by Section 26 of the National Drug Law Enforcement Agency (NDLEA) Act is inaccurate. Similarly, the assertion that the National Assembly (NA) granted 'exclusive' criminal jurisdiction to the Federal High Court (FHC) is flawed, as Section 251(3) of the Constitution of the Federal Republic of Nigeria (CFRN) actually confers concurrent criminal jurisdiction on the FHC. 
 The finding of the apex court that Magistrate Courts (MC), being a creation of state legislation, cannot try Indian hemp offences is erroneous. The apex court's assertion that Indian hemp is both a 'drug' and a 'narcotic drug' is refuted as erroneous in the course of this review.
 Recommendations: Statutory intervention in the manner of amendment of Sections 251(1)(s) and 251(3) is required if the decision of the apex court is to represent the position of the law in Nigeria.

The effects of the perception of corruption on public trust in government in Africa: a comparative analysis

ABSTRACT This study examines the effects of corruption on public trust in government in Africa at various levels and explores variations across stable and fragile states. This study uses Afrobarometer data collected from households in 2019 to understand whether this link exists. Using ordered logit analysis and marginal effects, the study reveals that corruption significantly diminishes trust in government. High levels of corruption in the presidency, parliament, and local government are all associated with declining levels of trust. This corruption extends to judges, magistrate courts, religious, and traditional leaders suspected of corruption, who are expected to uphold ethical standards. Corruption in the office of the president reduces trust in the president, parliament, and local governments, while corruption in parliament decreases trust in parliament and local governments. Local government corruption impacts trust at the local level. Despite a high level of corruption in stable states, corruption in the local government is not responsive to public trust. The sensitivity of corruption to trust in the government is more pronounced in fragile states than in stable states. This study illustrates the pressing need to combat corruption and rebuild trust in governments. The findings highlight the need for context-specific anti-corruption strategies and policy interventions.

No Country for Old Women: A Critique of Grobler v Phillips 2023 1 SA 321 (CC)

Land and land rights remain a contested issue in South Africa. Grobler v Phillips centered on the eviction of an 86-year-old woman, Mrs Phillips, and her disabled son from property she had lived on since she was 11 years old. After a fourteen-year court battle the Constitutional Court granted an eviction order against Mrs Phillips. This case note consists of a discussion of the judgments of the Magistrate's Court, High Court, Supreme Court of Appeal and Constitutional Court. It is found that the Constitutional Court erred in its decision as it applied a formalistic approach, disregarded the narrative of the occupier and did not sufficiently challenge the current neo-liberal regime in which property rights operate.

Technological Strategies and Performance of the Judicial Sector in Kenya: A Case of Nairobi City County

Purpose: Innovations and rapid diffusion of information and communication technologies in institutions are currently experiencing revolutionizing organizational processes. Globalization equally fuels the adoption of the ICT as the basis for digital operations are changing the way organizations operate. Studies on various countries’ courts show that the judicial efficiency affects a country ‘s entrepreneurial activities; this reduces as the level of inefficiency increases. Thus, the study sought to analyze the influence technological strategies on performance of judicial sector in Kenya. Specifically, the study proposed to determine the influence of technological sourcing; technology posture; technological culture change; technological capacity on the performance of the judicial sector in Kenya.
 Methodology: By adopting descriptive research design, the study targeted all the five magistrate courts in Nairobi City County and purposively targeted nine offices per station, comprising (magistrate, court clerk, court accountant, court secretaries, court Archivist, HR and Administration officer, ICT officer, Procurement officer, and Library assistant, yielding a total of 45 sample size respondents for the study. Primary data was collected through structured questionnaires, which was piloted to ascertain its reliability and validity. Data was analyzed both descriptively as well as inferentially with the help of SPSS program (v.25.0) and MS Excel 10 softwares; and results presented using tables and charts for interpretation.
 Findings: From the study results, all the technological strategies variable had a positive and significant relationship with performance of the judicial sector in Nairobi City County in Kenya.
 Unique Contribution to Theory, Practice and Policy: The study was formed by the following theories: Transactional Cost, knowledge based; Stakeholders; Culture theory as well as the Task-technology fit theory. The study recommended that magistrate courts in Nairobi City County in Kenya should enhance their technological strategies since the strategies have been shown to bear a positive and significant effect on performance. The magistrate courts can achieve this through adopting advance technological orientations, especially where sourcing and culture of operations are concerned.

The politics of language: Exploring the DREAMers as the “alien other” in the narratives of immigration

AbstractRecently, the Biden administration banned federal agencies from using the phrase “illegal alien,” replacing it with a less dehumanizing expression (e.g., noncitizen, undocumented immigrant, etc.). This article delves into the origins of the alien reference by surveying the case of the DREAMers—a small subset of immigrants brought to the United States as children. Designated as aliens in the broader immigration context, the DREAMers epitomize a problematic narrative depicting the overall “otherness” as deep‐seated in America. I impose Agamben‘s image of the homo sacer onto the conceptualization of otherness to frame the DREAMers as alienated (exempted from the limits of the political state), waiting to enter society through formal legislation. Critically examining the narratives of policy makers in Congress, I study how political elites use language to reinforce existing power structures. In the two‐decade attempt of Congress to resolve the DREAMers‘ marginalized status, they are infantilized and, hence, stigmatized anew.Related ArticlesDuman, Yoav H. 2014. “Reducing the Fog? Immigrant Regularization and the State.” Politics & Policy 42(2): 187–220. https://doi.org/10.1111/polp.12065.Garrett, Terence M. 2020. “The Security Apparatus, Federal Magistrate Courts, and Detention Centers as Simulacra: The Effects of Trump‘s Zero Tolerance Policy on Migrants and Refugees in the Rio Grande Valley.” Politics & Policy 48(2): 372–35. https://doi.org/10.1111/polp.12348.Garrett, Terence M., and Arthur J. Sementelli. 2022. “COVID‐19, Asylum Seekers, and Migrants on the Mexico–U.S. Border: Creating States of Exception.” Politics & Policy 51(3): 872–86. https://doi.org/10.1111/polp.12484.

Judging fast or slow: The effects of reduced caseloads on gender‐ and ethnic‐based disparities in case outcomes

AbstractWhat is the effect of caseload volume on case outcome disparities based on a litigant's gender or ethnicity? This paper presents three nonexclusive mechanisms to explain possible effects. The first mechanism relates to a litigant's inclination to settle or withdraw claims; the second mechanism concerns the strategic preemption of appeals by judges; and the third mechanism relates to the implicit biases of judges. To document the effect and test the mechanisms, we exploited a natural, near‐randomized experiment in the Israeli judicial framework. In 2012, six senior registrars were appointed to two of the country's six magistrate court districts. The choice of districts was not related to judicial performance. In these two districts, the civil caseload per judge was substantially reduced. We find that while this reduced caseload had a significant impact on the judicial process for all litigants, it had a particularly salient and beneficial effect on outcomes for female and Arab plaintiffs. The exogenous reduction in court caseloads was associated with positive effects for female Jewish plaintiffs in terms of the likelihood of winning the claim, recovery amount (from the claim), and cost‐shifting outcomes. The change was also associated with positive effects for Arab female plaintiffs in terms of the likelihood of winning the claim and the recovery amount (from the claim). Finally, the reduction in caseloads was associated with a positive effect for Arab male plaintiffs in terms of the fraction of the claim that was recovered. Our findings suggest that when judges are able to invest more time and resources in resolving individual cases, they tend to be less influenced by stereotypes about gender and ethnicity. We discuss the contribution of our findings to the literature on judicial bias and the implications for different policies designed to reduce or manage congested courts.

Following the Money: Understanding Forum Shopping and the ‘Justice Marketplace’ in Sierra Leone

Monetary expenses are said to prohibit poor rural litigants from accessing official justice institutions, which are often concentrated in urban centres, thus pushing these litigants towards customary forums. At the same time, the alternative customary courts have been shown to cost more than formal justice institutions such as official magistrates courts. This article examines the economics informing litigants’ choices of judicial forums to contribute to a new analysis beyond state-centred legal pluralism. It argues that how money features in cases at barrays – the unofficial, unrecognised, customary courts in the capital city of Sierra Leone – not only explains why ordinary people engage with (extra)legal processes, but also demonstrates how justice is understood and (re)produced in practice.

Religious Jurisdiction System: A Comparison In Brunei Darussalam And The Philippines

Brunei Darussalam is a country that has an absolute monarchy style of government based on Islamic law with the Sultan serving as Head of State and Head of Government, concurrently serving as Prime Minister and Minister of Defense assisted by the Advisory Council of the Sultanate and several Ministers. Brunei or also called the Malay Islamic Kingdom (MIB) made Islam its national ideology. The method used in this study uses Library Research which is a data collection technique by examining various literature including journals, books, magazines, and other data sources, to link the results obtained from these various sources. Brunei's legal system is based on English common law, with an independent judiciary, judicial bodies, written common law statutes, and statutes passed by the Sultan. Courts have different jurisdictions, so the sentences imposed are different. The courts at that time were: (1) Resident Court, (2) First Instance Court, (3) Second Instance Court, and (4) Indigenous and Kathis Magistrates Court. Meanwhile, the Philippine Legal System is a blend of the Roman Civil Law System and the Anglo-American Common Law System. The Civil Law system operates in areas such as family relations, property, succession, contracts, and criminal law while the statutes and basic principles of Common Law are evident in areas such as constitutional law, procedure, corporate law, negotiating instruments, taxation, insurance, labor partner work, and banking law. Islamic law prevails and is recognized in parts of Mindanao with the establishment of Shari'ah courts. This research aims to find out how the religious justice system is in Brunei Darussalam and the Philippines

Title 42 and the power to exclude: Asylum seekers and the denial of entry into the United States

AbstractDebates to “secure the border” have often dominated immigration legislation. Since the COVID‐19 pandemic began, this rhetoric has intensified with the use of the Title 42 program to “expel” asylum seekers without hearing the merits of their case. This article outlines how the Title 42 policy has exacerbated dangerous border crossings while advancing discriminatory policies which disproportionately affect non‐White asylum seekers. Using the framework of Critical Race Theory, this article examines the impact(s) of race, ethnicity, and nationality within the immigration bureaucracy. It suggests that “race neutral” polices in immigration perpetuate racial subordination and exclusion for immigrants racialized as non‐White. Intertwined with xenophobia and anti‐immigrant bias, this work also suggests that public health rationales have long been used to exclude “unfit” or “unclean” migrants due to the “fear of contamination” and infection. The Title 42 program is a violation of human rights, immigration laws, and stipulations in the United Nations Charter which prohibits refugees from being expelled to countries where their lives or freedoms are threatened.Related ArticlesGarrett, Terence M. 2020. “The Security Apparatus, Federal Magistrate Courts, and Detention Centers as Simulacra: The Effects of Trump's Zero Tolerance Policy on Migrants and Refugees in the Rio Grande Valley.” Politics & Policy 48(2): 372–35. https://doi.org/10.1111/polp.12348.Garrett, Terence M., and Arthur J. Sementelli. 2022. “COVID‐19, Asylum Seekers, and Migrants on the Mexico–U.S. Border: Creating States of Exception.” Politics & Policy 50(4): 872–86. https://doi.org/10.1111/polp.12484.Silverman, Stephanie J. 2012. “‘Regrettable but Necessary?’ A Historical and Theoretical Study of the Rise of the U.K. Immigration Detention Estate and Its Opposition.” Politics & Policy 40(6): 1131–57. https://doi.org/10.1111/j.1747‐1346.2012.00393.x.

Jak ks. Marcin Lubomirski rabunkiem pod Częstochową się bawił – w świetle zeznań złożonych przez uczestników wydarzeń

The article presents a series of events concerning prince Jerzy Marcin Lubomirski, which took place in the years 1757–1759. The young magnate committed several offences then: he deserted the crown army, he served in the Prussian army and recruited soldiers there, which was followed by him looting and plundering in Poland. He was apprehended near Częstochowa by a unit of the crown army and brought to a military court in Kamieniec Podolski, whereas his people were brought to a magistrate court in Cracow. The series of aforementioned events was the origin of a black legend of prince Jerzy Marcin Lubomirski, and the sentences issued then, including partial amnesty for the main hero of this article, are a good illustration of how law was executed in Poland during the Saxon times.

Revisiting the policy implications of COVID‐19, asylum seekers, and migrants on the Mexico–U.S. border: Creating (and maintaining) states of exception in the Trump and Biden administrations

AbstractPublic policy choices continue to bring dramatic changes to migration practices in the era of the coronavirus in the United States. In this article, we argue that the COVID‐19 pandemic facilitated the creation and maintenance of states of exception while continuing to destabilize practices at the Mexico–U.S. border through the politics of fear. Specifically, the Migrant Protection Protocols (MPP), Zero Tolerance Policy (ZTP), COVID‐19 CAPIO, Asylum Cooperative Agreements (ACA), and Title 42 used an arcane section of U.S. law to immediately expel asylum seekers and refugees. We show that these policies highlight the formation and maintenance of states of exception consistent with the work of Agamben. We further discuss how the politics of fear can reinforce hegemonic narratives targeting asylum seekers while shaping political agendas that lean toward a specific brand of nationalism using public health as a context. The U.S. government under the Trump administration—and the Biden administration to a lesser, yet continuous, extent—constructed these policies aimed primarily at refugees and asylum seekers from El Salvador, Guatemala, Honduras, and Mexico thereby violating laws and international treaty obligations.Related ArticlesDuman, Yoav H. 2014. “Reducing the Fog? Immigrant Regularization and the State.” Politics & Policy 42(2): 187–220. https://doi.org/10.1111/polp.12065.Garrett, Terence Michael. 2020. “The Security Apparatus, Federal Magistrate Courts, and Detention Centers as Simulacra: The Effects of Trump's Zero Tolerance Policy on Migrants and Refugees in the Rio Grande Valley.” Politics & Policy 48(2): 372–95. https://doi.org/10.1111/polp.12348.Maggio, James. 2007. “The Presidential Rhetoric of Terror: The (Re)Creation of Reality Immediately after 9/11.” Politics & Policy 35(4): 819–35. https://doi.org/10.1111/j.1747‐1346.2007.00085.x.

Parens patriae jurisdiction and religious beliefs of parents in medical treatment of a minor: Examining the Supreme Court’s decision in Tega Esabunor v Faweya & Ors (2019) LPELR 46961 (SC) in light of international practice

Recently, the Supreme Court of Nigeria in Tega Esabunor v Faweya & Ors (2019) LPELR 46961 (SC) dismissed an appeal seeking to quash the order of a magistrate court for the transfusion of blood to a baby. The appellants contended that the court had no jurisdiction to make theorder. The crux of the case was whether the parents’ right to consent to the child’s treatment based on religious beliefs supersedes the child’s right to live, thus reflecting the tension between a parent’s right to give consent to the choice of treatment for their child, and the court’s power to override such rights through the inherent parens patriae jurisdiction of the state. The case also reflects the tension between the freedom of a parent to practise their religion and the right of a child to live, in the medical context. This article examines the findings of the Supreme Court in Tega Esabunor’s case, considering whether the court’s decision is in line with the generally accepted practice on when the state can intervene if persons with parental responsibility refuse medical treatment for an incompetent child because of religious beliefs.Cases from other jurisdictions are analysed to ascertain the position of foreign courts. It is submitted that the Supreme Court’s judgmentreflects accepted international practice regarding parental refusal of consent for medical treatment of a child.

The Possession of History and the Dispossession of Silwan’s Palestinians

Since 1967, the slogan “restoring Jerusalem to its Jewish glory” has served as a rallying cry for the further colonization of the occupied eastern part of the city by the Israeli government and settler organizations alike. Jewish settlement in Jerusalem’s Palestinian neighborhoods invokes moral claims to Jewish sovereignty based on biblical history and material claims to pre-1948 properties of Jews in these neighborhoods. This essay examines Jewish settler groups’ utilization of Israel’s political-legal infrastructure to advance their colonization projects at the very heart of Palestinian neighborhoods in Jerusalem. More specifically, it examines an area of Silwan where Ateret Cohanim, through its representatives, has initiated eviction lawsuits against dozens of Palestinian families in the Israeli magistrate court, alleging trespass of Jewish-endowed waqf land established in the 1880s. As elsewhere in East Jerusalem, some of the targeted families in Silwan were originally displaced either from areas that became Israel after 1948 or from the Old City in 1967.