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In the next Supreme Court term beginning in October 2023, the Justices will hear argument on whether the Mandatory Repatriation Tax (MRT), passed as part of the Trump administration's 2017 Tax Cuts and Jobs Act (TCJA), violates the Sixteenth Amendment. Even if the Moores win on their individual MRT refund suit, the MRT on corporate shareholders could survive-and that tax on mega-companies that have retained billions in overseas affiliates forms the most significant part of the expected MRT tax. Even if the Court agrees that the Sixteenth Amendment authorizes accrual-based taxation, making an annual mark-to-market accrual income tax such as that under section 475 constitutional, the Court could possibly conclude that the MRT look-back period is an unreasonably long period for taxation under the accrual method. [Extracted from the article]

The highlight assigned to the Brazilian Supreme Court in trials of political opponents is observed in the Vargas State. In the intersection of the Vargas government, the historical judgment of Habeas Corpus n. ° 26.155/1936 in favor of Maria Prestes - codename of Olga Benário. Is evident the singularities of the case and its intertwining with the political and historical context enhance the object. This study aims to analyze the political reflexes in the Brazilian Supreme Court during the interstitium between 1930 and 1936 and how they impacted the induction and outcome of Habeas Corpus n. ° 26.155/1936. Under the epistem of qualitative research, historical research in Law and the case study are associated, examining the political scenario in which Habeas Corpus n. ° 26.155/1936 was inserted; it enunciates actions of the Executive Power that had repercussions in the Supreme Court; the founding elements of Olga Benário's defense thesis and the outcome of the trial are presented; it is maked an analysis of the state of the art of the correlation between Justice and Politics from the perspective of the use of law for political ends. Finally, it is understood, from the conceptual framework of Political Justice, its applicability in the context of Habeas Corpus 26.155/1936. [ABSTRACT FROM AUTHOR]

The presented paper is devoted to the Czech Supreme Administrative Court's approach to the Russian invasion of Ukraine from the perspective of deciding asylum issues. Specifically, the author focuses on the principle of non-refoulement and breaking the standard rules of administrative court proceedings and Ukraine as a safe country of origin. Finally, the author describes a relatively recent Czech Supreme Administrative Court's ruling in which it addressed the issue of including temporary protection within the international protection system. [ABSTRACT FROM AUTHOR]

In Daniels v Scribante (hereafter the Daniels case) the Constitutional Court had to decide whether: (a) the Extension of Security of Tenure Act 62 of 1997 (ESTA) afforded Ms Daniels the right to make improvements to her dwelling; (b) if consent from the person in charge, Mr Scribante, was a requirement for Ms Daniels to make such improvements; and (c) if consent was not a requirement, if Ms Daniels could effect improvements to the total disregard of Mr Scribante. The judgment in Daniels is important not only because it paved the way for Ms Daniels to effect improvements on her existing dwelling without the consent of Mr Scribante, but also because it showed that under section 8(2) of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) on the application of the Bill of Rights Mr Scribante owed a positive obligation to Ms Daniels to ensure that she lived in conditions that afforded her human dignity. In Daniels the Constitutional Court indicated that private landowners were enjoined by section 25(6) of the Constitution through ESTA to accommodate ESTA occupiers on their land. According to the Constitutional Court in Daniels, the nature of the obligation imposed by section 25(6) of the Constitution was both negative and positive, and in this particular case it rested on Mr Scribante. Against this background, this case note provides at the outset the salient facts and judgment of the Daniels case. This is followed by an analysis aimed at critiquing the judgment in Daniels pertaining to what is expected of private landowners in the new constitutional dispensation. It is concluded that more may be required from the private landowner – a positive duty – to ensure that ESTA occupiers enjoy fundamental rights. [ABSTRACT FROM AUTHOR]

Section 30P of the Pension Funds Act 24 of 1956 (hereafter PFA) is an important procedural tool that allows those dissatisfied with the Pension Funds Adjudicator's determinations to apply to the High Court for such determinations to be set aside. This article discusses this section and demonstrates that neither the legislature nor the courts have provided clarity on whether what is intended by this section is an appeal, a review or a reconsideration of determinations of the Pension Funds Adjudicator. It also illustrates the confusion that has been created by the courts with the High Court referring to this procedure as sui generis and the Supreme Court of Appeal, without referring to previous High Court decisions, referring to this procedure as an appeal in the wide sense. In this article a reflection on whether these two formulations are synonymous or if there is a need to settle for only one of them will be made. Furthermore, a call for judicial reconsideration of the applicability of the Plascon-Evan Rule in section 30P applications will be made in this article. [ABSTRACT FROM AUTHOR]

In its judgment in Qwelane v South African Human Rights Commission 2022 2 BCLR 129 (CC), the Constitutional Court declared section 10(1) of the Equality Act unconstitutional and invalid to the narrow extent that section 10(1)(a) refers to the intention to be "hurtful". The prohibition on hate speech passed constitutional muster in all other respects. In addition, the court purposively interpreted aspects of the application of section 10(1) so as to limit its impact on the right to freedom of expression. This contribution firstly welcomes the court's reliance on the transformative goals of the Constitution and the Equality Act as its primary framework in interpreting section 10(1). The severance of section 10(1)(a) and the conjunctive reading of sections 10(1)(b) and (c) ("be harmful or to incite harm" and ʺpromote or propagate hatred" respectively) also seem sensible considering the court's broad definition of "harm". The article further emphasises that the terms of section 10 call for a proper consideration of context. In this regard, the court rightly considered the extreme homophobia in the society addressed by Mr Qwelane, the particular vulnerability of the target group and the real threat of devastating imminent consequences to conclude that Qwelane's words were clearly intended to "incite harm" and "propagate hatred". Yet the court's view that the speaker's subjective intention is irrelevant in performing the requisite objective reasonableness assessment from the ambit of section 10(1) is arguably less judicious, as is the categorical exclusion of expression in private. Ultimately, the objective case-by-case reasonableness inquiry under section 10(1) should be whether a reasonable person in the speaker's position should have refrained from making the impugned harmful discriminatory utterances. This inquiry involves a determination of wrongfulness based on the constitutional duty not to discriminate unfairly. It invokes all the aspects of the Equality Act's definition of discrimination as well as all the elements of fairness analysis set out in section 14 of the Equality Act. Factors to be considered include the value of the particular expression, and the extent of the (potential) harm to individual members of a protected group and to society as a whole, as well as justification considerations such as the respondent's legitimate and bona fide exercise of the right to freedom of expression and to privacy. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children. [ABSTRACT FROM AUTHOR]

This research article examines various proposals generated from the philosophy of law and from legal theory, around the requirement of rationality, not only in the regulation of law, but also in the adoption of judicial decisions, showing different perspectives: On one hand, which defends a logicist type of rationality, and, on the other, the one that advocates a non-logicist or argumentative rationality paradigm, under the premise that the law is fundamentally praxis. It also demonstrates how the absence of control of discretionary decisions, issued by the constitutional courts, to solve difficult cases, including those related to fundamental rights, and the objections raised to the proportionality test, merit the structuring criteria of rationality that contribute to mitigate the risks of arbitrariness and to guarantee a balance between material justice, human dignity, and legal security and stability. This research, concerning the criteria of rationality in the application of law, is of a juridical nature, and it has been developed from a qualitative approach through the bibliographic review of theoretical categories supported by authors versed in the subject. [ABSTRACT FROM AUTHOR]

The document aims to analyze Judgment C-674/2017, where the Colombian Constitutional Court declared unconstitutional the legislative act that prescribed that third parties who participated in crimes during the armed conflict should be prosecuted by the Special Jurisdiction for Peace, based on the complete replacement of the guarantee of a natural judge. From a transitional perspective, the paper analyses doctrine and case law to conclude that the legislative act passed the constitutional replacement test. [ABSTRACT FROM AUTHOR]

The Constitutional control in Romania implies the obligation of the courts to apply the decisions of the Constitutional Court and may involve the disciplinary sanctioning of judges for non-compliance with these decisions. Some judges considered that this mechanism may affect their independence, especially if the EU law may come into conflict with the decisions of the Constitutional Court. Our paper highlights that a proper understanding of the constitutional control underlines the essential role of the Constitutional Court for the protection of the democratic state and of the values of the European Union through its dialogue with the CJEU and with the national courts. [ABSTRACT FROM AUTHOR]

This paper aims to provide a detailed analysis of the differences between the offence of embezzlement provided for in Article 295 of the Criminal Code and the offence of abuse of office provided for in Article 297 of the Criminal Code in terms of relevant doctrine and jurisprudence. The frequency of committing misfeasance in office, in particular, the two offences under consideration, gives rise to constant debate on the subject of the article. We have also set out to analyse how the judicial authorities have changed their view in some cases after the Constitutional Court's decision no. 405/2016, which brought some divergences concerning acknowledging the offence of embezzlement instead of the offence of abuse of office. [ABSTRACT FROM AUTHOR]

The Supreme Court of Norway has heard the parties in a case that a Latvian shipping company filed against Norwegian authorities because the company was not permitted to catch snow crab on the continental shelf around the Svalbard archipelago. This article provides a short comment on the court proceedings, placing emphasis on the international legal questions that the Supreme Court shall decide. [ABSTRACT FROM AUTHOR]

This paper examines the constitutional possibility of providing ways to bring the autonomous State model closer to the Judiciary, following Constitutional Court Judgement 31/2010. To this end, the paper first presents the constitutional regulations of the Judiciary and the openings for the Autonomous State, shows the precedents and the current plans to this effect, and then presents and discusses the constitutional possibilities (TSJ and Council of Justice) for decentralising the Judiciary in order to implement the autonomous principle, and sets out the contents, issues and limits of a future legal reform in this area. [ABSTRACT FROM AUTHOR]

Though the trademark holder registered his trademark as a domain name, legal scholars and courts did not clarify the legal character of the domain name. To this point, the debate about the nature of domain names was limited to whether the domain name is nonintellectual property or a kind of intellectual property. Even for those who believe that domain names would have intellectual property rights, the essence of this right is still wrapped up in mysteries. More often than not, the court’s decisions were limited to considering the domain name as intellectual property or not until the supreme high court in America decided to register the domain name booking.com as a trademark. This revolutionary decision would change the previous conceptions about the nature of domain names. This paper sheds light on how the supreme court decision would give the momentum to consider a domain name as a trademark, which paves the way as the author believes a domain name can be considered a digital trademark, bearing in mind that the medium, in which the domain names can be active, is the digital space. [ABSTRACT FROM AUTHOR]

This research is focused upon the evaluation of safe berth clause pursuant to US law, in conjunction with UK law, based on the recent US Supreme Court ruling over “ATHOS I”, which was fixed pursuant to an ASBATANKVOY charterparty to carry a cargo of heavy crude oil from Venezuela to Paulsboro, New Jersey. The dispute arose during the final stretch of the voyage, as the vessel entered the Delaware River, an uncharted abandoned ship anchor ruptured the vessel’s hull causing 264,000 gallons of oil to spill. The Oil Pollution Act 1990 required the Owners to fund the clean-up costs in the first instance (limited to US$45 million) and the US Federal Government’s Oil Spill Liability Trust Fund reimbursed Owners for an additional US$88 million in clean-up costs. Owners and the US Federal Government filed suit against voyage charterers for breach of the ASBATANKVOY charterparty safe berth clause. The case went through two trials, and before the Court of Appeals for the Third Circuit twice, before the Supreme Court were asked to determine ultimate liability. The question before the Court was whether the safe berth clause was a warranty of safety, which meant that liability for an unsafe berth would be imposed on voyage charterers irrespective of whether they exercised due diligence. The answer to that question was yes; the language of the safe berth clause in this case was unambiguous and unqualified. The obligation on the voyage charterers was to designate a berth that was free from harm or risk such that the vessel come and go from always safely afloat. The Court went on to comment that “charterers remain free to contract around unqualified language that would otherwise establish a warranty of safety, by expressly limiting the extent of their obligations or liability. In the absence of any such qualifying language however the Supreme Court has made it clear that a charterer is liable to the owner for any consequences arising out of the ship being ordered to an unsafe berth, an obligation unfettered by any issues of due diligence or the degree of knowledge on the part of the charterer. [ABSTRACT FROM AUTHOR]

At dawn of 29 May 2009 the ro/ro pax Vincenzo Florio caught fire off Ustica Island whilst en route from Naples to Palermo. The passengers were transshipped to a vessel which was navigating nearby and all crewmembers then abandoned the ferry. The Vincenzo Florio was towed to Palermo by tugs of the local tug company, which had pilots on board to assist in the manoeuvring. The pilots also assisted in directing the positioning of floating pontoons alongside the breakwater of the port of Palermo where the Vincenzo Florio was to be moored as she had her fin stabilisers locked outboard. The pilots’ claim for salvage remuneration made to the Judicial Administrator of Tirrenia di Navigazione spa in extraordinary administration was rejected. The subsequent appeal of the pilots to the Supreme Court of Cassation was dismissed with judgment no. 7150 of 13 March 2020, on the ground that when pilotage is compulsory by law, as was the case in the port of Palermo, pilots are bound to assist the ship. In fact, in complying with their duties, pilots fulfil the purpose of ensuring safe navigation in the public interest. Their activity which, with greater reason, is to be provided and is to be performed when a ship is in danger, is framed within ordinary pilotage services. The article criticises the reasoning of the Supreme Court of Cassation. [ABSTRACT FROM AUTHOR]

During 2017-2019 Romania faced a controversial justice laws' 'reform', undermining the rule of law and independence of justice principles, challenging the commitments established under Commission Decision 2006/928/EC in the areas of judicial reform and the fight against corruption. In the context of democratic backsliding in Central and Eastern Europe, Romanian evolutions could be seen as following a regional pattern. The study proposes a critical analysis of the most important legislative evolutions in the area of justice and fight against corruption in the region, as reflected by the Cooperation and Verification Mechanism for Romania (CVM) and Rule of Law Reports, European Court of Justice and European Court of Human Rights judgements. The analysis focuses on some controversial decisions of the Constitutional Court, concerning justice laws 'reform' and the application of primacy of EU law principle. The study expresses a strong concern related to Romanian Constitutional Court's tendencies to walk along the authoritarian path of politically captured courts of Poland and Hungary. The conclusions reveal the requirement for new political instruments of EU supranational intervention to safeguard democratic EU core values. [ABSTRACT FROM AUTHOR]

Human dignity as a value to guide criminal justice reform emerged strikingly in the 2011 Supreme Court decision in Brown v. Plata. But with Justice Kennedy retired and courts generally reluctant to go far down the road to practical reforms, its future lies in the political realm shaping policy at the local, state, and national levels. For human dignity to be effective politically and in forming policy, we need a vocabulary robust enough to convey a positive vision for the penal state. In this essay, I discuss three concepts that can provide more precision to the potential abstractness of human dignity, two of which the Supreme Court has regularly used in decisions regarding punishment: the idea of a "decent society," the idea of a "civilized system of justice," and the idea of a "condition of dignity." In brief, without a much broader commitment to restoring a decent society, and to civilizing our justice and security systems, there is little hope that our police stations, courts, jails, and prisons will provide a condition of dignity to those unfortunate enough to end up in them. [ABSTRACT FROM AUTHOR]

This paper aims to provide a detailed analysis of the differences between the offence of embezzlement provided for in Article 295 of the Criminal Code and the offence of abuse of office provided for in Article 297 of the Criminal Code in terms of relevant doctrine and jurisprudence. The frequency of committing misfeasance in office, in particular, the two offences under consideration, gives rise to constant debate on the subject of the article. We have also set out to analyse how the judicial authorities have changed their view in some cases after the Constitutional Court's decision no. 405/2016, which brought some divergences concerning acknowledging the offence of embezzlement instead of the offence of abuse of office. [ABSTRACT FROM AUTHOR]

The Constitutional control in Romania implies the obligation of the courts to apply the decisions of the Constitutional Court and may involve the disciplinary sanctioning of judges for non-compliance with these decisions. Some judges considered that this mechanism may affect their independence, especially if the EU law may come into conflict with the decisions of the Constitutional Court. Our paper highlights that a proper understanding of the constitutional control underlines the essential role of the Constitutional Court for the protection of the democratic state and of the values of the European Union through its dialogue with the CJEU and with the national courts. [ABSTRACT FROM AUTHOR]

In King v De Jager 2021 5 BCLR 449 (CC), the Constitutional Court held that a clause in a private will that unfairly discriminated against beneficiaries based on gender was unlawful and unenforceable. This note considers the implications of the judgment for religion-based discrimination in wills, and in particular wills that incorporate the genderdiscriminatory Islamic system of inheritance. After explaining the Constitutional Court judgment, the note argues that the Court was well within its powers to consider the enforceability of discrimination in the private sphere. More importantly, we argue that the case rings a bell of caution regarding genderdiscriminatory provisions in private wills. Gender-based discrimination in Islamic inheritance law perpetuates disadvantage against a historically disadvantaged group, and the courts and legislature have been emphatic in their stance against gender discrimination in inheritance. The note thus argues that a testator's religious beliefs are not enough to tip the scales and render gender discrimination justifiable. We urge individuals who want to dispose of their assets following their religious beliefs to seek estate planning advice, cognisant of the potential impact of King v De Jager CC. [ABSTRACT FROM AUTHOR]

Unlike in the constitutions of other African countries such as Botswana and Lesotho, where the relationship between the High Court and courts martial is stipulated, the Ugandan Constitution 1995 (the Constitution) does not deal with this relationship. The Constitution is also silent on the question of whether courts martial have jurisdiction over civilians. The Uganda Peoples' Defence Forces Act (the UPDF Act) creates different types of courts martial with varying jurisdictions (section 197). The Act also provides (section 119) for the circumstance in which the General Court Martial has jurisdiction over civilians and appeals against the decisions of the General Court Martial lie to the Court Martial Appeal Court, which is the final appellate court except in cases where the offender is sentenced to death or life imprisonment. According to Regulation 20(2) of the UPDF (Court Martial Appeal Court) Regulations, in case an offender is sentenced to death or life imprisonment and his/her sentence is upheld by the Court Martial Appeal Court, he/she has a right to appeal to the Court of Appeal. Since 2003, Ugandan courts have grappled with the issues of whether courts martial are courts of judicature within the meaning of article 129(1) of the Constitution or organs of the UPDF and, therefore, part of the Executive under article 210 of the Constitution and whether courts martial have jurisdiction over civilians. Judges of the Supreme Court Constitutional Court and Court of Appeal have often disagreed on these issues. In this article the author relies on the drafting history of Articles 129 and 210 to argue that courts have erred by holding that courts martial are not courts of judicature under article 129(d) of the Constitution; and that courts martial are subordinate to the High Court. The author also relies on the drafting history of the Constitution and on international human rights law to argue that courts martial in Uganda should not have jurisdiction over civilians because they lack the necessary independence and impartiality and were established for the single purpose of enforcing military discipline. [ABSTRACT FROM AUTHOR]

The Supreme Court of Zimbabwe recently handed down a judgment on the determination of whether the law that governs testamentary dispositions of estates binds a testator to bequeath his or her share of property to the surviving spouse. This was an appeal case against the judgment of the High Court which had held that a testator is bound to leave his or her property to the surviving spouse. Albeit the fact that section 5(1) of the Wills Act establishes the doctrine of freedom of testation, section 5(3)(a) of the Wills Act prohibits a testator to execute a will that disinherits a surviving spouse. The provision has been interpreted inconsistently by the High Court for the past years. One category of judgments held that a testator could disinherit a surviving spouse based on freedom of testation and that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In contrast, the other set of dissenting judgments held that a will that disinherited a surviving spouse was invalid. Further, the courts held that the provisions of the Deceased Estates Succession Act, in particular section 3A which grants a surviving spouse the right to inherit the matrimonial home applies to testate succession. In overturning the High Court decision, the Supreme Court authoritatively held that section 5(3)(a) of the Wills Act could not be interpreted to mean that a surviving spouse cannot be disinherited in a will. The Court based its decision on the doctrine of freedom of testation entrenched in the Wills Act and the Constitution. The Supreme Court also conclusively held that the provisions of the Deceased Estates Succession Act are not applicable to testamentary dispositions. In arguing her case in the Supreme Court, the surviving spouse among other arguments contended that section 26 of the Constitution of Zimbabwe provides for equality of rights of spouses and the protection of children and spouses upon the dissolution of marriage through death or divorce. The Supreme Court disapproved the previous High Court decisions which held that a will that disinherited a surviving spouse was invalid as it contravenes section 26 of the Constitution. The Court held that section 26 of the Zimbabwean Constitution is not directly enforceable, does not bestow rights on individuals and does not prohibit the disinheritance of a surviving spouse. The Court held that the provisions of section 26 are found under the National Objectives which are intended to guide the state in the formulation of laws relating to dissolution of marriage through death. In this article, I argue that the Supreme Court decisively answered the discordant questions on whether a surviving spouse can be disinherited through a will and whether the provisions of the Deceased Estates Succession Act apply to testamentary dispositions. However, the Court missed an opportunity to develop the Zimbabwean jurisprudence on the enforcement of National Objectives, in particular section 26 of the Constitution. [ABSTRACT FROM AUTHOR]

In December 2021 the Constitutional Court delivered judgment in Bwanya v Master of the High Court, Cape Town. The court ruled that survivors of life-partnerships "in which the partners undertook reciprocal duties of support" would be entitled to claim benefits under the Maintenance of Surviving Spouses Act (the MSSA) and the Intestate Succession Act (the ISA). This case note focusses on the phrase "in which the partners undertook reciprocal duties of support." It examines the jurisprudential development of the phrase through the case law. It considers whether reliance on the phrase is likely to present an obstacle to potential claimants or whether the phrase can be interpreted in a way that broadens the protection provided by the MSSA and ISA so as to ensure that all vulnerable partners can be protected. The note suggests that the optimal way in which to interpret the requirement that the life-partners had undertaken reciprocal duties of support would be to focus on the claimant's needs and financial dependence and to assess how the law can provide protection and redress to those who have incurred relationshipinduced dependence because of the particular form and nature of the reciprocal support provided in the intimate relationship. Previous court judgments have noted the typically gendered nature of the contributions made by family members. The law must ensure that it furthers the constitutional goal of achieving substantive equality between men and women, while also acknowledging and responding to the intersectional forms that discrimination and disadvantage assumes. [ABSTRACT FROM AUTHOR]

Background: On 15 January 2021, a South African Member of the Executive Committee (MEC) for the Environment amended the Mabola Protected Environ- ment’s (MPE) boundaries to remove legal impediments preventing coal mining in this protected area. This decision came in the wake of the MPE being declared a protected area and a series of court cases ending at the Constitutional Court. Objective: The objectives of this paper were: (1) evaluate the potential consequences of the MEC’s decision for South African protected areas; (2) speculate on the possible impact on South Africa’s reputation in terms of its commitment to safeguarding its protected areas; (3) identify possible weaknesses in the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA); and (4) make recommendations to strengthen this Act so that it can reduce the vulnerability of protected areas to arbitrary and prejudicial decision-making. Methods: This study involved an evaluation of NEMPAA and the notice in the Provincial Gazette declaring and giving effect to the MEC’s decision, and of the various High Court judgments leading up to and following the publication of this notice. Conclusion: The decision by the MEC highlights the vulnerability of protected areas and the importance of the conservation of biodiversity, particularly in a context of parochial or partisan objectives and profit-vested interests that are of a limited (at least in the medium- to long-term) public benefit. It is concluded that the discretionary clauses in NEMPAA may need to be amended to limit or refine the discretion politicians may apply. [ABSTRACT FROM AUTHOR]

Stemming from the analysis of court decisions delivered by the Supreme Court of the Province of Buenos Aires, this article studies the behavior of the formulaic connective expression para mayor satisfacción, by means of which Justices introduce arguments which, though not used to found the decision, do in fact increase their decision's persuasive strength. It is through this device that Courts show that further reasons will be introduced to provide more and better responses to the issues requested and the defenses provided. We argue that para mayor satisfacción creates multiple interpretative links as this expression fulfills a triple connective function: contrast + addition + closing. We also show that this phrase is, in turn, usually part of complex connective constructions which are highly productive, as they not only mark a boundary between essential arguments and those which introduce further information, but they also collect and synthesize essential arguments as well as the conclusion or the decision these suppor. [ABSTRACT FROM AUTHOR]

The article aims to present in detail a recent and peculiar Italian case concerning the approval of the law of the Valle d’Aosta region n. 11, December, 2020, with which that region tried to bypass the State powers to manage the pandemic caused by Covid-19 and provide its citizens with alternative regulations. In particular, in addition to the contents of the regional law and the context in which it was inserted, this paper aims to analyse the reaction of the Constitutional Court to the State recourse to Law 11/2020. In addition to causing the first precautionary suspension of a regional law in the history of the Republic, the contents of this recent decision of the Constitutional Court have been recognised as transcendent by the doctrine, and extend far beyond the specific case, to serve even as a field of study and inquiry for other regional systems. [ABSTRACT FROM AUTHOR]

In 2008, Ecuador recognized the Constitutional Rights of Nature in a global first. This recognition implies a major shift in the human-nature relationship, from one between a subject with agency (humans) and an exploitable object (nature), to a more equilibrated relationship. However, the lack of a standard legal framework has left room for subjective interpretations and variable implementation. The recent widespread concessioning of pristine ecosystems to mining industries has set up an unprecedented conflict and test of these rights. Currently, a landmark case involving Los Cedros Protected Forest and mining companies has reached the Constitutional Court of Ecuador. If Ecuador's highest Court rules in favor of Los Cedros and the Rights of Nature, it would set a legal precedent with enormous impact on biological conservation. Such a policy shift offers a novel conservation strategy, through citizen oversight and action. A ruling against Los Cedros and the Rights of Nature, while a major setback for biodiversity conservation, would be taken in stride by the active social movement supporting these goals, with the case likely moving into international courts. Meanwhile, extractive activities would continue and expand, with known consequences for biodiversity. [ABSTRACT FROM AUTHOR]

Constitutional Court decisions are crucial for a sustainable and democratic state institution functions as well as a country’s political stability. This article seeks to provide insights into the Constitutional Courts process, the role it plays in providing political stability under normal circumstances, when it is overburdened by a large case load and how that often does not provide satisfactory results for a variety of Kosovo stakeholders. The article also seeks to describe, discuss and analyse the development of Kosovo’s judicial review process, important court composition issues and the legal basis for its activities and procedures, and to discuss the obstacles and political influences in several court decisions which caused ambiguity, political tensions and increased distrust in Kosovo’s political systems and institutions including the constitutional court. [ABSTRACT FROM AUTHOR]

The binding summary has dual aspects as to its usefulness: it contributes to procedural speed and legal certainty, however, it is shown as a form of imposing interpretation issued by the Federal Supreme Court. The legal voluntarism found in the current scenario allows the agency to analyze and decide on any issues without an adequate formula. Originally, that Court may have its decision obligatory to the Courts and all spheres of direct and indirect administration through the Binding Precedent with effectiveness that prevails the established rule, exceeding the legislating powers to whom the Federal Constitution typically attributes this function. Thus, using a theoretical-legal methodology with deductive reasoning, through doctrinal and jurisprudential analysis, important factors will be observed that place the binding summary in a priority character of the constitutional process and the critical correspondence regarding the unlimited and unrestricted can be inferred to the Federal Supreme Court, which could lead to democratic erosion. [ABSTRACT FROM AUTHOR]

This article explores topics related to conforming interpretation in the decisions of the Colombian Constitutional Court. For this, it explores not only its different dimensions but also its implications within the legal system and its relationship with the principles, standards, and parameters of constitutional control. The paper is divided into four sections. First, it provides a conceptual framework of constitutional interpretation and its modalities. Then, it describes the methodology used to collect the court decisions. The third section presents the results obtained from the case law analysis. Finally, some reflections and proposals are put forward to discuss the advantages or limitations of the category under study. [ABSTRACT FROM AUTHOR]

In 2019 the Constitutional Court of Ecuador issued sentence 11- 18-CN/19. In this resolution it was affirmed that article 67 of the Constitution--which established that marriage is the union between a man and a woman--was unconstitutional, thus granting the possibility for same-sex people to marry. For this, the Judge Ramiro Ávila Santamaría, among other arguments, used balancing. The essential part of balancing is the weight formula. However, this was not use in that sentence. Through this argumentative method, it was concluded that the principle of equality prevails over other general principles of law. This paper analyzes the weight formula, applying it in the way that, in my opinion, the Constitutional Court should have done in the "egalitarian marriage " judgment. For this, the analytical-synthetic method is used, breaking down the argumentation made by Judge Ávila into fragments. The first section deals with the elements of the weight formula. Then the balancing exercise carried out in the sentence is exposed, followed by a demonstration of the argumentative errors committed, highlighting the mistake in choosing the principles in conflict. Finally, a new balancing exercise is presented, confronting the principles that should have been taken to the balance. The paper concludes mainly that the Constitutional Court erroneously applied balancing in the "egalitarian marriage" judgment. [ABSTRACT FROM AUTHOR]

This paper addresses the issue of the constitutional legitimacy of the Constitutional Court's decisions in the context of the jurisdictional disputes of the branches of government, with a special emphasis on the recent conflicts arising from the dissolution of the Congress of the Republic and the vacancy of the President of the Republic. The research analyzes the doctrine and jurisprudence regarding the grounds that legitimize the role of the Constitutional Court in the control of political acts and concludes that the defense of the principle of normative supremacy of the constitution imposes a substantive resolution in the competence processes of this nature. [ABSTRACT FROM AUTHOR]

Ram Janmbhoomi (birth place of Lord Rama) is the most controversial dispute of the independent India. The dispute was existing in pre-independence era but after independence dispute has changed the direction and condition of Indian political system. There was claim that mosque was built after the demolition of Ram temple. This dispute was so intense that it brought the incident of demolition of mosque in 1992. After demolition suit was filed from both the side: Muslim and Hindu. The decision of apex court on civil suit came after 27 years. The apex court took the cognizance of Archaeological Survey of India (ASI) report to decide the claim of parties. This paper aims to give a brief background of Ramjanmbhoomi dispute; explore evidentiary value of expert opinion; whether archaeology is science or art; to evaluate the evidentiary value of archaeological report prepared by ASI through evacuation in the judgement. [ABSTRACT FROM AUTHOR]

This article reflects on how to narrate trajectories of Colombian constitutional justice, based on dissenting opinions. It is built around the doctrinal disagreements that polarized the justices of the Constitutional Court between 1992 and 2000; in particular, through those abstract review decisions approved by only one vote of difference. The systematic reading of these debates shows how the relative autonomy of the constitutional doctrine operates in a collegiate judicial institution. In this sense, it demonstrates how the study of dissenting opinions allows going beyond the traditional analyses of Court rulings. Many of them tend to be carried out only on the basis of the political context, or the "ideological profiles" of the justices. [ABSTRACT FROM AUTHOR]

In United Democratic Movement v Speaker of the National Assembly 2017 5 SA 300 (CC), the Constitutional Court set out certain factors that the Speaker of the National Assembly must consider when deciding the manner in which voting in a motion of no confidence proceeding must be conducted. These factors would ostensibly also be relevant when the Speaker's decision as to the proper voting procedure is reviewed in future. This note considers the law governing the review of the Speaker's decisions and finds that although the Speaker's decision is reviewable in South African law, after the UDM decision there is still uncertainty as to whether the Speaker's decision can be reviewed only on the basis of legality or whether it constitutes administrative action reviewable in terms of PAJA. Furthermore, the Court's exposition of certain factors against which the Speaker's decision can now be reviewed creates uncertainty as to whether the review in terms of legality is a basic rationality review as is generally the case or a stricter form of review closer to review that is possible under PAJA. The argument is that the potential of reviewing the Speaker's decision on the basis of a number of factors that in totality appears to set out a test that is stricter than a basic rationality test may hold severe implications for the separation of powers doctrine, as it now appears that the Court is increasing its supervisory jurisdiction in a manner that is not fully substantiated. Although the Court, or courts in general, has the power to review the exercise of public power in a system of constitutional supremacy, it should consider the impact that its judgments may have on co-equal branches of government, as a failure to do so may negatively impact on the relationship between the different branches of government and dilute the already frayed separation of powers doctrine. [ABSTRACT FROM AUTHOR]

Although South African courts have handed down progressive judgments concerning the right to access to adequate housing, they have failed failed to do so from a feminist point of view. The trajectory of housing jurisprudence emanated from a sequence of evictions that occurred in Cape Town and the Johannesburg inner city. This article provides an analysis of four pertinent cases, namely Grootboom, Olivia Road, Blue Moonlight and Dladla. A gendered perspective was absent from the arguments before the court and from the court's interrogation and analysis of matters that came before it. This failure was a shortcoming, given the harsh lived realities that affect women who experience eviction based on their race, gender and class. It is against the backdrop of the failures of Constitutional Court cases that lawyers use feminist litigation approaches and courts in housing adjudication. [ABSTRACT FROM AUTHOR]