Rule of laws and Moral Courage in Taiwan .( The new Justice minister-designate to face stiff challenges. ).

 

                               
Justice minister-designate to face stiff challenges

If   Men  and  Women  do   not  possess    the   Moral   Courage    , they  have  no  security   whatever   for  the  preservation    of  any   other  .  It  is   the  courage   to  seek  and   to   speak   the  truth  ,  the   courage   to   be  just   ,  the   courage   to   be   honest  ,    the   courage   to   resist  temptation  ,  the   courage  to  do  one's  duty  . 
              I   hope  I  shall  always  possess   firmness  and   virtue  enough   to   maintain  what   I   consider  the   most  enviable  of   all   titles  ,   the  character   of   an   HONEST   MAN.   (  George   Washington   ) ...............

  RULE 

Many organizations and scholars have advocated the rule of law and have taken positions regarding the interpretation of that concept they prefer.

International Commission of Jurists[

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In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in 

New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was theDeclaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review.[47]

United Nations[

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The 

Secretary-General of the United Nations defines the rule of law as:[48]

a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, 

accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions.

[49] The Security Council has held a number of thematic debates on the rule of law,[50] and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security,[51] children in armed conflict,[52] and the protection of civilians in armed conflict.[53] The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda.[54] The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education.[55]

The International Development Law Organization[

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The International Development Law Organization (IDLO) enables governments and empowers people to reform laws and strengthen institutions to promote peace, justice, sustainable development and economic opportunity. IDLO works along the spectrum from peace and institution-building to economic recovery in countries emerging from conflict and striving towards democracy. It supports emerging economies and middle-income countries to strengthen their legal capacity and rule of law framework for sustainable development and economic opportunity. The International Development Law Organization is the only inter-governmental organization with an exclusive mandate to promote the rule of law, IDLO works to make institutions of law and justice work for people.

International Bar Association[

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The Council of the 

International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law:[56]

An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.

World Justice Project[

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As used by the 

World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld:[57]

1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient;
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law —such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.

[58]

Albert Dicey[

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British jurist 

A. V. Dicey popularized the phrase "rule of law" in 1885.[8]^[59] Dicey emphasized three aspects of the rule of law :[60]

1. No one can be punished or made to suffer except for a breach of law proved in an ordinary court.
2. No one is above the law and everyone is equal before the law regardless of social, economic, or political status.
3. The rule of law includes the results of judicial decisions determining the rights of private persons.

Joseph Raz[

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In 1977, the influential political theorist 

Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies.[61] Raz's principles encompass the requirements of guiding the individual's behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz's principles are as follows:

• That laws should be 

prospective rather than retroactive.

Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.

There should be clear rules and procedures for making laws.

The 

independence of the judiciary has to be guaranteed.

The 

principles of natural justice should be observed, particularly those concerning the right to a fair hearing.

The courts should have the power of 

judicial review over the way in which the other principles are implemented.

The courts should be accessible; no man may be denied 

justice.

The 

discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally "is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man".

[61]

In relation to economics[

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One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter for economic development or not?

[62] Constitutional economics is the study of the compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors.

The standards of constitutional economics can be used during annual 

budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor.[63]

The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term “rule of law” has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such well-established democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy.

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The modern economist 

F. A. Hayek analyzed how the Rule of Law might be beneficial to the free market. Hayek proposed that under the Rule of Law individuals would be able to make wise investments and future plans with some confidence in a successful return on investment when he stated: "under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts."[65] Hayek defined the Rule of Law as the opposite of arbitrary government: "The distinction we have drawn before between the creation of a permanent framework of laws within which the productive activity is guided by individual decisions and the direction of economic activity by a central authority is thus really a particular case of the more general distinction between the Rule of Law and arbitrary government. Under the first the government confines itself to fixing rules determining the conditions under which the available resources may be used, leaving to the individuals the decision for what ends they are to be used. Under the second the government directs the use of the means of production to particular ends. The first type of rules can be made in advance, in the shape of formal rules which do not aim at the wants and needs of particular people. They are intended to be merely instrumental in the pursuit of people's various individual ends. And they are, or ought to be, intended for such long periods that it is impossible to know whether they will assist particular people more than others. They could almost be described as a kind of instrument of production, helping people to predict the behavior of those with whom they must collaborate, rather than as efforts toward the satisfaction of particular needs."[66]