Constitutional Competence Research Articles

THE PROFESSIONAL TRAINING POLICY IN THE BRAZILIAN FEDERAL LEGISLATIVE BODY: THE PATH OF CORPORATE EDUCATION IN THE MODERNIZATION NARRATIVE OF THE PARLIAMENT

After the Brazilian redemocratization in 1986, the legislative institutions began a changing process derived from the assimilation of new constitutional competencies and the increasing pressure of interest groups in the development of a broad scope of public policies. The need to prepare a new legislative bureaucracy to deal with a panoply of new themes led to the creation of training centers. They began to be consolidated in broader models of corporate education, such as the Training Center from the Chamber of Deputies (CEFOR) and the Brazilian Legislative Institute (ILB) from the Federal Senate. These initial models influenced the development and diffusion of professional training policies to other legislative organizations. This paper presents an analysis of the corporate education trajectory in the National Congress to explore ‘how have professional training policies been developed in the Federal Legislative Branch?’Institutional documents, interviews, and political speeches were used as data sources to analyze the two organizations paths. As its outcome, the paper synthesizes some historical elements of the vocational training policy in both legislative organizations. In short, it contributes to encourage a research agenda in the cross area of public administration and corporate education, in the peculiar context of the Legislative Branch.

Prosecuting court-appointed liquidators in non-appointing courts : a case for overturning outdated law

Given the national adjudication scheme established under the Corporations Act 2001 (Cth) ('Act'), which 'deals distinctly' with matters concerning liquidation and distribution of federal jurisdiction among federal and state courts, this article demonstrates it is 'plainly wrong' for Australian courts to continue to apply the principle propounded in Re Maidstone Palace of Varieties that the 'proper remedy for anyone aggrieved by [the liquidator's] conduct is to apply to [the] Court in the action in which he was appointed'. That the appointing court may invoke its inherent power to control the circumstances in which its own officers are to be subjected to personal pecuniary liability does not derogate from the fact that the requirement of appointing-court leave is directly inconsistent with the Act and impermissibly undermines the constitutional competence of nonappointing courts.

Rola i kompetencje prezydenta Ukrainy w zakresie kształtowania reżimu prawnego ochrony cyberprzestrzeni. Analiza teoretycznoprawna regulacji prawnych z zakresu cyberbezpieczeństwa U krainy

<p>Tematyka artykułu oscyluje wokół zagadnień związanych z kształtowaniem regulacji prawnych dotyczących cyberbezpieczeństwa Ukrainy. W artykule przeprowadzono teoretycznoprawną analizę aktów prawnych, w szczególności Konstytucji Ukrainy z dnia 26 czerwca 1996 r. oraz ustaw i dekretów prezydenta Ukrainy regulujących ochronę obszaru cyberprzestrzeni Ukrainy. Autor przedstawił również rolę prezydenta Ukrainy w zakresie formułowania polityki cyberbezpieczeństwa wraz z wyszczególnieniem konstytucyjnych oraz ustawowych kompetencji głowy państwa w przedmiocie ochrony cyberprzestrzeni.</p>

Análise das comppetências legislativas municipais sobre o enfoque da administração pública gerencial

O objetivo deste trabalho é analisar as contribuições da administração pública gerencial nos processos de execução das competências legislativas municipais. Obteve-se como resultado a efetiva demonstração de que a administração pública gerencialista traz maiores benefícios aos cidadãos, porém, para garantir uma prestação de serviços públicos efetivos em âmbito é preciso ir além da redefinição da atuação dos municípios necessitando, por exemplo, de um melhor repasse de verbas para a efetivação de suas competências. Conclui-se então que o município, ao pautar suas ações sob a ótica da administração pública gerencialista tem a possibilidade de aumentar a efetividade na prestação dos serviços públicos, atingindo seu objetivo fundamental que é o interesse local. Ao estabelecer metas a serem cumpridas, criando um balanço entre as delimitações constitucionais e o interesse local, o administrador municipal alcança um sistema de funcionamento que se aperfeiçoa com o decurso do tempo, mas principalmente concede ao cidadão um rol de benefícios aos quais ele tem direito. Porém, é preciso ampliar também o repasse de verbas, por exemplo, para que os municípios tenham condição de dar mais efetividade às políticas públicas de interesse da sociedade.

حق الأقاليم الفدرالية في الاستقلال: إقليم كوردستان إنموذجاً

The topic of our study is considered a very critical constitutional issue within the framework of the federal state. The study is an effort to shed light on the right of federal regions to independence as well as the issue of creating a sort of compromise between such a right and the principle of federalism sustainability in the light of the currently emerging developments and principles in the field of comparative constitutional law in addition to the provisions of the judgments passed by the institutions of Constitutional and Judicial review. The significance of this subject does not simply lie in the principle of its being a counter solution in the face of the federal authority's tyranny under the guise of the principle of federalism sustainability which allows the federal government to resort to a broad interpretation of the constitutional competencies and practice a kind of favoritism in favor of one region at the expense of another. It is rather an essential tool to maintain the vertical constitutional balance, as well as the need forconditional recognition of the right of federal regions to independence. To ensure that the study covers all matters and ideas relevant to its topic, I have divided it into three chapters with an introductory section for the objective of clarifying the concept of federal regions to independence and distinguishing it from the other confusing concepts among which are some common overlapping terms such as Nullification and the term of Secession. In the first chapter, I have discussed the basis of the right of the federal regions to independence (the philosophical basis, the legal basis). While in the second chapter, I have covered the point of view of jurisprudence and the judiciary regarding the right of the federal regions to independence. As for the third chapter, it is rather a theoretical and practical topic that demonstrates the legality of the right of Kurdistan Region to independence. Finally, I have ended the study with a concluding section where I have stated the conclusions that I have reached in the course of the study and have also included some recommendations.

JURISDIÇÃO CONSTITUCIONAL E A QUESTÃO DO ABORTO A PARTIR DO HC 124.306/RJ

Este estudo investigará a atuação do Supremo Tribunal Federal no julgamento do Habeas Corpus 124.306/RJ, buscando identificar, a partir da análise jurisprudencial, os parâmetros da decisão e o que este julgamento revela sobre o exercício da jurisdição constitucional pela Corte. Para tanto, empregar-se-á uma metodologia de abordagem indutiva, um método de procedimento monográfico e a técnica de pesquisa por documentação indireta. A pesquisa desenvolve-se em três momentos, partindo de (1) um exame detalhado do Habeas Corpus 124.306/RJ, na perspectiva formal e (2) material da decisão, para (3) um estudo crítico sobre o exercício da jurisdição constitucional e sobre o que as decisões analisadas revelam em termos de comportamento dos ministros enquanto membros de uma Corte Constitucional. Dentre as principais conclusões da pesquisa, destaca-se o protagonismo dos ministros em prejuízo das competências constitucionais destinadas ao plenário do tribunal, o constitui ameaça à efetividade do texto constitucional e à própria democracia.

Konstytucyjna właściwość Sejmu w zakresie bezpieczeństwa państwa

The sphere of national security is the area where various authorities operate. The widest range of competences is granted to the executive, but the legislator (and also the judiciary) is not deprived of influence within this field. The Sejm has special powers within the legislative power. As far as its constitutional competence referring to the national security is concerned, the Sejm essentially takes action not when dealing with the normal functioning of the state, but in the case of specified threats. Even ending a state of war is a consequence of prior specified threats. The constitutional competence of the Sejm in this field basically covers states of emergency and state of war, the latter not being included in this category by the legislator. The Sejm holds here legal tools that allow it to finally decide on the validity of these situations (except for the state of natural disaster, where the Sejm agrees on its extension).

Constitutional Court of Georgia as Positive Legislator: Transformation and Modern Challenges

Constitutional practice and case law was enriched by the latest decisions and judgments that changed main directions of Georgia’s constitutional development. Interpretational variations and positive transformation of judicial competences determined some interesting basic tendencies. Few audacious decisions made an illusion of changing classic “Negative Legislator’s” function to the “Positive Legislator” and tried to conquer new fields of constitutional competencies, despite positions of Parliament and Georgian political establishment. This article aims to analyze the latest case law of the Georgian constitutional court, basic tendencies and opportunity of transformation from negative to positive lawmaker.

On the Margins of Consolidation: The Constitutional Court of Serbia

This article argues that the Constitutional Court of Serbia has only marginal role in political and legal life of the Serbian society and, consequently, very modest impact on the process of democratic transition and consolidation. This conclusion is drawn on the basis of the analysis of the Court’s institutional design, substantive constitutional framework and selected cases that involved thorny constitutional and political issues, as well as issues of the country’s compliance with European standards of parliamentary democracy and human rights protection. The article demonstrates how the Court’s deference to the political majority in power and, in particular, the delaying and avoiding strategies it employs, make it irrelevant in the process of democratic consolidation. Yet, the Court plays a more relevant role in the field of the protection of human rights (constitutional complaints competence). However, these are cases which usually do not involve major political interests, so the Court can rule without constraints, relying on the jurisprudence of the European Court of Human Rights, although not always consistently and aptly. Finally, the article demonstrates that the Court’s legitimacy is weak. In respect to the input legitimacy this is due to the non-transparent process of selection of justices and disregard for the selection criteria. Perceptions of the Court by the general and expert public also reveal that it lacks both sociological and normative legitimacy. Moreover, the output legitimacy is poor, since the effect of the Court’s decisions in the articulation of the dominant political values in Serbian society is close to insignificant.

Toward a Uniform Court Practice in the Republic of Macedonia

Despite the different perceptions regarding the status and treatment of the court practice in the Republic of Macedonia, judicial and state authorities are united in their view that there is a need for achieving a higher degree of uniformity of court practice. The need for a higher degree of uniformity of court practice was also noted by the European Union within its latest reports on the progress of the Republic of Macedonia as a candidate country for membership in the European Union as well as in the recent Report on Macedonia: Assessment and recommendations of the Senior Experts' Group on systemic Rule of Law issues 2017. This paper will try to resolve the various different interpretations as regards the court practice in Macedonia and define its role, treatment and application. This will be achieved mainly through analysis of the relevant national legislation. Further, possible new tools will be considered for achieving a greater uniformity of court practice. It will be argued that the court practice should serve as an additional means of argumentation within the reasoning of court judgments, which will contribute to increasing the degree of uniformity of court practice and rule of law as well. Finally, some suggestions will be given in order to provide for better conditions for the Supreme Court to exercise its constitutional competence to ensure the uniform application of the laws by the courts and thus ensure the existence of a uniform court practice.

THE RIGHT OF FEDERAL REGIONS TO INDEPENDENCE

The topic of our study is considered a very critical constitutional issue within the framework of the federal state. The study is an effort to shed light on the right of federal regions to independence as well as the issue of creating a sort of compromise between such a right and the principle of federalism sustainability in the light of the currently emerging developments and principles in the field of comparative constitutional law in addition to the provisions of the judgments passed by the institutions of Constitutional and Judicial review. The significance of this subject does not simply lie in the principle of its being a counter solution in the face of the federal authority's tyranny under the guise of the principle of federalism sustainability which allows the federal government to resort to a broad interpretation of the constitutional competencies and practice a kind of favoritism in favor of one region at the expense of another. It is rather an essential tool to maintain the vertical constitutional balance, as well as the need for conditional recognition of the right of federal regions to independence. To ensure that the study covers all matters and ideas relevant to its topic, I have divided it into three chapters with an introductory section for the objective of clarifying the concept of federal regions to independence and distinguishing it from the other confusing concepts among which are some common overlapping terms such as Nullification and the term of Secession. In the first chapter, I have discussed the basis of the right of the federal regions to independence (the philosophical basis, the legal basis). While in the second chapter, I have covered the point of view of jurisprudence and the judiciary regarding the right of the federal regions to independence. As for the third chapter, it is rather a theoretical and practical topic that demonstrates the legality of the right of Kurdistan Region to independence. Finally, I have ended the study with a concluding section where I have stated the conclusions that I have reached in the course of the study and have also included some recommendations.

The Foreign Relations Powers of the Nigerian National Assembly

The articulation and execution of foreign relations policies are no doubt responsibilities that fall squarely within the legal and constitutional competence of the executive in most democratic societies. Nevertheless, the place of the legislature in ensuring success can never be glossed over. This article examines the nature and means of legislative powers on the foreign plane. It focuses on an articulation of these powers using the Nigerian National Assembly as a case study. It is discovered that the powers exercisable are derived from the basic legislative powers granted by the Constitution and that they are quite extensive. Nonetheless, the Nigerian National Assembly is yet to attain the “transformative” status as envisaged by the Nigerian presidential Constitution.

Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State

The delegation doctrine — holding that legislative authority cannot be ceded to executive or judicial officers — long has been accepted as a common-sense statement of the proposition that the constitutional design of separated powers for more than a century. Yet despite its broad acceptance as a doctrine that is consistent with the structure and text of the Constitution, it effectively is treated as simply a notional, not a realistic, constraint. Recent opinions from Justices Samuel Alito and Clarence Thomas, however, pointedly expressed concern about legislated grants of expansive authority to make rules regulating private conduct. These opinions provide an occasion for reexamining how much the Constitution’s division of and limitations on power traditionally assumed to be “legislative” can and should be judicially enforceable.If the constitutional structure is to be preserved, an enforceable delegation doctrine is needed, but the current doctrine — which turns on the scope of a legislative assignment of authority — will not work. Focusing instead first and foremost on the nature of the authority granted and its connection to the constitutional competence of the officials or bodies authorized to exercise discretionary power can provide a path to reinvigorating separation of powers protections.

Constitutional necessity for two new incrimination

Subject of this paper is a question which has not been written about in domestic and foreign literature so far. It is related to constitutional necessity of federal unit to have its criminal law norms by which its constitutional competencies and very existence of the federal unit are protected. With the aim to be better understood, the author of the paper has firstly explained the way how the Republic of Srpska was dispossessed of its constitutional competencies during the last twenty years, and how we may expect that the very existence of the Republic of Srpska can be put into question in the foreseeable future. In order to prevent such danger, the author explained in the paper his ideas on the norms of two new incriminations, which should be prescribed in Criminal Code of the Republic of Srpska. In final part of the paper the author has explained the way how without these incriminations not only its remainder constitutional competencies but the very existence of the Republic of Srpska is going to be left unprotected as a place exposed to the wind of internal and international (un)law.

Romance and Divorce between International Law and EU Law: Implications for European Competence on Direct Taxes

This article investigates European constitutional competence to harmonize those provisions of direct taxes of Member States which are incidental to the functioning of the single European market. Explicitly, the EU law, since its inception to date, does not confer powers to the Union to harmonize income taxation of Member States. The sole express reference to income taxes in EU law was an Article of the Treaty establishing the European Community (Article 293 EC) that was repealed during the Lisbon revision. The repealed provision urged the Member States to abolish double taxation by using tools of public international law, that is, outside the EU legal framework. The study explores the potential implications this repeal may have for EU tax mandate: (a) whether it implies an end to the EU tax powers at all in the realm of direct taxes? (b) Whether it is a neutral amendment with no consequences to what-so-ever EU tax authority was already put in place? Or, (c) whether the deletion of the sole income tax reference meant for Member States to proceed under the public international law in effect enhances implicit “federal” competence of the Union to intervene in national tax codes for establishment of a true European economic market? The article analyses the demise of the clause in a legal evolutionary paradigm at the interface of international law and EU law. In metaphor, I describe the changing evolutionary relationship between the European and international law regimes as a tale of romance and divorce. The two laws meet curiously during the 1950s; feelings grow and a bond develops between the two regimes; the romance between the two legal regimes attains its peak during the Maastricht phase; strains appear in their relationship after the Amsterdam revision; the split goes deeper after the Nice amendments and the two finally divorce at the Lisbon revision. Based on this ever-changing relationship framework between the two legal regimes, the article concludes (a) that the deletion of Article 293 EC indicates growing reliance of the integration project on European legal order rather than trusting inter-state treaties based on public international law and (b) an inherent growth in the European “federal” mandate to take broad-range actions to harmonize direct taxes in single market during the post-repeal period.

Sales Tax and Cloud Computing in India

This Article, the first of its kind, addresses the question of imposition of sales tax on Cloud computing transactions in India. Several industry estimates show that the Cloud computing market is growing in India and is poised to grow further. However, the question of how to tax these transactions remains to be addressed. This Article engages with this question, albeit only in the context of sales tax. The Indian Constitution lays down, in elaborate detail, the taxes that can exclusively be levied by the Union Parliament and those that can exclusively be levied by the State Legislatures. Sales tax on intrastate transactions of a sale, a local sales tax, can be levied exclusively by State Legislatures. Keeping in mind the elaborate constitutional arrangement, the history of the levy of sales tax on software sale transactions in India and the well-established jurisprudence of the Supreme Court of India on the point, this Article argues that local sales tax on Cloud computing transactions cannot be levied by the State Legislatures. The Indian Constitution allows the State Legislatures to levy sales tax on certain transactions by a deeming fiction of law. In other words, certain transactions can be deemed to be a ‘sale’ even if they truly are not. Relying on the well-established interpretation of those constitutional provisions by the Supreme Court of India, this Article argues that such deeming fictions of law provided for in the Indian Constitution cannot be extended to Cloud computing transactions.Article 366(29A) of the Indian Constitution provides that certain transactions, even if they are not ‘sales’ may be deemed to be ‘sale’ in order for the State Legislatures to levy local sales tax. This Article anticipates that if the State Legislatures attempt to levy local sales tax on Cloud Computing transactions, recourse would necessarily be had to Article 366(29A). But if the Supreme Court’s well-established jurisprudence on the point is to be considered, the Court has never allowed the State Legislatures to take liberty with the words of Article 366(29A). This Article attempts to demonstrate that the text of the deeming fiction provisions in Article 366(29A), as consistently interpreted by the Supreme Court, would not allow the State Legislatures the constitutional competence to deem a Cloud computing transaction as a sale in order to levy local sales tax on such transactions. The Article also flags the point that the text of Article 366(29A), if interpreted in its true context, is not capable of bearing an interpretation that would allow a Cloud computing transaction to be deemed a sale.

Empowered for action? Capacities and constraints in sub-state government climate action in Scotland and Wales

Sub-state governments have emerged as important sites of climate policy innovation, but their capacity for action has rarely been examined. Although they are devolved regions within the same state, Scotland and Wales have varying degrees of constitutional competence. We conduct an inter- and intra-regional comparison to examine whether constitutional competence shapes the scale of ambition and achievement in climate policy outputs and outcomes. Focusing on emission reduction programmes and renewable energy, while there is a clear relationship between constitutional capacity and policy ambition, the impact of constitutional capacity is more evident in the capacity to deliver than in policy ambition. Other factors, such as civil society strength and the politics of territorial distinctiveness, also matter in shaping ambition, in spite of limitations in decision-making autonomy.

Ativismo Judicial e Direito à Saúde: a judicialização das políticas públicas de saúde e os impactos da postura ativista do Poder Judiciário

The aim of this paper is to analyze the judicial activism related to the constitutional right to health together with the Executive Branch’s constitutional competence to create public policies of health and to plan governmental actions. Each Political Entity in the Brazilian Federalism makes use of planning instruments, reckoned in the Federal Constitution, to elaborate their plan of governmental actions. One of these instruments is the Annual Budget Law, which forecasts every public incomes and expenses for a whole year in order to develop governmental actions planned. However, there is an increasing number of judicial decisions compelling the Executive Branch to grant medicines and medical treatments on individual lawsuits. This reality may threaten the government’s budget since the Judiciary Branch imposes unforeseen expenses on the Executive Branch’s planning. Therefore, it can be inferred that excessive judicial activism can lead to a negative impact on the execution of public policies of health and produce harmful effects on the principle of the separation of powers.

The Albanian Social Security System and the Institutions of Social Protection in Albania

The social security system in Albania consists of social assistance and social services, health services and health care insurance and social insurance schemes. In the social objectives of the constitution are declared that the State within the constitutional competencies and the probable means as well as in the fulfillment of private initiatives and responsibilities, aims to higher possible standards of health, physical and mental; social care and services of elderly, orphan and invalids; medical rehabilitation, special education and integration in the community, of disabled persons. The Constitution foreseen that everyone has the right of social insurance when retired or in case of incapacity of work under a certain system established by a law. Everyone, when is unemployed for any reasons independent on individual will and when there is no living means, has the right of need under the conditions foreseen by law. Social insurance is a scheme protecting by benefits persons in respect of temporary incapacity due to sickness, maternity, old-age, disability and loss of breadwinner, employment accidents/occupational diseases, unemployment. Social Services are benefits in kind for disabled persons or vulnerable persons. Social Assistances are cash benefits given to families in need, that means families with lower incomes comparable with minimum standard of living or families without incomes. Health services consist of public health, primary health care, hospitalization services nurse's service, dental and pharmaceutical net. The Institutions of Social Protection in Albania are Social Insurance Institute, National Social Services and Health Care Insurance Fund.

Balancing Free Trade Principles with Other Constitutional Provisions in the Context of Preferential Trade Agreements

Colombia’s Constitution of 1991 is an ambitious text which tries to strike a balance between laying a strong foundation for economic modernization and liberalization, on the one hand, and the creation of a Social State of Law and the protection of an impressive list of constitutional rights, on the other. Because of the doctrine that has been developed by the Constitutional Court since then, it has been considered as one of the most activist courts worldwide, next to courts such as the South African court. One of the factors that has thereby complicated its task is the fact that, since the 1990s, the government has actively multiplied its international economic commitments. In this article, case law of the Colombian Constitutional Court is analyzed, with a focus on balancing: (a) between the binding character of (regional and bilateral) free trade commitments and the constitutional competences of the sub-national level, and (b) between international free trade commitments and the protection of constitutional social rights. Both cases shed light on the balancing task of the court in a complex international context, in the presence of a multi-level regulatory architecture.