answer with quetions

•SOMALI NATIONAL UNIVERSITY

•Middterm Exam

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• Introduction to law

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• 1)-What is law? (2 points)

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•The law is a set of rules, enforceable by the courts, which regulate the government of the state and govern the relationship between the state and its citizens and between one citizen and another. (2 points)

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•2)-Describe the main characteristics of the law, namely: generality, newness and abstractness ( 2  points).

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•The law contains a general and abstract command, applicable to all the affiliates  or to a broad category of them and an undetermined number of cases and their like.

  Generality, novelty or newness and abstraction are its distinctive character

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•3)-Laws are divided in constitutional laws and ordinary laws, what are they? (2points)      

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•A) –Primary source of the Somali legal system is the Constitution of the Republic, prepared by constituent Assembly, promulgated by the President of the Republic.

•It is the fundamental law of the Republic whose faithful observance is mandatory for all the persons subject to its sovereignty.

•B)-Formal ordinary laws means all laws passed by the National Assembly on the proposal of the Government, a Member of Parliament or 10,000 voters, and promulgated by the President of the Republic.

•For the approval of the ordinary laws by the Assembly is sufficient by a vote of majority of those present.

• After the promulgation of the Head of State, the laws are published in the Official Bulletin of the Republic so that all are becoming aware of them.

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•4)-What are universal suffrage and individual suffrage?(2 points)

•When the electoral capacity is attributed to all citizens it says it has implemented the universal suffrage;

•When, the capacity is reserved to a limited number of citizens such as only those who have a certain level of education or have a certain restricted census, it has implemented restricted suffrage.

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•5)-What is citizenship? Decsribe the mode or how somali citizenship can be acquired? (3 points)

•Citizenship is the bond of citizenship that links people to The State. Somali citizenship may be acquired by operation of law  or by grant

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•A)-Acquisition of citizenship by Operation of Law:

•Shall be a Somali citizen by operation of law:

•a)-any person whose father is a Somali citizen.

•b)-any person who is a Somali residing in the territory of the Somali Republic or abroad and declares to be willing to renounce any status as citizen.

•B)- Shall be acquisition of Somali citizenship by Grant

•Somali citizenship may be granted to any person who is of age and makes application, provided that:

•a)-he has established his residence in the territory of the Somali Republic for a period of at least seven years.

•b)-he is of good civil and moral conduct.

•c)-he declares to be willing to renounce any status as citizen or subject of a foreign country

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•6)-What are the elements of state? Decsribe each one briefly.(2 points).

•The constituent parts of the State are three: the people, the land and the political organization . 

•The People:

•People of the State is defined as the set of individuals that belong to the State , that are linked to the State by the bond of citizenship .The bond of nationality has a different content in the various States, as each State stipulates or specifies what are the rights and obligations that exist between the State and the citizen ;

•The status of citizens oppose the status of foreigners and status of stateless persons. It follows that it is included in the people the citizens who live abroad ; foreign residents in the State should be included in the population of this ;

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•Territory:

•It defines the State as part of the Earth's surface over which the State exercises its sovereignty '. The territory includes the mainland, including the waters that flow (lakes, rivers, canals, inland seas), the atmosphere, the soil, and the territorial sea. The land belonging to the State is bounded or surrounded by borders, which are either conventional or natural. The conventional boundaries are established by international treaties, concluded with neighboring states; these boundaries are represented on the ground in various ways (boundary stone, poles, fences, etc.); the natural boundaries are characterized by geographic boundaries (mountains, rivers);

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•Political organization

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•Third constitutive element of the state is political organization and ::' this element is most 'important, because unifies the two elements: people and territory, making it appear and operate in the state as an entity.

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•Political organization, state legal system and constitution of the state can therefore 'considered equivalent terms.

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•Territory:

•It defines the State as part of the Earth's surface over which the State exercises its sovereignty '.

•The territory includes the mainland, including the waters that flow (lakes, rivers, canals, inland seas), the atmosphere, the soil, and the territorial sea.

•The land belonging to the State is bounded or surrounded by borders, which are either conventional or natural.

•The conventional boundaries are established by international treaties, concluded with neighboring states;

•these boundaries are represented on the ground in various ways (boundary stone, poles, fences, etc.); the natural boundaries are characterized by geographic boundaries (mountains, rivers);

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•Political organization

•Third constitutive element of the state is political organization and :

• this element is most important, because it

unifies the two elements: people and territory, by making it appear and operate in the state as an entity.

•Political organization, state legal system and constitution of the state can therefore 'considered equivalent terms.

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•7)-State the three main branches of the State. Decsribe each one briefly. (2points)

•We will illustrate the modern State by examining the three groups of bodies at the three fundamental functions of the State.

•Parliament:

•The legislative body of the modern State is Parliament, consisting of one or two in elective assemblies.When Parliament consists of two assemblies its called bicameral; If the assembly is unique its rather called unicameral;

•The Parliament in its composition should express the will of the citizens. It follows that, among all the citizens and Parliament must build up a relationship of representation or political representation

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•Functions of the Parliament:

•The main function entrusted to Parliament is the legislative function.  Parliament under the legislative function does not act only ordinary law and constitutional laws:

•Many parliamentary acts present the content of administrative acts or Government, such as

•- the annual approval of the State budget (art 66 Const.),

•-the granting of citizenship to foreign benefactors,

•-the approval of the State of war (art 68 Const.),

•-approving international treaties (art. 67 Const.) etc.

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•The rooms proceeded to their works by means of discussions, deliberations, interrogations,.

• Following deliberations by voting;

•-the votes are obvious (palese) (e.g. roll-call vote (per appello nominale),

•-by a show and sitting (per alzata e seduta),

•-for division into sectors (per divisione in settori) or

•-secret (segreto).

• The rooms also have the power of investigation (art. 69 Const.) exercised by parliamentary committees

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•Executive function

•In all constitutional systems, the Executive function emanates from an organ called a head of State.

•In the parliamentary and presidential Republics, the head of State got called the President of the Republic and is elected, as the case may be, by the electoral body of citizens or from Parliament.

•The President can cease from office for resignations, for death, for severe disablement and, for dismissal pronounced by a special judicial authority.

•In the short absence of the President (for example, due to illness or for travel abroad) or in the interval between the termination of a President and the election of a new, many constitutions require a replacement that is called, vice-president.

•In some jurisdictions, the Vice-President is elected together with the President.

•cont

•in other jurisdictions, on the other hand, the function of the president  is entrusted to an authority already established for other functions, such as, the President of the legislative chamber, the President of the Council of Ministers etc.

•The individual appointed to head of State is surrounded by unique prerogatives, which are the warrantees that protect the natural person responsible for the organ.

•These prerogatives constitute, in all constitutional laws, in immunity.

•The President enjoys the inviolability of a large criminal immunity; usually the President is subject to ordinary jurisdiction for the common offences and to a special jurisdiction for the offences of treason (per i reati di alto tradimento) and violation of his constitutional duties;

•In parliamentary systems, it is still considered politically irresponsible, since every note or act must be countersigned by one or more Ministers.

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•The head of State also has many other functions, which vary in number and operating procedures in the different constitutional systems, we shall refer to the main:

•a)-represents the State in its unity inside and abroad;

•b)-he is the head of the armed forces;

•c)-exercises an influence more or less wide on the legislative function of Parliament;

•d)-has some judicial powers within;

•E)-and he is the source of honors;

•Within the framework of the legislative function the head of State  has a power of legislative initiative. The draft legislation tabled by the Government is approved by presidential decree.

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•The heads of State have also the power to promulgation or publication of law, etc).

•Within the framework of the judiciary function the head of State has some judicial powers within the judiciary system; (the head of State usually keeps these attributions:

•1)-appoint, promote, dismiss the judges,

•2)-grants clemency to the condemned, and grant or bestow amnesty and pardon;    ( art 64 Const. and art 149 P.C.);

•The head of State becomes so, the Coordinator of all other constitutional organs of the State.

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•The acts of the head of State are almost always complex acts, carrying the signature of the head of State and one or more Ministers.

•The exercise of the functions of head of State, participate in several other organs called altogether State Government (Governo dello Stato)

•These organs are:

•-The Council of Ministers,

•-The Prime Minister (or President of the Board or head of Government) and

•-The individual Ministers (minister without portfolio is a minister of state who is not appointed to any specific department in a government

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•Judicial function

•The judiciary is all State bodies to which is awarded jurisdiction power, namely, the power to preserve and implement the legal system of the State.

•This implementation is accomplished either by eliminating the State of uncertainty, in a controversial rapport: civil or administrative jurisdiction; or is replacing the legal order violated: criminal jurisdiction.

•One of the features/structures of the modern State is to have distinct judicial function from the executive and attributed to distinct organs

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•Decree Law (decreto-legge art 63) : In case of urgent necessity the Government may issue temporary provisions having the force of law. Such provisions shall be issued by decree of the President of the Republic, on the proposal of the Council of Ministers, and shall, within five days, be presented to the Assembly for conversion into law.

•Legislative Decrees/Delegation of Legislative Power (decreto-legislativo 62 ): The Assembly may delegate to the Government the power to issue, on specific subjects or matters  and for a limited period, provisions having the force of law

•CONT

•In delegating authority, the Assembly  may establish the policy and issue directives. Provisions made under a delegated power shall be issued by degree of the President  of the Republic on the proposal of the Council of Ministers.

•The decree-law or the legislative decrees that do not match the conditions of validity 'described above are desperately null; and its declaration of ineffectiveness is referred to the Supreme Court constituted in the Constitutional Court (Article 99 Cost.)  

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•CONT

•9)-Article 1 of the Somali Civil Code in force lists sources of legal system. What are they? (2 points)

•The Somali Civil Code lists as sources of legal system, the following , and they are:

•a)-laws;

•b)-regulations;

•c)-customary;

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•10)-What are the General requirements for electoral capacity? (1 points)

•The General requirements for electoral capacity are:

•a)-citizenship;

•b)-age;

•c)-sex;

•d)-the residence;

•e)-the absence of specific electoral inability (are e.g. excluded from voting the prohibitions for disablement of mind, the disabled, the bankrupt, the convicted criminal, when the sentence amounts to the interdiction by public offices and so on).

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•11)-Organs of the state could be differentiated into two entities : the public office and the public official. Kindly describe.  (2 points)

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•Each organ of the state could be differentiated into two entities : the public office and the public official.

•The term public office is meant to allude to the complex of activities , tasks and means that characterizes every organ of the State .

•The term public official is defined as the natural person in charge of the office.

•The office is independent from the person who is in-charge of the office: the individual official can mutate and sometimes even missing .

•Accordingly, when we speak of the Minister,  as an organ of the state , we can differentiate the office of the minister-as a complex of powers and resources that pertain to this office- and the person of the minister who carries out these functions and makes use of those means.

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•12)-What is the difference between honoray officials and de facto officials? ( 1 points)

•Honorary officials: are responsible to their office, and  carry out their duties for pure civic interest , not getting salary for their performance, such as the ministers , deputies , the mayors , etc.

•De facto Officials (funzionario di fatto) are those persons who exercise a public function without being in-charge to their office; can be the following assumptions:

•-the Act of preposition there has been but is invalid;

•-the Act of preposition is valid but not yet effective;

•-or the Act has become ineffective, or,

•-even has never been an act of preposition and the individual has taken it upon his own initiative the title of public official.

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•13)-What are the rights and obligations that exist between the state and the citizens ? (1 points)

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•The rights and obligations that exist between the State and the citizen are:

•- in general the citizen has an obligation of obedience (un obbligo di ubbidienza) and loyalty (fedelta’) to the State,

•-and has an obligation of protection (un obbligo di protezione) toward the citizen. 

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•14)-What is meant by sovereignty? (1 points)

•The concept of sovereignty  is one of the most 'discussed in doctrine from the seventeenth century to the present. Sovereignty 'refers to the state, means , then, that the state shall  control power ; and power shall  also expresses the independence of the State in the relations with other states or other entities equally sovereign.

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•Sovereignty 'indicates that State is Supreme under its domestic law against people who are subordinate;  The internal and external appearance of State sovereignty are so closely related.

• Sovereignty 'has some typical features:

•-First of all,  it is an original power, which means, rises with the rise of the State .;  and

•- an exclusive power as it is for the State alone and not to other agencies;

•- and it is an unconditional power because the state has the means to implement its commands in coercive form.

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•Today the sovereignty of the state are the people and the territory. 

•Compared to the people, we talk personal sovereignty and has for the content obligations that the citizen has to the state of belonging due to the bond of citizenship: these obligations remain even if the citizen resides abroad, although' the State can not coercively implement its precepts.

•Sovereignty 'of the State is exercised well on foreigners residing in the State or on citizens or existing assets in the State.

•Finally, we can remember that the sovereignty 'of the State manifests itself in the form of three characteristic functions: legislative, executive and judicial.

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•15)-What is interpretation? What are literal/letteral, logical and analogical interpretations? (5 points)

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•The interpretation of the rule, is understood as a substitution of the will of the legislature from abstract to concrete, from the general to the particular, is always necessary;

•It is well known that the interpretation is the mental operation with which is researching and explaining the meaning of the law.

•Without this clarification process, would not be possible to apply the rule to the case.

•Following are the details

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•-Literal interpretation:

•Sometimes it is enough to simply read the norm, because the lexical meaning of the word used by the legislature does not leave any doubt, and excludes any different solution (literal/letteral interpretation or word for word);

•-Logical interpretation:

•Sometimes instead, or because the expression is not clear, or because other evidence to suggest that the intention of the legislator is different from that which appears at first sight, it is necessary to go back to the purposes in relation to which the norm was enacted, and coordinate in a systematic order the norm/rule itself with the other rules that concern the entire matter in question (logical interpretation);

•-Analogical interpretation:

•there is the so-called analogical interpretation: it should be regarded as a form of research of the rule of law to be applied to a case not provided expressly by law.

•By analogy, the interpreter does not create a new rule, but applies to this case the legal norm governing a similar case, assuming that the legislature would have normally regulated the one in question if he had contemplated.

•GOOD LUCK

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