The doctrine of precedent is based on the principle of stare decisis, which means to stand by things decided. It might be true that the sovereignty of Parliament is more complete in England than anywhere else. However, does it really mean that the rigidity of doctrine of precedent in this country is of no particular importance? Moreover, can we actually say that the doctrine of precedent is rigid? The main aim of my work is to consider the principles of statutory interpretation and judicial precedent and analyse if judges had intervened with Parliament’s law making role.
The role of judges have changed significantly especially with the passing of Human Right Act 1998 (herein with HRA 1998). The act empowered judges to scrutinise action of Legislation and Executive to enforce human right. However, judges are not elected, thus, they do not have popular mandate . The legitimacy of their decision lies in the respect and confidence from the public. When people lost confidence toward the court, they will refuse to recognise the decision of court and resort to other mean to solve the matter.
The purpose judiciary were given independence is so that the judges can protect the citizens from arbitrary use of power by the Government, being impartial in solving disputes and to maintain public confidence in the judiciary and the government. Judges cannot be dismissed summarily by the executive. Senior judges’ tenure is secure under the Act of Settlement 1700 and may only be removed by the Queen with the address presented by both Houses of Parliament. The Supreme Court Act 1981 provides that judicial salaries are fixed by a non-governmental body to avoid
Federalists believed political participation should be limited to electing virtuous people, and private political organizations and commentary were illegitimate to interfere. Sedition laws illustrate both state and federal government's’ commitment to regulating speech considered threatening to the public good. The only acceptable defense for those accused of violating sedition laws was “truth for good reason”. Meaning that free speech regarding government officials was limited to the truthful criticism of government that promoted the public good. While Judicial Review still did not provide much protection for free speech, it is important to note a slight shift upwards from the previous era.
If the evidence is admitted, the chance of that conversative higher court taking the case up is 0%. The conservative court does not want to the evidence excluded, and want the evidence admitted. The evidence that is admitted makes the prosecution easier. Whether the supreme court moderates its rulings when faced with ideologically hostile Congress, but fail to evidence that such moderation and constraint actually exist. Since the court’s docket is discretionary, there is a chance that the court refrains from hearing a case that it expects to garner hostile response in Congress.
Executive actions can also be deemed as unlawful by the judiciary. The legislature arm acts as a check on the judiciary as it can pass laws to override decisions made by the courts. Due to the separation of powers doctrine each arm of government is able to stop one arm from exercising its functions over another. The first origin of the doctrine of the separation of powers is traced back to the ancient Greek philosopher Aristotle. The theory was also seen in 1690 when John Locke wrote a political manuscript titled Second Treatise of Civil Government where he defended the principle of the separation of the legislative power from the executive.
F. F. Ridley argues that Britain does not have a true constitution as it does not meet the four essential characteristics of (i) ‘it establishes, or constitutes, the system of government and thus it is not part of it’; (ii) ‘it involves an authority outside and above the order it establishes’; (iii) ‘it is a form of law superior to other laws’ and (iv) ‘it is entrenched’. In contrast, the Select Committee on the Constitution argue that ‘the British Constitution, contrary to popular description, is not ‘unwritten’ – a good part of it is written – but it is uncodified’. The conflicting arguments of constitutional writers about whether the British constitution can even be labelled a constitution is reflective of how laypeople regard it. The common man is unlikely to know or understand the elements of the British constitution due to its uncodified nature, whereas in the United States of America the constitutional rights are a commonly known fact and people often refer to their amendment rights, largely due to the clear format demonstrating the fundamental laws and rights. As we withdraw from the European Union and large amounts of legislation is being repealed, replaced or introduced, knowing and understanding the key fundamental rules of Britain is crucial for its citizens and codification would solve
The fault in this lies in the motivation behind the justices’ decisions; with judicial activism, it is nearly impossible to view law as objective and free of bias. Many fear that in acting as policy makers, justices bring their own partialities and beliefs into account instead of allowing the literal interpretation of the Constitution guide their decisions. On the other hand, judicial restraint can also be used when deciding cases. Judicial restraint refers to justices interpreting the United States Constitution word for word, keeping from bringing their own beliefs or biases into account and most
They add that its thoughts of loyalty and propriety are believed to make it impossible for people to express their views in the process of policymaking and justify their government policy. There is also no mechanism for government to strike the balance between two parties, leading to biased decisions and unfair policies which could undermine social harmony and stability. In fact, democracy includes decisions made by majority which is also compatible with the Doctrine of Mean in Confucianism (Xu, 2006). By general consent, a consensus can be reached and a relatively acceptable decision can be made after a series of discussion. The decision made through a democratic process by majority is often regarded as an eclectic decision which aims at making compromise between two extreme political parties.
It was soon realized that this is all happening because of lack of accountability. Passing Accountability Bill and compelling disclosure of Assets by the Judges would not suffice to meet the Principle of Equality before law as envisaged in the constitution. The present paper will try to foreground almost each and every aspect of the above mentioned theme along with the reasons on the urgent need to bring the Judiciary under accountability. The paper also looked at reasons why accountability has