The Role of Judiciary in State

The role of Judiciary in state:

Summary

Thejudiciary(also known as thejudicial systemorcourt system) is the system ofcourtsthat interprets and applies thelawin the name of thestate. The judiciary also provides a mechanism for theresolution of disputes. In some nations, under doctrines ofseparation of powers, the judiciary generally does not make law (which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. In other nations, the judiciary can make law, known asCommon Law, by setting precedent for other judges to follow, as opposed toStatutory Lawmade by the legislature. The Judiciary is often tasked with ensuringequal justice under law.

In many jurisdictions the judicial branch has the power to change laws through the process ofjudicial review. Courts with judicial review power, may annul the laws and rules of the state when it finds them incompatible with a higher norm, such asprimary legislation, the provisions of theconstitutionorinternational law. Judges constitute a critical force for interpretation and implementation of a constitution, thusde factor incommon lawcountries creating the body of constitutional law. For a people to establish and keep the 'Rule of Law' as the operative norm in social constructs great care must be taken in the election and/or appointment of unbiased and thoughtful legal scholars whose loyalty to an oath of office is without reproach. If law is to govern and find acceptance generally courts must exercise fidelity to justice which means affording those subject to its jurisdictional scope the greatest presumption of inherent cultural relevance within this framework.

In the US during recent decades the judiciary became active in economic issues related with economic rights established by constitution because "economics may provide insight into questions that bear on the proper legal interpretation"Since many countries with transitional political and economic systems continue treating their constitutions as abstract legal documents disengaged from the economic policy of the state, practice of judicial review of economic acts of executive and legislative branches have begun to grow.

In the 1980s, theSupreme Court of Indiafor almost a decade had been encouragingpublic interest litigationon behalf of the poor and oppressed by using a very broad interpretation of several articles of theIndian Constitution

Budgetof the judiciary in many transitional anddeveloping countriesis almost completely controlled by the executive. The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of theconstitutional economics. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges), and the private.

The term "judiciary" is also used to refer collectively to the personnel, such asjudges,magistratesand other adjudicators, who form the core of a judiciary (sometimes referred to as a "bench"), as well as the staffs who keep the system running smoothly.

In some countries and jurisdictions, judiciary branch is expanded to include additional public legal professionals and institutions such asprosecutors,state lawyers,ombudsmen,public notaries,judicial policeservice andlegal aid officers. These institutions are sometimes governed by the same judicial administration that governs courts, and in some cases the administration of the judicial branch is also the administering authority for private legal professions such aslawyersand privatenotaryoffices.

History:

After theFrench Revolution, lawmakers stopped interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by theNapoleonic Code.[6]

In civil law jurisdictions at present, judges interpret the law to about the same extent as in common law jurisdictionshowever it is different from the common law tradition which directly recognizes the limited power to make law. For instance, inFrance, thejurisprudence constanteof theCourt of Cassationor theCouncil of Stateis equivalent in practice withcase law. However, theLouisiana Supreme Courtnotes the principal difference between the two legal doctrines: a singlecourt decisioncan provide sufficient foundation for the common law doctrine ofstare decisis, however, "a series ofadjudicated cases, all in accord, form the basis forjurisprudence constante."Moreover, the Louisiana Court of Appeals has explicitly noted thatjurisprudenceconstanteis merely a secondary source of law, which cannot be authoritative and does not rise to the level ofstaredecisis.

Various functions:

• In common law jurisdictions, courts interpret law; this includes constitutions, statutes, and regulations. They also make law (but in a limited sense, limited to the facts of particular cases) based upon priorcase lawin areas where the legislature has not made law. For instance, thetortofnegligenceis not derived from statute law in most common law jurisdictions. The termcommonlawrefers to this kind of law.

• Incivil lawjurisdictions, courts interpret the law, but are prohibited fromcreatinglaw, and thus do not issue rulings more general than the actual case to be judged.Jurisprudenceplays a similar role to case law.

• In theUnited States court system, theSupreme Courtis the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it, as well as the constitutionality of the various state laws; in theUS federal court system, federal cases are tried intrial courts, known as theUS district courts, followed byappellate courtsand then the Supreme Court.State courts, which try 98% oflitigation,[9]may have different names and organization; trial courts may be called "courts of common plea", appellate courts "superior courts" or "commonwealth courts".[10]The judicial system, whether state or federal, begins with a court of first instance, is appealed to an appellate court, and then ends at the court of last resort.

• InFrance, the final authority on the interpretation of the law is theCouncil of Statefor administrative cases, and theCourt of Cassationfor civil and criminal cases.

• In the People's Republic of China, the final authority on the interpretation of the law is theNational People's Congress.

• Other countries such asArgentinahave mixed systems that include lower courts, appeals courts, a cassation court (for criminal law) and a Supreme Court. In this system the Supreme Court is always the final authority, but criminal cases have four stages, one more than civil law does. On the court sits a total of nine justices. This number has been changed several times.

Judicial systems:

Japan

Japan's process for selecting judges is longer and more stringent than the process in theUnited Statesand inMexicoAssistant judges are appointed from those who have completed their training at the Legal Training and Research Institute located inWako. Once appointed, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by theSupreme Court of Japan. Judges require ten years of experience in practical affairs, as a public prosecutor or practicing attorney. In theJapanese judicial branchthere is the Supreme Court, eight high courts, fifty district courts, fifty family courts, and 438 summary courts.

Mexico

Justices of theMexican Supreme Courtare appointed by thePresident of Mexico, and then are approved by theMexican Senateto serve for a life term. Other justices are appointed by the Supreme Court and serve for six years. Federal courts consist of the 21 magistrates of the Supreme Court, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located inMexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination.

United States

United States Supreme Courtjustices are appointed by thePresident of the United Statesand approved by theUnited States Senate. As in Mexico,justicesserve for a life term or until retirement. The Supreme Court of the United States is located inWashington D.C.. TheUnited States federal court systemconsists of 94federal judicial districts. The 94 districts are then divided into twelve regional circuits. The United States has five different types of courts that are considered subordinate to the Supreme Court:United States bankruptcy courts,United States Court of Appeals for the Federal Circuit,United States Court of International Trade,United States Courts of Appeals, andUnited States District Courts.

Bench (law):

Benchinlegalcontexts means simply the location in acourtroomwhere ajudgesits. The historical roots of that meaning come from judges formerly having sat on long seats orbenches(freestanding or against a wall) when presiding over acourt.In modern courtrooms, the bench is usually an elevated desk area that allows a judge to view the entire courtroom.

The word also has a broader meaning in thelaw– the term "bench" is ametonymused to describe members of thejudiciarycollectively,or the judges of a particular court, such as theQueen's Benchor theCommon BenchinEngland and Wales, or thefederalbench in theUnited States.The term is also used when all the judges of a certain court sit together to decide acase, as in the phrase "before the full bench" (also called "en banc").Additionally, the term is used to differentiate judges ("the bench") fromattorneysorbarristers("the bar"). The phrase "bench and bar" denotes all judges and lawyers collective

Supreme court:

Asupreme courtis the highestcourtwithin the hierarchy of many legaljurisdictions. Other descriptions for such courts includecourt of last resort,instance court,judgment court,apex court, andhighest court of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily asappellate courts, hearingappealsfrom decisions of lowertrial courts, or from intermediate-level appellate courts.

However, not all highest courts are named as such.Civil lawstates tend not to have a single highest court. Additionally, the highest court in some jurisdictions is not named the "Supreme Court", for example, theHigh Court of Australia; this is because decisions by the High Court could formerly be appealed to thePrivy Council. On the other hand, in some places the court named the "Supreme Court" is not in fact the highest court; examples include theNew York Supreme Court, theSupreme Courts of several Canadian provinces/territoriesand the formerSupreme Court of Judicature of England and Wales, which are all subordinate to higher courts of appeal.

Some countries have multiple "supreme courts" whose respective jurisdictions have different geographical extents, or which are restricted to particular areas of law. In particular, countries with afederalsystem of government typicallyhave both a federal supreme court (such as theSupreme Court of the United States), and supreme courts for each member state (such as theSupreme Court of Nevada), with the former having jurisdiction over the latter only to the extent that the federalconstitutionextendsfederal lawoverstate law. Jurisdictions with acivil lawsystem often have a hierarchy ofadministrative courtsseparate from the ordinary courts, headed by asupreme administrative courtas is the case in the Netherlands. A number of jurisdictions also maintain a separateconstitutional court(first developed in theCzechoslovak Constitution of 1920), such as Austria, France, Germany, Luxembourg, Portugal, Spain and South Africa. Within the formerBritish Empire, the highest court within a colony was often called the "Supreme Court", even though appeals could be made from that court to theUnited Kingdom'sPrivy Council(based in London). A number ofCommonwealthjurisdictions retain this system, but many others have reconstituted their own highest court as a court of last resort, with the right of appeal to the Privy Council being abolished.

In jurisdictions using acommon lawsystem, the doctrine ofstare decisisapplies, whereby the principles applied by the supreme court in itsdecisionsare binding upon all lower courts; this is intended to apply a uniform interpretation and implementation of the law. In civil law jurisdictions the doctrine ofstare decisisis not generally considered to apply, so the decisions of the supreme court are not necessarily binding beyond the immediate case before it; however, in practice the decisions of the supreme court usually provide a very strong precedent, orjurisprudenceconstante, for both itself and all lower courts.

Common law jurisdictions:

Bangladesh

TheSupreme Court of Bangladeshis created by the provisions of the Constitution of Bangladesh, 1972. There are two Divisions of the Supreme Court, i.e. (a) Appellate Division and (b) High Court Division. Appellate Division is the highest Court of Appeal and usually does not exercise the powers of a court of first instance. Whereas, the High Court Division is a Court of first instance in company and admiralty matters.

Canada

InCanada, theSupreme Court of Canadawas established in 1875 but only became the highest court in the country in 1949 when the right of appeal to theJudicial Committee of the Privy Councilwas abolished. This court hears appeals of decisions made by courts of appeal from the provinces and territories and appeals of decisions made by the Federal Court of Appeal. The court's decisions are final and binding on the federal courts and the courts from all provinces and territories. The title "Supreme" can be confusing because, for example, theSupreme Court of British Columbiadoes not have the final say and controversial cases heard there often get appealed in higher courts - it is in fact one of the lower courts in such a process.

Hong Kong

InHong Kong, theSupreme Court of Hong Kong(now known as theHigh Court of Hong Kong) was the final court of appeal during its colonial times which ended with transfer of sovereignty in 1997. The final adjudication power, as in any other British Colonies, rested with theJudicial Committee of the Privy Council(JCPC) in London, United Kingdom. Now the power of final adjudication is vested in theCourt of Final Appealcreated in 1997. Under theBasic Law, its constitution, the territory remains a common law jurisdiction. Consequently, judges from other common law jurisdictions (includingEngland and Wales) can be recruited and continue to serve in thejudiciaryaccording to Article 92 of the Basic Law. On the other hand, the power of interpretation of the Basic Law itself is vested in theStanding Committee of the National People's Congress(NPCSC) in Beijing (without retroactive effect), and the courts are authorised to interpret the Basic Law when trying cases, in accordance with Article 158 of the Basic Law. This arrangement became controversial in light of theright of abode issuein 1999, raising concerns for judicial independence.

India

InIndia, theSupreme Court of Indiawas created on January 28, 1950 after adoption of theConstitution. Article 141 of the Constitution of India states that the law declared by Supreme Court is to be binding on all Courts within the territory of India. It is the highest court in India and has ultimate judicial authority to interpret the Constitution and decide questions of national law (including local bylaws). The Supreme Court is also vested with the power of judicial review to ensure the application of the rule of law.

Note that within the constitutional framework of India, Jammu and Kashmir (J&K) has a special status vis-a-vis the other states of India. Article 370 of the Constitution of India carves out certain exceptions for J&K. However, the Constitution (Application to Jammu and Kashmir) Order 1954 makes Article 141 applicable to the state of J&K and hence law declared by the Supreme Court of India is equally applicable to all courts of J&K including the High Court.

Ireland

TheSupreme Courtis the highest court in theRepublic of Ireland. It has authority to interpret the constitution, and strike down laws and activities of the state that it finds to be unconstitutional. It is also the highest authority in the interpretation of the law. Constitutionally it must have authority to interpret the constitution but its further appellate jurisdiction from lower courts is defined by law. The Irish Supreme Court consists of its presiding member, the Chief Justice, and seven other judges. Judges of the Supreme Court are appointed by the President in accordance with the binding advice of the Government. The Supreme Court sits in theFour CourtsinDublin.

Israel

Israel'sSupreme Courtis at the head of the court system in theState of Israel. It is the highest judicial instance. The Supreme Court sits inJerusalem. The area of its jurisdiction is the entire State. A ruling of the Supreme Court is binding upon every court, other than the Supreme Court itself. The Israeli supreme court is both an appellate court and the high court of justice. As an appellate court, the Supreme Court considers cases on appeal (both criminal and civil) on judgments and other decisions of the District Courts. It also considers appeals on judicial and quasi-judicial decisions of various kinds, such as matters relating to the legality of Knesset elections and disciplinary rulings of the Bar Association. As the High Court of Justice the Supreme Court rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and persons performing public functions under the law, and direct challenges to the constitutionality of laws enacted by the Knesset. The court has broad discretionary authority to rule on matters in which it considers it necessary to grant relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal. The High Court of Justice grants relief through orders such as injunction, mandamus and Habeas Corpus, as well as through declaratory judgments. The Supreme Court can also sit at a further hearing on its own judgment. In a matter on which the Supreme Court has ruled - whether as a court of appeals or as the High Court of Justice - with a panel of three or more justices, it may rule at a further hearing with a panel of a larger number of justices. A further hearing may be held if the Supreme Court makes a ruling inconsistent with a previous ruling or if the Court deems that the importance, difficulty or novelty of a ruling of the Court justifies such hearing. The Supreme Court also holds the unique power of being able to order "trial de novo" (a retrial).