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In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to operate", per ''R v Malmo-Levine''.〔''R. v. Malmo‑Levine''; ''R. v. Caine'', () 3 S.C.R. 571 at para. 113.〕 These principles may stipulate basic procedural rights afforded to anyone facing an adjudicative process or procedure that affects fundamental rights and freedoms, and certain substantive standards related to the rule of law that regulate the actions of the state (e.g., the rule against unclear or vague laws). The degree of protection dictated by these standards and procedural rights vary in accordance with the precise context, involving a contextual analysis of the affected person's interests. In other words, the more a person's rights or interests are adversely affected, the more procedural or substantive protections must be afforded to that person in order to respect the principles of fundamental justice.〔''Charkaoui v. Canada (Citizenship and Immigration)'', 2007 SCC 9 at para. 25.〕 A legislative or administrative framework that respects the principles of fundamental justice, as such, must be fundamentally fair to the person affected, but does not necessarily have to strike the "right balance" between individual and societal interests in general.〔''Malmo-Levine'', ''supra'' note 1 at para. 96〕 The term is used in the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms and also the New Zealand Bill of Rights Act 1990. Fundamental justice, although closely associated with, is not to be confused with the concepts of due process, natural justice, and Wednesbury unreasonableness. ==Canadian Bill of Rights== In written law, the term ''fundamental justice'' can be traced back at least to 1960, when the Canadian Bill of Rights was brought into force by the Diefenbaker government. Specifically, section 2(e) of the Canadian Bill of Rights stated that everyone has "the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations." According to the legal scholar Walter Tarnopolsky, the wording of the clause sparked some controversy among those drafting the Bill. Some wanted the words "natural justice" in the place of "fundamental justice," as "natural justice" was indeed a more common phrase with judges and authors. "Fundamental justice" was a more obscure alternative with these figures (other such alternatives include "universal justice"). Still, "fundamental justice" was chosen, and in the case ''Duke v. The Queen'' (1972), it was ruled that fundamental justice was, for the purposes of this case, merely equivalent to natural justice. The author, Chief Justice Fauteux, did say that he was not trying "to formulate any final definition." Unlike the Canadian Charter of Rights and Freedoms, which was added to the Constitution of Canada in 1982, the Bill of Rights is not a constitutional instrument but rather an ordinary statute. Still, the Canadian Bill of Rights remains in effect, and its guarantee of the "determination" of one's "rights and obligations" through fundamental justice is not precisely duplicated in the Charter. While the term "fundamental justice" ''does'' appear in section 7 of the Charter, this is to limit the rights to life, liberty and security of the person. Hence, in the 1985 Supreme Court of Canada case ''Singh v. Minister of Employment and Immigration'', half of the Court found section 2(e) of the Bill of Rights still has a role to play in Canadian law, and they used it to find in favour of the rights claimants. Justice Jean Beetz, writing for this half of the Court, noted that section 26 of the Charter states that rights outside the Charter are not invalid, and hence the Bill of Rights still has a role to play in Canadian law. Beetz went on to find that in this case, refugees had been denied hearings, and thus their section 2(e) and fundamental justice rights were infringed. (The other half of the Court also found in favour of the claimants, but relied instead on section 7 of the Charter). Later that same year, in ''MacBain v. Lederman'', the Federal Court of Appeal used section 2(e) of the Bill of Rights, and not the Charter, to invalidate parts of the Human Rights Code on the grounds that they could insert bias into a process to determine "rights and obligations." 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Fundamental justice」の詳細全文を読む スポンサード リンク
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