EXTRAORDINARY SESSION OF THE COSA

[Viteu Marcianüs]

The Senate has seen fit to commence proceedings, at the exclusion of the Cosa, on the Report and Recommendation I submitted in my capacity as Attorney General. 

One such good Senator has offered a thorough critique of the report. As I am not a member of the Senate, and as I have not been invited to address the body in my official capacity as Attorney General, and as it seems we're going to debate this as separate bodies, I am opening a debate in the Cosa into the merits of the report. And in that spirit, I shall offer my response to the meritless attack levied by one good Senator. 

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I write this to respond to the criticism of the Report and Recommendation levied by the good Senator.

At the outset, I wish to point out paragraph 29 of the Report, something the good Senator ignores in its entirety, which reads the report is not to be considered binding law. Hence, he neglects to offer the qualifying context in which I posed the report. I posed it as neither binding law nor final authority.

The good Senator attacks my examination of foreign common-law countries as a non-sequitur. This is a gross mischaracterization. The Senator alludes to an established practice of the Talossan judiciary issuing injunctions when no case or controversy or advisory opinion was sought without citing any authority. While I did search through the cases provided on the Wiki, I could not find any. I may have missed one and I am open to being corrected. This points to a problem with Talossa’s judiciary – we maintain no reporter by which we can search for prior judicial decisions. If the good Senator would be willing to produce an order analogous to the subject Justice's suo moto action, I would view his critique with merit. But as of now, it reads more as an ad hominem attack without any authority. Simply put, he cannot assert as fact that the actions of one subject Justice is inorganic absent conclusive authority that this is standard practice in Talossa. 

In regards to his complaint that I focused on only a few countries and not all of South Asia, perhaps the good Senator can provide authority that shows the Republic of India is not in South Asia. In any event, following this logic, any time we seek persuasive authority from another common-law country influenced by Anglo-American law, we would need to examine Australia, Bangladesh, Belize, Brunei, Canada, Hong Kong, India, Ireland, Israel, Kenya, Malaysia, Myanmar, New Zealand, Pakistan, Singapore, South Africa, and the United Kingdom (England, Wales and Northern Ireland). Further, within each jurisdiction, we would need to examine the common-law of 49 of the 50 US states and a number of territories, the various stats of India and Australia, the provinces of Canada (with the exception of Quebec), etc. This would be most cumbersome indeed. I find this critique to be nothing short of a myopic, partisan attempt to ignore the intent behind “Anglo-American” clause as a means to defeat it by argumentum ad absurdum.

As to the alleged misrepresentations of the Organic Law. Many of these claims are open to interpretation, and absent binding precedent from the Uppermost Cort, the good Senator’s interpretation, while I disagree, is just as valid as the one put forward. However, while I conceded at the threshold that what put forth was not binding law, the good Senator asserts his interpretation as what is binding law. These affirmative assertions, however, without authority in support, are not conclusive. I would note that his later assertion that the subject Justice’s does not violate any clear Talossan precedent, again, without citing authority, suggests that this is an unsettled area of law, to which the good Senator must concede and acknowledge that propriety of the interpretation put forth in the report. If there is no clear Talossan precedent, perhaps the attack on looking at other jurisdictions can be qualified. And if there is no clear Talossan precedent, the good Senator should modify his assertions to mere opinions of an area of unsettled law. 

To address each point – we are now to believe that XVI:6 intends for the Uppermost Cort to act as a Grand Jury. Notably, however, while the good Senator seemingly only considers this to apply to criminal conviction, he ignores the use of “plaintiff,” which implies application to non-criminal cases as well. Which then, of course, begs the question if we are going to apply the standards of a grand jury to every case brought before the Cort, how many cases since adoption of this clause were actually permissible? Hence, the good Senator’s attack at my interpretation ignores the part of the section that undermines his argument, which requires the “Cort . . . [to] supply any plaintiff whose case it refuses to hear a written justification of such refusal.” It's not a mere threshold issue. It's substantive. In fact, under the good Senator's interpretation, as applied in civil cases, it would require the Cort to undertake an "admissibility" analysis, similar to that used by the European Court of Human Rights, which, at times, addresses the merits of the case. 

His comment on XVI:8 is questionable. Consider, for a moment, the actual text in question, “No court shall issue any authoritative decision without the fullest opportunity for all members assigned to a case to consider the case in question. “ If that is the case, exactly how can a Cort in this country issue a decision unless an external party has petitioned said Cort for a decision? Otherwise, what the good Senator suggests, we are implying that Talossa is not an adversarial system, but something akin to an inquisitorial system permitting judges to gather evidence themselves. That is not our tradition. But rather, the plain reading of the text precludes any authoritative decision until the record is fully developed for the judge or assigned judges. But what’s operative, they can only do so to consider a case in question, i.e., the case comes from an external source. It cannot be manufactured, and it cannot mean that a single judge can manufacture a controversy to issue an authoritative injunction. The good Senator’s interpretation places XVI:8 and XVI:13 in conflict with each other; my interpretation, in reading them to complement the other, supports a position closer to the case and controversy clause of the US Constitution, something the good Senator concedes he would prefer. But we should not overlook the seeming conflict the good Senator’s proposition would create. And we should not overlook the implication the good Senator makes and that his analysis is really a RUMP partisan attack dressed up in legal drag. 

Now, the good Senator takes issue with the Attorney General failing to put forward a report on the other two justices. He, as he did previously, ignores paragraph 40, which addressed those two individuals. Interestingly, he neglects to point out this paragraph and then concludes that because I did not recommend removal of the other two justices, there is an ulterior motive to use the inactivity clause in lieu of the removal clause. I find it fascinating considering a very key factor that he overlooks – at the date I published the report, the subject Justice could have, at any point, appeared in any of the cases cited, and thus preclude the use of the inactivity clause. Mind you, the report was published on December 27, 2017, the inactivity clause accrued on January 13, 2018, and the subject Justice commented on December 28, 2017 in a thread concerning the report (see talossa.proboards.com/post/156514). He could have instantly rendered this part of the recommendation a nullity but , again, in keeping with his modus operandi that he is above the rule of law, the subject Justice did not appear. The good Senator's attempt at impeaching the propriety of my actions reveal his partisanship and paradoxically undermines his propensity for truthfulness. 

I would point out that the good Senator should understand that it is not the role of the judiciary, in fact, to determine when removal is warranted under the removal clause or what constitutes “inactivity.” In fact, the plain reading of XVI:1 grants the Ziu and the King the exclusive authority to determine when removal is warranted, and gives the Ziu exclusive authority to determine what constitutes inactivity. This mirrors the U.S. Constitution in that the Congress possesses exclusive authority to impeach and remove, and to define the terms of “treason, bribery, or other high crimes and misdemeanors” that would warrant impeachment and removal.

Finally, I did enjoy the dog-whistle use of “chilling effect” the good Senator employs, considering the legal significance the term has in the U.S. That said, requiring a judge to be accountable when they consistently attack a number of people in, as pointed out, a small group of individuals, when they consistently abuse their authority, and when they ignore a lawful mandate to appear in a Cort, thus undermining the very essence of the rule of law as envisioned by A.V. Dicey when he stated in his 1885 that a pillar of the Rule of Law is that EVERYONE is subject to it, is not asking for a lot.

I find the good Senator’s concerns to be partisan, misleading, without merit, and in want of a legal predicate. 

[Viteu Marcianüs]

Members of the Cosâ,

As many of you are aware, the Senate has seen fit to exceed its authority and act as the final arbiter on issues of government propriety. The Senate has failed to establish a statutory or Organic predicate for its actions, and now, in attempting to usurp the democratically elected government, has issued a contempt order.

Let us not be fooled by these actions, the Senator from M-M lacks the requisite authority for this conduct. His contempt order is without merit and his conduct seems to place the Government, and by proxy, this Cosâ, in direct opposition to the Senate.

Regardless of our political differences, we, as a body, must not permit the Senate to assert itself as the greater house of the Ziu. We are equals, and we should demand nothing short of being treated as such.

[Munditenens Tresplet]

I suppose now may be the appropriate time to finally interject myself into these proceedings.

I first must apologize for not bring the Cosâ’s attention to the matter earlier. Initially, the plan was to hold debate in both houses of the Ziu on the matter of how to proceed in consideration of the Attorney-General’s thorough report. Unfortunately, that never occurred within this chamber due to my never having the time to do so, but it also does not appear the debate on how to proceed was ever fleshed out in the Senäts either.

To my knowledge, impeachment proceedings have never occurred in the modern era of Talossa, thus it was important in my mind to establish clear guidelines on what those proceedings would entail.

From the outset, however, it is important to clarify: impeachment “proceedings” are not necessary. Nothing is necessary to adopt the recommendations as set forth in the Attorney-General’s report than to simply write up a resolution and pass it. Both myself and the Mençei, however, felt that those who were subject to the report should be given an opportunity to respond to the allegations in order for the Ziu to undertake a more educated debate before making up their minds. (Allowing the subjects to respond could be seen as unnecessary, given the A-G allowed them an opportunity to respond during his investigation, but regardless, the Mençei and I felt that there should be no question of our deference to “fairness” in the proceedings.)

Following the subjects being given an opportunity to respond, it was then hoped that the Ziu members would engage in a thorough debate on the merits of the report before both adopting it and any recommendations (i.e. “punishments”) that it would see fit.

Again, we could stop there. The Ziu taking up the Report and Recommendations by the Attorney-General is also left entirely up to the Ziu to determine. We as a body could simply ignore the report if we so chose to; not unlike the many reports that agencies deliver to Congress which pile up and go unread. The report itself is not binding on the Ziu to take up, nor are any of its found facts, its conclusions of law (to the extent the report contains such conclusions), or its recommendations. Nor did the Ministry of Justice, in my opinion, necessarily have to even write and deliver a report; Under Lex.D.2.5.1.2, the Ministry shall report the results of its investigations and recommendations to the Ziu, as it sees fit to do so.

Clearly debate on the merits of the report and recommendations has already started. And given the nature of the report and the gravity of the recommendations it proposes, it was nearly a foregone conclusion that the Ziu would in fact take up debate of the report.

And again, we pause. Following the issuance of the report, the Ministry of Justice, by its lawfully held authority, brought a case against the subjects of the report in the Cort system. The Ministry did not have to wait on the Ziu to even read the report before it did so, of course, because it is an entirely separate action. Stemming from the action, and particularly the failure of one of the defendants to respond to it, the Attorney-General (who is also an MC), brought a separate act to remove the defendant from his position as an Uppermost Cort justice.

It is notable that this act, and the circumstances which led to its introduction and Clarking, are completely unrelated to the issues as set forth in the Ministry’s report and recommendations. Debate on the act should not necessarily commingle with debate on the report; while the act would remove BenArd and the report recommends the same, both are for unrelated reasons.

Ancillary to debate on both (despite a resolution on the report not being on the Clark), the Attorney-General as an MC began a thread in the Cosâ to respond to allegations made against both his report and his act by a Senator in a Senäts thread. Following this, the Mençei “summoned” the Attorney-General to testify in the Senäts thread proper, despite he having fully responded to the debate in a thread in the Cosâ.

The Attorney-General responded to the summons (in addition to noting prior to its issuance that he would avail himself anyway; perhaps an invitation to cross the threshold into the Senäts would have been more apporpriate than a summons, but far be it from me to stifle the direction of the independent body) by responding to it within the 24 hours it requested (“respectfully asked”) him to.

The A-G stated he’d respond to most inquiries provided they were upon the subject of the report, and that he’d prefer if inquires accumulated rather than he responding to multiple one-line questions/posts. The Mençei objected to his response by ruling it out of order, and by levying multiple requirements that he responds to inquiries within 24 hours after they are made, that he must reply in full or state reasons for not doing so, and suggests that by virtue of he being a public servant that he “must not have the right to refuse to answer questions that are essential to the scrutiny of Government by legislative bodies.” And further, that the Senate can change the rules that it sees fit at any time.

To my knowledge, the only procedure that requires a Cabinet member to submit himself to inquiries of Ziu members is via a Terpelaziun. This provision of law allows for virtually unlimited questions be posed to a Cabinet member—though limits the questions to one at a time per member with one follow-up—and makes it an offense if the member fails to answer the question within a set amount of time which is not less than seven days but no more than twenty-one days. (The provision allows for multiple defenses for failure to respond in the set amount of time.)

While the Senäts may be free to set its own rules for debate and questioning of a Cabinet member who appears before it, as is the Cosâ, any rules it sets are certainly not binding on the Cabinet member who is under no requirement to avail him or herself of any invitation to appear before any body of the Ziu. I find it disappointing from the standpoint of the keeper of decorum of this body, as well as a former Mençei myself, that that A-G did make himself available to the Senate’s invitation with reasonable, limited requests only to be met in such an adversarial manner. Although the plan was always to invite the subjects of the report, and the reports author, to respond to questions posed by Ziu members (understanding of course that those who are not Senators cannot enter the Senäts without an invite, and those who are not MCs cannot enter the halls of the Cosâ without an invite), I never understood this to become a requirement for those individuals who would be invited to do so.

I now understand the Mençei has determined the A-G to be in contempt of the Senate, and there are plans to draft and vote on a Senate resolution to rebuke the Government for the decision made by one of its Cabinet members to fail to ascribe to rules for questioning it created without authority. Again, the Senate is free to do whatever it likes. There is no provision expressly preventing, as far as I can tell, the Mençei declaring someone to be in contempt, nor is there a provision preventing the Senate from adopting a resolution that for all intents and purposes does nothing at all. If the Senate wants to continue messing around with the sideshow that this debate has now become, it absolutely can do so (the same as it could unilaterally declare the sky green), but it doesn’t help matters, change matters, or give it any more authority over anyone outside its own chambers than what it currently holds. (Though I would note in my personal opinion, I feel that any actions the Senate decides to take here other than admit fault and concede only reflects poorly on the Senate and certainly not the A-G.)

Unlike the Senate whose party affiliations are thinly masked behind a false veil of disassociation (see 50RZ2), both my party affiliation, the A-G’s party affiliation, and the party affiliation of the main subject of the A-G’s report are all public knowledge. I recognize that I am seemingly currently in a precarious position, perhaps caught between my role as presiding officer over this august body and a member of the party currently led by the individual serving as A-G. However, I do not believe that this post speaks to the merits of either the A-G’s report or the act, but rather, it should be taken as a nudge going forward that encourages proper, healthy, and honest debate on the merits to proceed.