The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

scholarly journals Aplikasi teori sadd al-dzarī‘ah dan fatḥ al-dzarī‘ah ke dalam peraturan TIPIKOR di Indonesia

2019 ◽  
Vol 19 (2) ◽  
pp. 223-242
Author(s):  
Nasrullah Rullah
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
The State ◽  
Point Of Use ◽  
Starting Point ◽  
The Law ◽  
The Many

The starting point of use between sadd and fatḥ is al-dzarī‘ah. In Madhab Mālik and Ḥanbālī, al-dzarī‘ah is prohibited and recommended. Al-Qarafī of Madhab Mālik and Ibn al-Qayyim of Madhab Hanbalī mention al-dzarī‘ah sometimes forbidden (called sadd al-dzarī‘ah) and are sometimes told (called fatḥ al-dzarī‘ah). In the study of fiqh jināyah (Islamic criminal law), the theory of sadd al-dzarī'ah and fatḥ al-dzarī'ahis still open to its development space, given the many ways in which criminal acts are carried out, such as corruption in Indonesia which has been rooted among officials. While the eradication is not maximal and requires a comprehensive set of regulations, so that various gaps in corruption in Indonesia can be indicated and all forms of disobedience to the state and people's welfare can be overcome because they contain greater values of maslahah. The two theories of Islamic criminal law, especially regarding sanctions for corruption, can be made possible in the law of eradicating corruption in Indonesia, thus creating anti-corruption laws in a stronger law enforcement process. 

scholarly journals Social commissioning in the sphere of social services provision

2021 ◽  
Vol 66 ◽  
pp. 113-117
Author(s):  
M.O. Buk
Keyword(s):  
Social Services ◽  
Social Order ◽  
Social Care ◽  
Social Issues ◽  
Public Procurement ◽  
The State ◽  
The Social ◽  
The Law ◽  
Definition Of ◽  
State Regional

This article is dedicated to the analysis of the essential hallmarks of social services procurement. The attention is focused on the absence of the unity of the scientists’ thoughts as for the definition of the term “social procurement”. It has been determined that in the foreign scientific literature the scientists to denote the term “social procurement” use the notions “social contracting”, “social order” and “social commissioning”, and they use these notions with slightly different meanings. Therefore, the notion “social procurement” is defined as: 1) activity of a country; 2) form of the state support; 3) complex of measures; 4) legal mechanism. The article has grounded the expediency of the definition of social procurement in the legal relations of social care as a special legal way to influence the behavior of the parties of the social care legal relations. The publication advocates the idea that social procurement is one of the conditions for the rise of the state and private sectors partnership. The state-private partnership in the legal relations regarding the provision of social services is proposed to be defined as cooperation between Ukraine, AR of Crimea, territorial communities represented by the competent state bodies, self-government bodies (authorized bodies in the sphere of social services provision) and legal entities, but for the state and municipal enterprises and establishments, and organizations (providers of social services) regarding the provision of social services, which is carried out on the basis of an agreement and under the procedure set by the Law of Ukraine “On Social Services” and other legal acts that regulate the social care legal relations. The article substantiates the thesis that the subject of the social procurement is social services and resolution of social issues of the state/regional/local levels in the aspect of the satisfaction of the needs of people/families for social services (state/regional/local programs of social services). It has been determined that the main forms of realization of the social procurement in the social care legal relations are public procurements of social services and financing of the state/regional/local programs of social services. The public procurement of social services is carried out under the procedure set by the Law of Ukraine “On  Public Procurement” taking into account the special features determined by the Law of Ukraine “On Social Services”. The social procurement in the form of financing of the state/regional/local programs of social services is decided upon the results of the tender announced by a client according to the plan for realization of the corresponding target program.

scholarly journals F v MINISTER OF SAFETY AND SECURITY: Vicarious liability and state accountability for the criminal acts of police officers

2016 ◽  
Author(s):  
Heidi Barnes
Keyword(s):  
Police Officers ◽  
The State ◽  
Constitutional Court ◽  
Vicarious Liability ◽  
State Accountability ◽  
Normative Basis ◽  
The Law

The Constitutional Court judgement in F v Minister of Safety and Securityis a ground-breaking judgement in two important respects: firstly, it finally does away with the fiction that an employee acts within the course and scope of her employment in the so-called deviation cases in the law of vicarious liability, and secondly it clarifies the normative basis for holding the state vicariously liable for the criminal acts of police officers. In this latter respect it significantly promotes state accountability for the criminal acts of police officers.

Sovereignty and Positivity

Sovereignty ◽  
2019 ◽  
pp. 87-95
Author(s):  
Hermann Heller
Keyword(s):  
The State ◽  
Modern State ◽  
Legal Rules ◽  
Positive Law ◽  
Starting Point ◽  
The Law ◽  
Legal Judgments

This chapter argues that one can glimpse the nature of sovereignty in the ability to positivize the highest legal rules binding on the community. There is no legal positivity for the authority order of the modern state without sovereignty. The legal derivation and attribution that grounds legal judgments, administrative acts, and legal transactions in the law, and the law in the constitution, inevitably falls into a yawning void if it dissolves the connection between the positivity of law and the sovereignty of the state. The jurist must take as a starting point the fact of sovereignty; otherwise he loses the object of his science—positive law—and will be left hanging in the air with all his science and practice.

LIMITATIONS ON THE TRANSPARENCY OF LAW CREATION AND LAW EXERCISING IN THE DUCHY OF WARSAW

2019 ◽  
Vol 5 (1) ◽  
pp. 503-516
Author(s):  
Marcin Mielnik
Keyword(s):  
Main Part ◽  
The State ◽  
Source Analysis ◽  
Daily Newspapers ◽  
Public Action ◽  
Its Analysis ◽  
Starting Point ◽  
The Law ◽  
The Government

In this work, the study of the title issue will be continued and the focus will be on the boundaries of transparency of public action in the sphere of enacting and implementing the law. As a result of the actions taken, the author intends to find answers to questions relat-ed to the policy of informing citizens and possibilities of finding information on the func-tioning of the state. The research was carried out by conducting a source query and source analysis. The author in the main part of the work defined the bodies responsible for creat-ing the law. Then, he introduced individual governmental dailies, such as Dziennik Praw or daily newspapers issued in individual districts of the country (departments). The starting point was to discuss the policy of disseminating the content of the law also in the uncon-stitutional period before the first copies of the government press were issued. Next, the author discussed the results of research on specific issues such as the content of journals, with particular emphasis on the main topics, such as the justification for the implementation of the Napoleon Code and its analysis in terms of practicality. Finally, niche topics like hounds and tips are presented.

Competences of Public Administration of the Slovak Republic in the Area of Defense

2020 ◽  
Vol 11 (2) ◽  
pp. 151-165
Author(s):  
Ryszard Szynowski
Keyword(s):  
Public Administration ◽  
Political Power ◽  
Slovak Republic ◽  
The State ◽  
Self Administration ◽  
The Public ◽  
Government Administration ◽  
The Law ◽  
The Government ◽  
The Many

In one of the many definitions of public administration it was stated that it is the fulfillment of individual and collective needs of citizens, resulting from the co-existence of people in society, realized by the state and its dependent organs. One of the needs of an individual is the need for safety. Ensuring the safety of citizens is realized by the public administration, due to its service to the society as an executive apparatus possessing a democratic mandate of political power, in service of the law created by said organs. A particular role in the area of defense belongs to authoritative administration, which performs tasks including reversing risks and removing dangers, including the realization of tasks and undertakings aimed at military preparation in case of war. The aim of the following article is to present the tasks and competences in the area of protecting the President, the government, government administration officials on duty and local self-administration of the Slovak Republic. Various methods have been used to reach the pre-determined goal, primarily the method of document investigation, which made it possible to gather, sort, describe and scientifically interpret the legal acts of the Slovak Republic regarding defensive matters.

The State of the Law on Euthanasia in Kenya

2020 ◽  
Vol 8 (1) ◽  
pp. 1-14
Author(s):  
Moni Wekesa ◽  
Martin Awori
Keyword(s):  
Empirical Studies ◽  
Case Law ◽  
The State ◽  
Right To Die ◽  
Criminal Offence ◽  
Dual Effect ◽  
Current State ◽  
The Law ◽  
State Of Affairs ◽  
The Right

The general position of the law on euthanasia worldwide is that all states recognise their duty to preserve life. Courts in various jurisdictions have refused to interpret the 'right to life' or the 'right to dignity' to also include the 'right to die'. Instead, they have held that the state has a duty to protect life. Three categories can however be noted. At one extreme are those countries that have totally criminalised any appearance of euthanasia. In the middle are countries that prohibit what appears to be active euthanasia while at the same time tolerating 'dual-effect' treatment and withdrawal of artificial feeding. At the other extreme are countries that allow euthanasia. Even in this last category of countries, there are stringent guidelines embedded in the law to prevent a situation of 'free for all'. Anecdotal evidence, some empirical studies and case law seem to suggest that euthanasia goes on in many countries irrespective of the law. Euthanasia is a criminal offence in Kenya. However, there have been no empirical studies to ascertain whether euthanasia goes on in spite of the law. This article surveys the current state of the practice of euthanasia globally and narrows down to elaborate on the state of affairs in Kenya.

Some Aspects of the Regime of Islands in the Law of the Sea

2017 ◽  
Vol 32 (2) ◽  
pp. 316-331
Author(s):  
David Anderson
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
The South China Sea ◽  
Law Of The Sea ◽  
Open Sea ◽  
Relevant Case ◽  
The Law ◽  
The Many

This paper examines the international law of the sea as it applies to islands and low-tide elevations, with particular reference to the many disputed islands, atolls, rocks and shoals in the South China Sea. After distinguishing the law on the acquisition of sovereignty from the law of the sea, the paper analyses the relevant terms of the un Convention on the Law of the Sea, as well as their negotiating history and some failed proposals concerning historic waters. The rules relating to islands, rocks, artificial islands, seamounts in the open sea and maritime boundaries are then reviewed in turn, together with the relevant case law.

scholarly journals FORCED TAX COLLECTION PROCEEDINGS IN BRAZIL: AN OVERVIEW OF FEDERAL LAW NO. 6,830

2018 ◽  
Vol 2 (2) ◽  
pp. 267-285
Author(s):  
Bruno Fernandes Dias
Keyword(s):  
Case Law ◽  
Federal Law ◽  
Tax Collection ◽  
The Third ◽  
National Courts ◽  
Court Of Justice ◽  
The Law ◽  
Debt Collection ◽  
The Many ◽  
Definition Of

In Brazil, despite there being specific legislation regulating forced tax collection proceedings, these are still largely influenced by case law of national courts. We are now living in the third decade of Federal Law No. 6,830, promulgated in 1980, which aimed to guarantee greater privileges to the treasury in the course of the debt collection saga. However, the many loopholes and lacunae gaping throughout the text have left all stakeholders – government, taxpayers and judges – somewhat exasperated. Part II of this Paper analyzes the main features of forced tax collection proceedings: registration of the tax liability, presumption of liquidity and certainty; definition of “responsible” persons in terms of the law; collateralization and challenges to the debt; and the tax liability vis-à-vis other debts. A brief look is given to other pieces of procedural legislation related to tax disputes, most importantly the suits for a writ of mandamus; actions for restoration of undue payments, and actions for annulment. Finally, summaries of case law of the Superior Court of Justice are considered. These form an essential part of Brazilian sources of case law, most especially in tax proceedings.

scholarly journals Upaya Menciptakan Produk Hukum Berkualitas Konstitusi Melalui Model Preventif Review

2019 ◽  
Vol 15 (4) ◽  
pp. 774
Author(s):  
Muhammad Reza Maulana
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Constitutional Court ◽  
Constitutional Order ◽  
The Law ◽  
Constitutional Right ◽  
The Republic ◽  
Constitutional Issue ◽  
Legal Product

Pada hakikatnya judicial review dilaksanakan demi terciptanya keseimbangan hukum dan terpenuhinya hak konstitusional setiap pemangku kepentingan untuk bertindak dan mengajukan permohonan pembatalan suatu undang-undang kepada Mahkamah Konstitusi dengan menyatakan undang-undang tersebut telah bertentangan dengan UUD RI 1945. Pengujian undang-undang terhadap UUD 1945 dilakukan dalam upaya penyempurnaan hukum yang berlandaskan konstitusi. Setiap undang-undang haruslah dilandasi oleh aturan dasar yang tidak hanya tercantum pada konsiderannya saja, melainkan dibuat serta dilaksanakan berlandaskan nilai dan norma konstitusionalitas. judicial review yang selama ini dilakukan oleh banyak pihak pada Mahkamah Konstitusi membuktikan bahwa kualitas produk hukum atau aturan hukum yang selama ini dilahirkan oleh pembuat undang-undang seringkali bertolak belakang dengan keteraturan hukum, sehingga diperlukan langkah hukum preventive demi menjaga integritas lembaga pembentuk undang-undang agar tidak dianggap melahirkan produk hukum yang asal-asalan. Oleh karena itu, di dalam penelitian ini akan mengkaji dan menginisiasi pembentukan produk hukum yang berkualitas konstitusi sehingga Mahkamah Konstitusi sebagai lembaga pengawal konstitusi memberikan kontribusi dengan cita konstitusi dan melahirkan produk hukum dengan kualitas konstitusi. Dalam penelitian ini metode yang yang digunakan adalah yuridis normatif dengan menggunakan pendekatan undang-undang dan konseptual. Hasil penelitian ini menggambarkan betapa pentingnya upaya preventive sebelum suatu aturan hukum kemudian ditetapkan, disahkan dan dilaksanakan, dimana ada persoalan konstitusionalitas terhadap implementasi suatu produk hukum yang kemudian oleh Mahkamah Konstitusi dinyatakan bertentangan dengan Undang-Undang Dasar Republik Indonesia 1945.Basically, judicial review has done to create a balance of law and to fulfill the constitutional right for every stakeholder to act and apply for application to constitutional court by stating the rule was contradicted to the constitution of Republic of Indonesia 1945. The application was made as an effort to perfect the law which is based on the constitution. Each rule has to be based on the basic rules, not only on its consideration but also is made and implemented in basic values and norms of contitutionality. Judicial review done by many people on constitutional court has proven that the quality of law product or rules of law made by the legislative often contradict with constitutional order of law, so it is necessary to take a step on preventive legal measurer to keep up the integrity of the rule maker of being judged making unqualified legal products. Therefore, this research reviews and initiates the production of law product so that the Constitutional Court can give preventive contribution on each legal products made, to be able to run with the ideals of the constitution and create legal products with constitution quality. This research used juridical normative method with legal and conceptual approaches. The results of this study illustrate how important preventive efforts before a rule of law are then set, ratified and implemented. In which there is a constitutional issue on the implementation of a legal product, that will be later declared by the Constitutional Court to be contradictory to the 1945 Constitution of the Republic of Indonesian.

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