Constitution of Three Countries - Research Paper Example

? Constitution of Three Countries al Affiliation In the early days, not all nations were governed using a constitution, but today the constitution has been adopted by almost all nations around the world. There are those nations whose constitution is written, while others have opted to have theirs in oral form. The constitution has the responsibility of ensuring that any particular government adheres to the rights of the citizens, while at the same time ensuring that the citizens do not violate the laws of the government. It thus ensures that there is equilibrium in any particular country. The judicial branch as outlined by the constitution has been given the responsibility of ensuring that the constitution is well implemented by the help of the court system and judges. This research paper will look at the constitutions of Britain, Kenya, and China and compare them with that of the United States. Through this, it will be realized that each country’s constitution varies when it comes to the court system, but at the same time, there are some similarities that exist. Keywords: Constitution, Court System, United States, Kenya, Britain, China, America, Term Limit, Age Limit Introduction Constitutions have existed for decades. Among the earliest constitutions is the constitution of England, which was written in 1215 in England (Thomas, 2008). This essay compares and contrasts the constitutions and court systems of three countries, which are Britain, Kenya and China, with that of the United States. The courts have the responsibility of ensuring that the constitutions are well implemented, either by the government or by the people or citizens of a particular country. What is a constitution? A constitution is referred to as “a written set of rules for a country” (Thomas, 2008, p. 6). According to Thomas, the constitution usually “says what the government must do for the people and what the people must do for the government” (2008, p. 6). A constitution also defines the kind of government in a nation and the rights of the people. Before, not many countries or nations had a constitution but today, nearly every nation has a constitution, including the smallest nations that ever existed before (Thomas, 2008). While some nations may have their constitution in a number of documents, some have it in a single document. It has been discovered that most of these constitutions are very similar in some ways. The people who wrote the United Sates constitution worked really hard to make the best system of rules they could. Structures of the Court Systems of the United States, Britain, Kenya, and China United States Court System Structure Court of Last Resort or the Supreme Court: This is the most superior court in America and the final place where litigants can file appeals for their cases (“Introduction to the Court System,” 2003). The appeals received in this court are mainly from the middle appellate courts (“Introduction to the Court System,” 2003). Appeal Courts: These courts come in between the Supreme Court and the trial courts and are found in the federal governments. Their jurisdiction is broader than the Supreme Court’s. They are responsible for reviewing the facts and the law of a case. They are also referred to as the intermediate or middle appellate courts (“Introduction to the Court System,” 2003). Trial courts: They are typically known as courts of general or original jurisdiction; this is usually where a case starts. The judges and juries of these courts are given the responsibility of listening to witnesses, examining the evidence, and giving rulings. If the parties involved are not satisfied, they then appeal to the Court of Appeal, and later to the Supreme Court. These courts are given names according to the types of cases they handle and their locations. These courts are also found in the federal government (“Introduction to the Court System,” 2003). Britain’s Court System Structure The structure of the British court system is rather complex compared to court systems in other nations. This is because there are three legal systems; that is, England and Wales, Scotland, and Northern Ireland. The courts are divided into criminal and civil courts. European Court of Human Right (Criminal Court division): This the top most court in the criminal division. It has the responsibility of adjudicating alleged human rights violations (“Hierarchy of Courts,” 2012). The Court of Justice of the European Union (Civil Courts division): It is the top most court in the civil division. It is comprised of three courts; the European Court of Justice which answers the question of European law, the General court of the European Union which also has the jurisdiction of answering questions of the European law, and the Civil service Tribunal which has specialized in deciding disputes between the EU and its civil service (“Hierarchy of Courts,” 2012). The Supreme Court of the United Kingdom: This comes second after the European Court of Human Right (ECHR). All criminal cases from North Ireland, Wales and England have the Supreme Court of the United Kingdom as their last court of appeal (“Hierarchy of Courts,” 2012). The civil courts division also has a Supreme Court and it is the final court of appeal for all civil cases in the United Kingdom (“Hierarchy of Courts,” 2012). Court of Appeal: It is found in England and Wales, and Northern Ireland. It handles appeals from the crown courts and the ruling is made by a single judge or court. There is also a Court of Appeal in the civil courts division, which hears the appeals from the High Court, tribunals, and some cases from the country courts (“Hierarchy of Courts,” 2012). Crown Courts: They are found in England, Wales, and Northern Ireland. Crown courts have the responsibility of hearing appeals from the Magistrate courts (“Hierarchy of Courts,” 2012). High Court of Justice: Instead of having the crown courts in the criminal courts division, the civil court division has the high court of justice. It is comprised of three courts; the High Court Queen’s Bench division, the High Court Chancery division, and the High Court Family Division (“Hierarchy of Courts,” 2012). Magistrate Courts: They handle trials of less serious crimes or summary criminal offences. In the civil division, there is the magistrate court, which handles issues related to care proceeding, residence, maintenance, contact, and paternity (“Hierarchy of Courts,” 2012). Sherriff’s courts: In Scotland the court processes serious criminal offences. Also there are sheriff’s courts in the civil court division which are the general trial courts for lower value and less complex claims (“Hierarchy of Courts,” 2012). District courts: This is the last court in the criminal division of the United Kingdom. In Scotland, these courts preside over trials of relatively minor criminal offences. The last courts in the civil courts division are the tribunals, and each tribunal is specialized in a particular area (“Hierarchy of Courts,” 2012). Kenya’s Court System Structure According to Kotze and Paterson, the legal system of Kenya is “based on English common law but has elements of customary law and religious law (mainly Islamic law)” (2009, p. 462). It is divided into, the High Court, the Court of Appeal, the Magistrate courts and the District magistrate courts. The High Court is the most superior court with unlimited jurisdiction in civil and criminal matters. The next court in the hierarchy is the Court of Appeal located immediately after the High Court. The next courts are the Magistrate Courts, which are established under the magistrate courts Act (Kotze & Paterson, 2009). They have jurisdiction over criminal and civil cases, but the powers of the magistrate are limited when it comes to the civil cases. The next courts are the Districts Magistrate Courts, which also have jurisdiction over criminal and civil matters (Kotze & Paterson, 2009). China’s Court System Structure In china, there is no separation of common courts and administration courts, nor civil and criminal courts and as in the case of Britain. According to Jiang, “there are four tribunals in each court, namely the civil tribunal, criminal tribunal, economic tribunal, and administration tribunal” (2006, p. 44). In china, the highest court is known as the Supreme People’s Court; it receives and reviews complicated cases and appeals from the appeal court. It is also responsible in supervising the lower courts. The second highest court in china is the High People’s Court; it is responsible for appellate jurisdiction and supervision of the lower courts within its province. The other courts are the Intermediate People’s court where those cases not dealt with by the district and county courts are filed. Normally these courts are complicated in nature (Jiang, 2006). Election or Appointment of Judges, Term and Age Limits, and Bench or Jury Trials America: Judges in America are lawyers, who are either elected or appointed, but most are elected. The governor in each state is responsible for appointing the judges for his or her state. The president also has the powers to appoint judges who are approved by the senate (Sidlow & Henschen, 2009). In America, the judges do not have term limits, especially the Supreme Court judges. From the age of 65, judges are allowed to retire, while some do retire, others opt to take more senior positions, which require them to have 15 years of service, making 80 the maximum age for retirement (“Federal Judges,” n.d.). The American legal system holds both jury and bench trials. Although most cases in America and especially the criminal ones are decided by the jury some are decided by the judge without a jury (Hatch & Lisa, 2011). Britain: Unlike in the United States, in the United Kingdom (Britain), no judge is elected. Rather, the judges are appointed by the Lord Chancellor on the advice of a panel of experts and lay persons, and not by the government itself. In Britain, when one is above the age of 18 years, he or she can become a judge, but the retirement age of every judge is 70 years. The length of service is usually five years. In Britain, the jury trials were introduced after the twelfth century, prior to this, trials were carried out by the church. Britain uses the jury trial because through it, judgments are much fair. Kenya: In Kenya, the Chief Justice, who is the head of the Supreme Court is appointed by the President (Mbote & Akech, 2011). The appeal and the puisne judges are recommended by the Judicial Service Commission, but are appointed by the president. The other judges such as the magistrates, Chief Kadhi, and Kadhis are appointed by the Judicial Service Commission. In Kenya, the retirement age of every civil servant is 60, but the age limit of judges has been increased to 70, especially judges of the high court, the court of appeal, and the Supreme Court. Thus when ones age of retirement arrives, then his or her term ends. In Kenya, the jury trial was removed with the end of the colonial rule. Only the magistrate, the judge of the high court, or a panel of several judges on the court of appeal can make decisions on a criminal case. Thus in other words, Kenya’s legal system uses the bench trial and not the jury trial (Mbote & Akech, 2011). China: Most of the time, China’s judicial system only refers to the people’s court system. The judge and procurators in china are selected and appointed by the standing committees of the respective people’s congress, while assistant judges are appointed by the respective courts (Fleitas, 2005). The jury trial system where the jury gets to decide on both fact and law is used. China’s constitution has stated well that all power is bestowed on the people. The jury gets to facilitate and pass fair judgments (Fleitas, 2005). According to my research, I would say that, the courts of the United Kingdom though complicated compared to the courts of the other three countries, are more organized. The courts have been organized in a way that they reach even the common man. The time limit in Britain is also good. The number of years a judge should take Britain is five, and this tends to make them work hard from the onset, as they aim to make an impact during that short time. When a judge knows that he or she is there for a life time, he or she tends to be reluctant. In the research, I have realized that the United States can borrow some aspects from the other three constitutions, but the best court system as I have found in my research is that of the United Kingdom. The courts have been divided, such that those that deal with criminal offences are distinct from those that deal with civil offences. This has enabled the court system in United Kingdom to be very fair to the entire nation. I would recommend change for the United States court system, since by separating criminal and civil courts the system can function better and more efficiently. The term of the judges should be adjusted to around five to ten years so that they can be more reliable during their respective reigns. Reference List Federal Judges. (n.d.). Retrieved November 13, 2013, from http://www.uscourts.gov/Common/FAQS.aspx. Fleitas, R. F. (2005). The “Jury System” of the People’s Republic of China. Retrieved November 13, 2013, from http://www.fleitasbujanlaw.com/docs/Article.pdf. Hatch, S & Lisa, Z. H. (2011). Paralegal Career for Dummies. Hoboken: John Wiley & Sons, Inc. Hierarchy of Courts in the United Kingdom. (2012). Retrieved November 13, 2013, from http://www.findlaw.co.uk/law/dispute_resolution/courts_system/court_and_tribunals/500114.html. Introduction to the Court System. (2003). Retrieved November 13, 2013, from http://euro.ecom.cmu.edu/program/law/08-732/Courts/0IntroToTheCourtSys.pdf. Jiang, Qing-Yun. (2006). Court Delay and Law Enforcement in China: Civil Process and Economic Perspective. Wiesbaden: Deutscher Universitats Verlag. Kotze, L, J & Paterson, A. R. (Eds.). (2009). The Role of the Judiciary in Environmental Governance: Comparative Perspectives. Alphen aan den Rijn: Kluwer Law International. Mbote, P. K. & Akech, M. (2011). Kenya: Justice Sector and the Rule of Law. Nairobi: open Society Initiative for Eastern Africa. Sidlow, E. I, & Henschen, B. (2009). America at Odds, Alternate Edition. California: Wadsworth Cengage Learning. Thomas, W. D. 2008. What is a Constitution? New York: Gareth Stevens Publishing. Read More