French Judicial System
French Judicial System
French Judicial System
Introduction
o Stems from Roman Law
o French Civil Code in 1804 under Napoleon 1.
o Judiciary is independent from the executive and legislature.
o Two major branches
I. Ordinary Courts. (Criminal and Civil litigation)
ii. Administrative Courts (which supervise the government and handle
complaints)
o Four courts of last resort
I. Court of Cassation (Cour de cassation)
ii. State Council (Counseil d’Etat)
iii. Constitutional Council (Conseil Constitutionnel)
iv. Jurisdictional Disputes Tribunal (Tribunal des conflicts)
II. Features
o 1. System of Civil Law
Unlike Common Law system of Britain and Pakistan, France has a system of Civil
Law (written codified law).
Common Law has evolved historically through consensus and precedents.
Civil Law was drafted during Napoleon’s times in 1804.
Types of law codes in France
I. Civil Procedure Code
ii. Criminal Procedure Code
iii. Penal Code
iv. Civil Code
v. Commercial Code
o 2. No Separate Courts for Civil and Criminal cases
A court can hear both cases.
Britain and Pakistan have separate civil and criminal courts.
o 3. Principle of Collegiality
Minimum of three judges hear the case.
One judge, and not a number of judges can be corrupted.
Britain does not have this system.
o 4. Independence of Judiciary
Judges work under the Minister of the Judicial Department
Higher Council of Magistracy has strengthened the judiciary
Judges are irremovable except the charges of gross misconduct on the
recommendation of Higher Council of Judiciary (Article 64).
o 5. Absence of Habeas Corpus
Article 65 briefly provides not to detain any person arbitrarily.
However, there is no existence of Writ of Habeas Corpus in Constitution.
Britain has established it in its legal system
In Pakistan, it is governed by Section 491 Code of Criminal Procedure (CrPC)
1898.
o 6. Distinction between Ordinary and Administrative Courts
Ordinary laws and ordinary courts for ordinary citizens.
Administrative officials come under the jurisdiction of administrative law and
administrative courts.
Pakistan, India and Britain do not have separate laws and separate courts.
o 7. Judicial Review with Constitutional Council
Constitutional Council, a semi-executive and semi-judicial body, has the power
to strike down the parliamentary legislation or executive laws – Judicial Review
Judicial Review rests with ordinary courts in US. Similarly, in Pakistan and India,
rests with Supreme Court.
British are obsessed with parliamentary supremacy, hence no Judicial Review
for primary legislation.
I. Introduction
o Administrative law
o Administrative agencies
o Government agencies are bound to follow Administrative law
o Ad. Law is a type of Public law
II. Concept of Administrative Law
o “Administrative law is the sum total of the principles according to which the activity of
the services, other than judicial, concerned with the execution of law is concerned.”
(Barthelemy)
o Laws relating to Public Administration.
o Related to the organization, finance and responsibility of all public authorities.
o Law of official powers or the law which determines the discretion permitted to
administrative officers and agencies.
Encyclopedia of Social Sciences
III. A.V. Dicey’s Opinion
o Three features
I. The rights of the state are determined by a special body of laws not applicable
to ordinary citizens.
ii. Administrative courts do not have judges but state officials who try state
officials under administrative law.
iii. Special protection is given to officials for acts performed in their official
capacities.
IV. Administrative Courts
o 1. Administrative Tribunal Court
Court of first instance.
Jurisdiction in any dispute concerning government.
Also responsible for municipal matters and cantonal elections.
o 2. Administrative Appeal Court
Ruling of Administrative Tribunal Courts are appealed.
Created in 1987.
To reduce the workload of Council d’Etat
o 3. Conseil d’Etat or State Council
Supreme court of the administrative tier
An active government advisor
V. Sources of Administrative law
o 1. Written Constitutional Norms
Declaration of Rights of Man and of the Citizen of 1789.
Fundamental Principles recognized by the Statutes.
o 2. Unwritten Constitutional Norms
Judges fill the constitutional gaps.
o 3. The Acts
Laws made by legislature are binding on the administrative authorities.
Laws include Constitutional Law, Organic Law, Ordinary Law and Finance Law
etc.
o 4. The Regulation
Prime Minister (Article 21)
President of the Republic (Article 13)