Constitutional Duty Research Articles

Charakter prawny obowiązku podatkowego: charakterystyka porównawcza ustawodawstwa Ukrainy i Estonii

The article discussed the content of the obligation to pay taxes as one of the main duties of the taxpayer. From the choice of a foreign policy priority of Ukraine’s integration into the European Community, the most relevant question was bring the regulatory legal acts of Ukraine, especially regulating tax relations, in compliance with norms and standards of European Union legislation. Given that the national legislation (including tax legislation) member States of the European Union already adapted in respect of the norms of the legislation of the European Union, it can be concluded that one of the main elements of a successful European integration of Ukraine is also borrowing positive experience of legal regulation of social relations (including tax relations) European Union member States (including the Republic of Estonia). The aim of this study is determine the place of tax duty in the system of taxpayer obligations according to the norms of legislation of Ukraine and the Republic of Estonia and development of proposals about the possibility of making changes regarding the improvement of legal regulation of the tax duty in Ukraine and the Republic of Estonia. Legal nature of the constitutional duty for taxes and fees payment has been investigated on the basis of analysis of the Fundamental Law of Ukraine and Republic of Estonia. Subject to the provisions of the Tax Code of Ukraine and legislation Republic of Estonia examines the nature of the obligation to pay taxes. The attention is focused on the content of the category of “fiscal responsibility”, in particular on the problem of its relations with the term “tax liability”. It has been proposed further improvements in the legal national tax legislation of both States.

The Constitutionality of DAPA Part II: Faithfully Executing the Law

Article II imposes a duty on the President unlike any other in the Constitution: he “shall take Care that the Laws be faithfully executed.” More precisely, it imposes four distinct but interconnected duties. First, the imperative “shall” commands the president to execute the laws. Second, in doing so the President must act with “care.” Third, the object of that duty is “the Laws” enacted by Congress. Fourth, in executing the laws with care, the President must act in good “faith.” A careful examination of the four elements of the “Take Care” clause provides a comprehensive framework to determine whether the Executive has complied with his constitutional duty. This article assesses the constitutionality of President Obama's “Deferred Action for Parental Accountability” (DAPA) on immigration through this lens of the “Take Care” clause.First, DAPA is an extremely “broad policy” that was “consciously and expressly adopted” not as a means to enforce the laws of Congress, but to exempt nearly 40% of undocumented aliens in the United States-even those who were not previously subject to any previous enforcement action-from the threat of removal, and to provide them with work authorization. Second, DAPA was implemented without “care” for the immigration laws as it displaced officer discretion, both procedurally and substantively, with the Secretary's blanket policy to turn meaningful review into a “rubber stamp.” Third, DAPA finds refuge in none of the three tiers identified in Justice Jackson's opinion Youngstown. Congress has and continues to oppose the scope of this executive action. Further, DAPA is not consonant with long-standing congressional policy towards deferred action. Previous uses were typically ancillary to statutory grants of lawful status or responsive to extraordinary equities on a very limited scale. In this bottom rung of authority, presidential power is at its “lowest ebb,” unentitled to a presumption of constitutionality. Fourth DAPA was not a good faith mistake of law, but a bad faith deliberate deviation. Implementing executive action to achieve several of the key statutory goals of laws Congress voted against reflects a deliberate attempt to circumnavigate around an uncooperative legislature. Exacerbating this conclusion is the fact that prior to the defeats of DACA and DAPA, the “sole organ” of the Executive Branch consistently stated that he lacked the power to defer the deportations of millions by himself.This pattern of behavior amounts to a deliberate effort to act not in good faith, but in an effort to undermine the Laws of Congress. The duty under Article II has been violated.Part I of this series addresses whether Congress has acquiesced to deferred action. Josh Blackman, The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action, 103 Georgetown Law Journal Online (Forthcoming 2015), available at http://ssrn.com/abstract= 2545544.

Scrutinising parliament's scrutiny of delegated legislative power

ABSTRACTDelegation of legislative power to the Executive occupies a unique place within the constitutional division of power. As a matter of necessity, efficiency, responsiveness, and a desire for increased participation from industry, delegation of legislative power is common but surprisingly under-theorised and under-studied. For decades in Australia it has been the domain of the Parliament to determine the appropriate exercise and level of scrutiny for delegated legislative power. But the constitutional landscape may be changing. In the 2012 decision Williams v Commonwealth (No 1), the Australian High Court indicated a greater willingness to scrutinise more robustly the performance of Parliament's supervisory functions. Against the background of the Court's new interest in responsible government, we argue that the current parliamentary practice of review of the exercise of delegated power is unable to achieve robust accountability. Informed by the High Court's jurisprudence in Williams (No 1) and the theories of responsible government and separation of powers, we suggest reforms that will ensure Parliament is meeting its constitutional duty of calling the Executive to account to it and, ultimately, the people.

Awareness and Practices of Tax Planning by Salaried Employees: A Case Study of Lecturers in Odisha

Tax is a compulsory extraction and major source of revenue for the Government. Being a citizen of India, paying tax is one of our constitutional duties in return of fundamental rights. But paying tax is always a painful task as it directly impacts on the residual income of the taxpayers. Tax can be reduced either by evasion or avoidance or tax planning. Tax evasion is illegal, tax avoidance is not a crime but tax planning is ethical and legal. Tax planning is important for every assessee to reduce their tax liability and compliance with the income tax rules. Salaried assessee has no exception to it. To enjoy the benefits of tax planning, the assessee must know different provisions of tax planning available in the laws. With this background, this paper is an attempt to analyse the tax planning measures taken by the salaried persons in Odisha. It is found that more than 60% of the lecturers do not have sound ideas about various provisions of income tax. Tax planning measures adopted by different class of lecturers are almost uniform. Class of lecturers, gender, experience and length of service has no significant relationship with the level of awareness about the tax planning measures.

The role of fundamental rights after sixty-five years of constitutional jurisprudence in Germany

The jurisprudence of the German Constitutional Court in the field of fundamental rights has greatly enhanced their impact on the political process and the daily life of citizens. Fundamental rights matter because of the meaning and effect given to them in a long series of judgments and because of their adaption to changing circumstances. The court’s jurisprudence has also influenced the jurisprudence of many younger constitutional courts and courts with constitutional adjudication inside and outside Europe, which were established after the collapse of dictatorial and authoritarian regimes. The article describes the development of fundamental rights in the case law of the Federal Constitutional Court, in particular the value approach to fundamental rights, the principle of proportionality, the state’s constitutional duty to protect fundamental rights if they are threatened by fellow citizens or societal actors, and explains the court’s methodological approach to the interpretation of fundamental rights that enabled these innovations in constitutional law.

State Policing and National Security in Nigeria

Nigeria is battling its worst level of insecurity since the civil war which ended in 1970. The need to reform and reposition the Nigeria Police Force has been topical in debates to improve security in the country. In fact, several high-powered committees have been set up and dozens of reports churned out on this subject. These efforts have been geared towards developing a formidable police force that will perform its constitutional duties of maintaining law and order and securing the lives and properties of all Nigerians. However, results have shown that the efforts of government have not delivered the desired results. The objective of this study therefore was to highlight the urgency in the need to establish a state police that will be capable of tackling the current challenge of gross insecurity in Nigeria. The study relied on secondary data in evaluating the feasibility of state policing in Nigeria. The analysis centred on variables like the reorientation of the force, insufficient budgetary allocation and judicious use of security vote, the practice of true federalism, the creation of employment opportunities and so on, in drawing its conclusions. Findings revealed that the current centralised system of administering the police force may not be tenable in adequately curbing the menace of insecurity in Nigeria. Recommendations proffered include the need to decentralize the police force forthwith. It is expected that the adoption and implementation of this among other suggested strategies will boost the operative capacity of the Nigerian Police Force to effectively carry out its designated roles and bring the mounting insecurity in the country under control. It is hoped that the results from this study will encourage Nigerian policy makers in formulating the right policies for national security. Besides, the results from this study will be useful to other researchers and students of public policy. DOI: 10.5901/mjss.2015.v6n1s1p412

Instytucja rządu republiki Czarnogóry w systemie organów władzy

The Constitution of Montenegro describes the state as a "civic, democratic, ecological state of social justice, based on the reign of Law." Montenegro is an independent and sovereign republic that proclaimed its new constitution on 22th October 2007. The President of Montenegro (Montenegrin: Predsjednik Crne Gore) is the head of state, elected for a period of five years through direct elections. The President represents the republic abroad, promulgates law by ordinance, calls elections for the Parliament, proposes candidates for Prime Minister, president and justices of the Constitutional Court to the Parliament. The President also proposes the calling of a referendum to Parliament, grants amnesty for criminal offences prescribed by the national law, confers decoration and awards and performs other constitutional duties and is a member of the Supreme Defence Council. The official residence of the President is in Cetinje. The Government of Montenegro (Montenegrin: Vlada Crne Gore) is the executive branch of government authority of Montenegro. The government is headed by the Prime Minister, and consists both of the deputy prime ministers as well as ministers. The Parliament of Montenegro (Montenegrin: Skupština Crne Gore) is a unicameral legislative body. It passes laws, ratifies treaties, appoints the Prime Minister, ministers, and justices of all courts, adopts the budget and performs other duties as established by the Constitution. Parliament can pass a vote of no-confidence on the Government by a simple majority. One representative is elected per 6,000 voters. The present parliament contains 81 seats, with a 47-seat majority currently held by the Coalition for a European Montenegro as a result of the 2009 parliamentary election

Setting a New Standard for Public Education: Revision 6 Increases the Duty of the State to Make 'Adequate Provision' for Florida Schools

Among the nine revisions proposed to Florida voters by the Constitution Revision Commission in 1998, Revision 6 fundamentally enhanced Florida's responsibility for public education. Revision 6 amended Article IX, Section 1, of the Florida Constitution, which sets forth the State's duty to provide for public education. Entitled “PUBLIC EDUCATION OF CHILDREN,” Revision 6 makes a declaration of the relative importance of education to the people of Florida, and describes as “paramount” the duty of the state to adequately provide for education. Revision 6 goes on to detail and raise the constitutional standard for what constitutes “adequate provision” for public education, and obliges the state to deliver a high quality education to its children.This Article will attempt to place Florida's recent education amendment into context, briefly examining both the development of education finance litigation in Florida and the recent waves of education finance litigation nationwide. By successfully revising its constitutional language, Florida has uniquely modified the ongoing discussion about the adequacy of state support for education. By providing specific standards for adequacy, the Constitution Revision Commission has invited greater court supervision of the Legislature's role in education funding and has guaranteed that future litigation will determine whether the state currently meets its duty to make “adequate provision” for public education. Ironically, both proponents and opponents argued that the change will provide a standard for litigation. The Constitution Revision Commission's clear goal was to increase the state's constitutional duty and raise the constitutional standard for adequate education, and in fact to make the standard high quality. It remains to be seen how the challenge of providing a sound basic education for Florida's children will be met.

Reforma de la negociación colectiva en España y sistema de Relaciones Laborales

The article discusses the recent reforms of the collective bargaining’s legal framework of general efficiency, collective bargaining representative of the Spanish legal system, introduced in the years 2010 to 2014, coinciding with the global economic and financial crisis, which began in 2008, the European political and monetary crisis and the and political-economic crisis en Spain. The reforms, and especially the recent legal reforms of 2012-2014, have had a qualitative impact on the bargaining system, shifting the regulation’s orientation from the constitutional right to collective bargaining, and to the binding force of conventions, closely connected with the freedom of association, to the constitutional right to free enterprise and constitutional duty of the authorities to ensure the safeguarding of productivity. The legislative reforms of 2012 aimed at ensuring that collective bargaining is a tool, not an obstacle, to adapt working conditions to the specific circumstances of the company. For it they have postponed the traditional role of the collective agreement to compensate the fundamental inequality of labor relations by limiting individual autonomy and the power of corporate decision, as well as emphasizing the management function of the collective agreement through different techniques with convergent results: applicative priority of the company’s collective agreement as a mandatory rule for higher-level collective bargaining, modification and unique company inapplicability of the collective agreement through binding arbitration public, ante tempus modification of the collective agreement, and the temporal limitation of the ultraactive effectiveness of collective agreements within agreement renewal processes. To achieve its reformation goals, and yet there is some exception in a non-minor matter (ultra-activity of collective agreements) in which reformation goals are achieved through the transfert of competencies by the law to the collective bargaining, labor law flexibilization tends to self-sufficiency and rigidness. These reforms project their effects on labor relations system as a whole, drawing lines of transformation of undeniable legal significance, among which stands the promotion, using imperative techniques, of collective bargaining at company level, which, beyond their impact on the structure of collective bargaining, is offered as a guarantee of the higher flexibility and corporate competitiveness, affects the functions of the right to collective bargaining channeled a principle of differentiation that old attempts to individualize working conditions failed, and displaces the powers of trade unions and business confederations to representations of companies and businessmen.

Pasado y futuro del medio ambiente como derecho fundamental

This article examines the historical origins and evolution of the right to live in a pollution free environment, recognized in the Chilean Constitution, and current trends of comparative law in regulation and recognition. The dilemma of its ambivalent nature of individual and social rights arises, inserting his analysis on what may be called the environmental constitutionalism, their impact on the public and administrative law, and the importance of conceiving it more broadly as a constitutional duty to protect nature which requires all person without distinction.

State Judicial Sovereignty

In our “dual sovereignty,” we have a dual judiciary. While the Constitution creates a single Supreme Court, and gives Congress the power to constitute inferior tribunals, predating our federal union were the courts of the states. Through concurrent jurisdiction, these courts, subject to the complete control of the states, were deemed parallel forums to adjudicate federal claims. Yet, in specific areas, Congress designated the federal courts as the exclusive forums of certain federal claims, depriving the state courts of that jurisdiction. In other areas, the Supreme Court has determined that state courts, with or without the consent of the state, are required to entertain certain federal causes of action. Each of these well-known features of our judicial system — concurrent, mandatory, and exclusive jurisdiction — represents efforts by one sovereign, the federal government, to command and control the jurisdiction of another sovereign, the states. Though the power to mandate, and exclude state court jurisdiction has been construed broadly, certain limits have been placed on this authority based on a respect for the autonomy of each state to manage their courts. I refer to the basis of these constraints on federal power as state judicial sovereignty. State judicial sovereignty refers to the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, federal causes of action. This article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’s efforts to use, or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents. First, state judge sovereignty refers to the constitutional obligations and state-law duties, of state judges with respect to federal causes of action. Second, state jurisdictional sovereignty, explains the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Third, state judge sovereignty, working under the auspices of state jurisdictional sovereignty, places a limit on the federal government’s power to regulate the state court, based on the anti-commandeering principle. The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. This article aims to bring some clarity to those boundaries.

The Legislature and Anti-corruption Crusade under Nigeria’s Fourth Republic, 1999-2013

An attempt by the Federal Government of Nigeria to remove subsidy on Premium Motor Spirit (PMS) popularly known as fuel opened a Pandora’s Box which stories are still developing till today. On the insistence and prompting of Nigerians that corruption and fuel had been subsidized all along, the House of Representatives set up an Ad Hoc committee to look into alleged irregularities in the fuel subsidy regime. The committee after its investigation discovered that N1.4 trillion had been unlawfully paid out to the treasury looters. This particular fraud is said to be the most monumental in Nigeria and in Africa considering that it is close to half the annual budget of Nigeria and that of about seven West African countries put together. Few months after the submission of the report of the Panel which included recommendations for appropriate sanctions to culprits, Nigerians were yet treated to another drama when Mr. Femi Otedola whose company Zenon Oil had been fingered as one of the beneficiaries of the loot, came out to say that the chairman of the Ad Hoc Committee Hon. Farouk Lawan had solicited for $3m out of which $620,000 had been paid out to enable Hon Farouk Lawan remove Zenon Oil from any complicity in the scam. To say that corruption, like cankerworm, has totally devoured the very fabric of the Nigerian polity is merely stating the obvious. That the cost of public and private sector corruption to the nation, over the years, is unquantifiable is rather stale news. Likewise the fact that the agencies saddled with the responsibilities of checkmating corruption and prosecuting corrupt individuals has not done enough. Even the judiciary has not helped matters. And the question remains: Is there a way out of the woods? This is where the role of the legislature in the anti-corruption initiative is critical given the centrality of the role of the legislature in the political process of a polity. This paper examines how the legislature has faired in performing its constitutional and oversight duties in this regard. It finds a wide gulf of difference between constitutional prescriptions and political realities in a country where the legislature itself is confronted by daunting corruption challenges. DOI: 10.5901/mjss.2014.v5n15p28

ROLE OF THE ARMY IN MODERN PAKISTAN

The article studies the political development of the country in the modern period. Special attention is paid to the position of the army and its role in the Pakistani society. The article explores in detail the processes of gradual distancing of the army from politics and strengthening of civil society institutions. It is the first time in the Pakistani history that the civilian government managed to complete its full five-year constitutional term. Meanwhile, the country has been advancing on the path to democracy even after the elections 2013: a new civilian government has been formed in Pakistan. As compared with the previous phases of the country's development, the status of the army has considerably changed, evolved from "guiding force" to "shadow" guarantee of democratic development. The process has been largely encouraged by popular among officers feeling of tiredness: many of them are not ready to take power into their own hands and committed to their strictly constitutional duties. Despite this recent positive trend, the army continues to enjoy great authority in the society, often brokers political crisis and helps civilian authorities in settling such pressing problems as, for example, fight against extremism. The military will exert influence on government unless civil authorities are able to resist the current challenges and settle the actual problems. The role of "power broker" fully serves the interests of the top army brass.

The Executive Branch: Defender of Canadian Liberties

It is common wisdom that all three branches of government are bound by the Charter of Rights and Freedoms. All of their decisions or measures or orders or regulations or legislation must be able to withstand Charter scrutiny, just as they must conform to Canada's Constitution, even leaving the Charter to one side. Broadly speaking, the role of the legislature is to decide upon and enunciate policy. The judicial branch obviously has the responsibility of interpreting and applying the law – a primary aspect of which is ensuring that our guaranteed freedoms receive the protections foreseen in the Charter. Common wisdom holds that the role of the executive is to apply policy as enunciated by the legislature. Our purpose here is to argue that the Canadian Constitution and the Charter go farther and impose a duty on the executive branch to ensure that the Charter is respected. We argue that this duty includes a duty to ensure general respect for and confidence in the judicial branch, and that this constitutional duty is much older than the Charter. After exploring these issues in the abstract, we ask ourselves whether there is cause for concern that the executive branch does not always take its constitutional responsibilities seriously enough.

The Duty to Criminalize*

The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also to criminalize such violations. Further, the duty to criminalize ought to be constitutionally entrenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live ‘at the mercy’ of others. In the absence of a constitutional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens’ rights are ‘at the mercy of others’. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds.

The Duty to Consult and Accommodate Aboriginal Peoples: A Primer for Ontario Surveyors Working in Resources Development

Aboriginal law has developed to require Aboriginal peoples to be “consulted and accommodated” if their rights may be impacted by a government decision, including a government permit or approval of a project of a private proponent. For example, hunting rights often exist throughout a First Nation’s treaty or traditional territory (i.e. far beyond the limits of reserves), and the duty to consult and accommodate can be triggered by mining and other resource development. Contrary to the common understanding of some of those unfamiliar with this area of law, this duty applies not only to activities undertaken under federal authorization, but also to those under provincial authorization. The Crown’s “duty to consult and accommodate” Aboriginal peoples has become a central theme in the discussion of natural resource development in Canada. In response to various decisions of Canadian courts, the Government of Ontario significantly overhauled its Mining Act in 2009 to provide for some consultation with Aboriginal communities. Those changes came in to effect in the spring of 2013. This paper will describe the constitutional duty to consult as it has been described and elaborated on by courts in Canada and some of the implications it has for resource extraction in Ontario. It will then undertake a case study discussing Ontario’s attempt to respond to its duty to consult by amending the Mining Act regime. Finally, the paper will consider the flaws in the Mining Act and the reasons that exploration companies and surveyors working for them should be prudent and pro-active when undertaking intrusive activities in the traditional territories of Aboriginal peoples.

An Overview of the Constitutional Right to Food under the South African Constitution

This article focuses on the right of everyone, including children and detained persons to have access to food. The State is obliged in terms of the Constitution to take reasonable legislative steps and other measures, within its available resources to achieve the progressive realization of each of these rights in terms of section 27 of the Constitution of the Republic of South Africa of 1996. The discussion will be historical in approach, commencing with the legacy of apartheid on the right to food. It will also examine the country’s obligations under international law. Lastly, the right to food as entrenched in the South African Constitution and the different ways in which it has been, and can in future be given concrete expression in South African law, through legislation and judicial decisions, will be elucidated. In the process, this article will briefly consider the extent to which the South African government’s existing responses to the country’s food security problems meet its constitutional duties in the light of current status of national food security. DOI: 10.5901/mjss.2014.v5n1p761

MOKESTINĖS PRIEVOLĖS TEISINĖ PRIGIMTIS: UKRAINOS IR LIETUVOS RESPUBLIKOS ĮSTATYMŲ LYGINAMOJI ANALIZĖ

The article discussed the content of the obligation to pay taxes as one of the main duties of the taxpayer. Legal nature of the constitutional duty for taxes and fees payment has been investigated on the basis of analysis of the Fundamental Law of Ukraine and Republic of Lithuania. Subject to the provisions of the Tax Code of Ukraine and special law Republic of Lithuania examines the nature of the obligation to pay taxes. The attention is focused on the content of the category of “fiscal responsibility”, in particular on the problem of its relations with the term “tax liability”.

Budget Tracking As a Strategy for Sustaining the Fight against Corruption in Nigeria

This paper has examined budget tracking as one of the possible strategies for fighting corruption in Nigeria to promote resource management for sustainable development and it is based on a conceptual analysis that is largely dependent on a literature review. Budget tracking, also referred to as resource flow tracking is very important in the management of public funds because the approved financial resources meant for specified programmes normally pass through many stages of government bureaucracy before getting to the ultimate service facilities that are set up to exercise spending power. Budget tracking is undertaken in tandem with the two major components of budgets; accordingly, there is revenue tracking and expenditure tracking. Revenue tracking begins immediately with budget implementation; it seeks to develop government capacity to translate budget intensions into reality. It is concerned with ensuring that all budgeted revenues are diligently collected and fully remitted into government coffers. In Nigeria the correct practice is that all revenues collected on behalf of government are must be first paid into the Consolidated Revenue Fund (or Treasury) before obtaining allocations for the recurrent and capital spending. Many Ministries, Departments and Agencies (MDAs) of government in Nigeria do not remit revenues collected by them to the treasury, yet their recurrent and capital spending needs are fully appropriated. Budget tracking can be employed as one of the strategies for sustaining the fight against corruption. Nevertheless, before this strategy can be gainfully employed in the fight against corruption, the legislature must rise and surmount the challenges that confront and hinder them from performing their constitutional duty of budget tracking.

Equality, Assurance and Criminalization

The criminal law has at least two goals: to provide a degree of protection to a variety of individual and collective interests, and to communicate to those to whom it applies that those interests are protected. The question I consider is whether the criminal law should be used to advance the second goal independently of its use in advancing the first. Drawing on what I refer to as non-comparative egalitarianism, I argue that it should not. After developing a general argument for this claim, I turn to considering its implications for the criminalization of hate speech, focusing specifically on a line of argument found both in the Supreme Court of Canada’s s.2 jurisprudence as well as Jeremy Waldron’s recent book, The Harm in Hate Speech. I also briefly consider a structurally similar, but broader argument – recently defended by Alon Harel – which suggests that there is a constitutional duty to criminalize conduct that would, if engaged in, interfere with a person’s dominion over how her life goes, regardless of whether criminalization would or would not drive down the actual incidence of the targeted conduct. I claim that egalitarians should not recognize any such duty.