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Religious Exemptions and the Constitutionality of Vaccine Mandates in the Philippines 菲律宾的宗教豁免与疫苗强制接种的合宪性
Q4 Social Sciences Pub Date : 2023-11-24 DOI: 10.1163/15718158-24030003
Florian Kim P Dayag
Government responses to the covid-19 pandemic raise various legal concerns otherwise inconceivable in recent memory. One of the many implemented policies is the requirement of inoculation or vaccination to achieve herd immunity, similar to other diseases that have been eradicated by intensive vaccination programmes. Vaccine hesitancy, nevertheless, remains a persistent State concern which is complicated by reference to constitutionally protected rights. Refusal to be vaccinated on religious grounds has led various countries to provide religious exemptions to avoid judicial scrutiny. The Philippines, as the largest Christian nation in Asia, has a complex legal relationship with the church. This article discusses the State-church relationship from a constitutional and human rights law perspective and, using approaches formulated by the Philippine Supreme Court in religion clause analysis, attempts to assess, and possibly bridge, the perceived conflict between religious freedom and the Philippine government’s covid-19 vaccination policies.
政府在应对科维-19 大流行病时提出了各种法律问题,这在近期的记忆中是难以想象的。许多已实施的政策之一是要求接种疫苗以实现群体免疫,这与其他通过强化疫苗接种计划根除的疾病类似。然而,疫苗接种的犹豫不决仍然是国家长期关注的问题,而这一问题又因涉及受宪法保护的权利而变得复杂。以宗教为由拒绝接受疫苗接种导致许多国家提供宗教豁免,以避免司法审查。菲律宾作为亚洲最大的基督教国家,与教会有着复杂的法律关系。本文从宪法和人权法的角度讨论了国家与教会的关系,并采用菲律宾最高法院在宗教条款分析中制定的方法,试图评估并在可能的情况下弥合宗教自由与菲律宾政府的covid-19疫苗接种政策之间的冲突。
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引用次数: 0
Equal Representation of Women in the Superior Judiciary: A Comparative Analysis between Pakistan and the United Kingdom 妇女在高级司法机构中的平等代表权:巴基斯坦与英国的比较分析
Q4 Social Sciences Pub Date : 2023-11-24 DOI: 10.1163/15718158-24030001
Rida Tahir
Pakistan does not have a senior judiciary that is representative of its population. Women are under-represented. There had never been any female Justices of the Supreme Court of Pakistan until January 2022, when Justice Ayesha Malik was appointed as the first female Supreme Court judge. Although there is no constitutional bar to appointing women to be judges, the system for appointing judges is based on outmoded notions of seniority that are hostile to women’s desire for career progression. The United Kingdom (UK) provides a valid comparison since the legal system of Pakistan is based on English law. The UK has been marginally more successful in promoting female judges. The UK features a more open and transparent system, from which Pakistan should consider borrowing elements, specifically, an independent Judicial Appointments Commission (jac). The UK model suggests that more positive change may occur in the future. A quota system may be effective in increasing appointments in Pakistan, although this may create its own difficulties. More fundamentally, building into the appointments process the recognition that women may have different social responsibilities than men may also facilitate change.
巴基斯坦没有一个能够代表本国人口的高级司法机构。妇女的代表性不足。在 2022 年 1 月 Ayesha Malik 法官被任命为首位最高法院女法官之前,巴基斯坦最高法院从未有过女法官。虽然宪法没有禁止任命妇女担任法官,但法官任命制度是基于过时的资历观念,不利于妇女的职业发展愿望。由于巴基斯坦的法律制度是以英国法律为基础的,因此英国提供了一个有效的比较。英国在提拔女法官方面略胜一筹。英国的制度更加公开透明,巴基斯坦应考虑借鉴英国的制度,特别是独立的司法任命委员会(jac)。英国的模式表明,未来可能会出现更多积极的变化。配额制度可能会有效增加巴基斯坦的任命人数,尽管这可能会造成自身的困难。更根本的是,在任命过程中承认女性可能承担着与男性不同的社会责任,也可能促进变革。
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引用次数: 0
Decriminalisation of Adultery in Taiwan 台湾通奸非刑罪化
Q4 Social Sciences Pub Date : 2023-11-24 DOI: 10.1163/15718158-24030002
David KC Huang, Nigel N.T. Li
This article examines Taiwan’s decriminalisation of adultery in the landmark decision of Judicial Yuan Interpretation No. 791 [2020]. The Justices affirmed the right to freedom of sexual behaviour, ruling that imposing a criminal limit on the right in the name of marriage protection or the public interest is a disproportionate means to protect marriage, because the law cannot protect marriage. Moreover, a proviso of the law of adultery was held to be incompatible with the principle of equality, as it allowed the faithful spouse to sue only the person who fornicated with the unfaithful spouse, which was a vestige of moral vengeance rooted in the Chinese culture of nulla poena sine ‘Li’ (Chu-Li-Ru-Xing).
本文探讨了台湾在具有里程碑意义的司法院释字[2020]第791号判决中将通奸非刑罪化。大法官们肯定了性行为自由的权利,裁定以保护婚姻或公共利益的名义对该权利施加刑事限制是保护婚姻的不相称手段,因为法律无法保护婚姻。此外,通奸法的一个但书被认为不符合平等原则,因为它只允许忠实的配偶起诉与不忠实的配偶通奸的人,这是根植于中国 "法无明文规定不为罪"(楚辞-汝行)文化中的道德报复残余。
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引用次数: 0
Introduction to the Special Section on Contemporary Challenges in Comparative Equality Law “比较平等法的当代挑战”专题导论
Q4 Social Sciences Pub Date : 2023-08-31 DOI: 10.1163/15718158-24020003
K. Loper
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引用次数: 0
Microverse, Mezzoverse, Macroverse: Protection Against Discrimination in an Artificialised World? Microverse,Mezzoverse,Macroverse:在人工世界中保护免受歧视?
Q4 Social Sciences Pub Date : 2023-08-31 DOI: 10.1163/15718158-24020006
V. Muntarbhorn
The article addresses the issue of protection against discrimination in an artificialised world, shaped by automation, algorithms and artificial intelligence (ai) and interlinked with digitalisation. While traditionally advocacy against discrimination was based mainly on the call for specific anti-discrimination laws coupled with other actions, there is a more recent entry point in the form of personal data protection laws. These can help to safeguard privacy in relation to personal data which adds to protection against discrimination. However, the right to privacy and the right to freedom of expression (covering data flows) must be balanced well in the process, and the article refers to recent experiences from various regions. The contribution of different stakeholders is essential. Options include regulation by the State, self-regulation by the business sector, co-regulation between a mix of governmental and business-related cooperation, due diligence measures, technical solutions, consumer-based initiatives, specific attention to vulnerabilities, checks and balances against abuse of power, and demonopolisation.
这篇文章探讨了在一个由自动化、算法和人工智能(ai)塑造并与数字化相互关联的人工世界中保护人们免受歧视的问题。虽然传统上反对歧视的宣传主要基于呼吁制定具体的反歧视法律以及其他行动,但最近有一个切入点,即个人数据保护法。这些措施有助于保护个人数据的隐私,从而增加对歧视的保护。然而,隐私权和言论自由权(包括数据流)必须在这一过程中得到很好的平衡,文章引用了各个地区最近的经验。不同利益攸关方的贡献至关重要。备选方案包括国家监管、商业部门自我监管、政府与企业合作的联合监管、尽职调查措施、技术解决方案、基于消费者的举措、对脆弱性的特别关注、对滥用权力的制衡以及取消垄断。
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引用次数: 0
Empathy, a Hallmark of Equality: Shaping Fearlessness Into Transformative Decision-Making and Teaching 同理心,平等的标志:将无畏塑造为变革的决策和教学
Q4 Social Sciences Pub Date : 2023-08-31 DOI: 10.1163/15718158-24020005
Naina Kapur
Whether acting as lawyers, activists, judges, policy makers or academics, there is a void in our equality agendas. This void has enabled the contemporary state to rationalise inequality through the propagation of fear. How can we talk about equality if we do not talk about the current crisis of fear? What shapes our contemporary fears? How might we surpass them? Two contemporary narratives, both from judges, offer the possibility of prevailing over certain kinds of fear to meet equality outcomes. With everything to lose in hostile political circumstances, Justice Attaee’s fearlessness materialises from her lived experiences of inequality from where empathy naturally flows for the benefit of women’s equality against the hostile tide of both Afghan politics and global betrayal. Having never walked ‘in the shoes’ of lgbtqia+ persons, fearlessness for Justice Venkatesh, a deeply conservative judge, is put to the test. Taking on the social fears of himself and others, he cultivates the skill of empathy through the rare and unconventional choice of experiential immersion. Both justices serve as examples for creating inclusive experiential courses on empathy and social context within legal/judicial education institutes and practice, where the lives of those most impacted become central to such learning.
无论是作为律师、活动家、法官、政策制定者还是学者,我们的平等议程都存在空白。这种空白使当代国家能够通过传播恐惧,将不平等合理化。如果我们不谈论当前的恐惧危机,我们怎么能谈论平等呢?是什么塑造了我们当代的恐惧?我们怎样才能超越他们?两种来自法官的当代叙事,提供了战胜某些恐惧以实现平等结果的可能性。在充满敌意的政治环境中失去一切,阿塔伊法官的无畏体现在她对不平等的生活经历中,在阿富汗政治和全球背叛的敌对浪潮中,同情自然地为妇女的平等利益而流动。从来没有“站在”lgbt人群的立场上思考过的Venkatesh法官的无畏精神受到了考验,他是一位非常保守的法官。面对自己和他人的社会恐惧,他通过体验式沉浸这种罕见而非传统的选择,培养了同理心的技能。两位大法官都是在法律/司法教育机构和实践中创建关于同理心和社会背景的包容性体验课程的榜样,在这些课程中,受影响最大的人的生活成为这种学习的核心。
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引用次数: 0
Bangladesh’s Body Parts Trade: A Critical Analysis of Gaps in Justice 孟加拉国的身体部位贸易:对司法差距的批判性分析
Q4 Social Sciences Pub Date : 2023-08-31 DOI: 10.1163/15718158-24020001
Mst Kanij Fatima, Sallie Yea
The illicit trade in body parts in Bangladesh has been well-documented by both the media and academic scholarship. However, there is limited research addressing the question of the role of the law in preventing the trade and delivering criminal and remedial justice. Through a case study, this article critically evaluates the adequacy of Bangladeshi anti-trafficking law to criminalise organ trafficking whilst also ensuring victim protection. The analysis draws out three key gaps in the application of the law to achieve justice: vague laws related to organ trafficking; poor implementation of existing laws; and absence of adequate policies. We argue that gaps in international law (either their content or their application to Bangladesh), combined with problems relating to capacity, have negatively impacted domestic laws relating to organ trafficking.
孟加拉国的身体部位非法贸易已被媒体和学术研究充分记录。但是,关于法律在防止贩运和提供刑事和补救司法方面的作用问题的研究有限。通过一个案例研究,本文批判性地评估了孟加拉国反贩运法是否足以将器官贩运定为刑事犯罪,同时确保受害者得到保护。分析指出了在适用法律以实现正义方面的三个关键差距:与器官贩运有关的法律含糊不清;现行法律执行不力;以及缺乏适当的政策。我们认为,国际法的空白(无论是其内容还是其对孟加拉国的适用),加上与能力有关的问题,对有关器官贩运的国内法产生了负面影响。
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引用次数: 0
A Human Rights-Based Approach to Combating Corruption in the Education Sector in Indonesia 基于人权的方法打击印度尼西亚教育部门的腐败
Q4 Social Sciences Pub Date : 2023-08-31 DOI: 10.1163/15718158-24020002
Ratna Juwita
The education sector is prone to corruption because of the substantial amount of allocated funds and complex administrative layers that govern it. This article discusses the human rights-based approach to analyse corruption in the education sector in Indonesia. The data concerning education sector corruption are based on the judgment collection from the Corruption Eradication Commission Annual Reports from 2004 to 2018. Education sector corruption is classified into three types: grand corruption in procurement projects, obstruction of justice, and corruption related to decentralisation. The analysis showed that Indonesia’s efforts to realise the right to education cannot be achieved effectively and efficiently due to corruption. The human rights approach is used to formulate recommendations to combat education sector corruption to successfully realise the right to education. This article recommends that Indonesia must ensure the implementation of transparency and accountability in law, policy, and governance because corruption thrives where the State’s monopoly of power and discretion exists without accountability and transparency.
教育部门容易腐败,因为其拨款数额巨大,管理层复杂。本文讨论了基于人权的方法来分析印度尼西亚教育部门的腐败问题。有关教育部门腐败的数据基于根除腐败委员会2004年至2018年年度报告的判断收集。教育部门的腐败分为三类:采购项目中的大规模腐败、妨碍司法公正和与权力下放有关的腐败。分析表明,由于腐败,印度尼西亚实现受教育权的努力无法有效实现。人权方法用于制定打击教育部门腐败的建议,以成功实现受教育权。该条建议,印度尼西亚必须确保在法律、政策和治理中实施透明度和问责制,因为在国家垄断权力和自由裁量权而没有问责制和透明度的情况下,腐败现象猖獗。
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引用次数: 0
Judicial Perspectives on Transforming Equality 转变平等的司法视角
Q4 Social Sciences Pub Date : 2023-08-31 DOI: 10.1163/15718158-24020004
Geoffrey Ma
In law, equality is the antithesis of discrimination. As in many other areas of human rights law, however, the right balance very often has to be achieved between competing arguments which are reasonable on their face but which pull in different directions. How does the law achieve this? Constitutional instruments and statutes of course set out some principles and guidelines, but it is largely left to the courts to determine where the balance lies in any given situation. Such balance can only be reached through a principled, not arbitrary, approach that is ultimately based on the concept of dignity. Such principled approach includes the proportionality exercise.
在法律上,平等是歧视的对立面。然而,与人权法的许多其他领域一样,往往必须在表面上合理但方向不同的相互竞争的论点之间实现权利平衡。法律是如何做到这一点的?宪法文书和法规当然规定了一些原则和准则,但在任何特定情况下,平衡在哪里,很大程度上取决于法院。只有通过最终以尊严概念为基础的原则性而非武断的方法才能实现这种平衡。这种原则性做法包括相称性做法。
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引用次数: 0
Precluding the Wrongfulness of Derogations of International Human Rights Instruments 排除克减国际人权文书的不法性
Q4 Social Sciences Pub Date : 2023-02-15 DOI: 10.1163/15718158-24010005
Ashika Jain, Rohit Kumar Gupta
Primary and secondary norms represent complementary systems of governance, one specifying the substantive obligations of states and the other imposing consequences upon deviation. Treaties which contain both primary and secondary norms generally operate as self-contained regimes as they oust the application of secondary norms under customary international law, such as those that might be invoked to justify deviations. Conflict, however, arises when the treaty norms seem to overlap with their customary counterpart, while remaining technically disjunct in their form. Derogation and limitation clauses in several international human rights instruments provide conditions in which a violation would be justified. On the other hand, customary international law also prescribes circumstances in which violations cannot be considered wrongful. This article addresses whether the existence of the former in treaties precludes the invocation of the latter. It also highlights the difficulty which arises in the interpretation of those instruments in which such derogation and limitation clauses are absent.
主要规范和次要规范代表了互补的治理体系,其中一个规定了国家的实质性义务,另一个则规定了偏离的后果。同时包含初级规范和次级规范的条约通常作为独立制度运作,因为它们推翻了习惯国际法下次级规范的适用,例如那些可能被用来为偏离行为辩护的规范。然而,当条约规范似乎与习惯规范重叠,但在形式上在技术上仍然脱节时,就会产生冲突。一些国际人权文书中的减损和限制条款提供了违反行为的正当理由。另一方面,习惯国际法也规定了不能将侵权行为视为不法行为的情况。本条涉及条约中存在前者是否排除援引后者。它还强调了在解释那些没有这种减损和限制条款的文书时出现的困难。
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引用次数: 0
期刊
Asia-Pacific Journal on Human Rights and the Law
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