Modifications of Efficacy

Prorogation of Efficacy

A prorogation source provision establishes that a prorogated target provision initially due to lapse out of efficacy at time t_1 retains its efficacy for an additional period. This period may be stated or not.

Example 1
Italian Law
Official Gazette of the Italian Republic, issue no. 120, General Series, Part 1, of 26 May 1997.
Ministry of Health ORDINANCE of 13 May 1997: Prorogation of the legislation regulating health services delivered to foreign persons temporarily residing in Italy
The Ministry orders
Art. 1
The efficacy of the Ministry ordinance of 15 Nov. 1996, as herein referred to in the premise, is extended by ninety days.

Suspension

A suspensive source provision suspends for a time—an interval specified at both beginning and end—during which an otherwise applicable suspended target provision does not apply. Suspension of a normative provision does not affect its being in force.

Example 1
Laws of the Federation of Nigeria
Nigeria Reinsurance Corporation Act
Act n. 325 of 1990
5.(1) The Minister may give to the Board directions of a general or of a special nature with regard to the exercise of the functions of the Corporation; and, as the case may require, it shall be the duty of the Chairman, the Board and the Managing Director to comply with the directions unless matters of policy are in dispute.
(2) In the application of subsection (1) of this section, where the Minister intends to initiate a policy affecting the exercise of the functions of the Corporation, he shall consult with the Board and in the event of disagreement between the Minister and the Board over the implementation of that policy, the policy and any directive issued in that respect, shall stand suspended, so however that if any part of the policy so in dispute is severable from any other aspects of the policy not in dispute, the policy or the directive issued shall be suspended only in respect of the part in dispute; and thereafter the policy, or the part in dispute, so suspended shall, upon its being referred by the Minister to the National Council of Ministers, be affirmed, modified, or rejected by that Council, and the Council may give such directions thereon as it thinks fit.

Example 2
The Constitution of the Republic of South Africa, 1996
Existing legislation outside Parliament's legislative power
15. (1) An authority within the national executive that administers any legislation falling outside Parliament's legislative power when the new Constitution takes effect, remains competent to administer that legislation until it is assigned to an authority within a provincial executive in terms of item 14 of this Schedule.
(2) Subitem (1) lapses two years after the new Constitution took effect.
Elections of National Assembly
6. (1) No election of the National Assembly may be held before 30 April 1999 unless the Assembly is dissolved in terms of section 50(2) after a motion of no confidence in the President in terms of section 102(2) of the new Constitution.
(2) Section 50(1) of the new Constitution is suspended until 30 April 1999.

Inapplication (or Disapplication)

Inapplication causes a normative provision to lose its efficacy (i.e., the norm can no longer be applied), which often happens when one norm overlaps with another in regulating the same subject matter; in these cases, one of the two norms makes the second inefficacious (one norm giving way to the other). The most common case occurred when the European Communities Law regulates a matter already regulated by National Legislation, as well as when a Regional Law introduces a detailed regulation about a topic in a National Law. Some Italian constitutional doctrine observes that the longer a norm remains unapplied, the likelier it is to remain applicable when a concrete case comes up. It would be interesting to see whether overuse of inapplication as a substitute for repeal can be prevented: in fact, extensive inapplication carries the same practical effect with respect to the citizen as full repeal does with respect to the system of the sources of law. Inapplication can also be likened to suspension, but for the fact that it involved a more complex hierarchical arrangement among norms.. In the following case it is interesting to note that a Regional Law takes inapplicable an article of National Law. When this Regional Law will be repealed, all the modifications continue over time to perform their effect: otherwise to delete a normative provision including an inapplication produces as a side effect the wake-up of the normative provision which the inapplication is applied. So if this Regional Law will be repealed the art. 24 of the law n. 390 of 1991 acquires immediately efficacy. This is an effect of the subsidiary principle of the norms in the hierarchy of legal sources, often used also by European Union institutions. In order to do not create terminology confusion with others meaning of “disapplication” (see the Ghana example 5 in the paragraph 8.1 Exception) we decide to introduce a neutral term, “inapplication”, for pointing to this particular kind of situation between different levels of legal sources.

Example 1
Italian Regional Law
Regional Law no. 6 of 17 Feb. 2005
Art. 71
Repeals and In-applications to some laws
omissis
5. For the administrations not included in the definition of the letter g) comma 2 of the article 117 of the Constitutional Law, it is inapplicable the article 24 of the law n. 394 of 1991.

Retroactivity

Retroactive modification establishes that a given normative provision becomes efficacious (operative) at some time before its entry into force.

Example 1
South African Law
Amendment of Schedule 1 to Act 9 of 2005
60. (1) Schedule 1 of the Taxation Laws Amendment Act, 2005, is hereby amended by
the substitution in paragraph 2 for subparagraph (d) of the following subparagraph:
‘‘(d) on each rand of the taxable income derived by any company from mining for
gold on any gold mine with the exclusion of so much of the taxable income as
<omissis>
(2) Subsection (1) is deemed to have come into operation on 1 April 2005 and applies in respect of any year of assessment which ends during the 12 months period commencing on that date and ending 31 March 2006.

Example 2
South African Law
Act n. 32 of 2005
Short title and commencement
136. (1) This Act is called the Revenue Laws Amendment Act, 2005.
(2) Save in so far as is otherwise provided in this Act or where the context indicates otherwise, the amendments effected to the Income Tax Act, 1962, by this Act shall for purposes of assessments in respect of normal tax under the Income Tax Act, 1962, deemed to have come into operation as from the commencement of years of assessment ending on or after 1 January 2006.

Example 3
South African Law
Act n. 13 of 2000, Assented to 1 May 2000.
Independent Communications Authority of South Africa Act
Short title and commencement
25. This Act is called the Independent Communications Authority of South Africa
Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette, except section 18(2) which must be regarded as having come into operation on 30 March 2000.

Odd Example 4
Ghana Law
Act 689, Stamp Duty Act, 2005
Date of Gazette notification: 3rd June, 2005.
Commencement
52. The Act shall come into force on 1st January, 2005.
(note: in this case the date of publication is posterior respect the date of enter in force, therefore it is supposed that the legislator when talk about "came into force" probably intend "come into operative" in other word it is a modification of the efficacy not of the enter in force.)

Odd Example 5
Mozambique Law
Lei 9 of 2002 published in the Series I Number 7 13th February 2002 and promulgated 12 February
2002

Extra Activity

This modification causes a given normative provision to remain efficacious beyond the time of its repeal.

Example 1
Italian Regional Law
Emilia Romagna Regional Law n. 10 of 25-05-1999
Right to education and life-long learning and qualification of the integrated training system
Article 17 - Transitory norms
1. The regional norms repealed by art. 16 continue to be applied to the procedures for distributing financial support, and such application will last until the yearly program regulated by art. 9, paragraph 2, will be approved.

Postponement of Efficacy

This modification causes a given normative provision to become efficacious at some time after its entry into force.

Example 1
South African Law
Act n.8 of 2006
(Assented to 20 July 2006, published GOVERNMENT GAZETTE. At 25 July 2006)
Short title and commencement
2. This Act is called the Repeal of the Black Administration Act and Amendment of
Certain Laws Amendment Act, 2006, and comes into operation on 30 July 2006.

Example 2
South African Law
TWENTY-THIRD AMENDMENT TO THE CIVIL AVIATION REGULATIONS, 1997
Short Title and Commencement
67. (1)This Amendment is called the Twenty -Third Amendment of the Civil Aviation
Regulations, 1997, and will subject to the provisions of sub-regulation (2), come into
operation on the date of publication thereof.
(2) Regulations 30, 36, and 51 will come into operation on 01 October 2006

Conditional Temporal Modification

In this kind of modification the textual change is conditional upon three possible different causes: connected to particular factual cases (e.g. all the public employees), applicable only for a particular space location (e.g. Zanzibar), or upon the occurrence of a future event, such as the enactment of a regulation. In case of future event—which may or may not take place, and it therefore indeterminate—stands as the condition failing which the textual modification does not apply.

Example 1
Tanzanian Law - Act applicable only to Tanzania Mainland, geographic conditional.
Act n. 22 of 2001
An Act to establish the Tanzania Commission for AIDS, to provide for the prevention and control of AIDS and to provide for the Commission's Composition, functions, objectives, coordination and for connected matters.
PART 1
PRELIMINARY PROVISIONS
Short title and commencement
1. This Act may be cited as the Tanzania Commission for AIDS,
Act, 2001 and shall come into operation on such date as the Minister
may, by notice published in the Government Gazelle, appoint.
Application
2. This Act shall apply to Tanzania Mainland only.

Example 2
enter in force of the Property Valuation Ordinance, 1993 (Cape)conditioned to two different cases
Amendment of section 93 of Act 117 of 1998, as amended by section 11 of Act 33 of 2000
21. Section 93 of the Structures Act is hereby amended by the addition of the
"(7) Despite Proclamation No. 148 of 8 December 1993 (Province of the Cape of Good Hope Gazette 4833 of 22 December 1993) and section 38 of the Property Valuation Ordinance, 1993 (Cape), the said Ordinance is deemed to have come into force-
(a) for the purposes of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), immediately before the commencement of that Constitution; and following subsections:
(b) for all other purposes, on 1 July 1994.
Omissis

Example 3
South African Law
Act n. 75 of 1997
Application to public service
2. This Act, except section 41. does not apply to the public service for 18 months after the commencement of this Act, unless a bargaining council concludes a collective agreement that a provision of this Act will apply from an earlier date.

Example 4
Uganda Law
Act n. of 2003
1. Short title and Commencement.
This Act may be cited as the Public Finance and Accountability Act, 2003.
This Act shall come into operation on a date appointed by the Minister by statutory instrument.
Different dates may be appointed under subsection (2) in respect of different provisions of this Act..

Next: Legal System Modifications

Previous: Modifications of Force

Personal tools

Document Actions