Commonwealth Law Bulletin

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  • ISSN
    1750-5976

Publications in this journal

  • [Show abstract] [Hide abstract]
    ABSTRACT: This article considers a unique feature of co-operation within the Commonwealth, the Commonwealth Schemes aimed at enhancing international co-operation in criminal matters. It focuses in particular on the Scheme relating to Mutual Assistance in Criminal Matters within the Commonwealth, commonly referred to as the Harare Scheme.
    Commonwealth Law Bulletin 01/2012; 38(1):119-125.
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    ABSTRACT: This article highlights various aspects of competition law in Pakistan. It aims to give an account of the historical evolution of competition law in Pakistan over time, underscoring the salient characteristics of legislation; to identify the institutional structure in charge of applying competition policies, featuring its form, powers and functions; and to assess the effectiveness of the regulatory agency as a principal authority for the application of competition policies with the aim of preventing or remedying possible anti-competitive conduct. This article comprises five parts. Part I introduces the topic. Part II focuses on the different phases Pakistan’s competition law has passed through. Part III outlines salient features of the law. Part IV highlights the institutional framework with detailed working mechanism, powers and functions as revealed by the law. Part V contains concluding remarks necessary for effective enforcement of the law.
    Commonwealth Law Bulletin 01/2012; 38(1):43-62.
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    ABSTRACT: This paper analyses section 65(1) of the Constitution of Malta, a provision that empowers parliament to make laws subject to certain restrictions, within the context of Malta’s dualism. Although parliament is subservient to the Constitution, the 2003 amendments made by the European Union Act to section 65(1) have further curtailed parliament’s law-making function. Parliament has to observe five new standards when enacting legislation. These standards have brought about a shift from Malta’s dualist approach to law making towards a mixed one of dualism/monism. The paper concludes that there is an inconsistency between section 6 of the Constitution proclaiming the Constitution to be suprema lex and section 3 of the European Union Act announcing European Union law as supreme law. However no conflict should arise in practice once Maltese law, in terms of section 65(1), has to confirm with Malta’s regional obligations including those assumed under the European Union Accession Treaty.
    Commonwealth Law Bulletin 01/2012; 38(2):217-249.
  • Commonwealth Law Bulletin 01/2012; 38(2):371-372.
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    ABSTRACT: The Gambia, the smallest mainland country in Africa, is increasingly a transit point for illicit drug traffic between Latin America and Europe. As part of President Yayeh Jammeh’s attempts to crack down on this drug trade, in October 2010 the Gambian legislature passed a mandatory sentence of death for drug trafficking for persons possessing more than 250 grams of cocaine or heroin. The law was not constitutionally operable, however, because of Article 18(2) of the Gambian constitution, which forbids the death penalty for crimes other than aggravated or premeditated murder. Consequently, the death penalty for drug trafficking was abolished in April 2011.
    Commonwealth Law Bulletin 01/2012; 38(1):63-67.
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    ABSTRACT: Directors’ duties to manage their company’s affairs originate from many sources. In Malaysia the sources of directors’ duties to the company are the common law, equity and statutory provisions. Directors’ duties can also exist from a company’s constitution and such duties can be contractual (contained in the letter of appointment). Under common law, directors have a duty of care and skill, while directors’ fiduciary duties of loyalty and good faith evolved under equity. These duties operate in parallel with the statutory duties imposed by the Malaysian Companies Act (CA) 1965. After the first major attempt at updating the CA 1965 via the Companies (Amendment) Act 2007, several changes were made to the law relating to common law, equitable and statutory duties of directors. This article examines the changes to the CA 1965 concerning duty of care and skill and fiduciary duties of directors of Malaysian companies. It also analyses the business judgment rule.
    Commonwealth Law Bulletin 01/2012; 38(2):251-265.
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    ABSTRACT: This article examines Nigeria’s pollution abatement laws. It highlights some of the problems of these laws, as well as other factors hindering the control of environmental pollution in Nigeria. The article suggests a comprehensive review of most pollution abatement laws with a view to entrenching adequate penal sanctions and enhancing the powers of regulatory institutions and also increasing public participation in environmental protection.
    Commonwealth Law Bulletin 01/2012; 38(2):321-346.
  • Commonwealth Law Bulletin 01/2012; 38(2):372-373.
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    ABSTRACT: More than 20 years after the establishment of legal aid services in Ghana, many accused persons still go through trials without being represented by a lawyer. Behind the backdrop of international standards on the provision of legal aid, and the constitutional history of legal aid in Ghana, this article looks at challenges facing lawyers in the provision of legal aid services in Ghana. The article is an addition to the global debate on the provision of better legal aid services for the indigent in society.
    Commonwealth Law Bulletin 01/2012; 38(1):105-117.
  • Commonwealth Law Bulletin 01/2012; 38(1):190-193.
  • Commonwealth Law Bulletin 01/2012; 38(2):373-376.
  • Commonwealth Law Bulletin 01/2012; 38(1):193-195.
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    ABSTRACT: This article considers the constitutional protections provided to magistrates in the Commonwealth Caribbean. It explores decisions of the Privy Council that have stated that: first, removal of magistrates could only be made where there is reasonable cause for such removal after proper inquiry into the matter; and, second, contractual damages are payable for breach of contract but vindicatory damages are also payable to vindicate the constitutional right of the magistrate. The article also considers the relationship between the contractual provisions by which the services of magistrates might be terminated and the provisions of the Constitution relating to removal of magistrates. Additionally, it examines the question of whether short-term and temporary contracts for magistrates are permissible under the Constitution.
    Commonwealth Law Bulletin 01/2012; 38(2):199-216.
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    ABSTRACT: Despite the legal, moral and social complexities that shroud surrogacy, there is nothing stopping people from exploring the possibility of becoming a parent. Women who may choose to ‘rent’ their womb for a surrogate pregnancy are slowly shaking off their inhibition and fear of social ostracism to bring joy to childless couples. However, India’s Assisted Reproductive Technology (Regulation) Bill & Rules 2010 has legal lacunae, lacks the creation of a specialist legal authority for adjudication and determination of legal rights of parties by a judicial verdict, and falls into conflict with existing laws. These pitfalls may be the graveyard of this proposed new law.
    Commonwealth Law Bulletin 01/2012; 38(1):31-41.
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    ABSTRACT: The following article sets out the origins, vision and objectives of the International Association of Prosecutors (IAP). Some aspects of the IAP’s work programme are described and the content and status of the published IAP Standards for Prosecutors are addressed. The benefits of membership and the criteria for membership of the IAP are explained, and there is also a summary of available IAP publications and an outline of some forthcoming events of interest.
    Commonwealth Law Bulletin 01/2012; 38(2):347-350.
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    ABSTRACT: Chapter VII of the Nigeria Sheriffs and Civil Process Act is modelled along the Australian Service of Process Act and provides for service of claim forms obtained from one state on a defendant in another state, subject to certain prescribed endorsements on the claim form, in the same way as if the service were done in the state of issue of the claim form. This and other provisions of the Act ought to warrant the treatment of service in another constituent state of the Nigerian federation of originating court process differently from service outside the country. Unfortunately the policy thrust of the chapter has not been honoured by the courts, who have treated a sister state as the English courts would treat another country: by imposing the condition that leave of court should be obtained. The courts have also failed to appreciate that the chapter generally recognises the writ rule and vests personal jurisdiction over a defendant on the court of issue of the claim form, while providing grounds for defendants to protest jurisdiction. This latter attitude is a result of the general lack of appreciation of the difference between choice of jurisdiction and choice of law in the conflict of laws, resulting in the wrong application of local venue rules and in rejecting jurisdiction conferred at private international law on the ground of territorial limit of jurisdiction to causes having foreign or inter-state connection. On the other hand, the courts have wrongly applied the provision of the chapter to claim forms obtained from the Federal High Court whose jurisdiction already extends to the whole country. This article critically examines the state of the case law on these as well as the effect of non-compliance with the requisite endorsements and also identifies that where defendants are sued in their state of residence, the court can neither on the excuse of the Sheriffs and Civil Process Act nor on the excuse of the rule of private international law, decline jurisdiction on the ground that the facts occurred elsewhere.
    Commonwealth Law Bulletin 01/2012; 38(1):69-90.
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    ABSTRACT: South African legislation makes it an offence for a person to drive a vehicle on a public road while the concentration of alcohol in any specimen of blood or breath is in excess of the prescribed minimum. If it is proved that a sample taken within two hours of the alleged contravention is in excess of the prescribed minimum, it shall be presumed that the concentration of alcohol was above the prescribed minimum at the time of the alleged offence. Under South African law the suspect is not afforded the opportunity to confer with or to be assisted by counsel when the sample is taken in this crucial timeline. In this article I investigate whether the suspect is entitled to counsel during this two-hour period and if so, whether the suspect’s right to counsel is being violated. I also investigate whether evidence of the sample should be excluded.
    Commonwealth Law Bulletin 01/2012;
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    ABSTRACT: This article draws on the views of judges expressed both judicially and extra-judicially. It identifies the similarities between the two roles: umpires and judges are not players in the game; neither may favour a particular team. It then examines decision-making as the core function of both roles. It describes judicial decision-making as a process comprised of four elements, namely: identifying the applicable rules; interpreting the applicable rules; applying the applicable rules; and making new applicable rules. Utilising this framework the article considers the decision-making function of judges, concluding that judicial decision-making is far more complex and elusive than umpiring.
    Commonwealth Law Bulletin 01/2012; 38(1):3-29.
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    ABSTRACT: The new formulation of a positive duty in the UK under the common law to disclose own misconduct as was laid down in Item Software v Fassihi ([2003] 2 BCLC 1 (High Court)) has not been considered favourably in other common law jurisdictions. This article provides a case commentary on the judicial decision, considers whether the creation of the positive duty was necessary within the facts of Item Software, provides an overview of its reception by other Commonwealth jurisdictions, and analyses this case in the context of the available remedies. The article concludes by suggesting that the creation of the duty to disclose should also be considered from the perspective of what would be the remedies that the company ought to get by the directors’ failure of a duty to disclose.
    Commonwealth Law Bulletin 01/2012; 38(1):91-103.
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    ABSTRACT: This article examines the history, structure and current role of the Commonwealth Association of Legislative Counsel (CALC). CALC is the main organisation of legislative counsel, or legislative drafters, in the Commonwealth. CALC consists of 1000 members spread across the Commonwealth. Major activities include raising awareness of the importance of legislative counsel to the rule of law, conducting conferences of legislative counsel and producing a number of publications related to legislative drafting. The author is the head of the Australian Office of Parliamentary Counsel and the current President of CALC.
    Commonwealth Law Bulletin 09/2011; 37(3):453-459.

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