Public Governance, Administration and Finances Law Review

Should Liberal Democracy Respect Group Rights that Discriminate against Women and Apostates?

Cohen-Almagor Raphael — 2023-06-30

The paper examines the limits of state interference in proscribing cultural norms by considering gender discrimination, right of people to leave their community free of penalties, denying women appropriate education, and forced or arranged marriages for girls and young women. The discussion opens by reflecting on the discriminatory practices of the Pueblo tribes against their women and analysing an American court case, Santa Clara v. Martinez. It is argued that the severity of rights violations within the minority group, the insufficient dispute-resolution-mechanisms, and the inability of individuals to leave the community if they so desire without penalty justify state intervention to uphold the dissenters’ basic rights. Next, a Canadian case, Hofer v. Hofer, illustrates the problematics of denying reasonable exit right to members who may wish to leave their community. Subsequently, the discussion turns to the issue of arranged and forced marriages of girls and young women. While the latter is coercive the former is not. While forced marriages should be denounced as unjust, arranged marriages can be accepted. Finally, the paper considers denying education to women, arguing that such a denial is unjust and discriminatory.

‘Hamlet Without the Prince’ – The U.S. Supreme Court on Religious Practice

Kovács Helga — 2023-06-30

The Supreme Court of the United States of America has recently issued a decision in several cases that are closely related to First Amendment rights. In doing so, the Court has changed its own set of criteria from its earlier practice. The reasons for these decisions have attracted increased interest among practitioners and academics, as it is a long time since the Court has so clearly distanced itself from its own precedent and called lower courts to account for failing to take certain criteria into account. By analysing the Court’s reasoning on the role of history and tradition and the compelling nature of religious belief, this paper seeks to answer the question whether the change in the Supreme Court’s practice can indeed be considered truly substantial. I argue that the change is significant, but as a process is not without precedent, and is not necessarily unacceptable in terms of its consequences.

Commentary on the Right to Education

Onuora-Oguno Azubike — 2023-06-30

The right to education is identified as a crucial and classical right. This classification is premised on the fact that it provides the basis on which an individual has the potential to transform their status and build their desired personality. Additionally, it is the basis on which society is projected to be transformed and set on a better pedestal, with individuals playing positive roles. The recognition of the right, though emanating from the Universal Declaration of Human Rights (UDHR) received only tacit recognition through other treaties. The Maputo Protocol recognises the right to education, as it flows from the African Charter on Human and Peoples’ Rights. This commentary, therefore, examines the right to education as enshrined in the Maputo Protocol with the aim of restating the grounds covered in the protection of female children and women and exposing lost opportunities. Finally, it makes recommendations on how the lost ground can be covered and give better content and scope to the right to education.

Constitutional and Administrative Law in Nigeria: Are They Instruments of Governance?

Adegbami Adeleke — 2023-06-30

Are constitutional and administrative laws in operation in the institutions and agencies of government in Nigeria? How effective are these laws at regulating the activities of the government in the country? Has the law enhanced the quality of services delivered by the government? What are the factors influencing the practice of public administration in Nigeria? Are these factors in consonance with administrative law? These are germane questions to which this study attempted to provide answers. It relies on secondary data, which were subjected to content analysis. The study argues that the 1999 Constitution of Nigeria, prepared by the government without legitimacy (the military), and handed over to the civilian administration some twenty-three years ago, with little or minor amendment to date, made the legitimacy of the government of Nigeria’s Fourth Republic questionable. And, apart from the faulty preparation of the constitution and some amendments made to it by the National Assembly, the elite, who appear to be above the law, do not allow the constitution to work. These elite are mainly among the legislature, the judiciary and the executive; they are all guilty of stemming and whittling down the power of the constitution, and the law of administration by their flagrant disregard for the rule of law and the constitution in their various capacities. This study therefore, concludes that, until Nigeria’s constitution is redrafted, and constitutional law and administrative law properly applied, quality or good governance will continue to elude the country.

Principles for the Europeanisation of Public Administration

Gerencsér Balázs Szabolcs — 2023-06-30

Administrative regimes are no longer isolated phenomena: they are constantly confronted with international influences, which shape the internal structure and system of the states. The cooperation between the European Union and the Member States’ administration is today a kind of convergence in principles. This is what the EU expects from the candidate countries and in the neighbourhood policy. The main question of the study is whether the content of the principles used by the EU is cognisable and consistent. The study covers two policy instruments: the SIGMA project, which is a joint EU–OECD collaboration, and the comparative legal activities of the ReNEUAL. These instruments testify two completely different attitudes: one does not explain the principle but holds it accountable, the other seeks the means to understand its content and the reasons for the differences in interpretations. Both programs have undergone internal development, but while SIGMA has moved away from its administrative procedural roots, ReNEUAL has confirmed it. The paper is another argument in favour of the need for administrative research using the tools of comparative law.

Tax Law in Slovakia under the Influence of Pandemic, Digital Transformation and Inflation

Štrkolec Miroslav — 2023-06-30

Tax law, as a branch of law belonging to the hard core of public law, is one of its branches that are characterised by instability rather than the stability of its rules. The reasons for the frequent changes in tax law can be found not only in political agendas and the economic view of taxes, but equally in external impacts, to which the legislature tries to respond promptly. The paper aims at clarifying the competing views on the position of tax law in the legal system and defining its functions, as they have been interpreted differently in different periods of social development. The paper then examines the significant changes in tax law in recent years, triggered by the Covid-19 pandemic, digital transformation and inflation, and assesses the extent to which these changes contribute to the fulfilment of the core, the fiscal function of taxes.

The Legal Status of Independent Regulatory Organs and Their Place in the Hungarian State Administration

Kálmán János — 2023-06-30

Independent regulatory organs as a type of administrative body were included among the central state administrative bodies upon the entry into force of the Fundamental Law of Hungary. The key feature of independent regulatory organs is that they also have the power to legislate within the framework of the regulatory authority’s activity; in other words, they can intervene in the relations of their administered sector through the creation of generally binding rules of conduct, which are enforced through the official activities falling within their scope of duties and powers. The characteristics of the legal status of independent regulatory organs and the components of their independence are therefore of particular importance in the system of public administration. The content and strength of their independence are not identical but are adapted to the professional content and EU and constitutional requirements of the specialised area of administration for which the Fundamental Law authorises the National Assembly to establish these bodies.

Central European with a Post-Socialist Limp

Novak Marko — 2023-06-30

According to David and Grasmann, the recognised comparative law scholars, there are basically three main criteria for differentiating between legal families and their subgroups: 1. meta-legal considerations; 2. legal sources; and 3. dogmatic legal structures. Concerning the last two criteria, which could also be designated as formal elements of a country’s legal identity, Slovenia has been deeply “immersed” in the civil law of a Central European type. Even after the decline of the Habsburg Empire, what remained to apply on the territory of nowadays Slovenia as part of the then Kingdom of Yugoslavia, was to an important extent Austrian law. Moreover, even the “decadent capitalist code” such as the Allgemeines bürgerliches Gesetzbuch (ABGB) more or less survived in spite of the communist “withering away of the state and law”, and can today still be applicable to some older cases. After one thousand years of Germanic dominance, the Slovenes turned to the East in trying to build their national identity, one hundred years ago when the Empire collapsed. Although that seemed to be a necessary move towards stronger national identity, it was their first step away from the rule of law. The second step away from that was the period of communism that endured almost half a century. Nevertheless, the formal part of the Central European legal identity somehow survived in Slovene law, with certain “injuries” of course, but it is mainly the meta-legal considerations, their sociological and psychological elements in particular, that nowadays make a difference between the situations of the rule of law in the Republic of Slovenia and, for example, in the Republic of Austria, both parts of the onetime joint Empire.