Perspectives of Law and Public Administration
Table of Contents
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1. THE CONSTITUTION OF UNITED STATES OF AMERICA AND ITS PATH TO DEMOCRACY THROUGH ITS AMENDMENTSAbstract:The United States of America defined the national purpose in the first two words of its Constitution. The United States of America is the state where the rulers have gained the authority to speak, to act on behalf of 'We the People'. 'We the People' was the philosophy of the 'founding fathers' of the Constitution of the United States of America. 'We the People' was the theory, the attitude that would serve as a guiding principle of governance. For the 'Founding Fathers', the two-word phrase 'We the People' was a creed, a doctrine, an ideology in action and not in words. The history of the Constitution of the United States of America taught us that ‘We the People’ which was converted to myth deserve this conversion. Through this research, keeping in mind the content and the historical background of the U.S Constitution we will elaborate and answer the below questions. How is it possible for the Constitution that began with 'We the People' it did not list the fundamental rights and freedoms but also denied the fundamental rights and freedoms of the individuals (people)? How are explained the slavery, the denial of citizenship, the restrictions of the right to vote for different groups of American society of that time? Was there any purpose for the deprivation of the fundamental rights and freedoms of the individual in the Constitution of the United States of America? Did the Constitution of the United States of America at the drafting time recognize the right of women to vote? Through this article we will try to shed light on this seemingly contradicts between the myth of the Constitution of United States of America and the ‘denied’ or ‘unforeseen’ fundamental rights and the role of the amendments of U.S. Constitution in this process.
Keywords: Constitution, historic development, review of constitution, amendment methods, amending subjects.
JEL Classification:K10, K38
Page 4 - Assistant professor Roxana Maria CHIRIEAC
2. VAT ENFORCEMENT BY THE ROMANIAN TAX AUTHORITIES IN THE CONTEXT OF THE UNIFORM IMPOSITION OF VAT IN THE EUROPEAN UNIONAbstract:VAT enforcement by the Romanian tax authorities has recently been discussed by the European Court of Justice in a preliminary ruling concerning the correct imposition of VAT and the taxpayers’ rights in challenging the said decision to impose. Since Romania is a member of the European Union it is obliged to comply with the European regulations in place, in this case being the Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as it was modified by the Council Directive 2010/45/EU of 13 July 2010 amending Directive 2006/112/ EC on the common system of value added tax as regards the rules on invoicing. The Romanian tax authorities, when controlling taxpayers, if the latter request a VAT reimbursement, have the right to impose a control on the taxpayers’ activity that generated the said reimbursement. Furthermore, when controlling the activity of a taxpayer, the National Agency for Fiscal Administration has the right to extend the said control to any and all activities and reports that entail and are relevant to the imposition. While the context is understandable, and a larger control is sometimes required in order to prevent possible tax evasion and an illegal VAT reimbursement, one must understand that such a control must not, in any circumstance lead to an abusive control or an abusive imposition.
Keywords:VAT, Council Directive 2006/112/EC, Council Directive 2010/45/EU, European Court of Justice, National Agency for Fiscal Administration (NAFA).
JEL Classification:K33, K34
Page 16 - Phd. student Muhamet BRAHIMI
3. THE INTERNATIONAL IDENTITY OF THE EUROPEAN UNION AND ITS ROLE IN THE CASE OF KOSOVOAbstract:This work analyzes the international identity of the European Union (EU) in the context of the new world order with a focus on issues developing in Kosovo. The development of EU and its unique character in relation to Public International Law (PIL) has made the issue of legal subjects more complex. Unlike traditional international organizations, EU is governed by the principle of supremacy. PIL is defined as the law of nations, meaning that the rules and principles are meant to govern relations between states. Although international law has now developed, and organizations and individuals are also considered as subjects of international law, nonetheless, as a starting point, international law is only applicable to those subjects that have international personality. How does the EU claim to have international personality when the member states are sovereign states, but at the same time part of a Union with elements of a state? In this context, the weight of the subject is related to the fact that geopolitics has changed and the capacity of the EU as a geopolitical actor is put to the test in the Balkans, since geopolitical competition is high amongst the big global powers.
Keywords: European Union, international identiy, Kosovo, public international law.
JEL Classification:K33
Page 27 - PhD. student Raden Roro Theresia Tri WIDORINI; Lecturer I Nyoman NURJAYA; Lecturer Bambang SUGIRI; Lecturer Ismail NAVIANTO
4. SHIFT OF POWER ABUSE THAT INFLICT STATE LOSSES FROM THE PERSPECTIVE OF CRIMINAL LAW INTO ADMINISTRATIVE LAWAbstract:In order to fulfill the principle of the constitutional state, Republic of Indonesia in its constitution admit and guarantee that every people have rights of recognition, guarantee, protection, fair legal certainty and equality before the law. Discretionary power or freies ermessen attached to administrative power even according to the principle of constitutional state every authority should be based on law, but in certain situation and condition in which the law has not or does not clearly regulated, the officials or administration agencies should make an action or decision based on policy or discretionary of power. Although freies ermessen is created in the form of regulation that is known as policy rule or beleid regel but the act of administration agencies that is freies ermessen that is most potential for abuse of power. Therefore, in sentence of Corruption Crime it is based on the purpose of sentence namely improving and protecting society thus the criminal responsibility who is always asked for the convict in the criminal act while it is still based on purpose of sentence.
Keywords: criminal law, abuse of power, administrative law, Indonesia.
JEL Classification:K14, K23
Page 38 - Professor assistant Përparim GRUDA; Phd. student Doruntinë DEMIRI; PhD. Zahir ÇERKINI
5. CONSTITUTIONALIZATION OF INTERNATIONAL INSTRUMENTS ON HUMAN RIGHTS: LESSONS FROM KOSOVAAbstract:This work scrutinizes modalities of the constitutionalization of international human rights instruments in the Republic of Kosova. Most of the newly established democracies or post-communist countries, as Kosova is, have adopted the highest western standards in guaranteeing human rights protection. However, the approach that this country has followed to make these standards part of its constitutional system is rather unique. Indeed, Kosova represents an unprecedented case for the place it has given to international instruments on its constitution. This peculiarity, subject of this study, will be examined through the elucidation of three main issues: First, the constitutional regulation of human rights which is heavily based on international human rights law; Second, the unparalleled approach of directly incorporating international instruments into constitution; and Third, the unique determination of the Article 53 of the Kosova’s constitution which requires the interpretation of human rights matters of all state authorities to be made according to the jurisprudence of the European Court of Human Rights.
Keywords: Constitutionialism, Human rights, Constitution, International instruments, ECHR, ECtHR.
JEL Classification:K30, K33, K38
Page 44 -
Student WIDARSONO; Lecturer Prija DJATMIKA; Lecturer Herman SURYOKUMORO; Lecturer Dhiana PUSPITAWATI
6. RECONSTRUCTING THE ASSIGNMENT OF INDONESIAN NATIONAL ARMY’S (TNI) DUTY IN COUNTERING TERRORISMAbstract:In analyzing legal materials, one of the applied techniques as contained in the research method is reconstructive. Reconstructive analysis technique for legal materials comes from the term reconstruction. The meaning of reconstruction in the context of analysis is in term of the building of the material object under the study according to critical epistemology based on the value to be achieved, so that a new juridical construction is formed. The reconstruction of the meaning of a legal rule is carried out by initially understanding the meaning in a particular regulation or article in a law by being systematically connected based on philosophical and analytical approaches. In reconstructing laws and regulations regarding counter-terrorism, this research refers to several theories, including the rule of law theory, the theory of authority, and the theory of legislation. The content of the laws and regulations that need to be reconstructed is the title of the law that regulates the eradication of terrorism, and regulations related to authority between Indonesian National Police (POLRI) and Indonesian National Army (TNI), as well as the role of National Security Council (DKN) in the ideal laws and regulations, which if referring to the Law Number 5 of 2018, it seems to be played by the National Counterterrorism Agency (BNPT) with all its special limitations related to the eradication of terrorism. With regard to regulatory reconstruction, that the title of the current legislation, namely the Law on the Eradication of Criminal Acts of Terrorism, should be revised to use a broader title, for instance into the Law on the Eradication of Terrorism, by omitting the phrase ‘Criminal Acts’ due to its use, the term ‘Criminal Acts’ seems to reflect to be only on the field of Criminal Justice System. Despite of that, the problems regulated in counter-terrorism are broader than that, because they involve TNI in overcoming acts of terrorism as part of TNI's duties from military operations other than war, and are carried out in accordance with the main duties and functions of the TNI. From the epistemological aspect, there are quite fundamental changes related to the aassignment of TNI and POLRI in dealing with terrorism. The regulation regarding TNI and POLRI certainly cannot be separated from the discussion on the authority of the two institutions, given the intersection of authorities.
Keywords: reconstructing, terrorism, criminal justice system, Indonesia
JEL Classification:K23, K33
Page 55 - Lecturer Hazbi LIKA
7. THE EUROPEANIZATION OF THE ALBANIAN NATIONAL IDENTITY: THE IDENTITY DEBATE OF ISMAIL KADARE VERSUS REXHEP QOSJAAbstract:Debates and discussions on the national identity of Albanians, respectively the civil belonging of this identity, has its genesis since the period of the Albanian National Renaissance. At that period of time, the Albanian Renaissance’s representatives faced the civil belonging’s dilemma of the Albanian nation. This, because of the fact that Albanians had a nation, culture and language that belonged to Europe, but under five centuries of occupation of the Ottoman Empire were endowed with Oriental-Ottoman features and characteristics in many aspects of identity, culture, language, mentality, religion, etc. The western identity orientation of the Albanian renaissancers did not end the debate on Albanian civic belonging. Such debates continued throughout the twentieth century and continue to this day. Such is the debate between the most famous Albanian writer Ismail Kadare and the iconic scholar of Albanian culture Rexhep Qosja. This paper sets out and analyzes the views of these two predominantly Albanian intellectuals, the clash of these views, addresses the arguments of each and interprets them from a more objective perspective, including in the paper the views of other Albanian and foreign scholars and contributors to this cultural and identity debate that continues in Albanian society to this day. Being Kadare and Qosja the most influential intellectuals of the Albanian culture, the treatment of such a debate becomes of scientific importance.
Keywords: Albanian, national identity, culture, europeanization.
JEL Classification:H83, K10, K33
Page 63 - Associate professor Ovidiu Ioan DUMITRU; Lawyer Andrada-Laura TARMIGAN
8. CONTRACTOR’S OBLIGATION TO MITIGATE DAMAGESAbstract:The duty to mitigate damages is recognized as a general principle of law in most jurisdictions and moreover, as a principle of international law3. Therefore, it can be applied by courts in contract claims cases, even when it is not expressly stated by the contract. The main criteria is to determine if the party adopted reasonable measures in order to either minimize its loss or to avoid increasing the other part’s loss. The importance of this principle should not be neglected in Construction Contracts, where the Contractor is generally considered as the one obliged to take reasonable steps to reduce costs in the case of an extension of time. Even if the contract breach is attributable to the other party, the courts must consider the Contractor's behavior regarding measures meant to limit the amount damage and the overall negative effects on the economy of the contract. This paper aims to emphasize some aspects regarding the contractual behavior of both Employer and Contractor, when faced with an obligation to mitigate damages in the context of contractual delays, being a useful tool for practitioners for preventing negative financial consequences.
Keywords: construction contracts, contractual damages, critical path, extension of time, intermediate deadline.
JEL Classification:K12, K15
Page 76 - Phd. student Valdete HALITI; Phd. student Driton ABDULLAHU; Professor Gani ASLLANI
9. CHALLENGES OF PUBLIC ADMINISTRATION IN KOSOVO IN THE CONTEXT OF EUROPEAN INTEGRATIONAbstract:The purpose of this paper is to analyses the current situation in the field of public administration in Kosovo in the context of European Integration. This paper presents a reflection of the challenges faced by the public administration in Kosovo, in the context of the requirements for advancement and reform of public administration arising from the European integration process, respectively the requirements related to the public administration arising from the criteria Copenhagen and Madrid, on one hand, and the Stabilization and Association Agreement (SAA) on the other. The paper is mainly based on analyses of the legislation in force, which regulates public administration issues and analyses of the way that SAA regulates public administration issues, scientific literature and other important data. Result of studies show that reformation of public administration in Kosovo in accordance with the models and standards adopted and applied by other democratic states, especially the EU member states, has been and remains a crucial challenge for our country, because in addition to positive developments, various negative phenomena have also appeared, which have hindered the advancement and development of public administration in Kosovo. The article formulates recomandation the advancement of public administration represents one of the major challenges and remains the focus of ongoing reform in order to meet the EU standards, to advance further in the other stages of membership, until full membership, as a goal of the Kosovo.
Keywords: administraton, public reforms, European integration, democratic institutions, institutional infrastructure.
JEL Classification:F12, H83, R11, R58
Page 83 - Assistant professor Marius EZER
10. THE JOINT INVESTIGATION PROCEDURE OF WORK ACCIDENTSAbstract:The criminal liability related to employment is regulated by means of a special chapter in the Labor Code2. There are also special regulations, other than the ones mentioned in Romanian Labor Code, that are applicable to the participants of an employment relation in case a criminal activity is involved. These special provisions relate also to the applicable obligations arising out of the health and safety regulations where a special importance is given to the analysis of the compliance of the employers with their duties in the field of protection of their employees.
Keywords: labor law, Romanian Labor Code, work accidents, criminal liability, employment relation.
JEL Classification:K31
Page 91 - Student Bram B. BAAN; Lecturer SUHARININGSIH; Lecturer Abdul MADJID; Lecturer YULIATI
11. RATIO LEGIS OF NORMS ON THE REGULATION OF NATIONAL HEALTH INSURANCE IN THE LAW OF REPUBLIC OF INDONESIA NUMBER 40/2004 CONCERNING NATIONAL SOCIAL SECURITYAbstract:The objective in the enaction of the Law of the Republic of Indonesia Number 40 of 2004 concerning National Social Security System is that everyone has the rights to get social security in order to be able to fulfill proper basic needs for their life and increase their dignity towards the realization of a prosperous, fair and wealthy Indonesian society that appropriate and fulfills the sense of justice in accordance with the mandate of the Constitution of the Republic of Indonesia. This paper analyzes the objectives in the enaction of the Law on National Social Security System of the Republic of Indonesia. The argument in this paper explains that the purpose in the implementation of Health Insurance, which is part of social security, is to achieve Universal Health Coverage for all Indonesian citizens so that all citizens can easily access health services. However, until now this has not been achieved, and some articles in the Law of the Republic of Indonesia Number 40 of 2004 concerning National Social Security System are contradicting to Article 28 H Paragraph (2) and Article 34 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia.
Keywords: Social Security, Health insurance, Universal Health Coverage.
JEL Classification:K32
Page 95 - Professor assistant Veton VULA; Doctor of science Mensut ADEMI
12. IMPACT OF COVID - 19 ON THE INCREASE OF VIOELENCE AGAINST WOMENAbstract:The phenomenon of the domestic violence in Kosovo holds an important position in the positive legislation in Kosovo. This phenomenon apart from causing consequences to an individual as a victim, at the same time it causes consequences also for other parts of the family. Domestic violence has been present also in the past in the Kosovo families, but of course with lower intensity by keeping total discretion within the family whereas access of the society in this problem was very small. Violence against women is a complex problem which includes more than an act itself in the personal relations between the husband and the wife. It is a social problem of broad dimensions whose roots are found in the historic attitudes on women and the marriage relations. Socialization of men and women in our society and nomination of women in inferior position and rules that keep women economically dependent, makes women more vulnerable on violence committed by men with whom they live. This victimization of women from their husbands is strengthened from economic situation, mentality and tradition as well as not well awareness among the population on the domestic violence. A phenomenon which increased the number of various forms of violence against women is also Pandemic COVID - 19 who as the consequence of isolation of families within closed environments has had an impact to a category of irresponsible spouses to undertake various forms of violation against women. Violence against women is a serious problem and it deserves big attention of authorities (national and international). There are dozens of years during what this problem has been put in the agendas of many national and international organizations state or nongovernmental organizations. At the international level this attention has resulted with a number of conventions, legal norms, political agreements, directives, recommendations and practical advices. Paper concludes that the denunciation without hesitation and the total respect of these norms with the zero tolerance against the perpetrators of the domestic violence is the only solution to minimize this phenomenon.
Keywords: violence against women, Covid 19, victimizations, norms, legal.
JEL Classification:K32
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