On Sun, Oct 28, 2018 at 12:19 AM Alice Walker <[email protected]> wrote:
Michelle_Michy
ruleoflaw.pptx
Parliamentary Sovereignty
The concept of Parliamentary Sovereignty broadly means that Parliament has the right to make or unmake any law, and no person is allowed to override or set aside the law of Parliament.
Acts of Parliament override the law of the judges.
WHAT IS DANGER WITH PARLIAMENTARY SOVEREIGNTY
HOW DO FUNDAMETAL RIGHTS FIT INTO THIS
The Rule of Law aims to prevent the exercise of arbitrary or tyrannical power. It became popularised by AV Dicey, who described it through three main tenets:
1.A man can only be punished if it was proved in court that he breached a law. This means that the Sovereign cannot punish people arbitrarily.
2.No man is above the law, and everyone is equal before the law. This means that the law applies to everyone in the exact same way regardless of social, economic or political status.
3.The Constitution (the law) is the result of previous judicial decisions determining the rights of private persons. This means the constitution is not the source of the law, but the consequence of inherent rights. We don’t derive our rights from the Constitution; the Constitution is the result of our rights.
The Rule of Law should not be limited to three tightly defined principles. The Rule of Law is a broad concept which prevents arbitrary power in any form.
International Commission of Jurists
The rule of law can be characterised as ‘the principles, institutions and procedures, …which the experience and traditions of lawyers in different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be important to protect the individual from arbitrary government and enable him to enjoy the dignity of men.’
Lord Bingham
1.Law must be accessible, intelligible, clear.
2.Legal rights and liabilities should be resolved by application of the law, not discretion.
3.Laws of the land should apply equally to all.
4.Laws must afford adequate protection to human rights.
5.Means must be provided for resolving civil disputes.
6.Ministers and public officers should exercise the powers conferred on them reasonably and without exceeding their limits.
7.Adjudicative procedures provided by the state should be fair.
8.Compliance by the state with international law.
What is rule of law
Why is it important
Why is it important
Business environment corruption free –if not what happens? Wrong people get tenders. The work is not done properly or at all. Money is wasted. Taxes must be raised. Ultimately infrastructure starts collapsing
Public works – bridges – are they safe? Water pipes will they last? Airports become unsafe eg the death of the MD of Total in Russia last week
Public Health - Hospitals are they clean and medicines available – SA –environment wrecked as in china where they cannot breathe the air in Beijing
Problems if not applied
Public Participation – The government does not consult with local residences. Does what they want because they are corrupt or just negligent – cell phone towers in schools. Power stations in residential neighbourhoods. SANRAL again – people remove number palates, steal them etc
Civil Justice – failures in this regard can be devastating can lead to violence, loss of money, loss of confidence – people will not invest in the country because they cannot have disputes resolved.
How the elements of rule of law are linked to the 9 factors in two ways
1) the law imposes limits on the exercise of power by the state and its agents, as well as individuals and private entities
2)The state limits the actions of members of society and fulfills its basic duties towards society such that the public interest is served, people are protected from violence and members of society have access to mechanisms to settle disputes and redress grievances
Self dealing
Factor 1:
Constraints on Government Powers Factor 1 measures the extent to which those who govern are bound by law. It comprises the means, both constitutional and institutional, by which the powers of the government and its officials and agents are limited and held accountable under the law. It also includes non-governmental checks on the government’s power, such as a free and independent press.
Factor 1:
Governmental checks take many forms; they do not operate solely in systems marked by a formal separation of powers, nor are they necessarily codified in law.
Factor 1:
What is essential, however, is that authority is distributed, whether by formal rules or by convention, in a manner that ensures that no single organ of government has the practical ability to exercise unchecked power.
This factor addresses the effectiveness of the institutional checks on government power by the
legislature (1.1),
the judiciary (1.2), and
independent auditing and review agencies (1.3)2, as well as the effectiveness of
nongovernmental oversight by the media and civil society (1.5), which serve an important role in monitoring government actions and holding officials accountable.
Factor 1:
The extent to which transitions of power occur in accordance with the law is also examined (1.6).3
In addition to these checks, this factor also measures the extent to which government officials are held accountable for official misconduct.
Factor 2
This factor measures the absence of corruption in government. The factor considers three forms of corruption:
bribery
improper influence by private or public or private interests
and misappropriation of public funds or other resources.
Factor 2
These three forms of corruption are examined with respect to :
To government officers in the executive branch
the judiciary,
the military and police
the legislature
and encompass a wide range of possible situations in which corruption—from petty bribery to major kinds of fraud can occur.
Factor3
Factor 3
measures the openness of government, which is essential for effective public oversight. Specifically, this factor measures:
1) Whether the laws are publicized and accessible
2) Whether the laws are stable
2) whether administrative proceedings are open to public participation;
3) and whether official information, including drafts of laws and regulations, is available to the public.
Factor 3
The first two sub-factors relate to the clarity, publicity, accessibility, and stability that are required for the public to know what the law is and what conduct is permitted and prohibited.
Factor 3
The second two sub-factors encompass the opportunity for the people to participate in the processes by which the laws are made and administered. Among the indicators of participation are:
1) whether people have the ability to petition the government;
2) whether proceedings are held with timely notice and are open to the public;
3) and whether official information, including drafts of legislation and records of legislative and administrative proceedings, are available to the public.
Factor 4
Factor 4 measures protection of fundamental human rights.
It recognizes that a system of positive law that fails to respect core human rights established under international law is at best “rule by law”, and does not deserve to be called a rule of law system.
Since there are many other indices that address human rights, and as it would be impossible for the Index to assess adherence to the full range of rights, this factor focusses on a relatively modest menu of rights that are firmly established in accordance with the Universal Declaration and customary international law, and are most closely related to rule of law concerns.
Factor 4
Accordingly, Factor 4 encompasses adherence to the following fundamental rights:
effective enforcement of laws that ensure equal protection
the right to life and security of the person
due process of law and the rights of the accused
freedom of opinion and expression
freedom of belief and religion
the right of privacy
freedom of assembly and association
and fundamental labor rights, including the right to collective bargaining, the prohibition of forced and child labor, and the elimination of discrimination
Factor 5
Factor 5 measures how well the society assures the security of persons and property.
Security is one of the defining aspects of any rule of law society and a fundamental function of the state.
It is also a precondition for the realization of the rights and freedoms that the rule of law seeks to advance.
Factor 5
This factor includes three dimensions to cover the various threats to order and security:
1)crime (particularly conventional crime);
2) political violence including terrorism, armed conflict, and political unrest;
3) and violence as a socially accepted means to redress personal grievances (vigilante justice).
Factor 6
Factor 6 measures the extent to which regulations are fairly and effectively implemented and enforced.
Regulations, both legal and administrative, structure interactions within and outside of the government.
Factor 6
Strong rule of law adherence requires:
1) that these regulations and administrative provisions are enforced effectively,
2) and are applied and enforced without improper influence by public officials or private interests
Factor 6
3) Additionally, strong rule of law requires that administrative proceedings are conducted in a timely manner, without unreasonable delays;
4) that due process is respected in administrative proceedings
5) and that there is no expropriation of private property without adequate compensation.
Factor 7
Factor 7 measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system.
The delivery of effective civil justice requires that the system be
1)accessible
2)affordable
3) free of discrimination and without improper influence by public officials
Factor 7
. The delivery of effective civil justice also necessitates that court proceedings are conducted:
1) in a timely manner and without unreasonable delays,
2)and that judgments are enforced effectively (7.6).
Factor 7
Finally, recognizing the value of alternative dispute resolution mechanisms (ADRs)
this factor also measures the:
1) accessibility,
2)impartiality, and
3) efficiency of
mediation and arbitration systems that enable parties to resolve civil disputes (7.7).
Factor 8
Factor 8 evaluates the criminal justice system.
An effective criminal justice system is a key aspect of the rule of law, as it constitutes the conventional mechanism for bringing action against individuals for offenses against society.
Factor 8
Effective criminal justice systems are capable of:
1) investigating and adjudicating criminal offenses successfully and
2) in a timely manner
3) through a system that is impartial and non-discriminatory
4)and is free of corruption and
5) improper government influence,
6)all while ensuring that the rights of both victims and accused are effectively protected
Factor 8
The delivery of effective criminal justice also necessitates correctional systems that effectively incapacitate offenders and reduce criminal behavior.
Accordingly, an assessment of the delivery of criminal justice should take into consideration the entire system, including the police, lawyers, prosecutors, judges and prison officers.
Factor 9
Factor 9 concerns the role played in many countries
By customary and “informal” systems of justice – including traditional, tribal and religious courts- and community based systems - in resolving disputes. These systems often play a large role in cultures in which formal legal institutions fail to provide effective remedies for large segments of the population, or when formal institutions are perceived as remote, corrupt, or ineffective.
Labour hearings in the workplace
Factor 9
This factor covers three concepts: whether these dispute resolution systems are:
1) timely and effective
2) whether they are impartial and free of improper influence;
3) and the extent to which these systems respect and protect fundamental rights.
