Independence on Trial: Foreign Affairs and the Making of the Constitution


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This gives people clarity about what is and is not permitted in society, and avoids arbitrary punishment. The Rule of Law means new criminal laws can only apply to future actions and cannot have retrospective effect. Therefore, if your actions are not prohibited when you do them they are not unlawful. This principle also creates a level playing field and ensures equality.

The Rule of Law requires criminal laws to be enforced in a uniform way. Non-nationals, for example, may need interpretation and children may need additional support so that they can participate effectively in the trial. This ensures that those deciding whether a person has committed a criminal offence are neutral and are making a fair assessment of the facts. The courts must themselves be created by and subject to the law to ensure independence and prevent arbitrariness. For this reason people must have the right of appeal to a higher court.

It is also fundamental for ensuring consistency, fairness and uniform interpretation of the law. Liberty is central to what it means to be human and is a basic human right in itself. It is also at the heart of the right to a fair trial because, in most countries, imprisonment the deprivation of liberty is the ultimate criminal sanction. This punishment can only be justified after a fair legal process. The start of criminal proceedings is often marked by police arrest.

This temporary loss of liberty may be entirely justified and authorized by law, but arbitrary arrests have long been a feature of dictatorships and remain common today. To protect against this, people taken into custody must be given reasons for their arrest and be taken promptly before a court.

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Extended periods of pre-trial detention are also common for people that have not been convicted of any criminal offence, many of whom will ultimately be cleared of any wrongdoing. People also have a right to be tried without undue delay to minimize pre-trial detention and reduce the human impact of criminal proceedings. People in detention are entitled to humane conditions where their essential needs are met and, except in extreme circumstances and for a limited time, have a right of access to the outside world, including the right to communicate with family and a lawyer.

This is why the responsibility falls on the state to prove guilt and to discharge the presumption of innocence. Because of the serious consequences of conviction, the state must prove guilt to a high standard. Given the massive human impact of criminal proceedings on defendants, and the presumption of innocence, trials should take place without undue delay. It would be unfair to allow states numerous attempts to try to secure a conviction.

If a case goes to trial and guilt is not proved, unless exceptional circumstances exist, the person should not be tried again. This requires the state to do the job of prosecution properly in the first instance. People awaiting trial have not been convicted of any offence and many will ultimately be cleared. Justice must not only be done, it must also be seen to be done. This is one reason why, except in rare cases, people are entitled to a public hearing.

Open Justice enables the public to see how justice is administered and by subjecting it to public and press scrutiny, safeguards the fairness of the trial.

This is also why people are entitled to a reasoned judgment which has been made public. The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet. This designation shall precede all other business. If the House of Representatives and the House of Councillors disagree and if no agreement can be reached even through a joint committee of both Houses, provided for by law, or the House of Councillors fails to make designation within ten 10 days, exclusive of the period of recess, after the House of Representatives has made designation, the decision of the House of Representatives shall be the decision of the Diet.

The Prime Minister shall appoint the Ministers of State. However, a majority of their number must be chosen from among the members of the Diet. The Prime Minister may remove the Ministers of State as he chooses. If the House of Representatives passes a non-confidence resolution, or rejects a confidence resolution, the Cabinet shall resign en masse, unless the House of Representatives is dissolved within ten 10 days. When there is a vacancy in the post of Prime Minister, or upon the first convocation of the Diet after a general election of members of the House of Representatives, the Cabinet shall resign en masse.

In the cases mentioned in the two preceding articles, the Cabinet shall continue its functions until the time when a new Prime Minister is appointed. The Prime Minister, representing the Cabinet, submits bills, reports on general national affairs and foreign relations to the Diet and exercises control and supervision over various administrative branches. The Cabinet, in addition to other general administrative functions, shall perform the following functions: Administer the law faithfully; conduct affairs of state. Manage foreign affairs. Conclude treaties. However, it shall obtain prior or, depending on circumstances, subsequent approval of the Diet.

Administer the civil service, in accordance with standards established by law. Prepare the budget, and present it to the Diet. Enact cabinet orders in order to execute the provisions of this Constitution and of the law. However, it cannot include penal provisions in such cabinet orders unless authorized by such law.

Decide on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights. All laws and cabinet orders shall be signed by the competent Minister of State and countersigned by the Prime Minister. The Ministers of State, during their tenure of office, shall not be subject to legal action without the consent of the Prime Minister.

However, the right to take that action is not impaired hereby. The Supreme Court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs.

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Public procurators shall be subject to the rule-making power of the Supreme Court. The Supreme Court may delegate the power to make rules for inferior courts to such courts. Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties.


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No disciplinary action against judges shall be administered by any executive organ or agency. The Supreme Court shall consist of a Chief Judge and such number of judges as may be determined by law; all such judges excepting the Chief Judge shall be appointed by the Cabinet. The appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten 10 years, and in the same manner thereafter.

In cases mentioned in the foregoing paragraph, when the majority of the voters favors the dismissal of a judge, he shall be dismissed. Matters pertaining to review shall be prescribed by law. The judges of the Supreme Court shall be retired upon the attainment of the age as fixed by law.

All such judges shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office. The judges of the inferior courts shall be appointed by the Cabinet from a list of persons nominated by the Supreme Court.

All such judges shall hold office for a term of ten 10 years with privilege of reappointment, provided that they shall be retired upon the attainment of the age as fixed by law. The judges of the inferior courts shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office. The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act. Trials shall be conducted and judgment declared publicly.

Where a court unanimously determines publicity to be dangerous to public order or morals, a trial may be conducted privately, but trials of political offenses, offenses involving the press or cases wherein the rights of people as guaranteed in Chapter III of this Constitution are in question shall always be conducted publicly. No new taxes shall be imposed or existing ones modified except by law or under such conditions as law may prescribe. No money shall be expended, nor shall the State obligate itself, except as authorized by the Diet.

The Cabinet shall prepare and submit to the Diet for its consideration and decision a budget for each fiscal year. In order to provide for unforeseen deficiencies in the budget, a reserve fund may be authorized by the Diet to be expended upon the responsibility of the Cabinet.

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The Cabinet must get subsequent approval of the Diet for all payments from the reserve fund. All property of the Imperial Household shall belong to the State. All expenses of the Imperial Household shall be appropriated by the Diet in the budget. No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority.

Final accounts of the expenditures and revenues of the State shall be audited annually by a Board of Audit and submitted by the Cabinet to the Diet, together with the statement of audit, during the fiscal year immediately following the period covered. The organization and competency of the Board of Audit shall be determined by law. At regular intervals and at least annually the Cabinet shall report to the Diet and the people on the state of national finances.

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The local public entities shall establish assemblies as their deliberative organs, in accordance with law. The chief executive officers of all local public entities, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities. Local public entities shall have the right to manage their property, affairs and administration and to enact their own regulations within law. A special law, applicable only to one local public entity, cannot be enacted by the Diet without the consent of the majority of the voters of the local public entity concerned, obtained in accordance with law.

This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity. The treaties concluded by Japan and established laws of nations shall be faithfully observed. The Emperor or the Regent as well as Ministers of State, members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution. Promulgated on November 3, Came into effect on May 3, We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution.

Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith.

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The Emperor shall be the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained.

The right of belligerency of the state will not be recognized. The conditions necessary for being a Japanese national shall be determined by law. The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State. Executive power shall be vested in the Cabinet. The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.

No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.

All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws. The power to administer national finances shall be exercised as the Diet shall determine. Independence requires procedures for the selection, appointment, promotion, transfer, and discipline of judges to be transparent and free from overall executive control.

The UN Basic Principles principle 10 and the AU Fair Trial Principles principle A 4 h , i and k indicate that the process for the appointments to judicial office should also be transparent and subject to strict selection criteria based on merit. The report explained that the Supreme Judicial Council consists of judges determined by seniority rather than election by their peers, and has no autonomous decision-making power over judicial careers, including over the appointment of some judges, or over assignment and disciplining judges.

The amendments will give the powers under Law No. The right to a fair trial also requires prosecutors to act independently and without undue influence from the executive. The public prosecutor is currently selected by the Supreme Judicial Council and appointed by presidential decree. The additional power the constitutional amendments grant the president to appoint the public prosecutor will facilitate appointments based on political or other improper objectives and, in turn, most likely risk unduly influencing decisions by the prosecutor and subordinates acting upon their authority, including by refraining from investigating and prosecuting cases involving crimes by members of the executive, the president, or other government officials or associated private citizens.

The amendments appear designed to enable the military to intervene in civilian governance and public and political spheres that are the responsibility of law enforcement agencies. In the context of the military coup, which the AU deemed unconstitutional, temporarily suspending Egypt from AU activities, the amendments also appear designed to justify any future removals of the head of state by the military, cancellations of the results of free elections, and interruptions of the democratic process.

The amendments could also further shield members of the military from accountability for human rights violations and other crimes, including using excessive force, dispersing peaceful protests, and other violations committed in the name of maintaining the constitution and democracy. It is a fundamental principle of the rule of law that the military should be subject to civilian oversight and should not have any direct or indirect interference in governance. The constitution does not provide for civilian oversight over the military, and the amendments will accordingly place the military in a position in which it has significant authority to act without restriction and, most likely, with impunity.

The military also has a history of exercising its authority arbitrarily and outside the framework of the rule of law, with blanket impunity for violence against women , killing hundreds of protestors , and demolishing homes in the name of fighting terrorism. This amendment will incorporate into the Constitution Decree No. Since that decree was issued, over 15, civilians , including scores of children, have been referred for military prosecution. Military courts should not have jurisdiction over civilians or over gross human rights violations, including but not limited to torture, extrajudicial executions, and enforced disappearances.

Military courts are not independent judicial authorities for the purposes of a fair trial under article 14 of the ICCPR. The special rapporteur on the independence of judges and lawyers and the Working Group on Arbitrary Detention have also emphasized that military courts are incompetent to try civilians.

Military trials in Egypt are inherently unjust. Military judges are serving military officers appointed by defense minister, are not required to have the same legal training as civilian judges, and are subject to the military chain of command including in the course of their judicial functions; as such, they are not independent. In the conduct of trial proceedings, the accused are not afforded adequate time and facilities to prepare a defense and are also in both law and practice not guaranteed the right to communicate confidentially with counsel of their choice.

Skip to main content. Help us continue to fight human rights abuses. Please give now to support our work. Your tax deductible gift can help stop human rights violations and save lives around the world. June 28, News Release.

Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution
Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution
Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution
Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution
Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution
Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution
Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution
Independence on Trial: Foreign Affairs and the Making of the Constitution Independence on Trial: Foreign Affairs and the Making of the Constitution

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