External links
Wikisource has original text related to this article:
The New Delhi Congress or Declaration of Delhi was an international gathering of over 185 judges, lawyers, and law professors from 53 countries all over the world, united as the International Commission of Jurists that took place in New Delhi, India in 1959. The theme of the New Delhi Congress was "The Rule of Law in a Free Society". The Congress further developed the principles and procedures underlying the Rule of Law as well as defining and clarifying the concept itself.
In Anglo-American tradition, the most influential version of the rule of law has been that popularized by British jurist A.V. Dicey in 1885. Dicey's doctrine on the rule of law is a threefold one:
Modern lawyers would regard the rule of law as essentially a political or moral idea, although nonetheless important for that, since it affects the way the law is developed and applied. It concerns ideas of regularity, access to the courts, fair procedure and honoring expectations. The 'rule of law' in Dicey's sense was a political factor that led to the enactment of the Crown Proceedings Act 1947 in the United Kingdom. Before that Act the Crown, that is, the central government, was immune from liability in the courts for breach of contract or for injuries inflicted by its servants.
Since the Second World War there have been several attempts to draw up Internationally binding codes of basic human rights. The Nuremberg Trials of Nazi war criminals that were organized by the victorious allies were based upon the assumption that some of the laws of Nazi Germany were not valid as they were repugnant to the standards of morality accepted by all civilized nations. This approach to law raises profound philosophical problems, but the role of modern human rights treaties and declarations is a less dramatic one. These include the United Nations Universal Declaration of Human Rights (1948), and the Declaration of Delhi or New Delhi Congress (1959).
The Delhi Congress gave rise to three important elements in the concept of the Rule of Law.
In preparation of the Congress, the Commission held a preparatory meeting in The Hague, Netherlands on 7 and 8 July 1958, where the drafting of the Congress Working Paper on the Rule of Law was mandated to former ICJ Secretary-General, Mr Norman Marsh. The 134 page paper was based on information gathered in an international survey of lawyers and legal institutions conducted by the ICJ Secretariat in the course of 1957. The information gathered was divided into the following sections:
The committees set up during the congress were each dedicated to one of the four themes with the Working Paper providing the basis of the discussions. The reports and conclusions of the committees were presented in two plenary sessions and the texts were subsequently referred to a steering committee, which issued the conclusions at the closing plenary session.
In its conclusions, the committee on the legislative stated that under the Rule of Law, the legislature carried out the function of creating and maintaining conditions that would uphold the dignity of man. This would include recognition of civil and political rights as well as the establishment of the social, economic, educational and cultural conditions, which the committee deemed essential to the full development of the individual's personality.
The committee also stated that minimum standards and principles regulating the individual within society were essential for the Rule of Law. Such standards would, however, imply certain limitations on legislative power. The limitations on the legislative should be enshrined in a constitution and safeguarded by an independent judicial tribunal.
According to the conclusions of the committee, the legislative had the responsibility to: abstain from enacting retroactive penal legislation; not discriminate in its laws between one citizen and another; not interfere with freedom of religious belief; not deny members of society the right to responsible government; not place restrictions on the freedom of speech, assembly or association; not impair the exercise of fundamental rights and freedoms of the individual; and provide the procedural mechanisms to protect the above-mentioned freedoms ("procedure of due process").
The committee on the executive concluded that the granting of power by the legislative to the executive should be undertaken within the narrowest possible limits and that legislature should define the extent and purpose of such delegated powers, as well as the procedures by which such delegated power was to be brought into effect. An independent judicial body should be given the power to review the legislation passed by the executive (Judicial review).
When the executive directly and adversely affected a person or the property rights of an individual, he or she should have the right to present his or her case before a court as well as the right to an adequate remedy. In the absence of a judicial review mechanism, antecedent procedures of hearing, inquiry and consultation should be established, through which parties whose rights or interests would be affected can have an adequate opportunity to make representation.
The committee also concluded that the Rule of Law would be strengthened if the executive were to be required to formulate its reasons when reaching its decisions, and at the request of a concerned party, to communicate them.
The committee considered the practical application of the Rule of Law in the field of criminal process. The committee clarified rules which it regarded as the minimum necessary to ensure the observance of the Rule of Law.
The committee made its conclusions regarding the prohibition of retrospective enactment of penal legislation (certainty of the law) as well as on the principle of presumption of innocence, which in the committee's view required that the burden of proof should only be shifted once facts creating a contrary presumption had been established.
Concerning the arrest of an individual, the power to arrest should be regulated and the arrested person should be told at once the grounds of his or her arrest. He or she should be entitled to a legal adviser and be brought before a judicial authority within a short period of time.
In relation to pre-trial detention, the committee listed the rights of the arrested, including the right to apply for bail.
Conclusions were also made in respect to the preparation and conduct of the defense and the minimum duties of the prosecution. These included the requirement that the prosecution not withhold favorable evidence from the accused.
Regarding the examination of the accused, the committee laid down minimum standards, such as respect for the right not to incriminate oneself and provisions that guarantee the physical and psychological integrity of the accused.
The committee also made conclusions regarding trial in public for criminal cases and the right to appeals and remedies.
Lastly, the committee concluded that the Rule of Law did not require any particular theory regarding punishment, but must necessarily condemn cruel, inhuman or excessive preventive measures or punishments and thus the committee supported the adoption of reformative measures wherever possible.
The committee on the Judiciary and the Legal Profession emphasized the importance of an independent judiciary in upholding the Rule of Law. The independence of the judiciary would be safeguarded by certain measures, including co-operation between at least two branches of the state (i.e. judiciary and legislative) on the appointment of judges. Furthermore, the committee perceived the "irremovability" of the judiciary as an important safeguard of the Rule of Law.
Regarding the legal profession, the committee deemed an organized legal profession free to manage its own affairs to be essential. While a lawyer should be free to accept any case which is offered to him, he should also in some cases be obliged to defend persons with whom he does not sympathize.
The committee also addressed the issue of equal access to the justice. It was perceived to be the primary obligation of the legal profession to use its best efforts to ensure that adequate legal advice and representation were provided. The state and community would however have the obligation to assist the legal profession in carrying out this responsibility.
This International Congress of Jurists, consisting of 185 judges, practicing lawyers and teachers of law from 53 countries, assembled in New Delhi in January 1959 under the aegis of the International Commission of Jurists, having discussed freely and frankly the Rule of Law and the administration of justice throughout the world, and having reached conclusions regarding the legislative, the executive, the criminal process, the judiciary and the legal profession, (which conclusions are annexed to this Declaration),
Now solemnly
Reaffirms the principles expressed in the Act of Athens adopted by the International Congress of Jurists in 1955, particularly that independent judiciary and legal profession are essential to the maintenance of the Rule of Law and to the proper administration of justice;
Recognizes that the Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized;
Calls on the jurists in all countries to give effect in their own communities to the principles expressed in the conclusions of the Congress; and finally
Requests the International Commission of Jurists
This Declaration shall be known as the Declaration of Delhi.
Done at Delhi this 10th day of January 1959
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). Comprising nine chapters, 160 articles and three annexes, the Basic Law was composed to implement Annex I of the 1984 Sino-British Joint Declaration.
The International Commission of Jurists (ICJ) is an international human rights non-governmental organization. It is a standing group of 60 eminent jurists—including senior judges, attorneys and academics—who work to develop national and international human rights standards through the law. Commissioners are known for their experience, knowledge and fundamental commitment to human rights. The composition of the Commission aims to reflect the geographical diversity of the world and its many legal systems.
The Law of the People's Republic of China, officially referred to as the Socialist legal system with Chinese characteristics, is the legal regime of China, with the separate legal traditions and systems of mainland China, Hong Kong, and Macau.
The Judiciary of Russia interprets and applies the law of Russia. It is defined under the Constitution and law with a hierarchical structure with the Constitutional Court and Supreme Court at the apex. The district courts are the primary criminal trial courts, and the regional courts are the primary appellate courts. The judiciary is governed by the All-Russian Congress of Judges and its Council of Judges, and its management is aided by the Judicial Department of the Supreme Court, the Judicial Qualification Collegia, and the Ministry of Justice, and the various courts' chairpersons. And although there are many officers of the court, including jurors, the Prosecutor General remains the most powerful component of the Russian judicial system.
The Fundamental Rights, Directive Principles of State Policy and Fundamental Duties' are sections of the Constitution of India that prescribe the fundamental obligations of the states to its citizens and the duties and the rights of the citizens to the State. These sections are considered vital elements of the constitution, which was developed between 1949 by the Constituent Assembly of India.
The Directive Principles of State Policy of India are the guidelines to be followed by the government of India for the governance of the country. They are not enforceable by any court, but the principles laid down there in are considered 'Fundamental' in the governance of the country, which makes it the duty of the State to apply these principles in making laws to establish a just society in the country. The principles have been inspired by the Directive Principles given in the Constitution of Ireland which are related to socialjustice, economic welfare, foreign policy, and legal and administrative matters.
The Law of Spain is the legislation in force in the Kingdom of Spain, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in democratically elected institutions.
In most legal systems of the Spanish-speaking world, the writ of amparo is a remedy for the protection of constitutional rights, found in certain jurisdictions. The amparo remedy or action is an effective and inexpensive instrument for the protection of individual rights.
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the Encyclopedia Britannica as "the mechanism, process, institution, practice, or norm that supports the equality of all citizens before the law, secures a nonarbitrary form of government, and more generally prevents the arbitrary use of power." The term rule of law is closely related to constitutionalism as well as Rechtsstaat and refers to a political situation, not to any specific legal rule.
Judicial independence is protected by Singapore's Constitution, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. Independence of the judiciary is the principle that the judiciary should be separated from legislative and executive power, and shielded from inappropriate pressure from these branches of government, and from private or partisan interests. It is crucial as it serves as a foundation for the rule of law and democracy.
In Singapore, the rule of law doctrine has been the topic of considerable disagreement and debate, largely through differing conceptions of the doctrine. These conceptions can generally be divided into two categories developed by legal academics, the "thin", or formal, conception and the "thick", or substantive, conception of the rule of law. The thin conception, often associated with the legal scholars Albert Venn Dicey and Joseph Raz, advocates the view that the rule of law is fulfilled by adhering to formal procedures and requirements, such as the stipulations that all laws be prospective, clear, stable and constitutionally enacted, and that the parties to legal disputes are treated equally and without bias on the part of judges. While people subscribing to the thin conception do not dismiss the importance of the content of the law, they take the view that this is a matter of substantive justice and should not be regarded as part of the concept of the rule of law. On the other hand, the thick conception of the rule of law entails the notion that in addition to the requirements of the thin rule, it is necessary for the law to conform with certain substantive standards of justice and human rights.
The concept of the separation of powers has been applied to the United Kingdom and the nature of its executive, judicial and legislative functions. Historically, the apparent merger of the executive and the legislature, with a powerful Prime Minister drawn from the largest party in parliament and usually with a safe majority, led theorists to contend that the separation of powers is not applicable to the United Kingdom. However, in recent years it does seem to have been adopted as a necessary part of the UK constitution.
The rule of law is one of the longest established common law fundamental principles of the governance of the United Kingdom, dating to Magna Carta of 1215, particularly jurisprudence following its late 13th century re-drafting. It as a minimum subjects an otherwise absolute monarch (executive) and all free people within its jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland to legal doctrines known as the general principles of law. It has evolved to work only alongside equal application of the law to all free people 'equality before the law' and within the framework of the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly what it entails beyond this and the way that different aspects of the rule of law principle are applied, depends on the specific situation and era.
The International Association of Judicial Independence and World Peace is a non-profit organization that promotes judicial independence in national court systems around the world. Judicial independence allows court systems to enforce the rule of law without interference by political or other governmental authorities.
The Judiciary of Mauritius is responsible for the administration of justice in Mauritius and has as mission to maintain an independent and competent judicial system which upholds the rule of law, safeguards the rights and freedom of the individual and commands domestic and international confidence. The Constitution provides for the institution of an independent judiciary which is based on the concept of separation of powers. Mauritius has a single-structured judicial system consisting of two parts, the Supreme Court and the Subordinate Courts. The Subordinate Courts consist of the Court of Rodrigues, the Intermediate Court, the Industrial Court, the District Courts, the Bail and Remand Court, the Criminal and Mediation Court and the Commercial Court. The Chief Justice is head of the judiciary. The Constitution of Mauritius is the supreme legal document of the country. The final appeal from decisions of the Court of Appeal of Mauritius to the Judicial Committee of the Privy council in London as provided for under the Constitution of Mauritius.
The German Bar Association is a voluntary association of German and German-speaking lawyers. It seeks to safeguard, protect and promote the professional and economic interests of the Bar, notary lawyers included, especially by promoting fair administration of justice and legislation, education and further training, encouragement of professional solidarity and scientific spirit among lawyers.
Judicial reform in Ukraine is a set of legislative, institutional and personnel changes aimed at improving the Judiciary of Ukraine.
