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ICJ Journal-II-2-1959-Eng JOURNAL OF THE INTERNATIONAL COMMISSION OF JURISTS W in te r 1959 Jean-Flavien Lalive , TT „ Spring-Summer 1960 N o rm a n S. Marsh Vol. II, No. 2 Editorial CONTEMPORARY PROBLEMS OF THE RULE OF LAW 3 Kotaro Tanaka DEMOCRACY AND JUDICIAL ADMINISTRATION IN JAPAN 7 Terje Wold THE NORWEGIAN PARLIAMENTARY COMMISSIONER FOR THE CIVIL ADMINISTRATION 21 T. O. Elias THE NEW CONSTITUTION OF NIGERIA AND THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS 30 Saba Habachy LAW, BENCH AND BAR IN ARAB LANDS 47 G. Mangin PROBLEMS OF THE JUDICIARY IN THE “COMMUNAUTE” IN AFRICA 75 Norman S. Marsh LEGAL AID AND THE RULE OF LAW: A COMPARATIVE OUTLINE OF THE PROBLEM 95 NOTES Glenn C. Morgan THE “GENERAL SUPERVISION” OF THE SOVIET PROCURACY 117 The Editors PREVENTIVE DETENTION AND THE PROTECTION OF FREE SPEECH IN INDIA 132 DOCUMENTS Indian Commission REPORT OF THE KERALA INQUIRY of Jurists COMMITTEE 139 BOOK REVIEWS 215 (turn overleaf) INTERNATIONAL COMMISSION OF JURISTS GENEVA Vladimir Gsovski and Government, Law and Courts in the Soviet Kazimierz Grzybowski Union and Eastern Europe(Leon Lipson) 215 DurgaDasBasu Commentary on the Constitution of India; Shorter Constitution of India (Norman S. Marsh) 225 Sompong Sucharitkul State Immunities and Trading Activities in International Law(Jean-Flavien Lalive) 227 Frede Castberg Freedom of Speech in the West (Vladimir M. Kabes) 229 Moses Moskowitz Human Rights and World Order (Donald Thompson) 229 Edvard Hambro La Jurisprudence de la Cour internationale de Justice (J.-F. L.) 231 The European Commission The European Commission of Human of Human Rights Rights, Documents and Decisions, 1955- 1956-1957 (J.-F.L.) 231 Council of Europe European Yearbook, Vol. V(J.-F.L.) 232 Henri Chambre Le Pouvoir Sovietique; Introduction a l’etude de ses institutions (Curt Gasteyger) 233 Andre Tunc Les Etats-Unis (V .M .K .) 234 Thomas I. Emerson Political and Civil Rights in the United and David Haber States (V.M.K.) 235 Caroll C. Moreland Equal Justice Under Law; The American Legal System (V.M.K.) 235 Edwin S. Newman Law of Civil Rights and Civil Liberties (V. M. K.) 236 Emmanuel Blanc Les Institutions Franjaises racontees aux Frangais(J.-F. L.) 238 W.J. Wagner The Federal States and their Judiciary (V. M. K.) 238 Institut fur Ostrecht Studien des Instituts fur Ostrecht/Munich (C. G.) 240 Gunther Albrecht “Dokumente zur Staatsordnung der Deut- schen Demokratischen Republik”(C. G.) 242 Union Internationale Les Barreaux dans le monde - Die Rechts- des avocats anwaltschaft in der Welt(V. M. K.) 243 Union Internationale Les Juridictions internationales - Intema- des avocats tional Courts (V.M.K.) 244 Simon Planas-Suarez Politica International y Panamericanismo Ideal (V.M.K.) 244 A. Giuffre Primo Congresso Internazionale Dei Magistratie(V.M.K.) 245 Paul Barton L’Institution concentrationnaire en Russie 245 Alejandro Alvarez Le Droit Nouveau (V.M.K.) 245 P. F. Gonidec Constitutions des Etats de la Communaute 246 J. E. Godchot Les Constitutions du Proche et du Moyen- Orient (V.M.K.) 246 Pierre-Bernhard Couste L’Association des pays d’outre-mer a la Communaute economique europeenne (V.M.K.) 246 Hans Wiebringhaus Die Rom-Konvention fiir Menschenrechte in der Praxis der Strassburger Menschen- rechtskommission (V.M.K.) 247 Maurice Duverger La Cinquieme Republique (V.M.K.) 247 Francesco Carnelutti La Missione del Giurista(V.M.K.) 247 Pietro Ferdas La Corte D'Assise; La Truffa Processuale (V. M. K.) 247 EDITORIAL To the concept of the Rule of Law, as it is understood by the International Commission of Jurists, belong the essential elements of substantive as well as of procedural law. Whilst it is often necessary for a lawyer to separate those two aspects of any legal order, they must nevertheless go together as will be seen in the present issue of the Journal, where their correlation finds a new and convincing ex­ pression. Even the most lofty principles of substantive law will remain a dead letter unless an effective procedure is provided for their implementation. The effectiveness of any legal system is directly related to the extent to which genuine judicial process is available and followed. A few instances taken from countries with vastly different regimes will illustrate the problem. In the Soviet Union and Spain the Constitutions contain provisions which prima facie satisfy the requirements of the Rule of Law. Both in the Constitution of the Soviet Union of 1936 and in the Fuero de los Espanoles of 1945 there are to be found impressive lists of human rights and fundamental liberties which correspond to the standards of Con­ stitutions in a free society. It may be useful to compare these two documents with the Indian Constitution of 1950 and the Nigerian Constitution of 1960. Between the two former and the two latter there is one fundamental difference, namely, that the latter provide to the citizen effective guarantees and in particular a judicial machinery for the protection of his rights. The Judiciary in those countries is independent and the legal profession is free. By way of contrast, the Constitution of the Soviet Union is confined to an enunciation of principles far removed from actual practice by the categorical imperative of the supreme will of the ruling Party. The basic concept of Socialist legality in the Soviet State consequently acquired an essentially political meaning. In the relation to the individual it is a notion stripped of that ethical content which is usually associated with the Rule of Law. A similar disparity between theory and practice in the field of civil liberties is to be found in Spain where, however, its background and reasons are different from those in the Soviet Union.* Here the arbitrary will of govern­ mental authority cannot be effectively checked firstly because the * A special study on the situation in Spain is being prepared for early publication by the Commission. basic law, Fuero de los Espanoles, has not been properly implemented by subsequent laws and secondly because the Government has been able to establish and maintain various exceptional jurisdictions, military and otherwise; in this way the power of the Bench - whose traditional sense of independence and responsibility has to a not inconsiderable extent survived the constant and often subtle pressure of the regime - has been emasculated. Hence developments such as the recent political trials which affront the conscience of peoples who cherish freedom under the law. The Commission has frequently emphasized the importance of both substance and procedure for the protection of human rights and has always defined the Rule of Law in terms of both. A number of articles in the present issue of the Journal reflect this double concern. A striking feature of all of them is the remarkable consensus on these problems in widely separated and vastly different systems. Two Presidents of Supreme Courts have honoured us with their contributions to this Journal. Mr. Terje Wold, President of the Supreme Court of Norway, and also Chairman of the Committee in charge of the introduction to Norway of the “Ombudsman”, has contributed an article on that subject. The “Ombudsman”, as readers of the Journal will know, is the Parliamentary Commissioner for Civil and Military Administration. This characteristic feature of Scandinavian legal systems fills an important gap in the control of the ever expanding activities of public and governmental authorities and has commanded the increasing interest of public lawyers in other countries- “Justice”, the British Section of the International Com­ mission of Jurists, has recently launched a study group which will consider the applicability of a similar institution under British con­ ditions. In Switzerland, where the deficiencies which exist in the sphere of judicial control of administrative acts are well known, great interest was displayed in the lecture recently given on the functions of his office by Professor Stephan Hurwitz, the Danish “Ombudsman”, who addressed a meeting of lawyers in Berne. The Chief Justice of Japan, Mr. Kotaro Tanaka, who is a distinguished Member of the International Commission of Jurists, has also written for the Journal an article of importance. He discusses some of the problems which exist in the administration of justice in present-day Japan. The value of his observations and conclusions reaches beyond the borders of his own country inasmuch as they reflect developments of new legal institutions in a democracy. The old traditions of Japan’s independent judiciary have been recently strengthened by the growing prestige and influence of a strong Bar. These developments have greatly increased national confidence in the new administration of justice. The rapid emergence of a number of independent states in Africa has engaged the Commission’s attention for some time past. Two articles in this Journal are devoted to contemporary legal issues in African states. Dr. T. O. Elias, a Nigerian jurist with a reputation as one of the leading authorities on African law, analyses the provisions on human rights and fundamental liberties of the new Nigerian Constitution which comes into effect on September 30, 1960. It is interesting to note that many of its substantive provisions are taken from the Convention on the Protection of Human Rights and Fundamental Liberties, signed in Rome in 1950. The second article focussed on Africa deals with the problems of the Judiciary in the “Communaute”. It was written by a French judge, M. G. Mangin, who examines the problems of the administration of justice during the transitional period of the decolonization of the States of the Communaute and of their rapid progress towards independence. The author, writing with a background of years of judicial practice in Africa, stresses the importance of solid judicial institutions and of a well trained Bench for the full development and stability of new States who have to cope with problems of staggering complexity.
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