International Journal of Public Law and Policy (20 papers in press)

Regular Issues

• The public debt as handicap to economic growth  
  by Natália Teixeira, Rita Luz, Rui Vinhas Da Silva, Leandro Pereira, Sérgio Vinhas Da Silva 
  Abstract: The impact that public debt has on economic growth is increasingly a topic of interest and it has been since the most recent economic and financial crisis of 2008 that it has come to occupy a prominent place in the literature. In this context, it becomes extremely important to understand the impact that the increase in public debt has on the growth of economies. Thus, the purpose of this research paper is to assess the effect that debt may have on the economic growth of countries. We analyse the relation in three countries: Estonia, Greece and Portugal. Our findings suggest that the public debt of these countries do not directly affect the growth.
  Keywords: public debt; economic growth; correlation; Estonia; Greece; Portugal.
  DOI: 10.1504/IJPLAP.2022.10052064
   
  
• Some observations on the 2021 new Penal Code of the United Arab Emirates  
  by Adham Hashish 
  Abstract: On January 2nd, 2022, the United Arab Emirates started enforcing its new Penal Code that was issued according to the Federal Law No. 31/2021. This new Penal Code replaced the previous one that governed crimes and punishments in the UAE since it was founded in 1971. As the country celebrated its 50th anniversary, it has introduced the largest legislative reform in its history. This reform addressed a variety of topics such as commercial companies, trademarks, personal data protection and electronic transactions. However, this article focuses on the new Penal Code and presents an overview on its background and main features.
  Keywords: Penal Code; crimes; punishments; United Arab Emirates; UAE; Hudud; Islamic law; reform.
  DOI: 10.1504/IJPLAP.2022.10052734
   
  
• Admissibility of illegally obtained evidence for criminal cases in Malaysia  
  by Karunanithi Kanagaraj, Ramalinggam A./.L. A. Rajamanickam 
  Abstract: This article will inquisitively attempt to discuss the principles which govern the admissibility of illegally obtained evidence in Malaysia. Presently, there are no attempts to codify the law, specifically the Evidence Act of 1950 and the Criminal Procedure Code, to exclude illegally obtained evidence. For decades, the judicially created exclusionary rules of common law principles have carved out legal propositions within the Malaysian legal system, enabling judges to exclude illegally obtained evidence. Judges often resort to the balancing exercise to secure a fair trial by balancing the competing interests on public policy grounds. Apex court decisions postulate the existence of the exclusionary power to be largely discretionary and it has been applied rather lucidly to infinitely variable situations. The existence of admissibility principles has provided adequate support for Malaysian courts in their efforts to exclude illegally obtained evidence. However, as modern evidence law advances, changes in the law are expected.
  Keywords: admissibility; illegally; evidence; common law; discretion; Malaysia.
  DOI: 10.1504/IJPLAP.2022.10052885
   
  
• Contractor’s entitlement to the costs of acceleration  
  by Aymen Masadeh, Saif Al Hin 
  Abstract: Contractor’s entitlement to acceleration costs of works remains a controversial issue in the construction globe. This may depend on three essential criteria namely, contract provisions, country legal jurisdiction, and acceleration types: direct, voluntary, or constructive. Therefore, this paper analyses acceleration costs under these criteria and explore courts views around the world and in particular the United Arab Emirates (UAE), and FIDIC Red books (1999 and 1987). This study applies the quantitative and documents analysis methods using primary and secondary resources and the market survey results conducted in the UAE construction industry. The paper concludes construction contracts need to specify express and precise wordings to determine who will bear the acceleration cost. This paper will be the first of its kind to discuss this controversial issue of acceleration costs with a particular focus on UAE using rare and empirical approach.
  Keywords: acceleration; delay; cost; claim; FIDIC; construction contracts; UAE.
  DOI: 10.1504/IJPLAP.2023.10053612
   
  
• The labelling of ultra-processed foods, ideological biases and false consciousness. A historical narrative of the experience in Colombia  
  by Rubén Méndez Reátegui, Juliana Castellanos Diaz 
  Abstract: While COVID-19 attacked people with diabetes, hypertension, and obesity, among other non-communicable diseases, the former Colombian government was betting on implementing a value-added tax (VAT) on the cost of production for food for the family basket (Paladines and Castellanos, 2021a, 2021c, 2021d, 2021e). It was added to a scenario of institutional weakness, evidenced by a social context ruled by a legal architecture showing a lack of positive and structural impact in the protection of the right to health, safeguarding the sovereignty of the consumer, and in short, in satisfying the general interest of a population immersed in a background of false consciousness, scenarios of sub-optimal choice and the prevalence of ideological and cognitive bias. Moreover, this article proposes a historical account if we consider the recent changes in the Colombian normative-regulatory model in the labelling of ultra-processed foods before the approval of a new regulation and agenda in December 2022.
  Keywords: ultra-processed foods; false consciousness; ideological and cognitive biases; law and journalism; Colombia.
  DOI: 10.1504/IJPLAP.2023.10054127
   
  
• The right of public employee to defend disciplinary penalty in Jordan  
  by Tariq Kamal Alhasan, Sadam Mohammad Awaisheh 
  Abstract: Using a critical, analytical and comparative approach whenever necessary, this article aims to focus at the adequacy of Jordanian legislation to ensure the employees right to defend himself facing the administration, since the administration is the opponent and the judge at the same time in the front of the public employee, at the same time, the right of defence is a sacred right whose violation entails the cancellation (vacating) of the disciplinary decision if it violates these guarantees, with some exceptions; such as the employee defending himself, leaving work, engaged in prohibited strike, due to this matter, its required the existence of an administrative prosecution whose task is to investigate as an independent body, instead of the administration, and to make the employee understand his legal rights.
  Keywords: public employee; right of defence; disciplinary; administrative law; Jordan.
  DOI: 10.1504/IJPLAP.2023.10054176
   
  
• Smart growth-based policy suggestions for housing the evolving gig workforce in American cities  
  by Roshni Das 
  Abstract: The gig economy is expanding at an unprecedented rate in the USA. What this means for urban policy is that there are likely going to be repercussions for effective land use in American cities. Specifically, urban areas are going to experience a crunch in affordable housing to accommodate the gig workers. This essay is a theoretical exercise in suggesting solutions that can address this anticipated housing crisis. To do so, the paper borrows from the smart growth approach, currently being championed by the Environmental Protection Agency, a US federal government agency, to propose three policy alternatives to address the stated problem. These are: mixed-use development in infill or brownfield areas such as downtown, rezoning for mixed-use land use and transit-oriented (greenfield) development. Based on our goals-alternatives matrix and comparative scoring method, we recommend that mixed-use brownfield development is the most optimal solution for city planning in the future.
  Keywords: housing; gig economy; the USA; smart growth; policy.
  DOI: 10.1504/IJPLAP.2023.10054540
   
  
• Oil giant, climate saviour, or somewhere in between? Human rights and the Norwegian climate paradox  
  by Erick Da Luz Scherf, Marcos Vinicius Viana Da Silva 
  Abstract: Norway’s recent decision to expand oil and gas exploration further North into the Barents Sea is contrasted with its active leadership role in global climate policymaking. We argue that this contradiction is a result of the key role petro-capitalism still plays in Norway, in addition to the countrys geopolitical aspirations in the Arctic. However, solely legalistic approaches to human rights and sustainability often miss out on the dynamics of power, capitalism, and industry interests and their influences on climate litigation. Thus, this article presents a critical assessment of climate and environmental litigation at the European Court of Human Rights by also looking at the recent application Greenpeace Nordic and Others against Norway. The goal is to understand both the possibilities and limitations of the human rights-sustainability framework vis-a-vis fossil fuel industries and the overall position of environmental rights claims within global capitalism.
  Keywords: human rights; climate change; Norway; European Court of Human Rights; ECtHR; oil industry.
  DOI: 10.1504/IJPLAP.2023.10054627
   
  
• Strengthening legal framework to combat hate speech on social media: the Indian strategy towards a safer online space  
  by Kriti Kaushik, Sonu Agarwal 
  Abstract: The extent of hate speech on social media platforms is increasing gradually. In the absence of any fixed definition in the law, detection of harmful content becomes arduous. Any attempt to define the limits of hate speech might meet the fate of Section 66-A of the Information Technology Act which was expunged by the Supreme Court of India due to gross violation of free speech. Recently, the Indian Government has introduced new Information Technology Rules, 2021, whereby social media intermediaries must comply with certain guidelines to ensure safety in cyber space. This is a welcome step because these guidelines will make social media companies more responsible, however concerns of censorship still loom large. Therefore, this research aims to find out those problem areas which impede the effectiveness of the extant law to tackle online hate, how other countries deal with similar difficulties and whether India can follow similar footsteps.
  Keywords: hate speech; social media; information technology; free speech; regulation.
  DOI: 10.1504/IJPLAP.2023.10055422
   
  
• The significance of internationally standardised microorganism depository institution after the Budapest Treaty ratification in Indonesia  
  by Srining Widati, Ahmad M. Ramli, Miranda Risang Ayu, Dadang Epi Sukarsa, Lilis Mulyani 
  Abstract: The suitable depository institution as a candidate for an International Depository Authority (IDA) has not been established in Indonesia and it affects the legal framework at the national and international levels. This article aims to analyse the challenges in establishing a microorganism deposit institution in Indonesia, which has ratified the Budapest Agreement. We used normative juridical research methods, focus group discussion, and in-depth interviews with selected stakeholder representatives. The results showed that the Indonesian government has not appointed any official, national-level institution, following the international laws and regulations, to deposit microorganisms in the patent application. Indonesia has not determined the candidate of the Institution for the IDA either. However, Indonesia Culture Collection (InaCC) depository agency is a strong candidate for both purposes. Three recommendations should be developed: the protection and utilisation of native microorganisms, the utilisation of genetic resources big data, and the implementation of Material Transfer Agreement (MTA).
  Keywords: Budapest Treaty; International Depository Authority; IDA; microorganism depository; patent; Indonesia.
  DOI: 10.1504/IJPLAP.2023.10056766
   
  
• The meaning of against justice in judicial decisions of criminal cases in Indonesia  
  by Sidik Sunaryo 
  Abstract: The actual and binding nature of judicial decisions lies in their substance which reflects substantive justice. If a judge’s decision does not meet procedural justice and substantive justice, it is referred to as a judge’s decision against justice. This study aims to establish the principle of qualification of judges’ decisions in criminal cases against justice in Indonesia. As a methodology, this study used a combination of philosophy, cases, and doctrine for analysis. The study found the construction of judges’ decisions against justice and the construction of judges’ decisions in criminal cases that guarantee fair legal certainty in Indonesia. This study found that the construction of the justice decisions that are against justice are typified by: First, ignoring theological value in terms of the top verdict. Second, ignoring the substantive meaning of written law (moral reading). Third, do not contain the value of humanity and universality (transcendental).
  Keywords: delaying legal certainty; delaying justice; against justice.
  DOI: 10.1504/IJPLAP.2023.10056813
   
  
• E-land registration system in Indonesia: policy, progress, and challenges  
  by Airin Rachmi Diany, Ahmad M. Ramli, Huala Adolf, Djuhaendah Hasan 
  Abstract: In order to tackle the issue of low level of land certification, which becomes the major cause for the land ownership dispute, the Indonesian Government uses information and communication technology (ICT) by introducing the electronic land registration system (e-LRS). The use of ICT in this area is deemed more efficient than the manual (paper-based) system and is also a part of the government agenda to improve the quality of land administration system (LAS). This paper discusses the government policy direction, their ongoing progress, and the challenges of the e-LRS in Indonesia. The paper also proposes the measures to support the policies in achieving their goals, which include the need to revise the country’s effective legislation and the effort to improve the prerequisite condition. The research uses the methods of descriptive and exploratory approach towards the laws and regulations, and data collection from relevant sources.
  Keywords: information and communication technology; ICT; Indonesia; land registration; land administration.
  DOI: 10.1504/IJPLAP.2023.10057092
   
  
• Sexual violence in cyberspace: breaking the silence of international law  
  by Shreya, Shampa Dev 
  Abstract: The increasing dependence of the world on digital technology and the internet has consequently led to the juxtaposition of the problematic social structure in online transactions and communications. This has resulted in increasing cases of cybersexual violence against women. The article argues that the effects of cybercrimes are transnational and, therefore, the traditional domestic criminal law is rather inept in preventing crime and punishing offenders. This increases the obligation of international law, which has so far remained silent on the issue. The article’s conclusion suggests that the proposed World Convention on Cybercrime should include cybersexual violence as a core crime. This would serve as a beginning for addressing the threat, effect, and extent of the crime of cybersexual violence. The article concludes that the masculinist normative structure of international law is to blame for its culture of silence.
  Keywords: sexual violence; cyberspace; breaking the silence; cybersexual violence; international law; criminal law.
  DOI: 10.1504/IJPLAP.2023.10057506
   
  
• The legality of vaccination in accordance with international and national standards  
  by Muaath S. Al-Mulla, Jamal Barafi 
  Abstract: National laws have disagreed with one another on the extent of the compulsoriness of the vaccination; some countries imposed compulsory vaccination and punished those who refused to comply with various sanctions. Other countries only informed individuals of the importance of vaccinations to combat infectious diseases and left them free to choose. This disagreement is reflected in national and international court rulings concerning the compulsoriness of vaccination. This study aims to understand the concept of compulsory vaccination, its legal nature, and the extent of the legality of obligating individuals to get vaccinated in the light of the international standards that support human rights principles, and how national legislators and judicial bodies handled competing priorities. This research comparatively analyses the approaches of the different national laws and policies in applying compulsory vaccination and reached a number of significant results and recommendations.
  Keywords: compulsory vaccination; human rights; boosters; punishments.
  DOI: 10.1504/IJPLAP.2023.10057777
   
  
• Fragmentation in International Energy Law: managing an inevitable phenomenon  
  by Hojjat Salimi Turkamani 
  Abstract: International Energy Law (IEL) in its process of gradual development and evolution has faced the phenomenon of fragmentation in terms of norms and institutions. Normative fragmentation is the logical consequence of the diversification of energy resources, the pursuit of national interests and the intersection of energy issues. Likewise, the reactive basis for the establishment of international organisations and the lack of a global energy organisation with comprehensive jurisdiction cause institutional fragmentation in IEL. This two-dimensional fragmentation leads to conflict or overlap between environmental, economic and political rules and institutions of energy law. The question is how this inevitable issue can be solved? This paper shows that normative fragmentation can be resolved on the basis of traditional VCLT principles, including the harmonious interpretation and supremacy of economic norms over others. But more initiative is needed in the management of institutional fragmentation. The article argues that the creation of world organisation with comprehensive jurisdiction, the preference of energy economic organisations and the creation of hybrid energy organisations are appropriate solutions for managing the institutional fragmentation, respectively.
  Keywords: International Energy Law; IEL; normative fragmentation; institutional fragmentation; coherence; efficiency.
  DOI: 10.1504/IJPLAP.2023.10058002
   
  
• Analysis of data policies, structural oppression and AI algorithms in India  
  by P.R. Biju, O. Gayathri 
  Abstract: The study reviewed the literature and global examples of AI biases anchored on social structures. The review found 13 global cases of algorithms anchoring on social structures and perpetuating social biases applicable to Indian situation: 1) IASGD; 2) DASCB; 3) ARR; 4) RBSE; 5) DUSGP; 6) DWJP; 7) DCP; 8) DJD; 9) BPCR; 10) BFRAM; 11) DMJP; 12) RLARMW; 13) AAHRSNPHC. Those cases are analysed in the ten policy drafts dealing with AI and data in the Indian context: 1) JBNSCR (2018); 2) DPDPB (2018); 3) NSAI (2018); 4) RAITF (2018); 5) PDPB (2019); 6) PRAI (2021); 7) JPCR (2021); 8) IDAUP (2022); 9) IDABNUP (2022); 10) DPDPB (2022). It revolves around three key research questions and understands that until and unless careful drafting of data policies does not find a priority, which gives enough attention to social structure, automation of social bias will become the new normal in Indian society.
  Keywords: social bias; automation; data policies; structural oppression; artificial intelligence; algorithms.
  DOI: 10.1504/IJPLAP.2023.10058073
   
  
• Multi-party suits in Tanzania: a case for class actions  
  by Naufal Kitonka 
  Abstract: Multi-party suits in Tanzania can take different forms such as joinder, representative actions and public interest actions. However, representative actions are currently the main procedures for handling claims for compensation involving large groups of similarly affected victims. Generally, multi-party procedures have the great potential to provide parties with an effective remedy. However, in order for these procedures to effectively play that role, they should be convenient, properly managed and clearly provided for in the legislation. This article examines the legal framework in Tanzania concerning multi-party procedures. It shows that strict adherence to the same interest and locus standi requirements makes multi-party procedures too restrictive to interested parties who wish to litigate suits on behalf of others. In order to guarantee the proper management of multi-party suits, a case for class action rules is made, which in this study are used in a narrow sense to mean procedures that provide flexibility of locus standi to numerous parties, both known and unknown, with common issues in fact or law. Finally, a reform of the legal framework is recommended so that class action rules are enacted in the form of regulations or a specific law.
  Keywords: multi-party suits; Tanzania; representative suits; class action suits.
  DOI: 10.1504/IJPLAP.2023.10058650
   
  
• Right to freedom during COVID-19: a study of Article 19 of the Indian Constitution in light of COVID-19  
  by Karun Sanjaya, Mohammad Saleem, Utsa Sarkar 
  Abstract: The year 2019 ended with a virus that is believed to be the first sought in the Wuhan Province of China. The ensuing epidemic was not limited inside China’s borders, and it went on to infect huge populations in other countries as well. On January 30, 2020, it was proclaimed a public health emergency of international concern, and on March 11, 2020, it was declared a pandemic. As a preventative step against the COVID-19 pandemic in India, the government imposed a statewide lockdown on March 25, 2020, restricting the mobility of the whole population. Services of everyday use such as transportation were suspended to contain the spread of the virus. Although necessary, these measures threatened people’s fundamental rights. This paper discusses the interference with the fundamental rights of the common people, specifically those under Article 19 of the Constitution of India, caused by the government’s nationwide lockdown.
  Keywords: pandemic; COVID-19; lockdown; fundamental rights; Article 19.
  DOI: 10.1504/IJPLAP.2023.10059727
   
  
• The good governance of community development based on hamlet system: a case study in Condongcatur village, Indonesia  
  by Nuryanto, Sugiyanto, Darusalam 
  Abstract: This research emphasises the understanding of the good governance of Condongcatur village as the first village in Indonesia that led to successful Hamlet-based community development. This study was conducted by qualitative approach research as well as data collected by literature study, observation, and interviews. Primary and secondary data are integrated into the content analysis. Data validity was assessed using credibility, transferability, and conformability tests. The case studies were conducted in Condongcatur village. The results showed that the policies were very effective, efficient, and right on target because the focus of development was adjusted to the needs of the community at the Hamlet level. The constraints of each Hamlet were various levels of knowledge, the program, implementation accuracy, and accountability. This study has captured the best practice of Hamlet-based community development in Condongcatur village that might be adopted and implemented in other regions in Indonesia.
  Keywords: good governance; community development; hamlet system; public policy; Indonesia.
  
  
• The impact of Washington Consensus rules on the guarantee of constitutional social rights in a comparative perspective in Latin America  
  by Oscar Sumar, Andrea Villanueva 
  Abstract: Using quantitative and qualitative methods, this study examines the relationship between economic policy approaches, and the supply of public utilities and merit goods in ten selected Latin American countries. Focusing on the extreme cases of Chile, Peru, Venezuela and Bolivia, the article employs a comprehensive analysis of dozens of constitutional provisions, economic and constitutional literature, illustrative case studies to assess the effects of various policy options directed to make people enjoy greater well-being. The results indicate that adherence to economic orthodoxy, as expressed by the Washington Consensus, appears to have a greater impact on the provision of fundamental goods and services, as a trend in the ten countries.
  Keywords: Washington Consensus; economic orthodoxy; economic heterodoxy; economic growth.
  DOI: 10.1504/IJPLAP.2023.10060509