Friday, July 26, 2019

ASSIGNMENT ( The judiciary as a referee ) Essay

ASSIGNMENT ( The judiciary as a referee ) - Essay Example It plays the role of a neutral arbiter, or a referee in any dispute before it, by applying the law as it is to the facts before it. The judiciary is vested with the powers to interpret the law. The Supreme Court is the court of last resort as far as interpretation of the law is concerned. The duty of the court is to interpret the statute law from parliament, to affect the purpose and intention of the parliament. The judiciary cannot make law. If the parliament is not satisfied with the way the court interprets the law, it can make law to quash the court’s interpretation. As a referee, it is the judiciary’s role to determine who should do what, or which state of affairs should prevail in any dispute that is presented before it, that is, it makes decisions. In essence, it arbitrates disputes that arise over facts and law. In doing so, the judiciary should apply the law, and should not let the personal opinion of individual judges or their bias to influence the outcome of the court. Everyone should be treated equally before the law, and it should act without fear or favour. The New Zealand legal system is an adversarial one and, therefore, the judge’s duty is just to hear cases presented by both sides, and plays minimal role as far as evidence adducing is concerned. To add, they should not make law or policy that should be a reserve of the parliament. ... In doing so, the court can never question the validity of the Acts that have been passed by parliament. The court has jurisdiction to look into administrative decisions of public officials to ensure that they observe the law. The courts role is to ensure that the public officers execute their mandate in good faith, without malice, and pursuant to the law. In R v Somerset County Council, ex parte Fewings [1995] 1 All ER 513, 524, stated that any action taken by a public official must be justified by a positive law. The court also has a duty to enforce and uphold personal liberty and human rights that are enshrined in the law: to wit the New Zealand Bill of Rights Act 1990 and the Magna Carta 1215, which still applies in New Zealand. Therefore, it is the courts duty to enforce human rights and to prevent the government from abrogating human rights. In Attorney General V Chapman [2011] NZSC 110, the court held that the bill of rights does not apply to the judges in discharge of their du ties. It relied on the common law protections under the judicial immunity to render New Zealand Bill of Rights’ remedies available for breach of rights by the New Zealand judges nugatory. Nevertheless, the judiciary, as a referee, it should not make laws. In essence it does, through the doctrine of precedence. For instance, the court in Fitzgerald v Muldoon [1976] 2 NZLR 615), made a decision that is considered to be part of the constitutional law. In this case, the court held that the Prime Minister had no powers to suspend law. He stated that sentiments made by the Prime Minister to that effect were contrary to the bills of right of 1688 that prohibited public authorities from suspending the law.

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