Legislative Competence Research Articles

The Scope of the Legislative Power of the Conference of Bishops

According to Can. 455 of the Code of Canon Law, a conference of bishops may issue general decrees only in cases where universal law has prescribed it or a special mandate of the Apostolic See has established it. In cases in which neither universal law nor a special mandate of the Apostolic See has granted the power to issue general decrees, the competence of each diocesan bishop remains intact, nor is a conference or its president able to act in the name of all the bishops unless each and every bishop has given consent. The purpose of the article is to analyse the legislative competence of the conference of bishops, which is provided for by the universal legislator. Therefore, the subject and the procedure of general decrees, which are laws, issued by the conference of bishops were analyzed first of all. The scope of the research is international because the Code of Canon Law applies to the Catholic Church, which is not bound by a specific territory.

AS DIFICULDADES DA EFETIVA IMPLANTAÇÃO DO JUIZ DE GARANTIAS NO JUDICIÁRIO BRASILEIRO

The Law 13.964, of December 24, 2019, known as the Anti-Crime Package, introduced into the current Brazilian Code of Criminal Procedure the institution called the judge of guarantees, aiming to provide greater impartiality in judgment throughout all phases of criminal prosecution, as there will be one judge for the inquisitorial phase (police/investigation) and another judge for the procedural phase, thus improving the accusatory system in the legal framework. This institution gained special prominence after the judgment by the Supreme Federal Court (STF) of the four Direct Actions of Unconstitutionality (ADIs 6298, 6299, 6300, and 6305). From these rulings, it was defined what is constitutional and what is unconstitutional in Law No. 13.964/2019, as well as being considered a mandatory rule establishing a deadline for the implementation and operation of the judge of guarantees throughout the country. The issue to be analyzed will be whether the Brazilian legal system is prepared for the implementation of the judge of guarantees? The general objective will be to understand the structural, budgetary, and staffing difficulties, as well as the legislative competence dialectic regarding the implementation of the judge of guarantees in the Brazilian judicial system, for its effective implementation within the deadline established by the Supreme Federal Court. The specific objectives are to assess the obstacles and difficulties in the physical structures of courts and judicial divisions, point out budgetary difficulties, and the challenges related to the number of court and division staff. The methodology will follow the deductive method, using bibliographic research, with an exploratory objective, qualitative approach, basic nature, and systematic literature review, encompassing academic articles, books, and legal documents.

A inclusão (tácita) do município à competência legislativa para proteção e defesa da saúde: análise sob o binômio urgência e popularização

Objective: this study analyzes the federalist decentralization materialized by decisions of the Brazilian Supreme Federal Court rendered during the SARS-CoV-2 virus pandemic. In this context, the aim is to consider the possibility of tacitly including municipalities within the concurrent legislative competence in the area of health, based on the elements of popularization and urgency. Methods: the study is based on bibliographic research – legal and public health doctrine – and legislative research, as well as ex post facto research, analyzing the causes and effects of Direct Action of Unconstitutionality 6.341, Allegation of Violation of Fundamental Precept 672, and Original Civil Action 3.451, all grounded in cooperative federalism. Results: as a result, the recognition of the municipality's duty to legislate in defense of health, especially in the inertia of other entities and limited only by regulatory agencies, and the existence of a delaying clash between legislative incompetence, urgency and popularization of the health system. Conclusion: it was concluded that the municipality was tacitly included in the legislative competence in the area of health by the decisions of the STF. Submission: 01/23/24| Review: 08/16/24| Approval: 08/16/24

Study on the Legislative Authority Allocation between China’s Central and Local Authorities

China has a unitary state system, dominated by the legislative power of the National People’s Congress (NPC). With the twice revisions of the Legislative Act of the People’s Republic of China, it is apparent that the delineation of legislative powers between governments at different levels has been more detailed. However, in practice, there still are some overlaps in the scope of China’s central and local legislative matters, a lack of clarity between the legislative authority of the local provincial People’s Congresses and their Standing Committees, and imperfections in the mechanism for resolving conflicts between local laws and administrative regulations, among other problems. This article mainly collects domestic and foreign representative literature by using the literature analysis method, historical research method, and comparative research method, to analyze the causes of the problems in the division of legislative competence of central-local authorities in China while considering the perspective of development and changes, and to propose practical solutions based on the history and the future development trend. Through research and analysis, this article points out some suggestions for the division of China’s legislative competence from three main aspects, based on the relationships between the NPC and the local People’s Congresses, the delimitation of the National People’s Congress and its Standing Committee, and the relationship between departmental rules and local regulations.

A Legal Historical Approach to the Rules on the Distribution of Legislative Competence and the Question of Private or Public

A Legal Historical Approach to the Rules on the Distribution of Legislative Competence and the Question of Private or Public

Lessons from the age of empire: the UK Internal Market Act as a rupture in the understanding of competence

The emergence of devolution in the United Kingdom (UK) has led to the emergence of a significant body of jurisprudence to understand its place in the UK constitution, including various conceptual frameworks to explain its operation. A problem with some of this jurisprudence is the characterisation of devolution as novel or exceptional, capable of being understood only on its own terms. An examination of the history of constitutional development within the British empire, however, reveals otherwise. Imperial history shows that the issues faced by devolved administrations in the post-Brexit UK – uncertainties about competence and the extent of dynamism and plurality, for example – have emerged before. More than that, they were dealt with by a combination of statutory text, judicial approach and political pragmatism. Some of these solutions provide a rich source from which lessons can be drawn for present-day challenges.This article explores how legislative competence was understood across the empire and the UK before the emergence of devolution in its most recent form. It looks at the political and judicial approaches to thorny questions of legislative supremacy, legislative subordination, political paramountcy and political pragmatism. This article aims not only to challenge the myth of devolution’s sui generis nature but demonstrate why the UK Internal Market Act 2020 represents a rupture in how competence was constitutionally understood. In this way, we may be better equipped to understand and resolve the problems of devolution posed by Brexit.

Constitutional regulation of the legislative competence of provincial councils in Iraq

This study aims to highlight the constitutional legitimacy of local laws issued by the governorate councils under Law No. 21 of 2008, which are not related to a specific region. These entities began to issue local laws after the recent amendments under the 2005 Constitution, based on the principle of separation of powers and using the analytical approach. Through analyzing the legal texts of the Iraqi Constitution and the laws of the governorates, the study concluded that these legislations issued by these councils are unconstitutional. The study provides recommendations aimed at correcting the course of legislators and addressing the defects that may affect democracy regarding the work of those councils and their response to the legislative process. The Iraqi Parliament should handle the legislation since the purpose of these councils is to satisfy the local needs of the governorates that are not organized into regions, as stipulated by the Iraqi Constitution for the year 2005, especially after the transformation of the Iraqi state into a democratic system. The study concluded that the local councils need to amend their law to keep up with the political developments that Iraq and the world are witnessing, in particular.

Cracking a nut with a sledgehammer: the Lord Advocate’s Reference on a second Scottish independence referendum in constitutional context

The UK Supreme Court’s judgment in the Reference by the Lord Advocate of Devolution Issues under Paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31 not only confirms that holding a second referendum on Scottish independence is outside the Scottish Parliament’s legislative competence but raises a series of important constitutional issues. These include the constitutional status of referendums, the importance of sub-state democracy and the sovereignty of the United Kingdom (UK) Parliament. Whilst the Court gives referendums more significance than they were previously thought to have, its reasoning invoking democracy and on parliamentary sovereignty suggests it has adopted a vision of the UK constitution in which UK-level authority is privileged over sub-state authority, to the detriment of subsidiarity and devolved autonomy.

The Role of The State in Diversifying and Expanding the Brazilian Energy Matrix: an Analysis of Legislation

Despite having an essentially renewable electricity matrix, the dependence on hydropower, in the current climate risk scenario and the associated environmental and social impacts, point to the need to diversify energy generation in Brazil. To this end, state action is fundamental for designing and implementing public policies for the country's energy matrix. However, this diversification does not occur at the desired speed and scale. Thus, this article analyses the Brazilian regulatory environmental policies to assess the participation of the Federal constituencies, States, and municipalities in scaling renewable sources in the national electricity matrix. The research revealed that specific legislation on energy is scarce, and much of what is applied is taken from the general environmental legislation. We noticed that, by constitutional imposition, the Federal constituencies have the legislative competence on the theme and, therefore, establish norms and general rules, while States and municipalities act marginally, especially in fiscal matters and environmental licensing. The need for more objectivity, standardization, and the non-existence of specific technical criteria in the norms about energy use. We also verified that most of what was legally established constitutes government programs, not state policies. It is necessary to extend the participation of states and Municipalities in elaborating national energy use plans and in the revision and technical standardization of the licensing norms. These gaps must be filled so sustainable development, a principle established in the Constitution, is strengthened and made possible, with the participation of States and Municipalities.

DO MUNICIPALITIES HAVE THE POWER TO REGULATE THE KEEPING OF “DANGEROUS” DOGS?

Dog attacks and resultant deaths are frequent occurrences in South Africa. Pit bulls are responsible in many of these cases and there are calls for them to be banned. Dogs, however, are the property of their owners, and forcing people to give them up will amount to a deprivation of property and an infringement of a dog owner’s right to property, which is protected by section 25 of the Constitution. Dogfighting is rife in South Africa and the conduct of dog owners contributes to dogs being aggressive and leads to dog attacks. In terms of the Constitution, animal control is a functional area of concurrent national and provincial legislative competence; on a strict interpretation, this means that municipalities do not have the power to legislate on the function. However, everyone is guaranteed the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. As such, the municipality (as part of the State) must respect, protect, promote and fulfil the right. Municipalities also have a duty to promote a safe and healthy environment, and the power to make by-laws on matters they may administer. They may also exercise powers that are reasonable and incidental to the effective performance of municipal functions, which is supported by the principle of subsidiarity, the fulfilment of the duties arising from section 12 of the Constitution, and the objective to promote a safe and healthy environment. A municipality that has the necessary resources can legislate and enforce by-laws on matters listed in Schedule 4A and 5A of the Constitution, provided that such action seeks to further the objectives of Chapter 2 of the Constitution and is not in conflict with measures adopted by the national and provincial spheres. The National Society for the Prevention of Cruelty to Animals (NSPCA) is responsible for animal welfare, but the responsibilities of animal welfare organisations are becoming greater as urbanisation in South Africa accelerates and animals in many disadvantaged communities are in dire need of basic animal care. The suite of local government law is geared towards the social and economic upliftment of communities, and there is legislative justification for interventions by municipalities to address matters such as the control of public nuisances, dog licensing, the operation of pounds, and the conduct of community members that can alleviate the pressure on those organisations tasked with animal care. There are a number of legislative instruments that apply to animals. A consolidation of the provisions of the various pieces of legislation into a single by-law aimed at regulating the keeping and treatment of dogs, may result in increased law enforcement and (it is hoped) increased sentences as a result of amplified enforcement, as well as improved deterrence.

Position paper on postgraduate medical education on the occasion of hospital reform - postgraduate medical education must be considered. A joint position paper by Bündnis Junge Ärztinnen und Ärzte and AG Junge Gastroenterologie of the DGVS as well as the Young DGN.

The Bündnis Junger Ärztinnen und Ärzte (BJÄ, Alliance of Young Physicians in Germany) has presented a position paper (PP) on Postgraduate Medical Education (PGME) against the background of an unfolding hospital reform in Germany, and they describe existing deficits of PGME in Germany. Based on this, demands were made of legislators, employers and medical associations which could result in a sweeping reformation of PGME. Hospital reforms can only be accomplished with well trained and motivated physicians. In this respect the BJÄ regards the reform of hospitals and the health-care system as a chance for a reform of PGME, which is long overdue. Legislative competence for PGME lies with the States of the Federal Republic of Germany and this warrants an adjustment of state medical association laws to accommodate the demands of the BJÄ. Generally PGME must be taken into consideration in all health-care legislation, in analogy to the meanwhile globally adopted principle of "Health in all Politics (HiAP)". The BJÄ has made every endeavour to produce this PP. The responsible stakeholders and actors in the health-care system would be well-advised to take the position paper seriously with a dwindling physician work force in hospitals and serious quality deficits in PGME. Hence, the BJÄ must be comprehensively supported. They need congenial partners to define the scientific foundation of all their demands, to test their application under real life conditions in hospital and outpatient care, to pursue research on the impact on patient care and on the intended transformation of the health-care system. This might best be accomplished by partnering with a scientific Association for Postgraduate Medical Education as has been the case in many countries for decades.

The Void Ab Initio Theory in Comparative Perspective: J Marshall, H Kelsen, and Beyond

Abstract The void ab initio theory is traditionally associated with the retroactive effect of the unconstitutionality of a statute, in diffused systems of judicial review; as opposed to the prospective effect of unconstitutionality, in Austria, the archetype of centralized judicial review. The paper argues that the void ab initio theory goes far beyond the time-factor of judicial review, having two complementary aspects: 1) The void ab initio theory is tied to a robust theory of negative liberty; and substantive criminal law is its privileged field of application. The void ab initio theory goes back to Marbury v Madison (1803). 2) The void ab initio theory was strongly criticized by Kelsen, whose criticism is accurate, when the theory is unduly extended to the unconstitutionality of laws curtailing positive rights of the welfare state, eg, salaries and pensions, as happened recently in Greece. The act which abolishes the unconstitutional statute retroactively, has ‘the character of a legislative act.’ Indeed, the void ab initio theory in the field of positive social rights encroaches on legislative competence. The paper cocludes that the void ab initio theory is a strong expression of the ethos of legality; The void ab initio is most adequate for (cases involving) legal sanctions, on legal grounds, over adjudicative facts.

Devolution Issues Under the Scotland Act 1998, Reference by the Lord Advocate (U.K. Sup. Ct.)

On November 23, 2022, the Supreme Court of the United Kingdom delivered its judgment on whether the Scottish Parliament has legislative competence to introduce a Scottish Independence Referendum Bill (the Bill) to hold a referendum in Scotland asking the question, “Should Scotland be an independent country?”, or whether this relates to reserved matters to the Union of the Kingdoms of Scotland and England and the Parliament of the United Kingdom under Schedule 5 to the Scotland Act of 1998 (the Act). The Court unanimously concluded that the proposed Bill relates to reserved matters and cannot be lawfully legislated by the Scottish Parliament. The case raises issues about the extent of legislative competence of a UK devolved nation, and whether it can lawfully exercise the right to self-determination under international law when a constitutional framework does not recognize legislative competence to hold an independence referendum.

Promoting the Apocalypse? The Legality of a Ban on Advertising for Fossil Fuels and Other Carbon-Intensive Products under European Law

Abstract Climate policy requires a steep and rapid reduction of greenhouse gas emissions, which are mainly caused by fossil fuels. Advertising that promotes fossil fuels and other carbon-intensive products undermines this objective. It normalises unsustainable consumption patterns and enables producers of harmful commodities to manipulate public discourse in order to delay or derail the energy transition – for example, by spreading misinformation, deflecting responsibility and promoting false solutions. For these reasons, there are increasing calls for a fossil fuel advertising ban along the lines of the tobacco advertising ban at both the European and the Member State level. This article evaluates the legality of such bans under European law, focusing on legislative competence, fundamental rights and internal market law. It finds that a fossil fuel advertising ban can be assumed to conform to the requirements of European law, especially if it is modelled after the tobacco advertising ban.

Challenges for human rights treaty monitoring in a devolved UK: a case study

This article is one of the first of its kind to undertake empirical research into the engagement of a devolved government in a United Nations (UN) human rights treaty-monitoring process. There is a lack of studies on this topic, even though the devolved nations of the United Kingdom (UK) have legislative competence and responsibilities to implement many obligations arising from several international human rights treaties, such as the UN Convention on the Rights of the Child. The article provides a case study to evaluate and compare how regional governments are accommodated in the treaty body system so that future monitoring processes accurately reflect the differences in implementation of UN treaties, or lack thereof, across different regions within the state. The potential impact of ‘under-representative’ state reporting is also examined. The article highlights that State Reports and the monitoring process should ensure accurate and reliable information on implementation in each nation of the UK and, more specifically, should ensure that the state delegation is composed of a balanced number of representatives from each nation, that delegation responses to questions from the Committee on the Rights of the Child clearly indicate whether the reply relates to law, policy and practice in the UK as a whole or solely to a specific nation, and that delegation representatives have a full understanding of the division of responsibilities between the UK Government and the devolved governments.

A developed conception of the sources of law: the context of the role of political justification, custom and precedent

The study analyses the ‘developed concept of sources of law’ created by Zygmunt Ziembiński in the second half of the 1960s, which was extremely important in Polish legal theory. Its main feature is a departure from the exclusivity of treating legal regulations as a source of law. While legislative competence plays a primary role in the conception, the inclusion of a norm in the system of law is also determined by other factors. The most characteristic in this context is the presence, in addition to the rules of exegesis (interpretative, inferential and conflict-solving), of three other factors discussed in this paper: political justification (legitimizing the legal system as a whole), customs (social norms introduced into the legal system by judicial decisions) and precedent (confirming an extra-legal norm or creating a legal norm after the acceptance of such an act by legal doctrine). This is why the concept not only breaks the positivist theoretical-legal paradigm, but also creates a realistic picture of the sources used in the decision-making processes of applying the law.

'Embarrasing and Even Ridiculous'

This paper examines the brief lifespan (1907–20) of ‘Two Act’ entrenchment, a curious constitutional law idea which emerged in Queensland in the early 1900s. Its origins lay in an argument formulated by Queensland’s then Chief Justice, Pope Cooper, qua defendant in criminal proceedings arising from his refusal to pay income tax on his judicial salary. That argument was that the Constitution Act 1867 (Qld) was a form of ‘fundamental’ or ‘organic’ law which could not be altered by legislation passed in the ordinary way, but which could be changed only by a Two Act legislative process in which the Legislature in Act 1 expressly empowered itself to alter the relevant provision and then in Act 2, again expressly, enacted the relevant alteration. The article considers how it was that an idea which had no textual basis in either Imperial or colonial legislation, for which there was no supportive judicial authority, and which had no precedent in Queensland’s legislative practice, was repeatedly upheld by Queensland’s Supreme Court and Australia’s High Court before being dismissed as wholly without merit by the Privy Council in McCawley v The King; but dismissed in terms which laid the foundation for the Privy Council’s subsequent approval of the proposition (in Trethowan v Attorney-General of New South Wales) that Australia’s State legislatures did indeed possess the legislative competence to enact judicially enforceable entrenchment devices to prevent certain laws being enacted through the ordinary lawmaking process.

The power of symbolic sanctuary: insights from Wales on the limitations and potential of a regional approach to sanctuary

ABSTRACT This article explores sanctuary policies and practices from a regional perspective. Following a declaration by the Welsh government in 2019, Wales became the first and only European region to explicitly connect to the wider sanctuary movement, with the stated intention of becoming a true ‘Nation of Sanctuary' (NoS) (Welsh Government. 2019. “Nation of Sanctuary: Refugee and Asylum Seeker Plan.” Cardiff: Welsh Government). We argue that the Welsh government’s approach to sanctuary is richly symbolic and is used strategically to compensate for the lack of formal legislative competencies in the field of immigration, and to position itself in opposition to the UK government. The article highlights the potential of symbolic policies to underpin a regional form of sanctuary, along with their limitations. We show that regions can use symbolic policies to overcome their lack of legislative competency in asylum policies and argue that symbolic policies allow regional governments to position themselves as allies to those supporting refugees and asylum seekers, and as an opponent of the state. In addition, we illustrate how a regional government's symbolic commitment facilitates concerted action on the part of relevant actors within the region. However, we also highlight the fragility and inconsistency of symbolic sanctuary.

Macro-Regional Strategies, Climate Policies and Regional Climatic Governance in the Alps

This paper describes the macro-regional governance framework behind the climate adaptation policies that are currently in place in the Alpine area. Through this discussion, it specifically considers the implications of the regional governance of South Tyrol and Lombardy as case studies. Despite rising concern at the European level, there are still no specific guidelines in place for climate change governance at the macro-regional level. Macro-regions encompass multiple regions that have certain shared morphological characteristics. To address climate changes that occur here, they adopt optional larger-scale strategies without adequately considering territorial and governmental specificities at the regional level. Each individual region adopts specific climate adaptation strategies to deal with the challenges of the territories they govern, without considering the effects on their neighbours, decentralises climate policies to the lowest tiers of government, and encourages participation from individuals and non-governmental organisations. The Alpine macro-region is governed by three separate international/transnational institutions at the macro-regional level and is subject to different regulations from each of the 48 regions/autonomous provinces. One of these regions is Lombardy, which is particularly exposed to the effects of climate change due to having the highest values for land consumption and pollution in Italy. From the administrative point of view, it is an ordinary region, which means that it has the same legislative competences of the other Italian regions. South Tyrol is entirely mountainous. Being an autonomous province, it benefits from greater legislative autonomy than ordinary regions. Based on documental analysis of climate adaptation strategies, findings demonstrate that the preferred governance structure involves the presence of a coordinating institution (such as the province in South Tyrol or the region in Lombardy) that decides climate action, along with several other local institutions and stakeholders that have less decision-making power. Its preferred mechanism for addressing specific climate challenges is the definition of specific regulations and the draft of regional and mono-sectoral plans. These regulations do not relate strongly to wider-scale strategies at the macro-regional level, but are inspired by their principles and priorities. At both definition and implementation levels, the participation of local organisations is limited and not incentivised. Administratively, South Tyrol enjoys greater autonomy, whereas Lombardy must comply more closely with state regulations that limit its decision-making freedom.

Constitutional Design of Legislative Relations Between Centre and State: Challenging Legislative Competence, through the lens of State of Andhra Pradesh vs K. Purushotham Reddy and Ors (2003) 9 SCC 564

Constitutional Design of Legislative Relations Between Centre and State: Challenging Legislative Competence, through the lens of State of Andhra Pradesh vs K. Purushotham Reddy and Ors (2003) 9 SCC 564