Teaching Constitutional Law Using Real-life Examples: An Example from the Practice of Assent to Bills Passed by the National Assembly After the Tenure of Office of the President and the Assembly

2020 ◽  
Vol 7 (2) ◽  
pp. 140-151
Author(s):  
Chukwuka Onyeaku ◽  
Tonye Clinton Jaja
Keyword(s):  
Supreme Court ◽  
Federal Republic ◽  
Constitutional Law ◽  
Real Life ◽  
Case Law ◽  
Legislative Process ◽  
National Assembly ◽  
The Supreme Court ◽  
The Subject

As a matter of tradition and necessity, teachers of constitutional law within Nigeria (and elsewhere) are often compelled to refer to case law to provide illustrations of principles of constitutional law as enshrined in the constitution of the Federal Republic of Nigeria, 1999 (as amended). However, in some instances, where the said constitution does not provide explicit provisions, teachers of constitutional law are compelled to cite foreign case law as persuasive precedents. Still there are instances wherein there are neither foreign case law nor indigenous case law as precedents. In such situations, teachers of constitutional law are compelled to examine existing case law and relevant legislation until there is a pronouncement from either the Supreme Court or an alteration of the constitution by the National Assembly. One such situation is the subject of the analysis in this article: the situation whereby a president provides assent to bills after the expiration of the tenure of the National Assembly. As legislative tradition, the last session of each Chambers of the Nigeria’s National Assembly culminating each legislative term is usually a valedictory Session. Accordingly, Thursday, 6 June 2019 witnessed the last Session of the eighth National Assembly. As the president transmitted a Proclamation letter terminating the term of the eighth National Assembly inaugurated on 9 June 2015, it becomes paramount to examine the legal and constitutional implications of bills passed by the eighth National Assembly between 2016 and 2018 and up to 5 June 2019, which were assented to by the president after the tenure of the Assembly and office of the president. Thus, this article examines the constitutionality or otherwise of assenting to bills passed by the National Assembly and assented to by the president after the expiration of tenure of their offices. The article argues that the provisions of the 1999 Constitution had been violated when the president signed into law bills passed by the eighth National Assembly after the tenure of office of the president and the eighth National Assembly. It concludes that bills rejected by the president will require another legislative process of being passed into law again by the same Assembly or subsequent one before it can be assented to by the president. Failure to follow this constitutional process will render the assent unconstitutional.

Uncertain sovereignty: Ceylon as a Dominion 1948–1972

2019 ◽  
Vol 17 (4) ◽  
pp. 1258-1282
Author(s):  
Rehan Abeyratne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Fundamental Rights ◽  
Judicial Power ◽  
Privy Council ◽  
Minority Communities ◽  
Cautious Approach ◽  
Legislative Power ◽  
The Supreme Court ◽  
The Subject

Abstract This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon’s Dominion period (1948–1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less attention from legal scholars. This article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges’ undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

Some New Emphases in Extradition Case Law

1981 ◽  
Vol 16 (2) ◽  
pp. 204-224 ◽  
Author(s):  
S.Z. Feller
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Point Of View ◽  
District Court ◽  
The Supreme Court ◽  
The Subject ◽  
State Of Israel

In Azen v. State of Israel, the Supreme Court heard the appeal of a person who had been declared extraditable to France for offences of stealing by an agent and fraud, committed, according to the request for extradition, in France. One of the pleas raised against the decision of the District Court, in which Azen was declared extraditable, was that the specialty limitation was not guaranteed in the Extradition Treaty between Israel and France, as required by sec. 17 (a) of the Israeli Extradition Law, 1954. This section states unequivocally that —A wanted person shall not be extradited unless it has been ensured, by an agreement with the requesting State, that he will not be detained, tried or punished in that State for another offence committed prior to his extradition;whereas in art. 17 of the said Treaty, specialty is guaranteed in the following words: L'individu qui aura été délivré ne pourra ni être poursuivi ou jugé en sa présence ni être, détenu …i.e. under the Treaty, the specialty limitation is restricted, from the procedural point of view, to those processes involving physical, personal enforcement against the subject of extradition—he will not be “summoned” for interrogation, nor judged “in his presence”, nor “detained”; the Extradition Law, however, contains no such restriction, with the exception of detention which, by its very nature, requires physical enforcement.

scholarly journals (Il)Legal evidence in criminal procedures in the case law of the Supreme Court of Cassation in 2019 and 2020

2021 ◽  
Vol 93 (2) ◽  
pp. 435-456
Author(s):  
Milana Pisarić
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Case File ◽  
Legal Evidence ◽  
The Supreme Court ◽  
The Subject ◽  
Illegal Evidence

The Criminal Procedure Code stipulates that court decisions may not be based on evidence which is, directly or indirectly, by itself or in the manner of obtaining it, contrary to the Constitution, this Code, other laws or the generally accepted rules of international law and ratified international treaties, except in proceedings conducted for the purpose of obtaining such evidence. Illegal evidence cannot be used in criminal proceedings and is therefore separated from the case file. If the judgment is based on illegal evidence, it can be challenged by the appeal against the judgment, but also by the request for the protection of legality. The subject of the paper is the analysis of the recent case law of the Supreme Court of Cassation (in the period from January 1, 2019 to December 31, 2020) regarding the requests for the protection of legality stated in connection with illegal evidence.

Part IV Federalism, A Federalism in Canada, Ch.18 From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism

2017 ◽  
Author(s):  
Gaudreault-DesBiens Jean-François ◽  
Poirier et Johanne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Empirical Reality ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Law ◽  
Cooperative Federalism ◽  
The Impact

This chapter documents the evolution from a dualist—“watertight compartments”—conception of Canadian federalism, to one that must acknowledge an increased number of intergovernmental cooperative ventures. It first examines Canada’s fundamentally dualist federal architecture before looking at the empirical reality of cooperative federalism which frequently challenges this structural dualism. It then considers how the rise of cooperative federalism influenced the evolution of the interpretive doctrines underpinning the law of Canadian federalism. Finally, it analyses the normative strength and scope of cooperative federalism, concluding that the impact of cooperative federalism in Canadian constitutional law remains tamed by the dualist conception of federalism that still underlies the Supreme Court of Canada’s federalism case law.

State Constitutional Law in 1934–35

1935 ◽  
Vol 29 (4) ◽  
pp. 610-630
Author(s):  
Charles G. Haines
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
Sole Purpose ◽  
The Supreme Court ◽  
The Subject ◽  
State Taxes ◽  
State Constitutional Law

Validity of Constitutional Amendments. The courts continue to scan with rather meticulous care the procedure for the adoption of constitutional amendments. Where the sole purpose of a proposed constitutional amendment under the initiative provisions of the constitution was to provide for the levy of a “syncrotax,” or a tax on the basis of gross receipts in lieu of all other state taxes, a petition with a short title reading “initiative measure providing for adoption of gross receipts act” was held fatally defective in view of the requirement that every initiative petition have a short title showing the nature of the petition and the subject to which it relates. But according to the supreme court of Florida, a proposal to amend the constitution need not have a title, need not be read on different days or at different times, and need not be concurred in by the governor. And the dissenting justices protested that the majority failed to uphold the requirement that a proposed amendment shall be entered upon the respective journals of the two houses with the yeas and nays, showing a three-fifths vote in favor of the amendment. There must be, however, a violation of express constitutional requirements for the courts to interfere with the procedure in the adoption of amendments.

Centenary of HM Seervai – Doyen of Indian constitutional law – an Australian appreciation

Legal Studies ◽  
2007 ◽  
Vol 27 (3) ◽  
pp. 361-378
Author(s):  
Michael Kirby
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Fourth Edition ◽  
High Court ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Judicial Authority

For much of the second half of the twentieth century, HM Seervai was a leading advocate of the Bombay High Court. He argued some of the most important constitutional cases decided by the Supreme Court of India and eventually resolved in 1970 to write his Constitutional Law of India. It became the leading text on Indian constitutional law. It is still in widespread use. Many instances of recent citations are quoted. But it is not the usual commentary on the text of the Indian constitutional and case law. Instead, the book contains a running discussion on the shifts in direction as well as sharp criticisms where Seervai felt that the courts had strayed from correct constitutional doctrine. Seervai died in 1996 as the fourth edition was just completed. In this paper, originally given as a lecture in Mumbai in 2007 on the centenary of Seervai’s birth, the author questions Seervai’s testamentary prohibition on posthumous editions of his text. He urges that a new edition should be produced to keep Seervai’s legacy alive not only in India but in other constitutional democracies where Indian judicial authority is increasingly cited.

The Practice and Case Law of Israel in Matters Related to International Law

1997 ◽  
Vol 31 (4) ◽  
pp. 803-853 ◽  
Author(s):  
Rotem M. Giladi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Case Law ◽  
The United States ◽  
District Court ◽  
Sovereign Immunity ◽  
The Supreme Court ◽  
Civil Suit ◽  
The Subject ◽  
The Government

The case of the Canadian ambassador's residence has been the subject of several court decisions at various instances in Israel. These decisions (as well as others relating to the doctrine of sovereign immunity) have been reviewed in former issues of this section. On June 3, 1997, the Supreme Court, in its appellate jurisdiction, gave its judgment in this case and delineated the application of the international law doctrine of sovereign immunity in Israeli law. In a different case decided on the last day of 1996, the Tel-Aviv District Court was required to rule on the applicability of this doctrine to a civil suit brought against the government of the United States of America. This District Court decision now needs to be examined in light of the recent ruling of the Supreme Court in theEdelsoncase.

scholarly journals Un aspect crucial mais délicat des libertés de conscience et de religion des articles 2 et 3 des Chartes canadienne et québécoise: l'objection de conscience

2005 ◽  
Vol 28 (1) ◽  
pp. 185-205
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Armed Forces ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Freedom Of Conscience ◽  
Current Case ◽  
The Supreme Court ◽  
The Subject ◽  
The Difference ◽  
The Right

The Supreme Court of Canada, obiter, in the Big M Drug Mart Case, has spoken of the "Constitutional Exemption". It is the possibility not to be bound to obey the neutral laws that conflict with one's conscience or religion. It is what we call in French l'objection de conscience. The institution exists in Canadian and Québec Law as a part of the right to freedom of conscience or religion expressed in 2a) and 3 of the Canadian and Québec Charters of Rights. And it goes well beyond the right not to fight within the armed forces. The Supreme Court of Canada has actually delivered six judgments touching on the subject in 1985 and 1986. The conditions under which l'objection de conscience come into play are not so well known however. Does it cover matters of worship or only rules of morals ? Secular or only religious principles ? Personal or only group beliefs ? Do the existence of the rule, the sincerity of the objector and the reasonableness of the exemption have to be proved? Above all, what is the difference between a creed and an opinion ? The following article tries to formulate answers to these questions, with the help of current case-law.

Institute of discretion of the subject of authority in administrative judiciary

2020 ◽  
pp. 46-51
Author(s):  
Yurii Vovk
Keyword(s):  
Supreme Court ◽  
Local Governments ◽  
Case Law ◽  
Problem Analysis ◽  
Public Authorities ◽  
The Supreme Court ◽  
Legislative Regulation ◽  
The Subject ◽  
Administrative Courts ◽  
Discretionary Powers

Problem setting. Article 19 of the Constitution of Ukraine provides: “Public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.” However, quite often this constitutional norm is violated in practice. This forces citizens to apply to the administrative court for protection of the violated right. As a result, the number of citizens’ appeals to the administrative court is constantly increasing. Due to the significant workload, the increase in the number of appeals, the terms of consideration of the administrative case provided in Art. 193 of the Code of Administrative Procedure of Ukraine are often violated by administrative courts and the case is not considered within a reasonable time. At the same time, one of the most problematic categories of disputes in administrative courts are those concerning the discretionary powers of the subject of power. In these disputes, the plaintiff usually asks to recognize the actions (inaction) of the subject of power illegal and oblige to take certain actions. The administrative court usually finds the actions illegal, but does not oblige the subject of power to take certain actions in favor of the plaintiff, referring to the discretionary powers of public authorities and local governments, their officials in making the decision. In the future, citizens are forced to spend a lot of time and money to restore the violated right. Courts in different situations act differently. In addition, the lack of a legislative definition of “discretionary powers” is also a problem. Analysis of recent research and publications. In the modern scientific literature, the works of Belkin L.M., Boychuk M.I., Wenger V.M., Vlasov A.O., Grin A.A., Zolotareva M.K., Magda S.O., Panov G.V., Staryk A.M., Tarasenko T.M., Fedchuk S.I., and others are devoted to the question of discretionary powers of the subject of power. Along with this problematic issue, the institution of discretion of the subject of power, analysis of the case law of the Supreme Court is not given enough attention. The aim of the article is to investigate issues related to discretionary powers, determine the possible limits of court interference in the administrative discretion of the subject of power, based on the case law of the Supreme Court. Results and discussion. In modern conditions, a significant number of cases in administrative courts are related to the discretionary powers of the subject of power. These are mostly social disputes. Given the uncertainty of such a concept as “discretionary powers”, the courts refer in their decisions to the Recommendation NR(80)2 of the Committee of Ministers of the European Council, adopted by the Committee 10 on 11th of March 1980 at its 316th meeting, according to which discretionary powers should be understood as the administrative body, in making decisions, may exercise with a certain discretion. The above means, that such a body may choose from several legally admissible decisions the one, that is considered to be the best in the given circumstances. At the moment, there is a certain case law of the Supreme Court regarding the discretionary powers of the subject of power. Conclusions. The Supreme Court’s case law seeks to fill the gaps in the lack of proper legislative regulation of the issue of discretion and the relationship between the discretion of the court and the discretion of the subject of authority. However, this case law may not always be completely homogeneous. Given the significant number of cases related to discretionary powers and the lack of proper legislative regulation of this issue, it is time for the Verkhovna Rada to adopt a law to comprehensively regulate this issue, defining the concept of “discretionary powers”. This may provide guidance to the authorities and courts on how to act in specific situations and reduce the number of cases in the courts and will help to properly protect the rights and legitimate interests of individuals and legal entities.

Looking Ahead

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Future Developments ◽  
The Supreme Court ◽  
Enormous Amount ◽  
Independent Life ◽  
The Subject ◽  
Breach Of Duty ◽  
Extensive Body ◽  
Court Of Appeal

The Supreme Court’s decision in Pitt v Holt and Futter v Futter is now the crucial landmark in the life of the Re Hastings-Bass doctrine. Lord Walker’s judgment, together with Lloyd LJ’s in the Court of Appeal, will continue to be the subject of debate and criticism, and there certainly remain detailed technical questions which will require close judicial attention in future. But it has achieved an enormous amount in reformulating the Re Hastings-Bass rule so as to accord with the essential principles of English trusts law: it has now been put beyond doubt that it is a duty- (rather than results-) oriented rule, which can be invoked only on proof of the trustees’ breach of duty, and the consequence of which is to render the impugned exercise of power or discretion voidable. The tangled case law of the 1990s and 2000s has been swept away by the Supreme Court, and as yet it has not been replaced by an extensive body of case law applying that decision and filling in the gaps—although that will doubtless follow. As such, this is an opportune moment at which to look at the Re Hastings-Bass rule more broadly, to examine the processes through which it has been, and will continue to be, moulded and refined, and to consider likely future developments. In this respect it is also useful to look beyond the English courts to see how the Re Hastings-Bass rule has fared offshore, and the extent to which it has taken on an independent life, divergent from the English experience.

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