Fraus Legis in Constitutional Law: The Case of Expropriation "Without" or for "Nil" Compensation

Fraus legis – defrauding or evading the application of law – is a phenomenon well-known to students of private law, but its application in public law, including constitutional law, remains largely unconsidered. To consider whether a transaction, or, it is submitted, an enactment, is an instance of fraus legis, an interpreter must have regard to the substance and not merely the form of an enactment. In 2018 Parliament resolved to amend section 25 of the Constitution of the Republic of South Africa, 1996 (the Constitution) to allow government to expropriate property without being required to pay compensation. While the public and legal debate has since before that time been concerned with "expropriation without compensation", the draft Constitution Eighteenth Amendment Bill, 2019 provides instead for expropriation where "the amount of compensation is nil". By the admission of Parliament's legal services unit, this is a distinction without a difference. But compensation and expropriation are legally and conceptually married, and as a result, it would be impermissible to expropriate without compensation – instead, nil compensation will be "paid". How does this current legal affair comport with the substance over form principle, and is fraus legis at play? This article considers the application of the fraus legis phenomenon to public law, utilising the contemporary case study of the Constitution Eighteenth Amendment Bill.

System of Zakat and Ushr – A Paradigm Shift after Eighteenth Amendment to the Constitution of Pakistan

Zakat and Ushr are important instruments of the Islamic fiscal system. It is an obligatory practice of Islam aiming to help the society and give the deprived ones a better life and opportunities. The fundamentals of the Zakat and Ushr system are clearly defined by Shariah however, its collection and distribution is the responsibility of the state. In this regard, Zakat and Ushr Ordinance 1980 was implemented in Pakistan. The 18th Constitutional Amendment was notified in the Gazette of Pakistan on April 20, 2010. This amendment has redefined the structural contours of the state through a paradigm shift from a heavily centralized to a predominantly decentralized federation. In this regard ministry of Zakat and Ushr was devolved at the federal level and powers were given to provinces to make legislations regarding the subject. After this change provinces made the respective legislations for Zakat and Ushr. In this article, this provincial legislation is reviewed to find out their harmony with the Income Tax Law and practical steps are suggested to achieve the very purpose of these legislations. These steps will increase the collection of Zakat and Ushr that would be helpful to alleviate the poverty and overcome the financial problems of our masses predominantly from agricultural areas of Pakistan. This paper aims to discuss the role of zakat and Ushr as a mechanism for poverty eradication. For this article, qualitative research methodology is used. The content analysis method is adopted for comparison, quantify and analyze the data. Available data on the subject, both in Shariah and conventional law, has been analyzed in detail.

Sindhi Nationalists

This chapter discusses the narrative of the three icons of Sindhi nationalism—G. M. Syed, Ibrahim Joyo and Shaikh Ayaz—and analyzes the separatist Sindhudesh detour as a sign of intra-ethnic outbidding between Syed and Bhutto. The chapter profiles the post-Syed landscape of Sindhi nationalism by focusing on the various nationalist parties led by Rasul Baksh Palijo, Qadir Magsi and others, and on issues such as the Kalabagh Dam, the NFC Award and the Eighteenth Amendment. The chapter sheds light on everyday nationalism as expressed through intellectual activities, musical sessions, anniversaries of the nationalist heroes, and meetings around Sufi shrines.

Conclusion

The conclusion sums up the key findings about the politics and sociology of Sindhi nationalism, beginning with identity construction in Sindh during the British period, inspired by crucial changes in the domains of language, culture, economy and demography. The partition and arrival of Muhajirs in Sindh precipitated the emergence of a ‘sons of the soil’ movement, which was doubly threatened by a hegemonic, interventionist Centre and the dominant ethnic minority of Muhajirs. The conclusion examines the dual role of the PPP as an ethnic entrepreneur in Sindh and a federal party in the country as a whole. Finally, it focuses on the tug-of-war between the Centre and Sindh—under the pressure of Covid-19—over issues of provincial autonomy, especially that of the Eighteenth Amendment and of local government.

The Eighteenth Amendment and its Impact onFunctionability of Provinces

Federalism has remained one of the thorniest issues in the history of Pakistan. The national consensusbased on 1973 constitution triedto resolve the issue by providingFederal, Concurrent and Residual powerslists in addition to detailing fiscal federalism.The inability to realise thecultural identities had developed deep seatedsense of alienation inthe smaller regional units (provinces)and consequently engineered separatist tendencies which led tothe separation of East Pakistan. The demarcation of powers of administrative and financial authorityvis-à-vis thefederation and the provincesalwaysremaineda contentious issue.Finally, the18thamendment wastermed as a genuine move towardsreal federal democracy by abolition of the concurrent list,giving the provinces access to their resources and acknowledging their right to make policies for revenue generation. However, still questions are beingraised about the capacity of the provinces to deliver. This research article assesses results ofthe 18thamendment on the functionability of provinces in terms of strengthening national integration and good governance. Moreover, the research examines exact nature and extent of the autonomy allowed to the provinces and its implementation. The province of Khyber Pakhtunkhwa has been selected as a case study with the help ofinterviews and questionnaires as data collecting tools. The research establishes that the 18thamendmentis a significant headway towards provincial autonomy enabling the provinces to acquire enough legal and financial autonomywith allocation of resources,as well as the capacity to expand the revenue base.It is concludedthat the 18thamendment has ensureddecentralization leading to true federalism and national integration.

3. Prohibition

January 16, 1920 was the last day that Americans could legally buy a drink before both the Eighteenth Amendment and the Volstead Act went into effect. Whenever a substance is banned, the price goes up and the product returns in a more concentrated form, or a replacement appears. ‘Prohibition’ explains how beer was replaced with distilled spirits; prohibition brought back the very hard liquor that the original temperance movement had despised. Bootleggers supplied imports, home distillation of moonshine increased, prices soared, and criminal gangs quickly gained control of urban distillation. Prohibition did not stop drinking, but it did promote thugs like Al Capone, who both got rich and paid no taxes.

Prohibition: A Very Short Introduction

Prohibition: A Very Short Introduction traces the origins of prohibition back to the evangelical-based voluntary abstinence temperance movement in the early 1800s. It makes clear that public support for prohibition collapsed due to gangster violence and the need for local, state, and federal government alcohol revenue during the Great Depression. Americans have always been a hard-drinking people, but from 1920 to 1933 the country went dry. After decades of pressure from rural Protestants, the states ratified the Eighteenth Amendment to the Constitution meaning alcohol could no longer be produced, imported, transported, or sold. How and why did prohibition come about? How did it work? And how did prohibition give way to strict governmental regulation of alcohol?

Introduction

From 1920 to 1933 the Eighteenth Amendment to the United States Constitution banned the production, sale, or transportation of alcoholic beverages. The Introduction explains that this VSI is about both prohibition and the century-long campaign that led to that result. The American dry movement was part of a global effort to ban or control alcohol and other drugs, which began with the Enlightenment, gained strength during religious-based moral uplift and industrialization in the 1800s, and peaked after 1900 amid rising concerns about public health, family problems, and the power of producers to entice overuse. How and why was prohibition adopted? What kind of alcohol policies were adopted when prohibition ended in 1933?

“I Do Not Mean to Frown on Everything the Men Propose”

California’s first four assemblywomen began their historic tenure in 1919 in the state’s Forty-Third Session of the Legislature. They joined a growing number of women elected to state legislatures before ratification of the federal suffrage amendment. Entitled to run for office when enfranchised by the state in 1911, and elected in 1918, Esto Broughton (Stanislaus County), Grace Dorris (Kern County), Elizabeth Hughes (Butte County), and Anna Saylor (Alameda County) challenged the all-male exclusivity of the legislature by creating political space for women’s equal inclusion and bringing the value of their diversity as women into lawmaking. Intersectionality informs this history, because assemblywomen’s status as white, middle-class women enabled them to ally with men of similar status and to focus on progress for women of their race and class. Contributing to the history of early women in elective politics, and drawing on newspaper and state legislative records, this article explores how the assemblywomen downplayed their gender in self-presentation but focused on it in legislation. The first four women, moreover, voted on two amendments to the U.S. Constitution, beginning the legislative session with ratification of the Eighteenth Amendment and concluding the year with a vote for the Nineteenth Amendment. Their efforts as California’s first legislators solidified the value of women’s diversity in the legislature and, by voting to extend woman suffrage nationwide, they ensured women’s continued inclusion in elective politics.

Preface

This book is about the women who went to my grandmother’s funeral. On January 2, 1933, Belle Lindner Israels Moskowitz, adviser and political strategist to former New York State governor Alfred E. Smith, died unexpectedly of an embolism. Her funeral at Temple Emanu-El in Manhattan attracted some three thousand mourners. Among them were dozens of prominent men, many of them members of New York’s political and reform elites. Dozens of prominent women were there too. Newspapers listed some of them: Eleanor Roosevelt, Democratic Party activist and wife of President-Elect Franklin D. Roosevelt; Frances Perkins, New York State commissioner of labor, soon-to-be US secretary of labor, the first woman to serve in a presidential cabinet; Pauline Morton Sabin, a Republican and founder of the National Organization of Women for Prohibition Reform, a key player in winning repeal of the Eighteenth Amendment; popular novelist, screenwriter, and civic activist Fannie Hurst; Jane Hoey, head of the New York City Welfare Council and later a bureau head in the Social Security Administration; and attorney Anna Moscowitz Kross, soon to be one of Manhattan’s first women magistrates and twenty years later the city’s commissioner of corrections....