Constitutional Law & Criminal Procedure

1. Identify and discuss the different methods of constitutional review. There are 2 major legal systems which are supported by criminal procedural laws being followed in model nations viz. , adversarial and inquisitorial systems. They are administered in different context from one model nation to the other. England and US follow the adversarial system under a common law framework while France and Germany follow an inquisitorial model, keeping in view the civil law tradition. China uses the inquisitorial law with a socialist legal tradition unlike Japan and Saudi Arabia that are very unique in their justice system.

The ‘adversarial system’ is a set of legal procedures where Common Law is practiced to determine the truth during adjudication whereby the prosecution and defence counsel render their expertise in a competitive manner while the judge offers justice and fair application of rules. Under the inquisitorial system, the judicial control of the investigative process is the best way to uncover the truth. 2. Identify the model nation that has a constitutional review system most similar to the United States. Next, identify that system which has a process of review most

different to the United States. Finally, discuss what makes these review processes similar and different to the U. S. system of review. Of all the model nations, England has a constitutional system that is close to the US justice system. Criminal justice system in England is strongly influenced by decisions made by Parliament, which shows how the parliamentary form of governance has evolved to be a strong deciding force in the nation since the 18th century. Legal procedures in England are constantly subject to revision than its counterpart in the US with its fixed constitutional rights.

The system of criminal justice is very hierarchial- the government remains active in the administration of justice and retains absolute control over judiciary, and within that role administering justice is a collective and shared responsibility between the local and national government. The police are accountable to the Home Secretary who is a member of the parliamentary cabinet and sets governing standards and funds for the Police who are then administered at a local level. 3. Should England establish some form of constitutional review?

How should it be organized? England claims to have an unwritten constitution and to be guided by an English constitution law. The supremacy of Parliament is the major reality of British government. Since there is no written constitution, even the most sacred English traditions of government and human rights theoretically can be changed by an act of Parliament. Although there is not written constitution, British constitutional law scholars maintain that there is a kind of judicial review of basic constitutional tenets.

The less explicit a law of Parliament is, or the more it delegates power to administrative agencies to carry out broad objectives, the more the English courts can become involved in questions of constitutionality. 4. Regarding human rights, identify the similarities and differences between China and Saudi Arabia. What has been the response of the international community? What can be done to motivate these countries to make some changes? China and Saudi Arabia share a lot of similarities when it comes to the manner of meting justice. China has been a very closed and insular society.

The justice system is still lagging behind when compared to western nations. China was governed by feudal dynasties for centuries and the laws meant to protect the citizens remained ineffective as it was meant to be seen that the rulers were a benevolent lot and thus people remained suppressed and oppressed. China’s transition to adopt modern mechanisms of justice system has been painfully slow and since the last few decades the Chinese have developed formal mechanisms to serve the functions of the judicial review as handled by the Supreme People’s Court.

Yet the Supreme People’s Court does not have the power to conduct any serious form of judicial review. In Saudi Arabia, the framework of law rests on the obedience to the holy text of Quran which is the ultimate source for all judicial solutions. The law followed is know as Sharia for all civil and legal purposes. This kind of prevailing law system in Saudi Arabia makes it very unique. Crimes are dealt with in a harsh manner hence the general fear of committing a crime. For e. g. , punishments can go to the extreme of physical dismemberment for burglary, or adultery being dealt with by flogging, e.

t. c. It is a general concern amongst the international community about prevailing law and its archaic nature when compared to the rest of the world that have adopted modern laws of justice. As trade improves amongst countries, there is also and exchange of culture 5. Compared to Civil Law systems around the world, identify those characteristics which make the Saudi Arabian criminal procedure system unique. The judicial system is founded upon ‘Sharia’ which has its roots in the holy text of Quran, in accordance with a decree passed by by King Abd al Aziz in 1926.

Two categories of crime are clearly delineated in the Sharia: i. Those that are carefully defined In this category there are specific penalties. ii. Those that are implicit in the requirements and prohibitions of the Sharia. In this category, punishment can be prescribed by a judge (called as ‘qazi’) of a Sharia court iii. A third category of crime has developed through the years as a result of various governmental decrees that specified codes of behavior and regulations considered necessary to maintain public order and security. The first 2 categories are tried in Sharia courts.

The third, dealing with corporate law, taxation, oil and gas, and immigration, is handled administratively by government officials 6. Identify and discuss the major differences between the Common Law and Civil Law criminal procedure. Civil Law encompasses the issues of tort claims, money, probate, common law, divorces, family law and issues where law enforcement is not involved. Traffic accident claims, insurance issues and things that do not involve crimes. Civil actions do not usually involve jail. They involve settlements for cases like personal injury,

juvenile law, adoptions, divorces and like. Criminal law involves the treatment of people who break the law and are victims of crimes. Robberies, murders, burglaries, and anything else you can go to jail for and be charged with are crimes and are under the jurisdiction of criminal law. 7. If you were on trial for a felony, in which of the model countries would you most like to be tried? In which would you least like to be tried? Why? If i was on a trial for felony, i would liked to be tried in a US court which upholds the spirit of fairness and equality when meting out justice to a person on trial.

Moreover the system is administered by educated professionals and there is a degree of transparency when dealing with issues in the government machinery. I would not like to be tried in a judical system where i am not aware of the process nor procedures. It is important to for me to know my rights as an undertrial and hence I would like to be tried in a court that gives me the reasonable opportunity for me to have access to law resources. 8. Why does China have such a significantly different attitude toward criminal procedure than the other model countries addressed?

Further, why would a policy such as “exemption from punishment” be allowed in China and not in the United States. Procedural rights are of little or no concern in China. The presumption of innocence, the exclusionary rule, protection against self-incrimination, the right to trial by jury, are absent in Chinese courts. China was governed for centuries by feudal dynasties. During this time laws were sometimes made to control those in power and to provide protections for the governed. However, the majority of these laws lacked any strength.

Therefore the people of China got used to living and abiding by the commands of a superior who could basically implement his own law. This mentality has continued through the development of Communist rule in China—their needs are more important that individual needs. The Chinese constitution is not a list of rights designed to protect individuals from the government. Rather, its purpose is to explain to the people about the government’s reason for public policy. For example, Article 5 states that “no organization or individual may enjoy the privilege of being above the constitution or the law”.

II. Legal Actors Respond to the following discussion questions after reading: Fairchild and Dammer, Chapter 7 1. Identify and discuss the advantages and disadvantages of having a bureaucratically organized legal profession. Bureaucracies manage processes for the implementation of policies and procedures and are an essential aspect of all organizations. Problems arise when bureaucracies become self-serving and self-perpetuating. A bloated bureaucracy is inefficient and consumes unnecessary resources, thereby slowing down the process response times.

In order for an organization to thrive it must readily adapt to changing circumstances, it must innovate. 2. Discuss some of the major issues between legal education in England and the continental Civil Law nations. One of the first differences that students of English law will meet when they embark upon legal studies in France is that the French concept of law is quite distinct from the English. French law- unlike the English law, is not seen primarily as a means of settling disputes or restoring the status quo.

In France, lawyers adopt a more conceptual and abstract approach to legal problems, seeing law as a series of fundamental principles. English law, by contrast, often proceeds on the basis of law as a means of providing remedies for certain cases. The differences exist because of the following reasons : There are number of historical factors that contribute to the concept of law in France which are absent from the development of English law. They include the influence of Roman law, particularly in the revival of Roman law in French universities in the Middle Ages.

A further factor in this differentiation is the influence of universities. Academics have played an important role as both advisors on the formulation of legislation and the interpretation of legislation. In contrast to the dominant role of the judiciary in the formulation of the English common law, in France the role of the judiciary was much diminished after the revolution. The concept of legal rules differ between the two systems. In the English common law- legal rules are formulated by judges when adjudicating disputes and applied to specific situations.

Where distinguishable cases arise a different legal rule may be applied, and within such a system it is difficult for a systematic body of rules to emerge. In the French system the law is formulated by jurists and academics and enshrined by legislation. It is systematic and based on principles. Therefore, the consideration of these general principles, precedes the solutions awarded in specific cases. 3. Peruse the Basic Principle on the Role of Lawyers in Appendix A of the Fairchild and Dammer text. Determine whether any of the model nations would have a compliance problem with these principles.

What principles would be most problematic? For what countries? The basic principles on the role of lawyers have been formulated to assist in promoting and ensuring professional standards for lawyers and paralegals. They are guidelines for judges, prosecutors, members of the executive and the legislature, paralegals and the public in general and provide guarantees necessary for the defence of everyone charged with a penal offence. There are several problems are not resolved in the Principles, and possibly cannot be resolved within principles of this kind.

It is common to many modern systems of civil procedure which prescribe judicial case management, because these systems also oblige the parties to cooperate in order to reach the desired efficiency to litigate. This inevitably raises the question- how does one persuade parties and their lawyers to cooperate in civil litigation? 4. Discuss why there are so few lawyers in Japan. The reason why there are very few lawyers in Japan is because there is just one law school in the country i. e. , the Legal Training and Research Institute (located at Tokyo), which contributes to the talent pool of law professionals who serve Japan’s justice system.

It is mandatory to pass out from this institute in order to be a law professional. Hence competition is fierce in order to study law. Secondly, the small number of attorneys in Japan, charge a high amount of fees which proves to be quite expensive for most Japanese and would rather prefer to settle out of court. Further, by spending a less amount of time, money and efforts on litigation when compared to the West, the Japanese would rather prefer to devote more resources to benefit society in more tangible ways.