# Université de # / Published also as Bibliothèque de la Fondation Thiers, no. 34.

Thesis (D. Sc.)--University of London. / Includes bibliographical references and index.

Thèse--Université de Paris. / "Indications bibliographiques": p. [255]-260.

This dissertation argues that applying a flexible delay rule to self-reviews of administrative acts under the principle of legality facilitates enhanced state accountability and contributes to upholding the rule of law. This flexibility is particularly important amidst allegations of widespread corruption and maladministration in South Africa that necessitate strong accountability mechanisms. Public functionaries are granted express power to participate in commercial transactions in the public interest. When this power is exercised unlawfully, the state has an opportunity to remedy its unlawful administrative acts through the court process of judicial review. The delay rule requires judicial reviews to be instituted without unreasonable delay. Courts must pronounce on the issue of delay prior to considering the unlawfulness of a public act. After defining the delay rule in the context of self-reviews, this study compares the delay rule set out in the Promotion of Administrative Justice Act (PAJA) with the delay rule under the principle of legality. Through case law, this research establishes that the PAJA delay rule is applied rigidly by courts. This rigidity has led to courts dismissing self-reviews after finding that a public functionary's review application was instituted unreasonably late and the delay could not be overlooked in terms of PAJA. The dismissal has meant that the impugned public act was neither declared unlawful nor set aside, undermining accountability and the rule of law. This study finds that the application of a less strict delay rule under legality in self-reviews enables courts to declare public acts in contravention with the Constitution unlawful notwithstanding an unreasonable delay in pursuit of accountability and the rule of law. / Mini dissertation (LLM (Constitutional and Administrative law))--University of Pretoria, 2021. / Public Law / LLM (Constitutional and Administrative law) / Unrestricted

This thesis presents an analysis of the South African Parliament’s attempts to create a mechanism to enable oversight of delegated legislation. The question sought to be addressed is, whether Parliament has done anything to create a mechanism to oversee the delegation of its law-making authority to the executive and if so, whether any of these efforts have been successful. This paper illustrated how the making of delegated legislation is not foreign to South Africa’s system of separation of powers as provided for in our Constitution and as interpreted by our courts. It is shown how, despite what the Constitution allows, recent law-making efforts have not strengthened Parliament’s ability to oversee delegated legislation. Instead legislators purposefully sought to curb attempts to improve rule-making and delegated legislation. Similarly, efforts to make delegated legislation more accessible to the public have been missing from government’s list of priorities. The South African Parliament’s efforts to scrutinise delegated legislation is contrasted with the efforts of the Gauteng Provincial Legislature and several foreign legislatures. Finally, it is indicated how Parliament, after more than 20 years since the promulgation of the final Constitution, has failed to create a permanent mechanism to enhance and strengthen its oversight of delegated legislation.

This dissertation discusses ways to advance social rights, considering the significant gap between their ambitious normative recognition and their poor implementation in practice. It presents some of the challenges that social rights typically face and explores ways to overcome them, noting the role that courts can play in triggering solutions. The project zooms into the connection between social rights and administrative institutions to argue that, while often under-discussed, social rights’ fulfillment is largely dependent on administrative law and administrative action. The dissertation further claims that “canonical” administrative law, however, is unfit to facilitate the fulfillment of social rights and discusses possible ways to rethink discrete administrative institutions. While the dissertation focuses on Latin America, its arguments are of relevance for other parts of the world. The project is structured around two case studies of social rights litigation in Argentina (Chapter 2) and Colombia (Chapter 3), which triggered relevant innovations that can help respond to frequent challenges around social rights. Both cases involve similar circumstances of historical unfulfillment of human rights, particularly the rights to a healthy environment, health, and housing. They also illustrate similar capacity constraints in relevant administrative institutions (such as norms and staff volatility and bureaucratic fragmentation). Both cases represent what has been often called “structural litigation ” and were decided in similar legal backgrounds. The case studies are as detailed as possible, in an effort to supplement long standing theoretical debates on social rights with a nuanced analysis of the results of cases on the ground (as even though recent research has focused on empirical assessments, most relevant scholarship uses normative and doctrinal approaches ). The research conducted for this project therefore involved reviewing judicial records, legislation, press coverage and other secondary sources; and for the Argentine case, talking to public officials, judicial employees, non-governmental organizations, and other key actors, visiting the river basin and courts’ offices, and filing freedom of information requests. My research perspective is also informed by my previous work with different non-governmental organizations devoted to advancing social rights. I therefore came to this project with practical knowledge of how relevant institutions, mainly in Argentina, function in practice, with the consequent subjectivity of a practitioner from the Global South. The dissertation connects to existing literature on social rights and on the reform of administrative law. It also speaks, more indirectly, to ongoing conversations on effective government, State capacity, the growth of the administrative state, and structural litigation. Throughout the dissertation, I use a common analytical framework: experimentalism. I describe this framework in detail in the Introduction to this dissertation. When confronted with existing scholarship, the dissertation shows that many concerns around social rights in general, and social rights’ litigation in particular, do not necessarily play out in practice as traditional literature would anticipate. For example, the case studies prove that litigation does not necessarily exclude more confrontational alternatives for rights-claiming, and that middle class plaintiffs are not always prioritized in courts’ work. Both cases essentially show a decision-making model that is court-led but places responsibilities for policy making on local administrations. Under this model, courts set goals that administrations then need to pursue by themselves, with strong court oversight. As such, the model moves beyond the dichotomy between judicial abdication and judicial usurpation that traditional literature routinely describes. Traditional models of social rights adjudication also suggest a stark division between approaches based on the substance of rights and other based on procedures that the dissertation proves to be more nuanced, as in the case studies courts define some substance of rights, but also set strong procedures directed precisely at further defining rights’ substance. Importantly, this alternative model shows how courts intervention can lead to improved institutional capacities (directed mainly at increasing transparency and coordination) in responsible administrative entities. The cases finally show the barriers that traditional administrative law can create for the innovations needed to advance social rights. The last Chapter of the dissertation consequently explores ways to reimagine administrative law, to promote principles and institutions which are more aligned with the demands of social rights, such as recognizing informal administrative action and promoting administrative coordination.

Le recours pour excès de pouvoir introduit par les tiers fait l’objet de transformations de plusieurs natures et l’urbanisme est un domaine dans lequel la mutation est particulièrement frappante. Estimé attentatoire à la stabilité des autorisations d’urbanisme, ce « procès fait à un acte, d’utilité et d’ordre publics » a été amendé, en grande partie par le législateur, dans le sens d’une plus grande sécurisation et subjectivisation. Par ce fait, il peut désormais être décrit comme altéré dans la mesure où les caractères constitutifs de ce monument du contentieux administratif tendent à s’effacer face à de nouveaux impératifs. La fermeture de l’accès au prétoire ainsi que l’évolution profonde de l’office du juge urbanistique conduisent ainsi à interroger la permanence d’un recours pour excès de pouvoir en urbanisme. Or, le processus d’altération du recours pour excès de pouvoir se heurte à des obstacles qui empêchent toute dénaturation de ce dernier. La pertinence d’un recours en légalité, objectif et ouvert demeure certaine tant ces caractères permettent de pallier les défauts du droit de l’urbanisme et l’absence de moyen alternatif de contestation de la décision administrative. En outre, le recours en urbanisme ne peut adopter le régime d’aucun autre recours, le conduisant irrémédiablement vers l’hybridation de son régime. / Actions of annulment by third parties are undergoing various transformations, most strikingly in the field of urban planning. Perceived as prejudicial to the stability of urban planning permissions, this “deed put on trial, of public utility and nature,” was amended, mostly by legislators, towards greater security and subjectivity. Consequently, it can henceforth be described as somewhat distorted, inasmuch as the constitutive characteristics of this pillar of administrative litigation tend to fade in the face of new priorities. The closing of the access to the courtroom as well the radical evolution of the urban planning judge’s function raise questions about the enduring nature of the action of annulment in urbanism. Yet, the alteration process of the action of annulment runs into obstacles that prevent any denaturation of it. The relevance of a legal appeal, objective and open, remains unquestioned in light of the degree to which its characteristics enable to overcome the flaws of urban planning law, and the absence of alternative means to appeal the administrative ruling. Moreover, appeals in urban planning law cannot adopt any other appeal’s legal rules, which inevitably renders its own system hybridized.

The thesis examines the constitutional position of the Court of Session's supervisory jurisdiction. It begins by emphasising the methodological and substantive importance of the historicality and traditionality of law. It then provides a detailed historical account of the emergence of the Court's supervisory jurisdiction, from its inheritance of supervisory functions from emanations of the King's Council to the present-day law of judicial review. Throughout, emphasis is placed on the Court's strong sense of self-orientation in the wider legal and constitutional order, and the extent to which it defined its own supervisory jurisdiction. The court was a powerful constitutional actor and played a strong role in the increasing centralisation and systematisation of the legal order, expanding its supervisory purview through a powerful triumvirate of remedies (advocation, suspension and reduction) and a comprehensive approach to the supervision of a wide range of bodies. The thesis then frames tensions between Parliament and the Court in the context of judicial review of ouster clauses, chosen as a point of heightened inter-institutional tension. This is demonstrated to be an area in which divergent visions of the constitution are evident – Parliament regarding itself as entitled to oust the jurisdiction of the Court to judicially review, and the Court regarding itself as entitled to examine and pronounce on the extent of ouster, including its limitation or exclusion. In attempting to conciliate these divergent constitutional worldviews, the thesis rejects a “last word” approach which prevails in the English judicial review literature. It considers (and rejects), as alternatives, dialogue theories and functional departmentalism. The thesis then advances constitutional narratology as its preferred analytical framework for the accommodation of those inter-institutional tensions, and conciliation of their divergent worldviews. The Court's performance of a constitutional-narratological function facilitates the integration, conciliation and synthesis of legal norms with an existing law and legal system; weaves and coagulates multifarious legal norms into a unified and univocal body of norms; and executes a chronicling, expository and explanatory storytelling function which sets a legally-authoritative narrative to the law. In doing so, the Court performs a distinctive and indispensable constitutional function incapable of fulfilment by Parliament. It is argued that traditionality and functional necessity provide the legal-systemic legitimation for the Court's performance of the constitutional-narratological function. Finally, the thesis considers the institutional specificity of the function, concluding that it is the function, rather than the institution, that is indispensable. However, neither the advent of the Upper Tribunal nor the U.K. Supreme Court suggest at this stage that the Court's performance of that function is waning.

Flyktingmottagande och integration har under en längre tid ansetts fungera dåligt. Etableringen av nyanlända tog för lång tid och för få hade kontakt med arbetslivet. Det stod klart att en förändring var nödvändig. Det svenska flyktingmottagandet genomförde år 2010 en stor strukturomvandling eftersom delar av integrationen som handlar om arbetsmarknadsetablering flyttades från kommunerna till staten. Genom den nya etableringsreformen hoppas regeringen på att effektivt och snabbt kunna etablera nyanlända i arbets- och samhällslivet. Ändamålet är att uppnå egenförsörjning. Genom reformen fick kommunerna, Arbetsförmedlingen, länsstyrelserna, Försäkringskassan samt Migrationsverket nya eller ändrade ansvarsområden och samtidigt infördes en ny aktör, lotsen, vars syfte är att stödja och påskynda den nyanländes etablering. Trots att reformen genomfördes nyligen framgår det från vissa håll att det nya systemet brister på en del punkter.  Den nya etableringsreformen är ett omdiskuterat ämne. Meningsskiljeaktigheter råder beroende på vilken myndighet respektive individ som tillfrågas. För att få svar på om etableringsreformen är bra och huruvida den var nödvändig genomfördes en granskning med början i det gamla systemet till vad syftet med reformen är och hur det fungerar. För att inte enbart få den teoretiska delen av det nya systemet genomfördes intervjuer med Arbetsförmedlingen och kommunen samt granskningar av en del rapporter och utredningar för att få svar på hur det fungerar i praktiken. För att reformen ska ge goda resultat krävs att alla aktörer uppfyller sina uppgifter och tar sitt ansvar. Reformen har haft sina svårigheter men samtidigt bör det finnas i åtanken att den är tämligen ny. Det kommer ta tid tills systemet är integrerat. Samtidigt finns det en stor risk för att dominoeffekten uppstår i reformens rättssystem om det brister i ett av leden och då är vi tillbaka på ruta ett. / The reception of refugees and integrations have for a long period of time been considered to work poorly. The establishment of newly arrived didn’t go as fast as needed, and too few made contact with the working life.  It was clear that a change was necessary. The Swedish reception of refugees carried through with a big transformation of structure since parts of the integration considering labour-market establishment got moved from the local authorities to the Government. Throughout the new establishment reform the Government wishes to efficiently and quickly be able to establish newly arrived refugees into the working- and social life. The purpose is to achieve self-support. The reform contains new or changed areas of responsibilities for the municipality, the Employment Office, the county administrative board, the Swedish Social Insurance Agency and Swedish Migration Board. At the same time a new operator called “etableringslots” was introduced with the purpose of supporting and hastening the establishment of the newly arrived. Even though the reform was recently accomplished it is clear from certain sides that the new system fails on some certain parts. The new establishment reform is to this day a much discussed subject. Disagreements of opinions exist depending on which authority respectively individual that gets asked. A study got carried through, starting with the former system, to find out if the new establishment reform was good enough, if it was necessary and how it all works. Not only to get the theoretical part of the new system but to also get the practical part, interviews were made with the employment agency and the local authority. Closed examinations of some reports and investigations also occurred to get an answer of how it works when it is put into practice. All parties are required to fulfill their duties and their responsibilities so that the reforms result turns out well. The reform has had its difficulties but it should be kept in mind that it is fairly new and it will take some time for the system to get integrated. At the same time there is a great risk that the domino effect occurs in the legal reform if one of the trails fall and in that case we would be back at square one.

¡§Pawnbroking Industry¡¨ is an ancient industry in our country, its history has existed over one thousand year at least. Initially, pawnbroking industry began to develop from the temple. With the religious spirit of expressing humanitarianism, the temple used its principal to provide the poor with a method of loaning money. Nevertheless, as times goes by and a business characteristic of earning profits easily, the industry has gradually combined with usury behavior and transformed into another diverse sort of complex industry and fairly differ from the original concept of charity as well. As it¡¦s proclaimed in Article 8 of Constitution of the Republic of China that ¡§Financial institutions shall, in accordance with law, be subject to State control.¡¨ Even though, pawnbroking industry isn¡¦t a portion of financial institutions, it¡¦s still necessary to legally manage because the characteristic of making profit and the business model. Consequently, for the sake of achieving the above goal, our government established ¡§Pawnbroking Industry Management Directions¡¨ in 1940 to be in accordance with, and the directions have lasted for sixty years. Afterwards, to strengthen the lawful position and suit the demand of times change, ¡§Pawnbroking Industry Act¡¨ was legislated and declared officially in 2001, and the act became the significant legislation of pawnbroking industry management in our country. From then on, the official authority of pawnbroking industry management has been definitely empowered by the law, and been epochal significance in the history of pawnbroking industry management. The legal system of management is examined herein by the basic methods of administrative law, namely, the five major frameworks, including administrative principles, administrative organization, limitation of administrative power, administrative relief, and administrative supervision from every respect and viewpoint. Meanwhile, bibliography exploration, historical narration, comparative analysis, and practice observation are adopted as the principal research approaches to explore whether there¡¦s any improvement required regarding the legal system of pawnbroking industry management on the basis of five major frameworks of administrative law. Additionally, practical implementation and suggestions for regulations and actions concerning future pawnbroking industry management are hereby provided, which can be a reference for the police authorities in exercising their powers, establish the administrative standards of Taiwan according to law, and improving the legal appearance of our country under the rule of law.