Category Archives: Articles

Judicial Review of the Prosecutorial Powers of the Attorney-General in England and Wales and Nigeria: an Imperative of the Rule of Law

Osita Mba*

(2010) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

The pre-eminent position of the Attorney-General under the common law as the chief law officer of the State, generally as chief legal adviser to the State and specifically in all court proceedings to which the State is a party, is a common feature of the Constitutions of the Commonwealth countries. In many jurisdictions, including Nigeria, the Constitution confers the officer with similar powers to the common law prerogative to exercise ultimate control over prosecutions. However, despite this statutory basis the courts traditionally bestow the powers with the orthodox common law immunity from judicial review of the prerogative powers. This article challenges both the applicability of this orthodoxy to such jurisdictions and its continued validity under the common law. The first part deals with English law. It examines the origin and development of the orthodoxy in English law and argues that it should no longer apply to prerogative prosecutorial powers in view of the House of Lord’s decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 that prerogative powers that raise justiciable issues are amenable to judicial review. It further argues that the orthodoxy should not apply to statutory prosecutorial powers including the power to stop prosecutions in order to safeguard national security set out in the new Protocol between the Attorney-General and the Prosecuting Departments. The second part analyses the relevant provisions of successive Nigerian Constitutions to show that the orthodoxy has never been imported into post-Independence Nigerian law. It uses judicial interpretation of similar provisions in the Constitutions of other Commonwealth countries to establish the error in the Supreme Court’s decision in The State v Ilori [1983] 1 SCNLR 94 by which the orthodoxy was transplanted into Nigerian law. The third part applies the established grounds for judicial review to the exercise of the respective Attorney-General’s prosecutorial powers to give effect to the rule of law in both jurisdictions. The article concludes that judicial review will restore the right to private prosecution as a necessary safeguard against executive excesses and incompetence in both jurisdictions. Although the article deals specifically with English and Nigerian laws, the principles it sets out are applicable to other Commonwealth jurisdictions where the Attorneys-General or other officers such as the Directors of Public Prosecutions enjoy similar powers.

Table of contents

Continue reading

The Regulation of Electoral Financing

Anthony Gray*

(2009) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

Various governments around the world have sought to pass legislation regulating electoral campaigns, in particular their financial aspects. Electoral reform is high on the Australian Government’s agenda. In a Green Paper published in December 2008, the Australian Government canvasses some possible reforms to Australia’s electoral system, most especially in the funding area.1 These proposals to some extent mirror developments elsewhere. In this paper, I consider the specific suggestion that caps or bans should be placed on private funding of political parties. This policy suggestion is considered primarily from a constitutional point of view in terms of its validity. In so considering, comparisons will be made with other jurisdictions in which such reforms have been made, and political science issues pertinent to the discussion will also be considered. Much can be learned from experiences in this regard overseas.

Table of contents

Continue reading

European Research Group on Existing EC Private Law (Acquis Group)

Position Paper on the Proposal for a Directive on Consumer Rights1

Drafting Team: Gerhard Dannemann, Judith Rochfeld, Hans Schulte-Nölke, Reiner Schulze, Evelyne Terryn, Christian Twigg-Flesner and Fryderyk Zoll

(2009) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article

Table of contents

Continue reading

Is The Legislative Policy on Legitimacy Really Legitimate?

Rashmin Khandekar*

(2009) Oxford U Comparative L Forum 4 at ouclf.law.ox.ac.uk | How to cite this article this article
‘It must be remembered that law is not a mausoleum. It is not an antique to be taken down, dusted, admired and put back on the shelf. It is like an old but vigorous tree, having roots in history, yet continuously taking new grafts and putting out new sprouts and occasionally dropping dead wood. It is essentially a social process, the end product of which is justice and hence it must change with changing social values. Otherwise there will be estrangement between law and justice and law will cease to have legitimacy.’1

Justice P.N. Bhagwati, former Chief Justice of India

Table of contents

Continue reading

Towards a Social Value Convergence: a Comparative Study of Fundamental Principles of Contract Law in the EU and China

Junwei Fu*

(2009) Oxford U Comparative L Forum 5 at ouclf.law.ox.ac.uk | How to cite this article

Abstract

One of the remarkable differences in contract law between legal systems in the European Union and China is the definition and status of contractual freedom. Historically, contractual freedom has not been commonly recognized in China, and social ethics had played a greater role in its civil law. In contrast, in European legal systems, freedom have been accepted as a core element in private law, with social elements having been commonly ignored, particularly during the time of 18th and 19th century. However, in modern times, China has started to accept the concept of freedom in its civil law, and the consideration of social elements has been diminished gradually since the late 1990s. On the contrary, in Europe, mainly due to the correction of market failures, social elements have increasingly been considered in order to maintain the substantive justice of contract, and contractual freedom as unfettered ideology has diminished since the late 19th century. It could be thus reasonable to say the modern social values between the east and west have been converging progressively.

Continue reading

Unjust Enrichment Understood as Absence of Basis: a Critical Evaluation with Lessons from Canada

Chris D. L. Hunt*

(2009) Oxford U Comparative L Forum 6 at ouclf.law.ox.ac.uk | How to cite this article

Table of contents

Continue reading

Unjust Factors or Restitution of Transfers Sine Causa

Duncan Sheehan*

(2008) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article

Table of contents

Continue reading

The Experiences of Denying Constitutional Protection to Sodomy Laws in the United States, Australia and Malaysia: You’ve Come a Long Way Baby and You Still Have a Long Way To Go!

‘the other refuses to disappear: it subsists, it persists, it is the hard bone on which reason breaks its teeth’1

Alan Berman*

(2008) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

Table of contents

Continue reading

Britain’s Emerging Constitution?

Lord Mance1

(2008) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite this article this article

Table of contents

Continue reading

Lowering the Corporate Veil in Germany: a case note on BGH 16 July 2007 (Trihotel)

Charles Zhen Qu* and Björn Ahl**

(2008) Oxford U Comparative L Forum 4 at ouclf.law.ox.ac.uk | How to cite this article
In the recent Trihotel case, the German Federal Court of Justice has substantially modified its previous position on lifting the corporate veil, by which shareholders can become liable towards company creditors. The present case note argues that the tort-based new approach will not only afford company creditors with adequate protection but also direct German company law jurisprudence towards a greater regard for fundamental principles of company and insolvency law.

Table of contents

Continue reading