Thesis (M.A.)--City University of Hong Kong, 2003. / Title from title screen (viewed on June 2004) Submitted for Master of Arts in arbitration & alternative dispute resolution. Includes bibliographical references.

Public, Constitutional and International Law / LLM (with specialization in Criminal and Procedural Law)

LL.M. / Please refer to full text to view abstract

The purpose of this study is to investigate how education managers conceptualise due process and how their understanding of due process influences the way in which they discipline learners. It adopted a qualitative approach that was based on an interpretative paradigm and followed a case study design. The data collection techniques that were used include semi-structured interviews and document analysis. Research was conducted in eight secondary schools. The findings of this study indicate that the majority of education managers have a good understanding of preliminary disciplinary investigation, a right to information, the disciplinary committee, who should participate in a disciplinary hearing and the appeal process. The minutes of few selected schools provide that schools do consider the school’s code of conduct for learners when disciplining learners. The study found that education managers lack sufficient understanding the implementation of due process and the correct steps to follow when conducting fair disciplinary hearings. Misunderstandings about the learners’ right to information, who should be involved in disciplinary committees, the involvement of witnesses and learner representation were common. Most schools did not include sufficient information in their notices for hearings. Some participants indicated that, for various reasons, they often avoid holding hearings and others avoid following correct procedures of learner discipline. In addition, there is a lack of understanding that the reasons given for a decision by a disciplinary committee must based on the evidence presented during the hearing. Some participants do not know which acts/laws/policies and learner disciplinary documents apply to learner discipline and did not ensure the safekeeping of minutes for their disciplinary hearings. Most schools do not keep detailed minutes of the hearings conducted and the majority did not have disciplinary policies. Moreover, thre is still a lack of understanding about which learner behaviours constitute serious misconduct and whether a disciplinary hearing should be organised for learners who have committed criminal offences in a school. Only about a half of participants consider the age of learners when they discipline them. Some are not sure about number of days that are required for learner and parents to lodge an appeal. / Thesis (PhD)--University of Pretoria, 2015. / tm2015 / Education Management and Policy Studies / PhD / Unrestricted

The purpose of this study is to examine the Tennessee tenure law by comparing the overall level of effectiveness of teachers who received tenure prior to receiving tenure and the overall level of effectiveness of teachers after receiving tenure. The population of this study includes teachers from districts in the Mid Cumberland region in Tennessee who received tenure after 2012. The major finding of this study was the effectiveness of teachers who received tenure under the current tenure law in Tennessee did not significantly change for up to two years after they received tenure. The lone exception was high school teachers. Their effectiveness significantly declined two years after receiving tenure. This study concluded that the current tenure law in Tennessee had components of effective policies as found in research and had safeguards in place to ensure only effective teachers were awarded tenure.

Parents have the authority to challenge school decisions regarding the identification, evaluation, placement and provision of a free appropriate public education to their child with a disability through either the hearing process or the complaint investigation process under the Individuals With Disabilities Education Act. This study explored the differences between parents who had initiated hearings and complaints and their perceptions of the processes. A document review, structured telephone interview and focus group meetings were used to gather data. The subjects were twenty-nine parents who had initiated complaints and thirty-one parents who had initiated hearings. The subjects were randomly selected from the population of all parents who had initiated hearings or complaints with the Maine Department of Education during 1996. Quantitative data were analyzed using chi-square tests, t-tests, and descriptive statistics. Qualitative data were analyzed through a sorting process to aggregate data and identify consistent themes. Findings of the study reveal that families with higher annual household income tend to use the hearing process, to withdraw or mediate their disputes and to be represented by counsel. No differences were found on parent satisfaction, marital status, or the ability of parents to participate in school activities. Parents reported a high level of anger, frustration and confusion regarding both processes. Parent and school relationships, poor communication and compliance issues were identified as causes for the initiation of a complaint or hearing. The hearing group cited expense, the legalistic nature of hearings, and stress as major problems while the complaint group cited lack of accountability and enforcement as major problems. Both groups recommended increased parent training and support and improved monitoring and enforcement by the Maine Department of Education. The results of this study support the conclusion that the hearing process is primarily available to those families with higher incomes and that both the hearing and the complaint processes tend to be associated with poor parent and school relationships. Additional research is needed to identify methods to improve parent and school relationships after the initiation of due process and to ensure that all parents have access to alternatives for the resolution of parent and school conflict. / Ph. D.

Over the past several years, increasing public emphasis on preventing child maltreatment has resulted in substantial changes to Florida's child abuse and neglect central registry. Many of these recent changes, aimed at preventing child maltreatment, have resulted in over one million false, unsubstantiated, and inconclusive reports of child abuse and neglect within the last decade. While the information held in reports may be useful for identifying and preventing potential child abuse or neglect, due process concerns have been raised with regards to the process of placing a person's name in a report without providing a hearing for challenging or removing inaccurate information. Focusing on Florida law, this research concentrates on: 1) the child maltreatment reporting process, 2) the procedures for maintaining reports, and 3) the accessibility of these reports in order to determine whether due process constitutional rights are protected under Florida's child abuse and neglect reporting laws. The intent of this thesis is to analyze the occurrence of unsubstantiated cases of child maltreatment, incidences of false reporting, and legal remedies available for those wrongfully accused of abusing or neglecting a child. Through the analysis of case law, federal and state statutes, available statistics, child abuse resources, and personal interviews with members of the Florida Legislature, evidence shows that due process constitutional rights are not protected under Florida's child abuse and neglect reporting laws. By raising awareness of the areas of child protection that require legal re-evaluation, this thesis aims to discover the balance between protecting children from harm and protecting adults from the severe ramifications resulting from false and improper allegations of child abuse and neglect.

Several Supreme Court cases in the latter half of the 20th Century established a criminal defendant's due process right to put forward an effective defense. To put forward an effective defense, one must be able to introduce exculpatory evidence on one's behalf. A defendant's witness may claim the right against self-incrimination, in which case the defendant may request immunity for the witness so that he will testify. If that request is denied, a defendant's due process right to put forward an effective defense may be implicated. The refusal to grant defense witness immunity is one instance of suppression of evidence. In a string of cases in the Third Circuit, the courts have implemented a test for determining under what conditions a due process violation occurs in this situation. But, there is significant reason to believe that in implementing the test the court has relied on incorrect assumptions. This paper discusses how the court has relied on unwarranted assumptions to make due process determinations, and concludes that in so doing it has imposed too high a standard for a due process violation. First, the court interprets the test as a test for a due process violation, when there is reason to believe that the court articulating the test meant it to be a test for the appropriateness of judicially created immunity as the remedy for an existing due process violation. Second, the court makes an unwarranted assumption that any strong governmental interest countervails against a grant of witness immunity. Third, the court imposes too high a standard for determining what counts as a strong governmental interest because it does not give sufficient weight the context of the determination. These three unwarranted assumptions suggest that the court has imposed too high a standard for determining due process violations. / text

O presente trabalho trata da paridade de armas no processo penal brasileiro, tomando como pano de fundo da incidência dessa norma o princípio constitucional da igualdade. Inicialmente, abordou-se tal princípio em suas diversas facetas históricas e jurídicas para, em seguida, analisá-lo a partir da teoria dos direitos fundamentais, que separa a incidência das normas em regras e princípios. Cuidou-se do tratamento dado ao tema nos sucessivos Códigos de Processo Penal brasileiros, inclusive no direito processual penal projetado, sempre com vistas à participação das partes. Tratou-se, ainda, da incidência da igualdade no processo penal a partir do estudo dos sistemas consagrados de direito processual penal. Com base nessas análises e em subsídios de direito processual penal comparado, chegou-se a um conceito específico de paridade de armas no processo penal. Por fim, mediante o conceito desenvolvido, foi possível tratar da incidência do princípio da paridade de armas no direito processual penal brasileiro. Importa ressaltar que, ao longo do trabalho, não se assumiu o ponto de vista segundo o qual o princípio simplesmente não existe no Brasil, mas tentou-se abordar os momentos em que ele se manifesta e nos quais há possível violação. / The present work deals with the equality of arms in Brazilian criminal procedure by considering the constitutional principle of equality as the backdrop of that norm incidence. Firstly, the mentioned principle was explored on its historical and legal aspects and then analyzed based on the theory of fundamental rights, which separates the incidence of norms into rules and principles. The treatment given to the theme in the subsequent Brazilian Procedural Penal Codes, including the projected criminal procedural law, was explored with the focus on the participation of parties. Furthermore, the incidence of equality in the penal procedure was broached through the study of renowned criminal procedural law systems. Based on this analysis and on subsidies of compared criminal procedural law, the work reached a specific concept of equality of arms that can be applied to criminal proceedings. Eventually, from the developed concept, it was possible to discuss about the incidence of equality of arms principle in Brazilian criminal procedural law. It is important to emphasize that the study did not follow the point of view according to which the principle simply does not exist in Brazil, since the aim was to examine the moments when it manifests itself and in which there is possible violation.

O processo para o refúgio é o conjunto de regras e princípios necessários à aplicação do Direito dos Refugiados aos casos concretos. Quando este conjunto respeita os padrões democráticos do Devido Processo Legal, as tendências históricas de exploração e manipulação política do instituto de refúgio podem ser limitadas e os objetivos humanitários deste ramo dos Direitos Humanos podem ser alcançados com maior transparência. Quando o Devido Processo Legal para o refúgio é respeitado, também se permite que a pessoa que figura como solicitante de refúgio seja tratada como sujeito de direitos - e não como objeto do processo. Uma vez que a Convenção de Genebra de 1951, sobre o Estatuto dos Refugiados, não estabeleceu normas de processo, cada país signatário necessita criar um regime próprio para processar os pedidos de determinação, extensão, perda e cessação da condição de refugiado em seus territórios. O primeiro regime processual brasileiro foi criado no ano de 1997, pela Lei Federal 9497. Desde então, o país vem desenvolvendo, através do Comitê Nacional para Refugiados (CONARE), regras infra legais e rotinas práticas que têm determinado um padrão processual ainda fragmentado e inseguro. O estudo do aparato normativo nacional e da realidade observada entre 2012 e 2014 revelam a existência de problemas (pontuais ou crônicos) sobre o cumprimento de diversos princípios processuais, tais como a Legalidade, a Impessoalidade e Independência da autoridade julgadora, o Contraditório, a Ampla Defesa, a Publicidade, a Fundamentação, a Igualdade e a Razoável Duração do Processo. Estes problemas impõem desafios variados ao Brasil, tanto em dimensão legislativa quanto estrutural. O enfrentamento destas questões precisa ocorrer com rapidez. O motivo da urgência, porém, não é a nova demanda de imigração observada no país, mas sim o fato de que as violações ao Devido Processo Legal, verificadas no processo para o refúgio brasileiro, representam, em si, violações de Direitos Humanos, que, ademais prejudicam o compromisso do país para com a proteção internacional dos refugiados. / The Refuge Process is a set of rules and principles which are necessary to the enforcement of Refugee Rights in specific cases. When this set of rules and principles complies with the democratic standards of the Due Process of Law, historical tendencies of exploitation and political manipulation of the Refuge Process can be limited and the humanitarian purposes of this branch of Human Rights can be achieved with greater transparency. When the Due Process of Law for Refuge is followed, it also allows for the refuge seeker to be treated as a legal subject, rather than an object, in the process. As the Geneva Convention, in 1951, did not establish procedural norms on the matter of the Refugee Status, each signatory country must create its own legal framework to deal with requests of declaration, extension, loss and termination of said status in their territory. The first Brazilian procedural norm on this topic was created in 1997, by Federal Law No. 9.497. Since then the country has been developing, through the National Committee for Refugees (Comitê Nacional para Refugiados CONARE), regulatory provisions and protocols which have given rise to a procedural standard that remains fragmented and unsafe. The analysis of the national legal framework and the reality observed between 2012 and 2014 reveals a series of issues (which can be specific in some cases and persistent in others) concerning the enforcement of many procedural canons, such as the Principle of Legality, Impersonality, the Independence of the Judiciary, the Contradictory, Full Defense, Publicity, Statement of Reasons, Equality and the Reasonable Duration of the Procedure. These problems present Brazil with a number of challenges, regarding not only legislation, but also structure. These matters mustbe addressed with haste. What motivates such urgency, however, is not the recent increase in immigration, but the fact that the infringements of the Due Process of Law (seen in the Brazilian refuge process) represent, in themselves, violations of Human Rights, which, moreover, compromise the countrys commitment to the international refugee protection.