WISHING YOU MANY GOOD HOURS IN THE LIBRARY FOR THE YEAR 2012.

EUROPEAN CONVENTION ON HUMAN RIGHTS

ARTICLE 6 (1)

 In the determination of his civil rights and obligations or of any criminal charge against him, every one is entitled to a fair and public hearing within  a reasonable time by an independant and impartial tribunal established by law. Judgment shall be pronouned publicly but the press and the public may be excluded from all  or part of the trial in the interest of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of the private life of the parties so require,or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interest of juctice.

Notes

The driving force of a modern Goverment must be Goverment by Law not Goverment by man. While Administrative Law is conceptually distinguishable from Constitutional law , the link between the two is marked.

page 8  Administrative Law in Malaysia-- Wan Azlan Ahmad
                                                             --Nik Ahmad Kamal Nik Mahmod

THE CRIMINAL LAW JOURNAL-1953

"IT IS AN AXIOMATIC TRUTH BORNE OUT BY THE POLITICAL HISTORIES OF VARIOUS COUNTRIES THAT A CITIZENS FREEDOM CANNOT BE SAFE IN THE HANDS OF THE EXECUTIVE OF ANY STATE HOWSOEVER BENEVOLENT AND THAT THAT FREEDOM CAN ONLY BE PROTECTED ONLY BY THE LAW COURTS AND THE JUDGES OF THE STATE UNLESS THEY ARE  THEMSELVES SUBORDINATED TO THE EXECUTIVE."

The above statement was made by Sri Thakur Prasad Dubey , Distrcit Judge, Azamgarh, Uttar Pradesh.in the year 1953.That was a very long time ago and many theorists still have reservations about unfettered political power vested in the Executive.Thus the emergence of Human Rights Lawyers.The line between the elected Executive and the unelected Judiciary is sometimes filled with tension- and there exists a no man's land in between where the legal "lets dance" between the Executive and the Judiciary takes place.

LORD CHIEF JUSTICE HEWART

R V SUSSEX JUSTICES , EX PARTE  Mc CARTHY [1924] 1 KB 256

"It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

'UNERASONABLENESS' 1948- 1 KB 223

 The Classic test of  unreasonableness is the Wednesbury principle, formulated by Lord Greene.

" .... a person entrusted with a discretion must, so to speak, direct himself properly in law."

CCSU [1985] AC 374

In the GCHQ case Lord Diplock referred to the principle of proportionality ..

A & Ors v Secretary of the State for the Home Department [2005] UKHL 71;[2005] 3 WLR 1249 AT 1300

... that evidence procured or which may have been procured by torture overseas, even without the complicity of British Officials, shall not be admissible before the English Special Immigration Appeals Commission,and there Lord Hope declared:-

A & Ors v Secretary of the State for the Home Department [2005] UKHL 71;[2005] 3 WLR 1249 AT 1300

The use of  such evidence is excluded .....on grounds of  its barbarism,its illegality and its inhumanity. The law will not lend it's support  to the sue of torture for any purpose whatsoever. It has no place in the defence of freedom and democracy,whose very existence  depends on the denial of the use of such methods to the executive.