Understand Politics
Page 30
NATIONAL GOVERNMENT CONTROL OF POLICING
If a police force is controlled by, and accountable to, national government, there is a danger that the main role of that organization will be to promote the political interests of the party or parties from which the government is formed. Typically, the government will identify its interests with those of the state. Thus, police operations might be directed by the national government or legislation might be interpreted for the police by that government. The police are then answerable to this body for the manner in which they have discharged their duties. The police therefore personify the state. They are the ‘state in uniform’. Such a situation existed, for example, when South Africa was subject to white minority rule.
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National control of policing
In France, central government performs a major role in police affairs. There are two main police forces. The police nationale is controlled by the Ministry of the Interior, while the gendarmerie nationale is technically part of the armed forces under the control of the Ministry of Defence. Officers from these bodies are also used as investigating officers to conduct inquiries under the supervision of an investigating judge or a public prosecutor. In this capacity they are termed the police judiciaire and are responsible to the judiciary.
In Ireland, the garda siochana operates on a national scale, controlled by a commissioner appointed by the minister of justice, to whom the commissioner is theoretically responsible.
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LOCAL GOVERNMENT CONTROL OF POLICING
A second possibility is that the police should be subject to local control. This may be performed by state governments, local authorities or by the direct election of police chiefs. The police would then be accountable to these local bodies for their activities. This would ensure that a number of police forces rather than a unified police service operated within the country. It may thus guard against police work being concerned with the advancement of the interests of one particular political party (or group of parties acting in alliance). It is likely that a range of political parties will exercise control over the large number of state or local governments found in any one country. This will prevent police work being primarily directed towards attaining one overriding political aim.
In this situation police work can be orientated towards issues felt to be of concern to ordinary members of the general public. Police activity is directed towards matters such as responding to crime and lawlessness rather than towards achieving the political priorities of national government. This role is appreciated by the public, who support the police in their work. Policing is thus carried out with the consent of most members of the population.
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Control of American policing
In America, policing is primarily a local affair, controlled by units of local government operating at county or municipal levels. The National Guard, which exists at state level, may also perform police-related functions. Additionally the Federal Bureau of Investigation (FBI) is an agency of the justice department with the responsibility of enforcing federal laws and whose remit is thus nationwide. Local control, however, does not necessarily take the politics out of policing. State or local governments also have political objectives which they wish to fulfil and the police may be used to further these.
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PROFESSIONAL CONTROL OF POLICING
A final option is that police work should be controlled by, and accountable to, those professionals who actually perform the work. Under this model, senior police officers in charge of police forces exercise control over such bodies and individual police officers are accountable for their actions to these commanders. This system of control and accountability might seem the best guarantee of political impartiality in the exercise of police work. It leaves the police free to determine the most important functions to carry out. The ability to do this enhances the trust and co-operation of the general public.
There are, however, problems with such a system. The police and the public may have different views concerning issues such as what matters should receive priority attention. There is the danger that the police and public may become so distanced that their role is seen as illegitimate by citizens. It is also possible that members of the general public will distrust a system in which police officers are subject only to internal mechanisms of accountability. Remedies against abuse of power are difficult in a situation in which the police are a ‘law unto themselves’. The UK concept of constabulary independence perhaps comes closest to the model of police work being subjected to the control of senior police officers. Their ability to direct policing was, however, considerably undermined when the 1994 Police and Magistrates’ Courts Act enabled the home secretary to set national objectives which each force was required to meet.
Question
‘Policing is a local function that should be controlled by local government.’ Examine the strengths and weaknesses of this form of control over policing.
The judicial system
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Insight
The main role of the courts is to adjudicate a dispute between two parties. These two parties may be private citizens who are in dispute with each other. Alternatively, the state may be party to a case that comes before the courts.
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No two liberal democratic countries have an identical judicial system. Differences especially exist concerning the conduct of trials. The UK and America utilize the adversarial system, in which two parties seek to prove their case by discrediting that put forward by their opponents. The trial is presided over by a judge whose main function is to ensure fair play. Many European countries utilize an inquisitorial system. Here the gathering of evidence is the responsibility of the judge and the main function of the trial is to resolve issues uncovered in the earlier investigation. The judge will actively intervene in the trial in order to arrive at the truth.
In the remainder of this section we consider some of the main work performed by judicial systems.
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Civil and criminal law
Civil law is concerned with the resolution of disagreements in which, typically, one party seeks some form of redress (such as damages) from a second party. Criminal law embraces activities that have broader social implications and which thus require the state to initiate a prosecution with a view to punishing the offender. Slander is an example of a civil action, murder is a criminal charge.
In many countries, civil and criminal matters are heard in different courts. This is not invariably the case, however. In France civil and criminal matters are heard in the one court, the ordre judiciaire, utilizing the same judicial personnel. In England and Wales a circuit judge may hear both civil and criminal cases and magistrates’ courts perform some civil functions.
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THE ORGANIZATION OF THE COURTS IN ENGLAND AND WALES
The civil and criminal courts in England and Wales are organized in a hierarchical fashion.
Most criminal cases are tried in magistrates’ courts, the majority of which are staffed by laypersons termed ‘justices of the peace’. The more serious cases, carrying heavier sentences, are heard in crown courts presided over by a judge and making use of a jury. Appeals against the verdicts reached in crown courts are heard by the Court of Appeal (Criminal Division).
Minor civil matters may be handled by the small claims procedure, which seeks to resolve a dispute without the need to take it to open court. Most civil cases which go to court are heard by county courts, although the High Court of Justice may hear cases in which large sums of money are claimed. Appeals against a verdict reached in a county court or the High Court will be heard by the Court of Appeal (Civil Division).
The House of Lords formerly acted as the final court of appeal for both criminal and civil cases. The 2005 Constitutional Reform Act replaced the jurisdiction of the House of Lords with a new body, the Supreme Court, which became operational in 2009. This court is composed of 12 justices and he
ars appeals on points of law for all civil cases in the UK and relating to criminal cases in England, Wales and Northern Ireland. It also adjudicates on devolution issues arising from the 1998 Scotland Act, the 1998 Northern Ireland Act and the 2006 Government of Wales Act.
Scotland has a legal system which is different from that in England and Wales and the courts in Northern Ireland also function differently from their English and Welsh counterparts.
TRIAL BY JURY
Juries are designed to provide a trial by one’s peers (that is, equals) and they are an important feature of the judicial process in the UK and America. In the UK, jurors are chosen from the electoral register drawn up by local government. Their role is to listen to the evidence that is put forward in a trial by the defence and prosecution and come to a decision as to whether the defendant is guilty or not guilty.
Juries possess a number of advantages. Their ability to pronounce a ‘not guilty’ verdict in the face of overwhelming evidence to the contrary may bring about reform of the law if public opinion feels that the law and the penalties that it imposes are unjust. Juries may also take the motive of the lawbreaker into account when deciding on his or her guilt or innocence.
Nonetheless, there are problems associated with juries. They are not necessarily socially representative and this may lead to perceptions that racial or gender bias underpins their decisions. In 1992 a jury’s acquittal of white Los Angeles police officers who had been caught on camera severely attacking a black American, Rodney King, resulted in serious riots. It is also possible that jurors may be swayed by the conduct of lawyers, which poses the problem that rich people can hire the most effective performers in court, effectively buying their acquittal from crimes they have committed.
In the UK successive home secretaries have sought to reduce the crimes that are eligible for trial by jury so that they can be heard in magistrates’ courts. The cost of jury trials has been one motive for this reform, which has been vigorously resisted by civil libertarians, who view trial by jury as a key aspect of civil rights.
Question
Using examples drawn from any country with which you are familiar, assess the strengths and weaknesses of trial by jury.
ADMINISTRATIVE LAW
Administrative law is concerned with the relationship between a government and its citizens. In the United Kingdom challenges mounted by the general public to the actions or operations of the executive branch of government may be heard in the courts. The legality of delegated legislation or accusations of abuse of power may be challenged in this manner. Minor issues (such as a challenge to a decision taken by a civil servant) may, however, be resolved by tribunals. Complaints of maladministration (that is, an accusation that incorrect procedures were followed to arrive at a decision) may be submitted to the ombudsman.
In other countries, however, a separate court system exists to adjudicate upon such matters. Germany and France have a distinct system of courts concerned with administrative law.
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The French system of administrative courts
A belief that the executive branch of government would become subordinate to the judiciary if the ordinary courts were able to review actions undertaken by the executive resulted in the establishment of a separate system of administrative courts in France. These have exclusive jurisdiction in a wide range of cases covered by public law, which involve disagreements between individuals and the workings of the state, including allegations of illegal actions undertaken by ministers, civil servants and public bodies.
The French system of administrative courts is headed by the Conseil d’État, which acts as both an advisory and a judicial body. The 1958 Constitution specified a range of issues on which the government must consult this court before taking action. Below this is the cour administrative d’appel. This court possesses judicial powers alone and hears appeals from the tribunal administratif. The latter operates on a regional level and like the Conseil d’État is an advisory and judicial body.
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CONSTITUTIONAL LAW
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Insight
Courts may be responsible for ensuring that the constitution is obeyed by national and sub-national governments. They do this through the process of judicial review.
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In some countries the courts may be also called upon to adjudicate disputes arising from the constitution. This is termed ‘judicial review’. Typically, it involves assessing whether Acts passed by the legislature accord with the statement of fundamental law contained in a country’s constitution. But it may also scrutinize actions undertaken by the executive branch (such as the executive orders issued by the American president). If the courts decide that such actions are in breach of the constitution, they may be declared ‘unconstitutional’. This has the effect of overturning them: they are rendered ‘null and void’.
Additionally, the courts may be required to determine the constitutionality of actions undertaken by sub-national bodies such as state governments. This form of adjudication is frequently required in federal states. The courts may also have to ensure that the allocation of responsibilities within and between the institutions of government remains as was provided for in the constitution.
In America, the process of judicial review is performed by the Supreme Court. This consists of nine judges appointed by the president subject to the consent of the Senate. Their intervention occurs when cases are referred to them on appeal either from the highest courts of appeal in the states or from the federal court of appeal. Judicial review provides the Supreme Court with considerable political power. In the 1950s and 1960s its decisions were influential in establishing the civil rights of black Americans.
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The French Constitutional Court
In France, the Conseil Constitutionnel is responsible for ensuring that the constitution is adhered to. This body was instituted in the 1958 Constitution. It consists of nine members who are not required to be legally trained judges. Three of these are appointed by the president of France, three by the president of the National Assembly and three by the president of the Senate. They serve for nine years and may not be re-nominated. Former presidents of the republic may also serve on this body.
Unlike the American Supreme Court, there are some limitations placed on the jurisdiction of this body and it further exercises a range of advisory powers (including the requirement that it has to be consulted if the president intends to exercise emergency powers).
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In Germany, the Federal Constitutional Court ensures that the constitution is obeyed. This body was established in 1951 and it is staffed by 16 judges who are formally appointed by the Bundesrat and Bundestag following nomination by all-party committees. In addition to its ability to declare law unconstitutional, it has further involved itself in the process of law making by suggesting how a law which it has declared to be unconstitutional can be amended in order to comply with the constitution.
In Italy, the task of upholding the constitution is shared between a constitutional court and the president of the republic. The former’s role includes acting as a court of impeachment for the president, prime minister and other ministers. The latter’s tasks include ensuring that the actions of the executive and legislature conform to the relationship specified in the constitution.
A country that lacks a codified constitution (such as the UK) does not have any process whereby the actions of bodies such as parliament can be overturned. This procedure would be contrary to the concept of the sovereignty of parliament. This doctrine insists that parliament is the sole source of law-making power whose actions cannot be overruled by any other body. In countries with uncodified constitutions, judicial review has a more limited scope, that of scrutinizing the actions undertaken by the legislature, executive or other tiers of government to ensure that they accord with the requirements imposed upon them by legislation.
Judicial interpretation
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sp; Insight
The role of judges may sometimes extend beyond administering the law and entail them determining its content. This is known as judicial law making (or judicial activism).
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In theory, the role of judges is to apply the law or the constitution to the matter that comes before them. However, it is often argued that judges go beyond this role and effectively determine its contents, which are subsequently binding on courts dealing with similar cases. This situation arises as a result of judicial interpretation of such documents, which may effectively give judges the ability to act in a law-making capacity. Judges differ, however, in the principles which they apply when interpreting the law or constitution. These are now discussed.
THE STRICT LETTER OF THE LAW
Some judges rigidly apply the wording of the statute or constitution to the case that is before them. The judge’s interpretation, therefore, is little more than the citation of existing sources as the basis for the decision which they reach. A case is determined according to the strict letter of the law. This strict interpretation view of the role of the judiciary tends to promote a conservative approach to judicial interpretation. It suggests that issues that are not contained in a country’s law or constitution cannot be inserted into it by judges. Those who endorse such a view regard this as either the work of legislators or as a matter which should be responded to by the process of constitutional amendment.