Human Rights

Human Rights Act is one of the most revolutionary pieces of the legislation to be passed in the UK, besides the Bill of Rights, the Acts of Union and the European Communities Act. The Human Rights 1998 is rightly considered to be one of the most significant constitutional developments of the past 350 years. It is also an essential feature of the rule of law. Its introduction heralded with much fanfare in the Labour Party Manifesto of 1997 and in the subsequent “White Paper Bringing Right Home” might have led an external observe to conclude that a massive change was in prospect, and to some extent they would be correct.

One of the most highly regarded of the regional conventions for the protection of human rights is the European Convention of Human Rights (hereinafter ECHR). The Human Rights Act 1998 is a cleverly drafted piece of legislation and walks tightrope between empowering the judges to bend domestic law so as to establish fulfillment with ECHR, and ensuring the parliament retains the sovereignty to legislate as it sees fit. A UK citizen who believed that his human right had been violated was thus force to talk action in Strasbourg. In order to evaluate whether the Act has made a constructive contribution to the English Governing system, comparison must be made between the pre and post status Act.

Before the establishment of Human Rights Act, there was no proper bill of rights i.e. a piece of legislation for the domestic court, which would contain all the rights that an individual might receive under law.

Historically the approach of the Uk government and the courts has to a large extent, been that the incorporation of ECHR was unnecessary given the tract record of UK in respecting human rights and the ability of the common law to respond to changing circumstances and it had the status of any international treaty (Kaur V Lord Advocate).However, it maybe used as an aid to interpretation (Waddington V Miah). Beyond this the courts were reluctant to override domestic law to give effect to the ECHR in any sence (Uppal V Home office). Negative and positive rights are the two categories of rights. Former to HRA 98, UK citizens enjoyed negative rights because ECHR was only of influential force domestic law inadequate. Two cases mirror this approach-Malone V MPC, where Article-8 of the ECHR to regulate the interception of telephone calls by the police and R V Secretary of State from the Home Department exparte Brind, Article-10 of the ECHR was enforced, thus guaranteeing freedom of expression. The status of this treaty has gradually increased in importance through time. What was once an option became an obligation through cases such as Derbyshire County Council V Times Newspaper and AG V Guardian Newspaper.

In October 2000, the HRA’ 98 came into full effect creating a new statutory head of illegality, requiring public authorities to comply with the rights laid down by the ECHR.

In effect the Convention Rights are incorporated into the Act through Sec-1. Under this section individual are now more concerned about their rights and state obligation. For example:-Article-2 deals with the most fundamental rights- “rights to life” (Airedale NHS trust V Bland).

Article-3 refers to-“freedom from torture, inhuman and degrading treatment” (Napier V Scottish Minister).

Article-5 deals with-“right to liberty and security”.

Article-6 states-“rights to fair trial”. Current cases like R V Alami, illustrates the depth of change which HRA’98 has brought about in the life of the people related to law and litigation.

Article-7 refers to-“freedom from retrospective effect (R VR) and Article-8 state to “right to respect primate and family life”.

Furthermore, Section-2 of HRA’98 provides that in any ruling on the convention the court must take into account the judgments of the ECHR. By virtue of Sec-3 of HRA’98 the domestic courts are under a duty that primary and secondary legislation, whenever enacted, must be interpreted and applied in a manner consistent with convention rights. This interpretative duty of judges in going to be carried out with necessity and proportionality. These were all illustrated by Lord Steyn in R V A.

Sec-4 of HRA’98 provides “Declaration of Incompatibility.” The meaning of this is that if legislation does not comply with the convention rights then the court may issue a DOI. Only the superior court has the power to declare legislation incompatible. But this declaration the parties under Sec-4(6).

In view of the above, it is evident that Human rights law has been set forth in terms of setting up the rights of the people as well s society. In order to preserve the entity of humans, human rights law has been established as a tentative flow.

A summary on F.D Roosevelt’s “Four Freedoms” Speech

On January 6^th 1941, during World War 2, US President Franklin Delano Roosevelt delivered a remarkable speech to the US Congress. This speech is an unprecedented milestone in the history of democracy to establish equality and liberty to contribute the democratic world in respect of politics, war, administration and technology as a leading strength in our world today.

I preferred this speech, for the reason that, he focused some important guidelines in his speech signifying that America is the symbol of real democratic institution with which all chains of captivity can be possible to be uprooted. I have been overwhelmed by going through his speech where the realism of free nation enjoying sound body and sound mind has been vividly mulled over. He disliked bitterness and conspiracy; rather he put forth the model of freedom as a tentative flow. I think, Rudyard Kipling, a famous English poet has really understood the perpetual meaning of free nation among the children in the following few lines of his poem.

‘Forgiveness free of evil done

And love to all men neath the sun’

It is important in the sense that in this speech, he said publicly that four freedoms are inevitable to a prosperous democracy. This milestone has been reflected in the form of real democracy, for the people, by the people and of the people. Such milestones are freedom of speech, freedom of worship, freedom of want and freedom of fear. In this speech, in the upcoming days, he explored some ways to make sure by looking forward a world founded upon such milestones of freedom. According to him, the first one is freedom of speech and expression which is leading every where in the world to make freedom meaningful in order to strengthen the democratic institution virtually. He then strongly contemplated that the second one is freedom of every person to worship God in his own way- every where in the world. In regard to 3^rd one, he pointed out every one in the state choreography should ensure freedom from want- which, translated into world terms, means economic understandings which will secure to every nation a healthy peace time life for its inhabitants- every where in the world.

Further more, the fourth one is freedom from fear- which, translated into world terms, means a world wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor-every where in the world.

I have also been impressed when he talks about the reality of freedom and free nation. According to him a free nation has the right to expect full cooperation from all groups. A free nation has the right to look to the leaders of business, of labor, and of agriculture to take the lead in stimulating effort, not among other groups but within their own groups. He knew the real secret of democracy for which he contemplated that there is nothing mysterious about the foundations of a healthy and strong democracy rather it is coherent in the midst of leading life controlled and cleanly with full unity, faith and discipline.

Separation of Power

There is no denying the fact that the separation of power lays with the doctrine of allotment of supremacy within the parliamentary bodies of the executive, the legislature and the Judiciary. The very concepts come down with a clear indication of borderline differentiating the functions among the institutions as stated. In this context, in setting up the separation of power within the jurisdiction, none should exercise excessive power in order to corrupt their discretionary role. It is evident that many jurists focus variety of opinions on the doctrine of power-separation from where the most significant perceptions can be accomplished from Baron Charles Montesquieu a French author in De L’ Esprit it des Lais (1748). In this phenomenon he derogatively envisaged the three main parts of the government like the Executive, the legislative and the Judiciary. He focuses the significance of the relevant functions of the department in the area of power separation. In regard to the idea as envisaged in the doctrine of power separation, John Locke has set out various theories which have been promulgated in the history of good governance in the U.K.

Description of the Institutions:

The Executive: It is the branch of a state mechanism which formulates and implements the policy to run the country which becomes the part and parcel of the separations of power. It uniquely deals with the formulation of policies, plans, distraction, rules, regulation in relation to overall government spending like finance, accounts, budget, education, foreign policies in international affairs, setting up trade linkage with other foreign countries of the world. It comprises of Member of Parliament, House of Commons, and selection criteria of House of Lords. The Executive department focuses its action plan relevant to the affairs of the parliament.

The Legislative:

This department is charged with the responsibility of executing legislation wherein the UK legislature, it is known as ‘Parliament’ which comprises of three elements such as the Queen, the House of Lords and the House of Commons. The members of the House of Commons are elected on the basis of selection criteria as reflected in parliamentary voting system virtually.

The Judiciary: This branch of state is responsible for adjudication of deputies and development of Common Law. This department relates to Legislative and other to set up a smooth administration ideally. The primary doctrine of separation of power has been promulgated by the Legislation department which authorizes others to be in operative in case of power authentication as well power allocation.

Extent of Separation of Power: Make an analysis the context of execution and legislature; we will observe that the parliamentary system consists of the following:

1. Member of Parliament elected by the people who have voting right to elect their representative.
2. Prime-minister is elected to administer the whole process of administration
3. The other manpower like police force, military personnel and civil servants are very ancillary to the operational work of the Prime minister and his or her administrative work to lead and control the state mechanism.
4. The separation of power has been decentralized with a view to control the manpower of civil servants and others so that the whole systems of administration under the guiding principle of parliamentary body.
5. The government is sometimes scrutinized in the parliament in the form of questions, debates and selection of Committee in different Ministries to streamline the work of the government. In fact, in some cases of the government, the opposition supports the work of the government and sometimes they criticize the work of some cases which are self explanatory in the area where their involvement persist.
6. In view of the corrections, revisions, proposals and criticism, the house of Lord, may revise the indictment to legislation. In contrast to thee amendments, the Secondary legislation is formulated to operate the system in order to avoid cumbersome and complexion. Consequent on some capriccios, time is saved and the whole parliamentary system of the government is run efficiently.
7. In defining an exception towards delegated legislation, parliament has never enough time to enact all the legislation which are inevitable in question.

In order to find delicacy in between legislation and judiciary, one who has to follow in the sense that the Parliamentary body is the supreme authority to act on behalf of the Government? The legislation cannot amend anything as envisaged and promulgated by the parliament. The relevant case has been set up as Pickin V British Railway Board where there was some confusion which was duly eliminated later on.

In the context of relationship with judiciary and Executive, the most relevant work was to define the position of L.C in UK. But this problem was consequently removed by the CRA very clearly in 2005. Even though, there was a problem in setting up the administrative functions of Tariff. It was later revised in view of the favorable side perceptually formulated for the sake of the government. In relation to the function of the Power of judiciary, there was a breech of trust in the doctrine where the executives were performing the work of judiciary. This conflict was tentatively resolved by the House of Lord. The relevant case which was formulated: IV UK V UK. Such conflictions were resolved in considering the violation of separation of power.

In fine, all the problems relating to the separation of powers were resolved in 2005 by CRA which was not a flabbergasting pattern for the sake of the people. However, what sort of work was taken under consideration, the restriction which was imposed earlier has now been relaxed.

Parliamentary Sovereignty

Parliament is positioned in the supremacy of any government and very ethically, it is the strongest parliamentary feelings in the political institution and as such the political scientists have made their active efforts to find out their sources of political powers. Some famous personalities like John Austin, Wilson, Hans Keelson and HLA Hart have always ransacked to find out the ways and means with which the source of power can be identified. In defining the conceptual factors of law, they realized only in the identification of sovereignty as the valid source of law.

In finding out the conceptual background, UK being historically a monarchical state always looked upon the King and the Queen as the source of ultimate power to maneuver the state. With the reduction of King’s prerogative powers there came a correlative rise in the sovereignty of Parliament. As an ultimate target to interpret the source of power, the King and the queen has been preferred as the main code of law which affixes some reduction of power rather than uniformity as envisaged in democratic government.

The classical definition of sovereignty offered from a constitutional law rather then jurisprudential perspective is that of A.V. Dicey [1885].Dicey drew a strict separation between legal and political sovereignty, where people hold political sovereignty, whilst legal sovereignty rests with the “Queen in Parliament”. And this doctrine is the main concept of the UK. While judges interpret law they always keep it in their mind that what was the intention of the parliament about those matter. According to Dicey Parliament is legally sovereign due to three basic rules:

1. Parliament is the supreme law making body and may enact laws on any subject matter.
2. No parliament is bound by its predecessor nor bind its successors.
3. No person or body, including a court of law may question the validity of Parliament’s enactment.

Dicey said that the Parliament is the supreme law making body and may legislate on any subject matter. In UK as there is no written constitution, parliamentary system is the main. For example-Septennial Act, 1715, this extended the life of parliament to seven years. Parliament may grant independence to dependant states as exemplelified by Zimbabwe Independence Act, 1979 and Nigeria Independence Act, 1960. Although general impact of law exemplified and utilized for the cause of the preservation of human rights.

War against Crime By Kh. Atiar Rahman

There is no denying the fact that the problem of our modern dilemma lies with the wrestle against the illicit drug trafficking and the spread of drug addiction. Nowadays this difficulty is extremely heightened and as such it is openly connected with the success of the fight against crime, or failure if we poorly fight the phenomenon which is the burning question of the day and indeed a whole variety of social and economic issues. And of course it is most strongly knotted with the number one theme in the world – the struggle against terrorism. Narco-business is one of the financial sources for terrorist groups and bandit gangs. It is well known that 80 percent of heroin is supplied to the world market from some sources involving in terrorism and social immoral activities. And gunmen of certain movements control drug transfer from there to Central Asia and on to Europe through Russia. Terrorism and drugs are absolutely kindred phenomena. They have common roots and similar destructive power. Terrorism, just as narco-business, has a ramified international network and without doubt bears a transnational character. Narco-business also has a pronounced economic aspect. For this reasons, drug addiction as a medical and social phenomenon doesn’t exist without a criminal narco-market network as well as drug sales.

In recent survey it has been detected many countries have today become a colossal user of the narco-potion. Today, according to official data alone, there are about 269,000 drug addicts and there exists more than the actual figure for drug users is much higher. Moreover, the narco-market structure is changing. The drug producers have a conspicuous growth of the share of highly concentrated drugs, and in the first place Afghan heroin, the proportion of which in total drug use constitutes 28 percent out. In the hyper critical state of Modern world, there grows local drug production in the country, including that of synthetic drugs, cheap and producing instant dependence. What’s particularly dangerous is that the number of such laboratories by some expert estimates has greatly increased in Russia in recent years. Unfortunately, the social base of drug addiction is expanding. Today this disease has percolated to all sections of society, encompassing the territory – world wide, especially the depressed areas. This is leading to an avalanche-like spread of AIDS. By experts’ estimates as revealed so far in the world statistics, 90 percent of the HIV-infected catch the virus precisely through intravenous drug use. As before, most of the drug addicts – up to 53 percent – are persons with no definite occupation. It is they who strengthen the army of distributors now as well, which in its turn gives go up to a crime flare.

The melancholic strain is that drug addiction has got much younger. The total number of sick persons has increased by nine times over the recent period, and among adolescents by 17 times. The “average age” of those who have for the first time tasted drugs barely exceeds 14 years. In drug trafficking In this context, it is evident from the recent survey, Russia is not only a “terminal,” but also a transshipment point. Drug syndicates have undertaken a real expansion in Russia. It has become a favorable transit passageway for them.

By experts’ estimates, one dollar invested in a narcotic – for example, in Afghanistan – grows into super profits after the sale of the drug item in European countries. And the overall volume of your and our market – the Russian market – exceeds 1 billion dollars. Power agencies obviously put up with the brunt of the fight against the drug mafia. Here we will inevitably have to strengthen, both financially and with cadres, all of the services that are associated with this kind of activity – the fight against the drug mafia. By the detention of drug goods alone we cannot solve this problem. Only a small part of merchandise gets confiscated. Experience shows that the detainees are mostly petty retailers, and sometimes also those who need being treated themselves.

In this connection it is time in general to revise the criteria of work in this direction. We must put up a barrier to all the ways for drug penetration into illegal trade, smash the infrastructure of drug networks and eliminate demand. The reasons for the powerful drug “invasion” lie not only in the proximity of the countries of the Golden Crescent. For it there are loopholes in Russia itself – financial, legal, and administrative and, of course, social. In addition to one more important aspect of the problem – the attitude to this question of society itself. Drugs are percolating even to social institutions which are responsible for the upbringing of young people baptized to serve as an blockage to drug pushers, the enlightening institutions, regrettably, are fetching a bridgehead for drug allocation. We’re encountering the indifference of both the school and parents. Today every fifth recruit brings to the army with him an experience of drug use with all the ensuing consequences for security agencies.

Drug use should not be allowed to become a subculture or fashion. Unfortunately, we’re observing signs of this. Even worse, books are being freely sold that propagate a “narcotic lifestyle.” All of these manifestations of a grave social disease have to be fought by legal and administrative and educational methods. Here a substantial workload falls on legislators, legislation in all-purpose, and law enforcement practice. Changes ought to be directed toward stiffening criminal responsibility for the most dangerous narco-crimes. Thought should also be given to the introduction of a practice of replacing punishment with coercive treatment for drug addicts.

Marijuana and hashish are those drugs produced from the plant Indian hemp and accordingly, visible effects of the drugs including reddening of the eyes caused by distention of blood vessels, and enlargement of the pupils. Effects on the mind vary and in general visual awareness is increased and ideas flow more quickly. These drugs are not addictive and there is no evidence that they harm the body. There is a jeopardy, however, that the drug taker’s sense of judgment will be distorted so that reckless or foolish behavior can result. Lysergic acid DI-ethyl amide (LSD) is an example of a hallucinogenic drug, so called because it gives rise to dramatic eccentricity. The effects of LSD trip are erratic and seem to depend upon the mood of the user without more ado before taking the drug. It could for instance intensify awareness and perception to the point at which the user undergoes mystical experiences or it may intensify a depressed, fearful or agitated mood with horrendous results. One more problem with LSD is that very miniature quantities have powerful effects, and since illegitimately formed drugs vary in quality drug takers can never be sure how much they are taking. An overdose of LSD can result in insanity or death. Another problem with LSD is that very small quantities have powerful effects, and since illegally produced drugs are extracted from the seed capsules of the opium poppy. Opiates are medically important as painkillers. But drug takers use them because they give rise to approach of well beings, pleasure, and power. It may be apologetic to articulate when the effects wear off the taker becomes anxious and depressed and is tempered to take another dose to restore a good mood, a course that can lead to addiction. Morphine, heroine, and other drugs that are often injected involve the risk of infection from dirt hypodermic needles. Besides this, Barbiturates and amphetamines are used immediately to relieve anxiety and as sleeping pills. But they are dangerous because the dosage must be continually increased to be effective. Barbiturates are often used in combination with amphetamines and other stimulants. These reduce the sleepiness induced by barbiturates with a feeling of mental alertness. Amphetamines harm the health by reducing the appetite, by causing sleeplessness, and by reducing the body’s ability to fight infection. Hence it is clear that the drug as have been reflected so far is illegal unless they are used under medical supervision. The illegal use or sale of these drugs can result in colossal punishment under the enactment of the government as implied.

In view of the above it is evident that the possibility of providing castigation for drug advocacy needs to be geared up. The state parties ought not to limit to isolated establishments, every one on behalf of the state need to create a network of healing centers where up-and-coming methods of treatment and return of people to a normal social life should be the prime factor. Regrettably, drug addiction has ceased to be a “disease of the rich only,” and hence we must expand the network of state institutions for the poor. But at the same time we need to develop and create a transparent legal base for the work of private sectors. An important set of tasks is connected with the eradication of financial channels for narco-business, which can be cut off not only by fighting against unlawful elements, but also through the use of a whole system of special measures as a tentative flow.

Statutory Interpretation

There is no denying the fact that in the English Legal System, the constitutional rule of the judiciary is providing to apply law; the purpose of creating law is the prerogative of parliament. This is because one of the aspects of legal reasoning and one which also raises question as to the political persuasion of the judges and the scope they have to exercise that persuasion in their decision in the manner in which they interpret the legislation when they are called upon to do so. However this simplistic view ignores the extent ignores the extent to which the judges have a measure of discretion and the creative power in which they interpret the legislation.

Reputing the notion of parliamentary sovereignty, the first approach will to be adopting the literal approach. Interpretation under this approach demands that made should be given their ordinary simple meaning as far as possible even if the strict literal interpretation may result in injustice and hardship to the literal interpretation. This is because it was felt that the judges will tern into legislation, if for example he added words to a statute in order to achieving result the parliament would have preferred at the time of passing the legislation in question. For over past 100 years the literal approach is the primary tool of the interpreting the legislation. It was believed to be dangerous for the judges to become partners in the process of declaring law because of the unrepresented and unaccountable character of the judiciary. The literal approach has maintained the impartiality of the judges by directing criticism of the bad law to the parliament. It has given the judiciary a stability function ratter than a reforming one.

Although the literal approach is regarded as the humble servant of the parliament, the humble posture is misleading. Same argue that the literal approach is always wrong as it amounts to an abduction of responsibility by the judges. The literates bases his decision on one arbitrarily preferred meaning rather reason and principle (Whitely V Chappell). The literal approach is even though applicable by the judges’ even if the result inflicts hardship on the litigants. ‘Manifest Absurdity’ is the only exception where a canon employed by the literal approach namely golden rule act as an unprotect able safety value which helps the court to bypass the literal rule. The shortcoming of this rule was highlighted in the case of (R V Magginem). However, the courts are not at liberty to use the Golden rule and must find genuine difficulties before it declines the literal rule in famous of the Golden rule. This rule is its narrow application modifies the literal rule to the extent that an alternative meaning is construed which achieves consistency with rest of the statute by the discretion of judge (R V Allan). Assuming that the result of literal approach in the interpretation of the given statute conflicts with the public policy then the broader application of the Golden rule may be applied in order to intervene the adoption of an adenovirus interpretation. There has been judicial reluctance to use the golden rule both in its narrow and broader application in Northman V Barnet London Barough Council. However, Lord Denning, ‘whether a strict interpret ate of a statute give rises to an absurd and inju8st situation, the judges can and should use then good sense to remedy it.’

However, if the result of the interpretation (applying the literal rule) is ambiguous, then departure from the literal rule may be accomplished under the ‘Mischief rule’. This rule originated from the Hey dos case where guidelines were setout for the courts to follow in order to apply it:-

• What was the common law before making of the act?
• What was the mischief for which the common law did not possible?
• What remedy for the mischief the common law has intended to provide?
• What was the reason for the parliament adopting the remedy?

These rules enable the court to search for the intention of the parliament by looking at the history of the act in question.

Denning J said, ‘We sit here to find out the intention of the parliament and me do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis. If a gap is disclosed remedy has in amending it.’ He further said, ‘Judicial activism can not amount to a make usurpation of legislative function under the disguise of interpretation.’

If the intention of the parliament can not be found through the mischief rule, then in order to remove the ambiguity the judge is entitled to refer to the Hansard. In the landmark decision of Pepper V Hart, the House of Lords held that, then is no larger abjection of principle to the use of Hans and as an external aid to statutory construction and there were endorsement of a mere purposive approach under which a judge can label by and the literate approach and can discern the parliaments true intention. Regarding the use of Hansard, Lord Bramen Wilkiman believed, provided the court keeps a tight control to the situation where reference to the parliamentary motive one allowed it would be fruitful. But the Attorney General thought, it would be unwise to attach importance to the menstrual explanation which are made to satisfy political requirements after under the presence of time and business. Although reference to Hansard has been taken in the cases like Knowles V Liverpool City Council and LBC Forest V Thomas the reference of it increases the expenses of the litigation. Thus it will really be unwise to use Hansard as an aid to statutory construction.

The UK promulgated such law because a member of European Union by the enactment of the European Community Act 1972, as a result of the treaty the English Judges has to adopt the decision of the ECJ. The judges of ECJ used a very broad and generous approach in the interpretation of the statutory namely the ‘Teleological approach’ revalued by the Continental Lawyers which operates in loosely drafting codes of law which openly invites the judges in the process of framing the law. SarLand V British Railway Engineering, Lord Diploach defended the new approach on the ground that it has introduced a new rule of statutory interpretation requiring a UK court to can true all the domestic legislation in a manner ready European obligation as it has been stated in Sec.2 (4) of the EC Act 1972 that it takes precedent over the domestic law Sec.2 (1) of the Act states that, Treaties and other directly enforceable Community Legislation will be incorporated will no further domestic action. In Sec.2 (2) powers has been provided to the judges to incorporate other community legislation such as ‘Directure’