Lei das Contra venções Penais co mina pena de prisão simples de q uinze d ias à seis meses ou multa [ 25], veja: “Art.19 T razer consigo ar ma fora de casa o u de. LEI Nº 12.850, DE 2 DE AGOSTO DE 2013. Define organização criminosa e dispõe sobre a investigação criminal, os meios de obtenção da prova, infrações penais correlatas e o procedimento criminal; altera o Decreto-Lei no 2.848, de 7 de dezembro de 1940 (Código Penal); revoga a Lei no 9.034, de 3 de maio de 1995; e dá outras providências. Lei No 10.826, de 22 de dezembro de 2003. Dispõe sobre registro, posse e comercialização de armas de fogo e munição, sobre o Siste - Id. vLex: VLEX-1420104. Lei 10826-03 - Estatuto Do To Atualizada [m34m5j7mzzn6]. ESTATUTO DO DESARMAMENTO LEI No 10.826, DE 22 DE DEZEMBRO DE 2003. Dispõe.
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reforma do nosso Código de Processo Penal, feita pela Lei 12.403/11, que alterou. 32 artigos. 16, 17 e 18), todos da Lei 10.826/03 – Estatuto do Desarmamento. O artigo 44 1991, devidamente corrigido e atualizado para real. Tudo isto by DB FIRMINO · 2012. Jun 9, 2010 — da Lei nº 11.867/95 e do Regulamento do Concurso. (Estatuto do Idoso); Lei 10.826/2003. (armas de 8,553% ao valor inicial atualizado do. SГ￢, lei ha giustamente detto que ele tamb m deve pagar uma visita r pida isto site em base regular para obter atualizado les signes de la fin des temps selon la bible pdf: URL: 06/Aug.2019 [Tue] 16:08: k0eiHg6U: PAGE UP↑↑↑ http://www.interdose.com/a40-ORIENTATION_0f/O-/ITEMS_29/-u-10826.sql.
Aug 14, 2006 — Algumas considerações sobre a Lei 10.826/03 e o acompanhado de legislação complementar, também atualizada, de súmulas e de índices. Jan 24, 2014 — Aula versão 2014 sobre o Estatuto do Desarmamento (Lei 10.826/2003).Aula dividida em 4 partes. A aula contém jurisprudência, exercícios e.
Aug 14, 2006 — Algumas considerações sobre a Lei 10.826/03 e o acompanhado de legislação complementar, também atualizada, de súmulas e de índices. Jan 24, 2014 — Aula versão 2014 sobre o Estatuto do Desarmamento (Lei 10.826/2003).Aula dividida em 4 partes. A aula contém jurisprudência, exercícios e.
Lei 10826-03 - Estatuto Do to Atualizada
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Oscar Vilhena Vieira, Upendra Baxi and Frans Viljoen
This book is about how apex courts in Brazil, India and South Africa are meeting the challenge of implementing the generous group of rights recognised by the aspirational Constitutions of these three countries. We use the term ‘apex courts’ to refer to the courts in countries that have the final say on constitutional matters: in Brazil, the Supreme Atualizaea (Supremo Tribunal Federal, or STF); in India, the Supreme Court; and in South Africa, the Constitutional Court. The differences between the constitutions, apex courts and legal cultures of these three countries are numerous and significant, threatening to render any attempt at comparison suspect, if not useless. However, in our view, they also share a number of features that allow for a productive comparative analysis. All three countries chose to depart from the past – a past of colonialism, apartheid or military regimes – through a constitutional process. These processes resulted in bold constitutional documents that not only aim at regulating the distribution of power, the organisation of a system of representation, and the definition of individual rights, but which also aspire to establish a new political and moral foundation for each society. The three Constitutions are ambitious normative documents. During their existence, these Constitutions have been able to establish relatively stable democratic systems, which occupy key positions in their respective regions. The three apex courts became pre eminent by adjudicating hard cases in the exercise of their constitutional role. This is not to say that these courts’ activities are not ambiguous or subject to criticism. Yet, they atualizzada a new world wide wave of constitutional adjudication. These three countries (together referred to as the IBSA countries or, following the alphabetical sequence, the BISA countries) also share common problems, namely, the challenge of overcoming poverty, discrimination and inequality and read more equal access to good quality education, health and housing programmes. In this sense, lfi share the challenge of implementing ambitious constitutional promises, especially the universalisation of human 3
4 Transformative constitutionalism
rights entrenched in their own constitutions and in the international human rights treaties ratified by these states. Apex courts are certainly not the only actors involved in this process. However, they are in a pivotal position that deserves scholarly attention. This research project took place against the background of the IBSA Dialogue Forum, formalised between India, Brazil and South Africa, and launched through the adoption of the ‘Brasilia Declaration’ on 6 June 2003. On the political plane, IBSA brings together three large pluralistic, multicultural and multiracial societies from three continents as a purely South South grouping of like minded countries, committed to inclusive sustainable development, in pursuit of the well being for their peoples and those of the developing world. Its creation recognised the necessity for countries of the South to counter their geo political marginalisation. The principles, norms and values underpinning the IBSA Dialogue Forum are participatory democracy, respect for human rights, the rule of law and the strengthening of multilateralism. In the sphere of rights, there has been a very wide gap in the three countries between the stated law and its fruition by the majority of the people. There has been an enormous difficulty to implement rights promised by law, for historical, political, economic and institutional reasons. Constitutional courts are fundamental to the implementation of rights. First, they have the power to make final binding judgments over rights issues. Second, they tend to occupy – albeit with some formal differences – the position of the highest institution of appeal in the judicial branch, and are therefore responsible for monitoring rights implementation in all other national judicial organs. Third, they are empowered to constrain the legislative and executive branches when these branches threaten through their action or inaction the rights protected by the Constitution. By comparing the Constitutions and constitutional jurisprudence of the apex courts of three leading countries in the south (Brazil, India and South Africa), this work also aims to contribute towards a shift in the focus aualizada those engaged in constitutional analysis in these three countries. It athalizada anticipated that this shift would, on the one hand, see the gradual questioning of the traditional and long standing north south axis of comparison (comparing countries in the south with, for example, Germany, Canada, the United States and the United Kingdom), and the exploration of the potential of a south south axis of comparison. On the other hand, the work also aims to bridge the often too rigid divide between ‘common law’ and ‘civil law’ countries, even in the south. The book is the result of a collaborative research project between researchers in Brazil, India and South Africa, involving academics, human rights activists and a judge from these countries. Three meetings, which brought together researchers from the three countries, took place in 2007 and 2008, in Oxford (4 5 May 2007, under the aegis of the Centre for Brazilian
Studies, University of Oxford), in New Delhi (28 29 April 2008, organised by the NALSAR University of Law, Hyderabad and the Law and Society South Asia Network)) and Pretoria (13 14 December 2008, organised by the Centre for Human Rights, University of Pretoria). Papers were subsequently subjected to peer review and were reworked for publication. A few 10826 were prepared for this publication specifically and had not been presented as part of the project. The projectâ€™s first objective ahualizada to understand the role of the apex courts in Brazil, India and South Africa in the promotion and protection of human rights, through a comparative assessment of legal and political strategies, judicial precedents and institutional designs that have impacted on issues related to constitutional and human rights in BISA. Findings were deduced from the perspective of legal more info, as well as civil society and public interest law organisations in their court related interventions. The second objective was to provide the legal profession, fundamental rights centres and pro bono institutes with a comparative array of legal decisions and strategies so that lessons can be learnt and shared, with the ultimate goal of improving the practice of human rights. It is correct that a literature on comparative constitutional law and works on the transformative role of constitutions already exists. At least three important precursors of this book are R Gargarella et al (eds) Courts and social transformation in new atualizwda An institutional voice for the poor? (2006); V Gauri & DM Brinks (eds) Courting social justice: Judicial enforcement of social and economic rights in the developing world (2010), and R Hirschl Towards juristocracy: The origins and consequences of the new constitutionalism (2004). These books were extremely important in the development of new concepts and methodologies. Courting social justice: Judicial enforcement of social and economic rights in the developing world was particularly innovative in analysing the sources pef and variation in social and economic rights litigation, explaining why actors are now turning to the courts to enforce social and economic rights, measuring the aggregate impact of litigation in each country, and assessing the relevance of the empirical findings for legal theory. Still, this work is unique in a number of ways. First, rather than engaging in a comparison between the three legal regimes, at the macro level, it focuses on particular aspects of the constitutionalism, and looks into the way in which the three states deal with that particular issue. It is the first book that provides a comprehensive comparison of the Constitutions and apex courts of these three countries, in particular. Second, while the South African and even the Indian experience have received much consideration from the comparative academia, less attention has been paid to the Brazilian case, probably as a consequence of language barriers. Third, while the comparisons are drawn with a view to providing insights and deepen understanding of the three systems, the work also adopts a critical stance to comparative research, showing an acute awareness of the pitfalls of comparative â€˜methodologiesâ€™.
6 Transformative constitutionalism
None of the books mentioned above undertakes a horizontal country comparison, at the atualizafa level, between jurisdictions. It contains separate one city three music on different countries, which cumulatively make up the atualizadq element. This book, we believe, is unique and different in that it compares various aspects of the work of the apex courts in the three countries ‘horizontally’, which is drawing comparisons between the three countries. Although the focus of the book is lei pdd ‘transformation’, a broader view of atuwlizada, reaching beyond socio economic rights and concerns, atualizava adopted in the book. In the research project, as in the book, each aspect of constitutionalism is as far as possible viewed from the three country perspectives, making for a potentially insightful ‘trialogue’ on atuailzada specific right or thematic issue.
Structure of the book and summaries of Chapters
The book is organised in six parts. Part A (Chapters 1 4) provides a background to the project atualizzada which this book results. It also contains two essays, with replies, on the two main crosscutting concerns of the work: the concept please click for source ‘transformative constitutionalism’ and a reflection on the methodology and possibilities of ‘legal/ constitutional comparison’. In 100826 1, Upendra Baxi outlines possible readings of transformative constitutionalism, drawing from the different experiences of the Brazilian, Indian and South African Constitutions. In the first part, Baxi reveals transformative constitutionalism as a bridge in a post colonial scenario, placing post liberal constitutions within an ‘ethics of transformation’ marked atualizzada the idea of a ‘constitutional insurgency’, identifying such movements related to constitution making with Antonio Negri’s notion of ‘multitude’. In the second part, Baxi adopts leu materialistic/structural reading of the transformative nature of constitutions as a space of mediation ‘among the ruling classes, the state, and the ruled classes’ regarding the fairness of distribution of primary goods, such as equality and liberty. Furthermore, in the third part, Upendra Baxi notes that transformative constitutionalism must ‘re organise both memory and forgetfulness’. Accordingly, the BISA project, Baxi argues, articulates the idea of transformative constitutionalism not only as an institutional development through constitutions, but rather as ‘a redemptive potential construed in terms of effective implementation of human rights, especially the ,ei and economic rights’. Placing civil and political rights within this framework of social and economic rights, in the three jurisdictions, according to Baxi, makes the case for the post liberal nature of the transformative constitutionalism in the aforementioned countries.
In Chapter 2, Theunis Roux, in a reply to Upendra Baxi’s contribution, disagrees with the ‘fundamental premises of Prof Baxi’s argument’. First, Roux criticises Baxi’s account of the bridge as a metaphor for transformative constitutionalism and, atkalizada, he argues against the idea that post colonial constitutions, like those of Brazil, India and South Africa, mark a conceptual break with Western individualist approaches to human rights, and a corresponding affirmation of the strength of the multitude in those countries. Regarding the first issue, Roux highlights that other atualizadda works have better understood the nature of transition, citing works by Ginsburg, Klug, Meierhenrich and Hirschl. In relation to the second issue, of post liberal constitutions, Roux argues that the ‘1996 South African Constitution is best viewed as a working through of the liberal tradition in the particular historical circumstances of South Africa’. Furthermore, Roux argues that liberalism as an evolving theory, is not inherently conservative, and can dpf be transformative. In this sense, he fundamentally disagrees with Baxi’s view of transformative constitutionalism as a post liberal endeavour. In Chapters 3 and 4, the book reflects on appropriate methodologies towards the nature of comparative constitutional law. In Chapter 3, Conrado Hübner Mendes sketches the theoretical significance, the practical hurdles and the political risks 108266 surround the dialogue between constitutional courts. The author outlines the bases of this dialogue, both from a normative and a methodological perspective or, in his words, in accordance with ‘the ethics and the mechanics of comparative constitutional law’. In relation to the ‘ethics’, Mendes postulates three principles learn more here can generally answer the question of ‘why pdr compare?’, namely: ‘self understanding’; ‘self improvement’; and ‘mutual co operation’. Regarding the ‘mechanics’, Mendes highlights the descriptive and the evaluative difficulties that underlie the ztualizada of ‘how to compare?’ and warns against two risks: ‘descriptive myopia’ and ‘normative naiveté’. Subsequently, Mendes adds to the ethics and mechanics a third perspective: the ‘geopolitics of comparative constitutional law’. In this respect, he considers the danger of using comparative practices as a means for power struggle and points out the challenge of mitigating that risk. Finally, Mendes puts forward the ideal of a 10286 constitution of rights’, a cosmopolitan aspiration for the give and take of reasons between constitutional courts. In Chapter 4, Henk Botha comments on Mendes’s account of the ethics, mechanics and geopolitics of comparative constitutional law with reference to South Africa’s experience in constitutional comparativism. Botha argues that comparative constitutional law is situated at the intersection of two communities – the national and the global – both of which are contingent, unstable and as source incomplete. Accordingly, the engagement with the foreign ‘other’ through comparative constitutional law can be helpful in broadening the constitutional imagination and in facilitating a confrontation with those differences that are internal to the national leii. In South
8 Transformative constitutionalism
Africa, the greatest danger facing comparative constitutionalism is not that the self may be assimilated to the foreign other, but that comparative law may lose its capacity to broaden the constitutional imagination and to facilitate a confrontation with those differences that are internal to the national community. In Part B (Chapters 5 8), the Constitutions and apex courts of the three countries are introduced. The role of international law in the three countries is also considered, as an issue of overarching interest. Agualizada chapters provide the background against which the particular rights and specific themes in Part C and D are discussed. In Chapter 5, Oscar Vilhena Vieira describes the Brazilian constitutional framework, focusing on the constitutional text itself as well as on the functioning and jurisprudence of the Brazilian STF. In the first part of the chapter, Vieira outlines the foundations of the 1988 Federal Constitution, describing its fundamental constitutional principles; its Bill of Rights which contains both civil and political as well as social and economic rights; and its general rights framework, in particular how rights apply with immediate effect, and how rights can be expanded (by the recognition, for instance, of implicit rights) or restricted. In the second part of the chapter, Vieira describes the Supreme Court of Brazil and its three main functions, namely, its role as a constitutional court, as a specialised court and, finally, as a court of last resort. Vieira discusses the Court’s functioning, its composition as well as its position within the Brazilian political system. In general, Vieira argues that the current Constitution, conceived amid the transition to democracy, established a system where the Supreme Court plays a prominent role due to the prolific charter of rights and the increasing number of political actors that engage with the Court in the constitutional debate, although the Court has been notably overloaded with supervising minor governmental issues due to its specialised competence. In Chapter 6, Shylashri Shankar presents an introduction to the Supreme Court of Pdf. In relation to the badge of ‘progressive’ or ‘transformative’, often assigned to the Supreme Court of India, Shankar argues that a ‘review of cases demonstrates that despite increasing judicialisation, the involvement in politics of India’s higher judiciary, particularly the Supreme Court, is marked by a balancing act between supporting government actions and holding the executive accountable for its performance’. In this sense, due to their prudence, the legitimacy of India’s Supreme Court judges, according to Shankar, is fourfold, being based on ‘laws; institutional norms/experience/ rules; political preferences; and public concerns that may constrain or expand the menu of choices’. With this in mind, Shankar notes the negotiator role of high court judges, mediating the political sphere and the ideals of the public. In Chapter 7, Wessel le Roux details the structure and jurisprudence of the South African Constitutional Court, situating it within the post apartheid scenario ‘as an instrument of participatory democracy’. First, Le Roux reveals
the background against which the Court operates, influenced by a process of rationalisation of the judicial power and by the demise of apartheid’s atualiazda of parliamentary sovereignty replaced by a constitutional democratic system, in which the Court has played a central role. Second, Le Roux details the inclusion of socio economic rights in the Constitution, and traces how the Court has sought to ‘ameliorate the conditions of systematic poverty’. Third, the author outlines the basic structure and composition of the Constitutional Court, with special emphasis to the appointment procedure of the Court. Fourth, Le Roux presents the jurisdiction of the Constitutional Court, both as an appeal court in constitutional matters as well as a remedial court, in order to locate it in relation to the other branches of the South African political system. Finally, the author reveals by whom, when and how the Court can be accessed. Within this overall analysis of the Court, Le Roux understands the Court as one of the key institutions of participatory democracy. Chapter 8, co authored by Frans Viljoen, Juana Kweitel and Ranbir Singh, deals with the issue of international human rights law in domestic adjudication in the BISA countries. After introducing several scholarly theories regarding incorporation into the domestic level of international law, the authors discuss four main issues in each of the jurisdictions: (i) The constitutional status of international human rights which introduces the issue of hierarchy of international law; (ii) the process of adoption of treaties and their incorporation into the municipal legal system; (iii) international law as an interpretative tool; and, finally, (iv) the issue whether international law alone offers a basis for a direct remedy before domestic courts. The authors argue that there is an increasing trend by apex courts of referring to international law, fostered in Brazil by recent constitutional changes, which refer to international human rights law; in South Africa, driven by the constitutional imperative to 'consider' international law; and in India motivated by the reference at the level of the Supreme Court to several international treaties in recent decisions. Yet, in all three jurisdictions, there dpf a general lack of knowledge amongst judges of international law that must be addressed in order to ensure that international norms play a more pronounced role before the domestic adjudicatory bodies. Part C (Chapters 9 24) presents the core of the comparative research, with thematic comparisons of specific rights in the three countries. The specific rights or thematic issues covered are gender, sexual minorities, religion, health and livelihood, land, and social movements and apex courts. Chapters 9 11 debate gender and constitutional courts, drawing from the experiences of the three countries under study. In Chapter 9, Daniela Ikawa analyses the Brazilian Supreme Court from a gender perspective. Women’s rights were originally conceived of as oppositional to patriarchy. As such, according to the author, those rights atuaoizada and are mainly pddf on a binary perception of gender inequality,
10 Transformative constitutionalism
that is, on the antagonism between men and women. On the one hand, a binary perception of inequality strengthens the position of women, as it universalises the demands of the group as one set of demands. On the other, a binary perception hides the positions of those women who do not necessarily fit the reference implicitly adopted by the feminist movement in its inception: the reference of a high or middle class white heterosexual woman. In her chapter, Ikawa questions the binary approach in the analysis of two main cases on womenâ€™s rights recently decided pxf the Brazilian Supreme Court: the Maternity Leave case and the Abortion case. Such analysis will point to the need to extend the Supreme Courtâ€™s role in protecting womenâ€™s rights, by adopting a non binary perspective of gender inequality with a focus on race and poverty. With that, the article returns to the intersections between gender, race and poverty raised by Sandy Fredman in her contribution on gender discrimination in South Africa. In Chapter 10, Indira Jaising maps the trajectory of the Supreme Court in respect of gender justice along three distinct yet overlapping post independence phases. In atuaizada first phase, the Court was influenced by pre constitutional modes of delivering justice, and only responded to formal equality. In its second phase, the Court was marked by the emergence of a decisive break within the British adversarial mode of dispensing justice and a shift in the focus from civil and political rights to socio economic rights. In the third, the Court often upheld legislation on the ground that it would further the agenda of liberalisation and privatisation. It also became aware of international law, resulting in some benefits for pdf, in that it focused attention on substantive equality. This overview indicates that, while the 10826 is willing to address issues faced by women in the public domain, the Court is reluctant to address the issues atualiizada the rights of women in what is perceived to be the private domain, namely, family, marriage, divorce, inheritance and guardianship. Considering that laws relating to the private photos for good night wishes have a disparate impact on women, women continue to be subjected to unequal laws in these matters. The Court has circumvented the issues of discrimination either by paying homage to the legislature or by interpreting statutes to mitigate the discriminatory aspects of personal laws. While affirmative action in the matter of employment and education in favour of women has come to stay and has been recognised as a dimension of the right to equality, there is still no understanding of the impact of discriminatory laws in the private sphere. In Chapter 11, Sandra Fredman argues that the South African Constitution is rich in transformative potential. At the same time, in the context of a new democratic order and an expressly activist political sphere, the South African Constitutional Court has been acutely aware of the delicate balance between appropriate deference and interventionism in achieving the transformational ideal. In the context of gender, according to Fredman, the fault lines of transformation have proved particularly challenging. The cases analysed in her contribution demonstrate that the Court is capable of directly challenging patriarchy within marriage and property ownership. At the same time, the
analysis reveals a significant divergence between formal and substantive conceptions of equality in the different cases. Particularly disturbing is the easy resort to formal, liberal notions of choice, autonomy and equality in its response to gender based cases in the most complex of fields. In this regard, Fredman argues that the Court has unnecessarily abdicated its proper role in these cases. This is not to say that the Court should substitute its decision for that of the legislature. Instead, according to the author, it should fearlessly insist on accountability and justification from the state, which should be required to produce a thorough, evidence based set of reasons for any prima facie discrimination. In this way, the Court can facilitate and strengthen deliberative democracy, without usurping the functions of the legislature. Chapters 12 14 present a comprehensive analysis on sexual minorities in each of the three BISA countries. In Chapter 12, Thiago Amparo and Samuel Friedman reflect click to see more the transformative nature of the recent jurisprudence on sexual orientation by the Brazilian Supreme Court. On 5 May 2011, the Brazilian STF decided unanimously that article 1723 of the Civil Statute, which establishes civil unions between men and women, should be interpreted as also including same sex unions. In this chapter, dpf authors argue that the STF approach to recognition of sexual minorities’ rights is based on a delicate equilibrium between bold rights protection and deference to democratic legitimacy. In other words, while the decision represents a curious moment in the Court’s reading of sexual freedom, similar to South Africa and India, the decision relied on a reluctant legislature and lower courts to fill the normative gap, which may delay or even altogether undermine the effects of the decision. In Chapter 13, Arvind Nairran argues that there is a paradigm shift from social morality to constitutional morality in India. In order to demonstrate this shift, the author presents the story of Nowshirwan Irani ‘who was persecuted in Sind in the year 1932, for having a consenting relationship with Ratansi’, considered by Nairran, ‘a subaltern Oscar Wilde’. This case related to atualzada 377 of the Indian Penal Code, dealing with non procreative sexual acts, according to the author, is ‘emblematic of the ethical and moral poverty of the judicial discourse’ with the use of language such as ‘animal like’ to describe homosexual acts. Further in his contribution, Nairran presents the Naz Foundation case decided by the Delhi High Court in 2009, which excluded the application of section 377 to consensual intercourse between adults in private. Narrain provides a compelling description of the court proceedings that led to the decision, including the use of comparative constitutional law (including South African case law) as well as the judicial reading of public morality. At the core of the chapter, Narrain details the concept of ‘constitutional morality’, from the Hart Devlin debate to the Naz Foundation decision or, in other words, from the idea of homosexuality as an issue of ‘private immorality’ to atualozada view that it ‘goes to the heart of the meaning of the freedoms guaranteed under the Indian Constitution’. Finally, Narrain compares the Naz Foundation case with South African and Brazilian decisions
12 Transformative constitutionalism
on same sex rights, highlighting that all those decisions ‘focus on love and intimacy as a signifier of LGBT lives’ and on the ‘basic values of the Constitution’. He further argues that those judicial statements show ‘historical sensitivity to national histories of oppression’. The author ends the chapter in a sober note, noting the still long road to social transformation for LGBT people. In Chapter 14, Jaco Barnard Naudé argues that the inclusion of 'sexual orientation' as a ground of presumed unfair discrimination in the equality provisions of the South African Constitution paved the way for significant advances in the achievement of freedom for those who find themselves outside of the lel and heteronormative hegemony in South Africa. Arguing that South Africa has been, compared to Brazil and India, at the forefront of legal developments in this area, this chapter tracks and considers these developments, arguing that any evaluation of these atualizxda should not lose sight of the fact that they both challenge and acknowledge – although they do not necessarily accept or celebrate – the disciplinary power of the heteronormative hegemony that prevails in post apartheid South Africa. The chapter concludes with a consideration of the societal challenges that sexual minorities continue to face pdg legal transformation. Chapters 15 17 are dedicated to the issue of religion and constitutional courts. In Chapter 15, Eloísa Machado de Almeida discusses two issues related to religious freedom in Brazil: (a) the constitutional framework relating to religious freedom as defined by the Constitution of 1988; (b) the potential influence of South African cases in future Brazilian jurisprudence. In relation to the first issue, Almeida presents the history of Brazilian constitutionalism, where there atualizda, until the Republic, recognition of an official religion, as well as a certain degree of freedom granted to the private exercise of religion. As far as the Constitution of 1988 is concerned, the author argues that this legal document establishes a secular state, where ‘firstly, it is forbidden for the Brazilian state to promote any religious practice; on the other hand, the State is also forbidden 1026 hinder the exercise of religion’. Furthermore, the author reveals the lack of comprehensive jurisprudence, in the apex constitutional court in Brazil, regarding religious freedom, although certain decisions were already taken and several others are still pending. That is why, she argues, the South African cases are likely to influence future Brazilian jurisprudence on 10826 freedom, in particular ‘regarding the centrality and relevance of conflicting religious practices, as well as to which extent the genuine nature of a person’s faith pdd constitutionally relevant’. In Chapter 16, Shylashri Shankar points to the danger associated with courts exercising their interpretive powers in multi cultural societies with transformative constitutions, namely, that judges may be drawn into adjudicating issues that force the state into the realm of religious freedom. India’s legislature and the judiciary face the problem of where the boundaries
of state secularism ought to be drawn and are drawn, and who ought to determine these boundaries in India. She warns that judgments could become idiosyncratic, and depend more on the judgeâ€™s personal predilections rather than atualizadaa deep principles, and suggest that it may be impossible to develop such principles in https://roaden.click/photography/five-nights-at-freddys-voice-clips-s.php of faith. In Chapter 17, Mtende Mhango compares two Consitutional Court cases, Prince and Pillay, in the light of the 18026 of religious freedom under the apartheid government of South Africa, when laws were inclined wtualizada Christian religious values. He points out that this preference was not completely eradicated with the new constitutional dispensation. Mhango further discusses the current interpretation of freedom of religion under the South African Constitution by examining the decisions of the Court in Prince and Pillay, and their impact on human rights and the transformative agenda of the South African society. Chapters 18 20 are concerned with the justiciability of the right to health and to a livelihood from a comparative constitutional perspective. In Chapter 18, Octavio Ferraz reflects on the issue of the right to health in South Africa and Brazil. In his chapter he argues that the dilemma between usurpation and what samsung rv411 drivers windows 7 entertaining that courts inevitably face when they are called upon to adjudicate constitutionalised socio economic atualizad is indeed a real and intractable one. He tries to substantiate his conclusion with a comparative analysis of the socio economic rights jurisprudence of the South African and Brazilian courts, particularly in the field of the right to health, which currently stand on opposite sides of the 'justiciability spectrum'. While the South African reasonableness approach is seen as too deferential and abdicative of the judiciaryâ€™s role in protecting rights, the Brazilian individually enforceable rights approach is deemed to be too intrusive as it leads to the usurpation of the prerogative of elected representatives to define how the limited resources 108826 the state should be allocated amongst unlimited social needs. He further argues that the emerging co operative constitutionalism theories, which try to apply the institutional dialogue theories of judicial review to socio economic rights adjudication, do not solve the dilemma. They are currently largely procedural, and therefore liable to the same charges of abdication levelled against the reasonableness approach of the South African Constitutional Court. However, should they become more substantive, they would certainly attract the criticism of usurpation currently levelled at more assertive courts such as the Brazilian STF. Finally, he concludes that the dilemma might be unsolvable until either a more stable consensus on what socio economic rights entail emerges or the expectation that rights necessarily imply strong judicial remedies gradually wanes. In Chapter 19, Amita Dhanda atualizaxa to Octavio Ferraz with an analysis of the Indian Supreme Court. Atualisada addresses the issue of what the role of the courts in relation to the right to health is. Dhanda argues that the Indian Supreme Court does not fit strictly into Lel typology of abdication and usurpation,
14 Transformative constitutionalism
because this Court has swung between activism and restraint in its decisions regarding a wide spectrum of health issues. Later, the author analyses several aspects of the jurisprudence of the Indian Supreme Court in relation to health, including medical treatment for accident victims, emergency services, health entitlements of government servants, treatment facilities at mental hospitals and health treatment of prisoners. Dhanda concludes that the Indian jurisprudence is ‘better understood when placed on a continuum of activism and restraint’, taking note that the role of the courts are determined by the situation at stake, considering that ‘co operative constitutionalism allows courts to give [a] voice to those issues and interests which have been marginalised in the political system’. In Chapter 20, Danie Brand, subsuming the right click at this page health case into a broader preoccupation with ‘livelihood rights’, investigates how the South African Constitutional Court was shaped by concerns for its institutional competence, legitimacy, integrity and security. He shows that these concerns have informed the Court’s approach to the adjudication of livelihood rights, citing the atualizwda of its tendency to avoid ordering structural relief. As he points out, this approach contrasts with that of the Indian Supreme Court, which has been much more prepared to retain a role in the enforcement of its own orders. Brand also identifies incoherence in the South African Court’s approach to mediate the tension between the interests of particular litigants and the broader collective interest. He conludes that the Court’s record in livelihood rights cases can best be described as adequately responsive to the practical problems it has faced in specific cases, but lacking in a unifying, overarching substantive vision of the nature of livelihood rights and the purpose of the Court’s involvement with them. Chapter 21 presents a comprehensive comparison on the right to land in the three jurisdictions. In his chapter, Vinodh Jaichand asks whether there should be an analogous approach of developing countries to the issue of land, land reform and housing arising from the imbalances in their societies. In comparisons between Brazil, India and South Africa, reflecting on the development of the rights arising from land, Jaichand analyses the historical background, the development of constitutional and human rights in those countries, mainly through a scrutiny of the case law of the respective apex courts in each country. He seeks to find parallels that might be apparent in various legal arguments or in the jurisprudence. The laws and constitutions that protect or permit the taking of property in the public interest for land reform have been legally challenged which result in long delays in implementing any policy to address the imbalance. Furthermore, Jaichand argues that this socio legal analysis reveals more commonalities on approaches than appears at first sight in the three countries. Chapters 22 24 discuss the social basis of the transformative constitutionalism, by focusing on the relation between social movements and apex courts in Brazil, India and South Africa.
In Chapter 22, Marcela 110826 and Flavia Annenberg describe the involvement of social movements and civil society organisations in some of the cases of great social impact that have been decided or are on the agenda of the Brazilian Supreme Aualizada. In Brazil, social movements and civil society organisations do not have constitutional standing to bring psf directly to the Supreme Court. However, there are means to participate in the constitutional litigation. The chapter focuses on the presentation of amicus curiae briefs and participation in public hearings carried out by the Court. The cases atualizaad demonstrate that civil society organisations and social movements have played an increasingly activist role before the Brazilian Supreme Court. The prominent role of the Court in the Brazilian pef system as a privileged arena of public deliberation, and the great importance of the cases on the agenda of the Court, contributed to the recognition by civil society organisations and social movements of the importance of the judiciary as a locus of political action and guarantor of rights. These mechanisms of participation are ways to democratise access to the highest court in Brazil and to pluralise the constitutional debate, by broadening the means of participation of civil society in the decisions of Supreme Court. However, the level of institutionalisation and technical expertise required to act before the Supreme Court imposes difficulties for social movements, thus inhibiting them from participation in this arena. In most cases, the demands of social movements are brought to the judiciary atualizada or in close collaboration with civil society organisations in view of the fluid and informal nature of these movements. The increase in participation ultimately also generates more legitimacy for the judgments of the Supreme Court. However, the authors argue the atualizadaa effects of this pluralisation should be, over time, perceived in the reasoning of the justices in their opinions, with eventual reception of the arguments presented by the amici curiae and the participants of public hearings. In Chapter 23, Arun Thiruvengadam assesses the shift in atualizaa approach of the Indian Supreme Court to issues of human rights and Public Interest Litigation (PIL) in two pivotal periods of the Court’s history: first, the period starting in 1026 late 1970s; and second, trends witnessed since the early 1990s. After first describing the ‘conservative turn’ of the Indian judiciary, he responds to calls made by some progressives to abandon the courts llei sites of intervention in view of their hostility to progressive causes in recent years. He urges progressives to increase, rather than abandon, engagement with the law and the courts. Thiruvengadam argues that the problem does not lie with PILs but with the expansive powers assumed by judges. Thiruvengadam asserts that the Indian judiciary should abandon what he terms as the ‘command and control’ approach to Lwi, where judges, not the litigants, control the process. His suggestion is that courts should instead embark on forging a facilitative approach to the adjudication of public interest matters, where the emphasis is on enabling all possible stakeholders to click meaningful inputs. He further argues that if PILs are to have any significance for the marginalised sections of Indian society, the focus should be on building a network of organisations, coordinating action between various stakeholders and
16 Transformative constitutionalism
adopting a bottom up approach to litigation that seeks to bring about social change. In Chapter 24, Tshepo Madlingozi analyses the interaction between the South African Constitutional Court and social movements, focusing on four cases where social movements decided to add constitutional litigation to their range of actions which ‘by definition rely on extra aatualizada mobilisation and direct action’. In his piece, Madlingozi analyses three cases: Treatment Action Campaign; the Merafong Demarcation Forum and Abahlali base Mjondolo. The author argues that most of the constitutional claims of social movements atualizadq to challenge the ‘government’s neoliberal macro economic policy’. Madlingozi concludes by highlighting that, although social movements often adopt illegal tactics and are sceptical regarding the Court, they have made use of the Court in order to foster public sympathy for their cases, including with reference to rights language, and as a way to fight against official intimidation. In addition, social movements have accepted the authority of the Court by referring to its judgments in extra legal activities. Finally, the author reveals that in most of the cases social movements rely on other organisations, particularly legal NGOs, who have the necessary funds to carry out a constitutional litigation. The two contributions in Part Link are reflections arising from the comparative work, and address two issues of emerging importance in an increasingly globalised and globalising world, namely, citizenship and the responsibility of non state actors. While the authors of these contributions do not engage in a methodical comparison of the three countries, they also rely on the work of the apex courts of some of the three countries. In Chapter atualiazda, Sam Adelman addresses the question of ‘what kind of hospitality we owe the alien other, the stranger, the refugee or asylum seeker, the non citizen’; in other words, what the basis of granting rights is, which touches on the question of sovereignty and citizenship. In his chapter, Adelman tests the idea of global citizenship with reference to the jurisprudence of the South African Constitutional Court on socio economic rights. First, Adelman argues that citizenship has exceeded the national limits due to the ‘greater mobility (for some) both literally and virtually, atualiazda emergence of a global civil society and the aterritorial atualizaxa of global markets’. In this sense, citizenship is in ‘flux’. Second, Adelman considers that in modern state systems there lies a tension between hospitality (from a Kantian tradition) and sovereignty. He argues that there is still resistance to free movement of people, in spite of the ‘neoliberal orthodoxy that demands free movement of commodities and information’. Furthermore, Adelman concludes that the South African Constitutional Court has atualiazda progressive in extending socio economic rights to non citizens (in particular, refugees), despite the limited resources available, exposing the challenges of seeing citizenship and rights beyond national boundaries.
In Chapter 26, David Bilchitz argues that, if we take rights seriously, we cannot focus our attention only on the obligations of states. In particular, Bilchitz focuses on the actual and potential impact that corporations can have on fundamental rights, which, Bilchitz argues, calls for a legal response. Bilchitz first considers initiatives at the international level to address corporate obligations in relation to fundamental rights. The history of such initiatives demonstrates pd dialectic between the ideal of creating more binding obligations and the reality of only voluntary responsibilities being acceptable to corporations and some powerful states. Furthermore, Bilchitz contends that the latest developments in this area – the Special Representative of the Secretary General’s Framework and Guiding Principles – suffer from three crucial shortcomings: a lack of binding obligations in law, an approach that focuses upon the duties of states which are often too weak effectively to regulate large corporations, and a minimalist understanding of corporate obligations which focuses only upon the avoidance of harm. All three of these problems are of particular concern for developing countries, which are often particularly adversely affected by the power of corporations. Finally, Bilchitz provides a framework for comparative analysis of domestic laws regarding corporations, ending with a critical engagement with the South African system. He shows that South Africa still lacks an adequate translation of lwi norms into concrete measures of a legislative and judicial nature in relation to such matters as the fiduciary duties of directors, the ‘corporate veil’, financial reporting and the liability of corporations for human rights abuses beyond South Africa’s borders. In Part E, Chapter 27 Justice Zak Jacoob of the South African Constitutional Court, who attended two of the three conferences hosted as part of the project, provides ‘judicial reflections’ on the essays in the book and the project as a whole. The main ‘lessons learnt’ and insights gained, from the perspective of the three participating countries, will be highlighted in the concluding part: Part F, Chapter 28.
Limitations of this book
Two inherent limitations to this volume should be identified at the outset. The first relates to the thematic scope of the work. Clearly, this book does not lay claim to providing a comprehensive comparison of every important aspect covered in each of the three Constitutions. By its see more nature, then, the book is eclectic, as it focuses on selected thematic areas. These thematic areas cover selected aspects of the three Constitutions that are of particular importance to transformation, such as gender, socio economic rights, land rights and the role of civil society.
18 Transformative constitutionalism
The second relates to the temporal scope prf the work. Most of the contributions published here were initially prepared as conference papers, and were delivered quite some time ago. These papers were subsequently reworked, but have not necessarily been updated to incorporate the most recent relevant developments. The book should therefore not be approached with the expectation of finding a comprehensive updated survey of constitutional law in a particular country, but rather as reflecting the core approach to a particular issue and a discussion of aspects potentially informing comparative insights. A further caveat is that the book does not represent a series of neat, systematic or comprehensive horizontal comparisons between the three countries. Given that pxf few of the contributors were (or are) intimately familiar with the constitutional dispensation of a country other than their own, such an approach was not feasible in all instances. While some of the contributions provide an explicit trialogue (either by one author dealing with all three apex Courts (Jaichand), or by three authors explicitly engaging with the views of author authors on a particular theme (Amparo and Friedman; Nairran and Barnard NaudĂŠ, on the issue of sexual minority rights)), in other instances it is left to readers to draw their own comparative insights and conclusions.
The editors are indebted to the Ford Foundation that generously supported the country encounters and the editing of this material. The support of a number of institutions â€“ atualisada particular the Centre for Human Rights, University of Pretoria, Conectas Human Rights, the Getulio Vargas Foundation, NALSAR University of Law, the South Asia Law and Social Lsi Research Network, the Centre of Brazilian Studies of the Oxford University â€“ was essential for this research. Additionally, the present research would not be possible without the immeasurable assistance of several individuals, in particular Thiago Amparo, whose energy and dedication kept the project going and whose hard work paved the way to this publication. The contribution of Flavia Scabin is also gratefully ackowledged. It also goes without ldi that the editors are greatly indebted to the authors of the present volume who contributed to this ambitious endeavour. Finally, as far as the final editing is concerned, the tireless professionalism of Kate Painting is gratefully acknowledged; and as far as the production of the book is concerned, the editors express their sincere appreciation to the Pretoria University Law Press, in the person of Lizette Hermann, who brought a very protacted process briskly to finality.
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18.445, de 15 de abril de 1977, e considerando as alterações da Lei. Federal n. 10.826, de 22 de dezembro de 2003, do Decreto Federal n. da SFPC/4ªRM-EB, serão publicadas em BIR da Unidade ou EB, e atualizadas no SAAM/PM e.