Month: June 2017
Odor Pollution and Regulation
- Generalities about odor pollution
- Citizen Complaint Pyramid.
- Not in my backyark behavior.
- Methods to measure odor nuisance.
- Odor reduction methods
- Chilean and German legislation framework regarding odors.
- Chilean legal framework.
- Specific Chilean Regulations.
- German legal framework.
- Odor Pollution Prevention and Control.
- Licensing regarding odor pollution:
- Emission and immission measurements.
- Safety Checks
- Sanctions in case of infrigment.
- Conclusions
Humans make decisions, often unconsciously, based on odors. Thus, by the odor we choose a flower and even lately have been found that we choose our couples. However, not all odors smell nice and there are odors that eventually can cause nuisance. The human development and the consequent enlargement of cities, has brought with the progress also nuisances, among these, the release of malodors into the environment. Nevertheless, odor pollution (hereinafter OP) was not a recurrent topic in national debates during last century. This has caused that its legal treatment has acquired some relevance only after 90's when the odor pollution became a major problem in its cities as well as citizens began to become aware of their right to live in a pollution free environment and that presence of pollution generate nuisances that undermine their quality of life. [2] In this paper I will briefly explore the general aspects of the odor pollution, then, I will analyze how the regulation in Chile and Germany prevent, control and sanction the odor pollution to finally conclude with a brief analysis of both legislations, some proposition if there are some and others consideration to bear in mind for the next legislation project.
Generalities about odor pollution
Citizen Complaint Pyramid.
Ambient air in the society holds a fusion of chemicals from the everyday activities of its citizens and the enterprises that make up modern day society. [3] In order to know when these mixtures of chemicals lead to an odor nuisance, it is relevant to apply the conceptual model called the 'Citizen Complaint Pyramid'. [4] According to this model, odor nuisance is usually a result of a series of odor episodes experienced by a citizen or citizens. [5] The frequency of these episodes -how often the citizen experiences odor episodes, the intensity of odors, and the character or offensiveness of odors contribute to the nuisance experience and the consequential citizen complaint. Therefore, the sum-up of all these elements may lead to an odor pollution nuisance. [6]
Not in my backyark behavior.
Common sources of odor pollution are industrial plants, incinerators for solid waste, industrial and municipal waste, water treatment plants and sewer systems, live stock farms. [7] Where should be located these installations is a key issue, since nobody wants them near their houses or the urban centers. Thus, in the United States the term 'not in my back yard' [8] has been established to illustrate the will of residential centres to preserve their territories far away from environmental pollution activities including the ones that generate nuisances to the population as the OP and noises emissions between others. This behaviour can be explained by the fact that in many cases the development of treatment plants have not been well implemented or controlled, generating the consequent rejection in society. One example of this situation has occurred in Chile in 2003, when after the inauguration of new sewage treatment plant in the Capital, residents near the installation were affected by a continues malodour [9] .
Methods to measure odor nuisance.
There are different methods to measure the odor nuisance. Nevertheless, existing methods estimating intensity and hedonic tone under laboratory conditions are not always accurate, because the results do not consider what residents perceive -known as the subjective element-. [10] Therefore, the European Union chose the dynamic olfactometric method, which incorporates this subjectivity through the constitution of a panel of experts whose only ability is to sense low concentrations of odors in the environment. [11] Thus, the panel integrates the subjective element to the survey.
Odor reduction methods
Measures that can be adopted to reduce odor pollution depend on many factors, between them, the chemicals that have been released and the territorial concentration of the emissions. Thus, the reduction of emissions can be managed through thermal destruction, activated carbon, biofilters or through the confine of the areas of activities that cause this emissions. [12] Other solutions for the abatement of odor pollution may require the execution of an alternative operation process or the optimization of the actual one, the use of closed reactors instead of open reactors or the encasement and source-oriented suctioning. [13]
Chilean and German legislation framework regarding odors.
Chilean legal framework.
The Chilean Constitution [14] gives the framework in terms of environmental protection. The fundamental guarantee established in Article 19 number 8 of the Chilean Constitution states that all individuals have the right to live in a pollution-free environment and the State has the duty to uphold this right and to safeguard the preservation of nature. [15] Therefore, all laws and decrees related to environmental protection should foster towards the implementation of this fundamental guarantee. [16] The same rule provides that, in order to protect the environment, the law may establish specific restrictions on the exercise of certain rights or freedoms. Likewise, and with regards to property rights, Article 19 number 24 paragraph 2 provides that only the law may establish the manner to acquire property and to use, enjoy and dispose of it, and the limitations and obligations derived from its social function. Said function includes all the requirements of the Nation's general interests, the national security, public use and health, and the conservation of the environmental patrimony. [17] In turn, and with the objective to bring remedy to the unlawful acts or omissions, Article 20 paragraph 2 states that if the right to live in a pollution free environment is affected by an unlawful act or omission attributable to an authority or a specific person, the protection remedy should be applied. [18] Therefore, any individual affected has the possibility to present recourse to the Court in which case the Court has the faculty and the duty to adopt any measure it considers suitable to establish the rule of law and protect the parties in those cases. In this duty, the Court has the faculty to order a stop of the contaminating activities or order an examination that may resort to other sanctions. [19] In a lower hierarchical order is the law number 19.300 [20] (hereinafter the Fundamental Environment Law), under whose provisions are regulated the right to live in a pollution free environment, the environmental protection, nature's preservation and the environmental heritage conservation. [21] This law defines, among others, pollution and pollutant, environment and what can be understood by a pollution free environment. [22] According to Article 2 (d) pollutant is not only that element, compound, substance, chemical or biological derivative, energy, radiation, vibration, noise or a combination of them, whose presence in the environment, in certain levels, concentrations or periods of time, may constitute a risk for human health, but also those that can undermine human's well-being, nature preservation or environmental heritage conservation. Therefore, the right to live in a pollution free environment not only refers to the presence of pollutants that put at risk and eventually can cause damage to the health of individuals but also to cases where their presence can affect people's quality of life, the preservation of nature and / or the environment heritage conservation. Regarding to the above, even if odor pollution may eventually constitute a real risk and harm people's health, it generally affects directly the welfare and people's quality of life of the population that lives near the sources of emission. Therefore, the issue of odor pollution must be placed in this last perspective.
Specific Chilean Regulations.
The current Chilean regulations have concentrated mostly in matters related to air pollution, air quality, regulation of dangerous gas emissions and only secondarily on odor pollution. Therefore, we can find only a few rules, very dispersed and of different origin addressing this particular issue. Among these: The Sanitary Code [23] in Article 89, letter a) [24] and b) [25] ; Decree 144 of the Ministry of Health [26] articles 1 [27] ,2 [28] ,3 [29] and 8 [30] ; The Civil Code [31] article 937 [32] the Criminal Code [33] article 496 number 20 [34] and the Decree 167 [35] which will be analyzed specifically . The Supreme Decree 167 enacted in 1999, is particularly relevant since it is the only legal instrument in Chile that regulates specifically the odor pollution. Even if it sets the emission standard for odors (Hydrogen Sulfide Compounds and Mercaptant: TRS Gases) it is only associated to sulphate pulp manufacture or kraft process. Therefore, we shall recall that installations not related to the kraft process are excluded from this regulation. The Supreme Decree establishes maximum amounts of TRS gases allowed in the effluent, the methodology for measuring and controlling these, deadlines and programmed levels of compliance regarding the emission standard. Furthermore, this Decree lays down that the respective Health Service shall approve the particular measurement system for each installation, taking into consideration the monitoring plan submitted by the owner of the installation. Regarding the infringement of this regulation, it states that in case of infringement the general rules contained in the Law 19.300 should be followed. Nonetheless, it is important to bear in mind that article 52 of the Law 19.300 establishes a presumption of responsibility to the author of the environmental damage, if there is infringement, inter alia, of environmental quality standards and emissions standards.
German legal framework.
Before 1972 every State of Germany was responsible to enact it owns regulations regarding air pollution. Therefore, only a few States had regulated about that issue. [36] Nevertheless, in 1974 the Federal Government enacted the "Federal Act on protection against detrimental effects on the environment caused by air pollution, noise and vibration" (hereinafter the Federal Immission Control Act). [37] Its purpose, between others, is to protect human beings against any harmful effects on the environment and to prevent the emergence of any such effects. [38] Thenceforth, odorous substances are an issue of environmental protection in Germany if they cause 'significant nuisance' in the neighborhood or to the general public. The Federal Immission Control Act, following the Directive 96/61/EC [39] (hereinafter the IPPC Directive), aims to prevent pollution of the atmosphere, water or soil wherever this is practicable, taking into account the particularities of each installation and of each environment, in order to achieve a high level of protection for the environment as a whole. Therefore, the Federal Immission Control Act establishes a licensing system for the operation of installations. This licensing system seeks to ensure that all prevention and control measures are taken in installations, particularly through the application of the Best Available Techniques (hereinafter BAT). In a second hierarchy level, coupled to the Federal Immission Control Act, the "Technical Instructions on Air Quality Control" [40] (hereinafter TA-Luft) contains a technical guidance for specific industries on how to achieve the general principles concerning air quality in the Federal Immission Control act and also includes provisions that protect the public from unacceptably high pollution levels from installations. In this regulation is also established the emission levels for different compounds and are calculated the immission levels based on the emissions allowed according to the regulation VDI-3940.
Odor Pollution Prevention and Control.
In the Chilean legislation, as explained above, the odor pollution has not been regulated with the only exception of the Decree 167 of 1999, but regrettably, this only concern TRS gases associated to kraft process. Thus, it is possible to say that in general terms Chilean laws do not typify, regulate prevent, control or even establish sanctions for odor pollution, as the German regulation does. The only viable way for affected people is to present a civil claim against odor pollution based on the damage produced to their property rights. [41] As a result, it is clear that these regulations are not sufficient to address this issue. Conversely, German Laws have established mechanisms to prevent and control the odor pollution. A licensing system, an emission and immission measurement method, safety checks procedures and sanctions to infringements have been established in the law. In the next pages I will briefly analyze the German legislation regarding the above and when it is possible a consideration regarding Chilean regulation about the issue will be made.
Licensing regarding odor pollution:
The Federal Immission Control Act in section four establishes that shall be subject to licensing the construction and operation of installations which, on account of their nature or operation, are particularly likely to cause harmful effects on the environment or otherwise endanger or cause significant disadvantages or significant nuisances to the general public or the neighbourhood, and the construction and operation of stationary waste disposal plants designed to store or treat wastes. However, an exception to some waste disposal plants and to open-pit mining installations has been established. Furthermore, this Act states that the Federal Government shall specify by ordinance, with the consent of the Federal Council (hereinafter Bundesrat), those types of installations which require licensing; the ordinance may also provide that licensing is not required for any installation which, in its entirety or in essential parts specified in the ordinance, has been type-approved and constructed and operated in accordance with the type approval. Moreover, regarding installations subject to licensing, section 5 establishes that they shall be constructed and operated in such a way that, in order to ensure a high level of protection for the environment as a whole, 1) harmful effects on the environment or any other hazards, significant disadvantages and significant nuisances to the general public and the neighbourhood are avoided; 2) precautions are taken to prevent any harmful effects on the environment or any other hazards, significant disadvantages or significant nuisances, in particular by such measures as are appropriate according to the best available techniques; 3) wastes are avoided, unavoidable wastes are recovered, and non-recoverable wastes are disposed of without impairing the public welfare; 4) economical and efficient energy use is ensured; 5) Installations subject to licensing shall be constructed, operated and closed down so as to ensure that even after cessation of operation the site is in the same conditions as it was before the operation. The license shall be granted if: 1) it is ensured that obligations arising from section 5 will be complied with; 2) the construction and operation of such installation does not conflict with any other provisions under public law or any occupational safety and health concerns. In the case of installations which are operated in different modes or where different substances are used the license shall, upon request, be extended to cover such different modes of operation and different substances if the prerequisites pursuant to number 1) above are fulfilled for all modes of operation and substances recorded.
Emission and immission measurements.
Section 26 of the Federal Immission Control Act that regulate the measurements taken for special reason states that, the competent authority may order the operator of an installation subject to licensing or, insofar as section 22 applies, of an installation not subject to licensing, shall allow measurements made by a specialized company when there is reason to fear that harmful effects on the environment may be caused by the installation. The competent authority is authorized to specify details regarding the type and extent of the measurements to be made. As well, according to chapter III, the operator of an installation subject to licensing shall, within a period to be fixed by the authority or on the date stipulated by the ordinance issued under section 27 subsection 4, provide the competent authority with information on the type and volume and the spatial and temporal distribution of the air pollutants emitted from the installation within a specified period, including the conditions governing such emission (emission declaration); The content of the emission declaration shall be disclosed to third parties. Nevertheless, it should not be published or disclosed to third parties if these could be used to draw conclusions concerning business secrets. What is more, the Federal Government is authorized to establish by ordinance, with the consent of the Bundesrat, the content, scope, form, time of the emission declaration and the procedure to be observed when determining emissions. Section 28 lays down that the competent authority may request the measurement of the emissions, after the commissioning or after an alteration, and after the end of any three-year period. Nevertheless, if in view of the type, volume and hazardousness of the emissions released from the installation, the authority can deem necessary to carry out measurements even during the three-year period. In Chile the Decree 167 of 1999 establishes that the operator of an installation that process pulp through the kraft method, shall send to the Health Service every three month, a declaration, which is attached to the Decree, specifying the emission measures obtained according the norm. Furthermore, the Health Services and Municipalities have the authority to audit the compliance of the regulation.
Safety Checks
Under the Federal Immission Control Act in the case of installations subject to licensing, the competent authority may order specific emissions or immissions to be determined continuously by means of measurement loggers in lieu of individual measurements pursuant to section 26 or section 28 or in addition to such measurements. However these measurements may be performed 1) at a specific date during the construction of the installation or else before commissioning of the installation; 2) at a specific date after commissioning; 3) at regular intervals; 4) in the event of cessation of operation or 5) if there is any evidence to suggest that certain safety-related requirements are not met. Regarding the submission of results, the operator shall present them to the competent authority no later than one month after completion of checks. Nonetheless, the operator shall present the results without delay if this is deemed necessary for averting imminent dangers. The costs for the determination of emissions and immissions as well as for the safety checks shall be borne by the operator of the installation if it is subject to licensing. In the case of installations not subject to licensing, the operator shall bear the costs for measurements carried out only when is proved that have not complied with the law and the standards. We could say that there is a lacuna in the Chilean legislation regarding safety check. However, from the moment that Health Services and Municipalities have the authority to audit the installations that perform a kraft process, we can consider that this particular lacuna is not relevant anymore. Indeed, in the event that the operator does not collaborate when a declaration is requested by the authority, the latter can easily audit the installation. With regard to the cost of measurements the Decree falls silent. However, from the moment that this measurement constitutes a requirement from the operator it is clear that he must bear the cost of it.
Sanctions in case of infrigment.
The Federal Immission Control Act establishes two kinds of fines that depend on the offence that have been done by the operator. The fines can go up to 50,000. [42] In Chile, the Decree does not establish sanction in cases of infringement, however it is is possible to appeal to sanctions established in article 56 of the Law 19.300. The sanction that can be apply according the Law 19.300 are: 1) admonition; 2) fines up to 1.000 UTM (Monthly Tributary Unit); and 3) temporal or definitive closure of the installation.
Conclusions
From the author's experience in Chile and analysis of legislation in this paper, although, generation of malodors is unavoidable, regulation aimed at preventing, controlling and sanctioning it, has been generally ineffective. Referring to the above, it can be deduced that the polluter pays principle, has not been totally effective in this area and better regulation regarding odor pollution is urgent. Thus, society as a whole must not continue paying externalities that only a few consume against the public interest. From the analysis performed in this paper can be clearly concluded that Chile lags behind Germany regarding odor pollution legislation. Current Chilean regulations are ineffective in preventing, controlling and sanctioning activities that produce malodors. However, it should be mentioned that despite new initiatives that have been proposed by the Chilean parliament in this field [43] , the legislator should take into account the progress that has been achieved in foreign legislation so as to avoid errors as the ones that figured in the project. In fact, this last legislation project has several shortcomings since 1) it does not require, as a condition of development of certain projects, the obligation to obtain a license issued by the authority; 2) it does not establish the emissions units for measurement; 3) it does not establish limits to those emissions; and 4) that sanctions are based on the latest annual income declared by the polluter. Therefore, in order to guarantee the success of this legislation project, I believe that the following modifications should be added: a) the legislation shall establish as a precondition for the development of these projects the previous procurance of a license that sets up, among other things, the emission limits of odoriferous substances, b) shall be stipulated the emissions units for measurement, for which can take in consideration the European Odor Unit, c) it shall establish emissions limits of each installation within their provisions, d) financial penalties shall have a minimum and a threshold and the penalties should also consider the damage caused; and e) shall be considered for the license the emission emitted by each installation as well the global amount of emission in the area. Without the modifications proposed, I consider that the gaps that would create such rule would leave the project without further application. In which case, the protection against odor pollution will continue in the current situation. Despite its great contribution to this area, the German legislation has also been criticized since it does not establish the meaning of 'significant nuisance'. This lacuna makes in some occasions more difficult the application of this regulation by the affected people. Therefore, a clear and concise definition is needed in this particular case. Furthermore, it should be noted that foreign regulations on this issue and the respective implications that these regulations have in the importation of products plays a positive role, since companies who want to export their products to other nations that have strictest regulations have to introduce higher standards in their process than the ones imposed by their own legislation. This effect has happened in Chile, mainly caused by the celebration of many bilateral an international treaties. Finally in my opinion, Chile should issue a law with the same bases and principles as the IPPC Directive, as it is the only global way to prevent and control our environment avoiding a legislation only focused on a single spectrum as it is currently the case in Chile.
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New Developments in Todays Court Room
Camera’s in the courtroom although not a new topic still seems to be a topic of hot debate. According to an article entitled, Sotomayor Should Push for Camera’s in the Courtroom just published in June of 2009; A federal judicial courtroom is still deciding about the judges discretionary power to allow camera in the court room even in 2009 (Breyer & Hyatt, 2009). This paper will attempt to look at the history of camera’s in the courtroom, the pros and the cons of camera’s in our courtrooms, famous court room cases watched by america, and the evolution of camera’s in our court rooms today. Camera’s first came into play in one of the biggest trials of the 20th century; Bruno Hauptmann for the kidnapping and murder of Charles Lindbergh’s child. This led to the restriction of cameras and ultimately led to new laws being adopted to protect privacy; reporters were not restricted due to the media frenzy that ensued as a result of the the Lindbergh case. In turn, this case led to The American Bar Association recommended, and many states adopted, rules restricting the use of television cameras, still cameras and broadcast recorders and microphones in courtrooms (Prak, M., & Davis, J, p. 2). Another major move in the history of camera’s in the court room came in 1965 from Texas’ “In 1965, the United States Supreme Court held that Texas financier Bill Sol Estes had his rights violated by allowing a camera to records his trail (p. 2). This debate would linger for years in which journalists were banned from using cameras, microphones or ever recorders when it came to court proceedings.
Another important step forward for camera in the court room is CSPAN was the first ever television station to televise a Supreme Court senate confirmation, the senate confirmation of Sandra O’Connor. This proved to be a historic day as it paved the way for televised court proceeding. The next big debate for camera’s in the courtroom would come in 1981 in the case of Chandler vs. Florida when the idea of cameras had become less foreign and less like an intrusive object into the world of justice, As a result of camera allowed in trials against two Florida men who were accused of burglary both asserted they had been denied a fair trial. The court in the decision of Chandler v. Florida upheld there convictions. The court ruled that both did not have a valid argument that the criminal trial being broadcast after their right to due process. Furthermore the court argued there was no data that proved that the presence of the media affected the process (Prak, M., & Davis, J, p. 2). As a result of this case you could argue this also paved the way for popularizing and glarorizing televised courtroom programs such as Court TV and many other court room shows that are popular.
Although the rules and regulations for camera’s in the court room has changed dramatically over the years some principles still stand. Court room cameras are still not allowed in juvenile court proceedings, adoption cases and child custody cases.
These types of special hearings are still considered protected from the media’s eye. There are many pro’s to allowing a camera to be involved in the court room process. According to the International Debate Education Association; “putting cameras in court will improve public confidence in the judiciary and the system of justice as a whole. It is difficult to see how the public can have confidence in a system that most of them never see” (Weeks, 2000). The article goes on further to report, Weeks goes on further to argue that court preceding especially in other countries deal with the doctrine of president, in essence one case decides the fate of those that follow (Weeks, 2000). Finally, one of the last arguments for proponents of camera in the court room is that we as a society have certain rights, especially when it comes to public court proceeds. Anyone can attend these proceeding no matter if they are involved in the case or just a citizen who wants to observe. With that in mind how is broadcasting it any different? It is making readily available to individuals who already have the right to view it. On the opposite side, those opposed to camera’s in the court room also have valid points; Weeks states that television and the media is distorted and sensationalized and therefore citizens would not get a great or accurate picture of what is actually going on in the legal proceedings. The same article also points out yet another reason we as a society should rethink the idea of camera’s in the court room; The system of justice will actually be harmed by televising trials, for two reasons; the effect upon the witnesses and victims of crime, and the possible corruption of the jury and witnesses.
Firstly, the prospect that an alleged victim of a crime will have to give evidence in court already deters many from bringing prosecutions. Victims will be much less prepared to give evidence if they know that this painful experience is going to be seen by an audience of millions (Weeks, 2000). Are we exposing victims and potential witnesses just for the entertainment of those watching? This could essentially skew the trial process all together; There is a clear tension between the democratic right of the people at large to watch a trial, and the liberty of the defendant in any given case. It is a fundamental precept of many legal systems that the defendant is innocent until proven guilty. By showing the defendant on television, the general public will be able to reach conclusions about guilt or innocence that may not be reflected in the final verdict of the jury. People will tend to assume that ‘there’s no smoke without fire’ – although this principle cannot properly be applied to the criminal justice system (Weeks, 2000). In conclusion, there are many reasons for and against why having cameras in the courtroom is either appropriate or inappropriate. However, at the time it appears cameras are here to stay. One of the most famous cases proves the good and the bad when it comes to cameras in the court room, the case of O.J. Simpson. Everyone knows the infamous case of O.J. Simpson.
According to one source over a one-third of the American Public watched the infamous trial (Jrank.org, 1994). The article goes on to point out an even bigger picture of just how the media covered this trial: Over two thousand reporters covered the trial, and 80 miles of cable was required to allow nineteen television stations to cover the trial live to 91 percent of the American viewing audience. When the verdict was finally read on October 3, 1995, some 142 million people listened or watched. It seemed the nation stood still, divided along racial lines as to the defendant’s guilt or innocence. During and after the trial, over eighty books were published about the event by most everyone involved in the Simpson case (Jrank.org, 1994). This trail could be labeled as the Trial of the Century in the modern world. One question many have brought up is why? What was the media’s fascination with this case or criminal cases in general? According to an article entitled The Public’s Fascination with The O.J. Simpson Trial we as a society are voyeurs; According to Lustberg, Americans have always been fascinated with public figures and celebrities. He asserts that as a society who has become increasing engrossed in the lives of other due to all the new technological advances. As a result, the O.J. Simpson story provided people with emotional and physical entertainment. (Lustberg, 1995). In essence it seems that we as a society will always have a fascination with watching court room drama.
Whether real or fake it appears as a society the fascination with media in the Court room is here to stay and might explain why a number of TV shows are popping up involving courts. One of the most new types of shows are “Judge Shows” The shows that mock legal court proceedings in an effort to get ratings. According to one article: There is one brand of reality show that seems to succeed where all others have failed. The judge shows that grace morning television all over America have become extremely popular with those who are home to watch them. (Noriega, 2006). This is the newest adaptation of voyeurism in the court, although most are not set in a real courtroom they mock the essence of the courtroom which obviously appears to America. In conclusion, it appears America’s fascination with media in the Courtroom is here to stay. Although there are many legal issues that still need to be figured out and the rules and regulations are different in every jurisdiction, Media in the Court’s is here to stay. Although this issue will probably remain in debate for many years to come one thing is for sure: “Whereas if you have a camera in the courtroom, there’s no filtering.
What you see is what’s there.” (ITO, 1995) and that is probably one of the main reasons camera’s have been allowed the courtroom. The camera is an unbiased eye that lets the general public see for themselves what actually goes on in the courtroom and make their own conclusions.
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New Developments In Todays Court Room. (2017, Jun 26).
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https://studydriver.com/2017/06/page/18/
Modern Day Piracy
Modern Day Piracy
Examining the Case of Somalia
Introduction
When speaking about pirates people often envision scenic Caribbean vistas of a bygone era, but today piracy has experienced a renaissance and is one of the biggest threats to global trade and security. In the last ten years incidents of piracy have more than quadrupled going from 90 reported cases in 1994 to 455 cases in 2003.1 Modern day pirates have become a serious threat to international waters and their exploits have become more and more daring, targeting bigger and more high profile ships. In the areas of Southeast Asia and especially the Horn of Africa, trade has become so perilous that it has forced the hand of the world's most powerful nations as well as the United Nations Security Council (UNSC). Powerful international regulations have frequently been made to combat the growing threat of these pirates but often states lack the capacity to deal with these so-called 'criminals'. The legislation put forward is also faced with the harrowing task of how to get to the deeper causes of piracy within states. Many of the most recent proposals are mere band-aids while policy makers keep skirting the more dubious issues of failed states, severe poverty, and past infringements on sovereignty. Without addressing these key issues there is no hope in solving the crisis of high seas piracy. The question remains then what are the best kind of policies to deal with piracy, and are they being used effectively in the real world? This paper aims to prove that without a better understanding of situation in Somalia, it will be impossible to combat piracy in the area, and we must further investigate best practices if any real progress is to be made. This will be done by giving a short history of the international laws and regulations 2 - Ellora Howie Modern Day Piracy - regarding modern day piracy. The paper will then point out how these historical understandings have made defining piracy very problematic and difficult in today's circumstances. It will then examine the case study of Somalia where piracy has had its greatest resurgence. Lastly, the paper will conclude with a discussion of the responses of the UN and the world at large and the direction that they are taking thusly.History of Applicable Law
Piracy has long been considered a hostis humani generis, or "the enemy of the human race".2 Legislation regarding it goes all the way back to ancient times, with the first recorded instances being found in Justinian's Digest in 529 AD and in King John's Ordinance of 1201.3 In the modern context, the first major piece of legislation regarding piracy came in the form of the 1958 Geneva Convention on the High Seas. It set out 8 key provisions for suppressing piracy. It was later followed by the 1982 UN Convention on the Law of the Sea. However, this convention did not really build on the Geneva Convention on the High Seas, but rather reaffirmed the intentions of the earlier treaty. One of the most important contributions of this treaty was its definition of piracy, which remains largely unchanged today. The UN Convention on the Law of the Sea sets out the definition as such: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed to: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any - Modern Day Piracy Ellora Howie - 3 State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).4 This definition presents many problems. The first problem, that of defining piracy as committed for 'private ends', is immediately apparent. Although piracy is usually used a form of livelihood for those who cannot find employment in the tumultuous and poverty stricken country from which they come, piracy often takes on a political character. In Somalia, pirates justify their action in the Gulf of Aden and around the Horn of Africa as a form of protest against over-fishing and waste dumping in their territorial waters.5This would then suggest that Somali pirates are actually sea terrorists. Another definitional problem is the 'two boat paradigm' that the Convention sets out. This fails to address the problem of internal seizures and that hijacking is not always one boat attacking another boat. Cases where the crew or passengers take over a vessel for either private or public gains can hardly then be considered an act of piracy. Lastly there is the issue that this definition sets out piracy as only existing on the high seas, disregarding all actions within the territorial waters off a state's coast and dismissing them as sea robbery. This definition needlessly compartmentalizes piracy when it would be more effective to deal with it as a whole.Piracy in Somalia and The Gulf of Aden
The deficiencies of this definition come into plain view in the case of Somalia. Approximately 20,000 ships pass through the Gulf of Aden adjacent to the Indian Ocean each year, transporting cargo that includes 12 percent of the world's daily oil supply.6 With its failed state status and the high levels of traffic passing by its shores, Somalia has become a hotbed for pirate activity. Its 4 - Ellora Howie Modern Day Piracy - 4-Ellora HowieModern DayPiracy- coastal waters have become more and more dangerous with cruise-liners being shot at, aid deliveries being jeopardized, and the crewsof fishing, recreational, and aid vessels being taken hostage forransom.7However, most troubling of all is that, between 2005 and 2007, the number of attacks and attempted attackson privateshipping vessels in the area hasexceeded that ofboth the MalaccaStraits and South China Sea combined. These areas were previously considered to be the epicentres of piracy in the world.8The chaos found at sea radiates out from the Somali mainland.Somalia has lacked a functioninggovernment since 1991 whichwas preceded byyears of instability. The internationallyrecognized Transitional Federal Government(TFG) has littlepower over the country. As previously mentioned, much of the motivation forpiracy derives from over fishing and pollution in Somali waters. With Transitional Federal Government having little or no sovereign authority to enforce territorial sea rights, over-fishing has become abundant. More than 700 foreign vessels, some ofthem armed, have taken advantage of this and haveconductedunlicensed fishing or have been fishing under the 'license' of localwarlords.9Another problem that has plagued theSomali people isthe constant dumping of hazardous materials into their waters by foreign parties.10According to a spokesman from the UNEnvironmental Program who conducted an investigation in 2005, "there's uranium radioactive waste, there's lead, there's heavymetals like cadmium and mercury, there's industrial waste, andthere's hospital wastes, chemical wastes,you name it".11According to thereport from this investigation, the reason for thisis cost. It is estimated that it costs $2.50 per ton to dump toxicwaste in Africa compared to $250 per ton to dump waste inEurope.12This has only added to the local fishing communities'hardships.One of the powerful motivations to engage in piracyhowever, is money. Some ships and crew fetch as much as $3million in ransom.13The annual haul for Somali pirates wasapproximately $30 million in 2008, although some estimates place- Modern Day Piracy Ellora Howie - 5 that figure at more than $100 million. To put this into context, the money collected in ransom revenue exceeded the entire budget of the Puntland government for that year.14 Pirates in Somalia mainly tend to be out of work fisherman or former militia members of the Somali warlords.15 They primarily come from the Puntland region of Somalia and are part of the various clans and organisations stationed there.16 There appears to be no real unification or clear command structure, although they seem to be operating as an ad hoc branch of organized crime. Some press reports have suggested that the pirates are being controlled and directed by the Islamic insurgents in south-central Somalia.17 There is no evidence, however, to support this assertion. However, the money collected from the ransoms is clearly going into the hands of an elite few, as evidenced by the construction boom taking place in the port cities of Somalia.18 There are no reported numbers of how many pirates reside within Somalia, only that the number is on the rise from previous years.19 Pirates have been able to be so successful mainly because of their ability to effectively adopt technology into their operations. One of the most significant advances is their use of 'mother ships'.20 Mother ships transport small pirate skiffs further from the coastline than they would be able to go by themselves. This allows them to go after bigger targets in international waters. Not only are these ships easily mistaken as small fishing boats, they are far more manoeuvrable than the ships they attack. Pirates have also adopted technology in other areas. Not only do they have small automatic and semi-automatic weapons, but they also commonly possess man-portable air defence systems and rocket propelled grenades. They also have better ships and weapons than would be expected, and commonly use GPS systems to help then spot ships from greater distances.21 6 - Ellora Howie Modern Day Piracy - With all of these factors converging, the Gulf of Aden has witnessed some of the most high-profile incidents of piracy of modern times. One of the most publicized attacks was the seizure of a Ukrainian freighter, the Faina, that was transporting 33 T-72 Russian tanks and depleted uranium ammunition to Kenya for consignment to the Sudanese People's Liberation Army on September 25, 2008. The Faina was later released in mid-February 2009. The pirates reportedly earned more than $120 million in ransom money for the ship, cargo, and personnel.22 Another alarming hijacking incident happened only two months later involved the 1000 foot supertanker, the Sirius Star, from Saudi Arabia. It was headed to the United States and carried more than $100 million in oil.23 Incidents like these demonstrate the possible implications of pirate attacks. If the Sirius Star had been sunk or damaged (as is often threatened if shipping company owners refuse to meet the pirates' demands), it could cause an oil spill of such magnitude that it would have huge environmental ramifications. Additionally, in a time of such economic hardships, shipping costs have increased exponentially. In the Indian and Pacific Oceans, maritime piracy have cost shipping companies somewhere in the neighbourhood of $13-$15 billion annually in losses. In recent months, insurance rates have soared. Premiums for a single transit through the Gulf of Aden, for example, have risen from $500 to as much as $20,000.24 This has caused shipping companies to greatly decrease or stop all business in the area. Many companies have decided to forego the use of Suez Canal all together and choose alternate routes that are longer and more costly in order to avoid the Gulf of Aden. 25International Response
The threat of piracy to international security has drawn much attention from global organizations and world leaders alike. This has prompted the UN Security Council to take action. In 2007 the International Maritime Office prompted the Somali TFG - Modern Day Piracy Ellora Howie - 7 to advise the Security Council that, "it consents to [foreign] warships or military aircraft . . . entering its territorial sea when engaging in operations against pirates or suspected pirates endangering the safety of life at sea."26 Resolution 1816 was issued by the Security Council in June of 2008, and embodied these principles. It called for increased coordination among those States with naval assets off Somalia; better information-sharing and cooperation over Somali piracy among and between States, international bodies and regional organizations; and encouraging States and organizations 'to provide technical assistance to Somalia and nearby coastal States.27 What was significant about this particular resolution was that states had to be approved by the Somali TFG and identified to the Secretary General as 'cooperating' before they were allowed to follow pirates into Somali water and use "all necessary means to repress acts of piracy".28 The resolution was then given a six month term after which point it would be terminated. This was a major landmark in the fight against piracy as Resolution 1816 and subsequent resolutions marked that piracy was finally being taken seriously by the international community.29 National and regional naval forces took full advantage of the rights that this new resolution provided them. To counter the threat of piracy, many nations have deployed warships to the Gulf of Aden in order to conduct patrols and escort ships. NATO and the European Union have both sent ships to participate in Combined Task Force 51.30 Naval forces from the United Kingdom, Canada, Turkey, Germany, Denmark, the Netherlands, France, Pakistan, India, Iran, Russia, and other countries have also been deployed to the area.31 Even China, for the first time, has contributed warships to the effort.32 However, this shared military 8 - Ellora Howie Modern Day Piracy - initiative has been met with limited success and the number of hijacked ships has actually increased.33 Another solution suggested is to adopt the best practices of Southeast Asia which has had a long history in dealing with piracy. The Malacca Straits were once classified by Lloyd's of London (an insurance company) as a 'war risk' to shipping in 2005-2006.34 One of the reasons this area was so successful in reducing the occurrences of piracy was the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP).35 ReCAAP was signed by sixteen Asian states including Bangladesh, Brunei, Cambodia, China, India, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines, Sri Lanka, Singapore, South Korea, Thailand and Vietnam on November 11, 2004.36 The goals of the agreement were to prevent and repress piracy, arrest pirates, seize ships or aircrafts used in committing piracy, and to rescue the victim ships and crews. The member states planned achieve these goals by sharing information, cooperating in legal and judicial endeavours for the prevention and suppression of piracy (including extradition and mutual legal assistance), and cooperation in capacity building. This included technical assistance such as educational and training programmes.37 This agreement obligates each state to cooperate fully in order to combat piracy. This agreement also created a central Information Sharing Centre (ISC), located in Singapore, in order to make information more readily available to states.38 The ISC is composed of the Governing Council, which is the decision-making body made up of one representative from each state, and the Secretariat which is headed by the Executive Director, who is responsible for administrative, operational and financial matters.39 Another route that Southeast Asia has taken to combat piracy was to establish a tripartite surveillance regime. Indonesia, Malaysia, and Singapore banded together in order to provide - Modern Day Piracy Ellora Howie - 9 maritime air surveillance in the Malacca and Singapore Straits. Their efforts have shown a significant reduction of cases of piracy in the region.40 In the spirit of ReCAAP, African countries have started the process of setting up their own information sharing system. The beginnings of this can be seen at the Tanzanian Conference where states created a draft nonbinding regional memorandum of understanding.41 They chose to make it nonbinding over the concern that, if they did make it binding, it would take substantially longer to be passed through national parliaments.42 The draft does not establish a single information centre like ReCAAP, but instead Kenya, Tanzania, and Yemen offered to be communications and reporting centers and prescribed that other states should chose a single national focal point for the exchange of information.43 Another important divergence from the ReCAAP model is their recognition of the discussion on the concept of 'ship riders'.44 Ship riders are law enforcement officers that are (usually) from nearby coastal state and accompany foreign vessels on their route. These ship riders are then able to enforce their own state's law against pirates. This is done so that foreign traders will not have to deal with judicial duties and trying pirates in their own domestic courts. Ship riders also may have to ability to authorize the pursuit of a pirate vessel into their territorial waters. The draft of the Tanzania Conference does not recognize this fully however. It instead "provides a mechanism by which a State participant may request ad hoc permission from a coastal State to continue pursuit of a suspect pirate vessel into its territorial waters".45 Such a request is made much more accessible through the creation of single contact points laid out by the draft regional memorandum of understanding.46 If it is adopted, it could offer an effective regional answer to the crisis of piracy. However, whether 10 - Ellora Howie Modern Day Piracy - or not the draft will be implemented and what it will look like if it is, remains to be seen.Conclusion
Piracy has deep roots within our history but there has been a problem of evolving our definitions as piracy itself has evolved. Somalia is a clear example of this as it presents a new conception of why piracy occurs, who exactly these pirates are, how they have adapted, and the possible challenges they present for the future. There have been a variety of attempts to deal with the problem but it is clear that piracy will not simply disappear by throwingCite this page
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Money Laundering in Malaysia
- Advise Ahmad as to his chances of evading liability by using the doctrine of separate legal personality. ( 8 Marks )
- One of the main benefits of incorporation is limited liability. Briefly explain the concept of limited liability. ( 2 Marks )
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Negligence and Duty of Care
Duty of care is the first element of negligence and therefore, in order to discuss further on duty of care, one would have to first define the tort of negligence. In Blyth v Birmingham Waterworks Co, the courts defined negligence as an omission of something which a reasonable man would do and the doing of an act which a reasonable man would not do. In Heaven v Pender, the courts held that the presumption of duty of care arises when one person is placed in a position with regard to another person or property, it is in ordinary sense that if he does not use reasonable ordinary care in his conducts, he would cause danger or injury towards the other person or property.
Therefore, ordinary care is required to prevent the occurrence of such danger.
In Stovin v Wise, the courts explained that generally there is no duty to rescue a stranger from danger. The duty mentioned above is regarding duty that is imposed by law or in other words, it is a legal duty. Test to determine the standard of duty of care. There are a few test that is used in determining the existence of duty of care. The primary test is the neighbour principle established in the well-known case of Donoghue v Stevenson.
In this case, Lord Atkin laid down that the rule that you are required to love your neighbours becomes a law by itself and it requires one to take a reasonable care to prevent any acts or omissions that can be reasonably foreseen to be likely to cause injury to your neighbour. The question posed to this principle is regarding who is one’s neighbour in law.
The courts held that neighbour in law is someone who is directly affected by one’s act or omission.
It is a reasonable man’s test whereby the courts would have to determine whether a reasonable man would foresee that his conduct would affect the plaintiff adversely. If the answer to this hypothetical question is yes, then the plaintiff is considered to be his neighbour and he owes a duty of care to the neighbour. It is essential to note here that the neighbour principle requires the defendant to be a foreseeable victim and thus, in order for the defendant to be a foreseeable victim, there has to be a close proximity. Therefore, the neighbour principle requires the plaintiff to be of a close proximity with the defendant.
The plaintiff would not be a foreseeable victim if there is no proximity between the plaintiff and defendant.
In the case of Home Office v Dorset Yacht Co Ltd, the courts held that the principle laid down in Donoghue v Stevenson should be regarded as a milestone in determining whether there exist a duty of care. This principle significantly assist the development of the law of negligence. Prior to the case of Donoghue v Stevenson, there was vagueness in the law regarding civil liability for carelessness. In an 1889 textbook, there was a list containing fifty-six various duties of care. Therefore, the judgment in Donoghue v Stevenson brought an end to the chaotic situation and had introduced the law of negligence as a separate civil wrong.
The next test used by the courts to determine whether duty of care is established is the Anns test laid down by the courts in Anns v Merton London Borough Council. This is a two-stage approach laid down by Lord Wilberforce whereby the first is to determine whether there is a relationship of proximity between the alleged tortfeasor and the person who had suffered the loss. If it foreseeable that the carelessness of the tortfeasor would lead the other party to suffer damage, then a duty of care would on prima facie be established.
The second stage of this test requires the court to take into account any considerations that may negate the said duty or to reduce and limit the scope or group of persons that the duty will be imposed upon. This two-stage approach in essence is to determine whether it is reasonable to foresee that the defendant’s act or omissions will cause any damage to the plaintiff.
If it is reasonable to foresee that the defendant’s act would cause harm to the plaintiff, then there exist a presumption of duty of care. This test receive heavy criticism in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd. The courts in this case held that the neighbour principle laid down by Lord Atkin should be proved before the duty of care is presumed to exist but the scope of the duty depends on the facts of the case. The courts should consider whether the duty of care imposed on the defendant is just and reasonable.
In Curran v Northern Ireland Co-ownership Housing Association Ltd, the learned judge, Lord Keith, held that the Anns test has been given more importance than it should have been given and held that the test need not be applicable in future cases in establishing the duty of care. The third test used in determining the duty of care is the Caparo test which is derived from Caparo Industries plc v Dickman.
In this case, there were three factors that is needed to be fulfilled to establish duty of care. The first is the courts must determine whether the damage caused is reasonably foreseen, the second is whether there is any policy to negate the duty of care and the third is whether it is just and reasonable.
If this requirements are fulfilled, then duty of care is established. It is important to note here that all three elements under the Caparo test needs to be fulfilled in order for duty of care to be established.
Development in Malaysia
In Malaysia, the courts have used all of the above test. However, the test that is currently used by the courts is the three stage test which is the Caparo test. This can be seen in the case of Majlis Perbandaraan Ampang Jaya v Stephen Phoa Cheng Loon & Ors.
In this case, the Federal Court had referred to the Caparo’s case do determine whether duty of care exist. The issue that arises in this principle is whether this principle only applies to economic loss or it may extend to all situations. The courts used the foreseeability test and held that this test applies to all situation.
The courts only had to determine whether the duty of care which is imposed upon the defendant is just and reasonable. The courts went on stating that it would be rare for the outcome of the test to be not just and reasonable. This test is used in a more recent Malaysian case which is Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd. In this case, the courts reiterated that the standard of care to determine negligence is that of the reasonable man and it is an objective test.
Another recent case is the case of Jordan Saw Yu Huan v Low Suan Chuan & Ors. In this case, the high court applied the Caparo’s test and the courts were of the view that it was just and reasonable to impose such duty of care upon the defendants and held that the defendants in this case had breached such duty of care.
Therefore, it is clear that the recent development in Malaysia regarding the standard of care required to establish duty of care is more inclined towards the three-stage approach which is commonly known as the Caparo’s test. The courts in Malaysia had followed the Caparo’s test because this test requires that the damage caused to the plaintiff to be reasonably foreseen by the defendant. The defendant would not owe a duty of care if he cannot reasonably foresee the damage.
Therefore, this test more straight forward as compared to the other test laid down earlier.
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M V Home Office
Footnotes
[1] AV Dicey An Introduction to the Study of the Law of Constitution (10th Edition Macmillan London 1959) 193 as quoted in M Allen & B Thompson Cases and Materials on Constitutional and Administrative Law (7th Edition Oxford University Press London 2002) 216 [2] 1 A.C. 377 [3] Cases and Materials on Constitutional and Administrative Law (n 1 above) 217 [4] (1951) (Cmd. 9171): (1994) 1 A.C. 377 at 398 [5] [1994] 1 A.C. 377 at 400 [6] (1994) 1 A.C. 377 at 397-403 [7] Section 21(1) [8] RC Clements & J Kay Constitutional and Administrative Law (3rd Edition Oxford University Press Oxford)179 [9] Section 2 (amended by the Statute Law Repeals Act 1981 [10] As defined by Section 6 [11] Constitutional and Administrative Law (n 8 above) 182 [12] [1994] 1 A.C. 377 at 396 [13] [1994] 1 A.C. 377 at 428 [14] In Re A Company (1981) AC 374, 384 and Isaacs v Robertson (1985) Ac 97, 102 per Lord Diplock [15] As sole corporation or corporation aggregate per Lord Diplock in Town Investment Ltd v Department of the Environment (1978) Ac 359 [16] [1994] 1 A.C. 377 at 406 [17] Halsbury's Laws of England Administrative Law (Volume 1(1) 2001 Reissue) 152. The Injunction in Public Law [18] (1994) 1 A.C. 377 per Lord Woolf; cf R v Secretary of State for Transport, ex p Factortame [1990] 2 AC 85, [1989] 2 All ER 692, HL [19] An Introduction to the Study of the Law of Constitution (n1 above) 202-203 [20] Cases and Materials on Constitutional and Administrative Law (n 1 above) 215 [21] Per Lord Donaldson MR in Francome and Another v Mirror Group Newspapers Ltd and Others (1984) 2 All ER 408 at 412 [22] RVF Heuston The Rule of Law in Essays in Constitutional Law (2nd Edition 1964) 44-48 in Cases and Materials on Constitutional and Administrative Law (n 1 above) 215Cite this page
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Obtaining a Restraining Order under
[1] Re Artistic Color Priniting Co (1880) 14 ChD 502. [2] S.176(10A) of the Company Act 1965, <https://www.ssm.com.my/acts/fscommand/CompaniesAct.htm>, Accessed on 12th of December 2014. [3] [2001] 2 MLJ 237. [4] [2008] 10 CLJ 486. [5] <https://www.cljlaw.com/Members/DisplayCase.aspx?CaseId=2837776897&SearchId=>, Accessed on 12th of December 2014. [6] [2005] 6 MLJ 487. [7] S.176(10B) of the Company Act 1965. [8] S.176(10C) of the Company Act 1965. [9] S.176(10D) of the Company Act 1965. [10] [2004] 8 CLJ 276, <https://www.cljlaw.com/Members/DisplayCase.aspx?CaseId=2748713473&SearchId=5mmu3>, Accessed on 12th of December 2014. [11] [2001] 6 CLJ 129, <https://www.cljlaw.com/Members/DisplayCase.aspx?CaseId=2658869761&SearchId=6mmu3>, Accessed on 12th of December 2014. [12] S.176(10E) of the Company Act 1965.
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Neutrality America and Canada
In past few years the term "Network Neutrality" or "Net Neutrality" appeared in many cases when considering the use of internet.
What is Net Neutrality?
It is a choice of internet users to browse any internet content without any restrictions. Net Neutrality helps those users to freely surf on the internet with helping to prevent Internet Service Providers (ISP) or in some cases even governments to block any content or sites. There are many reasons why the Internet Service Providers (ISP) does that. Two of the primary reasons are money and self interest. LetA´s say for example that we want to search something on Google Search Engine and the connection is extremely slow and even impossible (error on the page). At a same time our Internet Service Provider (ISP) has its own search engine or has an agreement with other independent search engine web site. The reason why we have connection errors or extremely slow internet is because our Internet Service Provider (ISP) does not respect Net Neutrality and intentionally slow down the internet or even in some cases block the content. To avoid that there are many debate how to do that. On every continent the laws are different and Net Neutrality applies in many varieties. Recently, in United States of America there are many law cases that deal with Net Neutrality and who is actually responsible to control the Net Neutrality. Some politicians in United States of America have built their personal career in certain manner based on rights and laws of Net Neutrality. Most important person who is supporting Net Neutrality is current President of United States of America, Barack Obama. In his election time he explained the problem: "What you've been seeing is some lobbying that says that the servers and the various portals through which you're getting information over the Internet should be able to be gatekeepers and to charge different rates to different Web sites...so you could get much better quality from the Fox News site and you'd be getting rotten service from the mom and pop sites," he went on. "And that I think destroys one of the best things about the Internet which is that there is this incredible equality there." (NEWS, 2011) Basically what President Barack Obama tried to say is that all the web sites should be equally rated and equally provided to all internet users and not charged differently. Otherwise, there would be a discrimination and unfairness. The good example is described above with Google Search Engine.
Who controls the Net Neutrality?
With a confidence, I would say that each country has different policy regarding the Net Neutrality. In: USA: Federal Communications Commission (FCC) Canada: Canadian Radio-television and Telecommunications Commission (CRTC). Since the topic Net Neutrality is very broad we will focus mainly on Net Neutrality issues in United States of America and just scratch the surface of Net Neutrality issues in other countries.
HISTORY
The first appearance of Net Neutrality could be connected to the Pacific Telegraph Act of 1860 signed by United States of America President James Buchanan where stated: "That messages received from any individual, company, or corporation, or from any telegraph lines connecting with this line at either of its termini, shall be impartially transmitted in the order of their reception, excepting that the dispatches of the government shall have priority." (Museum, 2011) What started in 1860 is actually the neutrality effect that we can compare with the philosophy of Net Neutrality today and exactly what President Barack Obama was promoting during his campaign. Another appearance of Net Neutrality issue happened in 1956 in law case between HUSH-A-PHONE Corporation, vs. United States of America and Federal Communications Commission (FCC). In this case the problem occurred with understanding of Telecommunication Act from 1934. The part of the case important regarding the Net Neutrality was: subscriber's right reasonably to use his telephone in ways which are privately beneficial without being publicly detrimental". (HUSH-A-PHONE CORPORATION vs. USA;FCC, 2011) That means that it was a right of a people for privacy and right to use the new component that was giving the option to users for private conversations. The debate was on a safety, but the real reason was actually the outflow of information that was given out in the public and now with a new technology that was not a case anymore. In recent history the appearance of Net Neutrality occurred in 2003 when University of Virginia Law School professor Timothy Wu published his "Network Neutrality, Broadband Discrimination ¾paper in which he pointed out the concern about Net Neutrality. In his paper, Professor Timothy Wu wrote: "The promotion of Network Neutrality is no different than the challenge of promoting fair evolutionary competition in any privately owned environment, whether a telephone network, operating system, or even a retail store. Government regulation in such contexts invariably tries to help ensure that the short term interests of the owner do not prevent the best products or applications becoming available to end-users. The same interest animates the promotion of network neutrality: preserving a Darwinian competition among every conceivable use of the Internet so that the only the best survive. (Wu, NETWORK NEUTRALITY, BROADBAND, 2011) Basically what Professor Timothy Wu addressed as potential problem was to define a broadband regime to reach the final goal and that is Net Neutrality. One of the proposed Net Neutrality laws that Professor Timothy Wu wrote in his paper was to ensure the quality of internet connections without any throttling or delays or any other practical deviation. Moreover, this particular problem I will discuss later in law case Federal Communications Commission (FCC) vs. Comcast in United States of America where the outcome after appeal was different than above mentioned. In year 2003, Professor Timothy Wu and Professor Lawrence Lessing wrote the letter to Federal Communications Commission (FCC) stating the same issues and proposing the same Net Neutrality lawA´s and putting a pressure on above mentioned institution to prioritize the issues and deal with the problem such as Net Neutrality. They focused mainly on the broadband users and the rights that they have. The accusations are coming from both sides. "Application developers accuse the cable industry of "discrimination" and "blocking content," and say it must be stopped. The cable industry accuses developers of manipulating governmental regulation to gain a competitive advantage." (Wu & Lessig, Ex Parte Submission in CS Docket No. 02-52, 2011) Does Federal Communications Commission (FCC) have legal rights on Net Neutrality control over Internet Service Providers (ISPs')? What are the laws that show the rightness to do such thing? In countries that I will mention in this paper there are government agencies but the laws are not complete and there need to be a lot of revising and completing the formal regulations.
NET NEUTRALITY IN UNITED STATES OF AMERICA
The concept of Net Neutrality is mostly spread in United States of America and that is why I will focus mainly of this country. At the moment the Net Neutrality is present just as a basic and broad term which leaves open to any telecommunication company to set the basic rate for each internet user on usage of any internet content or service. When I mentioned basic and broad term, I meant that there are no clear restrictions against charging more or less for different usage of broadband internet consumption. A lot of Internet Service Providers (ISPA´s) tend to manipulate the usage of services in a way to block certain internet ports or slow down intentionally the internet speed. That disables the consumer to surf the internet or certain web sites or make it impossible to download certain internet material. Recently, the things are starting to change due to a high pressure of internet consumers and internet service providers (ISPA´s).
Laws and Regulators
Federal Communication Commission (FCC is an independent agency of the United States government that has legal rights to control the issues with Net Neutrality. It regulates non- government use of the radio spectrum (radio and TV), all interstate telecommunication (wire, satellite, and cable), and all international communications that originate or operate in the United States of America with jurisdiction in 50 different states. There are two laws that control the actions of Federal Communication Commission (FCC) and those are: Telecommunication Act of 1934 and improved Telecommunication Act of 1996. As already mentioned, the jurisdiction covers the 50 states, District of Columbia, U.S. possessions. (Commission, Telecommunication Act of 1934, 2011) (Commission, Telecommunication Act of 1996, 2011) In 1996, at the 104th Congress of United States of America, the Senate and House of Representatives of United States of America imposed and empowered a new Telecommunications Act to improve and challenge the competition in a way to reduce prices and increase the quality of service to all customers in United States of America. Furthermore, they wanted to support the deployment of new technology. The parts of the Telecommunications Act that deal with Net Neutrality are mainly the section 706 and Section 230. In general the Section 706 (Advance Telecommunications Incentives) state: "The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment." (Commission, Telecommunication Act of 1996, 2011) Furthermore, inquire was: "The Commission shall, within 30 months after the date of enactment of this Act, and regularly thereafter, initiate a notice of inquiry concerning the availability of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) and shall complete the inquiry within 180 days after its initiation. In the inquiry, the Commission shall determine whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion. If the Commission's determination is negative, it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market. "(Commission, Telecommunication Act of 1996, 2011) The one part of the Section 230 (Protection for Private Blocking and Screening of Offensive Material) state the following: "The Congress finds the following: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. (2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. (3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. (4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation. (5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services." (Commission, Telecommunication Act of 1996, 2011) "It is a policy of United States of America to: (1) Promote the continued development of the Internet and other interactive computer services and other interactive media; (2) Preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation; (3) Encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services; (4) Remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material; and (5) Ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." (Commission, Telecommunication Act of 1996, 2011)
Case study
To best explain the situation with Net Neutrality in United States of America, it is necessary to discuss about the law case between Comcast Corporation as plaintiff and Federal Communication Commission (FCC) as defendant. Comcast Corporation was at the time largest US cable operator and Internet Service Provider. Everything started in 2008 when Federal Communication Commission (FCC) forced Comcast Corporation to stop blocking peer to peer traffic among customers. To be precise what Comcast Corporation was doing is slowing down intentionally the broadband connection when customers were using Bit Torrent to download or upload any internet material. After that decision the Comcast Corporation decided to appeal at the US Court of Appeals for the District of Columbia Circuit claiming that Federal Communication Commission (FCC) has no rights to forced them to do so. Comcast Corporation claimed that Federal Communication Commission (FCC) could not prove in right justice the jurisdiction over this violation and that the final order in 2008 was not enough reasoned. Therefore, they stated that there are two laws violated in a way of misinterpretation and abuse of not given authority: Section 706 and Section 230b of 1996 Telecommunication Act. The official statement was following: "Implying that this court has done what the Commission has not, the Commission points to a recent decision in which we wrote, "The general and generous phrasing of 706 means that the FCC possesses significant, albeit not unfettered, authority and discretion to settle on the best regulatory or deregulatory approach to broadband." Ad Hoc Telecomms. Users Comm. v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009). In that case, however, we cited section 706 merely to support the Commission's choice between regulatory approaches clearly within its statutory authority under other sections of the Act, and upheld the Commission's refusal to forbear from certain regulation of business broadband lines as neither arbitrary nor capricious. Nowhere did we question the Commission's determination that section 706 does not delegate any regulatory authority. The Commission's reliance on section 706 thus fails. As in the case of section 230(b) and section 1, the Commission is seeking to use its ancillary authority to pursue a stand-alone policy objective, rather than to support its exercise of a specifically delegated power". (United States Court of Appeals, 2011) Since I already explained two sections of the law, I would like to address the holdings of the court because this was the first case that was at the same time a turning point for Net Neutrality. Before the Comcast case, the Federal Communication Commission (FCC) has won all the other cases (Verizon, Google, and Turner). It showed that the laws and regulations regarding Net Neutrality in United States of America are not structured well enough and that something needs to be changed. The congress need to make clear the details about the obligations of Federal Communication Commission (FCC) as institution that is responsible for Net Neutrality. At the end, the US Court of Appeals for the District of Columbia Circuit ruled that: "Because the Commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any "statutorily mandated responsibility," Am. Library, 406 F.3d at 692, we grant the petition for review and vacate the Order." (United States Court of Appeals, 2011) At that point in time, the Federal Communication Commission (FCC) had no authority to regulate the internet for the purpose of Net Neutrality. The authority was taken based on different interpretations of the laws from Telecommunication Act. It is expected now from United States of America Congress to impose a new law and reclassify the rules that will allow Federal Communication Commission (FCC) to control the internet in any way.
NET NEUTRALITY IN CANADA
The Canadian Radio-television and Telecommunications Commission (CRTC) had in 2009, as a regulatory system in Canada, allowed to Internet Service Providers (ISP's) possibility to manage internet traffic but only under certain explicit circumstances. Before explaining the four circumstances by which Canadian Radio-television and Telecommunications Commission (CRTC) had in 2009, as a regulatory system in Canada, allowed to Internet Service Providers (ISP's) possibility to manage internet traffic, it is important to mention that: "As required under section 47 of the Act, the Commission must exercise its powers and perform its duties in accordance with any policy direction from the Governor in Council." (Canadian Radio-television and Telecommunications Commission, 2011) The Canadian Radio-television and Telecommunications Commission (CRTC) control the managing the traffic based on the following four considerations:
Transparency
"ISPs must be transparent about their use. Consumers need this information to make informed decisions about the Internet services they purchase and use." Basically, in case Internet Service Providers (ISP's) decide to slow down certain internet content or to block certain web site, the customers need to know that before they sign a contract.
Innovation
"The Commission recognizes that some measures are required to manage Internet traffic on ISP networks at certain points in the network at certain times." The innovations are favourable to improve the quality and quantity of internet service networking.
Clarity
"ISPs must ensure that any Internet traffic management practices (ITMPs) they employ are not unjustly discriminatory nor unduly preferential. The Commission has established an ITMP framework that provides clarity and a structured approach to evaluating whether existing and future Internet traffic management practices (ITMPs) are in compliance with subsection 27(2) of the Telecommunications Act (the Act)." That means slowing the traffic can't be done without prior approval of Canadian Radio-television and Telecommunications Commission (CRTC) approval.
Competitive Neutrality
"ISPs may continue to employ Internet traffic management practices (ITMPs) without prior Commission approval. The Commission will review such practices, assessing them against the framework, based upon concerns arising primarily through complaints by consumers." (Canadian Radio-television and Telecommunications Commission, 2011)
CONCLUSION
Net Neutrality is a "hot potato" that due to increase of usage of internet appeared to be a subject that calls for quick improvements. The debate is still who has the right and what institution is actually in charge of controlling the issues of Net Neutrality. In some countries, this regulation is well imposed, but for example in United States of America it is on United States Congress to clarify exactly the duties and obligations of Federal Communication Commission (FCC) so that everyone is safe and know its business.
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Negotiable Instruments under State and International Law
Negotiable Instruments 1 Part 1 Negotiable instruments are governed by both state and international law. Universally, the instruments are governed by the Universal Commercial Code (UCC) which defines negotiable instruments as unconditioned writing that promises payment of a fixed amount of money. Under the UCC checks are chiefly covered in article 3 and 4. The articles generally address check fraud litigation that emanate from check alterations, forging of the maker’s signature, payee’s check endorsement or either counterfeited checks created by dishonest third parties (Ames, 1972). In a bid to help protect and recover losses made by victims of fraud, the UCC by implication endorses a policy that the loss resulting from fraud is best placed on the party that is best placed to prevent the occasioning of the loss. This implicit policy gives light in Nicholson’s scenario that he has a chance of recovering his money back from either bank. In a real case scenario, a drawer’s check moves downstream from the drawer to the check’s payee. The check then moves from the payee to the drawee bank that in turn pays out the amount shown. The offender may at any time in the sequence enter the stream. In most case scenarios, since the offending party who commits the fraud often disappears into thin air without a trace, the claim involves the injured party against the drawee bank that processed unendorsed or forged check. The drawee bank is generally liable in cases of processed checks with forged drawer’s signature while the depository bank is liable for claims that involve the payee’s endorsement of the check (Ames, 1972). In Nicholson’s scenario, the depository bank is liable for processing a check that did not bear the payee’s endorsement. The bank depository bank had direct contact with Michael Kittinger who presented the fraudulent check. Thu,s the depository bank was in the best position to verify the check’s endorsement. The bank ought to have taken reasonable caution to establish that the check was not endorsed by the payee and was fraudulent thus making it liable in recovering Nicholson’s money. In cases of double forgery where the drawer’s signature and endorsement are forged or unauthorized, the drawee bank is generally liable as it is held responsible for verifying the drawer’s signature. Subsequently, Nicholson may recover his money by suing the depository bank for conversion. The law permits an instrument to be converted if other than negotiation, it is taken by transfer, from an entity that is not permitted to implement the instrument or a bank that makes payment to a person who is not at liberty to implement the instrument or obtain any payment. According to the law, in a conversion claim, the measure of damages is presumed to be instrument’s face value (Ames, 1972). To improve Nicholson’s chances of recovering his money back, the law ought to be revised in fraud litigation actions to give rise to a new cause of action for contributing to the recovery of the losses solely based on shared culpability. Most state laws permit a bank to only charge customer’s accounts for checks that are deemed to be ‘properly made.’ The provision in turn creates room for claims against banks that impose charges its customers for checks ‘not properly payable.’ The claim may constitute an action for a breach of contract claim against the bank by a customer for paying an item that is not ‘properly payable.’ However, the parties in the contract may decide by agreement the standards b which the bank’s responsibility maybe measured if the standards are not manifestly unreasonable (Ames, 1972). Additionally, to improve Nicholson’s chances of recovering his money courts ought to embrace the use of conversion in check fraud claims and that depository bank ought to be allowed to recover from upstream banks for errors that may result in shifting liability. Nicholson may also sue the bank for indemnification and negligence to recover his money back (Ames, 1972). Part 2 Under the auspices of the UCC Joey can indeed recover his money from the 24 Hour check cashing company. The drawee bank, in this case, the 24 Hour check cashing company that paid out money after the check was presented is generally liable for claims that involve drawer’s signature. The bank’s liability arises as the bank is liable for claims that involving the drawer’s signature. The bank is held responsible for verifying the signature and anything that may arouse suspicion on the drawer’s check (McKeehan, 2001). In Joey’s scenario, he was mugged by his assailant Stan leading to his bleeding on the check. Stan then took the check with blood stains on it and cashed it on the 24 Hour check cashing company where he withdraws all the money. The teller ignoring the blood stains on the check after verifying the check’s proper endorsement handed over the money to Stan. The availability of blood on the check ought to have raised reasonable suspicion about the check. The bank via its employee had a duty to verify the authenticity of the check which was glaringly brought into issue by the availability of blood stains on the check. However, the bank failed to act on its duty of exercising ordinary care and negligently issued the money to Stan even after presenting a check that was doused in blood. On a reasonable point of view, the issuance of the money was as a result of a negligent act that ought to have been prevented and led to the loss of Joey’s money. Because the negligent act was perpetrated by the bank’s employee, the doctrine of vicarious liability makes the bank liable for any wrongs done by its employees in the scope of their work. In recovering his money, Joey can bring a claim of negligence against the bank based on the bank’s negligent act (Whaley, 1974). Subsequently, Joey can also plead legal duress as his defense against the bank’s refusal to repay his money back. Scholars articulate that an individual can plead duress in a claim brought against a bank for recovery of money if the individual can prove that he or she was the subject of immense pressure caused by another person at the time of the deed’ execution. Joey signed the instrument under threat and subject to physical violence that was evidenced by his bleeding on the check presented to the 24 Hour check cashing company by Stan. If an entity is forced to sign an instrument without his or her will, the entity is not legally bound to honor the terms of the instrument. Joey, in this case, was not bound by the transaction as his endorsement was obtained under duress (Palmer, G. E. (2001). Under the auspices of the UCC which protects negotiable instruments, duress invalidates delivery. Delivery of the instrument as well as the transfer of ownership from one person to another is solely based on mutual consent and duress invalidates that consent, thus constituting an illegality. There must be an intention on the part of the holder, in this case Joey to relinquish ownership of his possession to Stan. However, this intention was absent in the instrument (Palmer, G. E. (2001). Stan’s endorsement of the check was forcefully sought which constituted an illegality. An illegality renders a contract void and thus the bank is under no duty to enforce an illegal contract and ought to refund Joey his money back (Palmer, G. E. (2001). References Ames, J. B. (1972). The Negotiable Instruments Law. Harvard Law Review, 241-257. McKeehan, C. L. (2001). Negotiable Instruments Law. Am. L. Reg., 50, 437. Palmer, G. E. (2001). Negotiable Instruments Under the Uniform Commercial Code. Michigan Law Review, 255-310. Whaley, D. J. (1974). Negligence & Negotiable Instruments. NCL Rev., 53, 1.
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Mooting 101
- Confidence - Even if you have butterflies in your stomach, try to speak with confidence. But remember, there is a fine line from being confident and sounding arrogant. Never argue back against the court. You are there to help and assist the court or tribunal and you want to try your best to put them at ease. The only way this can be done is through speaking comfortably in front of them.
- Eye Contact - Probably one of the most important and key criteria in which the judges would look on. DO NOT READ OUT YOUR SCRIPT. That is the worst thing you could do in any moots. Maintain eye contact with all the judges, try to pretend that you are having a conversation with the judges. A very formal conversation.
- Style - Speak slow and clearly. Take note, the judges are also human being, try to be as humble as possible and speak politely with giving proper road signage. If you speak too fast, this would only cause more confusion and this is not a good thing. Take breaks in between your points. This would allow time for you to prepare for any questions and getting ready for your next point.
- Organization - keep your notes tidy and organized. This would be a big advantage when judges atart asking you question and you have all your notes, submission and authorities organized. A tip from the seniors is that they either bind all their submission together with their submission so that it would be easier to refer to. Or you could separate them in binders as well. Chose the most comfortable way for you and go with it. It is also advised to print your submission on a single page and not cramping all in double sided or 4 pages shrink-ed into 1. Do not be cheap.
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Primary Duty of Maintenace in Islamic Law
- Introduction:
- Primary Duty of Maintenance:
- Wife may file suit in the family court with regard to maintenance.
- Wife can in addition file application in the office of chairman of union council.
- If your lover becomes disobedient.
- If she is incapable to perform matrimonial intercourse.
- If she will not live with the woman husband unjustifiably.
- If she gets to be widow.
- If she becomes able to maintain herself.
- In case of irregular or emptiness marriage.
- Where my wife been taken aside forcibly by someone else.
- In case the particular fault is on her own part.
- If my wife been imprisoned.
- Apostasy.
- PUNJAB CHANGE:
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The Law of Omission Liability
Critically evaluate whether the law in respect of omissions liability is in need of reform. Given that one may be liable for an offence as serious as murder by omission it is paramount that that liability is clearly defined.
- Introduction to Omission
- Offences capable of being committed by omission
- Introduction to Murder
Introduction
Traditionally criminal responsibility is based on what the defendant has done and also on state of mind when he did; this approach is summed up by Latin maxim. “Actus non facit reum nisi mens sit rea” Which means “No act can make a person guilty without prohibited state of mind”? For the purpose of analysing a crime, it may be stated that a crime can be divided into two parts called elements.
Firstly Actus Reus which is the outward conduct which must be proved against the accused and secondly Mens rea which is the state of mind the accused must be proved to have to have at the time of the conduct. Actus Reus is not just the commission of an offence but can also be an omission to act or a state of affairs. Thus inevitably, criminal conduct usually takes the form of some act.
However, where appropriate, liability may be based on an omission to act. “Although a failure to act may have serious consequences as an act and although any difference between acts and omissions is often denied the distinction is deeply embedded in law. The fact is no less inescapable because there is no precise test for distinguishing an act from an omission.
Human conduct may often be described in either positive or negative terms, although one way rather than the other will appear more natural… But there are difficult cases and their very existence leads to the imposition of liability for omissions.
A man is in his spring cart; the reins are not in his hands, but lying on the horse’s back. While the horse trots down a hill a young child runs across the road in front of the cart is knocked down and killed.
Had the man held the reins he could have pulled the horse up. Did he kill the child by driving the cart recklessly or by recklessly failing to drive the cart?” A question may be raised as to what is ‘an omission?’ it may be described as Defendant’s conduct as ‘not doing’. According to Ashworth omission is only apply in failing to do things which there is some kind of duty to do, or at least things which it is reasonable to expect a person to do (on the basis of some relationship or role).
Therefore generally there is no liability for an omission to act because it would be impractical to impose such a liability unless the defendant was under a legal duty to take positive action. A moral duty will not be sufficient.
For example, suppose that Defendant comes out of a club late at night and sees that, across the road, Victim is being kicked and punched by a number of men. If Defendant does not attempt to intervene or, say, summon the police, we will have little difficulty in describing his conduct as not helping, not assisting, omitting to help (of course, unless D is a police officer, it is unlikely that he could be guilty of any offence for failing to help). There is no general liability for “mere” omissions. Unless under a duty to act, D will not be liable merely because he fails to go to the aid of a person whom he knows to be drowning in a pool. Equally, as indicated earlier, apart from possible obligations to intervene to prevent a breach of the peace, Defendant (if not a police officer) will not commit a crime merely because he stands by and watches a crime being committed.
Before a crime can be committed by an omission, certain requirements must be satisfied. Adhering to the “social responsibility view”.
Ashworth stated that it may be fair to place citizens under obligations to render assistance to other individuals on certain situations’ although they are not committed to the idea that there should at all times always be a duty to help, … it lead them to attack the argument that there is general moral distinction between failing to perform an act with foreseen bad consequences and performing an act with identical bad consequences. Thus it may be stated that a moral duty will not be sufficient. Thus it may be stated “a crime can be committed by omission, but there can be no omission in law in the absence of a duty to act.
The reason is obvious. If there is an act someone acts but if there is an omission everyone (in a sense) omits. We omit to do everything in the world that is not done. Only those of us omit in law who are under a duty to act.
As result there are circumstances recognized by the law which creates a duty to act and failing to do so or an omission may give rise to criminal liability. For example If Defendant were to see a child (P) were drowning in a pool Defendant would be under no legal duty to prevent this unless the child was his son or if Defendant was pool attendant employed to ensure the safety of swimmers.
There are several exceptions to the general rule, where the defendant will be under a positive duty to act. I.e.
there can be a liability for omission if there is a duty to act provided that; the omission is substantial and operative cause (Causation). According to Ashworth “the criminal law should be reluctant to impose liability for omission except in clear and serious cases… the distinctive argument is that our duties towards other individuals should be confined to duties towards those for whom we have voluntarily undertaken some responsibility… we should owe positive duties (e.g. to render assistance, to support) only to a circumscribed group of people with whom there exists a special relationship”.
Before further proceeding with duty to act it is important to state the offences which have been interpreted by the courts as capable of being committed by omission which include Murder; Gibbins & Proctor, gross negligence manslaughter; Pittwood[7] and criminal damage; Miller are included. Unlawful act manslaughter is excluded; Lowe but there are doubts about assault/battery (contrast Fagan v Metropolitan Police Commissioner[10] with DPP v K, and see also, DPP v Santana-Bermudez and the general approach in Evans, and more serious offences against the person, such as unlawful and malicious wounding or infliction of grievous bodily harm.
Similarly, the definition of an attempt in the Criminal Attempts Act 1981 (an ‘act’ more than merely preparatory) may make it impossible to commit an attempt by an omission, whilst in the Fraud Act 2006, fraud by false representation (s2) requires D to make a representation and the offence of dishonestly obtaining services under s10 requires proof of a dishonest act.
At this point it is important state as stated above that the courts have long accepted without debate that murder and manslaughter are capable of commission by omission. Since the given question emphasize the offence of murder in relation to omission it is significant to state brief introduction to the offence of murder. Murder is unlawfully killing of human being with malice aforethought.
For a person to be liable under murder actus reus of the offence require Unlawfully killing a human being. Further analyzing the definition Unlawful means killing is usually unlawful (Killing in self defense, killing in a course of lawful operation Re A is lawful.) Killing, the conduct of the defendant must cause the death. And the conduct should be a cause not the cause of death.
A cause is something, which has made a significant contribution to the victim’s death. Traditionally it is said that a cause must be both operative and substantial. Death in the context means brain stem death; Airedale NHS trust v Bland[15] – I.e. terminating life support to a patient who is brain dead does not kill him, because he is already dead.
And the most obvious being that it should be a human being, and a person or a human being includes any child born alive.
The mens rea of the offence requires an intention to kill or intention to do grievous bodily harm. Intention can be direct or oblique, if defendant foresaw death or grievous bodily harm as a virtual certainty a jury may find it easy to infer that he intended death or GBH; Nedrick. At this point it may be stated that the first requirement if liability is to be imposed for an omission is that, in principle, the crime can be committed by an omission and second requirement is Defendant was under a duty to act third requirement is that the defendant’s omission must be a breach of his duty and finally Defendant’s breach of duty by the omission must cause the prohibited consequence.
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Option Contracts
- Clearing the ambiguity and removing the deadlock
- Adding Some more Confusion
- Controlling Speculation
- Existing Contracts
- RBI Perspective
[1] Available at https://www.sebi.gov.in/acts/contractact.pdf [2] Notification S.O. 184 (E) dated March 1, 2000 [3] Ankit Guha, Are Option Contracts Enforceable, available at https://www.legallyindia.com/20090831159/Legal-opinions/are-option-clauses-actually-enforcable. [4] The Notification No. LAD-NRO/GN/2013-14/26/6667 dated October 3, 2013 availableat www.sebi.gov.in [5] Niskalp Investments and Trading Co. Ltd. vs. Hinduja TMT Ltd. [[2008] 143 Comp Cas 204 (Bom)] [6] SEBI Informal Guidance in the matter of Vulcan Engineers Limited dated May 23, 2011 availablehere https://www.sebi.gov.in/takeover/vulcanlof.pdf [7] MCX Stock Exchange Limited vs. SEBI, 2012 (114) BomLR 1002 [8] in the matter of Vulcan Engineers Limited dated May 23, 2011 availablehere https://www.sebi.gov.in/takeover/vulcanlof.pdf [9] MCX Stock Exchange Limited vs. SEBI, 2012 (114) BomLR 1002 [10] Nishith Desai Associates, SEBI Permits options and Pre emptive Agreements, available at https://www.mondaq.com/india/x/270684/Shareholders/SEBI+Permits+Options+And+Preemptive+Rights+Arrangements
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Nigerian Human Rights
CHAPTER 1 1.1INTRODUCTION Human rights in most cases are discussed as synonyms with constitutional rights. This could be as a result of general conception is that every right can be enforced in law. The word ‘right’ means that to which an individual has a just and valid claim, whether it be land, a thing or the privilege of doing something.
Thus, human rights are rights which all people (mankind) everywhere and mostly have by advantage of being mortal and coherent individual. These rights are characteristic in every mortal creature by advantage of his humanity. These rights hold a wide diversity of civil, political, economic, social, cultural, group unanimity and progressive claims which are considered indispensable to a significant actuality. While the constitution is a body of laws on the foundation of which a state (country) is governed. In Nigeria, the constitution is the highest law on the foundation of which the legitimacy of other laws is resolute. It is the grudnorm of the country’s body of law.
[1] Rights in the constitution are enforceable in agreement with the requirements of the constitution unlike common human rights some of which are not justifiable and constitute mere aspirations of the citizens. In kuti and ors v. A.G Federation
[2] Oputa Jsc emphasized that: ‘’Not every civil or legal rights is fundamental rights. The model and notion of essential rights both derive from the premise of the unassailable rights of man-life, freedom and the pursuit of happiness.
Developing nations with written constitutions have cherished in such constitutions some of the rudimentary human rights, to each right that is thus considered fundamental profoundly spelt out.’’ Thus in Nigeria, those rights that are considered vital to human beings is itemized in chapter IV of the constitution of Federal Republic of Nigeria which was accepted on May 1999. The constitution is the basic and ultimate law of the country and any supplementary law varying with its requirements is negated to the degree of its inconsistency[3]. In chapter IV the constitution assures vital rights such as the right to life, admiration for self-esteem of the individual, as well as the sanction of torture, right to personal liberty, right to privacy, liberty of thought, integrity and religion, freedom of appearance, liberty of association, liberty of movement, right to non-discrimination as well as the right to assets. It also offers a right to a remedy in law for any violations[4]. 1.2BACKGROUND OF THE STUDY Based on the adoption of universal pronouncement of Human Rights and the incorporation of vital human rights in our constitution, basic fundamental human rights have been created and which should be respected by all men in the Nigerian society. Unfortunately, many people in our society face untold hardships day in day out because they are denied their basic rights which normally the constitution of Nigeria would enforce even though they are suspects but because they are unaware of these rights they are rarely or never claim them.
However, those who are saddled with these responsibilities fail to do their work properly. In this respect, this thesis will discuss the basic rights of citizens in agreement with the 1999 constitution of Nigerian and how such rights are infringed enforced and the challenges faced in the process of enforcement of human rights in Nigeria. 1.3AIM AND OBJECTIVES The fundamental human rights under the 1999 Nigerian constitution has one way or the other been infringed, which in some cases can be linked to citizens ignorant of their basic rights as provided for in the constitution. Therefore, the aim and objectives of this study is to state and expansiate the rights of the citizens and also the enforcement and challenges of such rights in accordance to chapter IV of the 1999 constitution. 1.4SIGNIFICANCE OF THE STUDY Ignorance as is been said is a disease, Nigerians generally are ignorant of their legal rights despite the fact that it has been boldly written and spelt out in the constitution of the country. Most Nigerians suffer civil wrongs and let it get away without anything be done to it. This is as a result of lack of knowledge of their basic rights. Thus, the purpose of this thesis is to shed more light on the awareness of basic fundamental human rights of citizens in accordance to the provisions of the 1999 Nigerian constitution. These rights can be found in chapter IV of the constitution which states the rights of the citizens of Nigeria. 1.5SCOPE OF THE STUDY The topic of this thesis is The Fundamental Human Right in Nigeria under the chapter IV of the 1999 constitution of the Federal Republic of Nigeria.
This thesis is however divided into five chapters; chapter one of this thesis is an introduction to the thesis and it comprises of the background, the aims and objectives, the significance and the structure of the thesis. Chapter two talks about the concepts of human rights, the historical development of human right in Nigeria and the distinction between human rights and fundamental human rights. Chapter three expatiates further on the provisions of chapter IV of the 1999 constitution which are civil and political rights, economic, social and cultural rights, the right to sustainable development, peace and a protected environment, the right of women, children and young persons. Chapter four surveys the enforcement of fundamental human rights i.e. Individual and Institutional enforcement of fundamental human rights of citizens and Boko haram. Then finally, chapter five summarizes the thesis, makes observations, conclusions and recommendations if any. 1.6STRUCTURE OF THE STUDY This thesis will adopt a mixture of analytical and historical approach. It will be analytical in the sense that there will be an exploration of what is termed as the existing law as it relates to fundamental human rights in Nigeria.
This will include the use of statute books, the judgment of superior courts and English law which are applicable in Nigeria, such as the rules of common law, Doctrine of Equity and status of general applications in force in 1900. It will be historical in the sense that evolution of fundamental human rights traced back so as to know the reasons behind the evolution of these rights. Also, this thesis will make use of primary and secondary sources of law. Primary sources refer to; Administrative decisions and ruling, constitution,, Judicial reports. Managerial rules and regulations among others, while secondary sources refer to constitution, convention and documents, law dictionaries, periodicals source books of historical documentation. CHAPTER 2 2.1CONCEPT OF HUMAN RIGHTS Human right in the world today is the most widely talked about issue which cannot be taken lightly.
The word ‘Human Right’ is specifically qualified as civil or legal, absolute or inalienable and fundamental or universal right. Talking about inalienable right, conferring to the dictionary are rights in accordance to common law that can’t be taken away, denied or transferred i.e. a right which is an integral part of an individual (human dignity) which cannot be taken away stricto-sensu
[5] because the taking away of such rights would be tantamount to human degradement. In the case of Thomas& others v. Timothy Olufosoye
[6] it was held that; Literally,‘’right ‘‘means an action or conduct which Is morally good according to the law. so, whoever keeps the Law does right and whoever violates the law is said to have done wrong. Also, human right is based on the adoption of natural law that posits that there are certain unchangeable rights that belongs to man everywhere and pertaining to man’s security which should be secured and guaranteed to every person. Such rights are rights that naturally belongs to man simply because he’s a man[7]. The basic human rights can be found in chapter IV of 1999 constitution of the Federal Republic of Nigeria[8], which includes all the basic rights i.e the right to life, right to personal liberty ,right to fair hearing etc as it’s seen in chapter IV as earlier stated. Also, there are international instruments on human rights which are: Magno –carta petition of rights 1628; Bill of Rights 1689; Virginia Declaration of Rights 1776; French declaration of Rights of Man and of the Citizens 1789;American Declaration of Independence 1776; Universal Declaration of Human Rights and Freedom 1950 ;American Convention for the protection Human rights and liberty 1959; Written Constitution of several independent contemporary states and states liberated from colonialism; African charter on Human and people’s rights 1981[9]. In the case of West African Examination Council(WAEC) v OmodoLapo Yemisi Adeyanju[10]fundamental human right is described as a right guaranteed in the Nigerian Constitution and can be found entrenched in a particular chapter therein : chapter IV of the 1999 constitution on Federal Republic of Nigeria. Human Rights as defined by black’s law dictionary is somewhat that is due to an individual by just claim, legal guarantee, morality or ethics, legally implementable claim that another will or will not do to a specified act and a power privileged or immunity safeguarding a person by law[11]. According to Business dictionary,human rights are defined as fundamental rights which humans have by the element of being human, and that are neither spawned nor can be rescinded by any government[12].Also, according to John Locke (1632-1704)[13], human right was defined as ethical claims or prerogatives, to life, freedom, and property. The paramount known manifestation of human rights is the Virginia Declaration of Rights 1776 which declares that all mankind are by nature similarly free and independent and have positive characteristic rights, whereby, in the event that they enter a state of society, they can’t, by any deny their posterity (fundamental rights). The notion of human rights has become a global issue with the beliefs of democratic societies that every human regardless of sex are created equal meaning that they possess equal rights. It has been observed that opinions of people based on race, personal belief or social standing also affect the structure of how human rights that is to be accepted.
This has however made the accomplishment of equal rights to remain a constant struggle and the legitimacy and of human rights continue to be the focus of discussion in values and politics. In furtherance, the notion of human rights has however been viewed in different aspects, that is political, sociological and philosophical perspectives. When we talk about socio-politically, it regards human rights as universal rights, or status irrespective of legal jurisdiction and other limiting factors, such as nationality and culture which are naturally conferred on human beings. (Wikipedia 2006). From my own perspective, human rights are rights that human beings are naturally entitled to. For instance, the right to liberty of speech, where every person has the right to express themselves in as much as it is not infringing other persons rights of family and private life whereby, when one person is trying to express himself and thereby intruding in another person’s private matters through speech.
Also, looking at the right to freedom of movement where every citizen is naturally entitled to move throughout a country freely and reside in any part of the country, and also right to dignity of person to mention but a few. ‘’Philosophical perspective of human rights’’– There has been different theoretical approach towards the explanation of how human rights has turn out to be part of social expectations. According to Yusuf[14], he stated that the biological concept studies the related propagative benefit to human social conduct based on understanding humanity in the perspective of natural selection. Other philosophies embrace that human rights classify ethical conduct, which is a human social invention established by a process of biological and social development, or as a sociological design of rule setting (the sociological theory of Weber). This approach according to ‘Rawls’ comprises the notion that those in a society agree to take rules from genuine authority in exchange for security and economic benefit. The natural theory is built on natural moral order which is based on religious precepts, i.e. it is assumed that everyone has mutual understanding of justice, or the belief that moral behavior is a set of accurately valid remedies. When we look into legend, literature, religion and political thoughts, justice becomes socially constructed over time into complete webs of socio interaction striving toward a social order in which human beings are treated fairly.
However, some religious societies still tend to justify human rights through religious argument. In furtherance, the social evolution concept is based on human requirements and struggle that co-joins an analysis of the norm creation process. Here, constitutive process of authoritative decision making takes place such that the norms may take the form of law through a particular form of authoritative decision making of institutions associated with a legal system. Through this progress, culturally bound behaviours that are inconsistent with contemporary human rights are weed out thereby making culturally particular norms adopt to evolving human rights values as provided for in the constitution and also international instruments. 2.2HISTORICAL DEVELOPMENT OF HUMAN RIGHTS IN NIGERIA In Nigeria ,Human Rights came into effect with the advent of colonial rule. Initially in Nigeria, human rights and basic freedom were recognized in the habitual Nigerian societies. The idea of rights was not conceived in the modern notion.
Values such as right to family, kin and clan membership, autonomy of thoughts, speech, belief and association, right to reveal in private property and right to participate in authority of the affairs of the society were carefully guarded. In the northern part of Nigeria where the sharia legal scheme was firmly rooted, human rights and fundamental liberties were precisely secure and guaranteed in agreement with the tenets of Islam which integrity and fairness are in high esteem. Imperialism basically eroded traditional values and deprived Nigerians of political and economic rights. In 1922 restricted permission was introduced for the first time in Nigeria by the British colonial political rights in the pre- independence constitutions terminating in the Lyttleton constitution of 1954 through the Clifford constitution. By 1958, the British colonial government inaugurated a commission headed by Sir Henry Willink to look into the fear of domination of the minority groups and how the fear could be dispelled. This and several other factors led to the entrenchment of justifiable rights in the country’s independence of 1960. In recent sense the creation of fundamental human rights in Nigeria could be traced to the 1960 Independence Constitution and those that followed it. Fundamental ideas and directive philosophies of state policy in chapter II [15]conjointly recognized Economic, Social and Cultural Rights. The basic aim of the protection of human rights provisions in our constitution was to create a society which guards political freedom as well as the social and commercial well-being of Nigerians. Regardless of Fundamental Rights and liberties in the Nigerian constitution since 1960, the country has had the adversity of military disruptions.
This had profound and far-reaching effects on the promotion and protection of democratic values and fundamental freedoms among Nigerians. Before the emergence of democracy in Nigeria in 1999, successive military regimes systematically violated the rights of Nigerians claiming impunity. This ambiguous denial of human rights in Nigeria reached its peak between November 1994 and June 1998. The profound situation of human rights under this regime resulted in Nigeria becoming a pariah state at the international arena and the country was put on the agenda of the United Nations commission on human rights for the consecutive years. Nigerians, led by human civil society groups and professional bodies engaged the military in the struggle for a better society governed by constitutionalism, the rule of law, social justice and respect for human rights. This finally resulted in the 1999 constitution of the Federal Republic of Nigeria and the emergence of democracy and democratic institutions in 1999. 2.3THE DIFFERENCE BETWEEN HUMAN RIGHT AND FUNDAMENTAL HUMAN RIGHT. There has been a question asked severally whether there’s really a difference between human rights and fundamental human rights. In Human right forum, part of the international law issues category, some stated that ‘’human rights are basic rights to which all humans have an entitlement.
They are national and global in nature. On the opposite, fundamental rights are rights given to the people of a country by their constitution which are restricted to the country. Also, another stated that human rights are basically rights that are inherent to us i.e. rights that belong to us since we were born which nobody can impose restrictions on such right, while fundamental human rights are rights that are absolute and also rights that are being restricted.
Another member also stated that human rights are entitlements one gets to enjoy once an individual is born. They are right to life and right to movement. Also Some human rights are considered as fundamental such as right to movement. The fact remains, fundamental rights have constraints, examples comprise legal right like right to sue and to be sued economic rights such as right to fair wages. In my own opinion, fundamental human rights are rights that differentiate a citizen from a resident or a visitor.
They are the basic rights necessary for your existence as a member of a particular state. They determine your relationship and responsibilities with the state and fellow citizens, residents and tourists including the confines of such relationships and duties. Human rights on the other hand are those inalienable rights that are possessed by human beings. Sometimes fundamental and human rights do overlap as the latter serves as foundation to the previous. The dispute of perspective cannot be detached in the determination of fundamental rights but human rights enjoy a sort of universal context.
For instance the right to live is universal but the right to live in a state is fundamental according to the rules set up by the state to guide such right. However, fundamental rights are similar to human rights in a way but are different in the sense that they have legal sanction and can be enforceable in the law court. However, human rights don’t require such holiness and can’t be enforced in courts. Then there is difference of universal appeal because fundamental rights are country specific that have been made keeping in mind the history and culture of a country, however human rights are intended in such a way that they are even more basic in nature and apply to all human beings across the world without any discernment. The right to a noble human life is one such human right which cannot be questioned whether you are in us or in a poor African country. Also, according to Ignateiff[16], human rights itself concludes by bringing a moral obligation claim i.e. a deontological claim concerning that which we owe to human beings and which is also linked to a moral theory, and probably also to an anthropology[17]. A theory of ‘’fundamental rights’’ in contrast obliges us to focus more on that which is capable of enhancing and contributing to the existence of a society or to recommend them as that which could or should do so. This thus involves analyses which are expressed in moral obligation terms, but in ethical terms.
[1]S.1 (3) 1999 constitution of Federal Republic of Nigeria.
[2] (1985)8 NWLR (pt 6) 211
[3] Section 1(3) of the constitution [4]Article 46(1) of the constitution. ‘Any person who alleges that any of the provisions of this chapter has been is being or likely to be contravened in any state in relation to him may apply to a high court in that state for redress.
[5] Strict sensu means in a narrow sense.
[6] (1966) 1 ALL NLR 178
[7] Human rights in Nigeria P.1 [8]1999 constitution of Federal Republic of Nigeria. [9]Obaseki A.O the judiciary and human rights (1992) Nigerian Institute of International Affairs, Victoria Island, Lagos part 1. [10] (2008) ALL FWLR (Pt 428) p. 206,209 [11] Black laws dictionary seventh edition p.1323-1324 [12] Business dictionary .com [13] Scottish philosopher [14]Department of Arts and social sciences Education, University of Ilorin, Nigeria. [15] Chapter II of 1999 constitution of the Federal Republic of Nigeria [16]Ignateiff, Human Rights as politics and idolatry. [17] This deontological status is in turn understood in different ways. For example, in the sense proposed by Michael perry for human rights: identifying ‘’what ought to be done and what ought not to be done for human beings’’.( M. perry,The idea of Human Rights, oxford 1998,56)
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Organised Crime in an Increasingly Globalised World
- Bean, Drugs and Crime, (William, 2002)
- Castells, End of Millennium, Volume III: The Information Age: Economy, Society and Culture, (Wiley, 2000)
- Edward and Gill, Transnational organized crime, Perspectives on Global security, (Routledge, 2003)
- Pearce and Woodiwiss, Global Crime Connections, Dynamics and Control, (Lumiere Press, 1993)
- Quiggin, Seeing the Invisible: National Security Intelligence in an Uncertain Age, (World Scientific Publishing, 2007)
- Sheptycki, Transnational & Comparative Criminology, (GlassHouse Press, 2005)
- Aguilar-Millan,Foltz, Jackson, andOberg, ‘The GlobalizationofCrime’,(2008) The Futurist, < https://blackboard.angelo.edu/bbcswebdav/institution/LFA/CSS/Course%20Material/BOR3304/readings/The%20Globalization%20of%20Crime.pdf>, accessed 16 March 2014
- Farer, ‘Fighting Transnational Organized Crime: Measures Short of War’, in Tom Farer, (ed.), Transnational Crime in the Americas, (Routledge, 1999).
- Mittleman, ‘The Dynamics of Globalization’, in James Mittleman, (ed.), Globalization: Critical Reflections, ( Lynne Rienner Publishers, 1997), 6-10
- Williams, ‘Organizing Transnational Crime: Networks, Markets and Hierarchies’, (1998) Transnational Organized Crime, Vol.4, Nos. 3 and 4, 57-86.
- UN Office on Drugs and Crime (UNODC), The Globalization of Crime: A Transnational Organized Crime Threat Assessment, 17 June 2010,< https://www.refworld.org/docid/4cad7f892.html> accessed 15 March 2014
[1] James Sheptycki, Transnational & Comparative Criminology, (GlassHouse Press 2005) p.215 [2] UN Office on Drugs and Crime (UNODC), The Globalization of Crime: A Transnational Organized Crime Threat Assessment, 17 June 2010,< https://www.refworld.org/docid/4cad7f892.html> accessed 15 March 2014 [3] Sheptycki (n.1). [4] UNODC (n.2), p. 18. [5] Philip Bean, Drugs and Crime, (William 2002) p.104-5 [6] Frank Pearce and Michael Woodiwiss, Global Crime Connections, Dynamics and Control, (Lumiere Press, 1993) p.45 [7] Manuel Castells, End of Millennium, Volume III: The Information Age: Economy, Society and Culture, (Wiley, 2000), p. 361. [8] Tom Farer, ‘Fighting Transnational Organized Crime: Measures Short of War’, in Tom Farer, (ed.), Transnational Crime in the Americas, (Routledge, 1999). p. 251 [9] Pearce and Woodiwiss (n.6) p.46-7 [10] Bean, (n. 5) p.100 [11] Thomas Quiggin, Seeing the Invisible: National Security Intelligence in an Uncertain Age, (World Scientific Publishing, 2007), p.55. [12] Adams Edward and Peter Gill, Transnational organized crime, Perspectives on Global security, (Routledge 2003), p.39.
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Liability Claim House
Liability Claim House
Question One
In order to determine whether Hermione will be successful in a claim against Harry, the law of tort is examined. A tort may be defined as the breach of a legal duty owed, independent of contract by one person to another, for which a common law action for unliquidated damages may be brought. If we take into consideration the Hedley Byrne v Heller (1964) case where the claimants were an advertising agency, who had been asked by a firm called Easipower Ltd to buy substantial amounts of advertising space on their behalf. To make sure their clients were creditworthy, Hedley Byrne asked their own bank, the National Provincial, to check on them. National Provincial twice contacted Heller, who were Easipower’s bankers and were backing them financially, to inquire about Easipower’s creditworthiness. Heller gave favourable references on both occasions, but in each time included a disclaimer – ‘without responsibility on the part of this Bank or its officials’. The second inquiry asked whether Easipower was ‘trustworthy, in the way of business, to the extent of £100,000 per annum’, and Heller answered that Easipower was a respectably constituted company, considered good for its ordinary business engagement. This message was conveyed to Hedley Byrne, and , relying on that advice, they entered into a contract with Easipower Ltd. Easipower later went into liquidation, leaving Hedley Byrne to pay the £ 17,000 due to companies from whom they had bought advertising space. Hedley Byrne claimed this amount from Heller. In view of the words disclaiming liability, the House of Lords held that no duty of care was accepted by Heller, and none arose, so the claim failed. However, the House also considered what their conclusion would have been if no words of disclaimer had been used, and this is where the importance of the case lies. Their Lordships stated obiter that in appropriate circumstances, there could be a duty of care to give careful advice, and that breach of that duty could give rise to liability for negligence. The greatest impact of Hedley Byrne v Heller has undoubtedly been in the sphere of professional work, because it is here that one person’s reliance on advice from another is most likely to be regarded as reasonable. In fact, the principle has been extended to situations in which there is no apparent ‘advice’ at all, but where the professional adviser can be said to have assumed responsibility for the service which he provides, hence the Hedley Byrne principals. The House of Lords laid down a number of requirements which claimants would need to satisfy in order to establish a duty of care under Hedley Byrne. There must be a ‘special relationship’ between the parties; a voluntary assumption of responsibility by the party giving the advice; reliance by the other party on that advice or information; and such reliance must be reasonable. Lord Reid made it plain that the ‘special relationship’ requirement meant that Hedley Byrne only covers situations where advice is given in a business context. Advice given off-the-cuff in a social setting will therefore not, as a rule, give rise to a duty of care. In some cases it has been suggested that even in a business context, the required relationship will only exist where the defendants are in the business of providing the actual type of advice that the claimants sought. This was held in Mutual Life and Citizens Assurance v Evatt (1971), where an insurance company had carelessly given false information about a company in which the claimant had invested. The Privy Council held that there was no duty of care; the defendants were in the business of providing insurance, not providing investment advice, and could not be liable for such advice. A majority of the court held that Hedley Byrne should be restricted to cases involving people whose profession centres around giving of advice, such as accountants, solicitors and surveyors. In Smith v Eric S Bush (1990), the claimants were the purchasers of a house which had been negligently surveyed by the defendants, and was worth much less than they had paid for it. The survey had been commissioned by the building society from which the claimants had sought a mortgage, as part of its standard practice of ensuring that the property was worth at least the money that was being lent. However, such surveys were routinely relied upon by purchasers as well, and in fact purchasers actually paid the building society to have the survey done, although the surveyors’ contract was always with the building society. The House of Lords held that in such situations surveyors assumed a duty of care to house purchasers; even though the surveys were not done for the purpose of advising home buyers, surveyors would be well aware that buyers were likely to rely on their valuation, and the surveyors only had the work in the first place because buyers were willing to pay their fees. However it should be noted that this did not impose a particularly wide liability: the extent of the surveyors’ liability was limited to compensating the buyer of the house for up to the value of the house. Therefore, based on the above cases and principals, it is apparent that the surveyor was negligent and that Hermione will definitely be successful in a claim against Harry.Question two
An employer will only be responsible for torts committed by their employees is those torts are committed in the course of the employment, rather than, as the courts have put it, when the employee is on a ‘frolic of his own’ (Hilton v Thomas Burton (Rhodes) Ltd (1961) ). The tort will have been committed in the course of employment if the act which comprises the tort is one which has been authorised by the employer, even if the employee performs the act in a manner which was not authorised by the employer. An employer may also be liable for acts done by employees (but not independent to contractors) where their behaviour has not been authorised, but is sufficiently connected with authorised acts that it can be regarded as merely an improper way of committing the authorised acts. In the past this has allowed for a wide interpretation of the phase ‘in the course of their employment’. In Century Insurance v Northern Ireland Road Transport (1942), the defendants’ employee, a petrol tanker driver, was unloading petrol from his tanker to underground storage in the claimant’s garage, when he struck a match to light a cigarette and then dropped the lighted match on to the ground. This caused an explosion, damaging the claimant’s property. The defendants were found to be vicariously liable for his negligence, on the basis that what he doing at the time was part of his job, even if he was doing it in a negligent way. It was agreed that the match was struck for his own purposes, not those of the employer, but nevertheless, in the circumstances in which it was done it was still the course of his employment. In the case of Storey v Ashton (1869), some employees had finished delivering wine for their employer and were on their way back after their official work hours were over. They decided to take a detour to visit a relation of one of the employees. On the way there they negligently ran over the claimant. His attempt to sue their employer failed as they were treated as being on a ‘new and independent journey’ from their work trip at the time of the accident. An employer who expressly prohibits an act will not be liable if an employee commits that act. However, the employer may be liable if the prohibition can be regarded as applying to the way in which the job is done, rather than to the scope of the job itself. In Limpus v London General Omnibus Co (1862) a bus driver had been given written instructions not to race with or obstruct other buses. He disobeyed this order, and while racing another bus, he caused a collision with the claimant’s bus, which damaged it. The court held that he was doing an act which he was authorised to do that is driving the bus in such a way as to promote the defendants’ business. This meant that he was within the course of his employment, even though the way he was doing the job was quite improper and had been prohibited. The defendants were vicariously liable. In the cases of criminal acts alleged to be done in the course of employment, tend to take the form of either violent assaults or property offences such as theft. In the case of assaults, the courts are very unlikely to find that the employee acted in the course of employment. Because vicarious liability makes the employer and employee joint tortfeasors, each fully liable to the claimant, an employee who is sued on the basis of vicarious liability is entitled to sue the employee in turn, and recover some or all of the damages paid for the employee’s tort. This is called an indemnity, and the employer’s entitlement to sue may derive either from the provisions of the Civil Liability (Contribution) Act 1978, or in common law under the principle in Lister v Romford Ice and Cold Storage (1957). Vicarious liability obviously conflicts with the basic principle of tort, that wrongdoers should be liable for their own actions. It has been pointed out that the employer is in control of the conduct of employees, and therefore should be responsible for their acts. While this may have persuasive in the past, in modern industrial society, with its increasingly sophisticated division of labour, it is very difficult to believe. This therefore contributes to the reasons why vicarious liability is imposed. The other reasons include the benefit of work done by employees to employers, prevents negligent recruitment, promotion of care by employers to employees if imposition of liability is on employers and an employer will be in the best financial position to meet a claim, either because its resources are greater than those of an individual employee, or, more often because it has relevant insurance cover. Therefore based on the above an employer is always liable for torts committed by the people that he employs to carry out work, unless as in the case of Storey v Ashton mentioned above.Question Three
The tort of nuisance sets out to protect the right to use and enjoy land, without interference from others. There are actually three types of nuisance, private, public and statutory. The tort of private nuisance essentially arises from the fact that, whether we are out in the countryside or in the middle of a city, we all have neighbours and the way they behave on their land may affect us on ours. The essence of liability for private nuisance is an unreasonable interference with another’s use or enjoyment of land, and in assessing what is reasonable, the courts will try to balance each party’s right to use the land as they wish. In Murdoch v Glacier Co Ltd (1998) the claimant lived near to the defendant’s factory. She complained that a low droning noise which came from the factory at night was preventing her from sleeping. Her evidence included a report from the World Health Organisation stating that this type of noise had been proved to disturb sleep if it went above a particular level, and the noise from the factory was measured and found to be at or above this level. The Court of Appeal held that the trial judge was right in holding that this did not constitute an actionable nuisance considering the area in which the claimant’s house was situated, which was among other things close to a busy bypass, and considering that fact that no other local residents had complained about the noise. Based on the above principal, the locality of the Black’s house would impact on the decision made by the court, the Black’s purchased the house knowing the location, therefore Mr and Mrs Black will be unsuccessful in a claim for damages or loss of enjoyment of the land against the owners of the factory, but may be successful in attaining an injunction. An injunction is the main remedy for nuisance and it makes the defendant stop the activity which is causing the nuisance for a specific time period. The degree of the injunction will depend entirely upon the decision taken by the court of law. In St Helens Smelting Co v Tipping (1865), where the fumes from the copper-smelting works actually damaged trees and shrubs, this is enough grounds for Mr Black to claim against the owners of the factory for damages to the paint of his house. As it should be noted that, where physical damage is caused to the claimants property, the locality is irrelevant. This brings us to the advise for Sirius, in Hunter v Canary Wharf Ltd (1997), the House of Lords emphasised that private nuisance is a tort to land, rather than to those who own or occupy it. This means that no-one, not even the occupier, can recover damages in private nuisance for personal injury. It seems that damage to an occupiers goods is regarded as consequential on the damage to the land, so that damages can be recovered for this. However, public nuisance covers an even wider area than private nuisance, partly because it is not limited to interference with land. Public nuisance falls into two fairly broad categories, the interference with the exercise of public rights and the kind of interference such as noise and smoke, which is commonly a private nuisance, will also become a public nuisance if it affects a sufficiently substantial neighbourhood or section of the public. Whether or not this is so is a question of fact as in the case of A-G v PYA Quarries Ltd (1957), thus as in R v Lloyd (1802), where only three people complained of the noise, the defendant was held not guilty of public nuisance. The fact that a person is inconvenienced by a public nuisance does not of itself entitle him to recover damages in respect of it – Winterbottom v Lord Derby (1867). In order to claim damages Sirius must show that he has suffered some ‘special’ or ‘particular’ damage, over and above what is sustained by the public inn general. This requirement is satisfied due to his deterioration of health. As for Mr Black’s car, the damage to the paintwork, as in the case of Halsey v Esso Petroleum Co Ltd (1961), Mr Black is entitled to complain of the damage that is caused by the smuts from the factory. He would thus be able to recover the costs incurred for the repair of the paintwork to the car.Cite this page
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Contracts Made through Adverts
Lefkowitz v. Great Minneapolis Surplus Store, Inc. 86 N.W.2d 689 (Minn. 1957). Facts The case Lefkowitz versus the Great Minneapolis Surplus store addresses the common misconception of offers and contracts that can appear in advertising. Lefkowitz, the plaintiff, noticed an advertisement in a local store that offered the sale of fur coats that were valued at one hundred dollars. The discounted price, which was a dollar, was stated in the advertisement along with the statement of first come first serve.
The advertisement was located in eth newspaper on April 6, 1956. About a week later, the Great Minneapolis Surplus Store advertised the same deal again in the same newspaper, but with the sale of pastel scarves along with a mink stole. The plaintiff Lefkowitz did as the advertisement instructed on both occasions and was the first individual that could have been served and received the discounted items for a dollar. During both occasions, the defendant refused to honor the advertisements that were located in the paper and thus refused to sell the offered merchandise to the plaintiff. During trial, the defendant chose to stand firmly on the case of Craft vs. Elder and Johnston Company as well as Johnson vs. Capital City Ford. Johnson vs. Capital City Ford addresses the advertisements relating to the purchase and sale of automobiles in which acceptance of a proposed offer may in fact constitute a contract which can be legally enforced. This case, just as in Lefkowitz vs. the Great Minneapolis Surplus Store questions the formalities of offers that can be contained in advertisements.
Clear advertisements that leave no room for negotiation thereby allowing the formulation of a contract that comes in effect once accepted. It was stated during the case that the origin of an advertisement must be determined in order to conclude whether it can be classified as a simple invitation or an offer. At the trial of Lefkowitz vs. The Great Minneapolis Surplus Store, it was ultimately determined that due to characteristics of the advertisements the plaintiff was entitled to the fulfillment of the offer. The advertisement from the surplus store was clear and explicit all while leaving nothing open for negotiation.
The court in conclusion held that Lefkowitz was entitled to the performance mentioned by the defendant because he served in full compliance with the terms of the advertisement as well as offering the purchase price stated. Damages were awarded to the plaintiff that were equal to the value stated in the advertisement. Issue The issue of the case lies in whether or not the advertisement published by the Great Minneapolis Surplus Store issued and denied an advertisement or an offer. Offers can be held under contractual obligations which would require one who issued and dishonor the promise to be held legally liable. The issue of the case also causes for the defendant to prove that the advertisement held some type of negotiable factors that would allow it to not be considered a contract. In summation the issue of the case lies in the various circumstances that constitutes an advertisement as an offer. Decision Ruling for the appeal was affirmed on the basis of the offer leaving no room for negotiation as it was clear, explicit and definite.
The court decided that a newspaper advertisement could be considered an offer due to certain circumstances especially when the actions needed in order for a consumer to accept the offer are clear. Section II The ruling of affirmed in the case of Lefkowitz vs. The Great Minneapolis Surplus Store was accurate in that it expressed the formalities of a contract, the true nature of an advertisement the characteristics of an invitation. The formalities of a contract consist of a multitude of entities that enable such an agreement to be legally enforceable in court. Contracts must be formed by two parties or more allowing for a promise to be enacted and fulfilled (Halbert & Ingulli, 2012). If a contractual promise is not fulfilled by the individual that made the promise, the party can therefore be subject to sanctions of a court (Miller & Jentz, 2010). In attempting to determine in the case of Lefkowitz vs. The Great Minneapolis Surplus Store, whether or not a contract has been formed, one must determine the element of intent of the contract. This results in concluding that the contract was judged by facts which were considered objective as interpreted by a person considered reasonable. The offer made by the Great Minneapolis Surplus Store contains all the requirements necessary for a valid contract which are agreement, consideration, contractual capacity and legality.
The advertisements made in the case both contained agreements that held offers and acceptance. The offers made on both occasions contained goods that were offered at a discount rate and accepted by the plaintiff. Consideration, which is also a key component of a contract, was contained in the advertisement. Fur coats along with a mink stole and mink scarves were promised to convince the consumer (plaintiff Lefkowitz) to make a deal.
Next, in discussing formalities of contracts, one must address contractual capacity. This simply addresses the competence of both parties which was apparent between the plaintiff and defendant in question. Finally, a contract must have the goal of accomplishing something legal. The advertisements made by the Great Minneapolis Surplus Store was not formed with legal intention however they do fall under the contractual category of adhesion. Adhesion contracts are written by one party, which is usually a seller and presented to another adhering party, the consumer, on a non-negotiable basis.
This is what enabled the defendant to be held liable for not honoring the contract. Secondly, the ruling of affirmed in the case of Lefkowitz vs. The Great Minneapolis Surplus Store was accurate due to it revealing the true nature of an advertisement. Advertisements are generally meant for the public and structured as an invitation to accept an offer and not the offer itself (Miller & Jentz, 2010). This is due to the lack of legal implications and intentions that advertisements usually contain. A noted exception to this is when advertisements have the potential to be construed as offers which occurs where definite terms are presented that invited acceptance, for example, an advertisement offering a reward for a lost pet if found (Cornel University Law School: Legal Information Institute, 1992). The advertisement made by the Great Minneapolis Surplus Store contained definite terms such as the price and arrival time in order for a consumer to be able to participate in the sale.
Price lists, which are also considered as a form of advertising, are used by companies to negotiate trade. Price lists are often taken as advertisements due to the list not being the final offer for sale of the product but more so an invitation to proposed buyers. These lists usually contain a clause at the bottom that states, “prices are subject to change” due to the many discretions of the seller. Neither of the advertisements distributed by the Surplus Store held such jargon as to insinuate negotiable factors of the advertisement’s thus resulting in the store being held liable. Finally, The ruling of affirmed in the case of Lefkowitz vs. The Great Minneapolis Surplus Store was accurate in that it expressed the characteristics of an invitation.
Characteristics of an invitation and that of the advertisement from the surplus store were compared in an effort to categorize the Surplus store’s selling methods (Miller & Jentz, 2010). Invitations in advertisements are usually imitated to the buyer in an effort to propose a deal (Blum, 2007). Contracts are initially “the deal” thus preventing the need to invite a buyer based on specific terms. An advertisement can and will be considered an offer when it promises something in an obvious exchange for a clear, definite action which ultimately leaves nothing open for negotiation. Otherwise, an advertisement is simply an invitation made for a proposed offer. The case Lefkowitz versus the Great Minneapolis Surplus store addresses the common misconception of offers and contracts that can appear in advertising. Lefkowitz, the plaintiff, noticed an advertisement in a local store that offered the sale of fur coats that were valued at one hundred dollars. The discounted price, which was a dollar, was stated in the advertisement along with the statement of first come first serve. The advertisement was located in eth newspaper on April 6, 1956. About a week later, the Great Minneapolis Surplus Store advertised the same deal again in the same newspaper, but with the sale of pastel scarves along with a mink stole.
The plaintiff Lefkowitz did as the advertisement instructed on both occasions and was the first individual that could have been served and received the discounted items for a dollar. During both occasions, the defendant refused to honor the advertisements that were located in the paper and thus refused to sell the offered merchandise to the plaintiff. Ruling for the case was fair in that the advertisements presented by the company were structured as contract. References Blum, B. A. (2007). Contracts: Examples & explanations. New York: Aspen Publishers. Cornel University Law School: Legal Information Institute. (1992). Definition for purposes of section 5 of the Act, of “sale”, “offer”, “offer to sell”, and “offer for sale”. 17 CFR 230.133. Retrieved from https://www.law.cornell.edu/cfr/text/17/230.133 on 4/5/2014 Halbert, T., & Ingulli, E. (2012). Law & ethics in the business environment (7th ed.). Mason, OH: South-Western Cengage Learning. Miller, R., Jentz, G. (2010). Fundamentals of Business Law. Summarized Cases. 8th Ed. Mason: Cengage Learning.
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Malaysian Court System
Task 1a)There are three courts with different jurisdiction within what is known as the Superior Court. They are the Federal Court; i.e. the highest court in the land, the Appeal Court, the High Court of Malaya and the High Court of Sabah and Sarawak. Each is head by a federal judge called Chief of Justice of the Federal Court, President of the Appeal Court, and Chief Judge of the High Courts of Malaya and Sabah and Sarawak.
The subordinate court comprises the Session Court and the Magistrate Court. In the Peninsular, there is also the Penghulu’s Court but the latter is increasingly less used. In Malaysia, they are presently 60 Court Judges, 52 in the Peninsular and 4 each in the states of Sabah and Sarawak. At level, there are 151 Magistrate. Of that numbers, 122 for the Peninsular, 10 Sabah, 1 Federal territory of Labuan and 18 only 118 were filled in the Peninsular, 7 in Sabah and 12 in Sarawak.In addition to the above, there are also several tribunals or such as the Industrial Court, Labour Court, the Mining Court, Courts Martial, and the Special Court, each dealing with specific matters already mentioned very briefly.At the state level, there are several courts; Syariah Court that is further sub-divided into Syariah Court of Appeal, Syariah High Court and Syariah Lower Court, and in the states of Sabah and Sarawak, the Adat (Native) Court.Superior courtFederal CourtThe Federal Court is the highest court in Malaysia. The Federal Court may hear appeals of civil decisions of the Court of Appeal where the Federal Court grants leave to do so. The Federal Court also hears criminal appeals from the Court of Appeal, but only in respect of matters heard by the High Court in its original jurisdiction (i.e. where the case has not been appealed from the Subordinate Courts).Court of AppealThe Court ofAppeal generally hears all civilin his warrant, which can be punished with a fine not exceeding RM50.b)Thecourt in Malaysia that are empowered to hear appeal cases are the Court of Appeal which headby the President of the Court of Appeal.Itcomprises 10 other judges, excluding the president.The Court of Appeal was constituted from the Federal Court which was abolished when the Supreme Court was formed in 1985. It resurfaced again 1995, the Supreme Court was Federal Court and the Court of Appeal as in pre- 1985 period. The appointments of members of the Court of Appeal are made by the King upon the of Prime minister who is constitutionally required to consult the Chief justice and the President of the Court of Appeal. They shall hold office until reaching the age of 65.TASK 2a)In Malaysia, parties in a civil dispute are advised to settle their disputes outside the court room. This resolution called as alternative dispute resolution (ADR). ADR being introduced to provide an alternative settlement outside an open court which is private and less time-consuming while giving the opportunity to the parties in dispute to decide on their terms of settlement and to reduce backlog of cases in the courts.
This resolution consist in four forms i.e. negotiation, mediation, conciliation and arbitration. By the way, in Malaysia all these alternative dispute resolution do not being apply towards the criminal proceedings as practised in many countries.One of the more ignored aspects of employment law is tribunal procedure. To this neglected area the Coalition Government has brought in a host of reforms to address what is regarded as an economic imperative. This commentary considers the employment law reforms contained in the Enterprise and Regulatory Reform Act Part 2.Coming at the mid-way point in the Coalition’s planned reforms which are scheduled to be fully introduced as of 2015, this legislative overhaul of employment tribunal procedure has been linked to efforts to improve the country’s economy.
Government reports published leading up to the passage of the legislation offer guidance to the new framework. The package contains a negative and singular view of employment litigation. The Act and Regulations may assist employers, but more remarkable is the Government’s ambivalence regarding rights. These reforms put into question access to redress for potential infringements of employment rights and emphasise the use of law as a tool for economic stimulation rather than a source of rights protection.This commentary first briefly situates the package within a continuum of procedural changes and then outlines the long-standing discussion regarding Employment Tribunal reform.
The next segment delves into the reforms by considering three provisions which are: the requirement for claimants to report their claims to Acas first; fees for launching claims; and settlement offers. This discussion is interspersed with references to Government documents anticipating the changes. Based on these foregoing sections, the final portion of this commentary investigates instructive themes emerging from the current reforms package. The Coalition’s plans are of particular importance to small-to-medium-sized (SME) and microbusinesses. The emphasis of employment regulation is being shifted to that of an easy-to-use format accessible to those entirely unfamiliar with these regulations.
Together this package suggests fundamental change in employment law: a retrenchment of the parameters for access to redress which has the potential to limit the enforcement of recognised employment rights, especially when determined by their impact on business.(Nuraisyah Chua Abdullah (2013), Questions & Answes on MALAYSIAN COURTS, STATUTES, CASES & CONTRACT, TORT AND CRIMINAL LAW. International Law Malaysia . page 48)(Industrial Law Journal, retrieved from https://ilj.oxfordjournals.org/content/42/4/409 full accessed on 23 Decembercenario given is mediation. This is because by using mediation the parties that involved would either reach a settlement according to the proposals of the mediator or the case will be brought to the court. Other than that, the types of disputes that is suitable for mediation are family disputes and business or trade disputes. As the scenario given was involving the employer and the employee so that the mediation will be suit to handle the case given. (Nuraisyah Chua Abdullah (2013), Questions & Answes on MALAYSIAN COURTS, STATUTES, CASES & CONTRACT, TORT AND Law Book Services. Selangor : Malaysia . page 48-49)TASK 3a)Liability in law is an obligation of one party to another, usually to financially. It is a fundamental aspect of tort law, although liability may also arise from duties entered into by a special agreement as in a contract or in the carrying out of a fiduciary duty.
The affixing of liability may once have been simply a peace-preserving alternative to the practice of an injured party taking vengeance. Based on the Law Dictionary, personal liability describes a personal wrong to a person such as an assault or the wrong resulting in damage of personal’s feeling. the law’s emphasis has long been that one who is able to pay (who, in modern terms has “deep pockets” ) should pay one who has lost something through an action of the payer, even if that action was blameless. Under the principle vicarious liability, an employer may be jointly and severally liable with his employee for torts committed by the latter. Based on the Encyclopedia of Crime and Justice, vicarious liability, which is common in some areas of the law, refers to legal responsibility for the actions of another. Some of the rationales of the concept of vicarious liability are such follows :i.The employer must have been negligent in employing a negligent servant or) failing to control his servant.ii.Since the employer benefits from the employee’s work, he should also bear the responsibility for damage caused by his employee.iii.The employer has the greater fund to pay damages to the injured party than the employee.iv.Usually the employer is not an individual, but an enterprise or undertaking, therefore, they can spread the loss.
Moreover, they also have insurance coverage.However, if thee tort is committed by an independent contractor rather than bya n employee, the person who engages the independent contacrtor would not be liable for the tort committed by the latter. By the way, it can be argued that liability for the wrongs of independent contractors do exist on the grounds that he failed in his duty to ensure that competent conractor was employed and also where the operation is of a particularly dangerous nature a in the case of Honeywill & Stein v Larkin Bros [1934] 1 KB 191.Strict criminal liability is often confused with vicarious liability, with which Thus, if A, B’s employee, knowingly serves liquor to a minor, and B is held liable, B is vicariously liable, but not strictly liable, since someone for whom he is held responsible acted with mensrea. If, however, A did not know his customer was a minor, and is nevertheless held liable, A is strictly liable. And if B is held liable as well, he is now vicariously and strictly liable.
Many of the early cases understood to impose strict liability actually involved vicarious liability. Normally a defendant is not liable unless he does something wrong. There is one exception to this general rule where a defendant will be liable even though he violated no duty and did nothing wrong. This exception is sometimes called strict liability or absolute liability. (Nuraisyah Chua Abdullah (2013), Questions & Answes on CRIMINAL LAW. International Law Book Services.
Selangor : Malaysia . page 163-165)( Encyclopedia of Crime and Justice, retrieved encyclopedia.com/topic/Strict_Liability.aspx accessed on 23rd December 2014)( Encyclopedia of Crime and Justice, retrieved from https://www encyclopedia.com/topic/Vicarious_Liability.aspxaccessed on 23rd December 2014)( Principles of Liability and Personality, retrieved from https://www lawteacher.net/free-law-dissertations/principles-of-liability-and-personality.php accessed on 23rd December 2014)b)Legal obligation of one party to a victim as a resultof a civil wrong or injury This action requires some form of remedy from court system. A tort liability arises because of a combination of directly violating a person’s right and the transgression of a public oblication causing damage or a private wrong doing. evidence must be evaluated in a court hearing to identify who the tortfeasor/ liable party is in the case.”base on www.lawdictionary.com/defination/tort liability.html “Task 4a) Define the term contract1)Defined terms and definitions are used toarchitecture, a negative correlation was identified in respect of several variables, such as firm size, share of value added and productivity (value added per employee). Conversely, the correlation between RAs and sectoral performance across key indicators was positive in professions such as engineering (employment, turnover and value added) and within specialised construction activities (no. of employees employment, turnover and value added). While this finding is the opposite of what might be expected, there may be other unidentified variables that influence sectoral performance in the countries within scope. The rank correlation and regression analysis found that the exclusive reserve of icant at conventional confidence levelsactivities within engineering, architecture and building services may lower productivity compared with EU countries in which the same professions do not have specific qualifications requirements. “Based on https://www.law.cornell.edu/wex/legal_systems method of resolving disputes other than by litigation. Abbreviated as ADR. the Public courts may be asked review the validity of ADR methods, but they will rarely overturn ADR decisions and awards if the disputing parties formed a valid contract to abide by them. the Arbitration and mediation are the two major forms of ADR.Arbitration, a widely used form of ADR, is a kind of dispute resolution method that the disputes arising between the parties are resolved by the arbitrators appointed by them instead of state’s legal bodies. the Mediation, a wide applicable form of ADR, is a method in which the mediator provides better communication between the parties of the dispute. then The mediator does not guide or direct the parties, or gives an advice or gives a binding decision like an arbitrator or a judge. then The mediator only contents with asking directive questions to the parties’ better communication with each other.In case an agreement is not reached at the end of mediation process, the information and documents obtained from the deliberations cannot be used as evidence in a possible, future lawsuit.The Tribunal ProcessAlthough some employees and employers can now choose to follow an alternative dispute resolution procedure, most employee complaints are still heard at an employment tribunal. but You need to take tribunals seriously. because If you have well-thought-out procedures, and follow them, you can prepare good evidence making it easy to defend your actions.The interpretation of employment law is moving in favour of the 2009” b) Identify the parties involved in the senario 3 with the help of a proper diagram and their responsibilities.BankThe banker is to advise companies, institutions and governments on how to achieve their financial goals and implement long and short-term financial plans Corporate investment bankers work in dedicated teams, focusing on specific transactions or market sectors. then They also work alongside other related professionals such as lawyers and accountants. A typical corporate finance deal involves two stages:Origination: assessing a deal’s desirability which is sometimes an innovative idea from the bank rather than the client. Financial models are used to simulate possible outcomes. This requires a deep understanding of a sector.Execution: structuring and negotiating the detailed terms of a deal, often in liaison with other professionals Although dealing with different, specific business areas, project teams liaise with one another during the two phases of a deal in order to obtain relevant specialist information and market intelligence.Typical activities on a day-to-day basis include:*thoroughly researching market conditions and developments;*identifying new business opportunities;*carrying out financial modelling, then developing and of presenting appropriate financial solutions to clients;*liaising with the chief executive and chief finance officers of large organisations;*co-ordinating teams of professionals including accountants, lawyers and PR consultants and working closely with them.ClientThe client should ensure the following concerning the principle contractor:* that the potential principal contractor to be appointed has the necessary competencies and the resources to carry out the construction work safely.* ensure prior to work commencing on site that every principal contractor is registered and in good standing with the compensation fund or employee, and awards are increasing, so it is important to understand to the system and the way tribunals operate.This briefing covers:1.The tribunal process, from the start to finish.2.How to defend a case.3.How to prevent disputes arising. the Employment tribunal hearings usually take place before a legally qualified employment judge and two lay members, one nominated by an employers’organisation and the other from a union oremployees’ body.The employment tribunal process is impartial, but in an unfair dismissal claim it does generally start by assuming that there is a case for the employer to answer._Tribunals try to be guided by what is reasonable.
They will take into account prevailing standards and practices in your industry and recognise that special difficulties can arise in smaller firms._Awards made by the tribunal are aimed at compensating the employee, not punishing the employer.b)The selection of ADR b
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Leasehold Reform Act 1967
- 1. What were the material facts in the case?
- 2. Explain, in your own words, the legal issue(s) in the case.
- 3. Which technique(s) of statutory interpretation do you consider that Lord Neuberger employed in the case? Give reasons for your answer.
- 4. Which presumptions and/or rules of language did Lord Neuberger employ in the case? Give reasons for your answer.
- 5. To what aids to statutory interpretation did Lord Neuberger refer? Your answer should indicate whether such aids were intrinsic or extrinsic.
- 6. Explain, in your own words, the ratio decidendi of Alpha Holdings v Beta Properties
1. What were the material facts in the case?
The Leasehold Reform Act 1967 provides tenants the right to purchase the landlord's freehold interest of a property. There is no requirement for the tenant to occupy or have occupied the property. The property was subject to a lease. The appellant was the tenant under the lease. The appellant wanted to acquire the freehold of the property. The property was originally built as a single private residence and had subsequently been adapted for both residential and commercial use. The property had become heavily dilapidated and was not physically fit for immediate residential occupation. In order to be construed as a house under Section 2 of the Leasehold Reform Act 1967 a property must satisfy two requirements i.e. it must be both "designed and adapted for living in" and be reasonably so called.
2. Explain, in your own words, the legal issue(s) in the case.
What is the definition of a house under Section 2 of the Leasehold Reform Act 1967, specifically what is meant by the phrase "designed and adapted for living in? Was the property in question designed or adapted for living in, within the meaning of Section 2, when the notice of enfranchisement was served? Do the words "designed and adapted for living in within Section 2 of the Act suggest that the property be capable of immediate residential occupation? Or should the test be an historic one i.e. should the fact that the property was designed for living in when first built and had not subsequently been altered from this be sufficient to construe that it is indeed "designed and adapted for living in" and therefore satisfy this requirement for the purposes of Section of the 1967 Act.
3. Which technique(s) of statutory interpretation do you consider that Lord Neuberger employed in the case? Give reasons for your answer.
Literal Rule at as a matter of ordinary language Contextual/purposive at reinforced by considering other provisions of the sub-section, and supported by the original terms and considerations of practicality and policy' Literal Rule at as a matter of ordinary English' and 'the natural meaning of the word' Contextual at [19] 'reinforced by the later words in the same section' Literal Rule at the words in question are given their natural meaning'
4. Which presumptions and/or rules of language did Lord Neuberger employ in the case? Give reasons for your answer.
Noscitur a Sociis - 'reinforced by the later words in the same section' at
5. To what aids to statutory interpretation did Lord Neuberger refer? Your answer should indicate whether such aids were intrinsic or extrinsic.
Intrinsic: Section 1 (1) Section 2 (1) Extrinsic: Tandon v Trustees of Spurgeons Homes [1982] AC 755 Suffolk County Council v Mason [1979] AC 705 Attorney General v Lamplough (1878)
6. Explain, in your own words, the ratio decidendi of Alpha Holdings v Beta Properties
The words "designed or adapted for living in" within of the Leashold Reform Act 1967 are to be given their ordinary or natural meaning. A property is a house within the meaning of the sub-section if it had been designed for living in when originally built and the structure had remained largely the same i.e. the test of designed for living in is an historic one. Whilst the property had become heavily dilapidated and was indeed uninhabitable this did not alter the fact that it had been designed for living in when first built. It is not reasonable to assume that a property must be capable of immediate residential occupation in order for it to be construed as a house under of the 1967 Act. Therefore at the time the notice of enfranchisement was served the property was "designed or adapted for living in within the meaning.
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Life of a Prosecutor
Life of a Prosecutor A prosecutor is a type of lawyer that could be federal, state, or just local. They represent the government in all types of court cases. The main job of a prosecutor is to be able to provide research, and have investigative skills to bring to the court room. A prosecutor must be able to handle a very large amount of stress and possibly some emotional difficulties. This job may also come with tiring nights and a lot of work to be done in a short period of time. When looking at a job as a prosecutor one must take in the many factors and responsibilities associated with this career path (Tronshaw, 2014). With choosing this as your career comes quite a bit of extraneous school work. After graduating high school you must attend either a two year or four year college. Eventually working to get your bachelors. Although it doesn’t matter what you get your bachelors in, it's highly looked upon that you obtain a degree in either criminal justice or public administration.
The most important thing to do is to get college credits that will transfer over to either the next school your transferring to, or more importantly, law school (Tronshaw, 2014). You must attend a school accredited by the American Bar Association. While in whatever law school you choose to go too, there will be many types of classes you'll be required to take. A few of these classes are things such as; Property Law, Legal Writing, and Interactive Activities. Interactive Activities are a very important part of becoming a powerful prosecutor because it gives you an early chance to learn how the system works and what kinds of listening or verbal skills you're going to need. Moot Court Competitions are a great way to get interactive in an early stage. A Moot court is a stimulated court where they will draft briefs. This will make you feel more comfortable when you have to go in front of the court room. Another very good interactive activity is the legal clinics. The clinics are basically just practice trials for law students after their first semester (Tronshaw, 2014). Now, before even being able to take the bar test after law school you must take an exam called the MPRE (Multistate Professional Responsibility Exam).
This test is basically used to see if you're mentally competent and aware of the responsibility you're about to take on. This test will ask you questions based on disciplinary rules, the codes of conduct and some of the questions will see if you can lead state and federal cases (Tronshaw, 2014). Now, after completing this exam and passing, you must take the Bar Exam. The Bar exam is an extensive, 12 hour exam split up into two days. This exam covers all types of state and federal laws. This test is offered the last Tuesday and Wednesday of each February and July. The first part of this test is specific to NY. There are five essay questions, 50 multiple choice and an MPT. You must sit in a room for a total of 6 hours with a 45 minute break for lunch. The first half of this day you're going to have to complete 3 essay questions and all 50 multiple choice questions. After returning from your lunch break you then will have to complete the remaining two essay questions and also the MPT. The MPT will take up 90 minutes of the remaining three hours to test you on “legal analysis, fact analysis, problem solving, resolution of ethical dilemmas, organization and management of a lawyering task, and communication"("THE NYS BAR EXAM," n.d.).
Finally on the last day you will have 200 multiple choice questions split up into 100 question increments. This test will cost you a whopping 250.00 every time you have to take it ("THE NYS BAR EXAM," n.d.). Either while you're in school, or after you get out there is plenty of internship opportunities. Most internships are done during school though. There is roughly 800 internships in the US during the academic year and 1000 internships during the summer ("Organization, Mission & Functions Manual: Attorney General, Deputy and Associate | DOJ | Department of Justice," n.d.). This is a great thing and it is so beneficial to young students that really want to get their foot in the door. This can help many students and aspiring prosecutors to see what it’s like first hand and to gain court room experience. Many of these internships even turn into course credits! But, in order to apply for an internship one must go to each individual office and see what they need or how it works ("Organization, Mission & Functions Manual: Attorney General, Deputy and Associate | DOJ | Department of Justice," n.d.).
If you're lucky, you can get an internship that pays you as well. There is an internship program called SLIP (Summer Law Internship Program). There is very competitive recruitment but, what you get to learn and experience is worth it and that's why. The best thing about this program is you get to watch how the Department of Justice runs first hand. This opportunity is very diverse, interesting and they accept students from many different law schools. This particular internship has taken mostly students in their second and third year of law school. In order to apply you must have at least one full semester completed. SLIP looks for students who have shown commitment to government services, academic achievement, Moot court experience and extracurricular activities ("Organization, Mission & Functions Manual: Attorney General, Deputy and Associate | DOJ | Department of Justice," n.d.). After going through all that schooling, and hopefully some internships you're most likely going to be able to start working. Before even applying for any prosecutor jobs, one must make sure they have every single acquired skill in order to be a proficient prosecutor. As a prosecutor you must be there to serve justice, not just throw people in jail whenever you feel like it. Another thing is, when you're in the court room, you have to look at the case as a whole and enjoy the process of trial. Listening skills and talking skills are essentials in becoming a prosecutor, especially when you have to really look in-between the lines of what someone is saying ("D.A. Confidential: What makes a good prosecutor?," 2009).
Be sure to take in the account of your future. Once you're a prosecutor and you've gone through a few cases don’t get cocky and don’t even think about falling back on your work ethic. Both of those could really hurt your reputation, which is something you always have to think about. On top of hurting your reputation, one slip up, or missed document could send a criminal back on the street where someone else will be hurt because of your mistake. That is something no one ever wants to live with. There are many different types of prosecutors in the criminal justice system. The lowest type of prosecutor is the District Attorney. He/she deals with it all from big too small (felonies to misdemeanors). The District attorney gathers all the research, put criminals in jail, talk to the victims and process having a life. A little higher up on the prosecutor scale is the independent counsels. This men and women work closely with the high government officials, stemming from cocaine use to perjury by the president.
The independent counsel promises public confidence while these well-known people are going through investigations and trials. Some independent counsels have been criticized for taking a lot of time, spending a lot of money, and getting into criminalizing things other prosecutors wouldn't do. The highest type of prosecutor you could be, next to an Attorney General, is the US Attorney. They oversee administrators and handle the bulk of the work that the Attorney Generals would typically do. U.S. attorney general, who is the chief law enforcement officer in the United States and the head of the Department of Justice, has responsibility over U.S. attorneys. The 94 U.S. attorneys and nearly 2,000 assistant federal prosecutors intently investigate violations of federal laws, such as white Acollar crime, drug trafficking, and public corruption ("Types of Prosecutors," 2014). District Attorneys have a lot on their plates at all times. DAs work really long- extended hours, late nights, and weekends. They spend roughly 100 hours per murder case, 8 hours for non-homicide and 3 for juvenile crimes. A lot of the time prosecutors do have enough time to manage their cases but last minute pre-trial motions and or negotiations make that difficult.
The days before trial are really hard though. These days consist of a lot of over time, making constant phone calls and making sure everything is ready. During busy times at the court house a prosecutor can be put on call in case they need them for something such as talking to a police officer, needing to watch a crime scene. Another important thing a prosecutor may be on call for is to get a search or arrest warrant during non-working hours (Reid, 2014). A day in the life as a district attorney is very busy and hectic. They can constantly hold feelings of fear and failure or emotional stress around the time of all types of trials. There is no such thing as a normal day when you're a prosecutor. There's a million different things you could be doing with 1,000 different types of cases. In a "normal" day at work in NYC you would have to prepare for grand jury right when you got there, worked real hard the day before to make sure that you have all things associated with getting the suspect indicted. There's usually a morning meeting or some type of conference you need to go too. Down in NYC they can have around 400 attorneys hired at once and with each one of them having about 100 cases. It’s impossible for each attorney to stand on every case alone so once a month there is a meeting held to go over everyone's cases (Honowitz, 2012).
By reading these blogs it shows a clear example of how stressful a day in the court house can get especially with more than one case going on. The stress pays off with the money you make. In order to retire comfortable the average prosecutor will work about 30-40 years. This table below shows the different types of salaries for each type of prosecutors for New York City: Federal: $93,000 Criminal: $98,000 County: $96,000 Public: $87,200 An average prosecutor in NYC will start at roughly $60,000 but they can get up to $130,000 ("Prosecutor Salary in New York, NY - Prosecutor Salary," n.d.). Overall I believe that this would be a very ideal job for me. I really like this career path because it’s something that you really have to work for. Also, I like that even though what you do each day may be very similar each case is different and can have different outcomes. A prosecutor has many different tasks and responsibilities to keep in mind. I hope that one day I will be out in this field helping out the criminal justice system.
References
D.A. Confidential: What makes a good prosecutor? (2009, November 17). Retrieved from https://www.daconfidential.com/2009/11/what-makes-good-prosecutor.html Honowitz, S. (2012, July 12). Life as a Prosecutor | Stacey Honowitz. Retrieved from https://www.huffingtonpost.com/stacey-honowitz/life-as-a-prosector_b_1712217.html Organization, Mission & Functions Manual: Attorney General, Deputy and Associate | DOJ | Department of Justice. (n.d.). Retrieved from https://www.justice.gov/jmd/organization-mission-and-functions-manual-attorney-general Prosecutor Salary in New York, NY - Prosecutor Salary. (n.d.). Retrieved from https://prosecutorsalary.org/NY/New-York/salary/Prosecutor-Salary Prosecutor's Discretion: Day in the Life of an ADA - NYC Edition. (2012, May 29). Retrieved from https://prosecutorsdiscretion.blogspot.com/2012/05/day-in-life-of-ada-nyc-edition.html Reid, S. (2014). The Average Working Hours of a Prosecuting Attorney. Retrieved from https://work.chron.com/average-working-hours-prosecuting-attorney-5569.html THE NYS BAR EXAM. (n.d.). Retrieved from https://www.nybarexam.org/TheBar/TheBar.htm#descrip Tronshaw, O. (2014). Requirements to Become a Prosecuting Lawyer - Woman. Retrieved from https://woman.thenest.com/requirements-become-prosecuting-lawyer-10206.html Types of Prosecutors. (2014). Retrieved from https://www.cliffsnotes.com/more-subjects/criminal-justice/prosecutors/types-of-prosecutors
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Legal and Ethical Environment
Company Background
Is one of the largest agribusiness company not only in the United States but also in the whole world. Archer Daniels Midland Company firstly was founded as Archer-Daniels Linseed Company in 1902 by George A. Archer and John W. Daniels, and later on was formed into the Archer-Daniels-Midland Company after it was acquired by Midland Linseed Products Company in 1923 (History). ADM Co. was not significant before infamous Dwayne Andreas appointed as the chairman and CEO for the company in 1970. Dwayne Andreas spread ADM to oversees to new international markets which gave ADM opportunity to expanded their product portfolio and reduce their costs. Aggressive growth strategy favored ADM by increasing its sales to a high record from $320 million to $13.3 billion as well as increased ADM market value from $78 million to $11.8 billion (Staff, 1996). In 1995, ADM Co. accused of price-fixing over lysine and sentenced to pay a $100 million which changed the company history dramatically. Today ADM is still doing operations on agribusiness: milling, processing, specialty feed ingredients, specialty food ingredients, cocoa, nutrition and more in worldwide 256 locations (History).
Corporate Culture & Structure
With Dwayne Andreas becoming the chairman and CEO, ADM’s revenues and profits rocketed sky which made investors and shareholder extremely happy and satisfied. Shareholders believed in Mr. Andreas blindly and never bother to questions his actions. Mr. Andreas had an immense power and control over the board of directors and shareholders. In one of the board meeting, Mr. Andreas even exploded over shareholders to enforce his dominance to run ADM by his rules. Mr. Andreas behaviors show that ADM was ruled under theocratic hegemony system where he sees himself as the God of the company and rule in every division. Moreover, Dwayne Andreas build a system in the company that he had high secrecy of his deals, disclosed and shared limited information with ADM investors. Additionally, there was a majority presence of Andreas family in ADM board of directors which explains why ADM board members were ineffective to question Mr. Andreas. On the other hand, it was not easy for family members to earn their places in the management. Dwayne Andreas pushed his son Michael Andreas to his limits and basically Mike Andreas had to work his way up to the top. Lastly, Dwayne Andreas had many politically powerful friends such as Mikhail Gorbachev (the seventh and last undisputed leader of the Soviet Union) and Bob Dole (Kansas State Senator from 1969 to 1995) which gave him reference, reputation and confidence to his international expansion campaign.
Facts in the Case
On October 15, ADM pleaded guilty over price-fixing charges and agreed to pay $100 million. Moreover, ADM agreed to help government to build a case against specific A
DM executives such as Dwayne Andreas’ son Michael D. Andreas. Mark Whitacre, ADM executive, helped government by taping executive-room conversations specifically price-fixing related conversations to provide evidence for the lawsuit. Mr. Whitacre was a key player in this case and helped government to file the biggest international cartel case for the history. Ironically, ADM fired Mr. Whitacre on August 1995; accused of peculating ADM funds over $9 million while gathering price-fixing information for the government (Staff, 1996). ADM and four other Asian organizations, two from Japan and two from South Korea, accepted the charges for price-fixing. Scott R. Lassar, a highly reputable attorney from Chicago, was appointed as the U.S. attorney to prosecute Terrance S. Wilson, former vice president, and Dwayne Andreas. On the other hand, Mr. Wilson and Mr. Andreas were represented by two famous white collar lawyers. Mr. Lassar was successfully enforced some Asian executives to testify against Mr. Wilson and Mr. Andreas as well as he convinced Barrie R. Cox, president of ADM food-additives division, to give testimony about Mr. Wilson’s price-fixing actions for citric acid, a commodity other than lysine.
Legal Concerns
Section 1 of the Sherman Act: “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal”. ADM and four other Asian companies violated Sherman Act Section 1 directly by forming a trust and enforce lysine prices to increase and gain unjustified benefits by dominating the market. ADM’s lysine price-fixing is an example of a “horizontal price-fixing” which different retailers form a pact and manipulate a product’s price.
Aftermath
ADM had to pay $70 million fine for lysine and $30 million for citric acid price-fixing penalty, totaled $100 million in 1996. This was recorded as the largest antitrust fine in this U.S. history that should signal organization as a good lesson. Additionally, Coca-Cola Co., PepsiCo Inc. and other ADM customers filed lawsuits separately and they won in 2004 which made Archer Daniels Midland Co. penalized to pay another $400 million in total (Manor, 2004). Internally, ADM board of directors approved new governance policies after Dwayne Andreas accepted the price-fixing. Moreover, activist shareholders were not happy with their board of directors at that time and reduced member number from 17 to 12 and discharged board members who were also in management. Later on, Mr. Andreas left his executive VP position, but surprisingly still worked as a consultant for the company. Interestingly, in 1995, U.S. Justice Department revised its International Guidelines for antitrust laws. With the renewed guidelines, U.S. had enforced its antitrust laws to reach extraterritorial regions.
Conclusion
There are two side of this case. On one hand, there are organizations have responsibilities to their owners and shareholders and also to stakeholders. Profit companies’ common goal is to provide cash in return of investors’ money, and that makes greedy executives to go wild and aim illegal actions. Ideally, shareholders elect board of directors to prevent executives’ such actions to break the law. However, it is observed in ADM case that an executive, who provides stable cash return, can take over control and have power over board of directors and even over shareholders. Who has the blame here? On the other hand, government has a responsibility to prevent illegal actions. Unfortunately, history proves that the law is not perfect and it has to be revised and renewed constantly. Right now, U.S. justice department have multiple sections in its antitrust law. Sherman Act section 1 is against on trusts have more than one companies and can be done horizontal price-fixing or vertical price-fixing, section 2 prevents monopolies to have market power and price dominancy, and so on. In short, these antitrust laws are in place; however, just the law itself is not enough to spot these price-fixing operations. Unfortunately, the system requires an informant or a whistleblower to alert the government officials or even to collect the evidence internally to have enough proof to prosecute the responsible people.
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Laws and Media Report
- Ensures reasonable predictability in daily life.
- Encourages and discourages certain conduct.
- Grants rights and powers to individuals/ groups of people.
- Imposes obligations on individuals or organisations to meet their legal responsibility.
- Allows for the enforcement of recognised rights and duties.
- Provides remedies when an injustice has been done.
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Legal Business Consideration
- What form of business organization will best protect you when you start your ice cream store and why?
- Are there any intellectual property protections you should take for your business name and logo? What are they and why? How do you know if you can use this name and logo?
- Are there any food laws must you comply with regarding the manufacture of ice cream in the US? What are they? ( summarize in two- three paragraphs please )
- Company Description
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Licensing of Premises
- The premises must be of appropriate construction, in good repair and a “seemly and dignified venue” in which to conduct such ceremonies. (In this regard, there may well be scope for a degree of subjectivity on the part of the local authority and the current naming of our client‘s vessel as ‘The Randy Rodent‘ may have to be reconsidered);
- The premises must be regularly available to the public for use for the solemnisation of marriages (particular care should be taken to note this requirement since our client will doubtless be aware of the recent fiasco surrounding the eleventh-hour relocation of the ‘Charles and Camilla‘ wedding on the ground that this requirement would not be fulfilled);
- All necessary fire precautions and applicable Fire Regulations must be observed;
- There must be no recent or current connection of the premises with the practice of religion;
- The particular room (cabin?) in which the ceremonies are to be performed must form a distinct part of the premises and be separate from any other activities on board at the time of the ceremony;
- Our client will have to act as or deputise to an appropriate “responsible person” to supervise the vessel for an hour before and then during the ceremony to ensure compliance with these conditions;
- No food and drink may be sold or consumed in the “marriage cabin” during the ceremony and for at least an hour before;
- As the “responsible person”, our client must ensure that the ceremony is entirely secular in nature. This may seem straightforward but Mr Roche should be warned that under present legislation the use of such apparently innocuous music as Cat Stevens’ “Morning has Broken” or even Robbie Williams’ “Angels” is prohibited. (This apparently absurd anomaly is however currently the subject of attempt to revise the Regulations.);
- Public access to any ceremony of marriage so conducted will have to be allowed.
Footnotes
[1] SI 1995/510Cite this page
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Criminal Justice System
Title How can a Restorative Justice approach work in our current Criminal Justice System? Restorative Justice Introduction Before the Restorative Justice Act was enacted by the Maltese Parliament in 2010 and subsequently coming into force in 2012 with the publication of Legal Notice 43, criminal justice was first and foremost a punishing system as a means of vengeance on behalf of society. Yet, in reality Restorative Justice is not a recent belief that has developed during these last few years. It has been with us for ages and although we do not normally recognize this, it was and still is a ‘way of life’ and used by the general public as a substitute to the punitive system with the aim of punishing offenders. “In some parts of the world, modern government structures have taken away from communities the power to resolve disputes and wrongdoing. Yet, in many places, traditional structures are still working effectively. In the tribal arrangements of some areas, for example, major crimes are settled by community elders and family problems are effectively resolved by family elders, male and female.” (Howard Zehr with Ali Gohar 2003). Nevertheless, even though restorative justice is not a recent innovation it still is rather new, given that, universally, criminal justice was initially a punitive approach in providing justice. As a matter of fact, restorative justice came about as a result to the failure of the punitive approach in reducing recidivism. In the study ‘Devils and Angels’ it is stated that “the punitive system failed due to the traditional penal sanctions that included the collapse of the welfare ideal and of the rehabilitative ideal” (Fionda, J. 2005). In actual fact, the punitive system was only intended as a deterrent and also as retributive for rejecting the offender from society. In addition, it ignored the rights of the victim from having a say.
The role of the victim was only to be called as a witness for the prosecution and then forgotten. Thus the purpose as a witness was just for the Court to establish if the accused is at fault or otherwise. On the other hand, restorative justice is different from the punitive approach. The aim is not only to rehabilitate the offender but more importantly to include the victim as part of the restorative model. Ethics in Victim-Offender Mediation Ethics in mediation process is the crucial aspect to achieve an unbiased solution that would result in a win-win situation for both parties in conflict. The whole mediation process is based on ethics between both the mediator and the parties and the parties themselves. Apart from the parole system, the most important aspect in the Restorative Justice Act of Malta is the victim-offender mediation.
There are many critics that have doubts as to whether mediation between an offender and the victim can achieve the desirable result and what type of agreement can be reached. Some of these critical issues include “Is mediation possible with persons suffering from a personality disorder? Can you mediate with psychopaths? Are there limitations when crime is too severe, and should we protect the victims against secondary victimization? (Delvigne, A. 2005). Restorative Justice in Malta Victim-offender mediation encourages reconciliation and resolution.
Yet, not all victims or offenders are eligible to attend victim-offender mediation. First of all, the offender must admit that he had committed the offence in question and must also be willing to enter into mediation. The offender must voluntarily agree to take part in the victim-offender mediation. The victim, just like the offender, must also voluntarily agree to take part and be willing to enter into such mediation. Whether victim-offender mediation takes place or not will be specifically determined by the nature of the offence, including the level of harm caused by the aggressor or the violence involved in its commission according to the legal regulations.
Not all victims and offenders are eligible to victim-offender mediation and account will be taken of the victims’ motivations in meeting up with the offender and vice-versa. The personal characteristics of both the offender and the victim will be considered as well as the impact of the offence as seen by both the offender and the victim. The possibility of psychological repercussions on the victim is also taken into account as well as the offender’s remorse for his/her actions. What is interesting is that victim-offender mediation takes place without the presence of any legal counsel. There are three instances where mediation should be terminated. It should come to an end when an agreement is reached; when an agreement cannot be reached; or when either of the parties does not wish to carry on with the mediation. The agreement reached can include compensation for damages, non-pecuniary compensation, community service or even rehabilitation programs and formal apologies. The essential aspect remains that the victim and the offender should reach a consensus following a negotiation process of a reparation agreement. An effective Restorative Justice approach Restorative justice, unlike the punitive system, advocates forgiveness, healing, reintegration, reconciliation and is specifically aimed at offenders and victims. It also offers support to offenders along with a final resolution to victims and also strengthening the relationships in communities. Several countries have reported that during these last years there was an increase in the number of victims of crime who have gave their consent in meeting in-person with the offender who had caused them harm. (OVC, 2000). The main reason for crime victims to meet their offenders is essentially to let them know how the crime has affected their live; to ask the question ‘why’ they were victimized and other distressing questions which every victim has a right for an answer. Furthermore, these meetings will cause influence so that offenders will be held accountable for the crime they have caused. A study carried out by Dussich and Schellenberg (2010) revealed that organisations in various countries, directly involved in the criminal justice system including the police, law courts, and probation officers have all praised and supported the use of victim-offender mediation as a realistic alternative to the traditional retribution that every State on behalf of society demand against offenders. In view of this growing need, the time has come for the Maltese legislature and judiciary to acknowledge and promote the significance of victim-offender mediation by primarily giving it the value and priority it deserves towards victims and subsequently to look at the needs of the offenders. Victim-offender mediation should not be classified or linked as part of the civil, commercial, or family mediation.
These categories of mediation are totally distinct from each other and should be regarded and dealt with as such. In Malta, mediation in family dispute situations such as marriage separation or child custody affairs is mandatory and in time it has become accepted as a viable alternative to court litigation. Nevertheless, mediation in civil, commercial, and social disputes including victim-offender mediation is currently applied only in theory and non-existent in reality. The distinction between the various civil forms of mediation against that of VOM is that in civil related issues the participants are referred to as disputants and the objective for mediation is that of reaching a mutual resolution by compromise that will assist both parties equally. Therefore both disputants are considered as evenly balanced and are expected to contribute on the same level to resolve their conflict. In essence, the aim of these settlements focuses on the conflict with little weight given on the participants emotional aspects or how the resolution is going to affect their lives. On the contrary, in mediation, the participants should not be considered as disputants.
The power of imbalance between the victim and offender already exists and the offender is already regarded as guilty for having committed a criminal offence. On the other hand, the other party is considered and labelled as the victim of the crime. This means that mediation will not focus on the guilt or the level of compromise to be reached. Victims of crime should not concentrate on negotiating the type of restitution to be granted, but VOM is primarily to be regarded as a dialogue between the victim and the offender, where the interests and needs of the victim should be given precedence, followed by the needs of the offender and the type of restitution or financial compensation to be reached as part of the agreement. Nevertheless it should be maintained that the agreement is only to be regarded as a secondary issue whilst the objective of initiating a VOM meeting should remain as a restorative justice dialogue between the victim and the offender. Empathy towards the offender is also vital as the dialogue should be guided in order to prevent future criminal conduct by the offender.
According to Unmbreit (2001), VOM “provides interested victims the opportunity to meet with the juvenile or adult offender, in a safe and structured setting, with the goal of holding the offender directly accountable for their behaviour while providing important assistance and compensation to the victim.” The Way Forward As I have already explained, the purpose of victim-offender mediation is to offer a conflict resolution procedure in restoring the emotional and physical harm caused by the crime. Although in our legislation victim-offender mediation is listed as Part VI of the Legal Act under the heading of ‘Establishment of the Victim Support Unit’, it is not clear whether Restorative Justice in specifically intended towards society, the victim, or the offender.
Our legislative representatives appear to be more inclined towards taking the direction of society-centred approach. Of course, one of the aims for restorative justice is intended to eliminate or at least control recidivism, however in order to arrive at this phase, the main priority should be focused towards a victim-centred approach. This is supported by research that suggests that mediation should be person-centred rather than position-centred communication. (Motchnig R., 2014). The safety and wellbeing of the victim is to be placed high in the dialogue agenda. It is the appointed mediator’s role who is responsible for the security, protection and welfare of the victim. The victim should feel out of harm’s way during the entire process and therefore the location for the meeting with the offender should be conducted in a place where the victim deems secure. Individual pre-mediation meetings are of vital importance, so that the mediator would be able to carry out a screening process on both the victim and the offender with the objective to evaluate whether they are suitable of representing themselves and competent to communicate their needs.
Furthermore the mediator would also be in a reasonable position to explain to each party in a private manner the rules and guidelines to be followed. The mediator should first approach the offender to verify that s/he is giving his or her consent to meet with the victim. It would be a case re-victimisation, if the mediator first discusses this issue with the victim and after agreeing to meet the offender, finds out that the offender has turned down the request for VOM. Active listening, empowerment and empathy should be an on-going process throughout the mediation sessions in order to encourage the victims to express their needs, to participate effectively, and to assist the offender to listen to what the victim has to say. Author Kenneth A. Wells (2008) quotes that “A good listener tries to understand what the other person is saying. In the end he may disagree sharply, but because he disagrees, he wants to know exactly what it is he is disagreeing with.” Apart from the location site, the waiting area and the seating setting is also part of the logistics that the mediator needs to prepare ahead of the meeting. The victim should be advised to be seated close to the exit door and preferably the offender and victim are to be seated at the opposite ends of the table with the mediator seated to the side of each party. Whatever the seating arrangement is, the outcome should be that the victim feels safe and secure. The victim should also be given the opportunity to choose whether he/she wants to speak first or to let the offender initiate the dialogue by going through the sequence of events that led to the crime.
Some victims tend to wait before they speak up with the aim to overcome any power of imbalance that might exist. According to Ken Braun (n.d.) “No conversation is too difficult to have but sometimes people need help having that conversation.” I believe that the duration of the entire mediation should last not more than three sessions. If after these sessions, the mediator feels that there are no developments or that a resolution is still far from being reached, than it would be futile to continue pursuing for an agreement and it would be better to stop mediation. As for restitution, it is essential that the agreement plan must be negotiated between the victim and the offender. It could be monetary or non-pecuniary compensation and some victims might be satisfied that the offender follow a rehabilitation programme or perform community work. For others a simple letter of apology would be all that they require or ask for. No matter what the mode of restitution is, the bottom line is that such an agreement should be legally binding either by the court of law or signed by the parties themselves and approved by the victim-offender mediation committee. In order to achieve this, parliament is to rectify and amend the Restorative Justice act so that justice with victims would be prevailed. As the law stands today, an agreement reached by the parties is not binding and this could be one of the reasons why VOM is not acknowledged or recognised by victims or professionals working in the field of the criminal justice system. Another approach for restorative justice to be effective is for the mediator to keep in contact with both the victim and the offender after the end of mediation, at least for a period of time. A short term follow-up is sometimes all that is required for victims to feel secure and to continue leading a normal life. The victim-offender mediation committee should include as part of its responsibility the role of an advisory board where mediators can have a point of reference to consult and discuss difficulties that they may encounter with their supervisors.
This requires competent and qualified appointed committee members who are knowledgeable in legal aspects, mediation, and psychological assistance. Conclusion Personally, I feel that the past and present appointed VOM committee have so far failed in their mission to incorporate the Restorative Justice act as an integral part of our criminal justice system. In order to resolve this limitation, the committee is required to seriously promote VOM. After all, article 27(1)(g) of Chapter 516 of the Laws of Malta clearly states that one of the functions of the victim support unit is the promotion of victim-offender mediation as a means of reparation for both the victim and the offender at any stage of the criminal justice process. This can be achieved by coordinating and setting-up conferences and seminars to all stakeholders within the criminal justice system, and also to promote this practice throughout the media for the information of the general public. In conclusion, if victim-offender mediation is not given the opportunity by the Magistrates and Judges in referring eligible cases to the committee for evaluation, it will remain difficult to analyse the benefits that this system claims to provide and most of all whether it would be constructive in enhancing our criminal justice system. If on the other hand the situation remains status-quo with the same approach as currently exists, than VOM will most definitely remain missing and non-existent in our legal system. References Braun, K. (n.d.). “Victim Offender Reconciliation Program”. Community Mediation Services of Polk County. Oregon: Dallas. Delvigne, A. (2005), 7th International Conference on Conferencing, Circles and Other Restorative Practices: Manchester, England. Dussich, J. P., Schellenberg, J. (2010). “The Promise of Restorative Justice: New Approaches for Criminal Justice and Beyond”. pp. 121-123. Lynne Rienner Publishers. Fionda, J. (2005). “Devils and Angels”. Hart Publishing, p. 175. Howard, Z., Gohar, A. (2003). “The Little Book of Restorative Justice”. Good Books Publication, USA. Motschnig, R., Nykl, L. (2014). “Person-Centred Communication: Theory, Skills and Practice”. pp. 55-56. Berkshire: England. Open University Press. Office of Victims of Crime (2000). “Guidelines for Victim-Sensitive / Victim-Offender Mediation: Restorative Justice through Dialogue”. Retrieved from https://www.ncjrs.gov/ovc_archives/reports/96517-gdlines_victims-sens/guide7.html. Restorative Justice Act (2010). Chapter 516 of the Laws of Malta. Umbreit, M. (2001). “The handbook of victim offender mediation”. San Francisco: Jossey-Bass.
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Management of Resources Within the Public Sector
Executive Summary
Since the ‘Comprehensive Spending Review’ in 2010 the National Health Service (NHS) has experienced significant budgetary constraints. Whilst the UK Government has protected the NHS budget, it is still the tightest funding settlements the NHS has ever experienced. Demand is growing rapidly as the population ages and long-term conditions become more common. Along with more sophisticated and expensive treatment options are becoming available and the cost of medicines is growing by over A£600m per year.
- The NHS must take decisive steps to remove the barriers in how patient care is provided between hospitals, physical and mental health along with social care.
- The NHS could save up to A£466m a year if doctors were less likely to prescribe multiple treatments of drugs to older people.
- Target resources on clinical interventions that optimise health outcomes and to identify procedures that can be made more efficient.
- The NHS could obtain over A£2bn over the next five years by selling off surplus land and buildings, according the Department of Health.
1. Introduction
This report identifies the decisions made by the British Government to reduce its National Deficit and how this will affect its Public Services. Every finical year the UK runs up a large budget deficit. This is where the UK Government spends more money than it can collect through taxation. In 2010 the UK Coalition Government set out plans for its unavoidable deficit reduction. This was an urgent priority to secure the UK’s economic stability at a time of uncertainty in the global economy. This was to provide long term stability in its public services and its welfare Systems. According to a report published the ‘Spending Review’ the Coalition Government inherited one of the most ambitious and challenging fiscal positions in the world. The commented that, Britain’s deficit was at its highest ever recorded in peacetime history. The state borrowed one whole pound for every four pounds that it spent. The interest payments on UK’S National Debt cost the UK around A£45 Billion a year or 3% of ‘Gross Domestic Product’ (GDP).
However, all the major political parties pledged to protect the National Health Service (NHS) from budget cuts in 2010, after a period of unprecedented growth there was a implementation of a ‘funding freeze’ in 2011. This would be the most austere period for the NHS in over thirty years. Even with this constant funding, the rising demands from an ageing population, along with higher public expectations, meant that there was a substantial ‘funding gap’ to be met by improvements in productivity and efficiency. Efficiency savings are still needed. The chief executive of the NHS Confederation, commented on the ‘Spending Round’: "Although the health budget has been spared a reduction, it is important to remember that NHS organisations are facing significant pressures to meet growing demand and improve quality, and still need to find substantial efficiency savings". He also mentioned that: "Maintaining the ring-fence for the NHS is vital, but it is also important that the health service gets to spend what is allocated to it” Therefore, long-term investment and innovation in healthcare must be seen as a key function of the UK’s growth strategy and not an anchor holding it down.
2. Results
2.1 NHS Spending
Funding for the NHS comes directly from taxation and is granted to the Department of Health by Parliament. When the NHS was created in 1948, it had a budget of A£437 million (around A£9bn in current value). NHS spending has continued to increase significantly, in 2003/04 the NHS budget was A£64.173bn and this drastically increased to A£109.72bn in 2013/14. Statistics show that Net expenditure of the NHS has increased by A£45.54bn between the years 2003 and 2013. Government Statistics on public spending show that NHS spending increased from A£104.405bn in 2011/12 to A£105.254bn in 2012/13. This amounts to a 0.8% rise in real terms year-on-year. In 2011/12 health spending was 0.3% higher than the previous year. In recent years, the NHS has managed to spend slightly under budget. This was not because demand for its services was reduced, but because of the use of effective mechanisms in place not to spend. Public satisfaction within the NHS, for its staff and for its quality of care received still continues to remain very strong. All of this has been achieved while applying a significant reform programme following the Health and Social Care Act 2012.
2.2 Spending Review 2010
In agreement with the Government’s commitment to protect public health, spending in the NHS will increase by 0.4% in real terms over the course of the Spending Review period. This will include a 1.3% increase in the resource budget and a 17% decrease in overall capital spending. The administration budget will also be reduced by 33% and reinvested to support the delivery of NHS services.
2.2.1 Table 1: Department of Health - Spending Review 2010
Sourced: (Department of Health , 2010) The health reform enabled the NHS to maintain the quality of services to patients. This settlement also included:
- Real term increases in overall NHS funding in each year to meet the Government’s commitment to protect public health spending, with total spending growing by 0.4% over the Spending Review period (see table 1).
- An additional A£1bn a year for social care, as part of an overall A£2bn a year of additional funding to support social care by 2014/15.
- New cancer drug fund of up to A£200m a year.
- Expanding
- Increasing access to psychological therapies
- Maintain funding for priority hospital schemes.
- Capital spending to remain higher in real terms than it has been on average over the last three Spending Review periods.
2.2.2 Efficiency Savings
To sustain the rising costs of healthcare and the relentless increasing demand on its services, the NHS released up to A£20bn of annual efficiency savings over the recent four years, all of which was reinvested to meet rising levels of demand and to support the improvements in. This included:
- Constantly improving workforce productivity.
- Implementing best practice throughout the NHS in the management of long term condition.
- Reducing inconsistencies in admissions and outpatient appointments.
- A 33% cut in the administration budget, including a reduction in the number of arm’s length bodies from 18 to a maximum of 10 by the end of 2014.
>2.3 Health and Social Care Act 2012
A fundamental part of the Government reforms, was the Health and Social Care Act 2012 introduced substantial changes to the way in which NHS in England was organised, improvements in the quality of social care and reform its funding. The Health and Social Care Act introduced a variety of vital changes to the NHS in England. These changes came into force on 1 April 2013. These changes included:
- Providing groups of GP practices and other professionals, known Clinical Commissioning Groups (CCGs) 'real' budgets to buy care on behalf of their local communities.
- Moving many responsibilities historically located in the Department of Health to a new, politically independent NHS Commissioning Board (NHS England).
- Implementation of a health specific economic regulator with a mandate to guard against 'anti-competitive' practices.
- Relocating all NHS trusts to foundation trust status.
2.4 Funding Freeze
Recent years have been extremely challenging for the NHS, a prolonged funding freeze in real terms, implementation of controversial reforms and the mistreatment of it users and the quality of care, in particular from the Mid Staffordshire NHS Foundation Trust. This NHS funding freeze will remain in place until 2015 and possibly further beyond. Regardless of the real term increase that is usually required to deal with the rising demand and the lack new treatments not readily being available. However, in 2011, the NHS has surprisingly succeeded to survive within its means, essentially as a result of curbing the wage bill. However, this may be difficult to continue because of rise in wages in the private sector. Meanwhile, there is a lot of engagement across the NHS to increase efficiency whilst protecting the quality of care.
3. Discussion
Since the implantation of the National Health Service (NHS) in 1948, the NHS has grown to become the world’s largest publicly funded health service. It has also become one of the most efficient and comprehensive health services. The NHS was created out of a long-held ideal that good healthcare should be readily available to all, regardless of wealth. This is still a fundamental principle that remains at the NHS core. With the exception of some charges such as prescriptions and dental services, the NHS remains free to any UK resident. There are currently more than 63.2m people requiring this service. It covers everything from routine treatments, to transplants, emergency treatments and end-of-life care. The NHS deals with over 1 million patients every 36 hours. The healthcare system is facing the challenge of significant financial pressures. As individual needs for services will continue to grow faster than the funding it’s allocated. Therefore the Department of Health must innovate and transform the way in which they deliver their high quality services, within the resources available.
To ensure that patient’s needs, are always put first. The NHS has gone through several vital changes in recent years. Such as; Increased levels of investment and reduced waiting times. Ongoing developments include the expansion of patient choice and the introduction of academic health science centres (AHSCs), first of which is the Imperial College Healthcare NHS Trust. The UK’s Government has identified a number of opportunities to cut costs in the NHS whilst protecting its frontline services. These include limiting its staffs pay and pensions, cutting back office management, the selling of assets, rationalising procurement and drugs purchasing. There are numerous discussions about value for money in the NHS. The Secretary Of State Jeremy Hunt. has overall responsibility for the function of the Department of Health (DH).
According to Hunt the NHS must save up to A£10bn a year by 2020 by diminishing its use of agency staff and management consultants, selling off unused property and reducing clinical mistakes, the health commented: “If we are to be truly financially sustainable we need to rethink how we spend money in a much more fundamental way.” A report published by Hunt the NHS England’s blueprint for the health service, which identified the need for a greater use of technology and innovation to improve patient healthcare in the NHS whilst delivering cost savings the public sector. These reductions in the annual budget of A£110bn will be assisted by an increase in innovation, according to Hunt. The health secretary also commented that a reduction in prescription errors could save the NHS up to A£551m a year, whilst selling off some of the NHS unused land and buildings could create significant savings, including A£1.5bn in London alone. Targeting agency staffing bills which have significantly increase from A£1bn to almost A£2.5bn. Guidelines set out in the report ‘Everyone Counts: Planning for Patients 2014/15 to 2018/19’ illustrate how the NHS budget is invested, to drive continuous improvement, to maintain high standards of care for all. The NHS is driven by quality in all that they do. It can no longer accept a minimum standard of care as acceptable. According to the Chief Nursing Officer for England Jane Cummings, practical application of technology on the front line will enable NHS nurses and other health workers to concentrate on what is important, providing meaningful and compassionate care to its patients. Becoming more efficient with data and technology could have the potential to create a substantial difference to patients, whilst enabling best value for taxpayers.
4. Conclusion
The A£10bn of savings announced by Jeremy Hunt are realistic, however it will take up to five years to deliver these savings. It is imperative that the debate starts now and the NHS needs to look at where efficiency savings can be made, and to focus on clinical care and not just the back office jobs. The big question is whether these efficiencies can be made soon enough to reduce the requirement of unpopular cuts to health services. The NHS needs to ensure that accesses to all of its services are on an equal footing whether the patient’s needs are mental or physical. They must innovate the way they in which they provide care for the most vulnerable users excluded from society. However, high quality is not just an aspiration. There is urgency to plan strategically and to start making these changes that are required to deliver models of care that will be sustainable in the longer term. Therefore, the discussion remains about how the NHS will cope with a continued freeze on its overall funding. There is tension between national co-ordination and local decision making in the NHS about value for money. The NHS should try an implement a top-down best practice or it should let innovation and efficiency come from local decision making and accountability, with an acceptance of locally diverse provision.
5. Appendices
5.1 Table 1 Department of Health - Spending Review 2010
5.2 Recommendations
- The NHS must take decisive steps to remove the barriers in how patient care is provided between hospitals, physical and mental health along with social care. The future of the NHS will need to provide greater care, delivered locally, but with some services provided by specialist centres. This should be organised to support people with multiple health conditions.
- The NHS wastes around A£2bn a year and risk patient’s health by giving them excessive x-rays and treatments they do not require. The NHS could save up to A£466m a year if doctors were less likely to prescribe multiple treatments of drugs to older people. This can create adverse drug reactions, which account for 6% of all hospital admissions, which amounts to 4% of all hospital bed being used.
- With future restrictions on NHS funding, another recommendation is to try to target resources on clinical interventions that optimise health outcomes and to identify procedures that could be made more efficient. The King’s Fund has suggested money could be recovered by reducing the length of stay in hospitals and using lower cost drugs.
- The Department of Health estimates that nearly 8% of NHS land is underused, which could help to raise some A£2.5bn, equivalent to 50,000 nurses, between now and 2016.The Government has announced plans to sell off surplus land to boost health service funds. To modernise the NHS and to improve its efficiencies, the health service needs to be proactive and identify land that is no longer required or needed. This revenue raised from surplus land could be used to improve patient care.
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Malaysian Maritime Transport and Security
Maritime transport and security The Malaysian act which covers this issue is has follows: 249A - 249AA
The littoral States of the Straits have undertaken various initiatives aimed at curbing the menace of piracy and securing the waterway from the threats of terror. These measures include: On the basis of 38 attacks in the Straits in 2005 as reported by the IMB against 62,621 ships traversing the Straits in the same year as reported by the Malaysian Marine Department. (1) (1) The implementation of MALSINDO, a coordinated patrol scheme involving the navies of Singapore, Malaysia, and Indonesia. The trilateral initiative, launched in July 2004, is a joint special task force by the littoral States to safeguard the Straits and provide effective p
olicing along the waterway. MALSINDO is an improvement of several bilateral coordinated patrols previously conducted among the littoral States. It entails the coordination of patrols by a littoral State in its jurisdiction and sovereignty area with other patrol partners in other areas and with the command centres in the various countries. This initiative has made naval patrols in the Straits more coordinated and structured. (2) (2) The Eyes in the Sky (EIS) initiative, a maritime air operation for surveillance over the Straits of Malacca and Singapore. This initiative is to detect and deter acts of piracy and transnational criminal activities in the Straits. The EIS initiative began in September 2005 and currently features combined maritime air patrols by the Armed Forces and maritime enforcement agencies of the littoral States and invited international participating nations. The EIS initiative is an open arrangement that may invite the participation of other countries on a voluntary basis, if deemed necessary, by the littoral States. Each EIS flight involves a Combined Mission Patrol Team on board, a Mission Commander in charge of the safe conduct of the mission and the after-flight report, and observers from participating nations. (3) (3) The increase in multilateral security initiatives among the littoral States, including dialogue among them via the ASEAN Regional Forum platform, and bilateral initiatives such as exercises between the Malaysian and Indonesian navies, and joint operations between their maritime enforcement agencies.
Article 249A 249AA MERCHANT SHIPPING ORDINANCE 1952 (4) (4) The increased patrols by the Marine Police of the littoral States in the Straits, which have resulted in several arrests of pirates and armed gang robberies, and the prosecution of the perpetrators. (5) (5) The increase in the capacity and scope of several security systems already in place involving sea surveillance, vessel traffic and ship reporting. In addition to these initiatives, several regional and international initiatives have been established in the South East Asian region to boost security. These include an agreement on information exchange and establishment of communication procedures, a treaty of mutual assistance in criminal matters and a regional forum framework on measures against terrorism, counter-terrorism, and transnational crime. An agency named the South East Asian Regional Centre for Counter-Terrorism has been set up, while agreements have been reached between ASEAN members and its dialogue partners such as the U.S. and EU with reference to cooperation against terrorism and cooperation in the field of security. The Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) initiative also aims to enhance the security of regional waters and to enhance multilateral cooperation among countries in the region. The manner and speed in which the initiatives were implemented underline the seriousness with which the littoral States are combating piracy and transnational criminal activities in the Straits of Malacca. They also reflect the genuine commitment of the States to forging regional maritime security cooperation and enforcement. While it is not realistic to expect zero piracy in the huge area of the Straits, it is reasonable to attribute the recent drastic drop in piracy attacks in its waters to the intensified efforts undertaken by the littoral States. Perhaps it is too early to evaluate the effectiveness of initiatives such as the coordinated patrols and the EIS program, but it is fair to expect security in the area to improve even more once all the security measures in place are running full steam. The littoral States have spent huge amounts of resources to establish, maintain, and enhance security and navigational safety in the Straits. Given the rising financial costs of these measures to the littoral States, it is only just that international users of the Straits, who benefit from their usage of the sea-lane, chip in to share the burden of making the Straits secure.
1-4 Merchant Shipping Act 2007 Laws provided under Malaysian Sea and Vessel Department
Safe Operation of Ships, 249AC - 249AO
Seafarer Affairs and Port division was established by the Malaysian Naval office in order to ensure recognition of the competencies of Malaysian Seafarers by both within and outside the country in accordance with the provisions of the STCW Convention and Merchant Shipping Ordinance 1952. 1. To protect the seafarers welfare and affairs 2. To ensure all ports and jetties under the supervision of the Marine Department are safe and operational at all times. Their activities include the, Management of Competencies Certification. Whereby they plan and conduct Competencies Examinations, process and issue Certificate of Competency, evaluate and reaffirm Competencies Certification and also advise on Seafarers Competencies and Standards. They also conduct the management of Maritime Training Institution Accreditation which is in charge of processing application for Maritime Training Institution, Audit Maritime Training Centre, verify and recognise Competencies Certification and determine safe manning of Malaysian ships. They are also in charge of the management of Seafarers where they Register and document seafarers, Monitor seafarers affairs and welfare, Co-ordinate preparation of facilities for seafarers, Secretariat to Central Mercantile Marine Fund. Lastly they are in charge of the, management of the ports where they regulate transportation of hazardous cargo and ship-to-ship activities, regulate barter trade activities at Malaysian Ports, manage and operate ports and jetties under the Marine Department and lastly regulate ports activities affairs.
Jabatan Laut Malaysia, 'Merchant Shipping Ordinance' (marine.gov.my 2013) <https://www.marine.gov.my/jlm/pi.pdf> accessed 28 August 2014 Nazery Khalid & Cheryl Rita Kau, 'International Maritime Law' (mimaa.gov.my 2010) <www.mima.gov.my/mima> accessed 24 August 2014 Minister of Transport, 'Maritime Law' (mot.gov.my 2013) <https://www.mot.gov.my/en/Division/Pages/Maritime.aspx> accessed 24 August 2014 Marine Department of Malaysia, 'seafarers affairs and port laws ' [2012] e.g. AL
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The State of Maharashtra
Manoj Mahadev Gawade Vs.The State Of Maharashtra Brief Summary of Facts: Suhas Nadgouda was the Assistant Police Inspector at Miraj Rural Police Station from November 2004 to May 2007. In the morning of 15th June 2006 at 7:30 am Head Constable Kamble informed Suhas that nobody is residing to the call given at the house of Balu Gavade. ASI Koli climbed the roof of the house and saw six person inside the house lying in blood. All were members of the Gaavde family. The following item were sent for forensic examinations from the crime scene:
- The two wooden logs
- The five pillows
- The two gunny bags
- The quilt having green colour
- Another quilt having mixed colour
- Third quilt having red and mixed colour
- The mat
- One slipper of right foot
- Two soil samples
- Another soil sample
- Seven other samples of soils
- The bangle pieces in green and red colour
- One small wooden piece
On 21st June 2006 API Nadgouda searched the house of accused Mahadev Gavade and found the following items in one plastic bag containing:
- A plastic bag containing a half filled white colour pesticide powder in a pack
- A towel having blue lining, stained with blood
- One slipper of Paragon company of the left leg having some bloodstains
- Thorny seeds of Dhattura (Argemone Mexicana)
Sessions Court convicted the accused and the appellant has appeled the said order of conviction and sentence. Contention by the Prosecution: Motive is the dispute between accused and deceased. Accused called family members of deceased for the tea party and were last seen with them. They were given Dhattura powder to seatmate them. These seeds were seized under Section 27 of the Evidence Act. Blood stains were found on the cloths of the accused. Right Slipper was found in the house of the accused, while left was in the house of the deceased. Accused mad an extra-judicial confession to Ashok while in jail. Analysis of the Judgement: According to the spot panchanama and seizure panchanama are absolutely silent about the sealing of the articles on the spot thereby giving rise to a strong suspicion that the articles might have been tampered. On the issue of blood stained cloth being seized from the house of the accused, the articled were not properly sealed when they were seized and therefore they could have been tampered with. In the case of Amarjit Singh Vs. State of Punjab[1], the SC held that the “…..non-sealing of the articles at the spot is a serious infirmity because the possibility of tampering over the said articles cannot be ruled out…..” The court ruled that since there was infirmity in handling of the evidence, reliance on the results of blood stained cloths cannot be taken. This view of the court seems arbitrary, merely because there was no mention of sealing of articles the panchnama, it is unfair to behalf of the court to deny justice, only on grounds of procedural lapses, substantive injustice is being done in this regard. These are very minor infatuations when taken a holistic view of the facts. All the four accused were found sitting in the courtyard of Malubai (accused No. 1) two days before the incident, they called Balu Gavade's wife to offer tea to the persons who came visting them. Those guests left the house of Malubai at about 9.15 to 9.30 p.m and on the next day the incident was discovered. According to the Last Seen Theroy, the accused was the last one to see the deceased and therefore is admissible under Section 6 of Indian Evidence act, 1872. Ashok Gavade is the son of deceased Shantabai Gavade stated that there was a property dispute between his family and the accused’s family. One week before the incident his mother Shantabai met with an accident. Manoj who was Laos with them purchased slippers of Paragon Company of blue colour. The statement of Ashok points towards motive of accused admissible under Section 8 of Indian Evidence act, 1872. Mahadev Gavade had sent a letter Ashok and admitted to the conspiracy and told that he will narrated to him when he would come to meet him in jail. It was written his handwriting but no signature. When Ashok went to meet him in the jail, he said he “committed a mistake”. Ashok testified that the handwriting in the letter was of Mahadev. This amounts to extra-judicial confession given by accused and admissible under Section 18 of Indian Evidence act, 1872. Also Ashok views on handwriting is admissible under Section 47 of Indian Evidence act, 1872 as expert opinion. In a case of circumstantial evidence the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. They have to form a complete chain and exclude every other suggestion of the innocence. On the issue of motive there are conflicting opinions of both sides. Prosecution claims a property dispute, while the defence claims there was harmony. On the basis of the testimony by Ashok, it is clear that there was no dispute between the said parties as claimed by the prosecution. So motive for the crime is not proved by the prosecution. The very nature of circumstantial evidence is that is gives rise to more than one possibility, it is only a combination of circumstantial evidence must point in one direction, indicial circumstance evident by very nature are suppose give more than one possibility. The court said that since the slipper were found after 4 days of the commission of the crime, reliance on them couldn’t be placed. In the Arushi case, the golf club which had blood stains on it was discovered after almost six month of the commission of the crime, but the court still relied on the evidence and higher courts have uptake that evidence. The court held that since no efforts were made as to ascertain whether the slipper found on the crime scene was actually fitting the accused or not. This was again an oversight by the trial court and the high court failed to correct this error. The court also disagreed the slipper evidence that was available, it ruled that since there is a possibility that this kind of slipper can be with anyone, and it is not an exclusive product with the accused. This evidence was further weakened by Ashok turning hostile and denying that any purchase of the said slipper was done by the accused. At this point the court opined that since there are more than one possibility, reliance on slipper evidence cannot be placed. The court here again confused the total effect of circumstantial evidence, and individual effect of circumstance evanescence. Ashok under cross-examination said that he did not slipper as claimed by the prosecution, he did not say anything on the spot as claimed by the prosecution, he did not state any suspected person as claimed by the prosecution, he doesn’t remember Mahadev buying a slipper as claimed by the prosecution, he also said there was no property dispute between the two families. This is a case of witness turning hostile. On the issue of the extra-judicial confession by the accused when he met Ashok in the jail cell, the court ruled that, the statement given to Ashok was an exculpatory statement, it not only exculpates the accused but shifts the burden of crime on Malubai (accused No. 1). The court relied on Pakala Narayanswami Vs. Emperor[2] “…..confession as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed………” The High Court here failed to give reason for why the stamen made to Ashok was an exculpatory statement, there was nothing on the record in the judgement to point towards the exact nature of statement made by the accused. The accused confessed to a conspiracy in a postcard to Ashok, when he invited him to visit him in jail. He implicated himself and the accused no. 1 in the case, but there is nothing on the record to show what exact stamen was made by the accused to Ashok in the jail cell. However, the court could have admitted the postcard as an admission, if not as confession, but the court threw out both the statement to Ashok and the postcard as exculpatory statement. The court was erroneous in its decision. Dr. Bapusaheb Satpute is the Medical officer in Government Medical College, Miraj The doctor stated that death occurred within four hours after the last meals and the cause of death was cardio respiratory arrest subdural severe haemorrhage due to severe head injury. In the cross-examination he stated that he has further admitted that in case of poisoning he can gather the smell of the said he has no idea about Argemone Mexicana is called as Dhattura and its symptoms in the case of consumption and he did not refer any material with regards to Argemone Mexicana, but the prosecution claimed that the members of the deceased family were sedated by Dhattura. Dr. Archana Sawant who conducted autopsy on other deadened said that Argemone Mexicana is a toxic substance, has bitter taste which leads to dryness in throat, dim vision, vomiting and headache, dilation of pupils, restlessness. She did not notice any vomitus on the sari or blouse of the dead body of Shantabai. She admitted that heart, lungs, and internal organs would be more congested if Dhattura was given. All the other doctors who conducted autopsy on the deceased, all opined on the same lines as Dr. Archanca. All the medical evidence is admissible as expert opinion under Section 45 of Indian Evidence act, 1872. Now Prosecution has argued that the accused invited the family member for a tea party and thus gave them Dhattura to sedate them and kill them easily. No traces of Dhattura or its effect was found on the bodies of the deceased. All the medical officers testified that there no effects like dryness in throat, dim vision, vomiting and headache, dilation of pupils, restlessness in any of the deceased. The prosecution failed to establish the link between the Dhattura and the crime committed. The Bombay High Court allowed the Criminal Appeals and set aside the conviction and sentence of the appellants. The decision was erroneous in law. The court ignored evidence which was pointing towards the guilt of the accused but the court choose to look the other way. The court did not placed reliance on the motive issue on account of witness turning hostile, the slipper evidence because the slipper evidence was circumstantial, the blood stained cloth because of a procedural lapse by the police which was very minor, and the biggest blunder, the throwing ways of a confession based on no hard evidence or justification by the court.
| cASE COMMENT ON Manoj Mahadev Gawade Vs.The State of Maharashtra |
[1] (1993) CCR 486 (SC) [2] MANU/PR/0001/1939 : AIR 1939 P.C. 47
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Matrimonial Communication
- 1.2. THE STRUCTURE AND FLOW OF THE PAPER
- 1.3 LIMITATIONS OF THE PAPER
- 2. GENERAL OVERVIEW OF THE PRIVILEGE
- 2.1 PRINCIPLE OF PRIVILEGE
- 2.2 NATURE AND EXTENT OF PRIVILEGE
- 2.2 (I) OVERHEARD STATEMENTS
- 2.2 (II) ANY COMMUNICATION
- 2.2 (III) "COMMUNICATIONS" NOT "ACTS"
- 3. COMMUNICATION CAN BE PROVED BY OTHER MEANS
- 4. EXCEPTION TO RULE OF S. 122: CRIME COMMITTED AGAINST ANOTHER
- 5. ENGLISH AND INDIAN LAW: THE COMPARISON
- 6. CONCLUSION: SPECIAL REFERENCE TO PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT, 2005
1.2. THE STRUCTURE AND FLOW OF THE PAPER
The paper has been dealt with in a heading wise manner. It is divided in Sections and sub sections. Each part has been separately dealt with. First the researcher has discussed the scope of the section along with the reasons behind its enactment. Then the researcher has gone on to understand the various ingredients covered under it and this has been done with the help of relevant case laws on the particular ingredient dealt with. Few landmark judgments on the issue have also been discussed in detail to provide for a holistic understanding of the issue. What the communication as privilege includes and what it excludes has also been stated. Finally at the end the section has been viewed in a critical light. Its necessity versus impediments it causes in making available important evidence at times. The researcher has also provided some views on the contemporary application of the age old section in some recent acts enacted and how its exception can still be justified according to it.1.3 LIMITATIONS OF THE PAPER
A limitation in doing this paper has been availability of a few cases that have been decided under this section. Also there are varying opinions of the Courts on this privilege. Even in the last few years only a few cases have been found including the High Courts along with the Supreme Court. No Supreme Court case has been found relating to Section 122 of the Indian Evidence Act in the last 4 years.2. GENERAL OVERVIEW OF THE PRIVILEGE
It has been seen that husbands and wives are competent witnesses in all civil proceedings, and in criminal proceedings against an accused, his or her wife or husband is a competent witness, whether for or against. S. 120 [3] deals with competence or admissibility. But S.122 [4] affects compellability, and contains a rule of privilege protecting the disclosure of all communications, between persons married to one another, made during marriage, except in certain cases i.e. in litigation between themselves [5] . Under Sec. 120, Evidence Act, the wife of an accused person is a competent witness. Under Sec. 122 the wife is not permitted to disclose any communication made by the husband during marriage unless the husband who made it consents. The prohibition is extended to all communications of whatever nature which pass between husband and wife. [6] The provisions of the section can be summarized as [7] :- The privilege extends to all communications made to a person during marriage, by any person to whom he or she has been married, but not to communications before marriage. The communication need not be confidential. The rule applies to communications of every nature. The rule of privilege applies equally whether or not the witness or his or her spouse is a party to the proceeding. It extends to all cases, i.e. to cases between strangers as well as to suits or proceedings in which the husband or wife is a party. The privilege extends to communications made to a spouse and not to those made by a spouse. But the privilege is conferred not on the witness (unless the witness happens to be the spouse who made the communication), but on the spouse who made the communication; the witness cannot therefore waive it at his or her will, nor can the court permit disclosure even if he or she is willing to do it. [8] It is only the spouse who made the communication or his or her representative in interest who can consent to give up the privilege. The prohibition continues after the death of one of the parties to the marriage or divorce. [9] The obligation is to continue beyond the subsistence of marriage. The fact that a motion for divorce or for declaration of nullity of marriage has been made does not stop the obligation from continuing. The admissibility in evidence of the communication will be adjudged in the light of the status at that date. [10] It has been held in England that as the privilege in the English section (s 3 of the Evidence Am Act 1853) in terms relates only to husbands and wives, it does not exist after the marriage has come to an end [11] . The words "husband" and "wife" which are used in the English section do not appear in s.122. Moreover, when the section was framed the intention was to codify the then prevailing law in England which had been construed to apply to widows, widowers or divorced persons [12] . Further it is probable that the words "husband" and "wife" were excluded from the Indian section with a view to make it clear that the privilege continues even after the death of one of the parties or divorce. The use of the words "representatives in interest" points to the same conclusion.2.1 PRINCIPLE OF PRIVILEGE
The prohibition under Sec. 122 of the Indian Evidence Act is based on the ground that the admission of such testimony is likely to disturb the peace of the family and weaken the feeling of mutual confidence. It rests on technicality that can be waived at will but is founded on a principle of high import which no Court in entitled to relax. It is further not confined to cases where communication is of strictly confidential character. In fact, it extends to all communications of whatever nature, which pass between the husband and the wife unless the spouse making the communication consents to its disclosure [13] . Section 122 of the Evidence Act recognizes the age-old concept of marital confidence that all communications between spouses during the wedlock are sacrosanct. This section limits the rule enunciated in s.120. [14]2.2 NATURE AND EXTENT OF PRIVILEGE
The prohibition enacted by this section rests on no technicality that can be waived at will, but is founded on a principle of high import which no Court is entitled to relax. It extends also to cases in which the interests of strangers are solely involved, as well as to those in which the husband or the wife is a party on the record [15] . It is however limited to such matters as have been communicated "during marriage", and consequently, if a man were to make the most confidential statement to a woman before he married her, and it were afterwards to become important in a civil suit to know what the statement was, the wife, on being called as a witness, and interrogated with respect to the communication, would, as it seems be bound to disclose what she knew of the matter [16] . The protection would not extend to facts coming to knowledge during the marriage, but from extraneous sources [17] . The privilege applies only to those who profess to maintain towards each other the legal relation of husband and wife. For the application of Section 122, it is not necessary that wife or husband should be a party to the case or proceeding. In any case, irrespective of the persons who are the parties to it, any communication made by a wife to her husband or by a husband to his wife is prevented from being roved in a court of law [18] .2.2 (I) OVERHEARD STATEMENTS
The privilege extends to all communications between husband and wife while they are alone or in the presence of children of tender years and also to communications which have been overheard by others. But under the English and American rule third persons are allowed to give evidence of communications between married persons made in their presence or overheard by them [19] . Markby says that the protection conferred in India is greater is greater than the English law, because in India the witness is not permitted to disclose the communication, so that the person making it, as well as the witness to whom it is made, is protected. In England the witness only is protected [20] .The law does not however appear to be otherwise in India and there is no reason why communications made in the presence or overheard by third persons should be protected from disclosure by those persons. [21]2.2 (II) ANY COMMUNICATION
The section speaks of 'any communication' and so the privilege extends to all communications of whatever nature passing between married persons and is not confined to communication of a confidential character. The words 'any communication' are wide enough to embrace communications of every nature including ordinary conversations relating to business affairs which are not of a private or confidential character. [22] As a general rule, the privilege includes letters from one spouse to another [23] . But threatening letters by a husband to his wife while they are living apart in contemplation for a suit for divorce are not confidential communications [24] . And to commit the communication to a third person to be transmitted to the wife, whether orally or in writing, destroys the element of confidence, nor is it a communication made by the husband to the wife [25] .2.2 (III) "COMMUNICATIONS" NOT "ACTS"
The protection extends only to communications, ie utterances and not acts. The confidence, it may be argued, which the husband and wife desires, and the freedom from apprehension which the privilege is designed to secure, must be supposed to be equally desirable for conducts as for utterances. The difficulty with this though is that it proves too much. On the one hand, the privilege does not apply to domestic conduct as such, and on the other hand it is equally true that any particular act or conduct may in fact become the subject of a special confidence in the wife alone, i.e. may become communication to her [26] . While his domestic acts are not ordinarily to be treated as communications, nevertheless it is always conceivable that they may by special circumstances be made part of a communication. It is clear that the mere doing of an act by the husband in front of the wife is not communication of it by him, for it is done for the sake of doing and not for the sake of disclosure. There must be something in the way of an invitation of the wife's presence or attention with the object of bringing the act directly to her knowledge [27] . The statement of the wife that she saw the accused (her husband) on the early hours of the day of the murder while it was still dark coming down the roof of his house, that he went to the bhusa kothri and came out again and took a bath and wore the same clothes, is not inadmissible as it has reference to his acts and conduct and not to any communications made to the wife. [28]3. COMMUNICATION CAN BE PROVED BY OTHER MEANS
Under Section 122 of Evidence Act, a wife cannot be compelled to disclose any communication made to her. Communications between husband and wife during coverture is privileged and its disclosure cannot be enforced. The law does not protect the communications as such, but only excludes the spouse from being a witness to prove it. A communication between a husband and his wife is not protected if it can be proved without their assistance: it is the individuals and not the communications who are protected. [29] In a case of Kerala High Court, the husband wrote a letter to his wife residing at her parent's house. The letter contained defamatory matters against the father of the wife. The father got the letters and filed a complaint for defamation against the husband and he filed those letters. It was held that the letters were not relevant and it was observed that if such evidence is allowed the section will be rendered illusory and what the wife is not permitted to do herself and she can do through a relation of her to the prejudice of her husband. [30] The Supreme Court over-ruled the decision of the Kerala High Court and held Section 122 of the Evidence Act only prevents disclosure in giving evidence in court of the communication made by the husband to the wife. If the wife appears in the witness box to give evidence about the communications made to her in the letters sent by her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless the husband consents. That does not, however, mean that no other evidence which is not barred under Section 122 of Evidence Act or other provisions of the Act cannot be given. [31] Similarly in another case Rumping, the mate of a Dutch ship was tried for murder committed on board the ship. Rumping had written a letter to his wife in Holland which amounted to a confession. Rumping had written the letter on the day of the killing and had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrives at the port outside England. The member of the crew handed over the envelope to the Captain of the ship who handed it over to the police. The letter was produced at the trial and it was held to be admissible. [32]4. EXCEPTION TO RULE OF S. 122: CRIME COMMITTED AGAINST ANOTHER
There is one exception to the general rule. When there is a Civil suit between the husband and the wife the communication between them can be proved by them. Again in a criminal proceeding if a wife is prosecuted for an offence committed by her against her husband or if the husband is prosecuted for an offence committed by him against his wife, the other spouse will be allowed to disclose any communication made by him or his partner. But offence must be one against the other [33] . The prohibition does not exist between in any suit between married persons, eg under s.52 Divorce Act and other litigation between them. [34] It does not also apply in proceedings in which one married person is prosecuted for any crime against another, viz offences against person, assault, bodily injury, wrongful confinement or any other form of offence eg theft by one of the spouse against the other. [35]5. ENGLISH AND INDIAN LAW: THE COMPARISON
In civil cases in England the privilege was contained in section 3 of the Evidence Amendment Act, 1853 [36] which provided that: "No husband shall be compellable to disclose any communication made to him by his wife during the marriage and no wife shall be compellable to disclose any communication made to her by her husband during the marriage". In Taylor (s910), Halsbury [37] and other English books it was assumed that the privilege also existed at common law before the Act of 1853, and that relying upon certain cases [38] that even after the marriage is severed by death or divorce. After an exhaustive survey of the nature and extent of the privilege, it was held that the old common law rule that communication between husband and wife were not admissible in evidence concerned solely with the competency (i.e. admissibility) and not compellability (i.e. privilege) and that the privilege is the creation of the statute of 1853. [39] At common law there never was a separate principle or rule that communication between husband and wife are inadmissible in evidence on grounds of public policy; accordingly, unless the spouse is a witness and claims witness privilege communications between husband and wife are admissible. [40] It was further held that the privilege does not continue after the marriage has come to an end, i.e. it does not apply to widow, widowers or divorced persons [41] . The privilege has now been completely abolished in civil cases by the Civil Evidence Act 1968 [s 16(3)]. Some further changes have been made by the police and Criminal Evidence Act, 1984 under which it has been held that a former wife is competent to give evidence against her ex-husband of events that occurred during their marriage and before this Act came into force. The words 'any proceedings' were taken to mean any proceedings that took place after the section came into effect, even if the events were anterior to that date [42] . Even apart from this wife has always been regarded as a competent witness though not compellable and, therefore, she can of the own volunteer to give evidence I which case she will be treated as an ordinary witness and cannot refuse to answer questions on the ground of her non-compellability. [43] The main points of difference between the English and Indian Laws in criminal cases are:- In England the privilege does not apply to widows, widowers, or divorced persons as in India. There the privilege is conferred upon the witness alone, with the result that the other spouse has no right to object to the disclosure of the communications. Here it is the privilege of the spouse who made the communication and there can be no disclosure unless he or she, or his or her representative in interest gives consent.6. CONCLUSION: SPECIAL REFERENCE TO PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT, 2005
The privilege is not absolute. Because its effect is to deny evidence at trial, courts generally interpret it narrowly. And it is not confined to cases where the communication sought to be given out in evidence is of a strictly confidential character, but the prohibition is extended to all communications of whatever nature which pass between husband and wife [44] . Section 122 provides against disclosure of a ' communication ' and not against disclosure of effect of said communication. [45] The privilege thus not being absolute the exception to section 122 clearly states that the privilege cannot be claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple. This can be said to be in furtherance of upholding the principle of public interest and maintaining the sanctity of social institutions in the society. The idea behind such a concept is that state would intervene in the bedrooms of its citizens if it believes that privacy is being replaced by abuse and exploitation [46] . A similar objective can be observed to the enactment of the Protection of Women Against Domestic Violence Act, 2005 which aims to provide quick relief to all those women who endure physical abuse. Legally also it would give them their due and rights. To some extent it will put an end to the atrocities the woman, wife suffers at the hands of a violent man. It will safeguard and benefit marriages and relationships from violent domestic abuse. [47] The new act contains five chapters and 37 sections with an objective to expand the definition of domestic violence, wide enough to encompass every possibility as it covers all forms of physical, sexual, verbal, emotional and economic abuse that can harm, cause injury to, endanger the health, safety, life, limb or well-being, either mental or physical of the aggrieved person [48] . And finally bring it within the purview of a hardcore offence. Primarily meant to provide protection to the wife or female live-in partner from violence at the hands of the husband or male live-in partner or his relatives, chapter - V S. 32 (2) goes even further and says that "under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused." [49] The Indian Evidence Act which applies to both civil and criminal law finds its application to the Domestic Violence Act also and since it discusses about a matrimonial offence, the protection of privilege under section 122 would not be applicable in such cases of matrimonial offences against the husband. So it can be seen that though section 122 of the Indian Evidence Act protects a spouse from disclosing the communication between them in public and making use of it as evidence in a court of law. It also provides an exception, which bars such privilege in cases where the spouse himself/herself is perpetrator of crime against the other spouse. The adjective nature of the Evidence Act makes it important enough to find its application in the newly legislated Domestic Violence Act, 2005 with an aim to cover every kind of domestic violence within its purview. Such an increased application maintains the effectively of decades old legislation and makes it competent enough to be still relevant in the present and contemporary context thus justifying the need for the section and the need for its exception. Another aspect of this section can be seen with respect to its attack on the privilege. The father of the modern attack on spousal testimonial privilege appears to have been Jeremy Bentham, who harshly criticized various rules of exclusion, particularly the exclusion of the testimony of spouses for and against each other. Bentham, and other critics argued either that the privilege did not, in fact, promote marital harmony or that promotion of marital harmony was not, under the circumstances, worth the cost of forgoing the spouse's evidence [50] . The common attack on the instrumental rationale was that some marriages are beyond saving. The modern attack on the policy basis for the disqualification relies heavily on the idea that some broken marriages are not worth protecting, at least not at the cost of foregoing valuable evidence [51] . So it has to be critically viewed in that light to see whether the sanctity of marriage as the age old principle behind this section should regain the importance attached to it or, in the light of recent developments and changing societal situations of short lived marriages and divorce proceedings becoming a common sight the section should become more flexible in its scope so as to not compromise the evidentiary value behind it on the basis of such sanctity by providing it as a privilege.Cite this page
Matrimonial Communication. (2017, Jun 26).
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