INDEPENDENCE OF JUDGES, THEIR STATUS AND ROLEIN JUDICIAL PROCEEDINGS

CONSTITUTIONAL LAW IN THE UK AND THE USA

Being the supreme law, the constitution helps the state function on the basis of outlined rules and generally accepted principles. If we try to compare the main characteristics of the constitutions of the United States and Great Britain, we will see that the first one is presented in the written form while the second one is considered to be unwritten. However, we should keep in mind that many parts of the British constitution exist in written form too. One of the most important enactments of the British constitution was the Great Charter (1215) when king John had to sign the document where the rights of the Englishmen were written down. Among other leading enactments, we should mention the Bill of Rights (1689), the Act of Settlement (1700-1701) and the Parliament Act of 1911.

The sources of English constitutional law are statutes, precedents, textbooks, the writings of historians and political theorists and other documents of importance. As there is no codified document then there is no special safeguard for constitutional rules. Constitutional law can be changed or amended. The Parliament is authorized to legislate in any field. There are no fundamental ideologies and no procedures to interfere with constitutional change.

In the USA there exists a written constitution adopted in 1788. It starts with the words: «We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America».

While American constitutional law derives many of its forms from the common law, it is important to note that the constitutional order of the United States was very different from that of the United Kingdom. The Constitution’s written nature and formal enumeration of the power of government are the main factors determining this difference. Constitutional law of the USA deals with interpretation and implementation of the United States Constitution, the fundamental law of the country. Constitutional law also deals with relationships within society, including the relations among the states, the states and the federal government, the three branches (the executive, legislature and judiciary) of the federal government, and the rights of the individuals on the federal and state level. The logic of separation of powers is as follows: the principle of separation of powers requires that the legislature not act beyond its constitutional authority; it establishes the courts as the final legal arbiter of that principle; an official who acts beyond one’s legal authority acts unlawfully and is subject to legal liability accordingly. The Supreme Court has played the crucial role in interpreting the main constitutional provisions. Consequently, study of constitutional law focuses mainly on Supreme Court rulings.

The Supreme Court’s interpretations of the Constitution are binding on the legislative and executive branches of the federal government, on the lower courts in the federal system and on all state courts. That is why they say that the US has a rigid constitution because proposals to amend the main constitutional document can only be added through a complex procedure of majority vote in each house of Congress.

1. Answer the following questions:

1. Does the British constitution have systematic statement of law?

2. What are the main sources of constitutional law in the UK and the US?

3. What notions are stressed in the Preamble (передмові) to the

Constitution of the US?

4. What judicial body in the US is given power to interpret the

Constitution?

5. C a n y o u na me t h e le adin g enac tmen ts o f t h e B r i t ish

constitution?

2. Why is the division of power important? What are drawbacks (недоліки) and advantages of one-house legislature?

3. Compare the system of government of the United States, the United Kingdom and of Ukraine? How is power separated among different branches?

4. Explain the meaning of the following words in English: Executive, judicial, legislature, interpreting the Constitution. Referring to the text make up a dialogue on the topic «Separation

ofpowers».

VOCABULARY STUDY

1. Restore the word order:

a. A/ of government/ the United States/ structure/ has/ federal.

b. On/ the Constitution/ state/ autonomy/ imposes/ limitations.

c. Are/ by/ constituted/ rules/ legal/ the/ and/ the/ courts/

legislature.

d. Called/ the/ rules/ are/ creating/ of government/ agencies/ rules/

constitutive.

e. by/ Congress/ legislative/ the/ power/ exercised/ is.

f. Have/ the/ law/ the/ courts/ authority/ has/ to determine/

conferred.

g. Imposes/ the U.S. Constitution/ obligations/ on/ the/ legal/ states/

with/ each/ in/ their/ other/ relationships.

h. Defined/ the/ the U.S. Constitution/ of/ the/ powers/ government/

federal.

2. Match the suitable translation to the following combinations with the word «power»

Powers expressly assigned

Separation of powers

The Great Powers

The power of attorney

Power to contract

Power structure

The power of attorney and substitution

Powerpolitics

The Great Charter (Magna Carta)

3. Read the text and fill in the blanks with verbs in necessary forms:

The idea that government (to be, not) powerful (to appear) with King John’s signing the Magna Carta in 1215 under the threat of civil war. The document (to establish) the principle of limited government refusing the absolute role of the monarch. The Great Charter (to provide) for protection against unjust punishment and the loss of life, liberty and property except according to law. It (to stipulate) that no citizen (can, to punish) without a fair trial. Under this prominent document the king (can, not, to collect) taxes without consulting his advisors. Though the Magna Carta (to intend) as the document protecting thearistocracy in time it (to come) one of the cornerstones of British liberties.It (to be) still (to regard) one of the oldest written constitutional papers.

4. Read and comment upon the definition of the constitutional rights given below:

Constitutional rights are given or reserved to the people by the U.S. Constitution, and in particular, the Bill of Rights (first ten amendments). These rights include: writ of habeas corpus, no bill of attainder, no duties or taxes on transporting goods from one state to another (Article I, Section 9); jury trials (Article III, Section 1); freedom of religion, speech, press (which includes all media),assembly and petition (First Amendment); state militia to bear arms (Second Amendment); no quartering of troops in homes (Third Amendment); no unreasonable search and seizure (Fourth Amendment);major ("capital and infamous") crimes require indictment, no double jeopardy (more than one prosecution) for the same crime, no self-incrimination, right to due process, right to just compensation for property taken by eminent domain (Fifth Amendment); in criminal law, right to a speedy trial, to confront witnesses against one, and to counsel (Sixth Amendment); trial by jury (Seventh Amendment); right to bail, no excessive fines, and no cruel and unusual punishments (Eighth Amendment); unenumerated rights are reserved to the people (Ninth Amendment); equal protection of the laws (14thAmendment); no racial bars to voting (15th Amendment); no sex bar to voting (19th Amendment); and no poll tax (24th Amendment). Constitutional interpretation has expanded and added nuances to these rights.

5. Join the word pieces:

DISTRI TUTION

CONSTI BUTION

DRAW BACK

LEGIS IMPLE

MENTATION LATURE

PRESI ING

BIND DENT

Make up word combinations to illustrate the usage of thesewords.

SPEAKING

1. Suggest your ideas on the following statements:

– It has been said that «America is the only true democracy in thewestern world». Do you agree?

– Are you interested in politics? Should lawyers be politically active?

– What are the main differences in the Constitutions of the UK, theUSA and our country?

– What kinds of monarchy can you name? What are the pluses and minuses of living in the country ruled by king or queen?

– If you were to appoint the members of the Cabinet of Ministers what criteria would you rely on and whose recommendations would you listen to?

NB! For rendering your ideas, you can use inserted components like the one given in the text («consequently»). Among others «logical connectors» are: to begin with, firstly, secondly, notwithstanding, therefore, concluding the above- mentioned, summarizing this passage, etc.

INDEPENDENCE OF JUDGES, THEIR STATUS AND ROLEIN JUDICIAL PROCEEDINGS

A judge is a state official, who knows a lot about the law, and has thepower to adjudicate on disputes and other matters brought before the courtfor decision. The independence of judges is guaranteed by the Constitutionand the laws of the country.

In the United Kingdom judicial independence is the doctrine that decisions of the judiciary should be impartial and not subject to influence from other branches of government or from private or political interests. It is guaranteed by the Constitutional Reform Act 2005, s.3. Judicial independence is also secured by giving judges long, sometimes lifetime, tenure and making them not easily removable from their office. As long as judges hold their positions in «good order», they remain in post until they wish to retire or until they reach 70.

There are two types of judicial independence in the USA: institutional and decisional. The former means that the judicial branch is independent of the executive and legislative branches, while the latter lies in the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics, or other concerns influence their decisions, and without fearing punishment in the careers for their decisions. Law-abiding federal judges have lifetime appointments. Another condition of judicial independence is proper judicial selection. Many state legislatures prefer election by the general public but many professionals view judicial elections as rewarding political skills rather than legal ones.

The Laws of Ukraine «On Status of Judges», «On the Constitutional Court of Ukraine», «On Court Organization in Ukraine», «On Contempt of Court» and others determine the status of judges and provide their independence. Unity of status of judges is ensured by common requirements for candidates for a post of a judge, their powers, rights and duties, protection from interference in their work, means of legal, social and financial protection, immunity, political neutrality, etc. Guarantees of judges’ independence include the procedure of their election (appointment), secret of making a decision, prohibition on interference in administration of justice, responsibility for contempt of court or judge and so on.

Though there are significant differences between the functions of judges in different legal systems, they have some common functions. In judicial proceedings they are responsible for conducting a trial fairly, orderly and efficiently, observing the established procedures. Judges interpret and apply laws, decide questions related to pretrial release. In preliminary hearings and trial without a jury, they determine both the points of fact and the points of law. In jury trials they instruct jurors: the judge calls the jury’s attention to all most important points in the evidence and favours neither prosecution nor defence. In common law countries they also create law by establishing precedents.

The position of a judge is usually prestigious in society.

1. The summary of the text contains mistakes. Correct them.

The text «Independence of Judges, their Status and Role in Judicial

Proceedings» deals with the constitutional law. It starts with the description

of judges’ functions in the USA. Then it explains the judicial independence

doctrine in the UK. After that the author introduces two types of judicial

independence in Ukraine. Further on the author passes on to the status of

judges in Ukraine. At the end of the text there is a definition of a judge.

2. Find in the text

a) – the definition of a judge;

– the explanation of the judicial independence doctrine in the UK;

– two types of judicial independence in the USA;

– the functions of a judge.

b) the legal terms which correspond to the following definitions:

– an institution that has power to make or change the laws;

– respectful of the law and obeying it;

– not involved in a particular situation and therefore able to give a fair

opinion or piece of advice;

– disobedience or disrespect towards the court of law or judge;

– to officially decide who is right in a disagreement and decide what

should be done;

– an order that forbids something;

– an act of interfering in something.

3. Decide which pairs of words below are the same (synonyms), opposite (antonyms) or different. Add at least one pair to each group.

Independence– dependence, long – good, term – tenure, impartial

– fair, points – questions, biased – impartial, law – fact, post – position,

interpret – apply, unlawful – illegal, civil – criminal.

4. Complete the lists with the words and phrases connected with the following:

Sources of judicial independence:

... Means of judicial independence:

… Status of judges: …

Duties of judges: …

5. a) Read the following definitions of the word ‘contempt’ and choose the one in which it is used in the text:

a) a feeling that someone or something is not important and deserves no respect;

b) disobedience(непокора) or disrespect towards a court;

c) disobedience or disrespect towards a judge;

d) complete lack of fear about something.

b) Match the types of contempt of court to their Ukrainian

equivalents:

c) Find the English equivalents for the following words and phrases in the paragraphs below among those in italics:

PRACTICE AND EXPERIENCE

1. Work in pairs. One of you is a journalist and the other is a judge in a court of your choice in the UK, the USA or Ukraine. Prepare q u esti o ns and answers and b e r e ady t o r e p r o d u c e the interview.

WRITING

1. Write a letter to your friend in the UK or the USA about

a) the judicial system of Ukraine; or

b) judges in Ukraine.

OVER TO YOU

QUIZ

1. How many of these questions can you answer?

1. What are the two main areas of jurisdiction in the English judicial

system?

2. Ordinary people play two important roles in the administration of

justice in the UK and the USA. What are their roles?

3. What was the role of the House of Lords in the British judicial

system?

4. Can a precedent be too old to be a binding precedent today?

5. You ask Mr Cole’s job and he tells you he is an attorney. Is he

American or British?

6. If the US House of Representatives is equivalent to the British

Commons, what is the British equivalent to the Senate?

7. What is the Old Bailey?

8. Do British judges always wear wigs in court?

2. Find 28 legal terms hidden in the square below: 16 read across and 12 read down.

Date: 2014-12-28; view: 2047