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Two importance of the doctrine of separation of power
The doctrine of separation of powers and the rule of law
The doctrine of separation of powers and the rule of law
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The Basic Law and the Legislative Council (Powers and Privileges) Ordinance (Cap 382) (‘PPO’) provide the Legislative Council (‘Legco’) some privileges and inquiry powers. PPO authorises Legco to investigate issues of public concern by summoning related persons to provide evidence in the chamber of Legco. Such check and balance is important under the concept of separation of power.
Although such powers seems to enshrine the rule of the law in Hong Kong, it is superficial as some previous inquiries were deemed to be politically motivated and more importantly, Hong Kong does not have democratically elected Legco. In summary, the judiciary is more suited to handle such inquiry.
The Privileges and Inquiry Powers of Legco:
Article 77 and 78 of the Basic Law provides members of Legco “shall be immune from legal action in respect of their statement at meeting of the Legco” and “shall not be subject to arrest on their way to a meeting of the Legco” respectively. In addition, article 73(10) stipulates that Legco can “summon, as required when exercising the above-mentioned powers and functions, persons concerned to testify or give evidence”.
Section 4, 5 and 10 of the PPO correspond to article 77, 78 and 73(10) of the Basic Law. However there are related provisions under the PPO that are not provide for in the Basic Law, which include ordering attendance of witness by summon under section 10, examining witness on oath under section 11, compelling attendance by issuing warrant under section 12 and setting offences punishment under section 17-20. There is a doubt that those PPO’s provisions could be unconstitutional.
The Rule of Law:
There are two conceptions of the rule of law. The formative conception focuses on the predictab...
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...lly that PPO is exercised arbitrarily on the influence of functional constituencies’ self interest and DAB’s pro-government altitude.
Another argument against inquiry concerns judicial fairness as such inquiry may trigger public trail if the summon entity is subject to be trail later on.
It is arguable that the privilege and inquiry power of the Legco are part of the judiciary function. It is more thorough and efficient for the judiciary to handle through judicial review.
Conclusion:
In conclusion, the current system of privilege and inquiry power of the Legco is not compatible with the formative rule of the law. Indeed such inquiry is better handled by the judiciary. As such inquiry has been exercised arbitrarily, it may not be worth for Legco to maintain such power as Hong Kong citizen is expecting substantive rule of law in Hong Kong not the formative version.
This paper will argue that the Supreme Court of Canada has adopted a quasi-legislative approach in its decision making as a result of the Charter of Rights and Freedoms, 1982. Quasi-legislative is defined as having a partly legislative character by possession of the right to make rules and regulations, having the force of law (Merriam-Webster). In this paper, it is useful to define quasi-legislative as the court’s ability to influence policy, be it innocent or motivated, through charter enf...
The judicial review is the final check that the judicial branch makes when reviewing laws from congress and executive branch. Their job is to make sure that the laws are constitutional, if not, they can reject them. The judicial branch received this power in 1803 by the Marbury vs madison case. In the final hours of the Adams administration, he appointed William Marbury as justice of the piece of the state of colombia. After requesting his commission by Madison and Jefferson, him and others affected by this situation started a class action lawsuit. Marbury and the others won the case giving power to the Judicial branch.
Although it is not specifically mentioned in the constitution, through all of these rights, Congress holds an inherent oversight role over the bureaucracy. The role flows from Congress’ power to make laws, raise and appropriate funds, give advice and consent to executive nominations, and impeach federal officials. This gives Congress a means of checking the power of the executive branch, as well as a method of determining if laws are being enacting
The General Court. "General Laws." : CHAPTER 265, Section 37. 2014. Web. 20 Apr. 2014. .
The procedural powers include those of appointing most committee members, assign bills to committees and schedule legislation. As you can see, the speaker has powers but these powers are limited and leave no room for error. As mentioned earlier, the legislature is divided into several different committees that make for a good spread between authority. Legislative Committees provide orders and handle proposed legislation. Sta...
them the power to construct the law in a way that sustains their elite position. For Darrow, as a
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
Judicial review promotes democracy when the political system poses a threat to democratic reform. It can also serve as a supervisor for Congress and the President to make sure they are not overstepping their boundaries. It is an imperfect constitutional institution. And yet, judicial review is not inherently anti-democratic as it is a necessary proceeding for the functioning of the US system of government and democratic society.
In conclusion, the theories that have been examined in this paper have proffered various ways in determining what makes a law valid. These theories are persuasive on varying levels, and hence are not perfectly conclusive on this point. However, an analysis of these theories have allowed me the appreciate the nuances between each theory, as well as appreciate the fact that legal theory is a lot more tolerant of conflicting theories as compared to other areas of legal study.
Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.
Law is the framework which applies to members of the community and sets the binding values and standards recognized by its subjects. It regulates their behaviour and it reflects the principles ...
Anyway present day common litigants are generally fit to evade most (if not all) court manifestations if spoke to by an attorney. It includes connections between people, or private connections between nationals and organizations. Criminal litigants are normally obliged to post safeguard before being discharged from authority and must be available at each phase of the processes against them. Open law blankets three sub-divisions: Constitutional, authoritative and criminal law. Different cases included cherry pies with cherry pits, turkey dressing with turkey bones and even a clam holding a pearl.
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Administrative law is a set of law and legal principles which are the tools for the public administration in order to accomplish their tasks. It covers a big area of governmental legal operations and procedures with a help of different agencies such as commissions, departments, divisions and boards. However, administrative law is also an instrument of conflict between players that are involved in it. And there are three types of conflict that administrative law is involved in: these are political, institutional and economic. There are also some challenges for administrative law in the modern world. And one of them is that comparative administrative law was neglected while there was a boom