Browsing by Author "Ye, Ruiping"

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Open Access
Balancing Secularism and the Right to Wear the Hijab in Europe: Why and How the ECtHR Needs to Recalibrate the Scales
(Te Herenga Waka—Victoria University of Wellington, 2023) Horsley, Lia; Ye, Ruiping
The European Convention on Human Rights protects the fundamental right to manifest one’s religious beliefs, including protecting a Muslim woman’s right to wear a hijab in Europe. However, some member States are prohibiting the hijab in certain contexts to protect the principle of secularism and the European Court of Human Rights is upholding these restrictions by employing a wide margin of appreciation. This paper argues that this is not justifiable as there are numerous and wide-reaching issues with the Court’s approach, ranging from a failure to properly apply the legal test to a failure to consider the consequences of the restrictions on the applicants. It also argues that some member States are using abstract aims like ‘secularism’ and ‘living together’ to disguise a hostility toward Islam and that the Court is unwilling to directly address this reality. Therefore, this paper recommends three practical reforms that address the flaws in the Court’s analysis and strike a more appropriate balance between state autonomy and the protection of fundamental individual rights. These reforms are necessary to promote tolerance in Europe and prevent states from relying on increasingly abstract and self-defined principles to restrict individual rights.
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The Demise of Ultra Vires in New Zealand: to Be? Not to Be
(Te Herenga Waka—Victoria University of Wellington, 2009) Ye, Ruiping
This paper examines whether New Zealand courts have renounced the ultra vires doctrine as the central principle of judicial review. It examines this topic in terms of the expanded meaning of jurisdiction, the relationship between error of law review and ultra vires, the role that legislative intent plays, as well as the competing concepts of parliamentary sovereignty and common law fundamental rights. This paper observes that vires has evolved from the narrow concept of jurisdiction to general power conferred by Parliament. It further argues that the New Zealand courts have treated error of law review as a species of ultra vires, that there is a trend to interpret legislation more strictly without reading in the courts’ extra requirements of good administration, that the courts employ legislative intent in dealing with privative clauses, and that they avoid expressing a view on the common law fundamental rights discussion. The conclusion is that the courts shave not renounced the ultra vires doctrine
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Torrens and Customary Land Tenure: A Case Study of the Land Titles Registration Act 2008 of Samoa
(Te Herenga Waka—Victoria University of Wellington, 2009) Ye, Ruiping
This paper describes the customary land tenure of Samoa, and analyses the effects of the introduction of a Torrens system of land registration on the customary land tenure in Samoa. In particular, it examines the registration of adjudicated customary land (customary land in respect of which judgment has been made by the Land and Titles Court) under the Land Titles Registration Act 2008 of Samoa, as well as the combined effect of the Taking of Land Act 1964 and Torrens registration on customary land. It argues that the LTRA 2008 may be repugnant to the Constitution and that the Torrens system is incompatible with customary land tenure. It recommends that the law expressly exclude customary land from the indefeasibility effect of the Torrens system.