International Journal of Public Law and Policy

Carbonelli, Vincenzo

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.049335

This work underlines some of the main issues that Member States face in attempting to reconcile national tort law systems with EU goals in competition law. As a matter of fact, the very notion of private enforcement tends to achieve two different purposes: on the one hand, corrective justice and, on the other hand, a functional system of deterrence (§ 1). This difference between public and private aims could determine diverse misconstructions (§ 2), since social losses are not always the cause of private losses (§§ 3–4). In particular if private actions are indeed meant to propel protection of market fairness by conferring upon private citizens the role of ‘private attorney general’, as in the USA, compensation-based tort law systems seem ineffective. Moreover, it is not even correct to justify the private enforcement of antitrust discipline through an incoherent increase of consumer protection (§ 5), but it is necessary that Member States adopt special legislation on this point.

Bélanger, André ; Brock, Beau James

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.049337

Being a criminal defence lawyer is a special calling. Aside from dealing with the human element discussed above, they fight daily to see government acts within the bounds established by the Bill of Rights. Who else fights against warrantless searches? Confronts accusers? And who else jealously guards your right against self-incrimination, the right to counsel and the right to a speedy and impartial trial? No one other than the criminal defence lawyer, and this is how and why we do this work, for those most in need.

Cavaliere, Paolo

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.049333

Article 11 of the European Charter of Fundamental Rights contains an ambiguous reference to the value of pluralism. Such an unusual acknowledgment in a ‘bill of rights’ is likely to clear the way for a judicial enforcement of a ‘right to pluralism’ in the near future, as the European Court of Justice and the European Court of Human Rights already show signs of an evolutionary trend in this direction. The frictions between this judicial trend and the recent EU communication policies aimed at building up a European identity and public sphere might cause conflicting rationales and aims to clash.

Latipulhayat, Atip

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.049332

Protecting national interests (strategic sectors) has been a plausible argument behind the adoption of golden shares by many of the countries undertaking privatisation, including Indonesia. This legal device is primarily designed for social and political purposes and not commercial purposes. In its operation, therefore, the golden share deviates from the general principles of company law such as ‘one share one vote’ by creating special rights including veto rights. The golden share is the state’s control-based regulation, not an equity-based control. Due to this unique characteristic, the Indonesian Government should maintain the existence and application of the golden share mechanism in privatised strategic sectors, such as telecommunications companies. However, as the existing golden shares arrangements suffer from a lack of clarity about specific functions, i.e., protecting national interests, the government should specify its criteria and put these into specific legislation.

Agu, Chukwuma ; Achike, Anthonia

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.049336

In particular, countries of the South African Development Community (SADC) have been working to be fully integrated since the days of apartheid in South Africa. Given the positions of theory and official rhetoric, these countries’ trade among themselves should have far outperformed their current levels. With bilateral and multilateral tariffs at historical lows given unilateral, bilateral and multilateral trade liberalisation, it is expected that trade among these countries should grow phenomenally. However, progress in trade facilitation, the process of removing the ‘snags and stumps’ and reducing transaction costs is generally low among African countries and even more so research on the subject matter for most African countries. This paper is therefore aimed at providing preliminary evidence on the implications of trade facilitation on overall intra group trade within SADC, with emphasis on South Africa’s exports to the region and the rest of the world.

Mapuva, Jephias

2012 International Journal of Public Law and Policy

doi: 10.1504/IJPLAP.2012.049334

Constitutionalism in Zimbabwe has been characterised by controversy with citizens getting a raw deal. The colonial era was characterised by deprivation of basic rights and civil liberties. A plethora of constitutions were established to try and create a semblance of black representation. The post-colonial era was informed by governance structures provided by the Lancaster House Constitutional document which was a surrender document that brought the protracted liberation struggle to an end. The vagaries of the Lancaster House Constitution lived to haunt even those who fought for the country, leading to an expression of dissatisfaction with its contents. After successive indecisive elections conducted under the Lancaster House Constitution, the political and economic crises of 2008 led to an impasse and the signing of the Global Political Agreement which gave birth to the Inclusive Government. This paper will explore the general theory of constitutions from the Aristotelian classical perspective. Thereafter, the paper will also provide an overview of the concept of constitutionalism, followed by the case of Zimbabwe from the colonial era and the various constitutional documents that existed. The recent political development and the role of civil society herein represented by the National Constitutional Assembly (NCA) will be presented and how the civic group has articulated the constitution reform debate since its inception in 1997.