It is crucial the judge is independent and impartial. In Art 7 Act of Settlement !701, it states that Judges hold office during good behavior and can only be removed by an address to the Crown by both houses of Parliament. From the case Starrs v Chalmers, we observed that a judge has the independent
A great number of sections, especially 2, 3 and 4, draw the line between courts and Parliament while protecting civil liberties and explained how to achieve positive results. However, nowadays this act is rather often criticised as being weak mechanism for protection of human rights. In reality, domestic courts struggle to meet objectives laid out in the Human Rights act 1998 since their power is strictly limited. In addition to, Parliament is afraid to lose its sovereignty and position. All things considered, even though The Act is not constitutionally entrenched and has some drawbacks, the Act still better protects human rights than the situation before the Human Rights Act 1998 was
Thus, as far as primary rules are concerned, Hart argues that there is a need for certainty, so that these rules can be applied by general public without any official guidance. There are a number of defenders of rule of law who have emphasized the need for the same kind of safety. He also discusses clarity as to which norms are to be declared as law. Hart had earlier argued that rule of recognition serves a very important purpose in peoples’ understanding of which rules can be secretively enforced by the society. However, in the Postscipt of his book, the Concept of Law, he says that the need for certainty is not a requisite condition.
Is a unjust law one that doesn’t bind lawmakers to obey ?. Is one justified when disobeying an unjust law ? . I believe that there is a difference between laws like MLK. However, the law is the law, and when disobeyed whether unjust or just, consequences will be determined “by the code of the law”.
Woodrow Wilson once referred to the Supreme Court as “a constant constitutional convention in continuous session”, due to the role they have played in interpreting the constitution as it is written. Due to the ambiguity found in much of the phrasing in the constitution, judicial interpretation of the constitution can be considered both necessary and inevitable (Comer, Gruhl et al., 2001). The courts have the power to declare unconstitutional the actions of the other branches and units of the government in what is known as judicial review (Tannahil, 2002). The first case in which the court elaborated on the principle of judicial review was that of Marbury v. Madison in 1803 and put forward that in the case of conflict between the constitution and a statute, it is “the duty of the judicial department to say what the law is” (Smith, 1975). Following this, the case of Fletcher v Peck (1810) is of equal importance as it was the first case in which a state law was declared by the court to be unconstitutional.
In S.P. Sampath Kumar v. Union of India((1987) 1 SCC 124 at 128. ), Justice P.N. Bhagwati relying on Minerva Mills Ltd. ((1980) 3 SCC 625.) declared that it was proved that judicial review was a basic and essential feature of the Constitution.
In a legal place the elected people are not the best always. For a good result, must there are the appropriate conditions. However, in this situation judges are not capable to conserve the codified constitution because they don’t have the appropriate eligibility in the society. The interpretation of law is a responsibility of the people, which have an impact on estimations of senior judges. Final, a written constitution in some ways functions as unnecessary material for reducing the power of government, in contrast with the promoting of democracy and strengthening that is a better way rather than.
Beside customary law, there is also judicial decisions which the decision of high courts in previous cases must be followed by the lower courts in similar cases or situations. Judicial decisions can be obtained from the decision of the superior courts namely as Federal Court, Court of Appeal and High Court. Judicial decisions are divided to two categories which is binding and persuasive. In binding categories, all decisions of high courts bind the lower courts but the High Courts are bound by their own decisions. While in persuasive categories, High Court judges are not bound to follow the decisions of another High Court Judges but can refer to decisions from outside of the Malaysian courts (English Court).
Thus, the existence of judicial precedent often prevents judges from developing legal principles in accordance with societal developments. The disadvantage of judicial precedent is strict rules can cause injustice in individual cases. This is because each case is different and so it is unjust to simply applying the same reasoning as in the past. This injustice is hard to solve because only a superior court faced a cases of injustice in order to overturn the precedent. In addition, judicial precedent is rigidity.
It solely supplements and fills in the gaps in common law. The reason behind this is because the common law is seen as excessively rigid and inflexible. Damages that are claimed from court are most often an inadequate remedy for the plaintiff or litigant. “It is merely a gloss on the common law.”