We have looked thus far at Parliament, the legislative branch of government, which is supposed to pass laws and also monitor the work of the executive. Then we looked at the executive, the active functioning branch of government, and considered the various duties it should perform,
Third we should consider the judicial branch of government, which was considered the only other one at the time the theory of the Separation of Powers was enunciated with regard to government, There are I believe other elements that the public also needs to ensure its security, from society in general as well as an over powerful government. But there is no doubt that the judiciary is the most important restraint on those who would violate the rights and freedom of the people, and we should therefore look at it in some detail.
Types of law
As we have noted previously, one of the most important functions of government is ensuring the security of its people. When we think of security, it is defence that first springs to mind—the work of the security forces in dealing with external threats. But what is more important in the day-to-day lives of ordinary people is internal security, namely ensuring that law and order is maintained.
Basic concerns in this respect can be seen in the commandments issued by religions, even before codes of law were developed. All religions, for instance, prohibit murder and robbery. Even though such actions are perpetrated by some individuals against others, it is recognised that they have a bearing on society as a whole. Such actions are termed criminal acts, and dealing with them is seen in most societies as the direct responsibility of the government. Unless stern action public action is taken in such cases, the security of the entire society is threatened.
When a case is brought under criminal law then, it is the government that prepares the case and prosecutes the accused. Since these are serious issues, and punishment is severe, the guilt of the accused should be clearly established. It is necessary, therefore, in such cases that the prosecution proves its case beyond reasonable doubt to avoid punishment of the innocent. Otherwise, the accused is acquitted.
Other offences, though defined and dealt with by the law, are seen as affecting individuals alone. So cases such as disputes about land or contracts, or those involving personal relations such as divorce, come under what is termed civil law. In such cases, one person makes a complaint and someone else must respond. They are decided on what is termed a balance of probabilities since a decision has to be reached in favour of one side or the other and the plaintiff and the respondent have to be treated equally. So even a slight inclination to one side of the balance is sufficient for a ruling in favour of that side.
There is also a third type of law which has gained importance in recent years. This is constitutional law, which comes into play when the government is seen as violating the rules according to which it must govern. One aspect of this law is seen in operation when the government wishes to introduce new laws or change the constitution. The courts should decide whether such new laws or changes are in accordance with the existing law. Sometimes governments wish on their own to verify whether their proposed actions are legal. Citizens or groups of citizens can also petition the courts to seek clarification or present arguments alleging that particular bills are unconstitutional, and the government may respond to these petitions.
Constitutional law also comes into play when governments are questioned about their actions which might be in breach of law. As societies have recognised increasingly that the government should also be subject to the law, citizens can bring cases against the government, or officers of the government, for breaching their fundamental rights through executive action. In such cases, again the government has to respond, though individual government officials against whom complaints have been brought can also respond on their own behalf.
A fourth type of law is military law which governs the armed forces. The armed forces have procedures different from those in civil society to ensure quick action that may be necessary in a military context. It should be noted, however, that military law is an internal matter for the armed forces, and members of these forces are subject to the ordinary law of the land in their dealings with others.
Finally there is martial law, which in effect means a suspension of other laws. This is rare, and occurs when law and order has broken down completely so that emergency measures are necessary. Executive authority is then given to officials, usually members of the armed forces, for a specific period to perform a specific task—the restoration of law and order. Certain procedures have to be followed in such cases to prevent abuse and that is why the term martial law is used. This makes clear that while emergency actions of various types are permitted, breaches of the required procedures can subsequently be brought before the courts.
Courts and other decision-makers
Various institutions are required to uphold the law. Chief among these are the courts. Courts consist of judges or magistrates who reach decisions on whether the law has been broken, and if so what remedial action should be taken. In most countries the principal institution in this regard is the Supreme Court. There are other courts, for different purposes or different areas, but the decisions of such courts are subject to appeal, while the Supreme Court is the final arbiter.
In some countries, decisions in certain criminal cases are taken not by judges but by juries, that is, bodies of people similar to the accused in that they are ordinary citizens rather than professional judges. This springs from a concept originally introduced in Britain at a time when judges were seen as dependent on the executive power of the time, that is, the king. It was argued that for a fair decision it was necessary to have jurors who could be more objective. They could see things from the point of view of the accused too, whereas the judge might see things from the point of view of the executive authority, which had to, perhaps, give greater priority to ensuring security rather than to justice and fairness.
Juries however, being composed of ordinary people, could not be expected to understand legal procedures and technicalities. Thus, even where you had trial by jury, a judge presided over the case to ensure that proper procedures were followed, and that juries were kept informed about the law. And it was the judge who gave out the punishment, following the decision of the jury on whether the accused was guilty or not.
Societies have found over the years that recourse to courts is not always feasible. For this reason there have always been other institutions that reach decisions in particular instances. For civil disputes in particular, various methods of arbitration, in which both sides put their case in a less formal manner to someone whose decision they agree to accept, have been used throughout history. In many countries now formal arbitration procedures are part of the civil code.
Many countries have also introduced an ombudsman, who can, less formally than the courts, hear complaints about government action or inaction, and take or recommend remedial action. Some countries also have a Human Rights Tribunal or Commission which can provide remedies for injustices.
Such less formal mechanisms, it should be noted, are more common for cases under civil or constitutional law. With regard to breaches of the criminal law, in most countries decisions are still left to the courts. Some societies, however, permit arbitration mechanisms even in criminal cases such as murder, whereby a settlement can be reached through the payment of mutually agreed compensation.