Primary Legislation Research Articles

Complaints Review and Remedies Mechanisms under the Ethiopian Public Procurement System: A Critical Review of the State of Law & Selected Practices

The Ethiopian Public Procurement & Property Administration Proclamation No. 649/2009 is the primary legislation regulating public procurement procedures, complaint review mechanisms, remedies, administration and disposal of public property. It is supplemented with a Procurement Directive aiming at operationalizing the principles and rules embodied in it. This Public Procurement system has largely modeled itself from the 1994 UNCITRAL Model Law on Procurement of Goods, Construction and Services which features a complaints review mechanism with compulsory hierarchical complaint review mechanisms. The procuring public bodies assume mandatory first instance review jurisdiction on complaints lodged against their own decisions. The complaints review board and the courts are respectively the higher levels of review bodies. It has been 12 years since this law has been put in action and this work aspires to examine and analyze the state of law and practice on suppliers’ complaints, review mechanisms and remedies by drawing relevant insights from the 1994 & 2011 UNCITRAL Model Laws. It is focused on the analysis of the rights of suppliers to file complaints, the complaint review bodies and their scope of competence, the powers of the courts and the award of remedies. It has been established that the Ethiopian public procurement complaints review system is constrained by obstacles that the law opted to include prohibitive clauses on the amenability of major procurement decisions which practically impairs the effectiveness of the review system. The prohibitions on the reviewability of procurement decisions limit the availability of review to be at the later stage of the procurement procedure and result in far fewer remedies. Moreover, the review board’s features of independence and requirements of professionalism are fundamentally compromised. Review jurisdiction by the courts has been very uncertain until the cassation interpretation by the Federal Supreme Court in the Jedaw case made a settling judgment.

20 FALLING THROUGH THE CRACKS: AN EXPLORATION OF SOCIAL WORKERS’ PERCEPTIONS OF THE NEED FOR ADULT SAFEGUARDING LEGISLATION

Abstract Background The investigation of, and interventions on, the alleged abuse of vulnerable adults, including older people,has become an important feature of social work.Policy and practice in adult safeguarding is characterised by competing debates about how regulators define core concepts and reporting systems. It has been argued that the introduction of specialist legislation could enhance responses to adult safeguarding (Montgomery et al.2016). This study sets out to shed light on how social work practitioners are navigating cases in the absence of primary legislation and to explore what benefits or challenges there might be should adult safeguarding legislation be fully enacted in the Irish context. Methods Focus Groups (N = 2) and face to face interviews (N = 14) were held with social work practitioners using a critical incident technique.An online survey questionnaire was also administered with N = 116 responses. Results Social workers reported that adults at risk were ‘falling through the cracks’ due to the absence of adult safeguarding legislation. In relation to older people, the issue of coercive control by another family member was repeatedly highlighted as a significant issue for which there was no legislative intervention available. Legislative powers such as a duty to cooperate, duty to share information and a duty to involve the adult at risk in the safeguarding process were deemed critically important but absent. In addition, social workers reported that the lack of access to support services for the adult at risk was significantly impacting on their ability to safeguard. Conclusion Whilst the current policy measures in place offer some protection, it is evident that social work practitioners believe that safeguarding procedures should be placed on a statutory basis to ensure the safeguarding process is applied in a consistent and effective way. Reference Montgomery, L., Anand, J., McKay, K., Taylor, B., Pearson, K. C., & Harper, C. M. (2016). Implications of divergences in Adult Protection legislation. Journal of Adult Protection, 18(3).

ILLEGAL MEDICAL PRODUCT AND CONSUMER PROTECTION IN MALAYSIA

The demand for medical products increases dramatically due to the outbreak of the COVID-19 pandemic. In this instance, unscrupulous traders are seen to be taking advantage of the situation by selling illegal medical products. These illegal products can be toxic and pose a severe health risk to consumers, as they may include the wrong ingredients, ineffective ingredients, or no active ingredients. One of the factors identified in the increase in the sale of illegal medical products is the ineffectiveness of the existing law to act as a deterrent. Growth in the activity is because the profits gained from selling the products are much higher than the fine imposed. By adopting doctrinal research and using content analysis methods, the article aims to identify the protection conferred to consumers concerning illegal medical products under the existing law. The article further examined the liability imposed on the manufacturer for a defective product which resulted in consumer suffers injury. It is submitted that the primary legislation, which is the Consumer Protection Act 1999, is ineffective in protecting consumers concerning illegal medical products. Thus, reference is made to the German Medicinal Product Act, which provides for liability of the manufacturer for the medicinal products.

Impact of COVID-19 on access to justice and documents

The COVID-19 outbreak has created an unprecedented impact on the functioning of access to justice and access to documents. New ways of administering justice were introduced, but the outbreak nevertheless caused severe delays in proceedings and even shut down courts in several members states. The impact on fundamental rights was far-reaching.This article will examine the ways in which EU law can intervene in such cases. Does it provide EU citizens with means to enforce their rights under EU law? Further, national COVID-19 measures will be analysed in light of primary and secondary EU legislation, and will include an application of the Charter of Fundamental Rights and the possibility of non-jurisdictional remedies.

Is the German Nuclear strategy lawful under EU law? Article 194(2) TFEU and its limitations

Abstract Germany streamlined its nuclear phase-out policy following the Fukushima Daishi nuclear accident, planning to decommission all of its nuclear capacity by 2022. As a member of the EU, although Germany is entitled to determine its own energy mix pursuant to Article 194(2) of the TFEU, this policy may conflict with other EU legislation and jurisprudence relevant to the EU energy sector. In particular, in this paper, we argue that the German nuclear phase-out may be contrary to the European Atomic Energy Community Treaty and the primary and secondary EU legislation regarding security of energy supply. We explore how Germany’s commitments under this legislation act as a limitation to its national energy policy autonomy and might entail the unlawfulness of the German nuclear phase-out strategy.

Crypto assets regulation in the UK: an assessment of the regulatory effectiveness and consistency

PurposeThe UK authority published its first regulatory guidance on crypto-assets in July 2019. This paper aims to critically evaluate the effectiveness of the crypto-asset regulation in the UK and the consistency of the existing regulatory scheme.Design/methodology/approachThis paper adopts comparative methods to carry out the analysis. The paper begins by elaborating the development of crypto-assets alongside the financial innovation in the world and pinpointing the core Acts and Regulations applied to crypto-assets in the UK. The paper also discusses a court case in the EU to highlight an argument among legal professions concerning crypto-assets classification.FindingsThrough carefully analysing relevant primary and secondary legislation of the UK and EU, this paper identifies some unclarified issues in the regulatory framework and discovers three flaws in the regulatory system. The paper concludes that the effectiveness of the current regulatory scheme is poor and room for improvement exists.Originality/valueThe paper provides the first review and a thorough analysis of the Laws and Acts applied to the crypto-asset regulation in the UK. It also calls on a simpler and clearer regulatory scheme from the perspectives of market participants and consumers. The discovered issues in the crypto-asset regulation in the UK may urge authorities to improve the existing regulatory frameworks and legal provisions.

Anti Terrorism Legal Framework in Pakistan and Challenges before the Criminal Justice System


 
 Terrorism is a global problem and it is becoming more complicated over the years. Most countries including Pakistan are adopting new measures to combat terrorism. However, the existing legal regime in Pakistan has several weaknesses and the government faces new challenges in fighting terrorism. This paper examines the anti-terrorism legislation of Pakistan by arguing that it has become unsuccessful to curb the threat of terrorism by fetching the terrorists to justice. This paper also provides analysis of the development of anti-terrorism laws in Pakistan after the September 2001 terrorist attacks in the US (9/11 attacks) through a broad history of progression as per the varying nature of the hazards faced by the State. Several governments made various legal mechanisms to cope with the criminalities those could not be sought under the ordinary judicial system of the State. Being the primary anti-terrorism legislation, the Anti-Terrorism Act, 1997 is used to handle the menace of sectarian violence in the State. Due to the 9/11 attack, throughout varying character of the danger caused by the Al-Qaeda or Taliban connected local terrorist Jihadi as well as sectarian organizations, Pakistan needs to amend not just the anti-terrorism procedure, but also required to introduce new related regulations to make the law more effective to aid speedy trials of the involved terrorists. This paper reviews critically the existing anti-terrorism laws, investigation techniques and trial processes adopted in Pakistan and identifies weaknesses and challenges in ensuring the effective implementation of the laws
 
 
 
 

Management of records at Statistics South Africa: Challenges and prospects

In South Africa, government departments are under legislative obligations to adopt a systematic and organised approach to the management of records. This is because sound records management is fundamental for good governance and effective and efficient administration of government units. This article analyses records management trends at Statistics South Africa (StatsSA). Qualitative desktop research was used with key legislative and policy sources, StatsSA documents and international literature. The study revealed that numerous challenges existed in the organisation’s records management. These challenges include: creation of the record retention and disposal authority granted by the Archivist; stakeholder relations and engagement; compliance with the National Archives and Records Services of South Africa (NARSSA) Act No. 43 of 1996 as the primary legislation for records and archives management in South Africa; and digitalization and transformation. The article recommends that the resource centre be digitalized by adopting the Millennium and Sierra Integrated Library Systems software for records management, skills development archiving and enhanced stakeholder relations. An effective and efficient records and archives management system promotes good governance, accountability, and transparency.

Observations from a small country: mental health policy, services and nursing in Wales.

Wales is a small country, with an ageing population, high levels of population health need and an economy with a significant reliance on public services. Its health system attracts little attention, with analyses tending to underplay the differences between the four countries of the UK. This paper helps redress this via a case study of Welsh mental health policy, services and nursing practice. Distinctively, successive devolved governments in Wales have emphasised public planning and provision. Wales also has primary legislation addressing sustainability and future generations, safe nurse staffing and rights of access to mental health services. However, in a context in which gaps always exist between national policy, local services and face-to-face care, evidence points to the existence of tension between Welsh policy aspirations and realities. Mental health nurses in Wales have produced a framework for action, which describes practice exemplars and looks forward to a secure future for the profession. With policy, however enlightened, lacking the singular potency to bring about intended change, nurses as the largest of the professional groups involved in mental health care have opportunities to make a difference in Wales through leadership, influence and collective action.

Executive Expropriation Under Hong Kong’s National Security Law

Perhaps two of the less anticipated aspects of the National Security Law (NSL) were its commitments to respect human rights and the rule of law in the safeguarding of national security, and the Court of First Instance has now held that the NSL is to be construed in accordance with fundamental rights guarantees in the constitution, so far as is reasonably possible. Against this backdrop, the Chief Executive and National Security Committee have promulgated Implementation Rules for article 43 of the NSL, Schedule 3 of which provides police officers with powers to freeze, restrain, charge, confiscate and forfeit property, when handling national security cases. This article identifies four ways in which Schedule 3 may be ineffective for operating ultra vires its empowering provision, article 43 of the NSL. It goes on to suggest that primary legislation could have achieved the means sought to be achieved by the four provisions in question, notwithstanding what may be the Administration’s view to the contrary.

Gambling Advertising between Primary Legislation, Regulation and the Role of Public Institutions: The Debate on Policies and Open Questions

Gambling Advertising between Primary Legislation, Regulation and the Role of Public Institutions: The Debate on Policies and Open Questions

The Stubborn Persistence of the Lawyer Exemption in Canadian Collective Bargaining Legislation

In 1948, the Canadian federal government introduced transformative collective bargaining legislation that would serve as a template for provincial labour law in the post-War period. That legislation extended protections to employees to form and join unions and required employers to bargain with unions that were chosen by a majority of their employees, among other legal rights and obligations. However, some employees were excluded entirely from this legislation, including employees working in five professions, law among them. The reason provided by the government for excluding the professionals was simply that the national bodies representing the professions asked to be excluded. That exclusion was then adopted by all provinces (except Saskatchewan) as part of the incorporation of the federal model into provincial labour legislation. By the 1970s, the federal government and most provinces had repealed the professional exclusion from the primary collective bargaining legislation, consistent with Canada’s ratification of ILO Convention 87 in 1972, which calls for governments to extend collective bargaining protections to all employees “without distinction whatsoever”. However, four jurisdictions—Ontario, Alberta, Nova Scotia, and Prince Edward Island (Exclusionary Provinces)—have stubbornly maintained the exclusion to this day, notwithstanding that thousands of (mostly) public sector lawyers across Canada, including in the Exclusionary Provinces themselves, have engaged in collective bargaining for decades. This essay traces the history of the lawyer exclusion from Canadian collective bargaining legislation and of lawyer collective bargaining from the 1940s to present day. The paper concludes with an assessment of the lawyer exclusion in light of recent decisions by the Supreme Court of Canada expanding the scope of Section 2(d) freedom of association under the Canadian Charter of Rights and Freedoms.

CQC proposes law change to close online prescribing loopholes linked to patient deaths

The Care Quality Commission (CQC) has submitted proposals to the government for legislative changes that would close regulatory gaps in online prescribing, which have been ascribed to patient deaths. The CQC said the changes to primary and secondary legislation would improve its ability to regulate independent primary care providers that are currently “putting people’s lives […]

Tension between the individual's fundamental human rights and the protection of the public from infectious and formidable epidemic diseases

SUMMARY Emerging infectious and formidable epidemic diseases are a cause for concern and a serious threat to the global health. At the time of writing a number of these diseases have no cure. States in their domestic legislation applicable to matters of public health have come up with approaches to deal with such diseases. Zimbabwe has enacted primary legislation and regulations dealing with public health in an effort to suppress and prevent these diseases. The Zimbabwean Public Health Act, for example, authorises the notification of infectious and formidable epidemic diseases and the inspection of infected premises. The Act further empowers the Minister of Health and Child Care to enact regulations. Through the Public Health Regulations, the government of Zimbabwe declared COVID-19 a formidable epidemic disease. Warranted by the Health Act, the Minister of Health and Child Care made treatment, testing, detention and isolation compulsory during the period in which COVID-19 is declared a formidable epidemic disease. This article seeks to provide a critical analysis of these measures as provided in the Public Health Act and health regulations in light of the constitutionally-guaranteed rights of privacy, freedom of security, liberty and freedom of movement. The question sought to be answered by the author is whether these measures justifiably trumps the rights of individuals. Key words: infectious diseases; formidable epidemic diseases; public health; fundamental human rights; legislation

The Impact of Public Procurement in the Absorption Process of Non-Refundable European Funds Assigned to Romania Between 2014-2020

Public acquisitions have been a constant challenge in the application process for public funds, especially in the application for European non-reimbursable funds. The low rate of absorption relating to the programming period 2014-2020 is closely linked to the manner of processing public acquisitions in Romania, these engendering most of the delays in the application process of non-reimbursable funds projects. Although Romanian primary legislation relating to public acquisitions is balanced by the community’s acquis, secondary legislation shows inconsistencies and leaves room for interpretation, with many scantily regulated subjects. Corroborated by the lack of clear descriptions of the roles relating to the National Authority for Public Procurement and to the Managing Authorities in regards to the verification of public acquisitions made by beneficiaries of European funds, this causes not only delays in the application process of the projects, but also financial corrections and a low rate of absorption.

Regulating autologous stem cell interventions in Australia: updated review of the direct-to-consumer advertising restrictions.

Objective This paper provides an update and overview of the law governing direct-to-consumer (DTC) advertising of autologous stem cell interventions (ASCIs) in Australia. It follows significant changes to the advertising regulations made in 2018. Methods The paper reviews the three primary sources or 'centres' of law regulating ASCIs in Australia, together with the relevant guidance documents that supplement these sources. It provides analysis of how the post-2018 advertising regulations, contained in the Therapeutic Goods Act 1989 (Cwlth), apply to all 'biologicals', including ASCIs. It demonstrates how these three sources of law interact with one another and outlines the new tiered offence regime that applies to contraventions of these prohibitions. Results The analysis demonstrates that DTC advertising of ASCIs in Australia is strictly controlled, with primary legislation prohibiting the advertising of biologicals altogether. Conclusions The polycentric legal regime regulating biologicals in Australia clearly makes DTC advertising of ASCIs unlawful. Health practitioners who promote ASCIs, either online, in print or in other media forms, may be penalised in different ways and by different authorities. What is known about the topic? Although several analyses have examined the regulation of ASCIs in Australia, no analysis has studied the reforms made in 2018 relating to the advertising of biologicals. As such, this analysis contributes a fresh examination of these relatively recent reforms. What does this paper add? This analysis clarifies the effects of these new advertising regulations, providing clear guidance on the relevant legal provisions for the benefit of health practitioners and health professionals more generally. What are the implications for practitioners? Health practitioners, especially those who offer ASCIs, should be aware that civil and criminal penalties are likely to be imposed on individuals who promote biologicals in Australia by any means.

Marine pilotage in Namibia

As Namibia implements the strategy of expanding its ports to achieve the strategic goal of becoming the regional logistics hub of choice, a clear and urgent need exists to upskill pilots. To that end, this article examines the Namibian law on pilotage in three areas: (i) the master– pilot relationship; (ii) the vicarious liability for pilot error; and (iii) the standards of training and certification of pilots. It does so having regard to case law, best practices of leading maritime nations and international standards. The article ends by recommending the urgent revision of the primary legislation and the regulations that govern the Namibian Ports Authority.

Pension support of police officers in Ukraine

The article is devoted to the analysis of the legislation of Ukraine and information sources on the pension provision of employees of the national police of Ukraine and other countries. The author notes that the pension provision of police officers and the population in general is very important in our country, that their proper provision is regulated by primary and secondary legislation, in particular articles of the Law of Ukraine "On National Police", the Law of Ukraine "On pensions of persons discharged services, and some other persons. " The level of the minimum subsistence level plays a key role in assigning pensions to Ukrainian police officers. It is from the size of this indicator, according to the law, that the minimum pension payments to these employees are determined. At the present stage, it is necessary to review the entire pension system of citizens and especially police officers. The author proposes changes to the pension legislation, which are designed to improve the social security of police officers.

The EU legislation on the supervision of activities of economic operators: substance of procedural rights and impact on Lithuanian law

This article discusses the EU legislation, regarding main procedural rights of economic operators applied in the supervision procedure of their activities and its impact on supervisory procedures in Lithuania, as well as the institute of supervision of activities of economic operators in Lithuania and regulation of main procedural rights granted to economic operators. By analysing the EU primary, secondary and Lithuanian (national) legislation, as well as the case law of European and Lithuanian judicial authorities, the insights into future challenges for both the EU and Lithuanian law are provided. It is being claimed that the EU is moving towards codification and strengthening of procedural rights, which inevitably influences Lithuanian legal system and the protection of individuals, inter alia legal persons.

Current Issues of Taiwan's Marine Protected Areas Legal Regime

As an 'Ocean Nation,' it is essential for Taiwan to make efforts to conserve its aquatic zones through marine protected areas (MPAs). Marine protected areas have considered one of the most precise methods of maintaining sustainable ecosystems and restoring fish stocks. This article discusses the legal regime for marine protected areas currently applied and its institutional arrangements in Taiwan. This study emphasizes legal issues in Taiwan's marine conservation efforts. This paper analyzes eight primary legislation relating to marine protected areas in Taiwan. Furthermore, to acquire actual field data, this study conducted interviews with a semi-structured questionnaire in three prominent Taiwan institutions related to their marine conservation task. All data obtained were analyzed and presented qualitatively. The issues of Taiwan's marine protected area legal regime have been identified. First, the main issue in Taiwan is that the legal basis for marine conservation is the legislation applied to land. Second, the existing maritime law regime in Taiwan does not emphasize marine conservation efforts. Subsequently, this article also discusses institutional arrangements related to Taiwan's marine protected areas. This paper also offers possible solutions. Enforcing five key Acts related to marine conservation, particularly the 2015 Act of Coastal Zone Management and strengthening institutional Taiwan's Ocean Affairs Council, are the solutions offered in this study.