PRINCIPLES OF SOMALI ADMINISTRATIVE LAW

1. PRINCIPLES OF SOMALI ADMINISTRATIVE LAW THE LAW AND THE STATE:

2. PRINCIPLES OF SOMALI ADMINISTRATIVE LAW Chapter I: THE LAW AND THE STATE: • GENERAL CONCEPTS. • 1. Each human community must necessarily regulate its activity' and the relations between its components on the basis of a set of rules, the imperatives of common rules of conduct. • These rules of conduct, based on common consensus, are said “legal rules” (normegiuridiche). • And the set of rules governing a given society it says “legal system”. • the legal system is common to every society', what we are going to study is legal system of more' complex form of society: the State.

3. If the concept of the legal system is common to every society', what we are going to study is legal system of more' complex form of society: the State. • The State is an original local social body, which brings together under its sovereignty 'and, according to its law, all living individuals within a given space, for purposes of the common conservation and progress. • More briefly the State is the legal organization of a people who are living permanently in a territory, and exercises on it exclusive powers and sovereign.

4. There are three elements whose simultaneous existence identifies a State: • a) -a people, constituting the social communities whose members are citizens of the state; • b) -a territory is the Earth's surface space permanently occupied by the people, and distinct from the territory of other States in their own geographical and political borders. • c) -a legal system, which gives the community the original character and sovereign entity. • These latter attributes are those that identify the essential feature of the State

5. 3. The purpose of the state is the outstanding of the community '. • That expression must be understood not only in static sense, that as a mere protection order as conservation and protection of the social body, but also and above all in a dynamic sense, that' as regular effort towards progress, as an improvement of the society.

6. Sovereignty 'and the state function: • 1. Sovereignty 'or public powers is the ability' of the State to decide its own will ‘( to formulate imperatives without any external dependency), and at the same time to implement it compulsorily, which means 'to impose compliance to all subjects subordinate to it in the context of time and space that the state is own. Without this double requirement sovereignty is not conceivable, and the State cannot' be said to exist, as such, in the legal world. • In the modern world, legal-political foundation or basis of the sovereignty of the State is the will 'of the people "democratic principle". • This principle - also preserved (sancito) in the Preamble and Art. 1 of the Somali Constitution implies/indicates internationally the right to self-determination of the people and internally the right of citizens to depend on the form of government and the putting in place of the rulers by the freely expressed choice of the legal majority in proper compliance with the minority (2). • 2- democracy is direct if the sovereignty' is exercised by the people in the immediate form (for example, by referendum or plebiscites (unanimity); and democracy is indirect or representative, if sovereignty' is exercised by the people in mediated form (that is through elective representative). • The democratic form of the Somali Republic is representative as article 1 of the Constitution. • 2. The sovereignty 'of the State is exercised in three main sectors/areas, each of which identifies a different function and a different type of activity'. • However, it consists of: • a) -First, the enactment of primary legislation (Law in the broadest sense), through which the legal system of the State is created, modified or integrated in accordance with the changing needs of the social communities: reality in permanence become important which is reflected in becoming legal; • b) -then, the execution of the activities' necessary to the achievement of public purpose abstractly provided for by the legal system, through the adoption of special measures (executive acts or administrative acts in the broadest sense), they make from time to time; • c)- the protection of the legal system with respect to any possible breach of its rules, by issuing authoritative rulings ( "sentence" in a broad sense), designed to crack down on abuses, to disregard or ignore the unfounded claims of various subjects, to declare and implement the exact will 'of the law in each case. • Remain thus outlined three basic and essential functions of the State: • -the first is' the formation of legal system, it is called "legislative"; • -the second is the actual achievement of community goals, traditionally it is "executive" (or "administrative" in the broadest sense); • -the third, which is 'the conservation and protection of the rights, is called "judicial"

7. Sovereignty 'and the state function: • 1. Sovereignty 'or public powers is the ability' of the State to decide its own will ‘( to formulate imperatives without any external dependency), and at the same time to implement it compulsorily, which means 'to impose compliance to all subjects subordinate to it in the context of time and space that the state is own. • Without this double requirement sovereignty is not conceivable, and the State cannot' be said to exist, as such, in the legal world.

8. In the modern world, legal-political foundation or basis of the sovereignty of the State is the will 'of the people "democratic principle". • This principle - also preserved (sancito) in the Preamble and Art. 1 of the Somali Constitution implies/indicates internationally the right to self-determination of the people and internally the right of citizens to depend on the form of government and the putting in place of the rulers by the freely expressed choice of the legal majority in proper compliance with the minority (2).

9. 2- democracy is direct if the sovereignty' is exercised by the people in the immediate form (for example, by referendum or plebiscites (unanimity); and democracy is indirect or representative, if sovereignty' is exercised by the people in mediated form (that is through elective representative). • The democratic form of the Somali Republic is representative as article 1 of the Constitution.

10. 2. The sovereignty 'of the State is exercised in three main sectors/areas, each of which identifies a different function and a different type of activity'. • However, it consists of: • a) -First, the enactment of primary legislation (Law in the broadest sense), through which the legal system of the State is created, modified or integrated in accordance with the changing needs of the social communities: reality in permanence become important which is reflected in becoming legal;

11. b) -then, the execution of the activities' necessary to the achievement of public purpose abstractly provided for by the legal system, through the adoption of special measures (executive acts or administrative acts in the broadest sense), they make from time to time; • c)- the protection of the legal system with respect to any possible breach of its rules, by issuing authoritative rulings ( "sentence" in a broad sense), designed to crack down on abuses, to disregard or ignore the unfounded claims of various subjects, to declare and implement the exact will 'of the law in each case.

12. Remain thus outlined three basic and essential functions of the State: • -the first is' the formation of legal system, it is called "legislative"; • -the second is the actual achievement of community goals, traditionally it is "executive" (or "administrative" in the broadest sense); • -the third, which is 'the conservation and protection of the rights, is called "judicial"

13. 3. The executive function is what more' directly affects our study- can 'move closer to the judicial function in terms of its content, since it presupposes a general and abstract legal system to be implemented in a particular case; • Also can, as an alternative, move closer to the legislation function in terms of its exercise (operations), as it results in a series of initiatives and discretionary choice on the part of the public bodies. • Even more substantive respect, the executive function is different from both of the other functions, as it regards the State its active time, operating at a time in the legal sphere and in the practical sphere, while the legislative and judicial functions only act exclusively in the legal sphere

14. 4.The modern constitutional States guarantees the mutual independence of the three functions, since 'the indiscriminate predominance of one over the other would run into nothing a fundamental achievement of civilization‘ (since 'the indiscriminate prevalence of one of its functions on the other functions could in anything an achievement of civilization)‘: • : the principle that, even the State must respect the rules of its legal system, as guarantee of the individual until they are not changed in the manner required by the law (rule of law) Article 5 Cost. (Supremacy of the law)

15. What does not takes off that, the three functions must of course be coordinated, as outward/external expressions of the same power of sovereignty' of the State. • Through the jurisdiction must in fact apply to the case the rules laid down by the legislation; while the executive activities' must take place in the manner and within the limits established by law, for the achievement of the purposes indicated by it.

16. And on the other hand, the court shall examine the rules (le norme) called upon to apply, to see whether they comply with the constitutional principles of the legal system. • In short, must be a mutual control, a substantial balance relationship between the three functions. • In constitutional regimes more' evolved is increasingly felt the need 'to ensure such mutual review or control and such substantial relationship of balance through a fourth function, at this‘ particularly constituted under the legal rules: • -function that is normally combined with that of general representation of the State in its sovereign.

17. ChapterIIThe state organization • 1. The Legislative Power •  1. In the Republic, the Federal Parliament of the Federal Republic of Somalia consists of two (double) chamber system): • (a) The House of the People; and • (b) The Upper House.  

18. The Assembly is made up (composed) of Deputies elected by universal suffrage, with a personal, equal, free, direct and secret vote (Art. 51 and 8). • In addition to any lawmakers (deputati di diritto), deputies are also constituted by the Presidents of the republic after the termination of their mandate (Art. Cited). • The election of the Deputies is carried out by the Electoral Corps, from the constituency of voters having full legal capacity at the age of not less than eighteen years in the year of the election (Article 2 Electoral Law 22.1.1964, No.4). • Are eligible for deputy voters who are at least twenty-five years old in the year of elections and show capacity to read and write. • Due to the office held at the time of submission of the candidature (Magistrate, Military, Governor, etc.), candidates are temporarily deprived/ denied of the "passive electorate", example the right to stand for election (Article 51 Cost, Art 3 Law Cited)

19. The term of office of the Deputies of the Assembly (legislatures) normally is 4 years from the day of the announcement or with the official proclamation of the election results (art 52 Cost. and art. 60 of the S F Const. ). A member of the Federal Parliament may be re-elected. • The President of the Republic may, however, for serious reasons, after hearing the President of the Assembly, declare the early dissolution of the Assembly by indicating, with the same decree, new elections to be completed within sixty days of the dissolution (art 54 Cost. Of the Constitution of 1960). However, art 67 of the Somali Federal Constitution mentions no early dissolution of the Assembly.

20. Article 67. Dissolution of the House of the People • According to the Article 67 of the F Const: The House of the People of the Federal Parliament cannot be dissolved before the end of its four-year term unless the House has been unable to approve the Council of Ministers and the program of the government under Article 100, Paragraph (c). • Throughout the duration of their term of office, the Assembly's Deputies are surrounded by special guarantees to ensure the free exercise of the Parliamentary mandate.

21. Before such guarantees (prima di tale granzia) there is the non-persecution (civil, criminal, administrative and Constitutional) for the "facts cited, opinions expressed or votes given in the exercise of the functions" (art 58 Cost.); • Other and no less important guarantees are the immunity from arrests, perquisition or searching and any other form of disablement/injury of personal liberty, as well as the dismissal/exemption from criminal court, unless expressly authorized by the Assembly (art.cit).

22. 3. The organization of the National Assembly is governed by special rules of the Constitution supplemented by the rules of parliamentary regulations, approved by the Assembly at the beginning of each legislature on the proposal of its President or at least five deputies (art 57 Cost) . •  The work of the Assembly takes place in more "ordinary" and ‘extraordinary’ sessions (art 54 Cost). • The direction of the parliamentary work is devolved to an office of Presidency, composed of a President, of one or more Vice Presidents and other members, all electives (55 first paragraph Cost.)

23. Meetings of the Assembly are public, except for cases where the Assembly decides to meet in a secret session (Article 55, paragraph Cost.). • Condition of validity for the deliberations of the Assembly is the presence of the absolute majority of the Deputies; • Condition of validity of any resolution adopted is the favorable vote of the majority of those present, except in cases where the Constitution or the laws prescribe a special majority (Art. 55 paragraphs fourth and fifth of the Const.).. • A proposal rejected by the Assembly cannot be re-filed unless after six months from the previous deliberation (art. 55 paragraph sixth of the Constitution).

24. 4. Typical function of the National Assembly is the legislative one (Art 49 Cost). • In exercising this function, the National Assembly provides: •  (A) -the examination, discussion and approval of draft laws submitted to the National Assembly of initiative of the government ; each Deputies or at least 10,000 voters (art 60 Cost).

25. B) conversion into law of the "decree-laws ", that are acts having the form of decree and force of law issued by the Government in cases of urgent need and subject to the approval of the Assembly within five days From the date of publication (Art 63 Cost) • C) – a delegation to the Government of legislative power(of temporary duration and on limited objects), for the emanation of acts having the force of law, called "legislative decrees" (art 62 Cost.).

26. D)- a delegation to the President of the Republic legislative power for issuing of decrees of amnesty or of pardon in Criminal Matters (art 64 Cost.). • The exercise of the legislature does not deplete/diminush (does not run out) the functions and the powers of the Assembly: being a "representative" organ of the popular political will, it is also the seat of free debates and democratic choices on the highest problems of national interest. • According to the classification we have acknowledged, the non-legislative powers of the Assembly can be divided into:

27. A) –Power of constitutional formation, through which the Assembly provides the formation or determines the permanence in office of other constitutional bodies; •  B) the political-administrative power, with which the Assembly adopts supreme foreign policy decisions, establishes the broad lines of governmental action and sets its spending limits;   • C) power of control, through which, the Assembly supervises the activities of the other organs of the state as well as on the main events and problems of the national life.

28. Falls among the power of constitutional formation: • -the election of the President of the Republic (art 70 Cost); • -the vote of trust to the government (art 82 Cost), as well as • -the election of additional members of the Constitutional Court, High Court of Justice and the Superior Judicial Council (art. 99 and 102 Cost, 27 Judiciary System).

29. Falls also among the political and administrative authorities: • -the rectification of international treaties (Art. 67 Cost); • -the declaration of the State of War (Art 68 Cost), and • -the approval of the preventive budget of State (art. 66 Cost) and • -general program of the government activities (art 82 Cost).

30. II. The Executive Power. • 1. The executive power is constituted by the Government and the organs depend from it. • The Government is composed of the Prime Minister and the Ministers, which are collectively constituted by the Council of Ministers (art. 78 / 1 and 2 Cost.). • The appointment and revocation of the Prime Minister are exclusively for the President of the Republic (art 78 / 4 Cost).

31. If the presidential nomination is the condition before the legal existence of the Government, the confidence (fiducia) of the National Assembly is the necessary conditionality for the permanence of the office (art 82 / 1 Cost): confidence that has to be decided within thirty days of formation of the Government, and made to a simple majority with obvious vote (con votazionepalese) (art 82 / 1-2 Cost)

32. In the event of a lack of confidence in the trust, or, in the event of subsequent approval of a motivated motion of absolute majority of the Deputies, the Government is required to submit its resignations (art 82 / 4 Cost); • And remains in office for activities necessary for the ordinary administration until the appointment of the new government (art 82 / 5 Cost).

33. 2. Each of the members of the government bodies has particular functions within the Executive Power. • In particular: • The Prime Minister determines/defines the political affairs of the Government, maintains its unity and he is responsible for it. • B) The ministers direct the affairs of their respective ministries and they are responsible individually for them;

34. C) -The Council of Ministers decides on the most important matters of government competence, committing the collegial responsibility of the Prime Minister and the Ministers (Art. 88 Cost.); • Ministers may be assisted by State Secretary, nominated and revoked by the President of the Republic on a proposal from the Prime Minister, after hearing the Council of Ministers (art 79 Cost).

35. 3. To the dependences of the Government there are auxiliary bodies with advisory or supervisory functions (the Nation's Economy and Labor Council, the Magistrate of Accounts, the Public Employment Service, the Public Prosecutor's Office, etc.); • And executive bodies, with active administration (Ministries, Peripheral Administrative Offices). • Existence, number and denomination of the Ministries, as well as the limit of their respective attributions, are established by special law, without the Government having autonomous powers of modification in this regard (art 81 / 1 Cost);

36. But within the framework of the law, the organization of the Ministries and the employees is given by Decree Regulations (e' data con decretiregolamentari) issued by the President of the Republic in accordance with the deliberation of the Council of Ministers (art 81 / 2 Cost).

37. The competence of the various branches of the Administration is determined by reference to the matters in which the affairs are concerned: for example, we have a Ministry of Finance and its dependent Officies (Financial Administration), a Ministry of Defense and its dependent Officies (Military Administration) etc. . • A group of matters/businesses (un gruppo di materie) is attributed to the Presidency of the Council of Ministers, which is directly dependent on the Prime Minister, so that, in addition to its specific attributions, the Head of Government has ministerial functions as well. • The Ministry is a "complex" body, that is, composed of several Offices that are dependent on the same Minister; but these are offices normally engaged or employed in the preparation of the acts to be emanated by the Minister or of co-operation with the initiatives of the Minister (internal organs ").

38. All measures (provvedimenti) taken (effettuati) outside the administration are issued by the Minister or by delegation of the Minister (external "governing body"). • Equally complex is the organization of the Presidency of the Council, of which the external governing body is the Prime Minister. • 4. Not all ministries have peripheral organs, distributed in the national territorial with limited territorial competence. When that happens, there are so-called 'administrative circumscriptions', which limit/define which of the peripheral authorities responsible for the government should provide in the concrete case.

39. Many of the most important administrative circumscriptions coincide with the Region (which is governed by a Regional Governor); others coincide with the District (which is appointed by a District Commander, hierarchically governed by the Governor). • Both the Governor and the District Commissioner represent the entire Government in the context of their respective circumscriptions; and, as such, simultaneously carry out the functions of the various branches of the public administration. • There are then two degrees of peripheral organs of executive power (in some respects, similar to those of the peripheral organs of the Judicial Power): and therefore two degrees of peripheral administrative hierarchy, which is dominated by a last degree of central hierarchy (Minister).

40. III. The Judicial Power • 1. The Judicial Power is recognized by the 'Judiciary‘. The judicial function is exercised by the Judiciary. (art. 92 Cost). •  The organization of the Judicial Power is remarkably complex, as the various organs of the judiciary bodies are expressed or indicated according to material, territorial and degree established by law (art 94 Cost), in order to better assure the prompt and impartial application of the justice in every field. 

41. 2. From the material point of view, the jurisdiction is divided into civil, criminal, administrative and constitutional according to which it has the object of the: • - resolution of private disputes; • -investigation of the offenses or the imposition of penalties; • -the cancellation of Invalid administrative acts; or • -the verification of the constitutional legitimacy of the ordinary laws.

42. Civil and penal jurisdictions are exercised/applied at first degree-primo grado (examination of fact and law) by the Regional and District Courts; • Civil and penal jurisdictions are exercised in the second degree-secondo grado (review of the factual and legal disputes) by the Court of Appeal; • Ultimately, Civil and penal jurisdictions are exercised (reviewing only the controversial issues of law) by the Supreme Court. • The administrative court is exercised in one degree (in unicogrado) by the Supreme Court; as well as the constitutional jurisdictions (la giurisidizionecostituzionale ), in which the Supreme Court supplemented by four additional members, nominated by half by the National Assembly and by the President of the Republic assumes the denomination of 'Constitutional Court'.

43. Under the territorial profile, districts and regional courts are finally distinguished, District courts and Regional courts with competence extending to Districts and Regions respectively; • Courts of Appeal, with (multiregional) multi-agency competence; • And finally the Supreme Court with competence extended to the entire national territory.

44. At each court, is established a Public Prosecutor's Office, headed by the Attorney General at the Supreme Court • The P.P. represents the interests of the law, and in this sense: • A)- he exercises the criminal offense, requesting the Judge to apply the criminal law in every state and grade of the judiciary. • B) he has power to intervene in civilian cases, assuming a role of party when it is in the public interest.

45. 3. The judiciary system is based on the principles of judicial Independence and principle of the Unity of Judicial Power (Principio dell’Unita’ del PotereGiudiziario). •  For the principle of judicial independence, each organ of justice, in the exercise of its functions, 'depends only on the law (art 94 Cost), and thus acts without any bounds of hierarchy and without any external interference.

46. For the Principle of the Judicial Unity, which has its peak, as constitutional organ, the Supreme Court, all the organs of justice constitute a single Order, called Judicial Order; (tuttigliorgani di giustiziacostituiscono un unicoordine, dettoordinegiudiziario); • And it is strictly forbidden to establish ( di organigiurisdizionaliordinari o speciali) ordinary or special court of jurisdictions, with the sole exception of the Military Courts (art 95 Cost).

47. 5. The institutional function of the Judicial Power is to declare and to put into practice the will of the legal system in every concrete case of violation or controversy which has been referred to organs of such power. It is implemented: • A) in criminal cases, in judging those who are accused of having committed crimes, namely those punishable by one of the punishments provided for by law (death, imprisonment, fine, arrest, ) for the danger that the offenses arise to the whole society'; (o ilpericoloche di reatiderivaall’interasocieta’)

48. B) in civil cases, in settling disputes between two or more persons in their private legal relations; • C) in administrative cases, in judging compliance with the law or by the validity of the acts of executive power, where they are damaging of interests protected directly or indirectly by the law "; • D) -in constitutional cases, in judging compliance with the 'legitimacy' or 'constitutionality' of the acts of ordinary law.

49. 6. The juridical power is never practiced by the office, but always on an instance or by recourse to a subject authorized by law (legitimate), which assumes the role of a party in relation to another party (counterpart) before the Judge of the dispute. The consequent relationship between the parties, and between them and the Judge, is called procedural relation.

50. In criminal proceedings, required parties, are the Public Prosecutor's Office (official prosecution body) and the defendant (the person charged with a crime); • In Civilian proceedings, required parties are the actor (the one who calls in justice) and the defendant /suspect (the one who is sued); • In the administrative and constitutional proceedings, the applicant or the instant and the resistant (the state).