In the previous post, I argued that legal form cannot and should not be used to allocate governmental powers and responsibilities between the federal government on the one hand and constituent units of the federation, i.e., regional states, on the other. On such basis I argued that criminal law as a form of law cannot be said to belong to the federal or regional level of government. Hence, I have cautioned against the literal and independent reading of article 55(5) of the constitution which says that the House of Peoples’ Representatives shall enact a criminal code and regional states shall enact criminal law on matters not covered by the federal criminal legislation.
I submitted that this constitutional provision should be read in light of Article 51 which deals with the powers and responsibilities of the federal government. Accordingly the federal government can pass any kind of law, including criminal law, on matters which fall under the jurisdiction of the federal government. Such matters are provided in Article 51. It is, therefore, the duty of the federal government to demonstrate that the criminal laws it has passed or plans to pass are relating to matters falling under one or more of the twenty-one items in Article 51 and other parts of the constitution. Regional states, on the other hand, can pass criminal legislation on matters which are outside the federal jurisdiction.
I finished the last post by posing a question. Regarding forestry offences, for example, can regional states provide for a higher penalty than what is provided in the federal law for the same offence? I will add another question here and address the two together: can regional states expand or contract the scope of federal offences relating to forestry?
As I have said, if we read Article 55 of the constitution literally and independent of Article 51, we ask a simple question: is the offence provided in the federal criminal legislation? If the answer is yes, then it follows that a given regional state can neither provide for a higher penalty nor expand and contract the definition of the relevant forestry offence. But I have suggested against this rather simplistic reading of the relevant constitutional provisions.
In my view, in order to answer the above question, we must first determine the respective roles of the federal government regarding management of forest resources? Does the federal government have exclusive power over the management of our forest resources? If the answer to this question were yes, then it follows that the federal government would have the exclusive power to develop and enforce forest laws, including criminal laws relating to forestry. But the constitutional reality is different.