The general rule is that ‘where there is a right there is a remedy’ ubi jus ibi remedium; which provides the fundamental concept that the complainant who has a grievance cognizable by the law may be assured of a remedy through the courts. Ubi jus ibi remedium has been a fundamental concept of our legal system, and the complainant who has a grievance cognizable by the law may be assured of a remedy through the courts.
The work of the constitutional mandate is that courts must grant ‘appropriate relief’ or ‘appropriate and just’ remedy where there is a breach of fundamental rights entrenched in the constitution. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
(1)The Writ of Habeas Corpus
Is a writ or legal action, through which a prisoner can be released from unlawful detention, that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to their aid. A writ of habeas corpus is a summons with the force a court order; it is addressed to the custodian and demands that a prisoner be taken before the court and the custodian present proof of authority to detain the person. If the custodian does not have the authority to detain the prisoner then he must be released from custody. This is an important remedy which may be resorted to in the course of the criminal process to obtain judicial review of police action and thus to the subject against unlawful deprivation of his liberty.
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to fair trial. So for an imposition of such internment without trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in many Countries, the process may be suspended due to a national emergency.
The writ of habeas corpus sometimes called ‘interdictum de libero homine exhibendo’ is an important remedy which may be resorted to in the course of criminal process to obtain judicial review of police action and thus to protect the subject against unlawful deprivation of his liberty. The case of Sishayi Simon Nxumalo v. Attorney General: This was an application for habeas corpus brought by applicant at the High court after he had been wrongfully detained for questioning but subsequently detained in accordance with s.2 of the Detention Order 1 of 1978. Held that, in respect of the applicant’s application for release from wrongful detention, the respondent should pay the applicant’s costs on the attorney and client scale.
(2)Writ of Mandamus
Is a mandatory interdict under the influence of English law. Mandamus is the reverse of an interdict; it is a positive order that a functionary perform his or her duty (eg furnish an accused with proper particulars relating to the charges). Mandamus is not a writ of right, it is not consequently granted, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ. This writ was introduced to prevent disorders from a failure of justice; therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government. Mandamus will not lie where the law has given another specific remedy.
In Pad v. Minister of Agriculture 1972 (3) SA, the minister had discretion to point or commit to consider price issues raised by milk producers but refused to do so because he said this would lead to political problems. Here he was exercising mandamus as an appropriate remedy in the case of public discretion. An Applicant pleading for the writ of mandamus to be...
...Are humanrights innate and universal?
Post WWII on the 10 December 1948, the Universal Declaration of HumanRights (UDHR) was espoused by the General Assembly of the United Nations in order to agree on the notion that such atrocities that occurred throughout the Great War and the Second World War would not ever be reciprocated. The document that was drawn up in less than two years by the UN and Western states, and although ambitious it would guarantee a premise for life and living for every individual all over the world. The UDHR are founded on nobility, equality and reverence, and are said to be aimed at all cultures and religions within the West and East of the globe. However there is great discrepancy regarding the justification and practicality of humanrights all over the world due to political, economic and cultural differences and limitations. Universal means that ‘something’ affects, applies or is completed by everyone all over the world – there is no distinctive bias shown and equal policies are applied. Innate, in relation to humanrights, means that people are given natural rights purely based on the fact that he/she is human and alive. Therefore, are humanrights universal and innate or is the Universal Declaration of Human...
...The incorporation of The European Convention of HumanRights (ECHR) into the domestic law under The HumanRights Act 1998 (HRA) as a first step towards a better protection of rights, Finally, the ultimate question, whether to incorporate or not? The judiciary was ill equipped to assume the mantle of guardian of individual rights in the face of executive power and the concept of parliamentary sovereignty. It concerns over the matter in which ‘incorporation’ will affect the conventional balance power between the judges and the Parliament.
Professor Dicey stated that the Rule of Law(1) required judicial protection of Humanrights and he placed a responsibility on the administration of the country to ensure arbitrariness and inequality was not procured during the governing process. Whether or not UK could submit to this Rule of Law depends on whether judges have been able to protect rights when they faced government’s arbitrariness.
In the absence of a written constitution, the protection of HumanRights had been given little emphasis. The doctrine of Parliamentary Supremacy compels judges to construe and comply with Acts of Parliament when interpreting statutes and there is no rule of construction that requires judges to imply the sanctity of HumanRights into the ambiguously worded...
...Humanrights in today’s world have become pivotal to the functioning of our society as a whole, largely due to the increased occurrences which in turn have led to greater awareness and repudiation of the same in the world community. In present times the humanrights field encompasses a broad range of civil, political, economic and social rights which shows its all pervasive nature, and the accountability for the violation of these rights by state and non-state actors alike. The scope of humanrights in today’s day and age has thus widened considerably as gradually the individual becomes an end in himself and is recognized as being of primordial concern.
Humanrights law is a subset in the field of humanrights. Humanrights are what define a society; hence the humanrights law takes primacy over all the laws. There is nothing more important than the development of humanrights in an evolving society
Humanrights and criminal law are closely inter - related. My personal interest lies towards humanrights as under the criminal law. Today we see all kinds of crimes being committed- state or non-state, say torture of prisoners, child labour, or most importantly...
Discuss whether the HumanRights succeeded in doing what it was designed to do
Prior to HumanRight Act 1998, European Convention HumanRights were not directly applied by the courts and while there were infringements of the rights enshrined in the ECHR an application have to make to the Strasbourg Court when domestic avenues had been exhausted. Therefore,HumanRight Act 1998 was incorporated in UK in 2000 to bring ECHR rights to the English law and to ensure that the public authorities have due regard for Humanrights. Undeniable, it has a substantial impact in UK as according to Jack straw “these are new rights for new millennium. The HumanRight Act is the most important piece of constitutional legislation the UK has ever seen.”
However, we must also recognise that as a consequence of the incorporation of ECHR in English law, it had also led to some political tension between the Legislative and the Judiciary. Judges often being criticised that go beyond their constitutional role as a “interpreter” and hence violate the principle of parliamentary supremacy and Separation of power.
This is because the ultimate purpose of HRA was designed to give judges a mandate to ensure that legislative and executive decision making is compatible with...
...HRV1601: HumanRights, Values and Social Transformation
Semester 01/ Assignment 01
The Historical Background and Development of HumanRights
Table of Contents
2) The Development of HumanRights
3) Historical Documents of HumanRights
3.1) The English Bill ofRights (1689)
3.2) The American War of Independence (1775-1783)
4) Developing and Maintaining a HumanRights Culture in South Africa
5) The South African Constitution
6) The South African Bill of Rights
A right is an inherent, irrevocable entitlement held by all human beings from the moment of birth. According to Ndungane (as stated in Slater 2010:19), “A humanright is a right that a human person has simply by virtue of being a human person, irrespective of his or her social status, cultural accomplishments, moral merits, religious beliefs, class membership or cultural relationships”. Basic humanrights are not earned or deserved, and should not be considered a privilege, but an imperative implement for the well-being and peacefulness of mankind. This...
...Humanrights in Pakistan:-
Pakistan’s humanrights situation is a complex one, as a result of the country's diversity, large population, its status as a developing country and a sovereign, Islamic republic as well as an Islamic democracy with a mixture of both Islamic and colonial secular laws. The Constitution of Pakistan provides for fundamental rights, which include freedom of speech, freedom of thought, freedom of information, freedom of religion, freedom of association, freedom of the press, freedom of assembly and the right to bear arms. These clauses are generally respected in practice. Clauses also provide for an independent Supreme Court, separation of executive and judiciary, an independent judiciary, independent HumanRights commission and freedom of movement within the country and abroad.
Although the government has enacted measures to counter any problems, abuses remain. Furthermore, courts suffer from lack of funds, outside intervention, and deep case backlogs that lead to long trial delays and lengthy pretrial detentions. Many observers inside and outside Pakistan contend that Pakistan’s legal code is largely concerned with crime, national security, and domestic tranquility and less with the protection of individual rights.
In May 2012, President Asif Ali Zardari signed the National Commission for Human...
...slavery, sickness and other arbitrary executions. To prevent such atrocities in the future, there are legal responses and non-legal responses to deal with the contemporary humanrights issues which is genocide.
First of all, legal responses refer to the UN humanright treaties and Genocide Convention that were adopted in 1948 and approved the Universal Declaration of HumanRight (UDHR) by the United Nation.
The Genocide Convention (1948) outlaws genocide, crime against humanity and crime under international law . All participating countries that ratified the convention will be prevented and punished the genocide in the war or a peace of time.
The Declarations defines the civil and political rights ( including the right to life, the right of liberty, and a fair trial) as well as the economic social and cultural rights( including the right to social security and participating in cultural right in one’s community).
In this case, Cambodia was a party that ratified the Genocide Convention on 14.10.1950. It was enforceable where the Senior Leader of Khmer Rouge between1975 -1979 under the definition of Convention. In contradiction, it was enforceable but it could not desist the massacre that happened in the 1975-1979.
Next, Cambodia was ratified the UDHR and International Convention on Civil and...
An environmental impact assessment (EIA) is an assessment of the possible positive or negative impact that a proposed project may have on the environment, together consisting of the environmental, social and economic aspects.
The purpose of the assessment is to ensure that decision makers consider the ensuing environmental impacts when deciding whether to proceed with a project. The International Association for Impact Assessment (IAIA) defines an environmental impact assessment as "the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made." EIAs are unique in that they do not require adherence to a predetermined environmental outcome, but rather they require decision makers to account for environmental values in their decisions and to justify those decisions in light of detailed environmental studies and public comments on the potential environmental impacts of the proposal.
EIAs began to be used in the 1960s as part of a rational decision making process. It involved a technical evaluation that would lead to objective decision making. EIA was made legislation in the US in the National Environmental Policy Act (NEPA) 1969. It has since evolved as it has been used increasingly in many countries around the world. As per Jay et al.(2006), EIA as it is practiced today, is being used as a...