The Somali Legal System (Sources of Law)

•                The Somali Legal System
                     (Sources of Law)

Every legal system  (L’ordinamento Giuridico Somalo) has its own rules on legal production

Sources of law:

•For the purposes of systematic classification it is necessary to bear in mind the provisions of article 1 of the provisions of the law in general premises to the Civil Code in force.

•That article lists as sources of legal system:

•a)-laws;

•b)-regulations;

•c)-customary;

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•The law: it is among the main written sources which constitute the legislative measure enacted by State legislatures.

•The law contains a general and abstract command, applicable to all the affiliates (i consociati) 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.

• The law expresses/convey what must be, given certain circumstances, the conduct of the State, its bodies, moral authorities ( charities )and citizens

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•I) –The expression "law" used in that Article 1 of the Somali Civil Code as the first source includes two distinct categories of laws, having different nature and effectiveness: the constitutional laws and ordinary laws.

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.

•Laws or/and provisions having the force of law shall conform to the Constitution of the Republic and to the general principles of Islam. (Article 98 of the principle of rigid Constitution and Art. 2/3 of the Federal Const.).

•The same order of effectiveness are the laws of revision or integration of the Constitution which are approved by the National Assembly (Article 104 Const.). These laws can neither, however, change the shape of republican or democratic state nor limit the rights and freedom of man and citizen, enshrined/protected in the Constitution (Article 105 Const.)

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•B) -a) -with the expression of 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 (Article 60 and 61 of the Constitution.).

•For the approval of the ordinary laws by the Assembly is sufficient by a vote of majority of those present (Art 55 Const.).

•After approval of the Assembly and 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 (the laws). (art 61 Const.).

•Equivalent to the ordinary laws are, the acts having the force of law, the decree-laws and legislative decree (delegation of legislative power).

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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. 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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•II)-The regulations of the state are of legal rules enacted by the Executive Branch for the execution of the laws or to the organization of the administrative offices are enacted by the decree of the head of State (Article 85 and 81/2 Const.) example: regulations of the organization of the Council of Ministers or regulations of the organizations of the Ministers etc.

•In both cases, the regulations have effectively subordinated to that of constitutional laws and ordinary laws.

•There are various types of regulations. The regulations can be divided into two categories. We have on one side, the actual regulations, which commonly called public regulations, and, on the other hand, the internal regulations, circulars, instructions etc.

•These acts (the internal regulations) do not have effect in respect of the legal system of the State (non hanno efficacia nei confronti dell’ordinamento giiuridico dello Stato), but are within the scope of a particular entity or body. In this respect we do refer to the example of the rules of procedure of the Assembly, the regulations that predispose the functioning of State rail etc.

•While the public regulations must be published  because, as a source of law,  they are resulting rights and obligations for individuals, so it is necessary that these become aware. However who can demand the observance is only the institution for which they are issued, mostly the public administration

•In addition to the regulations of the State, there are also regulations for public entities other than the state (Enti Pubblici diversi dallo Stato), issued in the exercise of the autonomy granted to them by law (Article 85 Const.-Regulatory power or Power to Issue regulations).

•The disability  or invalidity of the regulations contrary to the Constitution, to the ordinary laws or other regulations is declared by the Supreme Court (Article 94 Cost.)

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•III)- The third source of the legal system is formed by Customary Law: unwritten rules of law, which put in place directly by the people.

•According to the doctrine, there are two necessary conditions for the existence of customary rules:
a) -a general behavior, uniform and old, spontaneously followed by the communities (objective requirement);
b) -the general presumption that accompanies such behavior of its obligatory or compulsory nature in legal terms (subjective requirement).

•The legal effect of custom is subordinated to both the laws (ordinary and constitutional) and the regulations; 

•So it is not permissible or eligible a custom contrary to law or regulations;

•The doctrine finally agrees in attributing to the custom the more and big importance in the  interpretation of the law, especially in respect of the facts that are measured in different ways and in different social environments and are described by law with expressions of elastic character, such example, when the law speaks of honor or dignity of the person, morality (buon costume), decency  etc.

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