Judicial, Executive and Legislative Bodies in the UK - Essay Example

Law Topic: Critique Chapter 18 of this book discussed about the general relations of the judicial, executive and legislative body by examining the interrelations of judicial system and its machineries while asserting the primordial interest of protecting decisions that favor justice and not of the government. Author focused on the process involved in the appointment of justices and the principles adhered to ensure its independence; the significance of fair trial and how this is equitably treated with the freedom of expression viz the right of court to hold anyone in contempt; and the functions of the executive body in the dispensation of justice, however with focal interest on Lord Chancellor’s role in the prosecution of accused and those matters affecting miscarriage of justice1. This is an exploration about judicial system and its machineries as well as an attempt to recognize and critic some gaps in this literature. British Judicial system The chapter pointed that UK has three court systems. These are in England and Wales; in Scotland and in Northern Ireland. These are independent institutions but the judges and its practitioners are appointed to the Court of Justice, Court of First Instance of the European Communities and to the European Court of Human Rights.2. Author emphasized that UK’s judicial system is not solely focused on civil and criminal adjudications since the parliament made some tribunals as special courts e.g. for election, labor cases, and patent courts. The structure and hierarchy of the court system in England and Wales was also detailed, being the High Court that also decides for cases requiring judicial review and question of laws, although following Constitutional Reform Act 2005, the court is now named as the Senior Courts of England and Wales.3 The broad civil jurisdiction is under the jurisdiction of the country courts and of magistrates’ courts under Legal Services Act 1990.4 The criminal jurisdiction is likewise at the Court of First Instance where the magistrates does a summary trial while those in jury trial by the Crown Court following Courts Acts 1971 (p. 386). Appeals are done to Queen’s Bench Divisional Court of the High Court, to the Court if the High Court, or to the Court of Appeal of the Criminal Division.5 In Scotland, the civil cases are held by the Court of Session, with hierarchy of body to hear cases subject for appeal. Meanwhile, the High Court of Justiciary has jurisdiction on the criminal cases, either for trial or for appeal. The district courts are also mandated of summary criminal jurisdiction. House of Lords has jurisdiction over civil cases while devolution cases, and criminal matters, are heard in the Privy Council. In Northern Ireland, the Court of Judicature of Northern Ireland has jurisdiction of all cases.6 The author affirmed that following rules and administrative polices, judiciary maintained its independence from UK’s legislative body, albeit some judicial matters are subject to policies formulated by the legislative body.7 Numerous laws have evolved the procedural processes within the House of the Lords through historic legislation of policies deemed significant in systematizing the procedural aspect of adjudicating cases. The House of the Lords however remained bereft of authority or jurisdiction over Scottish criminal cases.8 One is certain though that the House of the Lords has influential power in the legislation of policies through the “system of precedent” until its amended to free the system from the rigidity to avoid injustice and may hinder policy change.9 In 2010, UK developed its Supreme Court that would hear cases on appeals from the House of the Lords and the devolution of Privy Council’s jurisdiction. The SC mirrors the function of other organized civilization and maintains independence from the two other branches of the government whose luminaries are appointed in accordance to Constitutional Reform Act 2005 although the qualifications remained based on the Appellate Jurisdiction Act of 1876.10 The procedure of the appointment requires the participation or nomination of the Prime Minister and the Queen’s approval. In case of vacancy, the adhoc Supreme Court Selection Commission with representatives from Judicial Appointments Commission from Scotland and Northern Ireland11 will decide for the selection process based on existing regulation. The executive body however, in the process of appointment, wields its decision based on merits on who would be conferred with the mandate and authority to manage the justice system and in accordance to the advices and recommendations forwarded by mandated authority.12 The author likewise detailed the qualifications of appointee as set by laws, albeit variation of these credentials required in Northern Ireland, in Scotland and in Wales, provided, that these are men of integrity and of quality as good judge.13 The procedural aspect of appointment is however questioned often by critics for its lack of transparency and their demand to democratize the process by engaging some luminaries through consultative processes in the selection of appointees.14 Except for High Court, the Lord Chancellor immediately accepts recommendations and appoints an applicant, although complaints can be accommodated by the Judicial Appointment and Conduct Ombudsman with sensitivity to ‘equality of opportunity in the process of appointment.15 All of the appointees will work to administer justice in accordance to laws.16 Author was right to articulate that while the court is not a representation of the sectors of the society the bench however is not oblivious of the laws against discrimination—in sex and in limitations to abilities.17 Under reform act, the independence of the judiciary is further affirmed. Judges salaries are now governed by statues, protected by security of tenure and enjoying immunity from liability in the performance of their obligations in accordance to Crown Proceedings Act of 1947.18 They also sheltered from political pressures, although this does not hinder officials to raise commentaries in some major decisions made by court, especially those affecting public interests, civil rights and national security. On some significant public policies that will affect them, judges may be able to express their view through the media if it necessitates an explication of judicial role. Court’s immunity is further limited by the mandates accorded to jury in criminal cases as a constitutional safeguard and measures. While the court advocate for fair representation and enjoyment of fair processes in accordance to rules of court, it will not hesitate to wield its power to contempt. Such is essential to safeguard the administration of justice against those who’d pose a risk, impede or interfere in the administration of justice and those who’d contravene against the ‘strict liability rule19 as stipulated in Court Act 1981. The court explained that it is part of exacting obedience from a person who disregards the rules of the court; hinders the administration of justice by disobeying orders in the face of court.20 However, while the court asserts independence, it cannot be totally separated to other branches of the government since there operations correlate with each other being foundations of society and governance. While the executive body is mandated to enforce plans and laws; the legislative bodies formulate policies; the judicial body p interprets and dispense laws for justice.21 Author accurate pointed that in Britain, there is no ministry of justice that conducts investigations on issues affecting the public; recommends suit or action as remedies; and works the administrative side of the legal system within the bureaucracy of the government. However, these are assumed by the Department for Constitutional Affairs, as a machinery of justice, and a Department of Justice in Scotland under the executive office and in accordance to Scotland Act of 1998.22 The creation of this office has implications to the reduction of the role of the Lord Chancellor. Other part of the machinery justice includes the Attorney-General and Solicitor-General as the Law Officers of the Crown who’d perform its obligation as executive representative or as its legal adviser. In Scotland, the DoJ’s functions cover court administration, legal aid, criminal matters and electoral process. The chapter likewise assailed the role of the Crown Prosecution Service to prosecute offenses after due determination of the probable causes that will warrant for the recommendation of litigation in the name of public interest and rule of law.23 However, judges are motivated to practice its profession with due diligence and in accordance to legal ethics, so as not to employ miscarriage of justice. Evolution of the Judiciary The book substantially discussed about procedural aspects about how British judicial system works and operates using its machineries, taking into light the historical evolution of its judicial operations following the introduction of the Constitutional Reform Act 2005.24 But since the creation of the Supreme Court has just been recently made effective to decide on questions of laws and to tackle issues appealed for final adjudication, there are not much substantial details that can be empirically drawn to measure its effectiveness. However, the creation of the SC provides an impetus that improves the judicial system of Britain.25 The chapter attempted to consolidate historical details of the justice system taking into details some accounts but it wasn’t able to make comparable difference from other existing judicial systems of advanced civilizations. It is affirmed that some legal principles were identified to guide the legal procedural processes and are actually, fundamental concepts. Such illustrate the depth of intellectual understanding of the writer of the book about the adversarial feature of the inquisitorial process.26 But despite these depths, it cannot be ascertained if it’s able to bridge the four principal sources of UK laws: are legislation, common law, European Union law and the European Convention on Human Rights since legal luminaries constantly insist that there is no single compounded documents which contains all UK laws, including those policies pertaining to judiciary.27 On the substantive aspect, the author failed to mention that the legal system of England and Wales used common law, thus, the decisions of the senior appellate courts form part of the law of the land. It also failed to explicate how the judicial system works on cases that covers issues pertaining to European Union Law since UK is among the member state of the European Union (EU)—which implies that EU law has precedence over UK law. It is significant to emphasize that as signatory to European Convention on Human Rights (ECHR), the Human Rights Act 1998, which became effective in October 2000, mandates the judiciary system to protect the rights stated in the ECHR.28  On the technical aspect, there is obvious negligence to discuss about the judiciary system deals with criminal issues arising from administrative matters, such as corruption of public officials and how these could often affect the independence of the executive and judiciary since its relation is dichotomized: independent from each other but interdependent on matters involving public policy. Challenges in Judicial System Administration in the judiciary is aspect in judiciaries’ operations affecting rights of individuals and of the public. It highlights the democratic rights in relation to the state, as well as, how it must protects vested interests in business, property and human rights.29 It relates the values of that are essential in justice management such as uniformity, impartiality, flexibility and the cost. However, while its right that for the government of law to triumph, then the judicial body must ensure that civil and criminal, and anent laws, are interpreted judiciously in accordance to its letters and intents. There are of course possible conflict that in the process of upholding the efficiency and fairness as pressures in managerial administration will come in affecting impartiality and judiciousness in decision-makings. Some of these decisions are maybe as complicated akin to administration itself since there are enforceable interests that will arise from social welfare developments, assertion of land rights, business management, revenue generation and the actual dispensation of justice.30 In ancient days, the judicial system was administered by laymen. In court, parties to the conflict interacted and raise their pleas face to face as lay jurors from community decides for right verdict. They were able to put forward moral judgment on crimes; supported and vindicated the victims and innocents; declare and denounced the guilty, and most importantly mediated the conflict to reconcile relationships.31 However, as complexity surpassed and meddles in human relations, lawyers have become ambulance chasers; fuel more conflicts; silence victims and defendants as parties to conflicts put under trial; and perceived that plea-bargaining system as voice of the jury.32 The legal system made the judiciary as lawyerized machinery of exacting wealth and has sacrificed the values and moral imperatives. It failed to foster reformation of parties’ relationships as it has become more interested on the income generated at the price of building a society where genuine justice is attained. It has failed to recognize the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers.33 The machinery of judicial system must maximize and explore mechanisms that recognize and accommodate lay participation to promote and uphold values and relationships.34 Moreover, this could help foster better understanding how the judicial system respond to the changes in the society as radicalization of social and administrative agenda confront significant popular questions relating to social programs, increasing privatization, deregulation and contracting policies, as well as security management relating to terrorism.35 Indeed, while judicial procedures are highly technical, somewhat ancient and have unfathomable distinctions, but these must find its correlation to present political debates and subjects that rouse social conflicts. It isn’t clear but seems significant to inspire the legal luminaries to be not only passive recipient of cases but also to be pro-active lawyers who are reviewing legislations, not only of its constitutionality but also of its beneficially in the promotion of social justice . Emphasis on Education Author likewise failed to reassert the value of continuing education among legal luminaries and of the officers of the court. This is mandatory in all judicial body to ascertain that its forces are continually updated with trends and with new policies legislated. Such will likewise assist them to correlate legislation the significance of adjudicating cases that does not result to miscarriage of justice.36 Continuing education for the judiciary will also make them more competent and more reflective in their decision-makings to make the court of law not only punitive but as much as a conflict-mediating body that can heal relations so that when all parties of the case goes back to their respective communities, they will not become estranged constituents that may suddenly erupt in renewed conflict or hostility at a minor budge.37 The millennium has recognized that the court has become one of the sources of conflicts because of the interplay of interests. Author should have likewise discussed that legal luminaries should be able to become active partners and managers of for legal disciplinary practices as well as in alternative business structures that will venture into community-based legal services so that the marginalized are able to access the justice system. Alternative lawyering is significant to address cases of farmers, indigenous communities, urban sectors and of similar poor sectors that need lawyers assistance to negotiation their problems with big industries and companies, tagging along sensitivity to their cultural make-up and traditions.38 Moreover, author failed to discuss when members and officers of the court conduct convergences to discuss their issues and their rights so that aside the press, it can be also articulated that they also have platform where they can discuss their concerns, problems and their anent resolutions. Such may include issues pertaining to their performances as public and private practitioners; about making compromise agreements; ethical concerns; and enjoyment of opportunities within the judicial system.39 Conclusion The judicial system is one of the branches of the government that is tasked to enforce laws and adjudicate cases to dispense justice in accordance to law. The process is highly technical and even and evolutionary subject to passage of policies that may affect its substantial roles and its procedural aspects. But regardless how the system operates, there is one constant factor that the judicial system must be guided of—that it must perform its tasks in the interest of law and to effect genuine justice. Hence, it must not only act in accordance to policies but also based on moral imperatives that regulate the legal luminaries. All these are enshrined in legal ethics. Moreover, while the court maintain its independence from the two other branches of the state, it is likewise essential that the institution is able to recognize its correlation and interrelation in the name of law and in the interest of building a just society. The judicial system, albeit its independence, has also its platform where they can articulate and ventilate their issues, problems and concerns. This platform can also be used as an avenue where they can enhance the effectiveness of their performances, management and increase their knowledge on developing trends. It is not enough that judges are able to render decisions on cases, but it must also protect itself from crumbling within as criticism on the legal system is challenging them too reform within. Read More