Perspectives of Law and Public Administration
Volume 11, Issue 3, October 2022
Table of Contents
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LLM. Walter D. GAVENI; Professor Kola O. ODEKU
1. AN ANALYSIS OF SALIENT PROVISIONS OF INTERNATINAL LAW INSTRUMENTS FOR HOLDING PERPETRATORS LIABILE FOR BREACH OF THE DUTY OF CARE TO THE ENVIRONMENT➤Abstract:The growing global concern in the perpetration of environmental crimes such as pollution and degradation at an international level by States have triggered massive promulgation of international law instruments to make ample provisions for the protection of the environment and at the same time to impose stringent sanctions to those who harm the environment. The obligation to protect or not to harm the environment has been conceptualized; “the duty to care for the environment” and the International environmental law have made States to also be the bearers of this obligation hence they ought to exercise careness in their daily activities in order to avoid causing harm to the environments in the territory of another State. An act of State done in breach of this obligation is faced with penal consequences which may take civil or criminal form. This paper therefore looks at the salient international instruments or laws that impose liability to States or international organizations who cause environmental harm.
Keywords: prohibition of pollution, environmental harm, environmental care, perpetrators, sanctions.
JEL Classification:K30, K33, K38
Page 352 - Professor Howard CHITIMIRA; Post-doctoral researcher Friedrich HAMADZIRIPI
2. AN ANALYSIS OF THE LEGAL IMPLICATIONS OF THE AFRICAN CONTINENTAL FREE TRADE AREA’S RULES OF ORIGIN ON ECONOMIC INTEGRATION AND CONSTITUTIONALISM IN AFRICA➤Abstract:There has been several efforts to liberalise economic integration in Africa by removing tariffs and non-tariff barriers to enhance the free movement of goods and services such as human capital and intellectual property in Africa. This is evidenced by a plethora of regional economic communities (RECs) that have been established in Africa. Some of the prominent RECs in Africa include the Economic Community for West African States (ECOWAS), the Common Market for Eastern and Southern Africa (COMESA), the Economic Community for Central African States (ECCAS), the East African Community (EAC) and the Southern African Development Community (SADC). Almost every African state belongs to at least one REC. Unfortunately, most of these RECs have failed to promote economic integration among their member states. This could be attributed to several factors which include ambiguity on the status of REC decisions and resolutions in member states, complex rules of origin and dysfunctional decision-making, dispute resolution and enforcement mechanisms of the RECs. However, the promulgation of the African Continental Free Trade Area (AfCFTA) agreement has seen the dawn of a new era to liberalise economic integration at continental level in Africa. The technicalities surrounding the rules of origin could raise questions on the applicability of AfCFTA in Africa. It is imperative that drafters of the AfCFTA agreement learnt from the shortcomings of African RECs which are building blocks of the AfCFTA. In this article, the authors examine the legal implications of the AfCFTA’s rules of origin on economic integration and constitutionalism in Africa.
Keywords:economic integration; constitutionalism; rules of origin, African Continental Free Trade Area
JEL Classification:K22, K33
Page 363 - Lecturer Serghei TURCAN; PhD. student Dumitru JELESCU
3. LEGAL REGULATION OF THE PRINCIPLES TOTALIZATION AND VERIFICATION OF VOTING RESULTS➤Abstract:The objectives of the study: to research the electoral process; to establish the stages of this complex system; to highlight its essential characteristics; to determine the category of principles of the final stage of the electoral process; to elucidate the essence of the possible principles of aggregating and verifying the results of voting; present and substantiate the content of each of these principles. The research methods used were analysis and synthesis, abstraction and generalization, classification and concretization, affirmation and denial, deduction and induction, etc. The results of the paper: we determined, characterized and demonstrated the following principles of totalization and verification of voting results: the principle of the integrity of the procedure counting of votes; the principle of accurate recording of election results; the principle of the integrity of the procedure for centralizing election results; the principle of parallel counting of votes; the principle of truthfully calculating the results of electronic voting; the principle of correctly announcing election results; the principle of timely publication of official results; the principle of verifying the election results; the principle of confirmation of election results; the conditions for implementing the electoral principles. The basis for this order and classification of the principles of totalization and verification of voting results was the content and sequence of sub-stages of the final stage of the elections. In this order, we have presented and substantiated the content of each of these principles.
Keywords: vote, voting, legal regulation, principle, totalization, verification, result.
JEL Classification:K16
Page 373 - Lecturer Valentina CORNEA; Associate professor Andreea Elena MATIC; Professor Florin TUDOR
4. POLITICAL AND LEGAL SOLUTIONS FOR THE IDENTITY CLAIMS OF GAGAUZ AND BULGARIAN ETHNIC GROUPS IN THE REPUBLIC OF MOLDOVA➤Abstract:In the present paper we aim to analyze the specific situations of several minorities groups Republic of Moldova has developed an ample legal framework for the protection of minority rights. The political and legal measures concerning the protection of minorities targeted to assign certain special forms and conditions of autonomy by establishing special statutes adopted by organic laws. There are put to the issue the interpretations of territorial and non-territorial autonomy as policies for the minorities’ protection. The study argues that any model of autonomy, whether territorial or non-territorial, is viable when it can provide three desiderata: The protection of ethnic identity, impact on human development and the maintenance of the national unity of the state. The choice of territorial or non-territorial autonomy must be weighed depending on the moral force of identity claims. The political and legal measures adopted by the Republic of Moldova by rendering territorial autonomy to Gagauz ethnicity disregard the basic criteria for assessing the claims of ethnic minorities, largely ignoring the normative political theory in the analysis of decisions that target the management of ethnic diversity. We suggest that for the Republic of Moldova a model of non-territorial autonomy will respond more effectively to identity manifestations, provided that they are assumed as “local management” in the ethno-cultural sphere, based on the principle of local autonomy and decentralization.
Keywords: democracy, minority, ethnic group, non-territorial autonomy, territorial autonomy, human rights.
JEL Classification:H83, K23
Page 386 - Senior lecturer Jean Chrysostome KANAMUGIRE; LLB student Osman Bantu FAKU
5. EMPLOYEES’ RIGHT TO FREEDOM OF EXPRESSION THROUGH SOCIAL MEDIA IN SOUTH AFRICA➤Abstract:Dismissal for social media misconduct is a common practice in South African constitutional and labour laws. It generally occurs when employees exercise their right to freedom of expression in social media which sometimes affects the employers’ right to a good name or reputation. Prior to the transition to democracy in 1994, employees experienced challenges in exercising their right to freedom of expression. Under the current constitutional era, this right is enshrined in the Bill of Rights and contains internal limitations and can also be limited by the law of general application. Nevertheless, there is no specific statute which deters the misuse of social media in South Africa. Employers often exercise disciplinary measures and dismiss employees for conducts that impede on their right to good name and reputation. It is often difficult for employers to dismiss employees as there are no specific guidelines on the regulation of social media misconduct with regard to the potential conflict between the employees’ right to freedom of expression and the employers’ right to dignity or good name in South African workplaces. This often leaves employers with no remedy when the conduct of the employees on social media, in their own personal capacity, has potential to damage the reputation of their employers either directly or indirectly. Employees should be responsible in the use of social media and always avoid any conduct that can damage the reputation of their employers. They can be held liable in case they damage the good name of their employers through social media.
Keywords: Freedom of expression, good name, reputation, social media misconduct, dismissal.
JEL Classification:K31, K33, K38
Page 394 -
Professor Anca-Lelia LORINCZ; Lecturer Adriana Iuliana STANCU
6. LEGAL NATURE OF THE DEPRIVATION MEASURE ORDERED DURING THE PROCEDURE FOR THE EXECUTION OF THE EUROPEAN ARREST WARRANT➤Abstract:In the framework of the procedure for the execution of the European arrest warrant, as a form of international judicial cooperation in criminal matters, it is necessary to take preventive measures of deprivation of liberty against the person requested by the issuing State. In order not to infringe the right to liberty and security of the requested person, deprivation of liberty through these measures must be carried out in strict compliance with the legal requirements set out in both international documents and domestic legislation of the Member States of the European Union. Compliance with the law can be ensured, however, only by developing clear, predictable legal rules that, as far as possible, do not give rise to different interpretations in judicial practice. From this perspective, starting from the finding of the non-unitary interpretation and application of some provisions of the Romanian special law on international judicial cooperation in criminal matters (Law no. 302/2004, republished), this study addresses the issue of the legal nature of custodial measures ordered prior to the resolution of the request for the execution of a European arrest warrant, respectively prior to the surrender based on a European arrest warrant, ending with a concrete proposal of law ferenda on completing these provisions in order to ensure a unification of judicial practice in the field.
Keywords: international judicial cooperation in criminal matters, European arrest warrant, the right to liberty and security of person, custodial measures, unification of judicial practice.
JEL Classification:K14, K33
Page 405 - Professor PhD. habil. Iulian NEDELCU; Lecturer Paul-Iulian NEDELCU
7. THE DIMENSIONS OF THE RULE OF LAW ACCORDING TO THE CONSTITUTIVE ACTS OF THE EU AND THE LISBON TREATY REGULATIONS OF THE RULE OF LAW IN EUROPEAN DOCUMENTS➤Abstract:In the construction of Europe, the rule of law is considered the foundation of all the values on which the European Union is based, and its observance is an indispensable condition for the observance of the other values of the Union, in other words, of its existence. In Article 2 of the Treaty on European Union, we find the provision that the rule of law is one of the fundamental values on which the Union is founded, which is joined in the text by respect for human dignity, freedom, democracy, equality and respect for human rights, including the rights of persons belonging to minorities. Given the importance attached to this principle, it is only natural to remain concerned and to ensure that all Member States comply with it at all times and that it is constantly monitored. In recent years, in various states, amid complex external situations and due to the economic crisis felt worldwide, there have been political actions considered to be "at the limit of the law", which were considered to affect the rule of law. All this has forced the Union to take concrete measures to strengthen the rule of law in order to prevent democratic slippages that could jeopardize the security of European construction. We will refer below to the regulations contained in the content of the Treaty of Lisbon applicable in situations of deviation from the rule of law.
Keywords: European law, European Union, administrative law, the rule of law.
JEL Classification:K23, K33
Page 416 - Associate professor Manol STANIN
8. RELATIVITY IN THE FREE USE OF COPYRIGHT OBJECTS UNDER THE THREE-STEP TEST➤Abstract:The free use of works by third parties is placed in normative dependence on three conditions which together form a legal basis for the free use of copyright objects without the consent of the author and payment of remuneration. This process is accompanied by the specifics of each case, given the relation author-object of artistic intellectual property, expressing his creative individuality and hence the needments that determine his legitimate interests in the work he created - the object of intellectual property. The admissibility of free use is also relevant to other dynamic quantities that characterize the matter subject to legal regulation. Maintaining a fair balance between the rights and interests of copyright holders and users of protected objects depends on compliance with the new electronic environment, as well as the proper and unhindered functioning of the internal market in the field of copyright and related rights. Legal relevance is given to another dynamic relation with elements of technological development and its consequences associated with the existence of new forms of use of copyright objects. The systemic conditionality of the above-mentioned factors predetermines the application of a systematic method of scientific research to find acceptable and effective solutions in the legal framework of the free use of works. These are circumstances that together form the preconditions for arguing relativity in the free use of works.
Keywords: legitimate interest, normal use, author, fundamental rights, public interest, balance, restriction, work.
JEL Classification:K38
Page 422 - Associate professor Camelia Daciana STOIAN; Associate professor Eugenia IOVĂNAȘ
9. PUBLIC ADMINISTRATION IN A EUROPEAN CONTEXT. CASE STUDY: POSSIBILITIES TO COMPLETE THE TRIAL PERIOD – PRACTICE AT NATIONAL LEVEL VERSUS PRACTICE OF THE EUROPEAN UNION CIVIL SERVICE TRIBUNAL➤Abstract:As social policy is outlined and its objectives stated in the provisions of Article 151 of the Treaty on the Functioning of the European Union, both the Union and the member states must be responsible for respecting "fundamental social rights such as those stated in the European Social Charter signed in Turin on 18 October 1961 and in the Community Charter of Fundamental Social Rights of Workers adopted in 1989". In the light of these goals, we are concerned with an analysis aimed at a legal and fair promotion and harmonization of the procedure for filling positions at the public administration level, with an emphasis on the protection of social rights and the harmonization of good practices developed, in conditions of honest social protection and combating exclusion and discrimination of any kind. It is therefore necessary, at a theoretical level, to take it for granted that the Union and all its member states implement practices aimed at favoring the harmonization of social systems. Concretely, however, we find that the applied procedures neglect the approximation of the issued administrative documents and any kind of common methodology, as long as a report is not regulated or applied at the national level that reproduces the conclusions of the verification of the professional skills of the employee at the end of the trial period. We propose in this article a substantiated analysis of the methods of termination of trial periods, so that the termination of employment contracts concluded during the trial period exclusively through a written notification, without notice and without any motivation, is no longer the concern of the courts, because the court cannot verify the existence or not of the professional aptitude in the absence of the presentation of some arguments by the employer that aim to fulfill or not within reasonable terms the assigned duties, certain difficulties in the service relationship or the degree of accommodation with the administrative and hierarchical system.
Keywords: professional skills, trial period, report at the end of the trial period.
JEL Classification:K23, K33
Page 427 - Ma. Sc. Fatime DËRMAKU
10. CIVIL DISPUTES BETWEEN LANDLORD-TENANT IN MEDIATION➤Abstract:Mediation is a dispute resolution mechanism between the parties on a dispute, which is characterized by: flexibility, time and monetary efficiency, confidentiality, as well as other elements that make it a suitable method for resolving disputes. The objective of this paper is to present the settlement of landlord-tenants disputes through mediation, as it is well known that the rent-lease relationship is a very widespread problem, in modern times. This paper was conducted as a literature review, through the following methods: descriptive, comparative, and analytical methods. Disputes between tenants and landlords cause a burden on the judicial system, reduced quality of life between the parties to the dispute and economic damage to both parties. Mediation, as an alternative process of dispute resolution has resulted to be an appropriate process for resolving landlord-tenant disputes due to time and monetary efficiency, maintaining positive relations between the parties and preventing individual and social economic damage.
Keywords: civil disputes, tenant, landlord, mediation.
JEL Classification:K12
Page 432 - Lecturer Anamaria GROZA; Lecturer Vali Ştefania ILEANA-NIŢĂ
11. THE PRELIMINARY DECISIONS ISSUED BY THE COURT OF JUSTICE OF THE EUROPEAN UNION AND THE JUDGMENTS FOR RESOLVING LEGAL ISSUES OF THE HIGH COURT OF CASSATION AND JUSTICE. COMPARATIVE STUDY ON THE ADMISSIBILITY CONDITIONS➤Abstract:The study intends to discover resemblances and differences between the judicial institutions of preliminary decisions in EU law and decisions on unlocking matters of law delivered by the Romanian SCJ, both in civil and criminal fields. Our interest is to clarify the deep significance of these resemblances and differences from the perspective of law systems and the jurisprudence of the ECJ and SCJ. In the third place, we intend to evaluate the utility of these mechanisms of interpreting law and unifying practice from a general perspective, hoping that a system can become a source of inspiration for the other system. The research is descriptive, explanatory and comparative, being accompanied by relevant doctrine and jurisprudence.
Keywords: preliminary decision, preliminary ruling, conditions of admissibility, unification of judicial practice, novelty of the legal issue.
JEL Classification:K33, K41
Page 435 - Independent legal consultant Nqobizwe Mvelo NGEMA
12. CHILD MARRIAGES IN THE CONTEXT OF BANGLADESH’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS➤Abstract:The marrying off of minor children that are below the age of 18 years has been common in Bangladesh for more than a century. The objective of the study is to discuss the legislative framework that regulates child marriages in Bangladesh and assess whether there is any progress made or not. The second objective is to discuss the main causes of child marriages and assess whether Bangladesh has complied with its international human rights obligations or not. The study adopted the desktop research and relied on the information available on books, journals and legislation. The study found out that there is no political will to end child marriages because the legislative framework forbids child marriages but also permits it if it is condoned by the parents and the courts. Islamic law is the major cause of the prevalence of child marriages because it permits and tolerates child marriages and 90 per cent of the population subscribes to it. Bangladesh failed to comply with its international human rights obligations.
Keywords: legislation permits child marriages, violation of human rights obligations; Islamic law as major reason for prevalence of child marriages.
JEL Classification:K36
Page 448 - Associate professor Corina PETICĂ ROMAN
13. SOME CONSIDERATIONS REGARDING APPEAL EFFECTS IN JORDANIAN LEGISLATION➤Abstract:In the civil tradition, the right of appeal has a primary importance, as a fundamental safeguard of justice. The function of the Court of Appeal is to provide an appellate hearing of right, from any judicial decision of courts of first instance. On this occasion the entire record is brought before the superior Court for consideration and review, both the facts and the law. In Jordan, Courts of Appeal hear all cases of appeal from judgements of the Court of First Instance and all cases of appeal from the Magistrate’s Court, which are not heard by Courts of First Instance. A three judge panel considers all matters raised in the Court of Appeal.
Keywords: Court of Appeal, appellate hearing, judgement, courts of first instance, three judge panel, double jurisdiction.
JEL Classification:K41
Page 456 - Lecturer Ovidiu-Horia MAICAN
14. NEW EVOLUTIONS OF MILITARY JUSTICE➤Abstract:In the last years, military justice systems have been a problem for several reforms in some European states. The push for modernisation processes stems from the reality that military justice in some states wants to increase its truthful trial guarantees inside their legal framework. Recently, the existence of many ordinary military tribunals has been put at stake. Many critics reflect on consideration on military justice is being known as into query due to the alleged nonimpartiality of military courts and global law developments. Some military courts no longer exist on their own, military judicial competences have been embedded into or transferred to civilian courts. A few standing army courts have been abolished, while others nevertheless exist, albeit their roles and obligations for the duration of peacetimes are very modest. Some states permit the introduction of ad hoc tribunals to face specific conditions such as the case of a war, and this is provided for by way of their respective constitutions. Military justice and civil justice are regarded two separate systems.
Keywords: law courts, civil justice, military justice, differences, reforms.
JEL Classification:K15
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