Basic Law provides for both prosecutorial and judicial independence, as both are vital under the Rule of Law in Hong Kong.
This paper looks at issues in connection with prosecutorial independence and judicial independence of the superior courts. Indeed both are not functioning with total independency with the judiciary perceived to be more independent. As both are vital to the rule of law in Hong Kong, the prosecutorial independency and judicial independency of the superior courts shall be kept to the highest standard.
Prosecutorial independence:
The prosecutorial function of the Department of Justice is carried out by the Prosecutions Division, whose role is:
‘to prosecute trails and appeal on behalf of the HKSAR, to provide legal advice to law enforcement agencies upon their investigations, and generally to exercise on behalf of the Secretary for Justice the discretion whether or not to bring criminal proceedings in the HKSAR. The Division also provide advice and assistance to government bureaus and departments in relation to any criminal law aspects of proposed legislation.’
The Basic Law assures the criminal prosecutions shall be free from any interference. Section 15(1) of Criminal Procedure Ordinance (Cap. 221) provides that ‘the Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference.’ Section 1.1 of the Prosecution Code states that ‘a prosecutor is required to act in the general public interest, but independently as a “minister of justice”. In making decisions and exercising discretion a prosecutor must act fairly and dispassionately on the basis of the law, the facts provable by the admiss...
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...ken out, the gap between the 2 functions will narrow down substantially. If there is a lot of article 158 interpretations, it is not surprised to see prosecutors can be more independence than the judges in the superior courts. Of course the chance for that to happen is small as article 158 interpretation is not seen oftenly.
Conclusion:
In summary, both the prosecution function and the judicial function are not as independent as they shall be. For the time being, the judicial function is perceived to be more independent but however the situation can be reversed under certain scenario described above. In response to the other question “nor shall they be”, it is not anticipated such reverse will occur in the near future. As both functions are important to the rule of law in Hong Kong, the general public is expecting both functions to be as independent as possible.
In addition to this, the analysis of law was not considered thoroughly during judicial decisions. Therefore, the court uses backward reasoning where it uses the expected results it wants to deduce to make decisions. Such activities in the justice department have a lot of impediments to the impartiality of judicial system. The rights of the criminal in many instances are affected by the use of such methods to deliver justice. According to Marshall, the legal analysis used to determine the outcome of the courts has reduced since the changes in the judicial system. The rights of the individuals have significantly reduced with the changes in the court system because only the nine judges are privy to the outcome of the court proceedings; they are also not liable to the questions that may be raised about the legality of their
The merits of both the adversarial and inquisitorial system will be explored throughout this paper. The Australian rule of law best describes as all law should be applied equally and fairly. The five vital operations of the rule of law includes fairness, rationality, predictability, consistency, and impartially. The adversarial system adopts these operations by having a jury decide on the verdict and the judge being an impartial decision maker. In contrast, the inquisitorial system relies heavily on the judge. This can result in abusive power and bias of the judge when hearing evidence and delivering verdicts. The operations of the rule of law determine why the rule of law is best served by the adversarial system in Australia.
As police officers own right to carry out an investigation on the suspect, public arise concerning on negligent investigation. In the Hill v. Hamiton-Wentworth case, Mr. Hill was accused robbery and then was proved innocent. Mr. Hill filled a lawsuit against police officers on the tort of negligent investigation, and the Supreme Court of Canada dismissed Hill’s appeal. Moreover, a majority of the court recognizes there is a tort of negligent investigation in Canada, but Mr. Hill was investigated under code of care and no tort of negligent investigation during his investigation. While the argument of minority believes the tort of negligent investigation should be recognized in Canada, and the police had been negligent, the argument of minority is more compelling than majority.
The Criminal Justice Administration’s primary goal is to protect, deter and serve the community. It is the goal of Law Enforcement to protect and enforce laws equally among the land (Department of Justice, 2013). The 6th
Manarin, B. (2008). Role of the Prosecutor. In J. V. Roberts, & M. G. Grossman (Eds.), Criminal justice in Canada: a reader (3rd Edition ed., pp. 36-47). Toronto: Thomson Nelson.
One contradiction in the job of the prosecutor is that they have nearly limitless direction in critical matters; however, prosecutors’ are also held to a very high ethical standard. Prosecutors must screen cases to determine which ones need to be prosecuted; nevertheless, this is the source of controversy with most people. “What makes charging decisions more intriguing and controversial is the fact that in making this decision, the prosecutor has nearly limitless discretion” (Hemmens, Brody, & Spohn, 2013). This means the prosecutor’s charging decisions are beyond any judicial review, so it must be apparent that a prosecutor
Champion, D. J., Hartley, R. D., & Rabe, G. A. (2012). Criminal Courts: Structure, process, and
Police officers are faced each day with a vast array of situations with which they must deal. No two situations they encounter are ever the same, even when examines a large number of situations over an extended period of time. The officers are usually in the position of having to make decisions on how to handle a specific matter alone, or with little additional advice and without immediate supervision. This is the heart of police discretion. As we shall find, the exercise of discretion by police has benefits and problems associated with such exercise. The unfettered use of discretion can lead to the denial of citizen rights. Strategies that control the use of discretion are, therefore, very important. The benefits and problems of police discretion and controlling strategies are the focus of this essay.
When a prosecutor is deciding whether a case should be prosecuted in the courts and charges should be filed against someone, prosecutors consider two important questions: Is it in the best interest of the public to proceed? And, is there a strong reasonable likelihood that there will be a conviction? If the answer to both are yes, then there is the task of deciding whether there is enough evidence to prosecute the case and whether the evidence is reliable and can it be used in court. This means carefully assessing the quality of the evidence from all related witnesses before reaching a final decision.
Law enforcement has many roles in the criminal justice process. The duties preformed by police officers include traffic citations, criminal investigations, emergency response, and crime prevention. Police officers are here to enforce all laws that are set by the government. When police officers encounter
all judiciary cases in which any fact is involved,) or may they act by representatives, freely and
Another way in which the criminal justice system can be improved upon that rarely gets talked about is holding prosecutors responsible for their dereliction of duty. Their negligence could be the direct reason why someone is falsely convicted and yet nothing is done to them for it. They find ways to circumvent crucial evidence and suffer no punitive repercussions. Some prosecutors have even been known to completely piece together or even make up evidence that makes the defendant appear guilty. How is it possible that these individuals get away with these types of activities and experience no legal
In deciding whether to institute criminal proceedings, a prosecutor must balance two competing responsibilities. He must vigorously prosecute individuals reasonably suspected of significant criminal activity, but must avoid harassing or disturbing innocent citizens. In weighing these fac-tors, he is obligated to look beyond the immediate problem of winning a case and consider in-stead the fair and efficient administration of criminal justice.
In the mouth of a British constitutional lawyer, the term the rule of law seems to mean primarily a corpus of basic principles and values, which together lend some stability and coherence to the legal order.
The success of the criminal investigation process in achieving justice can be seen through its efforts to balance the rights of the victim, offender and the community, this is evident in the areas of police powers and discretion. Police powers constitute police officers to exercise special powers such as search and seizure and the use of reasonable force. These powers are outlined in the Law Enforcement (Powers