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Environmental, Social, and Governance as Sustainability Solution for Women’s Rights in West Africa
Full text linkIn the West African corporate sector, the engagement of Environmental, Social, and Governance (ESG) principles is becoming the trend and could be a transformative strategy for advancing women’s rights in West Africa. This paper examined the ESG framework as potential to act as a catalyst for sustainability especially in the context of gender equality in West Africa. By examining case studies, we show how ESG-focused policies can result in improved outcomes for women, including significant workplace equality, more representation in female leadership, and greater economic empowerment. Furthermore, we provided strategies for ESG principles in the context of West African legal structures. Our findings suggest that a primed ESG approach, tailored to the unique regional dynamics, can contribute significantly to the sustainable development goals (SDGs) and the empowerment of women in the corporate sector. This study provides actionable insights for policymakers, corporate leaders, and stakeholders aiming to leverage ESG for social change and gender parity in West Africa.
Keywords: Sustainability, ESG, Women’s Rights, Corporate Sector, West Africa
Introduction
Ever since the introduction of the United Nations Sustainable Development Goals, the sustainability discourse has kept expanding into various spheres of social endeavors. From gender equality to poverty reduction, there have been attempts to create credible solutions to social problems in a way that would bring a better balance in social processes. Environmental, Social, and Governance (ESG) principles are concepts that are about consideration for the environment, social issues such as the rights and safety of workers and the community, and good management practices of the firm. The practice of ESG principles in firms, positions the corporate sector to be actively involved in the advancement of women’s rights. This is because ESG principles address factors that influence the realization of women’s rights such as climate change, workplace power dynamics, and community engagement.
Cardoso et al. argue that companies with elevated ESG ratings show stronger performance in gender metrics and display increased transparency. This connection is especially noticeable among firms that excel in the social aspects of ESG assessment. However, Cardoso et al., noted that despite these firms being known for their commitment to sustainability, women still encounter obstacles such as underrepresentation and lower pay within these organizations.[1] They seemed to suggest that there is more to the realization of women’s rights at the workplace than the implementation of ESG principles. Even at the smaller business level, the exclusion of women can prove to be fatal as it was found that the failure to include women in succession planning was a prevalent cause for the lack of sustainability in family businesses.[2] Without a doubt, discrimination is a threat to the realization of human rights.[3]
As it has been defined, gender inclusion involves incorporating women into the operations, management, and leadership roles within companies and organizations, with a particular emphasis on family businesses.[4] Gender inclusion would further mean dismantling stereotypes that restrict women and that often put them at risk in countries where they might be domiciled.[5] This gender inclusion is a particularly strong concept within the universalist conception of human rights, which Lalude has argued has a better operational value for the practice of human rights.[6]
It has been found by Salazar and Moline, that a higher female representation in leadership roles is associated with the engagement of environmental, social, and governance (ESG) standards, resulting in better business outcomes and engendering inclusive economic advancement. Despite this, substantial gender inequality persists in corporate leadership. Worldwide, women occupy merely 19.7 percent of board seats, 6.7 percent of board chair positions, 5 percent of Chief Executive Officer roles, and 15.7 percent of Chief Financial Officer positions. Factors such as unconscious biases, cultural norms, limited opportunities, and various workforce obstacles were noted to potentially constrain women’s career ambitions and restrict their paths to leadership positions.[7] However any organization aims to ensure that it preserves itself.[8] The only way this can happen is to embrace ESG practices.
ESG principles can transform the promotion of women’s rights because they heighten the consciousness of the firm to its social issues. Muñoz showed that black women faced entrenched obstacles stemming from both gender and racial discrimination, as well as the intersections of these identities, within the workplace. These barriers often hindered their ability to access leadership roles and resulted in unequal career progression. He further emphasized the critical need for tailored efforts in diversity, equity, inclusion, and belonging. These initiatives should include specific support measures like mentorship programs, flexible work options, and acknowledging the valuable contributions of transformational leadership demonstrated by black women.[9] Beyond this is the acknowledgment of how ESG principles can transform the perception of women in the workplace and beyond the workplace.
The argument supporting gender equality is more compelling than ever, encompassing not just ethical principles but also investment and economic considerations. Nonetheless, advancements are sluggish and inconsistent, mirroring the gradual pace seen in addressing other types of inequality. This slow progress can be attributed to the entrenched resistance of the powerful elite, who seldom relinquish their positions without resistance. Nevertheless, this resistance is gradually proving futile in the long run.[10] The push for gender equality as one of the sustainable development goals and the promotion of women’s rights has consistently met with challenges, and these challenges are the usual suspects. Lack of political will and the non-prioritization by legislators of the need to protect women’s rights despite the urgent need for the protection of women’s rights in Africa are challenges that have greatly undermined the realization of women’s rights in the region. Unfortunately, while the realization of women’s rights would make for sustainable economies in West Africa, women have been left to the crushing weight of asymmetric power in the corporate sector.
It is undeniable that Nigerian women face significant vulnerability, even though Nigeria has ratified various international standards that condemn gender discrimination and inequality. These standards include the Universal Declaration of Human Rights (UDHR), the International Convention on Economic, Social, and Cultural Rights (ICESCR), the International Convention on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the commitments made at the Fourth World Conference on Women in Beijing, China.[11] Even within the corporate sector, women in Nigeria have often faced discrimination and harassment. Adisa et al., have noted that Nigeria stands out for its pronounced bias towards males in the workplace, leading to significant career obstacles that highlight the deeply ingrained and systemic prevalence of male authority within Nigerian institutions. This phenomenon is expressed in the notion of the “hypermasculine organization”, which exhibits amplified male privilege, an affinity for gender-based exploitation and mistreatment, and a rationale rooted in strictly enforced gender norms. These hindrances experienced by women in organizational settings could hold significance for other nations in the global south.[12]
Sexual harassment of women in Nigerian firms, which threatens women’s autonomy over their bodies is significant, and Akpambang has observed that the issue of workplace sexual harassment has garnered significant attention both domestically and internationally from researchers and organizations. Available data indicates that this reprehensible behavior occurs in both public and private settings and has substantial detrimental impacts on employers, as well as on the health and psychological well-being of employees. Akpambang found that, unlike certain other countries, Nigeria lacks specific legislation targeting sexual harassment, and the existing national legislative frameworks addressing sexual offenses are insufficient to effectively tackle the problem.[13]
Furthermore, the marginalization of women in economic, social, and political realms is a global issue, but it is particularly severe in developing nations. In Nigeria, despite the ratification of the United Nations Convention on the Elimination of All Forms of Discrimination against Women in 1985 and the implementation of similar local policies like the National Gender Policy of 2006, inequality persists due to various cultural and structural barriers. These challenges have limited women’s involvement across all aspects of life, with significant repercussions for human resource development, economic progress, and the overall status of gender equality within the country.[14]
In further examining the problem of marginalization of women in West Africa, Asiedu et al., have found that gender inequality was identified across various domains such as labor and industrialization, population dynamics and reproduction, agricultural output, water and sanitation, and energy provision, among others. Significant factors driving these inequalities include issues relating to access to social protection, economic opportunities, and legal rights. Also, obstacles to gender equality and sustainable development include unequal distribution of the burdens of poverty, educational differences, skill gaps, and entrenched gender stereotypes. Proposed solutions include empowering women, who constitute a significant portion of marginalized populations, by enhancing their development and ensuring equitable access to education and leadership roles. Addressing discriminatory cultural norms against women is also highlighted as crucial for progress.[15]
One of the strategies that have rarely been examined in the promotion of women’s rights in West Africa, specifically Nigeria and Ghana is the implementation of environmental, social, and governance principles in firms in Nigerian where this could help in re-positioning a firm’s priorities especially as it concerns its internal engagement of its female workforce and in the communities where they operate. The question that is rarely asked further is the role of West African firms in promoting women’s rights. There is a consideration in many literatures on the role of women board members in the prioritization of ESG principles, but this hardly reflects the firm’s inclination to promote women’s rights. As it was noted by the Organisation for Economic Co-operation and Development female members of corporate boards consistently emphasize environmental, social, and governance concerns, which encompass issues related to climate change and sustainability.[16]
ESG and the Right to Gender Equality and Non-Discrimination
In the West African region, significant gender inequalities and discrimination remain prevalent. Women and girls face widespread disadvantages across various domains, lacking the opportunities afforded to men. This disparity is evident in nearly every public domain, including access to essential services such as healthcare, education, and utilities, as well as property rights and representation in the labor market and public arenas. While legal frameworks and policies addressing these issues are scarce, they do exist. Since the early 2000s, nearly all nations in West Africa have established national gender policies or strategies. Despite these efforts, gender considerations are often relegated to a secondary status, and the implementation of gender policies frequently lacks effectiveness.[17] In examining ESG principles as a catalyst for gender equality and the promotion of women’s rights, there is the necessity to see the West African firm as a starting point of reference and its transformative capacities when it engages ESG principles.
Women’s rights, specifically the right to gender equality and non-discrimination have been undermined in West Africa, despite the political lip service that has been paid to the prioritization of these rights and the fact that countries like Nigeria and Ghana, where women are still experiencing marginalization, have signed and ratified the United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 (CERD). Article 11 of the Convention, provides that States Parties are obligated to implement all necessary actions to eradicate discrimination against women in employment, aiming to guarantee equal rights for men and women, especially in this regard.[18] However there is yet to be significant progress in the realization of this provision as it was found that in Nigeria gender equality policies in employment have not been effectively implemented, as women continue to experience marginalization both in the private and public sectors.[19]
Ghana is no different as there has been the persistence of widespread gender inequality, leading to the ongoing marginalization of women across the social, economic, and political spheres.[20] Article 10(c) of the CERD provides that removing stereotypical ideas about the roles of men and women across all educational levels and formats, through promoting coeducation and other educational approaches. This includes revising textbooks and school curricula and adjusting teaching methods to support this goal. Gender inequality in Ghana is anchored on social perception, and social perception is driven by stereotypes drawn from cultural norms. These stereotypes pervade even workplace politics limiting opportunities for women in the corporate space and the community.
Coleman argues that while the interest of foreign aid and human rights communities has borne the weight of promoting women’s empowerment in developing countries, firms have the financial capacity and the social influence to promote women’s rights.[21] Firms are in the position to ensure economic justice as they provide economic opportunities and can target women as economically and socially vulnerable groups in communities for empowerment. Lalude and Fatehinse have defined economic justice as a concept that entails the fair allocation of economic resources and goods.[22] For women in West Africa to benefit from ESG principles they must have economic justice as a realization from firms embracing ESG principles.
Women empowerment is an essential objective of gender equality, and in the promotion of women’s rights, there must be a women empowerment agenda. ESG principles are standard for firms in the sustainable development era, and it is through ESG principles that firms can promote women’s rights meaningfully by prioritizing gender equality either within the firm or outside it. Women continue to face challenges in achieving equality and active involvement in West Africa. They frequently are confronted by inequality in healthcare, education, employment, and political entitlements, often receiving a smaller portion compared to men. Despite this, women contribute significantly to societal roles that are typically not undertaken by men. The obstacles encountered by women exist on personal, organizational, and cultural dimensions.[23]
Through community engagement, firms can be involved in the realization of economic justice in the communities where they are situated. Community engagement could mean that firms could provide scholarships for the girl child, closing up the gender gaps in many West African communities. Supporting initiatives geared at promoting women in various industries in the community that they are located in. Firms could support women within their systems to reach management levels for the sustainable development of both the firm and the community. Furthermore, the inclusion of women in management positions demonstrates a beneficial influence on Corporate Social Responsibility (CSR) initiatives aimed at promoting gender equality.[24] However for the inclusion of women to be possible within the West African firm, ESG principles have to be incorporated into organizational processes. ESG principles could be made mandatory through regulatory frameworks as a national effort to push sustainability within the private sector and ensure that there is a contributory effort by the private sector in the promotion of women’s rights.
ESG-Focused Policies and Improved Outcomes for Women in West Africa
The literature on ESG principles often makes it appear that the concept of ESG has a greater purpose than the elements that it focuses on. They are mostly driven by the idea that gender equality could promote ESG practice amongst firms but do not reflect on the objectives of ESG practice. There is no doubt that ESG principles are beneficial to the promotion of women’s rights both within the firm and outside the firm. One of the major ways in which ESG principles can promote women’s rights is that the incentivization of ESG investing, which is the determination of a company’s sustainability by investors as profitable for investment, can inspire equal pay for women within the firm and an inclination for gender diversity on its board. However, ESG principles cannot by themself incentivize a firm to promote women’s rights but the leverage can be created by investors who insist on ESG investing. The macro implication is that regulators in West Africa are then motivated to ensure that firms comply with ESG principles to attract foreign investment and inadvertently boost sustainability practices that will benefit women.
ESG principles give purpose and help in the clarification of a firm’s impact in the community where it is located. Apart from the incentive of investment, there is the sharpening of a firm’s interests when it engages ESG principles. For instance, ESG principles can help a firm have a good grasp of its intended impact in the community where it operates. Coleman asserts that some firms already support women’s rights in the developed world, taking that as a niche corporate social responsibility and creating a public image that supports sustainability.[25] In the context of states like Nigeria and Ghana, firms adopting women-centric values could help in the promotion of women’s rights and contribute to the efforts of non-governmental organizations and external political influence from developed countries. It is essential to think of what ESG-focused policies of firms would incline them to do in their engagement with host communities. Apart from the social focus of ESG principles, the environmental and corporate governance elements are beneficial to women’s rights in host communities. This is because women are heavily impacted by climate change.[26]
The engagement of ESG-focused firms therefore would catalyze the advancement of women’s rights and would help address issues that affect women’s livelihoods and capacities in West Africa. Within the firm, ESG-focused policies can help a firm develop a positive attitude towards gender equality and can drive investor confidence. Publicly traded companies are experiencing mounting investor demands to enhance diversity within their board memberships, highlighting a significant recognition of the importance of addressing environmental, social, and governance (ESG) concerns. Investors are progressively using evaluations of companies’ gender diversity and inclusivity practices to measure their responsiveness to ESG-related risks and opportunities. These companies are encountering external pressures from institutional investors, activist shareholders, and potential employees and customers to increase the presence of women in boardrooms, C-suite positions, and throughout executive leadership roles, as well as to ensure equitable compensation and advancement opportunities for women and individuals from diverse racial backgrounds. Such pressures can significantly influence the extent and manner in which companies worldwide tackle issues related to diversity, inclusion, and gender disparity.[27]
Case Studies on ESG-Focused Policies and Benefits for Women in West Africa
Luh et al., have argued that in the consideration of the current business landscape, characterized by a strong focus on eco-friendly practices, socially responsible investment, and impact investment from diverse stakeholders, it becomes evident that banks in Ghana should prioritize enhancing the presence of women in leadership roles. This strategic move can positively influence the ESG performance of banks in Ghana, thereby bolstering their capacity to appeal to a wider range of investors.[28] This would mean that the consideration for the female workforce is incentivized by the focus on ESG principles and that firms are driven to ensure that their policies are conscious of ESG outcomes. Beyond the firm is the impact of the consideration of ESG principles on legislation in countries like Ghana.
In Ghana, there seems to be a significant difference in the reporting of sustainability initiatives between local mining firms and their foreign-owned equivalents. Hinson et al. found that even regardless of size, foreign-owned mining companies are more likely to make and report sustainability initiatives, especially in environmental sustainability. This difference implies that local firms may be more in the early stages of adoption when it comes to the incorporation of Environmental, Social, and Governance principles in their reporting practice
The Russian Military Intervention in Ukraine: An Analysis through the Lens of International Law
Full text linkRussian troops invaded Ukrainian territory on February 22, 2022, for the sake of defending its borders from the alleged NATO threat, led by the United States. This move created widespread legal debate, calling for a number of positions on whether Russia’s actions were justifiable self-defence in international law or breached the Geneva Conventions governing international humanitarian law. This research paper aims to bring to the fore the military activities carried out by Russian soldiers in Ukraine, taking into account the legality of such a military operation under Article 51 of the United Nations Charter, which discusses the right to self-defence and exercise of the right of self-defence on the part of states. We shall also examine whether military intervention violates humanitarian law. The analysis shall use relevant legal documents, albeit more specifically, the 1949 Geneva Conventions, the Rome Statute of the International Criminal Court of 1998, in addition to using the United Nations Charter and those that are supplementary. To this effect, the paper will examine the subjectivity of operations to international law and humanitarian implications thereof towards Ukraine. The findings of this research on the legality of military interventions and state responsibilities according to international law will offer a complete appreciation of the legal and ethical dimensions of the conflict.
Keywords: Intervention military, international humanitarian law, International Criminal Court.
Introduction
Under the new international order, the global arena has witnessed several military interventions aimed primarily at eliminating violations of international humanitarian law and human rights, as well as changing political regimes that infringe upon these rights. Regardless of the justifications presented for these military actions, a common characteristic is the use of armed force against the integrity and independence of states, which undermines their role as the largest sponsors of peace in the world. Much discourse has been dedicated to exploring the legal nature of these military interventions.
Military intervention, in general, oscillates between two prominent concepts in international law: the legitimate right to defend a state’s sovereignty and territorial integrity (as seen in the U.S. war on terrorism) and the violation of international humanitarian law. Such interventions often result in casualties and infrastructural damage, whether intentional or unintentional (as exemplified by the war in Gaza).
On February 22, 2022, Russian troops invaded Ukrainian territory under the pretext of defending national security against perceived threats from the West, particularly NATO. This military operation triggered significant political reactions, dividing global opinion. One faction categorically rejects Russia’s infringement on Ukraine’s sovereignty, while another supports Russia’s justifications.
From an international law perspective, the key questions arise: How does the Russian military intervention align with the requirements for legitimate defense as outlined in Article 51 of the UN Charter? Additionally, how does it relate to violations of international humanitarian law?
To address these issues, we have structured the research paper into two main topics. The first topic examines Russian military intervention and its connection to the right of legitimate defense. This will include an analysis of military intervention in international law (the first requirement) and the legitimacy of Russian military actions in light of international humanitarian law (the second requirement).
The second topic will explore the extent to which the Russian military intervention violated international humanitarian law. This includes assessing Russia’s international responsibility for such violations (the first requirement) and evaluating how these violations in Ukraine substantiate the case for Russia’s international accountability (the second requirement).
In tackling these questions, we employed an analytical approach, gathering relevant legal material and analyzing it in relation to the realities of the Russian-Ukrainian armed conflict.
Section One: Russia’s declaration of war on Ukraine and the issue of justifying it by the right of legitimate defence
The tension in the relationship between the two states led to a military intervention carried out by the Russian Armed Forces on Ukrainian territory, and the Russian government’s pretext was that what it was doing came in the context of Article 51 of the UN Charter and that the state has the right to defend itself from any threat affecting its security and sovereignty.[1]
The concept of legitimate defense did not fully materialize until after the establishment of the United Nations. It emerged as a recognized principle within international norms and laws, allowing states to take measures they consider necessary to protect their core interests when under attack. As public international law evolved, emphasizing the principle of preventing military force, the idea of legitimate defense developed as an exception to the general rule against the use of force, as outlined in the UN Charter,[2] which aims to maintain international peace and security.[3]
From a legal perspective, military intervention extends beyond the principles of public international law, such as the principle of non-interference in the internal affairs of states. It can also be analyzed through the lens of international humanitarian law, particularly in reference to the second Common Article of the four Geneva Conventions of 1949. This article stipulates the international protection of members of the armed forces who have laid down their weapons, as well as individuals unable to fight due to illness, disability, detention, or other reasons. All such individuals must be treated humanely in all circumstances, without any harmful discrimination based on race, color, sex, religion, belief, birth, wealth, or any other criterion.[4]
Based on the previous discussion, we will examine the manifestations of military intervention in international law. This will involve a detailed explanation of each aspect separately in the first and the second requirement. We will also assess the legality of military intervention within the framework of international law.
The First Demand: Manifestations of military intervention in international law
Although the use of force and its threat are prohibited under the United Nations Charter, the international landscape reveals a different reality. Numerous international conflicts continue to occur where force has been employed, each with its justification based on specific contexts. The wars in Afghanistan, Iraq, and Ukraine represent Western military interventions that were framed under various pretexts, including the war on terrorism, preemptive war, preventive war, and humanitarian military intervention. These aspects of military intervention will be discussed in detail in the following sections.
The First Branch: Military intervention as a manifestation of the war on terror
Terrorism is not a new phenomenon and does not have a singular definition.[5] Its manifestations have varied across different times and places, yet its fundamental nature has remained constant. Since the League of Nations established the Convention for the Prevention and Punishment of Terrorism in 1937, combating terrorism has consistently been a priority for the international community. Starting in 1963, sixteen international legal instruments aimed at preventing and punishing terrorist acts have been adopted. Furthermore, for over a decade, the United Nations General Assembly has passed annual resolutions on measures to combat international terrorism, initiated by the Sixth Committee.[6]
The Security Council has adopted numerous resolutions aimed at combating terrorism, with Resolution 1373/2001 holding particular significance. Adopted in the aftermath of the events of September 11, 2001, this resolution has both a general and binding nature. Its adoption under Chapter VII of the United Nations Charter signifies that terrorism is to be regarded as a threat to international peace and security.[7]
NATO defines terrorism in its military documents as “the unlawful use or threat of use of force or violence, which instils fear and terror, against individuals or any attempt to coerce or intimidate governments or societies or to impose control over populations and property to achieve political, religious, or ideological goals.[8]
A significant debate arose during the Rome Conference that established the International Criminal Court regarding the court’s jurisdiction over international terrorism crimes. Attendees were divided into two opposing views. The first group argued that terrorism should fall under the court’s jurisdiction, as it is one of the most serious crimes threatening international peace and security, in addition to violating international humanitarian law. The second group, however, contended that terrorism is a transnational crime, and the court should not address it due to difficulties in defining it, a lack of consensus on the definition of international terrorism, and challenges in investigation and prosecution. They argued that national criminal courts should be the sole authority to address such crimes.
The second Branch: Military intervention as a form of humanitarian intervention
Although the concept of intervention has been widely applied in international relations, there is little consensus among scholars on the definition of “humanitarian intervention”, leading to the emergence of various interpretations. One interpretation is the broad concept of humanitarian intervention, which holds that such interventions are justified in response to any form of suffering, whether caused by natural disasters or human actions, such as armed conflicts. In contrast, the narrow concept restricts humanitarian intervention to actions that are free from political or military motivations and any form of coercion. In this sense, humanitarian intervention is truly humanitarian, meaning it does not involve economic or strategic interests, nor does it exhibit bias or selectivity in its outcomes or methods.[9]
In 1915, the jurist Roger defined humanitarian intervention as the right of a state to exert control over another state’s actions concerning its internal sovereignty when the law of humanity is in conflict, with the intervening state seeking to justify its actions legally.[10]
Christopher Greenwood states that humanitarian intervention is limited to cases where a large segment of citizens—who may not necessarily be subjects of a state or another state—are exposed to death or torture on a large scale as a result of the policies of the government of that state.[11]
The Secretary-General of the United Nations, Kofi Annan, raised his famous question about how the international community should respond to gross and systematic violations of human rights that affect every principle of our common humanity. The International Commission on Intervention and State Sovereignty specifically* described this issue as follows: “Generally, it aims to build a broader understanding of the problem of reconciling intervention to protect human beings with state sovereignty. More specifically, it seeks to develop a global political consensus on how to move beyond polemics and often paralysis, towards effective action within the international system, particularly through the United Nations”.[12]
The Committee uses six criteria to justify humanitarian military intervention, aiming to have these criteria accepted at the global level. It believes that these criteria can help bridge the gap between theory and practice regarding the responsibility to protect. These criteria are:[13]
The Just Cause Criterion: This requires the existence of widespread loss of life, with or without the intent to commit genocide, as a result of a deliberate act or negligence by the state;
The Appropriate Authority Criterion: This determines the body authorized to intervene in humanitarian situations;
The Good Intention Criterion: This means that the purpose of humanitarian intervention is to stop or prevent human suffering, and that overthrowing the regime is not a legitimate reason for intervention;
The Last Resort Criterion: This indicates that resorting to the use of force should be the last option for intervention, as outlined in Articles... of the Charter of the United Nations;
The Appropriate Means Criterion: This emphasizes the need to consider proportionality in any intervention process, in accordance with the principle of proportionality in international humanitarian law;
The Reasonable Probability of Success Criterion: This requires that military action be justified, provided that its chances of success are reasonable.
The third branch: Military intervention as a manifestation of preemptive war
Both the concepts of preventive and preemptive war, despite their different pronunciations, lead to the same act. They serve as a circumvention by major powers to confer some kind of legitimacy on their aggressive actions, allowing them to evade international accountability. It should also be noted that the preparatory committee for the draft definition of the crime of aggression has rejected the notion of a legitimate preventive defense.[14]
Despite the preparatory committee’s rejection of preemptive war as a means of legitimate defense, the international arena has witnessed many practices that illustrate this concept. One notable example is the Cuban Missile Crisis:
The Cuban Missile Crisis: During this crisis, the United States put forward several formal legal arguments in support of establishing a so-called “defensive quarantine” before any actual use of force by the Soviet Union or Cuba. Most of these arguments centered on the role of regional organizations and their ability to authorize the use of force in the absence of a formal Security Council resolution. However, several Security Council representatives discussed the notion of preemption during the Council’s deliberations on the American proposal. Although there was no clear consensus supporting this principle, there was also no clear consensus opposing it. Many states that opposed the United States’ position did not outright reject the principle of preemption; rather, they questioned whether the criteria established under customary law had been met in this particular case.[15]
Six-Day War (1967): On June 5, 1967, Israel launched an armed attack against the United Arab Republic (comprising Syria and Egypt) and quickly achieved victory in what became known as the Six-Day War. During Security Council discussions, Israel claimed that it was acting in anticipation of what it believed would be an imminent attack by Arab states. The Soviet Union, Syria, and Morocco opposed Israel’s actions, rejecting any principle of preemptive self-defense. Conversely, Israel’s supporters, such as the United States and the United Kingdom, tended to endorse the principle of preemption. However, once again, there was no clear consensus against the principle.[16]
The second demand: Legality of Russian military intervention in international law
The right of legitimate defense has held significant importance in international law since the issuance of the Charter of the United Nations,[17] Article 2(4), originally stated that the non-resort to the use of force and the threat of force in the relationships between states is paramount. In this context, Resolution 2526 of the United Nations General Assembly indicates that the threat or use of force constitutes a violation of international law and the Charter of the United Nations. However, the Charter makes an exception in Article 51, which provides for the inherent right of a state to respond to any aggression against its security and territorial integrity. Analyzing the text of Article 51, we note that the international legislator coined the term “natural”, describing the right of legitimate defense as a “right”. This indicates that this right has existed since ancient times, and that Article 51 has revealed and regulated it. The use of the term “authentic” does not merely denote the preservation of a widespread right; rather, it was developed to recognize that states still have the right to exercise legitimate defense, albeit under the control and responsibility of the UN Security Council[18].
The question that arises in this regard is how to explain the Russian military intervention in Ukraine through the Russian perspective on this concept, as well as the views of the rest of the international community. In the first part, we will discuss the Russian justifications for military intervention, linking it to Article 51. Then, we will analyze the nature of this intervention concerning the conditions for exercising the right of legitimate defense in international law, along with comments from various segments of the international community on the subject in the second part.
The first branch: Russia invokes the provisions of Article 51 as justification for military intervention in Ukraine
Russia believes that it has the full right to use force if it perceives a threat to its security, considering Article 51 of the UN Charter; it asserts that Russia’s interests are as legitimate as those of the West and emphasizes that the United States and Europe have ignored its interests in this context.[19]
In a surprising development, contrary to many estimates, Russian President Vladimir Putin announced the launch of a military operation in Ukraine early on Thursday morning in 2022. In an address to the people, Putin emphasized that the circumstances required decisive and immediate action after the Donbas republics appealed to Moscow for help. He stressed that his country’s plans did not include the occupation of Ukraine, but that many individuals, including Russian citizens, should be brought to justice for crimes against civilians, as he stated.[20]
The second branch: The conformity of Russian military operations in Ukraine with the conditions of legitimate defence in Article 51 of the charter
The right to legitimate defense is an inherent and natural right of both states and individuals, recognized by most domestic and international legal systems. However, exercising this right does not grant states or individuals broad discretion. The right to legitimate defense is mentioned in the United Nations Charter because it is not absolute; it comes with conditions that must be met for this right to be invoked. These conditions can be examined in international courts and international criminal courts as a justification for permissibility, whether related to the act of aggression on one hand, or the act of response on the other.[21]
The conditions that must be met for an act of aggression or an act that justifies retaliation are as follows: the aggression must be armed and unlawful; it must be immediate and direct; it must involve a violation of one of the essential rights of the state; and the state’s will must play a role in the occurrence of the aggression.[22]
As for the conditions that must be met in the act of repelling aggression, the response or self-defense must be justified if the state or individual has no other means than resorting to defensive action. In other words, there must be a necessity that compels the response to the aggression, and it must be carried out in a manner proportional to the scale of the aggression.[23]
Accordingly, for the act of response or defense to be justified and deemed permissible under the principles of legitimate defense, two conditions must be met: necessity and proportionality.[24]
Therefore, the question remains: If the Russian military intervention is not an exercise of the right to legitimate defense, as the Russian government claims, can this intervention be considered a violation of international humanitarian law? This question becomes especially pertinent in light of the International Criminal Court’s actions, as its prosecutor has called for an investigation into international crimes allegedly committed on Ukrainian territory since the beginning of the operations. This is the issue we will address in the next section.
Second section: Russian military intervention in Ukraine in the light of international humanitarian law
International humanitarian law was established to prevent war and mitigate its devastating effects on humanity. It achieves this by establishing preventive and deterrent mechanisms that regulate the conduct of combat operations and the treatment of civilians, prisoners of war, and other issues arising on the battlefield. State adherence to international humanitarian law is based on political will and commitment to the provisions of international agreements and norms. Any violation of these rules by a state or its individuals will result in the state’s civil liability for any damages caused, in addition to the criminal liability of individuals whose actions constitute war crimes under international criminal law.
Accordingly, we will discuss in this section the establishment of Russia’s international responsibility for violating the rules of international humanitarian law in the first part. We will then examine how the Russian military intervention in Ukraine constituted violations of these rules and the extent to which this serves as a justification for establishing Russia’s international responsibility in the second part.
The first demand: Establishment of Russia’s international responsibility for violating the rules of international humanitarian law
Rule 149 of Customary International Humanitarian Law provides that a state is responsible for violations of i
Economic Liberty in Digital Market and Digital Competition Legislation: Indian Context
Full text linkThe rise of extraordinary digital platforms raised issues of monopolistic behaviours, market concentration, and digital ecosystem power balance, which complicated economic liberty protection in the digital age by compromising economic freedom, such as fair competition, innovation, and customer care. This paper focuses on the Digital Competition Bill from India 2024, a crucial piece of legislation that attempts to lure the digital market monopolies from threats and culminate in a model of economic liberty in a digital economy. The bill aims to regulate “gatekeeper” platforms, those huge digital companies that lead access to markets and services across the Internet, against a number of anti-competitive practices, including self-preferencing, exploitation of data, and restrictive business terms brought into the picture for the benefit of another party. Such an act of practice mostly cuts off the competition, disallows minimum market access for small entities, and hampers the overall consumer experience. The Digital Competition Bill, therefore, seeks to create a level regulatory field for large and small representatives in the marketplace so that innovation and abuse of access to digital opportunities are promoted. The paper will also examine in detail how this particular law on digital competition, the Digital Competition Bill, mentioned above, helps create a conducive digital market environment to realize economic liberty for companies, small and big. This study argues that a Digital Competition Bill can change the country’s approach to regulating digital market competition, provide an adequate framework for fostering economic liberty in digital markets.
Keywords: Competition law, economic liberty, digital market, digital competition law, free market
Introduction
Economic freedom is one of the basic pillars of democratic capitalism and expresses the principles of free markets, whereby individuals and businesses are unhindered in their economic pursuits without excessive government interference.[1] Economic liberty rests on the belief that people are allowed to pursue their own interest in the marketplace, which will, in turn, create competition that gives rise to desirable outcomes starting from innovation, efficiency down to the satisfaction of consumers.[2] Traditionally, it has been understood that economic liberty applies to national economies, where businesses are seen as standing in competition with each other in relatively transparent and open markets and with minimum government intervention.[3] However, as world economies rose, digital-age innovations thoroughly rearranged the commercial architecture. On the one hand, the new digital platforms led by Amazon, Google, Facebook, and Apple etc. have thrown opportunity after opportunity into the fray. The alternative is that these companies have changed the landscape of buyers and sellers’ interaction with markets; they have practically ruled a few sectors of the global economy by exploiting massive amounts of data and controlling crucial infrastructure locations.[4] Accordingly, this has complicated the understanding of the economic liberty paradigm. How far is the economic liberty visa when a handful of tech giants dominate so much of the marketplace? How far do these platforms balance the scales against economic freedom for smaller entities and consumers alike?[5]
In India, a rapidly digitizing economy, such questions assume acute proportions. In relatively recent times, India has witnessed a technological revolution whereby millions of people came online, and digital platforms have formed a block of everyday life.[6] With the acknowledgement of heightened concentrations of power in the hands of a few dominant players in the digital economy, the Government is proposing the introduction of new regulatory measures. The Digital Competition Bill of 2024, which aims at addressing the dominance of “gatekeeper” platforms, constitutes a major legislative step intended to secure economic liberty in the digital marketplace.[7] The bill aims to create a competitive and transparent digital marketplace by regulating the behavior of dominant digital platforms so that they do not impede competition, decrease consumer choice, or misuse consumer data.[8] This paper discusses economic liberty and digital competition law in the Indian context, thus enabling such regulatory frameworks to provide equilibrium between innovation and free and competitive market environments. The main argument revolves around the idea that digital competition laws, such as the Digital Competition Bill, are key to curbing monopolistic behavior while also having the potential to further economic liberty by ensuring that smaller businesses and consumers are not overly restricted by the maximum market operations possible from big tech monopolies.[9]
Methodology
This study employs a doctrinal and comparative legal research approach. The doctrinal method is applied through an analysis of the Digital Competition Bill 2024, together with official reports of the Ministry of Corporate Affairs, the Competition Commission of India, and documents of international organizations such as UNCTAD and ICRIER. These sources provide the normative basis for assessing how the proposed legislation addresses issues of economic liberty in digital markets.
The comparative legal method is used to contextualize India’s approach against major international models, including the United States’ antitrust practice, the European Union’s regulatory framework (e.g., the GDPR), and China’s state-controlled regulatory model. Such cross-jurisdictional analysis highlights both the strengths and the limitations of India’s evolving digital competition law.
The theoretical foundation of the research draws upon classical and modern doctrines of economic freedom, including the works of Berlin, Hayek, Friedman, and Rawls. These perspectives provide an interpretive framework for evaluating how the Digital Competition Bill 2024 redefines economic liberty within the rapidly expanding Indian digital economy.
1. Notion of Liberty: A Conceptual Framework
A classical concept that denotes the absence of external restrictions on the action of an individual. It has many philosophical definitions, two of which are negative liberty and positive liberty, and both of these principles have different views on the economy.[10] As stated by Isaiah Berlin, ‘negative liberty’ indicates freedom from external interference, particularly from the government. In terms of economics, this is that laissez-faire capitalism, wherein individuals and businesses act in a sort of free market with minimal regulation from the state, is to be expected.[11] With the advent of electronic markets, however, the assertions look twisted because such corporative monopolies could frequently exercise just as much repressive power as governments.[12] In ‘positive liberty’, on the other hand, the ability to act or act independently in any aspect of decision-making is what an economically independent person should enjoy. By extension, it indicates that institutional and protective frameworks are thus required to permit individuals the chance to be meaningfully free and to participate in economic activities rather than forging ahead under the force of a monopolistic economy or under predatory market conditions.[13]
Thus, understanding economic freedom in digital markets will mean different things to these two perspectives. Whereas unrestricted markets confer freedom to innovate to entrepreneurs, excessive concentration on the part of corporations paradoxically reduces the economic liberty of individuals by limiting their choices or market entry opportunities. Well-designed competition legislation can promote positive economic liberty, though, in that it assures fair market access to all actors.[14] Unique to the digital economy are many of the challenges that affect economic liberty, but which were absent in the previous market form. One major challenge is platform monopolization, where companies, by definition, sell direct to consumers but, in many cases, use barriers to entry to limit competition from smaller players in the industry.[15] Then there is algorithmic bias and market manipulation, much of which is created by the data generated by artificial intelligence-trained algorithms, as it may augment the market competitiveness of certain businesses at the expense of other businesses, thus undermining fairness.[16] Further, at the heart of economic liberty in digital market discourse are concerns over data privacy. Information about consumers has become a commodity that, in many cases, major corporations abuse their privilege and extort against individual privacy rights, which undermines the freedoms of individuals in a digital space.[17] Countries have different experiences and approaches to regulating digital competition. The United States, for example, focuses on antitrust laws, yet tends to be lenient toward tech monopolies by allowing large firms to acquire monopolistic power without significant interventions. The European Union is much stricter with regulations; for example, it has the General Data Protection Regulation (GDPR), which mainly focuses on consumer rights and data protection while at the same time limiting the power of tech giants.[18] Much of China’s position on digital market regulation can be seen as balancing two opposite terms: government versus economic regulation. While the Chinese government plows a posture toward intervention in regulating digital platforms, it also seeks economic growth and innovation, albeit through a relatively controlled approach.[19] Each of these regulations represents a tiny aspect of the much broader dilemma of how to preserve economic liberty while ensuring strong, competitive, fair, and accessible digital markets.
2. Economic Liberty in the Digital Market
Economic liberty and competition are understood by many as the right of free individuals within a market and free-moving businesses to sell their merchandise. But they have increasingly come under threat in a digital age. Till now, economic liberty has been given as much weight in granting businesses the freedom to innovate and compete under conditions of their choice dictated by supply and demand, which is the core of the market.[20] Digital platforms are altering this paradigm, that trade, consumer behavior, and market affiliation are way beyond what was possible from their early beginnings due to extreme influence. Fundamentally, open competition forms a vital part of economic freedom. In a traditional environment, competition presses prices down, provides choice in product lines, and stimulates entrepreneurs to act differently to differentiate themselves. This mechanism supports capitalist economies wherein resources are consensually directed toward their efficient use by that invisible hand.[21] The digital economy, in contrast, on the opposite end, tends to pervert this idea by concentrating power on huge platforms like Amazon, Google, or Meta. These companies have now emerged as the gatekeepers to the digital marketplaces, search engines, and social media ecosystems, all essential arteries for modern economic life.[22]
They can nonchalantly decide which digital entrants will live or die. They influence price structures, gate consumers, and control the flow of information.[23] While this level of control may enhance efficiencies, it puts up colossal hurdles for small businesses that do not possess corresponding resources or technical expertise. Other terms that the platforms impose are exploitative, for instance, exorbitant commission fees on goods sold via Amazon or inflated ad costs charged on platforms like Google and Meta-which correlates to the unfair competition in the marketplace.[24] One particularly troubling dynamic relates to algorithms whereby decisions through which market outcomes are affected are apparently neutral. In actual practice, algorithms often embed systemic biases that advantage the platform’s own products or services effectively, thereby undermining fair competition.[25] For example, Amazon’s algorithm might unconsciously prefer Amazon-branded products over third-party sellers’ products that are better or cheaper. This self-preferencing reduces consumer choice, deepens market power, and stands in direct opposition to the concept of economic liberty. Such opaqueness raises great ethical and regulatory issues. Most consumers remain blissfully ignorant of the fact that their digital interactions are being engineered towards certain ends, reducing transparency and denying the possibility of informed decision-making.[26] The situation is especially acute regarding this question in India. Rapid digitization has taken place in India, but platforms have rendered many SMEs worse off. Small and medium enterprises are compelled to accept terms that restrict their operations to be able to access marketplaces like Amazon or Flipkart; failing to do so would mean being denied access to major advertising platforms such as Facebook and Instagram.
The extent to which this concentration of power restricts competition hampers the development of the truly inclusive digital economy within India. A large number of entrepreneurs and start-ups lack the voice and influence to participate in digital marketplaces on an equal footing. This imbalance is further reinforced by technologies that aid in the absence of infrastructure, the lack of access to data that directly inhibits local companies’ efficient functioning, and the economic power to operate an advanced business. In order to correct these disparities, in 2024, the Digital Competition Bill in India was passed. It affords a robust regulatory framework to deal with the monopolistic behavior of Systemically Significant Digital Enterprises. The Bill aims to create an enabling environment where businesses, big and small, will have equally fair opportunities to grow and compete in the digital marketplace.[27]
Key provisions of the Bill speak directly to the economic liberty concerns just mentioned, such as preventing self-preferencing, exclusive tying advantages, and access on discriminatory terms, thereby protecting small businesses against being squeezed out. Additionally, it imposes transparency requirements providing for the disclosure of algorithms and decision-making criteria affecting market exposure. This allows for a greater level playing field upon which SMEs can make rational decisions and compete fairly. Further seeks stakeholder consultation, thereby giving SMEs and start-ups a voice in the regulation of digital markets. This participative approach reflects, indeed, the spirit of inclusive economic liberty, bringing forth the different demands of the vast entrepreneurial landscape in India.
Very importantly, the Digital Competition Bill will also encourage innovation by preventing anti-competitive mergers and acquisitions that may suppress emerging businesses. The bill further aims to prevent any kill zone effect where large firms acquire the start-ups to neutralize future competition by imposing an advance notice regime and pre-merger review of acquisitions by SSDEs.[28] The implications are that the Digital Competition Bill is a necessary evolution for India’s economic regulation framework. It redefines economic liberty in the digital age as more than just state non-interference; it is about algorithmic transparency and equally fair access that protects against digital monopolies. The Bill, thus, creates the foundation for a more inclusive, vibrant, and just digital economy in India.
3. The Role of Digital Competition Law in Promoting Economic Liberty
Market contestability measures such as India’s Digital Competition Bill of 2024 seek to promote fairness in the market, given that the same measures challenge the essence of economic liberty. The very existence of digital platforms often creates discrimination among the constituents nurtured in their environment, where power becomes concentrated in the hands of a select few dominant players. Such concentration raises legitimate fears of monopolistic tendencies, barriers to market entry for smaller enterprises, and exploitation of consumers. The regulation of such dominant operators would restore economic liberty as constituting the core of competition, fair market access, and capping unfair business practices.[29] The Digital Competition Bill focuses primarily on “gatekeeping” digital platform companies that determine market access and marketplace intermediation between businesses and consumers. It highlights certain conduct of these platforms, including self-preferencing, data appropriation, and predatory pricing behavior, primarily responsible for disquiet in the minds of businesses and consumers. Such gatekeepers as Amazon, Google, and Facebook heavily influence the workings of digital markets. They set the rules of engagement for countless businesses that depend on their platforms for visibility, sales, and interaction with consumers.[30]
India’s digital economy is flourishing, with billions of active internet users and a proliferation of e-commerce businesses. It is the ideal ecosystem for new digital platforms to flourish.[31] Conversely, this also implies a challenging ground for small businesses that cannot match such big players. For a good number of small businesses, platforms like Amazon or Flipkart become a wider base of consumers, quantifying these terms for larger commissions, which in turn become extractive and foreign to enlarge their earnings and maneuverability in the market. And, not to mention, this control of the platforms as ‘gatekeepers’ might bury them deep in search result pages or actually eliminate them for certain lucrative opportunities. Thus, during the year 2024, the Digital Competition Bill emerged as a regulatory answer to tackle the problems cited above. By assuring that the competitive integrity of the digital marketplace is preserved, it addresses a range of issues through transparency requirements, curbing anti-competitive behaviors, and safeguarding small businesses from any disadvantages. For example, the Bill mandates that gatekeepers disclose the criteria upon which they base product or service rankings, which transparency will help businesses understand how to compete for consumer attention and take steps to minimize discrimination risk and maximize chances for success.[32]
It also defines regulations for fair use of data that the platforms must uphold. Under current affairs, the powerful platforms enjoy fencing off and collecting data in huge volumes of business and user data for the improvement of their own services, turning the information into assets in competition with others, and consequently profiting from their products.[33] For example, Amazon is a platform that uses the above data to promote its items over the goods sold by third-party sellers, thus tilting the field. The Digital Competition Bill will regulate such practices, establishing regulations for the use of business data with a focus on transparency of data sharing and fairness.[34] Thus, the Bill upholds the economic liberty of small players in the market against being wiped off under the competition barriers exerted by the mighty. The measure shall also build a level playing field against the conduct of the dominant firms in the market, to foster a competitive environment conducive to small business resorts. With this consequence, the Digital Competition Bill assures the liberty of corporate players alongside those of consumers for the preservation of competition as a functional efficiency in promoting fairness and innovation in the digital economy. Moreover, the Bill addresses pressing concerns regarding platform transparency and the requirement for digital platforms to disclose their ranking and promotion of products. The larger implications of this transparency will be that smaller businesses will be able to maneuver within the pale of the digital marketplace and come up with strategies to counter larger, more established competitors. Being able to understand ranking algorithms will allow small businesses to set up their practices and adapt to fast-moving market dynamics.[35]
Thus, with the above provisions, the need for such rules in the Indian context arises as digital businesses will continue to grow in the country and remain under the heavy influence of global giants like Google and Amazon. The enforcement of these laws will propel India to secure those small businesses do not lose out on digital opportunities, securing the economic liberty of every participant in the market, for such an emergence of forward players. The Digital Competition Bill not only looks to adopt regulation but also toward the establishment of an ecosystem conducive to fostering entrepreneurship, deterring anti-competitive conduct, and ensuring a fair chance of success for all participating market players, irrespective of size.[36] Legitimate commercial activity of this nature would go further toward preserving the integrity of India’s entrepreneurial landscape, where enterprises both big and small can all thrive and actively contribute to the growth of the digital economy. Therefore, the Digital Competition Bill is a watershed moment in securing the economic liberty of all players in the digital marketplace from being a mere theoretical concept.
4. Implications of Economic Liberty
Innovation, alongside consumer welfare, presents a broader impact that emanates from competition laws, with monopolistic behavior and fair competition always shielding digital competition law. If a competition law really intends to rigidly establish a level playing ground where it will recreate just as
Anti-Corruption Legislation in Vietnam: Barriers in Practical Application
Full text linkCorruption has persisted as one of the most complex and enduring challenges in human society. Since the mid-twentieth century, it has evolved into a widespread global issue, exerting harmful effects not only on economic growth but also on social ethics, political stability, and cultural values. Across many nations, corrupt behavior erodes institutional integrity, weakens citizen confidence, and impedes sustainable development. This study examines the nature, scope, and consequences of corruption, highlighting recent trends in Vietnam. Although the Vietnamese government has made consistent efforts through legislative reform and institutional restructuring, the practical outcomes remain below expectations. The central limitation lies in the lack of comprehensive enforcement and the inadequate deterrent effect of existing sanctions. By combining theoretical interpretation with empirical observation, the article argues that an effective anti-corruption strategy must focus on strengthening legal enforcement and ensuring equality before the law. Strict and impartial punishment of corrupt officials, particularly those holding Party or governmental positions, is essential to restore public trust and reinforce state legitimacy. The study thereby contributes to the ongoing academic and policy dialogue on promoting the rule of law and enhancing the efficiency of anti-corruption governance in transitional political systems.
Keywords: Corruption prevention, legal enforcement, policy effectiveness, rule of law, Vietnam.
Introduction
Corruption and efforts to prevent it have existed throughout the long course of human civilization. Across historical periods, corruption has not only reflected the moral decline of individuals but also exposed structural weaknesses in the exercise of public authority, creating systemic harm to political, economic, and cultural life. Since the latter half of the twentieth century, this phenomenon has evolved into a global crisis that undermines social morality, weakens institutional credibility, and poses serious threats to sustainable development.
During the past thirty years, numerous countries and international organizations have launched extensive strategies and programs aimed at reducing corruption. These initiatives include reforming legal frameworks, enhancing transparency in state management, strengthening the role of oversight by civil society, and expanding international cooperation in the investigation and prosecution of corruption cases. However, the practical outcomes remain limited. In many developing and transitional economies, corruption continues to adapt in increasingly complex forms, penetrating both public and private sectors. Such persistence erodes citizen trust, obstructs fair competition, and hinders the pursuit of inclusive and sustainable growth.
In the context of Vietnam, corruption has exhibited complicated and persistent characteristics, negatively affecting multiple dimensions of social life. Acknowledging its serious consequences, the Communist Party of Vietnam identified corruption as one of the four primary risks threatening the stability of the political system and the success of national renovation.[1] This recognition reflects the Party’s consistent awareness of the fundamental importance of anti-corruption, linking it closely to the mission of building a socialist rule of law state and advancing a socialist-oriented market economy.
According to the National Strategy on Anti-Corruption to 2020, the prevention and control of corruption constitute a collective responsibility of the entire political system under the leadership of the Party. The strategy emphasizes the coordination among state agencies, social organizations, and citizens, while underlining the accountability of leaders of public institutions. Anti-corruption work is considered both an urgent and long-term mission, closely tied to the objectives of socio-economic reform and institutional modernization.[2]
Despite the visible progress achieved through legislation and enforcement, manifestations such as bureaucracy, abuse of authority, and harassment by certain officials still appear, particularly at the grassroots level. These problems diminish the moral authority of the Party, weaken public confidence, and highlight that corruption in Vietnam is not only a legal challenge but also a question of political ethics and administrative integrity.
In this situation, the Communist Party of Vietnam has repeatedly affirmed that combating corruption is a shared task of the entire political system under unified Party leadership.[3],[4] The campaign must be implemented comprehensively, mobilizing the strength of governmental institutions, social organizations, trade unions, and the people at large. It must also be associated with the broader goals of socio-economic transformation, political stability, and the consolidation of national unity in building a socialist rule of law state during the new phase of development.
From this perspective, the study of Vietnam’s anti-corruption legal framework, particularly in relation to obstacles in practical implementation, bears profound theoretical and practical relevance. Understanding the weaknesses within the institutional mechanism is essential for formulating solutions that improve the effectiveness and coherence of the legal system. Such efforts will not only strengthen the rule of law but also advance the broader objective of sustainable development and national modernization.
1. Literature Review
1.1 Economic and investment environment impacts of corruption
Many works have focused on clarifying the relationship between corruption, economic growth, and investment in the context of Vietnam’s transition to a socialist-oriented market economy. Anh, Minh, & Tran (2016) argue that corruption is a negative factor that reduces the efficiency of resource allocation, distorts market signals, and limits growth rates.[5] The authors demonstrate that although Vietnam has issued many legal regulations on transparency and integrity in public service, the effectiveness of enforcement is limited due to the lack of independent inspection and monitoring mechanisms.
Bai, Jayachandran, Malesky & Olken (2017) use empirical evidence on Vietnamese enterprises to show that corruption in the licensing, inspection, and access to capital processes is a major barrier to private sector development.[6] Despite the presence of anti-corruption legislation in the business environment, weak enforcement imposes significant “informal costs” on firms, which reduces incentives for innovation and long-term investment.
Nguyen, Tran, & Truong (2024) approach this issue at the local level, emphasizing that corruption levels in localities are closely linked to investment performance.[7] In provinces with high levels of corruption, firms tend to scale down operations and reduce investment, despite preferential policies. This reflects a clear gap between the anti-corruption legal framework and enforcement effectiveness in the context of local governance.
Notably, research by Huy, Khanh, Viet & Cuong (2025) assesses the large-scale anti-corruption campaign in Vietnam in the recent period.[8] The results show that the Government’s strong measures have temporarily increased investor confidence, but have not created a sustainable impact on the business environment. The lack of consistency in law enforcement and the instability of the institutional framework make businesses still hesitant to expand investment.
Thus, studies in this area agree on the view that the effectiveness of anti-corruption law enforcement has a direct impact on market confidence and national competitiveness, and at the same time point out the need to strengthen independent enforcement and monitoring mechanisms to minimize informal costs in the economy.
1.2 Institutions, politics, and law in anti-corruption
The second research area focuses on analyzing the institutional, political, and legal aspects in the process of planning and implementing anti-corruption policies in Vietnam. Bui Hai Thiem (2019) is one of the pioneering scholars who pointed out that anti-corruption reforms in Vietnam are strongly influenced by political factors,[9] in which the Communist Party of Vietnam plays a central role in guiding and controlling the implementation process. The author argues that although the legal framework has been expanded with the Law on Anti-Corruption (2018) and guiding documents, the concentration of power and the lack of independence of supervisory agencies remain the main barriers to practical effectiveness.[10]
Nguyen & Nguyen’s research (2025) takes an institutional analysis approach, emphasizing that although the Vietnamese legal system on anti-corruption is comprehensive in terms of structure, it is “institutionally dependent”, meaning that the effectiveness of the law depends on the level of political commitment and the ability of the administrative apparatus to operate.[11] The lack of a mechanism to ensure the independence of the courts, the procuracy, and the investigation agencies makes anti-corruption laws not as effective as expected.
Dung & Thanh (2023) extend the issue to the field of corruption in the private sector, pointing out that current laws do not have strong enough tools to control bribery between enterprises or between the private sector and the public sector.[12] Although Vietnam has criminalized the liability of legal entities, the mechanism for investigation, prosecution, and protection of whistleblowers is still weak, leading to an “imbalance” between regulations and practical application.
In addition, Giang (2024) analyzes the “furnace” campaign from a political economy perspective, arguing that this is both a political measure and a test of the effectiveness of the legal system.[13] The results show that this campaign contributes to strengthening integrity in the public sector, but at the same time reflects that anti-corruption in Vietnam is still closely tied to political power and cannot become a purely legal process.
Forde (2022) adds a theoretical perspective when viewing corruption in Vietnam as a “power accumulation structure” associated with a cronyism mechanism.[14] The author argues that although the law in this context is regularly reformed, it is difficult to achieve real effectiveness because it is dominated by group interests and lacks accountability.
In general, studies in this group agree on the argument that institutional and political barriers are the underlying cause of the failure of anti-corruption laws in Vietnam to be fully effective.
1.3 Law enforcement, media, and regional comparisons
The third research area extends to issues of law enforcement, the role of media, regional comparisons, and historical legal inheritance.
Nguyen and Nhan (2024) focus on the role of investigative journalism, considering it an important tool for monitoring and detecting corruption.[15] However, the study also found that press freedom and journalists’ access to information are still constrained by the legal framework, making it difficult to investigate and report on corruption.
Maslen’s (2025) report, conducted by Transparency International, provides a comprehensive overview of corruption patterns and anti-corruption policies in Vietnam.[16] The report found that Vietnam has made significant progress in lawmaking, but enforcement, asset transparency, and whistleblower protection remain major weaknesses. At the regional level, Nobumichi Teramura & Luke Nottage (2025) compared anti-corruption provisions in East Asian and South Asian investment treaties, finding that although Vietnam has adapted many regulations to international standards, it still lacks an effective internalization mechanism.[17]
In particular, Van, Van, Minh & Trong (2024) approach the issue from a legal historical perspective, analyzing the crime of bribery in the Hong Duc Code and considering it a typical legal precedent for current regulations on public service integrity.[18] This study affirms that the Vietnamese legal tradition has always attached great importance to the ethics of officials and transparency in the performance of public duties, but in the modern context, this factor has not been effectively transformed into a legal enforcement mechanism.
1.4 Research gap
Synthesizing studies in this group shows that, although Vietnam has made much progress in perfecting the law and raising social awareness, the gap between legal regulations and practical effectiveness remains a big challenge. The lack of coordination between state agencies, the media, and civil society means that the law has not really played its role in preventing, detecting, and handling corrupt acts.
The three research areas above have provided a comprehensive view of the issue of corruption and anti-corruption laws in Vietnam. The works all agree that barriers in the practice of law enforcement originate from institutional, political, and social factors, in which the effectiveness of the law depends on the level of transparency, independence of the judicial system, and monitoring mechanisms.
However, the current gap lies in the lack of in-depth empirical studies on the effectiveness of new legal regulations, as well as the relationship between anti-corruption, social trust, and improving the investment environment. The topic “Anti-Corruption Legislation in Vietnam: Barriers in Practical Application” aims to overcome that gap by analyzing institutional, legal, and behavioral barriers in the practice of anti-corruption law enforcement in Vietnam, contributing to perfecting the legal foundation and promoting transparency and integrity in national governance.
2. Methodology
2.1 Documentary analysis and synthesis
Objective: The purpose of this method is to clarify the theoretical foundations and the current system of legal regulations and policy frameworks concerning the prevention and control of corruption in Vietnam.
Data Sources: The study draws upon a variety of normative and institutional documents, including the Law on Anti-Corruption adopted in 2018 and its guiding decrees and circulars. Supplementary materials comprise annual and thematic reports of the Government Inspectorate, the Ministry of Justice, and the Judicial Committee of the National Assembly. In addition, analytical and comparative data are collected from international organizations such as the United Nations Development Program, the Organization for Economic Co-operation and Development, and the World Bank.
Approach: The analysis focuses on the systematization of relevant legal provisions, the interpretation of fundamental concepts, the clarification of the scope and objectives of anti-corruption legislation, and the identification of core policy orientations. The findings are then compared with international standards and best practices to determine the level of harmonization between Vietnam’s legal framework and global approaches to integrity and transparency.
2.2 Legal reality analysis
Objective: This method aims to identify and interpret the main barriers that arise in the practical implementation of anti-corruption laws and policies.
Practical Data: Empirical evidence is gathered from representative cases that have been tried in court or subjected to administrative sanctions, inspection and audit findings, official conclusions of the State Audit Office, and independent evaluations prepared by social organizations, professional associations, and policy experts.
Method: Through detailed analysis of judicial judgments, inspection reports, and law enforcement assessments, the study identifies recurring patterns and systemic obstacles that hinder the effectiveness of anti-corruption mechanisms. These include inconsistencies and loopholes in the legal framework, conflicts of interest within administrative structures, insufficient coordination among competent authorities, and inadequate mechanisms for the protection of whistleblowers and informants.
2.3 Comparative legal method
Objective: The purpose of the comparative legal approach is to evaluate the Vietnamese anti-corruption framework in relation to selected foreign models, thereby identifying both its advantages and limitations.
Method: The comparison is conducted on the basis of specific criteria such as the transparency of asset declaration mechanisms, the independence of investigative bodies, the effectiveness of whistleblower protection, and the participation of civil society in monitoring public integrity. The institutional differences and their practical implications are analyzed to draw lessons for improving Vietnam’s anti-corruption system and ensuring greater coherence between legal provisions and implementation outcomes.
3. Findings and Discussion
3.1 Findings
3.1.1 Current landscape of corruption in Vietnam
Corruption in Vietnam remains a pervasive and complex reality that cuts across sectors and levels of authority. Wherever material incentives intersect with non-material interests, opportunities for rent seeking and illicit gain tend to arise. The Political Report of the Ninth National Congress identified corruption as a serious national problem, a conclusion that still frames contemporary assessments of risks to governance and development in the country.[19]
The spectrum of corrupt conduct is diverse. It includes embezzlement, bribery, diversion and misuse of public assets, fraudulent appropriation of property from the state and citizens, and abuse of position or power to create artificial obstacles for private gain. Other recurrent patterns include the creation of unauthorized funds and the use of budget resources contrary to legal provisions for particularistic benefits. Such practices have been documented across public finance and procurement, land administration, taxation, banking, customs, commercial activities, education, health services, the justice chain, and the administration of social programs, among other domains.[20]
In terms of scale, corruption appears at the level of individuals and groups, in both sporadic and structured forms. The measurable loss to the public purse can reach very large magnitudes, with some cases causing damage amounting to hundreds or thousands of billions of Vietnamese dong. The intangible harm is even more serious. Corruption erodes public trust, weakens the moral authority of public institutions, and undermines confidence in the reform trajectory pursued by the Communist Party of Vietnam.
3.1.2 Evolution of anti-corruption efforts
Vietnam has treated anti-corruption as a core governance priority since the early years of the revolutionary state. President Ho Chi Minh warned that greed is an internal enemy and must be confronted decisively.[21] In recent decades, the Party, the State, and the people have consistently characterized corruption as a grave national threat and have acted to contain it through a mix of prevention, detection, and sanctioning measures.[22]
Policy directions and legal instruments have been repeatedly articulated in Party resolutions, statutes, executive regulations, and institutional guidance. Public communication through mass media and scholarly and professional forums has made corruption and anti-corruption a regular item in central and sectoral reporting. The issue is also a subject of daily public debate, reflecting the expectations and frustrations of citizens in both urban and rural settings.
Over time, Vietnam has moved from foundational enactments to more comprehensive institutional reforms. The Law on Anti-Corruption and the Law on Thrift Practice and Waste Combat were important milestones, followed by the establishment of the Central Steering Committee on Anti-Corruption. A theme resolution of the Third Conference of the Tenth Central Committee offered a frank appraisal of constraints, clarified objectives and guiding views, and set out measures and implementation responsibilities in a structured way. The Law on Anti-Corruption of 2018 represents a major update. It came into effect on 1 July 2019 and expanded the scope of asset and income declaration, mandated publicity of declarations, clarified leadership accountability when corruption occurs in agencies and units, and strengthened the consequences for dishonest declarations, including possible dismissal.[23] These innovations aim to improve transparency, reinforce personal responsibility in declaration and control of conflicts, and elevate the role of leaders in building integrity-centered organizations.
The political determination behind these reforms is to shape four conditions that reduce the space for wrongdoing. The goal is that people do not need to engage in corruption, cannot easily do so, do not want to do so, and do not dare to do so. Despite this broad approach, outcomes have not yet matched expectations. Official assessments still describe corruption and waste as serious and widespread in several sectors and levels of administration, with complex modalities and negative social effects that diminish public confidence.[24]
3.1.3 Why results remain below expectations
The shortfall does not imply an absence of effort. Rather, it indicates that the strength, continuity, and coherence of policy implementation have not always been adequate to produce transformative outcomes. Objective factors identified in recent research point to the rapid diversification of economic activities that has exceeded the regulatory and oversight capacity of existing institutions. Weaknesses in the system of checks and balances, combined with incomplete mechanisms for transparency and accountability, have enabled conflicts of interest and abuse of authority to persist in practice.[25]
Another key limitation li
The Study of Right to Freedom of Expression, Digital Media Laws and Demand for Innovation
Full text linkThis paper provides an overview of the concept of the right to freedom of expression, the concept of digital media, relating and applicable laws as well as needed innovation in the existing legal framework to prohibit misinformation on digital media. Nowadays digital platforms are the prime platform for communication. This study highlights the right to freedom of expression at the National and International level with certain limitations. It explains legal protection for individuals and the responsibilities of digital media. It elaborates on key issues of sharing misinformation. This paper focuses on incidents of misuse of freedom of expression on digital media, case laws, recent developments, and international standards of digital governance as well as addresses the harms associated with misinformation shared on digital platforms. It suggests effective measures against digital abuse which will help to prohibit the misuse of the right to freedom of expression on various digital platforms.
Keywords: Right to freedom of expression, media, digital media, laws and innovation
Introduction
Information communication technologies and the internet have become important parts of everyone’s life around the world. It is useful for improving openness and public debate in the society. But this right to freedom of expression is not absolute. It is with some restrictions. The same restrictions apply to the person who is sharing any kind of information on digital media platforms. There are various guidelines, conventions, and international action plans to cope with the situation of sharing misinformation, and misleading content as well as obscene, and defamatory, provocative, alarming information. The whole World is facing issues because of misuse of digital media technology and misuse of freedom of expression. Many more States are trying to adopt laws and policies to tackle such kinds of issues on a domestic level.
Digital media has become the primary tool for sharing information in various kinds of information. People use Facebook, WeChat, Twitter, Instagram, Pinterest Hike, Messenger Whatsapp and YouTube, Vlogs, Blogs, and Websites for communication as well as sharing information. The information that is shared through all these platforms is not always appropriate; it creates tensions in society or misleads the public. There are various examples of Cybercrimes reported in various countries, which include blackmailing, fraud, harassment, cyber defamation, and misleading sexual offenses. The public misuses technology or sometimes they misuse the right to freedom of expression on digital media platforms Worldwide.
Digital media which includes social media, communication apps, video games, streaming, and augmented and virtual reality, are used by everyone for gaining knowledge, communication, awareness, education, and entertainment. This provides affordances and gratifications that promote media use and overuse, trigger dopamine reward pathways, and influence public identity, self-esteem, socialization, learning and development, and behavior. Nowadays it is the biggest issue that various apps are used to collect information and share that information for profitable advertisement, cyberbullying, and misguiding to the public or for spreading rumors.
Sikarwar Rahul defined Digital Media as “digitized content that can be transmitted over the internet or computer networks”.[1] Digital media is the media which processed, stored, analyzed, and distributed by electronic machines or devices like mobile phones, computers, podcasts, or applications. Various companies, organizations, and people use digital media to share information for any kind of purpose which includes education. Awareness, politically updated entertainment, games, advertisements, and businesses.
The digital era started in the 20th century as information technology was used by industries and then after it became a part of public life. Information is shared on digital media in the form of articles, audio, videos, advertisements, music, podcasts, audiobooks, and games, audio and video stories. In the years that followed, newspapers, magazines, radio, and broadcast television were shifting nowadays into the digital world. Google, Netflix, Apple, Facebook, Twitter, and Amazon are popular digital media companies in the World.
Freedom of expression is the most important right which is protected under national as well as international laws and it has a place in various Constitutions also. This right is necessary for human development, personal fulfillment, for searching truth, and information, to sharing ideas and thoughts and it is the requisite of democracy and good governance. Citizens can raise their voice against the injustice. They can use it as a weapon for fulfilling any demand from the government which is coming under basic need. Authorities or the government can frame policies and enact new legislation as per the demand of the public. Therefore free debate is necessary with some limitations. A good democratic government is identified with the right of free speech with certain limitations.
‘Freedom of expression’ is important to share any kind of information or to express our ideas and thoughts through offline as well as online media. There is a close connection between the right to freedom of expression and the use of digital media. People can share various types of information through digital platforms because they have the right to freedom of expression which includes the right to seek, receive, and impart information, and ideas without interference and regardless of frontiers through any media. In a broader sense freedom of expression is the freedom to make fair criticism against government and public office, posting on social media. Protesting in public, listening radio and watching TV, enjoying on the bank of a lake, or river, painting, drawing, acting, dancing, playing music, singing songs, collecting information, and sharing it the part of freedom of expression This right is with some limitations which include not harming others reputation, not to interfere in other’s privacy, not to incite for violence or discrimination. These restrictions are lawful, and executed with court oversight.
International Frameworks and Freedom of Expression
The right to freedom of expression is safeguarded under various international instruments like Article 19 of the Universal Declaration of Human Rights as well as Under the International Covenant on Civil and Political Rights 1966. The UDHR states that ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’.[2] Article 19 of The ICCPR holds that, ‘everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of his choice’.[3] Article 19 (2) of the ICCPR states, ‘the right to freedom of expression applies regardless of frontiers and through any media of one’s choice which includes internet-based modes of communication’.[4] The same rights means freedom of expression that people have offline and must also be protected online which is applicable without interference and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights”.
Johannesburg Principles There is no clarity among people about the restrictions imposed upon freedom of expression when and how this freedom is curtailed or restricted and in which manner. There was an try to limit this freedom of expression under a specific condition as mentioned under Siracusa Principles and Johannesburg Principle which includes National Security, Freedom of Expression, and Access to Information.[5]
Frank La Rue highlighted in 2013 under the UN Special Rapporteur[6] on the promotion and protection there may be no disagreements on freedom of expression as a legal right, but it is important that is not a non-derogable right, and therefore may be restricted or limited and it is subject to safeguards as mentioned under Article 19(3) of the ICCPR.
Freedom of expression has also been protected under various regional Conventions on Human Rights. It is also protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 of the European Convention on Human Rights and Fundamental Freedoms states that ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.[7] European Union adopted The General Data Protection Regulation (GDPR)[8] to regulate digital media which regulates the sharing of personal information online as well as its management. It secures the privacy of individuals, data protection, and freedom of expression in the modern era. There is needed consent from the individual to process his data. It was cleared that prior censorship, any kind of direct or indirect interference upon any expression, opinion, or information transmitted through any means in oral, written, artistic, visual, or electronic form must be prohibited by law.[9] Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information, violate the right to freedom of expression.
The Indian Constitution[10] ensures the fundamental right to freedom of speech and expression under Article 19(1)(a) for every citizen of India. This is a fundamental right to share and express all kinds of thoughts, opinions, and ideas. But this freedom is not absolute. As per Article 19(2) of the Indian Constitution, it is needed to follow a few reasonable restrictions which include not harming India’s sovereignty and integrity, security of the State, not disturbing public order and law, not violating decency and morality, not to defame anyone unnecessarily and not to make contempt of Court. These restrictions apply to online media or digital media users also.
Despite having laws there are various incidents of sharing misinformation through digital platforms. It is observed that many instances came into focus that digital media have been misused by users in many countries as well as in India. Fake news is the biggest problem today, it influences negatively to public. It shapes public opinion. Many people make wrong decisions, fall into wrong investments, they face fraud incidents.
Digital media, websites, blogs, vlogs, Social media, and online users all are part of the problem and contributing to the spreading of misinformation. Fake information shapes public opinion and sets local, national, and international agendas with the help of digital setup. There is a trend in business communities to spread fake information and influence the public to increase demand for any product. These businessmen use digital media to tell fake stories of scarcity of products in the future. By reading or watching such information public purchases products immediately even though they don’t need them. Fake information is shared to achieve political, social, business, publicity, or any other goal. One of the actresses in India shared fake information about her death through her social media account just for publicity. This is also the trend in political information to share some fake stories against the opposition or against the ruling party which affects voters during the election period. It results in increasing demand for a particular stock or product in the market. Nowadays this has become a trend in digital media. It is very difficult for the common person to find the truth and facts. They become a victim of such fake information. Fake information is shared intentionally and sometimes unintentionally. People are trapped in fake stories because of a lack of awareness; they don’t realize and know that they are under the influence of misleading content information. It is difficult to handle fake stories that are being circulated through digital media due to a lack of evidence and sufficient proof to prove that are fake. If there is sufficient proof or evidence available to prove the story is fake but the main issue is to take down that misleading information because of one’s post, another one likes, and the third one shares.
Human Rights Watch said that 83 governments worldwide have justified free speech and peaceful assembly during the COVID-19 Pandemic.[11] Authorities have attacked detained, prosecuted, killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health. The government took action against journalists, activists, healthcare workers, political opposition groups, and others for criticizing government responses to the coronavirus.
Media Defence published that the UN Educational, Scientific, and Cultural Organization (UNESCO) has found that three-quarters of women journalists have experienced online violence. Among them, 30% responded to online violence by self-censoring on social media. Black, indigenous, Jewish, Arab, and lesbian women journalists experienced the highest and most severe form of online violence. 20% of women surveyed were physically attacked or abused offline in connection with online violence that they had experienced.[12]
Reporters Without Borders sheds light on the latest danger of journalist’s threats and insults on social networks that are designed to intimidate them into silence. The sources of these threats and insults may be ordinary trolls. Individuals or communities of individuals hiding behind their screens or armies of online mercenaries. Harassing journalists has never been as easy as it is now. Freedom of expression and bots are being used to curtail the freedom to inform.[13]
United Nations has provided key guidelines on freedom of expression. Incitement to discrimination, hostility, and violence which are prohibited by law under these guidelines. States have to use alternative tools or remedies by educating and creating awareness of the impact of hate speech online and offline.[14]
Individuals hesitate to express their opinions and thoughts on digital media because of trolling incidents are increased after sharing any free speech. Posetti J. and Bontcheva K. and Et. al. (2023) write that Rana Ayyub and Disha Ravi, journalists have faced legal threats for their work.[15]
According to Boivin and Johnson (2024), “Digital literacy can help to reduce heavy censorship and it will empower to public to participate in shaping values for online communities against the hate speech”.[16] They demanded communication technologies should be positive for civic engagement.
The European Court of Human Rights found that the sanctions imposed on a blogger for offending the feelings of religious believers and inciting hatred toward a social group in a series of video messages had breached the blogger’s right to freedom of expression.[17] European Court of Human Rights cleared that criminal prosecution and conviction of the blogger is disproportionate interference which was not necessary in a democratic society and such interference is not justified. Ruslan Gennadyevich Sokolovskiy, a content-creator and blogger. His YouTube channel had 470,000 subscribers. He was convicted for a series of videos posted on YouTube. He shared hate speech through videos. The videos contained Sokolovskiy’s comments on a ban of an atheist group from a social network in the Chechen Republic, comments on hate mail he had received from religious believers, and his criticism of the Russian Orthodox Church. He also made statements about the existence of Jesus and the Prophet Muhammad. In the case of Sokolovskiy v. Russia the European Court of Human Rights dealt with the issue of religious hate speech as a criminal offense interfering with the right to freedom of expression and information under Article 10 of the European Court of Human Rights.
Incidents of sharing false information are increasing day by day. Various false or misleading advertisements are published or shared through Pinterest, Facebook page, Instagram as well as Whatsapp also. The public is coming under the influence of such advertisements and facing issues of money loss. Few fraudulent advertisements are published or shared for participating in conferences, workshops, seminars, and paper publications or to purchase clothes and various products. One of my colleagues sent money to purchase clothes after seeing an online advertisement. The product was not delivered. He was asked to pay more money to start GPS to reach the location by a delivery service person. The colleague asked to return the paid amount, then the seller man sent one transaction message of a bigger amount and told him to return immediately extra transacted amount, but there was no amount transacted in the actual, and a fake transaction message was created and sent by the mobile number. The bank never sends transaction details through mobile numbers. This incident took place online in India with the Maharashtrian victim person in November 2024.
The Ministry of Information and Technology issued a notice to WhatsApp to use such preventive technology to prevent the messages and information shared through WhatsApp groups in large numbers which was the cause of rumors and violence.[18] Then after Whatsapp technology was modified and admin could restrict group members from sharing messages. One more feature added to WhatsApp technology is to find the original source of messages or information shared through it.
‘In India Government ordered the violation of free speech’.[19] YouTube is a popular digital platform for sharing videos. Many videos that are available on YouTube are misguided to the public. Untested health care tips, rumors about celebrities, untested food recipes are shared, untested and uncertified beauty formulas, magic tips are shared and wrong activities of children are promoted. Users violate the idea of freedom of expression and broadcast or share anything with the public. Many people follow YouTube videos and get affected. Provocative information is also shared through various YouTube channels which leads to violence. YouTube doesn’t allow sharing that information which poses a risk of harm by spreading wrong medical information which is contrary to the local health authorities. YouTube policy doesn’t allow medical misinformation that contradicts health authority guidance on the prevention or transmission of specific health conditions or on the safety, efficacy, or ingredients of currently approved and administered vaccines. YouTube policy doesn’t promote information that contradicts health authority guidance on treatments for specific health conditions, including promotion of specific harmful substances or practices that have not been approved by local health authorities or the World Health Organization as safe or effective, or that have been confirmed to cause severe harm. YouTube does not allow sharing information denying the existence of specific health conditions. It applies to videos, video descriptions, comments, live streams, and any other YouTube product or feature. Many YouTube users share unverified and uncertified healthcare information. Surety for weight Loss and wet gain products is shared. Risk-causing stunts are captured by cameras and shared through YouTube. Children follow the same stunts and get affected.
Various bloggers share misinformation through their blogs. There was a story of a 100-year-old granny living her life with good fitness. The secret of her fitness was the herbal medicinal product of a particular company. A Newly established company gives such a surety about the herbal medicinal product and through their advertisement, they tell that Granny has been taking that herbal product for many years. This is a great example of misinformation shared through digital media.
‘The Great Hack’ a documentary on Netflix is one of the examples of a breach of users’ data. Netflix created political controversy through its international productions like ‘The Mechanism‘ which is about a political scandal in Brazil. Netflix is another digital platform to share information in video forms. It is famous for documentaries, TV shows, and web series. It is the top streaming service. Many films are broadcast on Netflix. Standard of these films is less than films which are shown on T.V. or Cinema theaters and approved by the Censor board. Film is an artistic expression. It is coming within the ambit of freedom of expression. Many film producers misuse freedom of expression and share vulgar, obscene films through Netflix which is against the norms.
Significance
Based on various incidents and cases, it is observed that misinformation is shared through digital media which affects society, disturbs public order, violates morality and decency, leads to violence, and creates a threat to national security. Obscene content corrupts the minds of the public which leads to incidents of sexual harassment. Many people are defamed unnecessarily. Private is interfered with. Various people make false decisions based on false information available on digital media. It is necessary to find an urgent solution to prohibit the public from sharing inappropriate content on digital media. Ther
Harmonization of Notary Honorarium Arrangement Related to the Notarial Deed Authority: Toward Legal Certainty
Full text linkThis research aims to examine and analyze the legal consequences caused by the degradation of the notary honorarium from the perspective of the principle of legal certainty. In addition, this research also focuses on identifying and formulating the basis for consideration to harmonize the regulation of notary honorarium. This research uses a normative research method, which analyzes laws and regulations related to the topic discussed. The research approach uses statutory, analytical, and conceptual approaches. Primary legal materials consist of rules and regulations relevant to the research issue and secondary legal materials consist of research results, literature, seminars, discussions, and information from internet sources. The technique of collecting legal materials was carried out through literature studies, and legal documents. The legal materials that have been collected are analyzed using a qualitative descriptive analysis method. The disharmony between the Law on Notary Position and the Notary Code of Ethics regarding honorariums creates legal confusion. The Law on Notary Position only regulates the maximum honorarium without providing a minimum limit, while the Code of Ethics sets a minimum honorarium. This creates a dilemma for notaries, between complying with the Law on Notary Position or facing ethical sanctions. Weak supervision also exacerbates the problem and triggers unfair honorarium competition. Therefore, it needed legal harmonization between the Law of Notary and the Code of Notary Ethics toward legal certainty.
Keywords: Harmonization, Notary Honorarium Arrangement, the Notarial Deed Authority, Legal Certainty.
Introduction
The authority of a Notary as a public official to create authentic deeds and other authorities is expressly regulated in Article 1 point 1 of Law No. 2 of 2014 on the Amendment to Law No. 30 of 2004 on Notary Position (hereinafter referred to as Amendment to Law on Notary Position). The authority of a Notary in making authentic deeds has an essential function, namely to ensure legal certainty, order, and legal protection through the existence of written evidence that is authentic regarding actions, agreements, stipulations, and legal events made before an authorized official. In this case, the authorized official is a notary. As a public official, Notary is not paid by the government but from the proceeds of making the deed of his client. As a public official who carries out a profession in providing legal services to the public, it is necessary to obtain protection and guarantees to achieve legal certainty, including legal certainty regarding the value of honorarium.
Based on Article 36 (1) of Law Number 30 of 2004 concerning the Position of Notary (Notary Position Law), a Notary is entitled to receive an honorarium for legal services provided by his/her authority. The determination of the amount of the Notary’s honorarium is based on the economic and sociological value of each deed he/she makes as stipulated in Article 36 (2). In addition to being based on the provisions of Article 36 of the Notary Position Law, the amount of the honorarium is also based on the determination of the Indonesian Notary Association, as stipulated in Article 3 number 13 of the Notary Code of Ethics, “notaries are required to implement and comply with the provisions regarding the honorarium determined by the association”.[1] On the other hand, it is also regulated in Article 37 of Law Number 2 of 2014 concerning the Amendment to Law on Notary Position which in essence stipulates that notaries are required to provide free legal services in the field of a notary to people who are unable to afford it. Notaries basically cannot refuse people who are unable to pay for their services due to a lack of economic income.[2]
The degradation of notary rights in obtaining honorarium, where currently there is often a determination of notary honorarium that is far below the specified threshold or does not reach the honorarium limit set in Article 36 of the Law on Notary Position, is interesting to be studied. This situation cannot be equated with the provision stated under Article 37 paragraph (1) of Law Number 2 of 2014, which stipulates that Notaries are obliged to provide legal services in the field of notarial services free of charge to underprivileged people. In the elucidation of the Law on Notary Position, the meaning contained in Article 37 paragraph (1) can be said to be unclear and needs to be clarified even though there is an appendix to the “general elucidation” and stated considering that the qualification standards of underprivileged people can be determined by various circumstances such as spiritual, economic, and sociological.[3] Therefore, the determination of a notarial honorarium that is far below the specified threshold cannot be equated with the provision of notarial legal services free of charge.
This research focuses on a legal problem rooted in Article 36 of the Law on Notary Position, which is the basis for determining the limit of notary honorarium. This article explicitly stipulates that the honorarium received by a notary must be determined by considering the economic and sociological value of the deed made and based on the agreement of the parties. This provision emphasizes the principle of balance between the appreciation of the notary profession and the economic capacity of the community as service users. However, in practice, irregularities often occur where the honorarium set is far below the proper threshold, potentially violating the principle of justice and creating legal uncertainty. This focus on Article 36 of the Law on Notary Position aims to highlight the need for consistent implementation and effective supervision of honorarium determination, to protect the rights of notaries as a profession that is expressly regulated in law. With this problem, the determination of honorarium that has been stipulated in the laws and regulations seems to be degraded and ignored. The problem occurs based on the will of the client who wants to get the lowest cost of the desired service fee, and the desire is fulfilled by the notary concerned, because in the field of notarial currently there seems to be competition between notaries in providing services specifically in making authentic deeds.
Based on the description above, the determination of a notary honorarium is regulated by 2 (two) legal provisions, namely in the Law on Notary Position and the Notary Code of Ethics. Article 36 of the Law on Notary Position regulates: (1) that Notaries receive an honorarium for legal services rendered in accordance with their authority; (2) the amount of honorarium received by a Notary is based on the economic value and sociological value of each deed he/she makes; (3) The economic value as referred to in paragraph (2) is determined from the object of each deed as follows: (a) up to Rp 100,000,000.00 (one hundred million Rupiah) or the equivalent of a gram of gold at that time, the honorarium received is at most 2.5% (two point five percent), (b) above Rp 100,000,000.00 (one hundred million Rupiah) up to Rp 1,000,000,000.00 (one billion Rupiah), the honorarium received is at most 1.5% (one point five percent), or (c) above Rp l,000,000,000.00 (one billion Rupiah) the honorarium received is based on an agreement between the Notary and the parties, but does not exceed 1% (one percent) of the object for which the deed is made; and (4) sociological value is determined based on the social function of the object of each deed with the honorarium received being at most Rp 5,000,000.00 (five million Rupiah). Meanwhile, in the Notary Code of Ethics, the provisions regarding honorarium are stipulated in Article 3 number 14 which stipulates that notaries must implement and comply with all provisions regarding honorarium set by members of the association. Furthermore, Article 4 number 10 of such Code Ethics also regulates the prohibition of notaries, namely determining the honorarium to be paid by the client in an amount lower than the honorarium set by the Association.
Based on the description of the above provisions, the Law on Notary Position seems to have a vacuum of norms or the absence of rules regarding legal consequences or sanctions if there are Notaries who do not obey the provisions regarding the determination of Notary honorarium in Article 36 of the Law on Notary Provision by setting the honorarium far below the specified maximum threshold or exceeding the provisions of the upper or maximum threshold limit. Thus, this condition will open up opportunities for each Notary to determine the honorarium at his own will, specifically far below the maximum threshold limit of the honorarium value of the provision. Furthermore, the phrase “Association” under Article 3 number 14, and Article 4 number 10 of the Notary Code of Ethics seems to override the Law on Notary Position as such law has regulated the honorarium under Article 36. Moreover, the Law on Notary Position has no rules that point to other regulations regarding the provisions for determining the notary honorarium.
Indeed, Indonesian law recognizes the legal theory of norms or what is also known as the theory of hierarchy of legal norms. This theory was proposed by an Austrian jurist named Hans Kelsen who developed the theory of Hans Kelsen’s Hierarchy, which is the basic idea of contemporary positive law. The Hierarchy of Legal Norms is also known as the Stufenbau Theory. In his view, legal norms are layered and tiered in a hierarchy (order), so that higher standards become the basis for lower norms, which in turn apply to lower norms. According to Hans Kelsen’s Hierarchy Theory, the constitution is the highest rule. Every rule of law must be based on a higher rule, giving rise to a hierarchical legal pyramid.[4] The implementation of the theory of hierarchy in Indonesia is implemented in Law Number 12 of 2011 on the Formation of Laws and Regulations as the lastly amended by Law Number 13 of 2022 on the Second Amendment to Law Number 12 of 2011 on the Formation of Laws and Regulations (Law on the Formation of Laws and Regulations). Article 7 paragraph (1) and paragraph (2) of such law stipulates that: (1) Types and hierarchy of laws and regulations consist of: (a) Constitution of the Republic of Indonesia of 1945, (b) Decree of the People’s Consultative Assembly, (c) Law/Government Regulation in Lieu of Law, (d) Government Regulation, (e) Presidential Regulation; (f) Provincial Regional Regulations; and (g) Regency/City Regional Regulations; (2) the legal force of Laws and Regulations is in accordance with the hierarchy as referred to in (1)”. Furthermore, in Law Formation of Laws and Regulations, the types of regulations other than those mentioned in Article 7 paragraph (1) are regulated in Article 8 paragraphs (1) and (2) which stipulate as follows: (1) Types of Legislation other than as referred to in Article 7 paragraph (1) include regulations stipulated by the People’s Consultative Assembly, House of Representatives, Regional Representatives Council, Supreme Court, Constitutional Court, Supreme Audit Agency, Judicial Commission, Bank Indonesia, Ministers, agencies, institutions, or commissions of the same level established by Law or Government by order of Law, Provincial Regional Representatives Council, Governors, Regency / City Regional Representatives Council, Regents/Mayors, Village Heads or equivalent; (2) The Laws and Regulations as referred to in paragraph (1) are recognized and have binding legal force to the extent that they are ordered by “higher Laws and Regulations or formed based on authority”.[5]
Based on the hierarchy of laws and regulations in Indonesia regulated under the Law on Formation of Laws and Regulations, the “Code of Ethics” is not mentioned. The definition of a code of ethics based on the Indonesian Language dictionary (Kamus Besar Bahasa Indonesia) is “norms and principles accepted by certain groups as a basis for behavior”. Furthermore, Article 1 number 2 of the Notary Code of Ethics defines that “the Notary Code of Ethics and hereinafter will be called the Code of Ethics are moral rules determined by the Association of Indonesian Notary Association which hereinafter will be called ‘Association’ based on the decision of the Congress of the Association and/or determined by and regulated in the laws and regulations governing it and which apply to and must be obeyed by each and all members of the Association and all persons who carry out the duties of office as Notary, including Temporary Notary Officials, Substitute Notaries at the time of carrying out the office“. Seeing the explanation of the limitations of the laws and regulations described above, the code of ethics cannot be categorized/included in laws and regulations because the code of ethics is a rule made for a particular group. Related to the legal issues discussed regarding the determination of notary honorarium, it can seem as if there is a conflict of norms between the honorarium provisions stipulated in the Law On Notary Position and the Notary Code of Ethics. The notary honorarium should be regulated in the Law, in this case, the Law on Notary Position, however, in reality, the Notary Code of Ethics also regulates it. In addition, the absence of a lower threshold limit on the honorarium value in the Law on Notary Position should be reconstructed to create clarity and balance between the content material of the Laws and Regulations based on one of the principles that must be contained in the Laws and Regulations, namely the principle of conformity between the type, hierarchy, and content material regulated in Article 5 letter c of Law on Formation of Laws and Regulations. Currently, the regulation regarding the lower threshold limit for determining the honorarium value follows the provisions made by the Indonesian Notary Association Organization (Ikatan Notaris Indonesia or INI) as outlined in the Notary Code of Ethics.[6] With these circumstances, the provisions regarding the minimum limit of notary honorarium become blurred or unclear and the provisions regarding notary honorarium seem to be shifted and degraded hierarchically in its regulation so that it does not reflect the harmonization and balance between the content material of the provisions or regulations that apply to notary honorarium.
Based on the above background, there are 2 (two) legal issues raised in this research, namely: (1) how are the legal consequences of the degradation of the determination of the amount of notary honorarium from the perspective of the principle of legal certainty?; and (2) how is the harmonization of regulatory provisions regarding the amount of notary honorarium based on the hierarchy of laws and regulations? Therefore, this research aims to examine, analyze, and provide an in-depth understanding of the legal consequences arising from the degradation of the determination of the amount of notary honorarium from the perspective of the principle of legal certainty. In addition, this research also aims to identify and formulate relevant considerations to harmonize the regulation of the amount of notary honorarium in accordance with the hierarchy of laws and regulations in Indonesia. The degradation of the determination of notary honorarium raises various significant legal consequences, especially in terms of violating the principle of legal certainty.
The lack of clarity in honorarium standards creates a mismatch between the regulation in Article 36 of the Law on Notary Position and the facts that occur, which are often influenced by the internal provisions of professional organizations. This has the potential to harm notaries as parties who should be protected by law, as well as reduce public trust in the notary profession due to non-uniform practices. This research underscores the importance of harmony between the Law on Notary Position, the Notary Code of Ethics, and other relevant regulations. Harmonization efforts must consider the principle of hierarchy of laws and regulations as stipulated in Law on the Formation of Laws and Regulations, where laws have a higher position than internal provisions. The considerations of harmonization must also include the values of justice, professionalism, and social responsibility so that the determination of honorarium can reflect a balance between respect for the services of the notary profession and the economic capacity of the community. Thus, this study aims not only to provide practical recommendations for strengthening notary honorarium regulations but also to encourage the creation of a more consistent and fair legal system. The results of this study are expected to serve as a foundation for policy reforms that support legal certainty, protect the rights of notaries, and maintain the quality of services to the public.
This research is one of the developments and renewals of legal issues on previous research. The study of Anak Agung Ngurah Putra Satria Kusuma, and I Nyoman Bagiastra (2022) examined issues related to the regulation of honorarium in the applicable laws and regulations, with a focus on the juridical consequences for notaries who do not collect honorarium in making deeds for the parties.[7] Maya Amalia and Ngadino (2021) examined issues related to the implementation of professional ethics rules in overcoming differences in notary honorarium and the urgency of having definite legal rules regarding the minimum limit of notary honorarium. The focus of their research was to understand the extent to which professional ethics rules are applied in the practice of determining honorarium, as well as how differences in honorarium between notaries can be overcome to prevent unfair competition and maintain professionalism.[8] Unlike previous studies that only highlighted the lack of sanctions in the Law on Notary Position, this research uses Hans Kelsen’s theory of hierarchy of norms to emphasize that the Code of Ethics, which has no position in the formal legal hierarchy, should not have the same power as the Law on Notary Position. This study recommends the harmonization of honorarium provisions in the Law on Notary Position to comply with the principle of conformity of type, hierarchy, and content material in the legal system, as stipulated in Article 5 Letter C of Law on the Formation of Laws and Regulations. Therefore, it is important to do research on the Harmonization of Notary Honorarium Arrangement Related to the Notarial Deed Authority: Toward Legal Certainty.
Methodology
This research uses a normative research method, which focuses on analyzing laws and regulations related to the topic discussed. The research approach includes several methods, namely the statutory approach, analytical approach, and conceptual approach.[9] The legal materials used are divided into two types. First, primary legal materials consist of laws and regulations relevant to the research issue, such as Law on Notary Position, Amendment to Law on Notary Position, and Law on the Formation of Laws and Regulations. Second, secondary legal materials to explain primary legal materials, which include research results, literature, seminars, discussions, and information from online sources and/or the internet. In this research, the technique of collecting legal materials was carried out through a literature study. The legal materials that have been collected were analyzed using a qualitative descriptive analysis method to provide an in-depth study and understanding of the research problem.
Results And Discussion
Legal Consequences of the Degradation of the Notary Honorarium Determination from the Legal Certainty Perspective
The increase in the number of notaries triggers “tariff competition” among them, which can then create competition between notaries to attract clients. As a result, the honorarium received by notaries has become lower, even below the proper standard. This condition is often a source of complaint from notaries, given their weak bargaining position. This situation is different when notaries are dealing with the public who generally value notary services more and are willing to accept the rates set by notaries.[10] Adrian Djuaini revealed that tariff competition in the notary profession has reached an alarming level. To attract clients, some notaries are “slamming prices” to unreasonable levels. These very low service fees, rationally speaking, are not even enough to cover the cost of producing deeds. The fees demanded are often likened to the price of one plate of rendang rice. Although they are aware that this practice violates ethics as stipulated in the provisions of Article 3 number 14 and Article 4 number 10 of the Notary Code of Ethics which prohibits notaries from setting honorariums lower than those determined by professional organizations.[11] Currently, the determination of honorarium is regulated in the regulations of the notary office organization, where the enactment of the notary organization’s regulations in each region determines the minimum rate of notary services. Then in the organizational regulation, there are sanctions for violations of the provisions on the determination of the honorarium for notary services that apply in each region.[12]
The determination of notary fees, as stipulated in Article 36 of the Law on Notary Position, is intended to reflect the balance between the economic value of the deed made and the sociological value that accompanies it. This is also reinforced by the obligation of notaries to comply with the honorarium provisions set by INI as stated in Article 3 number 13 of the Notary Code of Ethics. However, implementation in the field often encounters obstacles, especially when the hon
The Global Implications of South Africa’s Transformative Constitutionalism on Private Law Systems
Full text linkThis paper examines the global impact of South Africa’s model of transformative constitutionalism on private law systems. It explores how the South African Constitution’s mandate for systemic social change has reshaped the structure, function, and underlying assumptions of private law, both domestically and transnationally. Using a critical-comparative approach, the study analyses South African case law alongside developments in Germany, Colombia, and Canada. The central argument is that South Africa’s experience challenges the classical liberal view of private law as autonomous from public law values, revealing a constitutionalised private sphere in which rights, duties, and remedies are interpreted through the lens of substantive justice. The paper also cautions against naïve universalism: the transplantation of transformative constitutionalism is neither linear nor frictionless, as it interacts with diverse legal cultures, political economies, and institutional capacities. South Africa’s experience thus serves both as a template and a provocation—encouraging private law systems worldwide to rethink their normative commitments, while highlighting the complexities and contestations inherent in juridical transformation.
Keywords: transformative constitutionalism, private law, South Africa, constitutionalisation, comparative law, substantive justice.
Introduction
The constitutional transition that South Africa underwent in 1994 is often hailed as one of the most ambitious legal and social projects of the modern era. At its core was not merely the replacement of one political regime with another, but a profound reimagination of the role of law itself as an instrument of societal transformation. Emerging from a history of systemic oppression, the South African Constitution of 1996 enshrines values such as dignity, equality, and freedom, not as abstract ideals but as actionable mandates to reconstruct the social and economic fabric of society. Central to this project is the concept of transformative constitutionalism, first articulated by Karl Klare, who described it as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming political and social institutions in a democratic, participatory, and egalitarian direction.[1]
Key to this philosophy is a purposive and value-laden approach to legal interpretation, which insists that the Constitution is a dynamic instrument designed to guide society towards substantive justice. As Chief Justice Pius Langa explained, transformative constitutionalism requires a judiciary that is sensitive to context, history, and the material conditions of society, and willing to engage creatively with legal principles to achieve the Constitution’s normative goals.[2] The Constitution’s Bill of Rights (Chapter 2) extends horizontally, binding not only the state but also, where appropriate, private actors. This signals a decisive break with the classical liberal model of private law, where autonomy and formal equality were assumed to operate in isolation from constitutional values.
While much scholarship has focused on the transformative impact of the Constitution on public law domains – such as administrative law, criminal justice, and human rights – the implications for private law systems are no less revolutionary. South African courts have progressively recognised that concepts such as good faith, fairness, and public policy must be interpreted in light of constitutional rights.[3] In doing so, private law is no longer a neutral sphere insulated from constitutional scrutiny, but an arena through which values of equality, dignity, and justice are actively realised.
This paper investigates the global reverberations of South Africa’s transformative constitutionalism on private law systems. It critically examines how South Africa’s experience challenges the entrenched liberal distinction between public and private law and catalyses new debates about the constitutionalisation of private relations across jurisdictions. Landmark South African cases such as Barkhuizen v Napier and Daniels v Scribante are analysed against the backdrop of broader international debates. The central argument is that while South Africa’s model cannot be mechanically transplanted into foreign jurisdictions, it nevertheless provides a compelling normative vision for reimagining private law as an active participant in the pursuit of social justice. In a world grappling with rising inequality and systemic injustice, the South African experience compels a reconsideration of private law’s role in fostering democratic, inclusive societies.
MethodologyThis study adopts a critical-comparative methodology, combining doctrinal analysis of South African case law with theoretical insights from global constitutionalism and private law theory. The doctrinal component focuses on landmark Constitutional Court decisions, including Barkhuizen v Napier, Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd, and Daniels v Scribante, which collectively illustrate the constitutionalisation of private law doctrines relating to contract, good faith, and property.[4] These cases are examined to demonstrate how constitutional imperatives such as dignity, equality, and fairness “radiate” into private relationships and reshape foundational legal concepts.
The comparative dimension juxtaposes South Africa’s jurisprudential innovations with developments in jurisdictions grappling with the horizontal application of constitutional rights, notably Germany, Canada, and Colombia. Germany’s doctrine of Drittwirkung illustrates how constitutional rights influence private law through interpretive principles; Canada’s “Charter values” approach reflects a more cautious infusion of constitutional principles into private disputes; while Colombia demonstrates a transformative judicial role in reconfiguring private legal relations in the pursuit of social justice.[5] This comparative framework highlights both convergences and divergences, enabling a critical assessment of the global transposability of South Africa’s transformative model.
Finally, the methodology is informed by critical legal theory, which challenges the supposed neutrality of private law and exposes its role in entrenching systemic inequalities.[6] By integrating doctrinal, comparative, and critical approaches, the study situates South Africa’s transformative constitutionalism within broader debates on global constitutionalism and the future of private law.
1. Conceptual Foundations of Transformative Constitutionalism
The concept of transformative constitutionalism emerged as a central jurisprudential philosophy in South Africa’s post-apartheid era. First articulated by Karl Klare,[7] transformative constitutionalism is defined as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions, and its relations of power and hierarchy, in a democratic, participatory, and egalitarian direction. It moves beyond traditional understandings of constitutional supremacy as merely a framework for limiting state power; instead, it demands the active restructuring of society itself to redress historical injustices and entrenched inequalities.[8]
Key features of transformative constitutionalism include the promotion of substantive - rather than merely formal - equality, the protection and realisation of socio-economic rights, and a purposive, value-laden approach to legal interpretation.[9] It insists that the Constitution is not a static text but a dynamic instrument intended to guide social evolution towards greater justice. As Chief Justice Pius Langa[10] explained, transformative constitutionalism requires a judiciary that is sensitive to context, history, and the material conditions of society, and willing to engage creatively with legal principles to achieve the Constitution’s normative goals.
Central to South Africa’s transformative vision is the constitutional mandate to restructure both the public and private spheres. The Constitution, particularly through its Bill of Rights (Chapter 2), binds not only the state but also, where appropriate, private persons.[11] This horizontal application signals a fundamental shift: private law domains such as contract, property, and delicts must now be interpreted and developed in line with constitutional values. The historic insulation of the private sphere - where relationships between individuals were governed solely by classical doctrines of autonomy and formal equality - was thus deliberately dismantled to allow constitutional imperatives like dignity, freedom, and substantive equality to infuse private relations.[12]
This reorientation of private law challenges the classical liberal model that has historically dominated Western legal thought. Under the liberal tradition, private law was conceived as a neutral framework within which free and rational individuals could autonomously pursue their interests, largely free from state interference.[13] Rights and duties were framed in formalist terms, prioritising certainty, predictability, and individualism. However, transformative constitutionalism exposes the myth of neutrality in private law, revealing how supposedly neutral doctrines often mask and perpetuate systemic power imbalances.[14] By compelling courts to interrogate the substantive fairness of private relations and to align private law rules with constitutional values, South Africa’s constitutional project disrupts long-standing assumptions about the autonomy of private law and its insulation from broader societal concerns.
In sum, transformative constitutionalism represents both a theoretical and practical shift in how law is understood and deployed: it transforms private law from a mechanism of private ordering into a normative tool for achieving collective justice. This foundational shift forms the bedrock for South Africa’s influence on global debates about the constitutionalisation of private law, as explored in subsequent sections.
2. Transformative Constitutionalism in South African Private Law
The influence of transformative constitutionalism is perhaps most vividly seen in the reshaping of South African private law. Through landmark decisions, South African courts have demonstrated that constitutional values are not confined to public law but must actively inform and restructure private legal relationships. This section examines three pivotal cases - Barkhuizen v Napier,[15] Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd,[16] and Daniels v Scribante[17] - which collectively illustrate the courts’ evolving approach to contractual freedom, good faith, and property rights within a transformative constitutional framework.
3. Barkhuizen v Napier: Balancing Contractual Freedom with Constitutional Fairness
In Barkhuizen v Napier[18], the Constitutional Court addressed the enforceability of a time-limitation clause in an insurance contract. The Court recognised the importance of contractual freedom as a fundamental principle underpinning private law, rooted in individual autonomy and the right to self-determination.[19] However, it also insisted that this freedom is not absolute; all contractual terms must conform to public policy, which is now determined with reference to constitutional values, including fairness, reasonableness, and equality.[20]
The Court introduced a two-stage inquiry: first, whether the clause itself is contrary to public policy; and second, whether enforcement of the clause in the particular circumstances would be unreasonable or unfair.[21] This nuanced balancing act demonstrates how transformative constitutionalism reshapes private law - contractual autonomy is respected but not at the expense of substantive justice.[22]
4. Good Faith and Constitutional Values in Contract Law
The Constitutional Court further advanced transformative constitutionalism in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd[23] at issue was whether the court should enforce an obligation to negotiate the renewal of a lease agreement in good faith. Although the majority refrained from definitively constitutionalising the doctrine of good faith, the judgment suggested that common law doctrines must be developed in line with constitutional values, particularly the commitment to fairness, dignity, and Ubuntu.[24]
Justice Yacoob’s judgment emphasised that private law should not operate in a constitutional vacuum and that the duty to develop common law principles in line with Section 39(2) of the Constitution is both a power and an obligation.[25] The Court thus opened the door for a more robust incorporation of good faith as a constitutional value capable of reshaping contractual relationships.[26]
This case signals a doctrinal shift away from rigid, formalistic interpretations of contracts towards a relational, justice-oriented approach, where the spirit of cooperation and fairness guides contractual enforcement.[27]
5. Daniels v Scribante: Property Rights Reinterpreted to Achieve Dignity and Equality
In Daniels v Scribante,[28] the Constitutional Court confronted the tension between private property rights and the rights of occupiers to live with dignity. The applicant, a farmworker, sought to make improvements to her dwelling without the consent of the landowner, arguing that her constitutional right to adequate housing entitled her to do so.
The Court held that the Extension of Security of Tenure Act (ESTA) must be interpreted in light of the Constitution’s commitment to dignity, equality, and housing rights.[29] The judgment recognised that the traditional understanding of property as an exclusive, dominion-based right had to yield to a more relational, socially embedded conception aligned with constitutional norms.[30]
Chief Justice Mogoeng, writing for the majority, declared that property rights must be exercised consistently with the values of dignity and equality, and that ownership can no longer be conceived as an absolute entitlement divorced from social obligations.[31] This decision represents a profound constitutionalisation of property law, where historical hierarchies embedded in ownership structures are actively dismantled through purposive interpretation.
These landmark decisions not only illustrate the judiciary’s commitment to infusing private law with constitutional values but also reflect a deeper normative shift toward relational conceptions of rights and duties. Central to this shift is the constitutional recognition of Ubuntu - a distinctly African philosophy of justice - which increasingly informs the development of private legal doctrines. A fuller engagement with Ubuntu reveals how it challenges liberal individualism and redefines private law’s foundational assumptions in line with South Africa’s transformative constitutional vision.
6. Ubuntu and the Constitutional Transformation of Private Law
As South Africa’s transformative constitutionalism reconfigures the foundations of private law, Ubuntu emerges as a critical normative resource that offers an alternative to liberal individualism.
By emphasizing relationality, human dignity, and communal responsibility, Ubuntu provides a uniquely African jurisprudential framework for interpreting and developing private legal doctrines in ways that advance the Constitution’s transformative aims.
As South Africa’s transformative constitutionalism reconfigures the foundations of private law, Ubuntu emerges as a critical normative resource that offers an alternative to liberal individualism.
7. Key Doctrinal Shifts: Public Policy, Ubuntu, and Constitutional Values
Collectively, these cases illustrate transformative constitutionalism’s radical impact on the doctrinal landscape of private law. First, the meaning of public policy has been constitutionalised: it now demands compliance with the Bill of Rights and broader constitutional values rather than merely reflecting prevailing social norms.[32] African philosophical notions emphasising interconnectedness, respect, and communal solidarity have been increasingly recognised as a normative guide within private law.[33]
Ubuntu informs not only the duties of fairness and good faith in contractual relations but also challenges the adversarial individualism historically embedded in private legal doctrines.
Third, the horizontal application of constitutional rights has cemented the idea that constitutional norms permeate all areas of law, requiring courts to develop and interpret private law in ways that advance the Constitution’s transformative project.[34]
Thus, South African private law is no longer a neutral domain insulated from constitutional scrutiny; it is an active site for achieving societal transformation, embodying the values of equality, dignity, and social justice in everyday legal relations.
8. Comparative Analysis: Global Resonances and Divergences
South Africa’s model of transformative constitutionalism has inspired and provoked comparative reflection in various jurisdictions. While its constitutionalisation of private law is distinctive in origin and scope, there are noteworthy resonances in other systems, particularly those that recognise the horizontal application of constitutional rights. This section undertakes a comparative analysis of three such jurisdictions - Germany, Canada, and Colombia, highlighting points of convergence with South Africa, while also critically engaging with the contextual factors that enable or inhibit the transformative use of constitutional norms in private law.
8.1 Germany: Horizontal effect (Drittwirkung) of fundamental rights
Germany presents a compelling example of how constitutional rights can influence private law through the doctrine of Drittwirkung (third-party effect). Under German constitutional jurisprudence, the Basic Law (Grundgesetz) primarily binds state actors. However, the Federal Constitutional Court has developed both mittelbare Drittwirkung (indirect horizontal effect) and unmittelbare Drittwirkung (direct horizontal effect), enabling constitutional rights to shape private legal relationships.[35]
In Lüth,[36] the Court famously held that all branches of the law - including civil law - must be interpreted in light of the values enshrined in the Basic Law, especially the dignity clause in Article 1. This interpretive principle mirrors South Africa’s Section 39(2) of the Constitution, which requires that “every court… must promote the spirit, purport and objects of the Bill of Rights” when developing the common law.[37]
However, while German courts remain more restrained in directly invalidating private contracts or altering substantive private law norms, their indirect influence on legal interpretation closely resembles South Africa’s purposive approach to adjudication[38]
The German model demonstrates how constitutional rights can seep into private relations through a systemic interpretive mandate, yet it remains more cautious in challenging the structural norms of private law than South Africa’s explicitly transformative project.
8.2 Canada: Charter values and private law - Dolphin Delivery and beyond
Canada provides another instructive comparative example, albeit with a more limited horizontal application of constitutional rights. In Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd,[39] the Supreme Court of Canada held that the Canadian Charter of Rights and Freedoms does not apply directly to private litigation between non-state actors. However, it affirmed that Charter values - such as freedom of expression, equality, and dignity - may influence the development of the common law in disputes involving private parties.[40]
Subsequent cases, including Hill v Church of Scientology of Toronto,[41] confirmed that courts must interpret private law in a manner consistent with the “values and principles” underlying the Charter, even if the Charter itself does not directly bind the parties.[42] This value-based influence is conceptually akin to the South African court’s use of constitutional values to shape doctrines of contract, delicts, and property law.[43] However, the Canadian model stops short of the transformative ambition characterising the South African Constitution. There is a continued reluctance in Canadian courts to fully reconfigure private law rules in pursuit of social justice, revealing a more restrained, incrementalist tradition.[44]
8.3 Colombia: Transformative constitutionalism and private relations
Colombia offers perhaps the most striking example, outside South Africa, of the judicial application of transformative constitutionalism in private law. Following the adoption of the Colombian Constitution of 1991, which declared Colombia a “social state under the rule of law”, the Constitutional Court began using constitutional values to directly influence private legal relationships.[45]
In decisions such as Sentencia T-406/92 and T-881/02,[46] the Colombian Constitutional Court recognised that private actors, particularly in asymmetrical relationships such as employment or tenancy, may be constitutionally obligated to respect the dignity and fundamental rights of weaker parties.[47] The Court has explicitly acknowledged the need to reinterpret private law in light of constitutional principles, particularly in socio-economic contexts where the formal equality of contracting parties is fictional.
Colombia’s socio-political context - marked by extreme inequality, historical violence, and weak state capacity - has necessitated a robust judicial role in promoting social justice. Much like in South Africa, the Colombian judiciary sees itself as an active participant
Alternative Dispute Resolution as a Viable Template for the Settlement of Family Disputes in Nigeria
Full text linkIn recent times, the various Alternative Dispute Resolution (ADR) mechanisms are fast becoming the best means of resolving family disputes. This is because family disputes are often confidential, and these ADR mechanisms encourage confidentiality. This paper analysed the viability of ADR as a means of resolving family disputes in Nigeria. It emphasised litigation’s limitations in resolving emotionally charged family matters and investigates how alternative dispute resolution can encourage confidentiality, party autonomy, and relationship maintenance. Using a comparative and doctrinal methodology, this study examined the acceptance and effectiveness of ADR in nations including the United Kingdom, the United States, and Finland. It also assessed Nigeria’s legislative framework governing matrimonial disputes, specifically the Matrimonial Causes Act (MCA) of 1970, as well as the feasibility of incorporating ADR into it. The study concluded that, while ADR has the potential to resolve marital maintenance, child custody, and property conflicts, statutory and cultural hurdles persist. The study concluded by recommending amendments to improve the legal recognition of ADR in family law and making practical recommendations to boost its usage in Nigeria.
Keywords: Alternative dispute resolution, family disputes, Matrimonial Causes Act, Nigeria.
Introduction
Alternative Dispute Resolution (ADR) proffers the easiest and fastest mechanisms of resolving disputes.[1] All its mechanisms encourage parties to dictate how their dispute should be resolved and also ensure that parties can maintain a relationship even after the dispute has been settled. Family relationships are complicated, and by extension, family disputes. Unlike business-related disputes, where parties do not necessarily have to be friends to work together, family disputes are usually emotional, and there is usually a need for parties to keep relating with one another even after the dispute settlement. Therefore, family disputes require a dispute resolution mechanism that can help parties preserve relationships, and ADR has suitable mechanisms for this.
The Matrimonial Causes Act 1970[2] is the law enacted for the purpose of dealing with matters relating to legal marriages in Nigeria. It makes provision for matters such as dissolution of marriage, spousal maintenance, property rights, and child custody, among others. The law provides that all matters emanating from the provisions of the Act must be resolved at the High Court.[3] This provision poses a great problem to the possibility of resolving family disputes using ADR mechanisms.
This paper discusses ADR and its different mechanisms, and it discusses extensively the way ADR mechanisms have been used to resolve family disputes in countries like the United States of America, Finland, and the United Kingdom. It explores the effectiveness of ADR in resolving family disputes in these jurisdictions. Furthermore, this paper examines the possibilities of resolving family disputes with ADR mechanisms in Nigeria with particular attention to the benefits and challenges that may be attached. As a result, this paper seeks to answer the following questions: Are ADR mechanisms suitable for the resolution of family disputes in Nigeria? What are the challenges of using ADR mechanisms to resolve family disputes in Nigeria? How can the identified challenges be resolved to ensure effective use of ADR for settling family disputes in Nigeria?
This paper is divided into three sections. The first part will discuss ADR mechanisms and Family Disputes. The second part will examine the use of ADR for resolving Family disputes in other Jurisdictions. Lastly, the third section will discuss the prospects and challenges of using ADR mechanisms to resolve family disputes in Nigeria.
Methodology
This paper adopts a mixed-methods approach, combining doctrinal and comparative methods to provide a comprehensive analysis of the subject matter. The doctrinal methodology is employed to examine primary and secondary legal sources such as statutes, case law, and scholarly writings. In particular, the Matrimonial Causes Act (1970) and the Arbitration and Mediation Act (2023) are analysed to understand the extent to which Nigerian law currently accommodates or restricts the use of ADR in family disputes. Judicial precedents and scholarly commentaries are also examined to assess the legal reasoning that underpins the acceptance or rejection of ADR in family matters.
The comparative methodology is used to evaluate how ADR has been effectively utilised in resolving family disputes in other jurisdictions, including the United Kingdom, the United States, and Finland. These jurisdictions were deliberately selected because of their distinct yet relevant experiences: the UK, due to its historical influence on Nigerian law; the US, as a jurisdiction with innovative ADR practices across states; and Finland, for its advanced institutionalisation of family mediation. By comparing Nigeria’s legal framework with those of these jurisdictions, this paper identifies both best practices and potential challenges for transplanting ADR mechanisms into the Nigerian family law system.
The combination of doctrinal and comparative methods ensures that the analysis is not only grounded in Nigerian statutory and judicial frameworks but also enriched by insights drawn from international experience. This dual approach allows for a deeper understanding of the viability, benefits, and possible limitations of introducing ADR into the settlement of family disputes in Nigeria.
1. Alternative Dispute Resolution in Nigeria
Alternative Dispute Resolution (ADR) can be defined as ‘an encompassing all legally permitted process of dispute resolution other than litigation’.[4] Nolan-Haley defined it as ‘an umbrella term that refers generally to alternatives to the court adjudication of disputes…’.[5] ADR is ‘a collective description of methods of resolving disputes otherwise than the normal trial process’.[6] These definitions suggest that any mechanisms for settling disputes other than litigation are ADR. There are several mechanisms of ADR, such as negotiation, mediation, conciliation, arbitration, early-neutral evaluation, facilitation, mini-trials, expert appraisal, summary jury trials, and mediation-arbitration, among others. For this paper, negotiation, mediation, and arbitration will be examined extensively.
1.1. Negotiation
In layman’s parlance, negotiation involves a form of bargaining between parties to reach a common settlement.[7] However, in legal parlance, negotiation is the resolution of disputes through a consensual settlement by the parties to a dispute. It forms the basis of dispute resolution. In this ADR process, the parties do not need to introduce a neutral third party, and if one is introduced, it would be for the making of a representation on behalf of the parties to the contract. Negotiation involves a direct interaction between disputing parties wherein one makes an offer to the other based on the objective assessment of the other party.[8] It involves parties to a dispute having discussions with one another with the intent to settle their differences while ensuring that the decisions reached are beneficial to all parties.[9] The stages involved in a negotiation process are: the preparation and orientation stage; the opening discussion stage; the bargaining stage; the closing stage; and the post-negotiation stage.[10]
1.2. Mediation
This is the resolution of disputes by reference of the dispute to a neutral third party called the mediator.[11] In mediation, the parties may agree that the mediators be appointed by a body, person, or institution in the event of disputes between them. Also, the parties may specify the qualities which the mediators must possess before he can have the jurisdiction to resolve disputes between the parties using mediation. For example, the parties may decide that the chief judge of a state should appoint a mediator who must be a Nigerian and be trained in marine law in the event of disputes between them. Mediation involves the intervention of a neutral third party, who is referred to as a mediator, to help disputing parties resolve their dispute.[12] The stages of mediation are: the Introduction stage; the opening stage; the private caucus session; the joint session; and the settlement stage.[13]
The Nigerian Arbitration and Mediation Act 2023 defines mediation as:
A process, whether referred to by the expression mediation, conciliation or an expression of similar import, where parties request a third person “the mediator” to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship but the mediator does not have the authority to impose upon the parties a solution to the parties.[14]
From this definition, it can be noted that, unlike an arbitrator, a mediator does not have the power to give a binding decision; he can only facilitate the process. Also, in terms of flexibility, mediation has a more flexible approach towards the resolution of a dispute. In the course of resolution, the parties in mediation may choose to state facts throughout the proceedings, but there is a point in arbitration where claims must be made in arbitration.
1.3. Arbitration
Arbitration means, ‘a commercial arbitration whether or not administered by a permanent arbitral institution’. Arbitration is ‘a process of ADR in which a neutral third party, called an arbitrator or neutral, renders a decision after a hearing at which both parties have an opportunity to be heard’.[15] It was defined in the case of Commercial Insurance v. Alli[16] as a mechanism by which parties agree to have their dispute settled by a neutral third party[17] and to be bound by the decision that such third party makes. Therefore, when the arbitrator makes his award, it is final, binding, and cannot be challenged based on law or evidence unless that is reasonable. It has also been judicially decided in the case of C.N. Onuselongu International Enterprises v Afribank Nig. Ltd.[18] that arbitration is a voluntary agreement between the parties to resolve their dispute, which is recognised by the court. Hence, the court will give its support to see to its smooth administration. Arbitration is commonly known in Nigeria as a mechanism for settling commercial disputes.
2. Family and Family Disputes
To understand the definition and dynamics of family disputes, it is important to define what a family is. A family is:
a group of closely related people, known by a common name and consisting usually of a man and his wives and children, his son’s wives and children, his brothers and half-brothers and wives and children, and probably near relations.[19]
Simply put, a family is made up of people who are related by blood or by marriage. Although in some other countries, marriage now occurs between people of the same sex, in Nigeria, Legal marriage can only exist between a man and a woman. The only type of marriage recognised under the MCA is the monogamous marriage. Therefore, a standard family in the Nigerian legal parlance is that consisting of a man and a woman and their children. For this paper, a family will be considered as stemming from a legal marriage between a man and a woman, with or without children.
As in any form of human relationship where disputes arise, so do family disputes arise among family members. Family disputes have been defined as ‘any conflicts that occur within a family-between husbands and wives, parents and children, between siblings, or with extended families (grandparents, aunts, uncles, etc.)’.[20] Hence, family disputes may be in the form of couples seeking dissolution of marriage, or separated couples fighting over custody of children, or fights over ownership of property, or spousal maintenance. It can also be extended family members fighting over family properties.
Family dispute is a very distinct form of conflict because family members involved in the conflict are emotionally attached, their relationships are usually on a long-term basis, and each family has its own uniqueness and peculiarity.[21] These uniqueness and peculiarity need to be put into consideration when resolving family conflicts. Dispute resolution mechanisms that take into consideration the unique features of families having disputes will be more effective in resolving the dispute. The strict rule of the court system may not address the entire issue causing the dispute effectively. There are some family issues that are the core basis of the dispute that should never be made public, and that family members will not openly discuss in the courtroom.
Types of Family Conflict - Conflicts between husband and wife include: divorce, property rights, maintenance, and child custody; Sibling rivalry: this type of family dispute deals mainly with children of the same parents fighting; and Parent-Child conflict: this can be a dispute between a child and his or her father or mother or both parents.
For this article, the type of family dispute that will be focused on is the conflict between husband and wife. The causes of this type of family dispute vary depending on each circumstance. Issues like infertility, financial problems, poor communication, infidelity, opposing parenting styles, and the need for independence, among others.[22] Some of the issues which emanate from conflicts between husbands and wives are divorce, determination of property rights ownership, spousal maintenance, and child custody. These issues are delicate legal issues that ought to be determined with care.
3. Settlement of Family Disputes in Nigeria
In Nigeria, the family is considered a sacred unit built on the sacred institution of marriage.[23] Traditionally, it is considered a union between two families- the bride’s and the groom’s families. Therefore, based on the importance attached to marriage by society, a couple cannot decide to change their marital status by themselves. It is on this basis that the MCA provides that disputes emanating from a marriage under the MCA that falls into the category of matrimonial causes may be resolved through litigation at the State High Court. Section 2 (1) of the MCA states that:
A person may institute matrimonial causes under this Act in the High Court of any state of the Federation, and for that purpose, the High Court of each State of the Federation shall have jurisdiction to hear and determine . . . matrimonial causes under this Act.
Section 114 of the MCA defines matrimonial causes as proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation, restitution of conjugal rights, and jactitation of marriage;[24] decisions on spousal maintenance, custody, and maintenance of children in matters resulting from a case instituted for any of the aforementioned decrees.[25] With these provisions, it is clear that most matters relating to family that emanate from marriage under the MCA in Nigeria may be resolved in a High Court in Nigeria.
The phrase, ‘may institute matrimonial causes under this Act in the High Court of any state of the Federation’ suggests that it is not a compulsory provision, and if there are other settlement options, the party may explore them. Although the use of ‘may’ in a statute generally makes a provision discretionary, there are instances where such provisions are mandatory. For instance, the Court of Appeal in the case of Sino-Afric Agriculture & Ind Company Ltd & Ors v. Ministry of Finance Incorporation & Anor held that the ‘may’ in an arbitration Clause does not render the agreement by the parties to resolve the dispute through arbitration useless. Rather, it allows the parties to decide to forgive the contractual right if they so please, but where the contractual right is not forgiven, it is mandatory for them to arbitrate.[26] That is, a party can decide to forgive the other party and not approach arbitration when a dispute arises, but if he decides not to forgive, he must resolve the dispute through arbitration. Bringing this argument to Section 2 of the MCA, the ‘may’ refers to the right of the party to decide not to approach the Court that is litigation when matrimonial causes arise. It, however, compels the parties to ensure that if they ever decide to approach the court, they should approach a State High Court. The ‘may’ there pertains to the question of the exercise of your rights, not the destination. Therefore, a party can decide to resolve their matrimonial causes outside the courtroom.
The question that now comes up is whether all matrimonial causes can be resolved using other mechanisms chosen by the parties. The answer is No. The general rule of interpretation that a provision of a law should not be interpreted in isolation applies. The MCA should be interpreted in consideration of its entire provisions. Section 56 of the MCA provides that the dissolution of a marriage can only be done by an order of Decree Nissi and Decree Absolute granted by a court of competent jurisdiction.[27] Thus, dissolution of marriage, also known as divorce, can only be done by the court. This is because the marital status of the couple does not affect only the couple; it affects society as well. Therefore, dissolution is not about the parties alone, and they cannot decide their status by themselves because the public, which was aware of their marriage, must be aware of its dissolution.[28]
Nonetheless, other matrimonial causes that only affect the couple, such as spousal maintenance, property rights, and child custody, can be resolved by mechanisms chosen by the parties. There is no strict provision in the MCA for these to be resolved in the High Court. Parties are at liberty to decide how they want to resolve their disputes, provided their decision to do so will not be injurious to public interest. The Supreme Court in Abey v Alex[29] per Uwaifo JSC stated that, ‘it would appear that it can be argued that the power to settle or compromise at any stage of a pending proceeding extends even to those compromising judgments in certain situations’. This decision suggests that the power of the parties to resolve their dispute is infinite. Where parties agree to do something other than what the court has decided, the parties are superior to the court for their own dispute. In Offor v Leaders & Co Ltd,[30] the Court of Appeal held that, ‘it is settled law that parties are entitled to settle or compromise a dispute at any stage of pending proceedings… this right has been held to extend even to that of compromising judgments in civil actions’. A combined interpretation of these decisions is that parties can decide to handle their disputes however they choose to, provided their decision does not affect a third party negatively. As such, parties can decide to resolve their matrimonial causes other than dissolution of marriage using any resolution mechanism they so desire.
The MCA recognises the need for parties to matrimonial causes to try to resolve their disputes without court intervention. This explains why Section 11 provides that parties who have filed for dissolution of marriage must attempt to resolve the dispute outside the court before proceedings can commence. Evidence of such a reconciliatory process must be presented in court and must have been unsuccessful before the court can proceed with the hearing of the petitions. Although in the instance of this Section, their lawyer is the neutral third party helping them to resolve the dispute. This paper opines that if the Courts have taken judicial notice of the possibility of resolving matrimonial causes outside the courtroom with a lawyer acting as the neutral third party, then it should be possible to use ADR to resolve family disputes without instituting action in court. ADR mechanisms should be explored more by parties to family disputes in order to resolve their disputes amicably and more satisfactorily.
4. Possibility of Mediating Family Disputes in Nigeria
The Arbitration and Mediation Act 2023 (AMA 2023) repealed the Arbitration and Conciliation Act 1988 and became the first Act on Mediation in Nigeria. AMA 2023 makes provision for different kinds of mediation. In particular, it recognises domestic civil mediation.[31] That is, AMA 2023 encourages mediation of civil matters in Nigeria. Family disputes are a civil matter and, as such, can be subjected to mediation for their resolution. Section 70 (4) of AMA 2023 provides that cases can be referred to mediation from arbitration, litigation, and other similar proceedings. This means that the court can refer certain matters to mediation where it deems it appropriate to do so. Therefore, civil matters involving family disputes other than divorce can be referred to mediation. Permission to have a virtual mediation process. Section 82 (2), the settlement agreement resulting from a mediation shall be binding on the parties and enforceable in court as a contract, consent judgment, or consent award. The Act makes provision for mediation in Sections 67 and 87 of the Act
5. The Extent of Use of Alternative Dispute Resolution Mechanisms to Resolve Family Disputes in Other Jurisdictions
In most countries, mediation and arbitration are the major ADR mechanisms used to resolve family disputes. Some of the jurisdictions that will be examined are the United Kingdom, because of the close relationship of our legal systems as a result of colonialism, the United States, because it is a world-class society that is known for being at the forefront of several legal innovations, and Finland, for its robust practice of family arbitrat
Towards a Special Compensation System Aligned with the Unique Nature of Civil Liability for Medical Applications of Genetic Engineering
Full text linkMedical civil liability has attracted significant attention from researchers due to the issues it raises, especially those related to the use of modern practical, medical, and biological means in treatment and diagnosis. This study aims to analyze the effectiveness of traditional civil liability rules in compensating for damages resulting from the use of genetic engineering in the medical field, focusing on Algerian and comparative legal systems.
The study finds that the current judicial mechanism of fault-providing compensation is not sufficient now to satisfy the demands of modern medical risks, and therefore, there should be new models of compensation reflecting the peculiar nature of medical liability and reinforcing and supplementing judicial protection of patients harmed by modern medical procedures. In addition, this research takes into account future ethical challenges in genetic use and addresses alternative models of compensation being proposed in other jurisdictions. The study points towards the need for urgent legislative reform that balances.
Keywords: Compensation system, medical liability, civil liability, genetic engineering.
Introduction
The technology has become essential in medical and therapeutic research, a landmark in modern science, particularly in gene therapy and early disease detection, rather than detection at an advanced level.
Yet whereas these technologies are bringing enormous benefits, their increasing use exposes patients to risk from therapeutic or experimental treatments with unanticipated physical health effects in the long term. On the one hand, they appear to be offering cures for difficult-to-treat diseases; on the other, they raise serious legal and ethical concerns.
Their use can, in some cases, cause physical or psychological harm to patients. This reality makes it necessary for there to be a strict legal framework to control their use—a framework that honors bodily integrity and protects individuals against harm.
In such an event, the intervention of physicians using genetic engineering to diagnose and cure patients becomes more complex. Physicians can, by negligence or failure to properly use such means, cause harm to the patient, thereby incurring liability under law.
Thus, this study aims to explore the scope of civil medical liability that has emerged due to genetic engineering being applied in clinical practice. It focuses on the legal nature of liability and compensation processes for resulting harm.
This study will examine the regulation needed to oversee the use of genetic technologies in medicine, along with how liability for genetic injury differs from traditional medical liability.
Based on the foregoing, this research paper seeks to address the following core question: What are the distinctive characteristics of civil medical liability arising from the use of genetic engineering, particularly concerning its legal nature and the rules governing compensation?
To answer this question, the research will take a deductive analytical path, founded upon the interpretation of the relevant legal documents that determine the nature of civil medical liability and the clarification of the technologies of genetic engineering and their fields of application.
The research will also analyze the legal precepts that govern the compensation of damage resulting from the use of these technologies.
1. Genetic Engineering between Medical Benefits and Regulatory Constraints
Scientists deciphering genetic codes during the technological revolution have enhanced our understanding of organism traits and disease causation. The breakthrough led to the treatment of genetic diseases through gene therapy, and euphoria and alarm swept scientific circles. Although some see enormous potential for humankind, others worry about misuse.
1.1. The medical applications of genetic engineering
Scientific advances in medicine, genetics, and biology have led to the discovery of innovative techniques that have opened vast new horizons, particularly in the areas of genetic diagnosis and gene therapy.
1.1.1. The role of genetic engineering in disease diagnosis
Pre-marital testing can identify carriers of genetic mutation and assess the risk of passing it on to the child, and enable couples to make informed decisions regarding reproduction, reducing the chance of inherited illness. Similarly, prenatal testing can reveal fetal genetic abnormalities,[1] allowing parents to prepare medically—yet it also raises moral concerns surrounding selective abortion, thus requiring comprehensive ethical counseling. In the context of IVF,[2] preimplantation genetic diagnosis (PGD) permits the selection of embryos free from genetic disorders, significantly improving healthy pregnancy outcomes for high-risk families.[3]
Yet, such breakthroughs are accompanied by profoundly ethical issues. Disclosure of genetic information can amount to an invasion of privacy and expose individuals to the risk of discrimination in the work environment or under insurance policies. To prevent this, robust legal protection is required to ensure that individual rights are protected while ensuring that the utility of genetic technologies is balanced against the values and moral principles of society.[4]
1.1.2. The role of genetic engineering in the treatment of diseases
Gene therapy, in particular, has transformed the management of inherited disease because it deals with the underlying genetic causes of a disease rather than symptoms. It is achieved through the introduction of new functional genes, the enhancement of current genes, or the removal of harmful sequences. These interventions are today more targeted because of CRISPR technology.
Existing approaches, initially applied in rare genetic diseases like cystic fibrosis, are now being adapted to oncology to optimize immune recognition of tumors and optimize responsiveness to treatment. With widespread administration of viral vectors for gene delivery, delivery continues to be a significant concern.
In HIV-specific studies, gene editing in reengineered immune cells has been utilized to preclude viral replication. Quantum advances permitted through genomic diagnosis using germline modifications support early diagnosis of mutations based on personalized medicine. Use of genetic technologies brings in conjunction with it ethical and legal issues, mainly consisting of the long-term outcomes and social repercussions of germline modification.[5]
1.2. The legal conditions for the use of genetic engineering in the medical field
There are no special legal provisions in Algerian law for genetic screening and treatment of genetic engineering due to the novelty of such technology. Article 7 bis of the Code de la Famille[6] addresses genetic therapy and diagnosis,[7] and it stipulates prenuptial medical screening. The law does not specify, however, what disease is to be screened for, and it leaves physicians to do so. The law does not specify, however, which disease is to be screened, but leaves it to the discretion of physicians. Genetic engineering and stem cell therapy are governed by Article 355 of the Health Law, which prohibits the removal or transplantation of human organs or tissues except for therapeutic or diagnostic purposes. The doctor’s motive must be treatment for a justifiable reason, and if harm results from transferring stem cells, the doctor must not do so to avoid civil and criminal liabilities.[8]
To perform cell, tissue, or organ transfers for treatment, Algerian legislation establishes some general principles such as licensure in medicine, respect for scientific practice, and informed consent by the patient. The following requirements must be fulfilled:
1.2.1. It should be considered as the last resort for treatment or diagnosis
This condition is emphasized in Article 355 of the Health Law (18-11), which states that human organs cannot be removed, nor tissues or organs transplanted, except for therapeutic or diagnostic purposes. This technique may only be utilized if it is the only available method to treat or preserve the life of the patient or to ensure their physical well-being, without posing any danger to the patient’s life or the donor’s health. It should also be confirmed that the donor (the source of the cell) is not suffering from any infectious disease that can be transmitted along with the stem cells. This is further underlined in Articles 360, 361, and 364 of the Health Law.[9]
1.2.2. Formality requirement
Algerian law makes available legal formalities in medical contracts under Health Law 18-11. Donors must provide informed, voluntary consent before the head of the regional court, where it is subjected to a test of legality.[10] A report by an expert board is followed by a second authentication to confirm that consent and legislation have been satisfied. Donors can revoke their consent at any time.[11]
For cadaveric donors, Article 362 of the Health Law prohibits organ or cell removal without a certain medical and legal determination of death, as per scientific criteria. In the absence of a written objection, consent must be obtained from relatives or, if absent, the legal heir. Donor anonymity must be maintained by the recipients and their families. Organ removal is prohibited if it interferes with a forensic autopsy, which must take precedence.
Recipients must give written consent in the presence of the chief physician and two witnesses. When the recipient is incapable, a member of the recipient’s family may give it. When urgency or exceptional circumstances render contact impossible, the written consent may be waived.[12]
1.2.3. Eligibility
Before the operation, patient consent—or that of a guardian or legal representative—must be obtained, as stipulated in the final paragraph of Article 364 of the Health Law and Articles 44 and 52 of the Code of Medical Ethics. Consent is valid only after the treating physician has fully informed the patient or their representatives of potential medical risks.
As for organ donation, Algerian law prohibits donations from minors, individuals lacking discernment, those without legal capacity, and adults with health conditions that may compromise either the donor or recipient. The physician must inform all eligible donors of the medical risks involved. Donors may withdraw consent at any time, without formal procedures.
A notable feature of Health Law 18-11 is the allowance of blood-forming organ removal from a minor donor, but only for the benefit of a sibling. If no other treatment exists, the procedure may extend exceptionally to a cousin, niece, nephew, or similar relatives (e.g., child of an uncle or aunt), provided that both parents or the legal representative give informed consent.[13]
1.2.4. Free of charge
Algerian Health Law Article 358 prohibits financial transactions in the removal and transplantation of human organs, tissues, and cells. The law also ensures that the identity of the dead donor and the recipient’s family shall not be disclosed. The law also prohibits physicians who certified the donor’s death from being part of the transplant team to prevent suspicion of illegal inducement or coercion. Article 367 mandates that professionals who are performing organ removal or transplant not receive any fees for the procedures. The measures ensure the ethical management of the human body and rule out any chance of monetary exchange.[14]
1.2.5. Authorization for the venue of organ or cell transplantation
The Algerian legislator also stipulates that organ and tissue transplantation procedures must take place in hospitals authorized by the minister responsible for health to perform such operations. These hospitals are to operate under the supervision and evaluation of the National Organ Transplant Agency, and they must ensure that their medical and technical organization, as well as their hospital coordination, meet the required standards to obtain this authorization.[15]As permitted by the legislator in Article 357 of the Health Law, the establishment of a structure within the healthcare institution is authorized, tasked with the preservation of human tissues and cells.
1.2.6. Sanctions resulting from violations of genetic engineering regulations
The legislator established sanctions for prohibited human organ, tissue, and cell removal and transplantation. In accordance with Articles 430 and 431 of the Health Law, violations—including those committed against minors or individuals lacking legal capacity—are penalized in accordance with Articles 303 bis 16 to 303 bis 20 of the Penal Code.
Physicians are criminally liable for unlawful removal. Law No. 90-01 illegalized the removal of living or dead subjects without legal compliance, and any removal for compensation, even with consent.
Articles 303 bis 16 and 303 bis 17 of the Penal Code impose imprisonment from 3 to 10 years and fines up to 1,000,000 DZD for receiving organs for money, acting as an intermediary, or conducting removals without consent or legal compliance. Additionally, Article 432 of the Health Law penalizes profit-driven promotion of organ, tissue, or cell donation with 6 to 12 months’ imprisonment and fines between 200,000 and 400,000 DZD.
These actions are taken so that unethical practices can be evaded, and legality is ensured at every step.[16]
2. The specific nature of Civil Medical Liability in Genetic Engineering Applications
Civil liability of doctors remains a major topic among legal scholars and judges, due to evolving medical practices and the settings in which they occur. One factor affecting this liability is scientific innovation, particularly genetic engineering in medicine.
Thus, the nature of medical civil liability continues to prompt legal and judicial discussion, especially regarding its legal basis.
2.1. Medical liability for the use of genetic engineering in light of the traditional approach to civil liability
Medical civil liability generally falls under contractual or tortious liability. Tortious liability stems from a doctor’s breach of a legal duty, while contractual liability arises from failing to fulfill an agreed obligation. Although fault type usually determines liability, legal opinions and court decisions differ on which kind of fault applies. Some favor tortious fault, while others support contractual fault as the basis for liability.
2.1.1. Medical civil liability based on negligence for the use of genetic engineering applications
In 1833, the French Court of Cassation established that medical liability is based on fault, according to Articles 1382 and 1383 of the Civil Code. Since then, French courts and legal scholars have reaffirmed this principle.
This approach is based on several justifications: proving physician fault ensures patient protection and fair compensation; the technical nature of medicine requires adherence to professional standards; liability for criminal harm must be fault-based; and the doctor-patient relationship concerns personal rights beyond simple contract law.
The Algerian courts followed the same approach, with slight differences at the doctrinal level. Courts will regard medical liability as contractual due to the doctor-patient relationship, but the Algerian Supreme Court ruled on 23/01/2008 that a violation of scientific care standards is a medical fault and it is considered negligence.[17]
Likewise, the Tlemcen Court of Appeals, by virtue of judgment no. 06/12/2003, held that doctor negligence warrants liability and attributed liability to the hospital based on employer liability.[18]
2.1.2. Medical civil liability based on contractual fault for the use of genetic engineering applications
A century after affirming doctor liability for negligence, French judges and scholars began questioning fault-based liability in clinical contexts, promoting a shift toward contractual fault. They argued that when a treatment contract exists, physicians are obliged to meet scientific and professional standards, and the burden is on the plaintiff to prove a breach.
Even where a doctor’s mistake is criminalizable, breach of contract may nonetheless provide a basis of legal liability. This view is extended by some to emergency cases, where hospital forms remain an open invitation, and the patient’s request constitutes the acceptance.
Others maintain that, although life and health are not contractual matters and public policy upholds patient autonomy, this does not exclude the contractual nature of physician liability.[19]
The French Court of Cassation, in the Mercy case (May 20, 1936), confirmed that a physician-patient contract exists and that failure to fulfill care obligations triggers contractual civil liability.[20]
In Algerian jurisprudence, unlike in France or Egypt, courts often focus on the presence or absence of fault, especially in public hospital cases.[21] However, elements of contractual liability appear, such as Article 44 of the Algerian Medical Ethics Code, which emphasizes patient capacity and consent, implying a contractual framework for the physician-patient relationship.
2.2. Medical liability for the use of genetic engineering in light of modern trends in civil liability
The integration of machines and modern technology in healthcare has sparked debate over civil, particularly medical, liability. Judges and attorneys have heavily criticized the continued reliance on fault as its basis. Some support preserving medical fault within a modern framework by redefining it as professional or presumed fault. Others call for abandoning fault altogether, especially in the context of genetic engineering.
2.2.1. Amending the concept of fault as the basis for civil medical liability
The concept of civil medical liability has been influenced by economic and technological changes in medicine. Traditional liability is in a dilemma to attribute direct harm to physicians, and therefore, it becomes difficult for patients to prove causation. Judges and theorists devised presumed fault as a solution to this dilemma, which allows courts to presume physician fault without total proof, making patient claims of compensation easier.[22]
Public hospitals are commonly held responsible in Algerian law, associating suspected errors with poor management. A July 15, 2002, Council of State ruling condemned a hospital for the death of Mr. Moulay due to a lack of supervision in a psychiatric center.[23]
Later, some jurists proposed professional fault to reflect the unique nature of medical work. This concept, merging tortious and contractual liability, grounds physician responsibility in ethical violations.[24] Article 13 of the Algerian Medical Ethics Code supports this, as do Article 27 of the Saudi Health Professions Practice Act, Article 2 of the Jordanian draft Medical Liability Law, the 1995 Palestinian Patient’s Rights Charter, Article 18 of the Lebanese Medical Ethics Law, and Article 26 of the UAE Federal Law on Medical Liability—all affirming that professional errors justify liability.[25]
2.2.2 Adopting the concept of damage as the basis for civil medical liability for the applications of genetic engineering
Legal and judicial thinking has shifted from individual guilt and moral standards due to moral liability’s failure to keep pace with social change. Based on the core concept of compensating the injured, more direct and objective liability now applies to physicians and medical staff.
Judicial focus has moved to the harm-causing entity rather than personal fault. Doctors are held liable as custodians of treatment tools or as decision-makers impacting others.
The first move from fault-based to risk theory came in the French Council of State’s “Cames” ruling (June 21, 1895), which based compensation on professional risks. French courts have since focused medical liability on harm.[26]
Supporters of traditional liability justify objective liability with two concepts: risk and guarantee. The risk principle holds that anyone creating or benefiting from a risk must bear its consequences. In medical institutions, this means compensating for harm caused by their operations in fairness.
The guarantee theory describes the basis of liability: not only fault, but also benefit from an activity requires enduring harm caused. However, these theories may not be in a position to fully protect the injured.
Neither Algerian legislation nor judgments accept harm-based liability strictly in medical settings. Civil law acknowledges liability founded on harm, but it’s not accepted in the healthcare industry straightforwardly. As compared to French public health legislation, Algerian public health law lacks such a mechanism of liability, and there is no judgment confirming its practice.[27]
3. The Specificities of the Compensation System in Medical Liability for Genetic Engineering Applications
Given the widespread medical errors in facilities and the difficulty of proving them—due to technical procedures, challenges in attributing fault, or professional solidarity—the traditional civil liability principles, which assign compensation based on fault (Article 124 of the Civil Code), have proven insufficient to ensure justice. This is especially true regarding fair compensation for harm caused by medical actions, whether or not fault is involved. Thus, a specialized compensation mechanism is needed, suited to the unique nature of damages, particularly from genetic engineering.
3.1. Compensation under traditional civil liability principles: How effective is it in protecting victims?
Traditional civil liability rules primarily seek to assign compensation to the doctor responsible for the harm caused by their fault. Accordingly, a doctor cannot be held liable for compensation without having committed a fault that resulted in harm to another, in line with Arti
The Right to the Secret of Correspondence and Its Legal Protection
Full text linkRespecting the private life of man is one of the most prominent basic rights guaranteed by positive laws and divine laws, as it is a pillar of human dignity and individual freedom. This right includes preserving human secrets and not dispensing them without his/her explicit consent, or outside the framework of a legitimate and justified judicial order. The principle of correspondence is considered one of the most important applications of this right, as it includes all correspondence and communications between individuals, whether written, electronic, or even oral, as long as it relates to their privacy and they do not want to inform others.
Private secrets are an integral part of private life, and they include all information or an incident related to a person and affects his/her interests, such as health data, family relationships, intellectual and religious inclinations, financial situation, and others. The law was approved to protect these secrets, stressing the necessity of preserving them and not being infringed, as Islamic law affirmed this principle through the prohibition of espionage and followed the nakedness of people, in respect of their humanity and the maintenance of their dignity.
Accordingly, any violation of these secrets is a serious prejudice to the basic rights of man and requires legal accountability, as it is inconsistent with moral principles.
Keywords: Public freedoms, correspondence confidentiality, privacy, legal protection, constitutional amendment 2020.
Introduction
There is no doubt that personal freedoms come to the forefront of freedoms as necessary for the possibility of enjoying other public freedoms, as they are a condition for the existence of other public freedoms. Some have expressed personal freedoms in the term “individual freedoms in the full sense of the word”, Les Libertés Individuelles Premièrement Dites, because personal freedoms represent the center of the circle for all other freedoms. In the context of personal freedoms, the right to confidentiality of correspondence and that this right is an extension of freedom of thought, because he who fears will violate his messages that do not dare to express this freely. In addition to that, this right is a manifestation of the sanctity of private life, and the importance of this right was guaranteed by most constitutions, guaranteed by treaties, and regulated by laws. So the question arises, what is the meaning of the right to the confidentiality of correspondence? What is the reality of its protection in both international and national laws?
So we decided to divide this research paper into two topics:
Section I: The concept of the right to the confidentiality of private correspondence;
Section II: Legal protection for the right of correspondence (internationally and nationally).
1. The Concept of the Right to Confidentiality of Private Correspondence
The confidentiality of correspondence[1] falls within the framework surrounding the individual, as it is not permissible for others to storm it without his will, and thus the correspondence and what it contains related to the private life of the individual, and no one can see it. Therefore, this topic will be discussed: the concept of the confidentiality of correspondence and the exceptions that respond to the right to prejudice its prohibition and secrecy.[2]
At first, the term correspondence indicates a broad meaning that includes issues that do not fall within the scope of private life, as correspondence may include things that are not from private life.
Definition of the jurists of law. There are some difficulties in determining the meaning of the secret legally, so some know that the secret is all that harms its disclosure with reputation or dignity. The right of correspondence in general means that it is not permissible to reveal the contents of correspondence between individuals, because of the attack on the right of ownership of what this correspondence includes and disrupting this right, and violating freedom of thought as well.[3]
Professor Farouk Al-Kilani defines personal correspondence as “they are human conversations with others that translate his opinions, and it may be directly between individuals without using any modern means of communication, such as wireless and wireless communications, or by using one of these means, so they are indirect”.
The correspondence is intended for all written messages, but it was sent by the mail road, or by a special messenger, as it means telegrams and faxes. It is equal in this that the message is within a closed or open circumstance or that it is an open card, as long as it is clear that the sender is not to be informed of others without discrimination.
It should be noted that correspondence applies with confidentiality in light of the latest means of e-mail, which is more used from the Internet, as the email is often used to transfer and store files and cards, and what is required with it is not permissible to monitor correspondence, nor to disclose information except through the elimination or administrative authorities for legitimate reasons, because the email is part of the concept of correspondence and private life.[4]
Given the importance of this freedom or the role that it plays in a person’s life as a human being, close to man, and that concerns him alone. The laws were unanimous in respect of this freedom, and the harsh penalties for those who violate their sanctity have been established. And guaranteed most of the constitutions, including the Algerian constitution in Article 39: It is not permissible to violate the sanctity of the citizen’s private life, and the sanctity of his honor, and the law protects them from the “confidentiality of correspondence and communications related to all its forms”.[5]
The statement of this freedom in the Algerian constitution came from 1963 to the amendment of the constitution in 2008, as it came in the 1963 constitution in Article 14 of the phrase (ensuring the secrecy of correspondence to all citizens). However, the phrases that came expressing this freedom changed, so (the confidentiality of correspondence for all its forms is guaranteed) in the constitution of 1976,1989,1996, the amendment of 2008 and this phrase is closer to the rightness as it has expanded from these freedoms to include all kinds of correspondence as postal correspondence and all telegrams and telephone communications are a material translation of its ideas and its secrets can It is permissible for a non -source and whoever is directed to see it, confiscate it, conceal it, or hear it in a way of eavesdropping by any means.
As for the elements of the right of the confidentiality of correspondence, they are:[6]
The right to confidentiality of correspondence includes all written communications, whether through messages or telegrams;
The right to confidentiality of correspondence includes wireless and wireless communications, such as telephone and electronic conversations, as technology has reached today;
The right to confidentiality of correspondence is based on the idea of the right of ownership, because of the attack on it. It is an attack on private life and personal freedom;
Not to disclose the content of the correspondence, seizure, conceal, or destruction of the correspondence, or inform others.[7]
2. The Right to Confidentiality of Correspondence in Islamic Law
We find in the idiomatic meaning of the secret in Islamic law: “The secret is all that you conceal and hide yourself and do not see anyone to do harm or to bring an interest or his concern from him without him”.
In the fatwas of the Islamic Fiqh Academy, a statement of the meaning of the secret stated that “what a person leads to the last to be concealed by him before or from a distance, and includes what is stimulated by evidence indicating the request of concealment if the custom is to keep his concealment as it includes the peculiarities and disadvantages of the human being that people hate to see”.
We find this freedom in the Holy Qur’an, as in the noble Prophet’s Sunnah, and one of the noble verses indicating this is the words of God Almighty: “O you who believe, avoid many of the thoughts, because some think that they do not. Do you like one of you to eat the flesh of his brother, dead, and you will be given it.
And from the guidance of the prophecy, we find the words of the Messenger, may God’s prayers and peace be upon him, on the authority of Abu Hurairah, may God be pleased with him, that the Messenger of God, peace and blessings be upon him, said: “Do not think that the thought is the lie of the hadith and do not feel or spy”. And also his saying: Exposing in his home.
The general principle is the confidentiality and sanctity of private correspondence, but there are exceptions to this general asset, which is: the relationship of paternity, the relationship of marital, and the judicial investigation.
2.1. The Relationship of Fatherhood and Marital Relationships
2.2. The father’s relationship with his children
The father is the natural guardian of his minor children, and he is the one who bears civil responsibility for the harmful actions that may occur from these minors, in addition to being criminally responsible for neglect in their care. This responsibility should be matched by controls from the father on his children, as he is entitled to monitor the messages he sends and which his children receive to ensure the interests of the children and the interests of the family.
2.3. Marital relationship
Marital secrets are reserved and escalated even after their separation. It is not permissible for either of them to divulge the correspondence that took place between them during the marriage of the other without the satisfaction of the other. This explanation is matched by Article 153, Paragraph 02 of the Civil and Administrative Procedures Law.
Concerning the personal messages that one of the spouses had been edited or received within the framework of the crime of adultery, and the evidence for breaching the duty of sincerity may raise the question about the possibility of bringing them to the judiciary when it includes the secrets of private life?
To address the position of the Algerian legislator, we need to refer to the provisions of the Penal Code, and we find it on the one hand that it criminalizes the crime of adultery to consider it from the public order, according to Article 339, Paragraph 1. On the other hand, it is allowed to be proven by the victim’s husband, and among the permissible methods is mentioned Article 341 of the Penal Code, the letters or documents issued by the adulterer (the husband), these messages are presented by one of the health couple whenever he obtained it and was directly related to the crime of adultery.[8]
2.4. The judicial investigation
Some social necessities and public interests require prejudice to this freedom, as the Public Prosecution may look forward to speeches, messages, papers and seized registrations, provided that all that is possible is done, in the presence of the accused and the holder of it or sent to him and codify their observations on them, and according to what appears from the examination to order the inclusion of the papers to the case file or return it to the one who was holding it or was sent to it.
The messages and the disclosure of their secrets are set an investigation procedure that may not be resorted to unless the investigation interest requires that this procedure be broken, after the permission of the competent judge in a limited period and based on the justifications and legal reasons. Article 84 of the Criminal Procedure Law has given this authority to the investigation authority only. It must be adhered to the following provisions of guarantee and guarantee of the correspondence confidentiality:[9]
That the confidentiality of correspondence is a benefit to show the truth if the crime is punishable by imprisonment for more than three months, the matter must be issued by the criminal judge based on serious and embarrassing challenges;
It is a reason;
This is in the narrowest limits and not exceeding 30 days.
3. Legal Protection for the Right of Correspondence (Internationally and Nationally)
Legal protection refers to the measures and mechanisms within the law created to protect and preserve rights, interests, and privacy. The application of laws, legislations, and legal frameworks aimed at ensuring the protection of individuals, their property, their data, and other legal rights. Legal protection acts as a shield against violations of rights, ill-treatment, and rights violations
The Universal Declaration of Human Rights is the first public document, integrated and specialized in human rights. It is undoubtedly a sign that it is the aspect of international human rights law as a branch of international law. After its issuance, the United Nations began working to take more positive steps, so that its results are binding, and the best way towards this goal was to formulate human rights based on my pledges that are formulated in an agreement that takes the form of an international treaty.
3.1. The Universal Declaration of Human Rights
The individual’s relationship is no longer just a citizen’s relationship with a state, after the Second World War. The international law, to this war, was limited to legalizing the relationship between states and defining their competencies and sovereignty. However, this concept has changed radically after mankind knew the scourge of wars, as global public opinion began to tend towards international protection for the individual in the face of the arbitrariness of dictatorial governments, especially in the field of civil and political rights.[10]
This phenomenon was of a global and regional nature at the same time. The United Nations launched an important project for the preparation of the Universal Declaration of Human Rights, and led the effort to reach the adoption of the Universal Declaration of Human Rights on December 10, 1948.
Concerning the freedom of correspondence, it was stated in Article XII (12) of the announcement that no one is exposed to arbitrary intervention in his private life, his family, his residence, or his correspondence. The most important findings of international efforts during the twenty years after the issuance of the Universal Declaration of Human Rights, the adoption of the two international covenants of 1966, the first for civil and political rights, the second international covenant related to social, economic and cultural rights and a protocol for receiving and studying the notification of individuals who claim to be victims of violation of any of the rights stipulated in the consideration of these notifications.
The new in the two international era is that they have taken the form of an international treaty binding for the parties, and on the other hand, the two covenants include an international system, to enhance and ensure respect for the rights contained in it. The implementation of the two international covenants began in 1976. By virtue of the global and binding nature of the two covenants, they are considered an important step on the path of protecting human rights at the international level.[11]
Article 17 of the International Covenant on Civil and Political Rights stated that “it is not permissible to interfere in a control or illegal in the privacy of anyone, his family, his residence, or his correspondence”. But everyone has the right to protect the law against such intervention or exposure, and it is similar to Article II of the Universal Declaration of Human Rights.
3.2. The International Covenant on Civil and Political Rights
The characteristic of correspondence is one of the manifestations of the individual’s privacy and is explicitly protected in Article 17. This protection includes not only during the transfer of written correspondence by mail or by a messenger, but also in the period before sending it and after receiving it. It also includes direct oral communication, and today it must include contact with any mechanical or electronic means. Protection is carried out so as not to disclose its contents except to the recipient person. It is also preserved from aspiration or any other intervention, kicking a message, changing its destination, or delaying it, or by confusion and the tangle of phone lines or electronic communications.
The extent of protection must be expanded, so that the protection of personal communication between two individuals must be expanded to documents that are not usually called correspondence. Examples of this. The idea in these articles may be threatened if the individual responsible for it reveals, especially if these moral, religious, or political values prevailing in society contradict. In any case, it does not matter to him.
Under Article (18) that the International Covenant protects the individual’s right even if the materials are not sent by any means of communication, in the Stanley case against Georgia, the US Supreme Court of Justice ruled the innocence when the state agents of the state found, and agents of the state of Georgia during a legal inspection of one of them, and they found three films that were considered immoral and violated the Juria State Law, because it saw that the United States constitution protects the individual’s right And ideas, and to read and watch whatever he wants within the retreat of his house, and that he has the right to liberate from the state’s research in the contents of his office and whatever the organizations related to the absence, they do not reach the retreat of the individual’s house. And if the first amendment to American law means something, it means that the state does not have a matter of telling one who is sitting alone in his home, but rather tells him what books he can read and the films he can see.[12]
Article (17) of the International Covenant on Civil and Political Rights, and if it is read with a capacity of a horizon, it also protects the right to the confidentiality of correspondence, and it prohibits reserve and illegal works that interfere with means such as delivery, preserving ideas and information and keeping them secret. There are also cases in which intervention is permissible to limit the freedom of correspondence, whatever its characteristic, when necessary, in some cases, such as national security and defending public order, or crimes.
3.3. Protection is the right to confidential correspondence in Algeria
The Algerian constitution was concerned with public rights and freedoms and was subject to the right of correspondence and guaranteed and guaranteed the laws by providing penalties for its violation.
3.3.1. Constitutional protection for the right of correspondence
The thing observed on the provisions of the constitution in the field of the legal system of public freedoms only guarantees public rights and freedoms, in public formulas, without accurately addressing the text on accurate issues that are considered an effective guarantee to protect and ensure public freedoms. And since correspondence is forbidden as a warehouse of the privacy of individuals, so most of the constitutions guaranteed this right, including the Algerian constitution 2020 in Article 47, paragraph 02, where it included “every person has the right to confidentiality of his correspondence and his communication in any form” but it came in the public form, unlike some of the constitutions that dealt with this freedom with accuracy and clarity.
And what is noticed on Article 47/2 that the Algerian constitutional legislator remedies the error that was present in the 2016 constitution in Article 39 Paragraph 02 of the 2016 constitutional amendment that came despite its explicit guarantee of the confidentiality of correspondence, but it lacks accuracy, especially in the phrase “guaranteed” where it results in the unconstitutionality of listening seats (listening devices) that can be placed in private phone centers, as well as appears from the formulation of the article 39/2 The unconstitutionality of the fourth chapter related to the interception of correspondence, the registration of assets and the taking of photos in the investigation of the Code of Criminal Procedure (Article 65 bis 5), because the guaranteed phrase suggests that there is no objection to correspondence nor to register the voices in all cases. It was better to mention exceptions in the text of Article 39/2 of the Constitution or for registration after the end of the paragraph, just as Article 40 included the sanctity of the house, so there is no inspection except according to the law .... Thus, the article can be formulated in the context of what the Egyptian project went to, for example, where it stipulated in Article 57/2 of the 2014 constitution that: ... and for postal and telegrams, television conversations and other means of communication, and it is not permissible to confiscate it See it or its control except by a reasonable judicial order, and for a limited period, in accordance with the provisions of the law. Thus, the conflict between the constitutional principle and other laws reduces.
3.3.2. Legislative protection for the confidentiality of correspondence
The Algerian legislator has provided protection for the right of correspondence in both the (criminal) penal laws and civil law.
3.3.2.1. In criminal law
In addition to the constitutional guarantees that protect the confidentiality of correspondence,[13] the Algerian project surrounded this right with texts criminalizing every attack, including Article 303 of the Penal Code, which stipulates that “everyone who breaks or damages messages or correspondence addressed to others, with bad faith, and i