Constitional law

This is a short paper on the interpretation of the figure of the Japanese Emperor from three perspectives: historical origin, anthropological reading and its role in the Japanese constitutions of 1889 and 1946. The main objective is to provide a better understanding for the figure of the Emperor of Japan and his cultural, political and social importance right now, just on the verge of the beginning of a new era for the country.

The Nigerian National Assembly recently passed the independent candidature bill in the ongoing constitutional amendment. This is coming on the heels of avalanche of reports on electoral reforms recommending the introduction of independent candidacy into Nigeria's electoral system. Without doubt, there is broad national consensus on the need for Nigeria to join the comity of democratic nations by mainstreaming independent candidacy in the electoral process. The electoral system as presently constituted does not create a level playing field for every citizen. The constitution under Sections 65(2)(b), 106(d); 131(C) and 177 (C) read alongside section 221 clearly stipulates that candidates must be sponsored by political parties and only parties can canvass for votes. This is probably the basis of the appearance of party' logo on ballot papers as against names or photos of candidates. This position has been upheld by the courts in a number of cases. The most recent is the case of Faleke Vs INEC where the court inter alia held that in tandem with Section 221 of the Constitution, it is the party that wins election. " There so gainsaying that the 1999 constitution is a compendium of contradictions. The same ground norm that guarantees citizens freedom of association and expression makes membership of political party criteria for seeking for political office. Unfortunately, the constitution also restricts/limits voter choices to candidates presented by parties and political godfathers even where the candidates are unqualified, morally bankrupt and incompetent.

It has been argued that the constitution of a country is the embodiment of, or a response to, its particular history, political values, culture, and, indeed, its very identity. But in the last two decades, we have witnessed a dramatic resurgence in the study of comparative constitutional law. How should we understand the relationship between the widely held view that constitutions are the quintessential national documents and the increasing migration of constitutional ideas across the globe? In my Trudeau Lecture, I examine the importance of comparative engagement in the drafting of the Canadian Charter of Rights and Freedoms, and the rise of the “Canadian model” for managing secessionist conflict in the 1990s. I also reflect on the way in which my immigrant identity—itself the product of globalization—has shaped my scholarship on the Canadian constitution.

The Constitution of the Republic of South Africa, 1996 ('the Constitution') is the supreme law of the state and any law inconsistent with it is invalid. This means that the Constitution is the highest law of the state and it has to at all times provide clear direction especially in the governing of the state. However, the Constitution appears to in part, fail to provide a clear direction in terms of the appointment of the Public Protector, the National Director of Public Prosecutions and the Chief Justice. The manner in which these appointments are can be improved to the better.

Results from the first statistically significant study of the causes of cost escalation in transport infrastructure projects are presented. The study is based on a sample of 258 rail, bridge, tunnel and road projects worth US$90 billion. The focus is on the dependence of cost escalation on: (1) the length of the project‐implementation phase, (2) the size of the project and (3) the type of project ownership. First, it was found, with very high statistical significance, that cost escalation was strongly dependent on the length of the implementation phase. The policy implications are clear: decision‐makers and planners should be highly concerned about delays and long implementation phases because they translate into risks of substantial cost escalations. Second, projects have grown larger over time, and for bridges and tunnels larger projects have larger percentage cost escalations. Finally, by comparing the cost escalation for three types of project ownership - private, state‐owned enterprise and other public ownership - it was shown that the oft‐seen claim that public ownership is problematic and private ownership effective in curbing cost escalation is an oversimplification. The type of accountability appears to matter more to cost escalation than type of ownership.

Prime Minister Justin Trudeau has committed the government to do what is needed to ensure Canada meets or exceeds its national climate targets under the Paris Agreement. While he has promised to work collaboratively with the provinces in establishing a pan-Canadian clean growth and climate framework, it is clear that some new federal climate laws will be required. There are many factors involved in selecting and designing climate policies, one of which is constitutional jurisdiction. This article analyzes Parliament's authority to regulate greenhouse gas (GHG) emissions and implement a carbon price, either through a national carbon tax or a national emissions trading scheme. Taking into account recent jurisprudence and previous scholarship, the article considers five federal powers: Peace, Order and Good Government (P.O.G.G.), criminal law, taxation, trade and commerce, and the declaratory power. It also considers the spending power. The analysis shows that there is ample authority within the Constitution for a strong federal role in regulating GHG emissions and pricing carbon without displacing appropriately scoped provincial climate programs. While thoughtful legislative drafting will be important, ultimately the Canadian Constitution's division of powers is adequately equipped to deal with what may be the greatest public policy challenge of our time. In fact, climate change is perhaps the quintessential issue for engaging the tools of cooperative federalism and progressive interpretation of our Constitution.

Le premier ministre Justin Trudeau s'est engagé à ce que le gouvernement fasse ce qui est nécessaire pour que le Canada respecte ou dépasse ses objectifs climatiques nationaux en vertu de l'Accord de Paris. Même s'il a promis de *332 travailler en collaboration avec les provinces afin d'établir un cadre pancanadien en matière de croissance propre et de changement climatique, il est clair que certaines nouvelles lois climatiques fédérales seront nécessaires. Plusieurs facteurs entrent en jeu dans le choix et la conception des politiques climatiques, dont l'une est la compétence constitutionnelle. Dans cet article, l'auteure analyse le pouvoir du Parlement lui permettant de réglementer les émissions de gaz à effet de serre (GES) et mettre en oeuvre un prix du carbone, soit par le truchement d'une taxe nationale sur le carbone ou d'une bourse nationale du carbone. Tenant compte de la jurisprudence récente et des précédents travaux, l'auteur considère cinq pouvoirs fédéraux: paix, ordre et bon gouvernement, le droit pénal, la fiscalité, le commerce et le pouvoir déclaratoire. Il tient également compte du pouvoir de dépenser. L'analyse montre qu'il y a des pouvoirs amplement suffisants au sein de la Constitution pour que le gouvernement fédéral joue un rôle de premier plan dans la réglementation des émissions de GES et la tarification du carbone sans avoir à modifier la portée des programmes climatiques provinciaux. Même s'il est important que la rédaction législative soit réfléchie, en fin de compte, le partage des compétences de la Constitution canadienne est suffisant pour faire face à ce qui peut être le plus grand défi de la politique publique de notre temps. En fait, le changement climatique est peut-être la question par excellence pour mobiliser les outils du fédéralisme coopératif et l'interprétation progressive de notre Constitution.

During the First World War the Australian government arrested and interned without trial  members of the Irish National Association who were alleged to be members of the Irish Republican Brotherhood pledged to overthrow British rule in Ireland. The case raises legal and human rights considerations, such as as how far governments can and should go in stifling free speech in war time. Those considerations have relevance today given recent legislation dealing with national security in the so-called “war on terror”.

The coronavirus pandemic is not only a public health crisis. Its brutal effects on our lives have also been manifested in numerous other ways, including sabotaging world's economy, devastating our social and mental health and threatening the very survival of many political institutions that we had claimed as quintessential to modernity and far from fragility. One of such institutions is democracy. COVID-19 has prompted a lot of governments around the world to enact emergency measures that drastically expand executive power and curtail freedoms in the name of disease prevention, and Hong Kong is no exception.
Of course, emergency legislations themselves are not novel to legal systems globally and are of course not inherently detrimental to the healthy functioning of democratic institutions. What matters is whether adequate checks and balances are similarly instituted to pre-empt the improper and disproportionate deployment of emergency measures that may create irreversible harm. This very much depends on the existing democratic institutions, whether they are healthy enough to withstand such affronts. Against this background, it should not come as a surprise to many that threads of news reports lamenting that further democratic backsliding  started to appear since February as leaders of countries which already possess a track record of de-democratisation have capitalized on this opportunity to further weaken democracies.

One most prominent example is Hungary. Prime Minister Viktor Orbán, with the help of Parliament which his Fidesz party occupies a supermajority of seats, passed an Enabling Act in late March which indefinitely suspended Parliament and allowed him to rule by decree until the law is revoked. The sweeping powers conferred, as critics noted, push Hungary further to the category of autocracy. Although the government has announced its intention to withdraw the Act in late May, longlasting consequences are nonetheless anticipated as substitution bills are also put in place.

Against this backdrop, contributors in this issue, many of them coming from Hungary themselves, discuss the causes, characteristics and impacts of the emergency legislation in Hungary and beyond. They include Dr. Antal Attila, Professor Attila Ágh, Professor Tímea Drinóczi, Professor Umut Korkut and Professor Matthijs Bogaards. The Government and Laws Committee thanks all our authors and wishes an enjoyable read for all our readers.

The article presents the issue of compliance of the Polish Constitution with the Act of 11 September 2015 on the entitlement to the property of the Holiday Employee Fund (Dz.U. No. 1824). The author presents the origins of the organization, and what changes have taken place in its legal status. The Act regulating the status of assets after Holiday Employee Fund was declared unconstitutional in 1997. The legislator had to regulate this issue again, which did not happen until 2015. The author estimates the new regulation based on the constitutional principles of protection of property rights, democratic rule of law, non-retroactivity and certainty of real estate transactions.

When considering Italy's citizens' rights to direct participation in politics their fundamental rights, as enshrined in the Constitution, are rather scarce and insufficient. Italy's Constitution does not provide the two basic pillars of a working direct democracy: the popular initiative and the facultative  (optional) referendum on domestic State acts. Moreover, several regulations such as the quorum of participation of 50 percent and other bureaucratic hurdles put strict limits on the practice of direct participation of the citizens. The paper explains a complete project of reform of all concerned articles of the Constitution including the proposed text of single articles to be amended.

If lawyers are willing and able to lie to federal courts and judges on the scale documented by this case then we have a national problem of lawyer
honesty which federal courts should take into account, especially given the erosion of this nation's traditional adversarial system of justice.

The White Paper on a National Water Policy somewhat inelegantly states that there shall be a right to water or an authorisation to use water only for environmental and
basic human needs. However, the National Water Act defines “entitlement” to mean a right to use water in terms of any provision of the act or in terms of an instrument issued under the act. In the article it is investigated whether the entitlement to use water has remained a right in property or has merely become an authorisation that may be revoked at will. It is concluded that any water use entitlement is limited by constraints found throughout the act. These constraints developed because the concept of custodianship that underlies the concept of public trusteeship involves that a holder of a water use entitlement is in the position of a caretaker when exercising his water use entitlement.
A water use entitlement existing in terms of the act is a water use right like its predecessor. The water use entitlement may be regarded as constitutional property because section 22(7) of the National Water Act prescribes the payment of compensation for the infringement of a water use entitlement in certain circumstances. The amount of the compensation is to be determined in accordance with section 25(3) of the constitution. It implies that the water use entitlement, limited as it is, has been recognised by the legislature as constitutional property. A water use entitlement must thus be seen as more than a mere authorisation to use water.

Нестерович В.Ф. Децентрализация как конституционный принцип осуществления публичной власти на региональном и местном уровнях
Nesterovych V.F. Decentralization as a constitutional principle of exercising public authority at regional and local levels