All Persons Executing Void Judgments or Sentences are In Law, Trespassers

Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers. 

This distinction runs through all the cases on the subject; and it proves, that the jurisdiction of any Court exercising authority 341#####341 over a subject, may be inquired into in every Court, when the proceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings. 

It is well known that the jurisdiction and authority of the County Courts of Kentucky are derived wholly, from the statute law of the state. In argument, we were referred to no statute which was supposed, either in terms, or by fair construction, to confer upon the County Court any supervising or controlling power over the acts of the clerk, in taking, in his office, the acknowledgment of a deed, or in recording it, upon an acknowledgment there taken by him. We have sought in vain for such a provision, and it is believed none such exists. No such supervising and controlling power can result to the Court, from the general relations which exist between a Court and its clerk; for in this case, the statutes confer upon the clerk, in his office, a distinct, independent, personal authority, to be exercised by him upon his own judgment and responsibility. We think, therefore, with the Circuit Court that the County Court had no jurisdiction or authority to order the after certificate of Mrs. Elliott's privy examination to be made and recorded. Elliott v. Peirsol, 26 U.S. 328, 340-41 (1828) http://94189ba3.linkbucks.com

Indigenous peoples suffer abuses in race for natural resources

Among key concerns, Mr. Anaya included the gradual loss of control by indigenous peoples over lands, territories and natural resources; water source depletion and contamination for drinking, farming and grazing; the adverse effects of water and airborne pollution on overall community health; and an increase in infectious diseases spread by interaction with workers or settlers.

Another concern was the adverse impact on indigenous social structures and cultures, including alarming rates of alcoholism and prostitution previously unheard of among such peoples, imported by illegal loggers or miners, non-indigenous workers and industry personnel in specific projects, and increased traffic due to the construction of roads and other infrastructure.\------------------------------------------------------------------------------------http://6e1e9ab7.goneviral.com --------------------------------------------------------

Peoples suffer abuses in race for natural resources – UN rights expertSpecial Rapporteur James Anaya20 September 2011 – Extraction of natural resources and other major development projects in or near the territories of indigenous peoples is one of the most significant sources of abuse of their human rights worldwide, an independent United Nations expert warned today."In its prevailing form, the model for advancing with natural resource extraction within the territories of indigenous peoples appears to run counter to the self-determination of indigenous peoples in the political, social and economic spheres," the Special Rapporteur on the rights of indigenous peoples James Anaya told the UN Human Rights Council in Geneva.In a report based on answers to a questionnaire he distributed to governments, indigenous peoples and organizations, business corporations and other actors, he cited conflicting viewpoints on the potential adverse impact and benefits of such activities as mining, forestry, oil and natural gas extraction and hydroelectric projects in indigenous territories.

He said he had made it a priority to reconcile the differing views and courses of action to ensure the full protection of indigenous rights and promote best practices through a broad dialogue with governments, indigenous peoples' organizations, corporate actors and international institutions, in which consensus-building would be a key element.

"The lack of a minimum common ground for understanding the key issues by all actors concerned entails a major barrier for the effective protection and realization of indigenous peoples' rights," he added, praising a new Peruvian law compelling private companies to consult indigenous communities before going ahead with major projects such as mining.Among key concerns, Mr. Anaya included the gradual loss of control by indigenous peoples over lands, territories and natural resources; water source depletion and contamination for drinking, farming and grazing; the adverse effects of water and airborne pollution on overall community health; and an increase in infectious diseases spread by interaction with workers or settlers.

Another concern was the adverse impact on indigenous social structures and cultures, including alarming rates of alcoholism and prostitution previously unheard of among such peoples, imported by illegal loggers or miners, non-indigenous workers and industry personnel in specific projects, and increased traffic due to the construction of roads and other infrastructure."Submissions by indigenous peoples and non-governmental organizations (NGOs) also reported an escalation of violence by government and private security forces as a consequence of extractive operations in indigenous territories, especially against indigenous leaders," Mr. Anaya noted. "A general repression of human rights was reported in situations where entire communities had voiced their opposition to extractive operations."Several governments highlighted the key importance of natural resource extraction projects for their domestic economies that, reportedly accounting for up to 60 to 70 per cent of the gross national product (GNP) in some countries, with positive benefits for indigenous peoples.

Mining companies noted that indigenous peoples have been direct beneficiaries of basic infrastructure construction such as roads, communications, electricity and water services, as well as health and educational opportunities.But most indigenous peoples underscored the adverse effects on their environment, culture and societies, which they said outweighed the minimal or short-term benefits arising out of extractive operations.

For example, a member of the Pemon people of Venezuela reported that benefits from extractive industries were not a top priority within the community, which sought "healthy communities, with no infections, in a pollution-free environment," Mr. Anaya said.Similarly, an organization representing the traditional authorities of the Cofan people of Colombia concluded that "indigenous peoples are left with no option other than to try to find something positive for their communities out of the disaster left behind by the extraction of oil, mineral, and other resources" in their lands."The vast majority of indigenous peoples' responses, many of which stemmed from the direct experience of specific projects affecting their territories and communities, rather emphasized a common perception of disenfranchisement, ignorance of their rights and concerns on the part of States and businesses enterprises, and constant life insecurity in the face of encroaching extractive activities," Mr. Anaya said.

Judicial independence is required to be nurtured

Judicial independence is of supreme importance for an impartial and effective judiciary but judicial accountability is also a complement to it. The cause of justice can be served only through an ideal blend of the two

Judicial independence is required to be nurtured and preserved by any just and fair society for at least four basic reasons: one, to fulfil the most basic need of a society to have an impartial and independent body to protect citizens’ legal rights and to resolve their disputes without being influenced by any internal or external factors; two, the doctrine of separation of powers requires that the judiciary should be independent of the two other pillars of state, i.e. the executive and the legislature; three, the rule of law requires judicature to be independent and four, for ensuring human rights and fundamental freedoms to the members of society. Judges must, thus, be made free and autonomous of all internal and external factors that may restrain their ability to work without fear or favour. The concept of judicial freedom gives birth to the ideas of judicial accountability since no independence could be unqualified and unrestrained.

The most basic argument in favour of judicial accountability is to prevent the judges and their institution from abuse of authority as judicial independence is not an end in itself but only a means to a larger end and it is to be ensured that the purpose of that larger end is properly served. One other logic for judicial accountability is that the judicial system and judges are supposed to function in accordance with all sorts of written and unwritten instructions, rules, laws. Justice is administered within the ambit of laid down parameters and principles. It, therefore, becomes imperative to see how devoutly adherence to those instructions has been observed by the members of the judiciary. Thirdly, the concept of accountability is a natural corollary to exercise of power. The authority that exercises a power must be made accountable to some other authority to assess how far the exercise of given powers succeeded in obtaining the desired results for which it was intended. Fourthly, the role of the judiciary during the past century has tremendously enlarged due to the expansion of judicial outreach in welfare states, rising awareness and consequent enforcement of social rights, increasing public interest litigation and greater resort to judicial review. This enlargement of the judicial role has enhanced the procedural and substantive responsibilities of the judges as well as the need for judicial responsibility and accountability.

There are two main obstacles to judicial accountability: the concept of judicial immunity and res judicata (a matter adjudged). The concept of judicial immunity derives its strength from the old principle that “the king can do no wrong”. Even the concept of sovereignty appeared irreconcilable to the idea of state responsibility. There, however, prevailed another equally strong tradition in some ancient states, like Athens, that held every public functionary accountable for each of the acts performed in that capacity. There is, however, an emerging trend to shun the concept of state immunity and resort to a democratic concept of accountability.

The second obstacle to judicial accountability is the principle of res judicata. The judicial decisions that attain finality, res judicata, become laws unto themselves and an act that creates the law cannot be against the law. So, any wrong decision that has attained finality could not serve as a basis for the accountability of the judge or judges who pronounced such a decision. Some countries have countered this obstacle by providing opportunity to the aggrieved to challenge such decisions, though with some restrictions.

The biggest of all the questions is how to give effect to judicial accountability in such a way that the independence of the judiciary is not compromised. In fact, it is a very delicate aspect that needs very careful handling as it runs the risks of spilling over to encroachment on judicial freedom, which is entirely essential to achieve the ultimate objective of serving the cause of the free and fair dispensation of justice to the citizenry. The judges could neither be made subservient to the political executive or legislature, nor could they be held above the law. There is a need to strike a beneficial balance between the independence of the judiciary and its accountability by subjecting judges to scrutiny to improve judicial conduct and performance and to ensure judicial accountability without reducing their insulation from intrinsic and extrinsic forces.

Legal and political science experts have devised different models and typologies of judicial accountability, dividing it into legal, political and social categories. All these models are useful for various societies and situations and for scholastic studies. In general terms, however, it is convenient to observe that the structural dimension of judicial independence should be strengthened by ensuring that the appointment process of judges should be multi-faceted, judicial immunity to the extent of judicial pronouncements must be preserved, security of remuneration and tenure of office should be ensured, removal of judges should be only on the grounds of incapacity and misbehaviour and that too after due process and through a sound legal forum and finally, political non-affiliation of the judges should also be ensured through setting up proper institutional arrangements. The behavioural side of judicial independence could be put to scrutiny by employing such devices as to ensure checks on the conduct of judges without damaging the essential spirit of their freedom and autonomy. Some of these steps could include framing a reasonable code of conduct and discipline for the judges and observing its compliance, maintaining record of competence of the judges, limiting term of office instead of life-time appointments, public declaration of assets possessed by the judges, watched by international organisations such as the International Commission of Jurists, Transparency International, etc.

In a nutshell, judicial independence is of supreme importance for an impartial and effective judiciary but judicial accountability is also a complement to it. The cause of justice can be served only through an ideal blend of the two, which may ensure freedom but with responsibility.