It is true that the decision of international court of justice is not equivalent to that the municipal courts. Nevertheless the decisions of the court posses binding force and can be enforced under certain circumstances. They are binding upon the parties to the dispute and only in respect of that dispute. The provision to this effect is contained in article 59 of the statue of the international court of justice. Besides this article 94 of the U.N charter provides that each member of the U.N undertakes to comply with the decision of the
As the time past, custom practices and common adoptions have become compulsory and have acquired the force of a law in respect to the place or subject matter to which it relates. This community-based social regulations and dispute resolutions practices are distinct from the western-style justice system (Black 's Law Dictionary Free Online Legal Dictionary (2nd edition), 1910; O’Connor, 2012). As a result, despite Common law and Civil law are two major legal traditions in the world (Central Intelligence Agency, 2016), we shall not simply categorize a country as a Common law or Civil law country. We shall take note on their colonization history, besides aware of the existence of hybrid or mixed legal systems and legal pluralism in some countries. Under these situations, the Common law or Civil law could be regarded as a subsystem of the wider legal systems only.
It is essential to state that which shifts is the evidential burden and it has to be proved on a balance of probabilities. The above details can be appreciated in the case of Attorney General v Lyampali and Liso in which the accused persons had to prove on a balance of probabilities that they had lawful authority or reasonable excuse for “possessing offensive weapons in a public place”, elements which had been proved by the prosecution. Having considered the presumption of innocence as guaranteed under the constitution and the extent to which it is afforded protection, it is pertinent to consider the right contained and guaranteed under article 18(7) of the Constitution, which is to be discussed under the heading below. 2. Competence and Compellability of an Accused
The State and Central Governments have powers to commute death sentences after their final judicial confirmation. This power, unlike judicial power, is of the widest amplitude and not circumscribed, except that its exercise must be bona fide. Issues often alien and irrelevant to legal adjudication – morality, ethics, public good, and policy considerations are intrinsically appropriate to the exercise of clemency powers. These powers exist because in appropriate cases the strict requirements of law need to be tempered and departed from to reach a truly just outcome in its widest sense. The executive’s powers to commute a death sentence, in other words, exist to remedy deficiencies in the strict application of the law.
However, a bilateral agreement, extradition treaty and mutual legal assistance treaty already exists between the states parties. These agreements override the need for the implementation of certain provisions of the convention. Also, within the respective domestic laws of the states parties, the offences of the transnational organised crime is provided for in the United States federal laws[Requote the law here] In accordance with Article 3(1)(d) of the UNTOC states that: 1.“This Convention shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of: 2. For the purpose of paragraph 1 of this article, an offence is transnational in nature if(d) It is committed in one State but has substantial effects in another State.” Under Article 3(2)(d) lottery scamming is an offence that is transnational in nature as the point of the crime is committed in one state, Jamaica and has adverse effects on another state, the United States. However, Jamaica and the United States have not applied Article 3(1)(d) as both states parties have bilateral agreements between them which overrides this convention.
The first one is the intent of the lawmakers through which it is indicated that the purpose was to cover all acts of torture in any form and if the fountainhead of command is not covered under the ambit of the Convention then its purpose is ultimately defeated . The Court, in other words, says that it is unfair to hold an officer of lower rank liable for an offense if the person in charge is allowed freedom to continue ordering such acts. Thus, Pinochet is an officer under the meaning of the Convention . The second technique is a purposeful mode of interpretation through which the Court reads the provisions keeping in mind the ultimate purpose of the Convention. The Court holds that immunity is a concept is granted ratione personae and on the expiration of office, this becomes rationemateriae.
In the civil law there’s a division of powers, where the legislator, legislates and the courts (judges) apply the law. The civil law lawyers start from legal codes contained in the legislation, and by the process of supposition, they make decisions concerning the actual case, where it is more inflexible because in the non-existence of a specific code for particular situation, the judges cannot produce new rules and consequently this can precede to injustice. Alternatively, in common law the main duty of the courts is to create the law, judges have somewhat greater flexibility to create an appropriate remedy (legal principle to cover wide range of areas, even those not specifically provided in written law) at the conclusion of the case. The lawyers in common law, compare the actual case with similar legal disputes that have been dealt in previously decided circumstances, and from this precedents they need to follow the doctrine of stare decisis. Common law can respond to cases, situations and facts that were not foreseen by legislators.
In contrast to that, he created his secondary rules, which are considerably more detailed. They consist of three sub-rules, the rule of change, the rule of recognition, and the rule of adjudication. The rule of recognition is essential to the legal system as it gives the legislator a clear set of guide lines that validate the laws that are passed. Additionally, the rule change is necessary in order to sanction legislative or judicial changes to primary rules . This is crucial in order to allow laws to meet societies ever-changing needs.
To make binding laws within its territory, prescriptive jurisdiction is referring to the supremacy of the organs that constitutionally recognized of the state. Enforcement Jurisdiction has a meaning of the enforcement of the laws that only allowed within the state territory itself. A State cannot enforce its laws on the foreign territory without the permission or agreement from the host state; or else it will be liable for a violation of International Law. Judicial jurisdiction is concerning about a particular country’s power courts of to try cases in which a foreign factor is present. In criminal judicial jurisdiction, the range is from the territorial principle to the universality principle; and in civil judicial jurisdiction, the range is from the mere presence of the defendant in the country to the nationality and domicile principles.
An issue in theoretical basis on what should prevail or which is supreme between International Law or Municipal Law (national law) is usually presented as a competition between monism and dualist. But in modern approach there is now the theory of coordination or is also called Harmonization theory that rejects the presumption of the other two theoretical concept, monism and dualism. The monist view asserts the international law’s supremacy over the municipal law even in matters within the internal or domestic jurisdiction of a state. While it is true that the international law defines the legal existence of states as well of the validity of its national legal order, the dualist asserts the international law is an existing system that is completely separated from municipal or national law. That dictates the