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Freedom of Speech / Freedom of the Press Today the First Amendment is almost synonymous in the minds of Americans with the freedom of speech and free press. The right to speak and write freely on virtually any topic is a right that has been fiercely protected by both the U.S. Supreme Court and the citizens as a whole. As a general rule, a person can say or write virtually anything about any person or topic, so long as it is truthful or based on an honest opinion, and cannot be held liable, either criminally or civilly for such statements. Certain types of speech are more readily protected than others. For example, commercial speech is heavily regulated because of the public interest in preventing false or misleading advertising, but political speech, or statements critical of the government, is one of the most strongly protected because of the interest in allowing differing, possibly unpopular opinions to be voiced. Artistic expression is also frequently protected under the First Amendment as a form of free speech or free press, which has led to a broad body of case law on topics such as obscenity and public indecency. One area in which free speech is restricted is in the situation of defamatory speech. While one has an almost unfettered right to say or publish anything which is truthful or based on an honest opinion, one cannot spread false statements about another person or entity. Doing so may constitute some form of defamation (slander if spoken, libel if printed). Just as certain forms of speech are more protected by the type of speech they relate to, so too are certain types of statements more prone to being construed as defamatory. For example, a negative opinion expressed about a competitor's product or service is less likely to be considered free speech and more likely to be viewed as defamatory than an equally negative opinion about a politician's foreign policy. Freedom of Religion Freedom of religion prevents the government from either establishing a state religion or prohibiting anyone from practicing any particular religion. This is also a heavily protected right in the American system of government and jurisprudence, although it frequently comes under political attack as the winds of public opinion shift. Fortunately, as a constitutional amendment, this fundamental right is not easily altered, meaning that faiths which were once viewed unfavorably (such as Catholicism during the time of Irish and Italian immigration surges) have been able to survive and flourish. A recent example was the backlash against Islam in a post-9/11 America, where many sought to bar the practice of the faith or construction of masques in certain areas. Fortunately, these efforts were thwarted by the First Amendment, and Muslims remain free to exercise their faith in the United States. Right to Assemble / Right to Petition The right to assemble allows for groups to gather peacefully. This may seem an exceedingly simple right at first blush, but is used to protect things like demonstration rallies and meetings to discuss whatever topic a group wishes. For example, this right came under fire during the civil rights movement and communist scares of the mid-20th century, when government powers wished to prevent protests or meetings of groups interested in discussing what was considered, at the time, a dangerous and hostile political philosophy. Ultimately, these rights were protected and the world changed. Similarly, the right to petition prevents the government from setting its own agenda and ignoring the public will. During the pre-civil war era, Congress attempted to pass a rule prohibiting the discussion of emancipation. This rule was later overturned by Congress. T 6 Separation of Powers: Parliament, Executive and Judiciary The Australian Constitution is a set of rules by which Australia is run. The first three chapters of the Constitution define three largely separate groups – the Parliament, the Executive and the Judiciary – and the roles they play in Australian governance. The power to make and manage federal law is divided between these three groups. This division is based on the principle of the ‘separation of powers’. Under this principle, the power to govern should be distributed between the Parliament, the Executive and the Judiciary to avoid one group having all the power. Each group should work within defined areas of responsibility so that each keeps a check on the actions of the others. The Parliament makes and amends the law. Parliament (also referred to as Legislature) is represented by the Governor-General, the Senate and the House of Representatives. The Executive puts the law into action. The Executive is made up of the Prime Minister and ministers. The Judiciary makes judgements about the law. The Judiciary is made up of the High Court and federal courts. Exceptions to the principle. Australia does not have a complete separation of powers because some of the roles of the Parliament, the Executive and the Judiciary overlap. For example, members of the Executive are also members of the Parliament. High Court judges and the Executive are officially appointed by the Governor-General, who is part of the Parliament. The separation of powers works together with another principle known as responsible government, to guide the way law is made and managed. Responsible government means that a party, or coalition of parties, must maintain the support of the majority of members of the House of Representatives in order to remain in government. This provides another check on the Executive, ensuring they remain accountable to the Parliament and do not abuse their power. The origins of the principle of the separation of powers can be traced back as far as ancient Greece. It was made popular much later by French philosopher Charles de Montesquieu in 1748 in his work “The Spirit of the Laws”. He wrote that a nation’s freedom depended on the three powers of governance – legislative, executive and judicial – each having their own separate institution. This principle has been widely used in the development of many democracies since that time. T 7 When Should I Report Something to the Police before Going to a Lawyer? Provided by HG.org Конец формы Making a police report can be a serious step that some people may prefer to avoid. On the other hand, speaking to a lawyer may not always be the first advised step. Being sure whether to contact the police or a lawyer can help individuals protect their legal rights. When to Contact the Police. There are several instances in which a citizen may wish to contact the police. To Report a Crime. If the individual witnessed criminal behavior or suspicious conduct, he or she may wish to report this information to the police. Law enforcement’s duty is to protect the public. If another person has been assaulted, murdered, robbed or otherwise physically injured because of the conduct of another person, law enforcement will likely begin a criminal investigation. Likewise, suspicious activity such as slow moving vehicles at night time, unknown people in the neighborhood that appear to be “staking out” the area or other behavior that does not match the time of day or community may indicate that police should be involved. While the individual should strive to provide accurate information to law enforcement if he or she decides to make a police report, he or she should not make up information or make up a crime just to get attention as this can put the individual in his or her own legal peril. Mandated Reporters. Usually, people are not required by law to report a crime. However, some individuals have a legal obligation to report certain crimes, such as perceived abuse on children or the elderly. There may be a special hotline that a doctor, teacher or psychologist must report the abuse, or the relevant statute may indicate that any communication with law enforcement will satisfy this obligation. Individuals may also be required to report a crime if they have a special relationship with the victim, such as spouses or parents and children. To Document an Incident. Sometimes contacting a lawyer first and then following up with contact to police may seem suspect, such as when a person later files a civil suit. In some instances, a person may wish to contact the police simply to document that an event occurred, such as jewelry being stolen out of the home or someone crashing into their vehicle. Additionally, lawyers are concerned about being able to prove a case. If there is no record of certain events happening, the case may not be as strong. For example, if a person is being threatened or harassed by someone, a lawyer may not be able to prove this occurred when seeking a no-contact order. However, the lawyer may advise the victim to make a police report each and every time that an incident of this nature arises to help document it. When to Contact a Lawyer First. However, there are several instances where it may be in a person’s best legal interests to first contact a lawyer. Civil Matters. Generally, police handle criminal matters. If a person is facing a civil matter, such as being sued, having a dispute with a neighbor or going through divorce, he or she likely will wish to contact a lawyer. Law enforcement may not get involved in such matters if they are deemed a civil matter, although there can be times when civil issues segue into criminal matters, such as a child custody dispute that results in custodial interference. Confusion about Rights. If an individual is not aware of his or her rights in any particular instance, a lawyer can help explain the individual’s rights to him or her. This allows the individual to have a better understanding of his or her options when facing a difficult situation. Involvement in Crime. If an individual has committed a crime, helped someone else commit a crime or believes that he or she may bare some criminal culpability, he or she should contact a lawyer before talking to the police. The lawyer can help advise the client about the next steps that he or she should take if the client wants to confess to the crime. If the client wants to protect his or her freedom, the lawyer may give specific advice to help accomplish this goal, such as not contacting the police or talking to them without the presence of his or her lawyer. Additionally, a lawyer may be able to negotiate a plea agreement if a crime is involved. If the individual knows particular information that may assist the authorities, the lawyer may be able to negotiate immunity for the client. T 8 Criminal Justice System May Get Much Needed Overhaul  By Law Office of Patrick J. McLain, PLLC, TexasProvided by HG.org Начало формы Конец формы Our criminal justice system obeys the law of unintended consequences. Eventually, all of our policy decisions have consequences, and some of those come back to haunt us. We can see this in the aftermath of the crackdown on crime in this country. Decades of laws imposing ever-increasing penalties and longer prison sentences have left us with the largest prison population in the world-currently at 2.38 million. At least one-quarter of these inmates are serving time for minor, non-violent crimes, the majority of which are low-level drug offenses. This large prison population has strained state budgets, particularly now as the country faces the worst economic climate in years. In fact, some estimates put state spending on incarceration at one dollar out of every 15 in their tightening budgets. Commission Will Investigate Criminal Justice System and Propose Reforms. To address the problem of the growing, unsustainable prison population, Senator Jim Webb (D-VA) introduced S.714, the "National Criminal Justice Committee Act of 2009" last year. The bill was recently approved by the U.S. Senate Judiciary Committee. Representative William Delahunt (D-MA) has introduced a similar bill this year in the House of Representatives, H.R.5143. The Act proposes the creation of a blue-ribbon commission to study the problems with the state and federal criminal justice systems, from sentencing disparities in drug cases to the effect of foreign-based gangs on U.S. crime rates and every issue in-between. If the bill passes, the commission will be given 18 months to complete a far-reaching study and propose solutions to the problems facing America's criminal justice system. Among other things, the commission would be charged with investigating: Why the U.S. has the highest incarceration rate in the world and how other industrialized countries with similar legal systems-namely European countries-sentence offenders. The use of pre-employment training programs and other re-entry programs to help former offenders adjust to life after prison and become productive members of society. The impact of gang-related activities on U.S. crime rates, especially foreign-based gangs like the Mexican drug cartels. The incidence of mental illness in the prison population and ways to better identify and treat these illnesses. The historical and possible future role the military can play in crime prevention efforts at the federal, state and local levels. The commission also would investigate current sentencing policies, particularly those concerning drug offenses. According to the rationale of S. 714, tougher laws and higher incarceration rates of drug offenders have not had the desired effect; supply and demand for illegal drugs remains high. With over half-a-million people serving time in a state or federal facility for a drug-related crime, Congress seeks an alternative to the current system. But, why does Congress need a National Criminal Justice Commission to study and debate the issue and its solutions? A Commission Is a Sign of Congressional Timidity and Indolence. When Congress creates a commission, it often seeks to foist a tough political problem on an unaccountable, unelected “bipartisan, blue ribbon” committee. Congress is our national policy debate and deliberation body. Congress can, and should, hold hearings on the injustices and inefficiencies of our criminal justice system. Rather than pontificating to the cameras, our federal legislators ought to engage the country’s best thinkers on criminal justice policy in debate and conversation, to forge the best policy in the crucible of deliberation. The floor of Congress is likewise meant to be a foundry of thoughtful, intellectual exchange, rather than a platform for pointless polemics before the C-SPAN cameras. Conclusion. Whether or not the National Criminal Justice Committee ultimately comes into being, one thing is certain: reform of the U.S. criminal justice system is long overdue, and it will only happen if our Congress itself musters the courage and wisdom to act. T 9 Statute or Precedent: Which One Represents the Ethiopian Legal System? By Fikadu Asfaw and Associates Law Office, Ethiopia  by HG.orgAs recently as 2005, the question, if addressed towards the Ethiopian legal system, would have been real silly. Ethiopia, for one reason or another, adopted the continental legal system in its historic codification project in the 1950’s and 1960’s and hence codes (statutes or whatever name comes to your mind) issued by the legislature (and not by the courts) are sources of laws. The legislature (whether it was an individual or group having legitimate claim of law-making) has had the monopoly of making laws in most of Ethiopia’s modern legal history. Other than looking into court cases to see ways of arguments, or to study legal languages, or to search for persuasive interpretations or understandings of the law, Ethiopian law students, lawyers, and even courts haveНачало формыКонец формы largely ignored court decisions. The bottom-line, court decisions have never been consulted for binding precedent, as widely understood in the common law legal tradition. But it would be wrong these days to immediately reject the role of judicial precedent in the Ethiopian legal system and the implications associated with it. A historic legislation, if one might call it so, was passed by the House of Peoples Representatives in June 2005 allowing the cassation division of the Federal Supreme Court to set and reset its “legal interpretations” as precedents. Now what one should wonder about is: what is the impact of this legislation in introducing the concept of judicial law making in Ethiopia? For example, has this legislation opened a room for legislative actions by say for example Federal First Instance Courts? Here are the ground-breaking sub-articles of Article 10 of the Federal Courts Proclamation No. 25/1996 (as amended by the Federal Courts Proclamation Re-amendment Proclamation No.454/2005): "4. Interpretation of a law by the Federal Supreme Court rendered by the cassation division with not less than five judges shall be binding on federal as well as regional court at all levels. The cassation division may however render a different legal interpretation some other time." "5. The Federal Supreme Court shall publish and distribute decisions of the cassation division that contain binding interpretation of laws to all levels of courts and other relevant bodies." As you could see, there is nothing of course close to the stare decisis of the Britons, the doctrine of precedent that evolved for centuries. For starters, the power is limited to the Cassation Division (not even to the ordinary divisions of the Federal Supreme Court does the power relate!). Plus, given the precondition of the existence of fundamental error of law and other rigorous procedural requirements to get a case before this division of the Supreme Court, the number of cases reaching there is very much limited. And hence not many “interpretations” are expected from the Court. There is also another more important restriction, often overlooked: the precedent relates to “interpretation” and not law-making, though in practice the Court might successfully ignore such distinction (between interpretation and law-making) cleverly preempting accusations of exceeding its powers. Still there is no denying that the provisions have had big impact in the study and practice of law in Ethiopia. Arguably the legislation has changed the tradition of legal research (carried out by students, lawyers, etc.) In the past, legal analysis focused only on statutes. When judicial decisions are consulted, it was mostly to look into the disparity between the law and the practice. But now students and practitioners might be expected to search for “interpretative” judgments of the Cassation Division of the Federal Supreme Court to make their researches complete. In any case, an additional task is curved out for the Ethiopian lawyer. Her job is no longer limited to searching for endless statutes (proclamations, regulations, administrative directives, etc.) to satisfy her clients in providing legal answers. But it also extends to digging the judicial decisions of the Federal Supreme Court, Cassation Division, to identify interpretative rules that bind all courts and administrative organs. T 10 Capital Punishment Law - Guide to Death Penalty Law by HG.org |