Legislative Competence Research Articles

Federalism and the law of evidence in Nigeria: Does Benjamin v Kalio constitute a simplistic route to justice that overlooks a pitfall?

The decision of the Supreme Court of Nigeria in Benjamin v Kalio has been praised. However, the route taken by the Court to do justice and its implication have never been considered. This article examines the route through which the Supreme Court of Nigeria arrived at justice in this case. The article finds that the Supreme Court of Nigeria overruled its previous judgments by holding that unregistered land instruments could be tendered in evidence because section 20 of the Land Instruments (Preparation and Registration) Law of Rivers State is unconstitutional for not being within the legislative competence of States. The article argues that this is a simplistic route to justice having not taken cognisance of the Nigerian federalism and the concepts of existing and deemed laws with the probable consequence of rendering such laws on presumptions as section 30 of the Criminal Code and section 50 of the Penal Code null and void. The article concludes that this tends to constitute a pitfall.

NEW MPUMALANGA TOURISM LEGISLATION

Tourism is one of the functional areas of concurrent national and provincial legislative competence listed in Schedule 4 of the Constitution of the Republic of South Africa, 1996. This means that the provincial legislatures have the power to pass legislation with regard to that matter (ss 43(b) and 104(1)(b)(i) of the Constitution). In contrast to most other provinces (see Vrancken “The Provincial Tourism Legislation” 2000 3 TSAR 506), the Mpumalanga province refrained from making use of that power for a relatively long period of time. It then took more than a year for the Premier to assent to the Mpumalanga Tourism Bill, 2001 (PG 920 of 2003-02-07), onlyfor the Premier to assent, within three years, to its successor: the Mpumalanga Tourism and Parks Agency Act 5 of 2005 (PG 1319 of 2006-03-17). The purpose of this note is to compare this new piece of legislation, which came into effect on 1 April 2006 (PG 1325 of 2006-03-24), with its predecessor as well as with legislation recently brought into force in other provinces.

THE REQUIREMENTS AND MECHANISM FOR THE IMPLEMENTATION OF THE PRINCIPLE OF INDEPENDENCE BETWEEN JUDICIAL AND LEGISLATIVE JURISDICTIONS IN PRIVATE INTERNATIONAL LAW

This research deals with the issue of the principle of independence between the judicial and legislative competencies, which was necessitated by considerations of coexistence between laws and permitting the application of foreign laws before national courts. Collectively, it represented the most certain facts in private international law, which is that this principle is considered as the basis for this branch of law, and it is also one of the distinguishing marks of the article of private international law.The jurisprudential justifications for this principle closely touch the justifications for resorting to foreign laws, and the conflict rule is the means by which this principle resorts to reach a state of separation or independence between the two specialists, and since this rule is a legal rule in the proper sense whose task is to determine the applicable law, it does not It differs in its general purpose from any rule of national law that separates the conflict to emphasize the stability of relations between individuals.

CLASH OF LEGISLATIVE COMPETENCY ON MATTERS OF OFFENCES RELATING TO DECENCY

The Legislative Assembly of the state of Selangor has criminalized sexual intercourse against the order of nature by virtue of S. 28 of the Syariah Criminal Offences (Selangor) Enactment 1995. The power to enforce such law is vested on Jabatan Agama Islam Selangor (“JAIS”). However, the Federal Court’s decision in Iki Putra bin Mubarak v. Kerajaan Negeri Selangor & Anor [2021] MLJU 213 has garnered the attention of the public when the apex court ruled that the Selangor State Legislative Assembly had no power to create the offence of sexual intercourse against the order of nature. The impact of this judgment is immense as it is taking away the power of prosecution of such offence by the Syarie Prosecutor in Selangor. Furthermore, the Federal Court’s judgment also points out that the Penal Code has a similar offence (Section 377A), hence excluding the legislative competence of the state of Selangor to regulate the same. The Iki Putra judgment has become the impetus of this research that aims at identifying and examining the provisions in the Penal Code and Syariah Criminal Offences (Selangor) Enactment 1995 that are considered redundant, with specific reference to offences relating to decency only. In doing so, the research employs qualitative research design. Since this is a doctrinal and library-based research, the research adopts a content analysis method on the primary and secondary materials which include the study into legislation, case law, textbooks and journal articles. The research also applies a comparative approach to determine similarities and differences (if any) between the Penal Code and 1995 Enactment. The finding shows that some offences in both legislations are redundant which will lead to conflict of jurisdiction between civil and Syariah courts. These redundancies will ultimately cause difficulties in the future with the enforcement of Syariah criminal offences.

How cooperative is “cooperative federalism”? The political limits to intergovernmental cooperation under a de facto concurrency rule

Proponents of “cooperative federalism” claim that intergovernmental behaviour is endogenous to legal rules about legislative competences: a concurrency rule systematically induces intergovernmental cooperation, where an exclusivity rule systematically impedes it. Citing the imperative for greater cooperation, courts in classical, or dualist, federal systems have used legal doctrine to fashion zones of de facto legislative concurrency. We develop a formal model to explore the soundness of this reasoning. Our analysis complicates courts’ simplistic expectation. Under our assumptions, cooperation may be supported in equilibrium, but only under quite restrictive conditions. We show how the impact (if any) of a de facto concurrency rule on government behaviour depends on the paramountcy rule, government policy preferences relative to the status quo, policy development costs, and the risk of costly political backlash. We pair our theoretical analysis with a study of Canadian federalism jurisprudence and its impact on Canadian securities regulation.

What is the Problem with Stabilization Clauses in Petroleum Agreements?

International Oil Companies (IOCs) continue to invest in countries which do not have stabilization clauses. Why is this so? What is the essence of these clauses? One of the curiosities of stabilization clauses in petroleum agreements, is that most developed countries will not offer them to investors. So, why do developing countries with stable political, fiscal and regulatory climate offer them? Additionally, history shows that these stabilization clauses have not deterred host governments from expropriating petroleum investments. While governments may be able to make commitments of their own, as a matter of national sovereignty they may not be able to bind the legislative competence of the State into the future. These concerns are the main driver behind this article, which is influenced by the various questions asked by policymakers in the Global South on the importance of stabilization clauses for the sustainable development and management of natural resources.
 Keywords: Stabilization; sustainable development; natural resources; oil and gas

Subsidiarity v. Autonomy in the EU

The principle of subsidiarity as construed by the Court of Justice and the Advocates General (AG) is not an autonomy clause. Article 5(3) Treaty on the European Union (TEU) aims to promote the efficiency of governance rather than the autonomy of the Member States (MSs) and of the subnational governments. Although a number of scholars emphasize the potential role of federal proportionality for the protection of the autonomy, the effectiveness of this principle is limited in practice due to the Court’s judicial self-restraint. In the EU the autonomy of national and subnational governments is protected primarily by the legal bases in the Treaty. The reasoning of the Court to delimit these legal bases largely overlaps with and absorbs considerations of subsidiarity that acquire a merely ancillary role. Subsidiarity, Court of Justice of the European Union, legislative competences of the European Union, legislative autonomy of the Member States, legal bases for the actions of the European Union, regions and local authorities in the European Union, efficiency of governance, federal proportionality

Concurrent national and provincial legislative competence: Rethinking the relationship between nature reserves and national parks

The teleology of concurrent national and provincial legislative competence in South Africa's Constitution has not been adequately investigated, particularly from the perspective of nature conservation and the establishment of protected areas. It is, therefore, questioned whether the concurrent nature conservation competence awarded to the national sphere of government should be equivalent to that awarded to the provinces, or if it precludes the national government from having a greater status than the provinces. It is further questioned whether the provisions of the National Environmental Management: Protected Areas Act (NEMPAA) accurately reflect the constitutional weighting, if any, granted to these two spheres of government by this provision. It is concluded that the concurrent national and provincial legislative competence in respect of nature conservation is most likely to be, at least, equally balanced between the two spheres of government. Contrary to this finding, it is noted that the NEMPAA grants national parks a significantly higher conservation status than nature reserves by diminishing the status and scope the provinces had prior to the promulgation of the Act. It is further concluded that, in this instance, provisions of the NEMPAA are most likely to be unconstitutional. It is recommended that these two kinds of protected areas be consolidated into one category or critically evaluated to correct potentially incorrect categorisation. It is also recommended that the NEMPAA be substantially revised to correct a number of anomalies and illogical provisions.

Statute of Trentino-Alto Adige/Südtirol and “major favour clause”: more or less autonomy? An evaluation 20 years after the reform of Title V of the Constitution

The paper analyses the impact of the so-called “major favour clause”, introduced by the 2001 reform of ordinary regionalism, in order to prevent the new Title V from being a step backwards for the special Regions. Its 20-year application has significantly changed the framework of legislative competences of the 1972 Statute of Trentino Alto Adige/Südtirol. The result is a complex picture that has led to uncertainty rather than a solid widening of the special autonomy.

Local Government and the Conundrum of Constitutional Competencies in South Africa: The Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services

Local government’s autonomy in post-apartheid South Africa is constitutionally guaranteed. A reading of the Constitution of the Republic of South Africa, 1996 shows that local government, made up of 257 municipalities, has a wide range of powers and functions. However, confusion over the scope of constitutional distribution of powers and functions vis-à-vis other spheres of government often constrains the ability of municipalities to take action over a function not expressly assigned to local government in Schedules 4B and 5B of the Constitution. The squabbles between the City of Tshwane and the Gauteng Health Department over the power to provide ambulance services in March 2021 show how some municipalities may be hamstrung from taking action that seeks to operationalise and deliver a function that is not expressly conferred on local government in terms of Schedules 4 and 5 of the Constitution. This article discusses why and how municipalities with the requisite capacity should be able to provide ambulance services, although this is listed in Schedule 5A of the Constitution as a functional area of exclusive provincial legislative competence. I argue that three features in the Constitution give the power to provide ambulance services to municipalities that have the requisite capacity: the framing of health rights and concomitant obligations; the incidental powers of municipalities; and the principle of allocative subsidiarity. It is argued that, given the mandatory wording of the principle of allocative subsidiarity in sections 156(4) of the Constitution and 32(2) of the National Health Act 61 of 2003, where a provincial health department is averse to assigning the provision of ambulance services to a municipality that has the requisite capacity, such a municipality can approach the High Court for an order compelling the department to assign this function.

Fundamental Social Rights Protection and Covid-19 in the EU: Constraints & Possibilities

The Covid-19 pandemic has had major socio-economic consequences, particularly for critical workers such as healthcare workers, seasonal workers and platform workers in their social rights enjoyment. This article analyses how EU law could protect social rights in times of Covid-19, with a specific focus on the possibilities and limits of the EU Charter in times of crisis for these certain categories of EU workers. The potential of EU legal instruments to protect vulnerable workers’ social rights is limited both by the limited legislative competences in the social policy field and the limited scope of application of the EU Charter. Furthermore, social rights enshrined in the Charter are often formulated as principles, which means they cannot be invoked directly in court, but need to be elaborated in legislation. Nevertheless, the EU could further strengthen the potential of social rights in the EU legal order through harmonisation of social standards in two ways. First, by harmonisation of social rights using the legal bases in the Treaty. Secondly, by implementing the European Pillar of Social Rights effectively and by improving application of the EU Charter at national level, both by clarifying and broadening horizontal direct effect as by increasing application of the EU Charter by national policymakers and the judiciary and raising awareness.

National Identity and European Integration Beyond ‘Limited Fields’

One of the concerns that led to the introduction of Article 4(2) TEU was the growing interference of EU law into areas traditionally reserved to the Member States. In particular, Article 4(2) TEU was seen as a way to better shield matters of ‘retained competences’, where EU institutions have not been conferred legislative competences, and to possibly create no-go areas for EU law. Yet, this article argues that in practice, the national identity clause has not worked as a limit to EU competences and the scope of EU law. The case law of the Court of Justice in the decade after the entry into force of the Lisbon Treaty, and in particular a set of recent decisions in sensitive areas such as religion, family and nationality analysed in this article, allow to conclude that reliance on Article 4(2) TEU does not limit the scope of application of EU law, though it may contribute to reach results that show deference to national preferences and leave room for national diversity. The article thus suggests a weaker reading of the national identity clause: not as a fully blown limit to EU competence, but as one of the many clauses that stand for, and guarantee, national diversity. National identity, constitutional identity, Lisbon Treaty, EU competences, European integration

Case C-336/19 Centraal Israëlitisch Consistorie van België: Animal welfare and freedom of religion

Article 13 of the Treaty of the Functioning of the European Union (TFEU) explicitly provides for animal welfare. Animals are sentient beings, and thus the EU and Member States have an obligation to take animal welfare into consideration. At the same time, Article 10(1) of the Charter guarantees freedom of religion. Case C-336/19 Centraal Israëlitisch Consistorie van België dealt with the balance between animal welfare and freedom of religion. Regulation 1099/2009 stipulates that animals must be protected at the time of killing and established the principle of prior stunning in slaughter. Ritual slaughter based on religion is accepted as a derogation of this principle. In the Centraal case, which is pivotal in the context of ritual slaughter, the opinion of Advocate General Hogan and the judgment of the Court of Justice of the European Union were divided over the interpretation of the contested regulation. Ultimately, the Court demonstrated a definite preference for animal welfare over freedom of religion. In so doing, the Court attached a high value to national legislative competence and in paying attention to changes in society to ensure that citizens are increasingly aware of animal welfare.

The Institution of a Referendum in the United Kingdom in the Context of the Political and Legal Fundamentals of Brexit

The article clarifies the essence and potential of the Referendum Institute in the UK in the context of the political and legal foundations of Brexit. The complexity of the subject of scientific research led to the use of an interdisciplinary approach. The article used general scientific methods of analysis and synthesis, historical and comparative methods. It has been proven that the British referendum on EU membership has provoked a lot of discussion about the expediency and consequences of Brexit. The results of the Brexit referendum will affect the transformation of the system of international relations and the formation of the international order. Brexit has many legal and constitutional aspects and problematic consequences. It has been established that referendums in Great Britain are not legally binding and the voting results are consultative, not mandatory for the country's Parliament on which the last word remains, since only the Parliament has legislative competence. In theory, representatives of the authorities could legally neglect the will of the people. Consequently, the decision to leave the EU lies not only in the plane of law, but also in politics.

The Legislative Competence of the Head of State in a Paliamentary System- Comparative Analytical Study Between the Constitution of the Republic of Iraq of 2005 and the Draft Constitution of the Kurdistan Region of Iraq

The Legislative Competence of the Head of State in a Paliamentary System- Comparative Analytical Study Between the Constitution of the Republic of Iraq of 2005 and the Draft Constitution of the Kurdistan Region of Iraq

A New Lease of Life for the Aosta Valley’s Consorterie1

Commons have existed in the Aosta Valley’s territory for centuries, of which the most distinguishing and still lively are called consorterie. This article aims to study this peculiar form of commons, as well as the evolution of their legal status, focusing on national and regional legislation. This paper also seeks to analyse a regional draft bill on commons written by a technical group appointed by the regional government. Its principal goal is to provide consorterie with a new legal status in line with the results achieved by scholars, jurisprudence and national legislation. Moreover, the legislative proposal explores the regional legislative competence related thereto by proposing some innovative solutions.

Визначення шляхів удосконалення системи медичного забезпечення дітей шкільного віку із використанням swot-аналізу

The search for ways to effectively provide medical care to the child population is an urgent issue of our time. With the participation of experts, a SWOT analysis of the organization of medical support for schoolchildren in modern conditions was carried out. The strengths and weaknesses, opportunities and threats of medical support for schoolchildren are identified, which contributes to the identification of promising directions for improving medical care for children in the conditions of general educational institutions. So, in the absence of an alternative system of medical support for schoolchildren, existing experience of medical personnel and institutions that have the practice of training school health workers, it is advisable to clearly build the vertical of the school health system, consolidate at the legislative level competencies of medical personnel and credentials, an algorithm for improving their skills in health matters and health-saved programs. The nearest threat is the turnover of medical personnel from educational institutions through a decrease in the attractiveness of medical work in schools, which will help to limit the preventive capabilities of the health care system for children in educational institutions. The directions determined by the results of the SWOT analysis will make it possible to make informed management decisions, to coordinate activities in a timely manner and to use the available opportunities most effectively in order to improve the system of medical support for children in the conditions of general secondary education.

LEGALANALYSIS ON THE INTERDEPENDENT COMPETENCES BETWEEN STATE AGENCIES IN ENACT OF THE VOLUNTAR ARBITRATION LEGAL REGIME (A STUDY FROM TIMOR-LESTE GOVERNMENT)

The adoption of separation of power principles given by Montesqiu in governing the state in Timor-Leste is clearly granted by its 2002 Constitution. However, the debate on its interdependent competence in regard to the legislatif initiative and authority delegation to enact any regime remain doubted. Include in this study on these two major organs of executive lead by the government and the legislatif led by the parliament on its interdependent competence on enacting of the Voluntary Arbitration Legal Bill in Timor-Leste. Early this year, the Timor-Leste Government enacted a new Voluntary Arbitration Legal Bill aligned with passing a Government Resolution on the Convention on the Recognition and Enforcement of Foreign Arbitral Award (convention on the recognition and implementation of foreign Arbitration Awards). This Convention has been ratied by the Timor-Leste National Parliament through the Resolution number 3/V/2 dated 20 January 2021 concerning Timor-Leste's accession to the 1959 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. This study examined the interdependence on the separation of powers in a two dominant competence system which are the government with the competence of Delegation Authorities to initiate a legislation and the parliament with the attribution to enact a legal regime and more over to the political decision on proposed law of the Voluntary Arbitration Legal Bill. Hence, this study resume that, although the government competence attribute by the constitution were stipulated clearly in Timor-Leste Constitution in article 115 (3) such as its competence to has exclusive legislative competence on matters concerning its own organization and functioning, as well as on the direct and indirect administration of the State. Hence this competence provide authorities to propose and drafting any legal regime that matters to government concern only as authorized by the parliament only as compared to the article 96 point 1 line k) on legislatif authorities as well as article 97 point 1 line 3) on legislatif initiative which government hold the delegation authorized only by the parliament to initiate legislation and in regards to the general rules and regulations for the requisition and expropriation for public utility; furthermore to enact the Voluntary Arbitration Legal Regime for its citizens.

Cryptocurrency as a Property

The debate at this level needs to be centred on the determination of whether cryptocurrencies should be classified as a currency or as an intangible property. Although we have a view on this point, there are differing implications that a classification will engender. Where it is decided that cryptocurrencies be classified as a currency, CBN will rightly exercise regulatory control, otherwise, not. There are also tax considerations that arise from a classification, either way. For instance, if bitcoin or other cryptocurrencies is considered a property, this classification may trigger sales tax obligations. Also, a classification as an intangible property will take bitcoins (and other cryptocurrencies) out of the Exclusive Legislative List in the Nigerian constitution– not being a legal tender– and provide state governments with the legislative competence to regulate cryptocurrencies

La competencia legislativa en materia de cooperativas: el caso español

El presente trabajo tiene por objeto analizar la delimitación material de la competencia legislativa en materia de cooperativas después de la Constitución de 1978, así como la delimitación territorial de la competencia legislativa tanto en la etapa anterior a la vigente Ley 27/1999 de Cooperativas como en la actualidad. Finaliza con una referencia a la competencia estatal sobre las bases de la ordenación de la actividad crediticia y aseguradora.
 Recibido: 05 julio 2017Aceptado: 20 noviembre 2017