correct procedure can be that the resulting exercise of the power is invalid.
The rationale for this is that power is conferred on an institution to be
exercised properly according to procedures, not in breach of those
procedures.
Thus procedural law, as regard to external procedures, is concerned with how
rights, duties and liabilities can be enforced in the courts or before an official
or tribunal. It is therefore ancillary to substantive law. Procedural law consists
of three main branches of law which are traditionally called procedure,
pleading and evidence:
(1)
Procedure tells a party, a court or tribunal the steps that they must take
or may take in order to bring, defend or hear an action.
(2)
Pleading is the part of procedure that tells a person the documents that
she must prepare, file and serve to set out the details of her allegation, or
defence to an allegation.
(3)
Evidence tells a party how they can prove their case. The law of
evidence tells a party what is and is not admissible as evidence to prove facts.
Procedure, therefore, provides the rules of the contest for the parties, and for
the court or tribunal. Procedures may be judicial or administrative, they may be
optional or mandatory, and may be followed by, or required of, a court, a
tribunal, a body, an office holder or a citizen. They may be general provisions
for all cases, special provisions for a particular type of case or a mixture.
Usually the steps are in sequence or have consequences. Hence the best way
to learn and understand procedural law is to know the
sequence and the
consequences.
Some procedures are considered of fundamental importance in rendering
justice. For example, common law requires that any decision that can
adversely affect a person must generally be made according to the rules of
natural justice. In the United States, Amendment 5 to the Constitution
famously wraps up procedural fairness in two simple words by requiring
courts to observe and apply “due process”.
Some procedures, though, are merely forms and formalities that can be readily
met. So much is this the case the even if one initially makes a mistake it can
usually be rectified.
Source of Power
Any constitution must logically possess some source of power. To appear
legitimate it needs at least to create an appearance that it possesses authority to
impose a system of government on citizens. Ideally there is something more
than mere illusion.
 |
 |
 |