As mentioned as above, under rule of law everyone shall be fair and equal in front of law. One of the important element In Raz’s principle is the independence of judiciary has to be guaranteed. This showing the judicial independence is the fundamental structure of the idea rule of law. In case M v Home office, it implies that even though the individuals representing the executive, the courts still have power to grant remedies against a minister in his office capacity. The courts are armed with coercive powers exercisable in proceedings for contempt of
Both the harm principle and legal paternalism are aimed at upholding an individual’s liberties within the law. However, they argue different view points and restrictions. The harm principle is chiefly concerned with upholding an individual’s right to somehow harm oneself, while legal paternalism says the law can interfere to prevent an individual from harming oneself. This is the most obvious distinction between the two philosophies. Dworkin’s argument for legal paternalism, however, uses Mill’s argument against him, and ultimately proves to be the stronger principle to justify law.
He says that justice involves the idea of equality. He goes on to argue that the use of justice can’t be described in terms of the idea that justice and generality, as a legal ideal, might share. Laws should be very clear and it should be specified as to which norms have the status of law. Hart discusses this and takes the stand that they should not be the end-all of legal morality. 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.
The federal Supreme Court in this case ruled with a majority of 7:4 that the council was constitutional and was not a barrier to judicial independence . They further argued that judicial independence cannot serve as an excuse for irresponsibility therefore the National Judicial Council can be seen as a democratic pre-requisite in terms of ensuring that a judge’s misbehavior or omission will no longer go unpunished. Professor Dalmo de Abreu Dallari maintains that such a council can transform a judiciary into truly democratic power. 4. METHODS OF JUDGE APPOINTMENT 4.1 Trial Court
Law is not valid if it is immoral or unjust, thus this theory limits the validity of the law. Natural Law Theory questions the purpose of each law. Each positive law must be interpreted so as to give effect to justice and morality. Natural Law seeks to influence lawyers, judges and decisions makers and all others responsible for created, and interpreting the law, because Natural Law Theory holds that all laws must be moral and all decisions must lead to justice. Legal Positivism Legal Positivism is the view that law is separate from morals.
One of the reasons being that, in many cases the command of the public force is entrusted with judges, and to enforce its decisions, the whole power of the state would be used. No one wants to come up against something so much more powerful than him or her. The article also assures us that in every system there is a rational explanation for the outcome. A cause and effect relation binds everything. Holmes tells us that, if it cannot be
This new power was put to the test in the case of Simms in 1999. Here the courts decided that a ban preventing prisoners from talking to journalists without discrimination was unlawful. Lord Steyn stated that 'freedom of expression is of course intrinsically important.' Lord Hoffman when giving reason for the courts judgment stated that they interpreted the words used in the text to be subject to the rights of the individual. This shows that the courts have used the power given to them by the Human Rights Act to inflict on parliamentary
The legitimacy of judicial review is based in the Rule of Law, and the need for public bodies to act according to the law. Judicial review is a means to hold accountable those who exercise public power and the manner of its exercise, especially when decisions lie outside the effective control of the political process. Judicial Review is a significant weapon through which arbitrary, unjust harassing and unconstitutional laws are
,2 To avoid aggression, and to show respect for rights of others, has been declared as the duty of every one. Every member of society is allowed to defend his rights against all kinds of unlawful aggression. Shari 'ah does not preach the idealistic doctrine of the other cheek; instead, it prefers private defence tempered with compassion. 3 It affords protection and guarantees that the rights of individual to life, liberty and property shall not be abridged without the due process of law. Violation of right to life, property and chastity has been expressly declared unlawful.
Judicial immunity of judges in Malaysia is provide under Section 14 of the Courts of Judicature Act 1964 which states that all judges are immune from all civil liability in respect of anything done or said by them . In the High Court case of Thiruchelvasegaram Manickavasegar v Mahadevi Nadchatiram , Azmel Maamor said that Section 14 (1) of the Act provides judicial immunity for judges and other persons acting judicially, as long as they done it in good faith . The existence of judicial immunity is to enables judges, counsel and witnesses to speak and act fearlessly and to prevent inequity from being fear to be sued or prosecuted. Chief Justice Zaki Azmi claimed that the judiciary in Malaysia should be observed by the public as an