Thesis (J.C.L.)--Catholic University of America, 1986. / Includes vita. Includes bibliographical references (leaves 70-74).

Can courts really build democracy in a state emerging from undemocratic rule? If so, how they do this, and what are their limits in this regard? This thesis seeks to explore the development since 1945 of a global model of democracy-building for post-authoritarian states, which accords a central position to courts. In essence, constitutional courts and regional human rights courts have come to be viewed as integral to the achievement of, or even constitutive of, a functioning democratic state. The roles courts play in supporting a democratisation process are onerous, and differ starkly from the roles of such courts in long-established democracies of the Global North. Courts in the new democracies of the post-war world have been freighted with weighty expectations to ‘deliver’ on the promises of a new democratic order, while navigating their own place within that developing order–or, in the case of regional human rights courts, inserting themselves into the democratisation process from without. At both the domestic and regional levels, from within and without the state, they are somehow expected to ‘judge’ democratisation. They are required to assess what is needed to support the democratisation process at any given point, especially in light of key deficiencies of the newly democratic order, and to judge when the democratisation context requires a different approach than may be appropriate in a mature democracy, such as the US or Ireland. However, the grand claims made for these courts as democracy-builders in existing scholarship have never been subjected to systematic analysis, nor have the overlapping roles of constitutional courts and regional human rights courts been considered in tandem. This thesis addresses a very significant research gap by drawing together a scattered and fragmented scholarship on the roles of courts in new democracies, integrating discussion of regional human rights courts, providing an innovative conceptual framework for how courts at each level act and interact as democracy-builders, and tracing connections between different normative arguments concerning the roles courts should play. As the first attempt at a wholesale exploration of the effectiveness and viability of the existing global court-centric model for democratisation, this thesis examines what we think courts do as democracy-builders, what they actually do, and what they should do. In doing so, it argues for a significant re-evaluation of how we conceive of, and employ, courts as democracy-builders.

Sharī'a has never ignored the need of and the function of judge. This institution, as developed in the early age of Islam, aimed to establish the rule of God on earth, to decide and explain the law according to the Islamic Law. It appears that anybody could be appointed as a judge but he was required to adopt certain criteria laid down by the fuqahā' based on the Qur'ān, Sunna. Ijmā and Oiyās. The requirements needed to be a judge in this Islamic approach are discussed widely in this study. This study also attempts to show and demarcate the limits of the power of judges in Sharī'a Courts in Kedah, Malaysia. It also shows how Islam established its system of justice in Malaysia. Some questions or hypotheses are examined, the first concerns whether or not people who lack capabilities should be allowed to be appointed judge. The second concerns whether or not the Islamic judicial system follows the Sharī'a in terms of punishment and procedure. The historical and theoretical settings in every age since the pre-Islamic to the 'Abbasid period are also presented. The situation of judge in Sharī'a Court in Kedah, Malaysia is also emphasised, beginning with the developments of the Sharī'a Court and the powers and duties of a judge according to the Malaysian constitutional system. Finally the subjects which have been discussed in separate chapters are actually related to each other. The whole important discussion is brought together, analysed and a conclusion drawn concerning the various problems raised.

This thesis explains the constitutional foundations for the conflict of laws in Canada. It locates these constitutional foundations in the text of key constitutional documents and in the history and the traditions of the courts in Canada. It compares the features of the Canadian Constitution that provide the foundation for the conflict of laws with comparable features in the constitutions of other federal and regional systems, particularly of the Constitutions of the United States and of Australia. This comparison highlights the distinctive Canadian approach to judicial authority - one that is the product of an asymmetrical system of government in which the source of political authority is the Constitution Act and in which the source of judicial authority is the continuing local tradition of private law adjudication. The distinctive Canadian approach to judicial authority provides the foundation for federal arrangements that have obviated the need for explicit mechanisms for coordinating legal systems. It has fostered a distinctive view of court jurisdiction and of the means for determining both whether a particular court has jurisdiction to decide a matter and whether the court should exercise that jurisdiction. It has provided the foundation for a unified court system within the Canadian federation - one in which there is a strong commitment to the shared responsibility of Canadian courts to promote access to justice, to prevent forum shopping, and to resolve multiplicities of proceedings so as to secure the same respect for the administration of justice between jurisdictions as exists within jurisdictions. This approach to judicial authority has also encouraged Canadian courts to draw on their inherent jurisdiction to permit the vindication of the rights of members of the Canadian public through civil litigation, notwithstanding the lack of direct application of the Charter of Rights and Freedoms and in spite of the apparent jurisdictional impediments.

Before the introduction of the concept of constructive dismissal in the LRA, the old industrial courts relied on the strides made in this field by the English and American courts. Constructive dismissal is the fourth type of dismissal and it is instituted by the employee through his/her resignation, unlike the other three types of dismissals which is instituted by the employer. Section 186(e) of the LRA defines constructive dismissal as the termination a contract of employment with or without notice by the employee because the employer made continued employment intolerable for the employee. With a fundamental breach in the contract of employment employees have a choice to either base their claims on constructive dismissal in the LRA or repudiation of the contract in common law, depending on the circumstances. Landmark judgments like Jooste v Transnet and Pretoria Society for the Care of the Retarded v Loots set the tone for constructive dismissal law in South Africa. It introduced the concept of intolerability as well as looking at the employer‟s conduct as a whole and judging it reasonable. The test for constructive dismissal throughout the evolution of case law in South Africa has not changed. Constructive Dismissal under the common law is also discussed in depth by looking at the landmark judgment of Murray v Minister of Defence. Sexual Harassment in the workplace is of a growing concern. If continued sexual harassment makes continued employment intolerable, the employee subjected to the harassment has the option of resigning and approaching the CCMA or bargaining councils, and claim that they have been constructively dismissed. Cases such as Payten v Premier Chemicals and Gerber v Algorax (Pty) Ltd really shows us how difficult it is to proof constructive dismissal as a result of sexual harassment because in most instances there won‟t be witnesses and it would be a case of he said, she said. These cases also show us that it can be proven based on a balance of probabilities. Grogan states that in dismissal proceedings, the onus is on the employees to prove that they were in fact dismissed and on the employer to show that the dismissal was fair. Section 192 of the LRA places another burden on the employee that requires him to not only prove the existence of a dismissal, but also that the conduct of the employer was intolerable. Unlike normal dismissal cases, commissioners generally award compensation as a remedy for constructive dismissal. A claim by an employee for reinstatement would be contradicting a claim that the employment relationship became intolerable and an award for reinstatement would be very inappropriate in a case of constructive dismissal. In short, unlike a normal dismissal, a constructive dismissal is a termination of the employment contract by the employee rather than the employer‟s own immediate act.

No description available.

If legal counsel is not available for juveniles brought before the Juvenile Court, or if provisions to make it available on request are not effective, the child may be denied his legal rights and civil liberties which may impede the rehabilitative and protective purpose of the Juvenile Court. The present study was designed to determine the prevalence of defence counsel in Juvenile Courts, and the extent of legal aid services for juveniles appearing both in delinquency and neglect proceedings in Canada. A distinction is made between legal aid services available to juveniles by statute, by provincial government departments, and by private organizations. Special attention is given to the legal aid services available to wards of Child Welfare Departments and Children's Aid Societies. Opinions of both lawyers and social workers were sought on whether legal aid should be made available in Juvenile Court, and on whether the use of social workers in court provide adequate legal safeguard to the juvenile's rights. In preliminary review, the literature is examined on the general philosophy, personnel and structure of the Juvenile Court, special emphasis being placed on the structure and functioning of Juvenile Courts in most parts of Canada today. The concept of legal aid is explored, and the social consequences of violations of children's and parents' civil rights and liberties are examined in relationship both to delinquency and to neglect proceedings. The detailed survey was conducted by questionnaires formulated for: (a) provincial Attorney General Departments, (b) law Societies, (c) provincial Child Welfare Departments, (d) selected Children's Aid Societies, (e) selected Juvenile Court Judges. Opinions were sought on needs, as well as facts on present provisions and the types of cases for which legal aid is given. It is clear from the evidence that legal aid is not available to juveniles in the majority of cases. Such limited legal aid services as are available, are seldom used. While the majority of Child Welfare Departments and Children's Aid Societies state that legal aid for their wards is available if needed, in practice, legal aid is seldom given. In Juvenile Courts, over 95 percent of the juveniles are not represented by counsel. A small majority of both social workers and lawyers favoured supplying legal aid in Juvenile Courts, but the prevalent view is that social workers provide sufficient legal safeguard to the child's rights. It is generally assumed that the Juvenile Court and its personnel are "acting in the best interests of the child" and automatically protect the child's legal rights. This study suggests, however, that skill in social diagnosis and planning should not be equated with competence in jurisprudence. The long-range effect of overlooking justice as an integral part of welfare is costly both to the child and the community. The existing confusion of both social workers and lawyers as to the legal structure and social nature of the Juvenile makes it highly desirable that a definitive appraisal of the court's total functioning be undertaken, with desirable modifications. It is questionnable whether the needs for legal aid can be met solely by private or voluntary agencies. A study should be undertaken to determine if a Public Defender system or a fee for service system, or some other method is most suitable to Canada. / Arts, Faculty of / Social Work, School of / Graduate

Some academics and government officials have implicated defence counsel as the primary ‘villains’ in lengthy case processing times in Ontario bail courts. It has been suggested that defence counsel contribute to increasing case processing time through their use of ‘unproductive’ adjournments. This study examines this allegation through semi-structured interviews with defence counsel who practise in one Eastern Ontario bail court. The findings put the evidence that blames defence counsel into context and show that the explanations for their conduct are more complex than they may initially appear. They also reveal several explanations for bail inefficiency which are unrelated to the role of defence counsel but correspond grosso modo to the traditional factors associated with lengthy case processing time in the broader court process. The study concludes that although defence counsel are partly responsible for lengthy case processing times in bail court, they are only one contributor among many others.

No description available.

This study examines the factors related to completion outcomes of the East Central Judicial District Drug Court (ECJDDC). The ECJDDC has a 71% graduation rate which far exceeds the national average of approximately 40-45%. The dataset included information on 250 participants who entered the drug court from 2003-2011. Factors included in the analysis include those related to living situation, family situation, socioeconomic status, veteran status, current offense, and prior criminal history in addition to sex, race, and age. Logistic regression determined that the strongest predictors of graduation relate to education, income, employment, and living situation. Policy implications, practice, and future research are discussed with respect to the current results.