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A the judges. This is certainly not

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A prime factor in today’s world for a
peaceful country is its law applicability. This lies in the hands of the
judiciary system. A judiciary system can of the    In
addition to the applicability its formation is also

 

 

Countries which are ruled usually value
democratic form of government. Though its definition varies in everyone’s
opinion. I understand democracy as the powers given to people chosen by the
population so that they are ruled freely. As it is by the people one might
think that it would help in absolute smooth functioning of the government in
all aspects as the ruler is chosen. I disagree to this, it is because people
will mostly try to force the government authorities to make decisions in their
favour. There are chances that the authorities might also do this if they don’t
have a specific conduct to follow. Thus, it would be more beneficial for a
country if it has a government which is democratic and has its own code of
conduct. This is referred to as Constitutional democracy.

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 The
Canadian government took a long time to have its own constitution. Constitution
is the supreme law in the Canadian government. It is inclusive of all the
different laws, agreements between the governments and decisions by judges. With
the enactment of the constitution there have been tremendous change in
functioning of the government.  There has
been a specific change noticed in the concept of justice which is very
important to the Canadian society. The judiciary system has received a lot of
importance since the enactment. Thus, the judges who are presiding over it are
playing an important role (J., 2000). As the constitution
has in addition the Charter of rights and freedom in it, the number of
conflicts are increased not only between individuals in the society but also
between the government and the society.

In the formation of the dominion of Canada
the politicians play a very important role. This might reflect that they are
important as well for decision making accompanying the judges. This is
certainly not true because the constitution includes certain rules and roles
which the judge should abide to. Firstly, the important role of a judge is to
understand the law before interpretation, because interpreting the law is the
prime most duty. It is understood by the judge that the law is designed with a
specific purpose which must be fulfilled. There are many statues in which there
is addition or deletion to the old law. These are the ones which are difficult
to interpret as compared to the new laws. It is true that implementing the law
is more difficult than forming the law. This is because, the judge who
interprets knows the most applicability of the law as he or she is a decision
maker as compared to its author. Sometimes the law is same, but the language is
altered by the legislation. This is done just to keep the law updated for
understanding by the modern reality. In addition, it would connect effectively
the laws and the society which would help to conserve its democracy (A, 2008). Secondly,

purpose of judiciary independence is to
serve the people and not the judges. Judges make the decisions based solely on
fact and laws. The courts do not make any new laws instead they make the
decisions based on current laws passed by the government. Judicial independence
permits the judge to make the rulings that are not very popular. They make the
rulings that outrage victims of crime, the politicians, police or force
government to change policies or alter the laws. Judicial independence is
ensured by:

Security of Tenure

The judge can serve the bench until his
retirement unless he is removed because of some reason. The retirement judges
of provincial courts vary but the judges of federal court who have reached
threshold age and have experience on bench may choose to become
supernumeraries. The replacement judge is then appointed but the supernumerary
judge will continue to discharge judicial responsibilities on part time basis.

Financial security

Judges are paid ample salary so that they
do not have to rely on any other thing or subject to pressure from any other
organisations. The government’s direct involvement in the financial security of
judges are established at regular interview to review the salaries and benefits
of judges.

Administrative independence

The management of litigation process in the
court is decided by the chief justice in each province and territory. He also
deicides what all cases should go to the judge. (Canadian Judicial Council, 2017)  Each judge has right to make the decision
independently.

Judicial control aims to make sure that
administrative action is done impartially with interfering with administrative
effectiveness. According to judicial control the state should act only pursuant
to law. There are two principles of judicial control:

 The
first principle the source of power is the statute. All the laws in this
principle is either formally enacted by elected legislatures or can be changed
by them. The administrative and other government action sanctioned by elected
representatives that are accountable to the public. The interests of ordinary
citizens are not restricted without the sanctioning of these elected
representatives.

According to the second principle, the
interpretation of laws is done by the courts providing relatively independent
and authoritative means of determining what the law exactly means on the
ongoing basis. The courts perform judicial control by examining an
administrator’s decision to determine if its consistent with relevant
legislation, constitutional powers and presumptions of common law. There are
four basic forms of judicial control:

Judicial review – It is an examination of
a decision of public authority to know whether it was approved by statute.

Constitutional control – It became more
important since 1982. It is an examination of the decision of public authority and
its governing statue to see if they were approved by the constitution. It
assesses administrative action in relation to the written portion of the
constitution and assesses the validity of enabling statues as well as action
under them.

Judicial appeal – It is the main form of
judicial control. It reconsiders the decision of the public authority. The appeal
provisions are limited to specific aspects such as questions of law. The courts
apply the same criteria for deciding on the level of appeal that they apply to
deciding on a standard of judicial review.

The fourth basic kind of judicial control
is an action of damages. It is the proceeding for monetary compensation for an
unauthorized common law. It is only available where it is shown that the public
authority lacks statutory power to perform the action complained of.

Judicial review is available only from the
higher superior courts. It is a form of interpretation, primary statutory
interpretation. There are two forms of judicial review:

Procedural review is concerned with the
process by which an administrator’s decision is made.

Substantive review deals with the content
of an administrator’s decision. (Booth, 2012)

The operation of Canadian justice relies
on the existence of a highly trained, professional and independent judiciary. The
Canadian judicial council created by parliament has the power to investigate
and rule on complaints about the conduct of federally appointed judges. The
judicial accountability ensures that justice is rendered according to the law.
Its measures are essential to protect the proper application of the rule of law
which is a cornerstone of Canada’s constitutional democracy. Judicial
independence does not give the rights to judges to do whatever they wish. There
are many measures to ensure that judges are accountable including the
possibility of appeal of their decisions to a high court. 

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