Judiciary is a mess

[Sir Alexandreu Davinescu]

Continuing the discussion of unresolved issues. These were addressed to V, but I guess now they're for the Seneschal?

1. It seems like Organic protections would attach to something we call a trial conducted by a defined body sitting in judgment and resulting in something we call a conviction. Presumably that is not intended, so we should fix this.

2. You want to create a court with three seats, but there are four justices. Nothing in the bill removes any justices, as far as I can see. What is the plan?

3. You want five judges total, with three on the CpI and two district judges. We don't have five people to be judges. What is the plan?

4. The Ziu regularly re-electing members of another branch of government seems like a problem in terms of balance of powers.

5. The Ziu setting rules for lower courts also seems like it's a problem in terms of balance of powers. A simple majority could impose a rule that gives them power to advance or slow cases, for example. It wouldn't require much ingenuity. That seems like a big problem.

6. Did you return the name of the CpI back to the current Talossan one?

[Sir Alexandreu Davinescu]

It's been literally weeks since the sponsor of the relevant language replied, and none of these problems have been fixed, and now the same problematic language is a part of the proposed FDT/MRPT constitution.

[Miestrâ Schivâ, UrN]

Nov 28, 2018 19:01:57 GMT -6 Sir Alexandreu Davinescu said:

It's been literally weeks since the sponsor of the relevant language replied, and none of these problems have been fixed, and now the same problematic language is a part of the proposed FDT/MRPT constitution.

The Distáin is snowed under with extra-Talossan work right now. Also, your tendency to troll him no doubt reduces his incentive to take your comments seriously.

[Sir Alexandreu Davinescu]

And yet the problems persist, no matter V's particular reactions to reasoned discussion. Who has the authority to speak about them, fix them, replace them? It's bad enough to try to remake the whole judiciary in two or three months, but to also do it when no one is going to actually work on it? The MRPT/FDT constitution already includes this mess, so it's not like I can just ignore it!

If you guys want this, would you please help fix it?

[Sir Alexandreu Davinescu]

More than a month now and still no answer to these problems, no proposed solutions, and not even any people willing to defend this.

[Miestrâ Schivâ, UrN]

If you wanted to persuade people you weren't acting in bad faith, you could attempt to propose your own solutions rather than grandstanding and trying to make political capital. That's exactly what this Pseudo-Hopper process is all about - allowing all MZs (and the King) to offer constructive alternatives, rather than just yelling and political point-scoring and attempting to frustrate and infuriate the Government.

If. I'm convinced you just want to wreck the whole process; but I could be wrong.

[Sir Alexandreu Davinescu]

Deal!

I propose the following as alternative text for the judiciary.

Section 1
The judicial power of Talossa shall be vested in one Cort pü Inalt, in English the Uppermost Cort, and in such inferior courts as the Cosâ may from time to time establish. The judges of the Cort pü Inalt and any inferior courts shall be elected in accordance with Article XVI, Section 4, and shall hold their offices for life (or until resignation), and may be removed by either a two-thirds vote in the Cosâ with approval by the King and the Senäts or due to inactivity as defined by failure to act, rule, or appear in an open case the justice is assigned to or participating in for more than 60 days, as certified by the Ziu in a majority vote.

Section 2
(a) The Cort pü Inalt shall consist of three Justices.
(b) Any justice may serve as a trial judge in any case brought before the judiciary.
(c) Appeals to any trial judge rulings shall be heard by a quorum of all three Justices.
(d) The three members of the Cort pü Inalt are co-equal for all purposes. However, the Justice which has served on the Cort pü Inalt for the longest overall period of time is designated ceremonially as "Senior Justice."

Section 3
Neither a reigning King nor his Consort, nor a Regent during his regency, nor the Secretary of State, nor the Seneschal, nor any public prosecutor, nor any Senator shall be a Justice of the Cort pü Inalt.

Section 4
(a)In the event of a vacancy in the Cort pü Inalt, any member of the Ziu may nominate a replacement. The nominee shall be approved by a two-thirds vote in the Cosâ and a majority vote in the Senäts in favour of his appointment. Upon such approval and upon making the declaration subscribed in subsection (b), the King shall appoint the nominee as a Justice of the Cort pü Inalt and he shall then take his seat for life. The King may, stating his reasons for doing so, refuse to appoint the nominee, in which case the Ziu shall re-consider the nominee or nominate a new nominee. If after reconsideration of the nominee, two-thirds of the Cosâ and a majority of the Senäts have approved the nomination, then the King may not refuse to appoint the nominee as a Justice of the Cort pü Inalt. (b) Every person appointed a justice shall publicly make to the Citizens of Talossa and subscribe to the following declaration:

"I, [NAME], do solemnly, sincerely and truly affirm and declare that I will duly, faithfully and to the best of my knowledge and ability execute the office of [Justice of El Cort pü Inalt] without fear or favour, affection or ill will towards any man, woman or child and that I will uphold the Organic Law and the laws of the Kingdom of Talossa. This I do solemnly affirm." (c) The declaration in subsection (b) shall be made and subscribed by every justice before entering upon his duties as such justice, and in any case not later than ten days after the date of his appointment. Any justice who declines or neglects to make such declaration as aforesaid, within this timeframe, shall be deemed to have resigned his office.

Section 5
Where there is an exact precedent, a court shall rule according to law. Where there is no exact precedent, a court will make a rule to fit the case, either by reinterpreting an old rule (statutory or otherwise) or by applying what it considers principles of justice, consistent with the Covenants of Rights and Freedoms. The courts shall render their decisions with due regard to the original intent of any law being clarified, as defined by the law's author(s). In the event of a difference in interpretation as to the meaning of a law, the court shall render an official interpretation with full respect to the Covenants of Rights and Freedoms. If one of the judges wrote the law, he does not have to step down and designate a temporary replacement.

Section 6
The courts shall consent to hear no case until presented with written evidence by the Prosecution proving to a majority of court members that a reasonable chance of obtaining a conviction actually exists. The courts, by majority vote, may refuse to hear any case, in effect confirming the defendant's (or status quo) position. The Uppermost Cort must supply any plaintiff whose case it refuses to hear a written justification of such refusal. Because of double jeopardy, a case dismissed may not be brought again.

Section 7
If a judge or Justice is a party in a court case, he shall exempt himself from the bench for the duration of the case, and nominate a temporary replacement, who will be approved by the other judges or Justices of the court.

Section 8
No court shall issue any authoritative decision without the fullest opportunity for all members assigned to a case to consider the case in question. However, a single Justice of the Uppermost Cort may hear a case on his own if this is acceptable to at least two other members of the Cort. He shall be appointed to do so by majority vote of the entire three-person Cort. If, after every reasonable attempt is made to contact all other members of the Cort, and three weeks (21 days) has passed since initial contact without any response, their silence shall be read as consent that an individual Justice may hear the case in question on his own. The duly nominated (either by active agreement or silence) Justice shall render a decision on the case as if he were a majority of the whole Cort. His decision becomes that of the Cort itself and may not be appealed nor shall it establish binding precedent in future cases.

Section 9
In the event that a court discovers unclear or confusing language in the Organic Law or in any law, the court may as part of its written decision call upon the Ziu, or if relevant, the Provincial legislature to revise the law. Until such confusion is resolved, the court shall rule according to the most just and equitable understanding of the law, according to the plain meaning of the words, or if such words have acquired a technical meaning at law, according to the technical meaning.

Section 10
The Cort shall try persons for all offences under law, such as a person doing something he should not, or not doing something he should. The Cort shall inflict such punishment as the law provides.

Section 11
Cort decisions (and dissents) will be written up in the Clark if the authors want them to, with due regard to brevity.

Section 12
The courts shall have power to enforce penalties against violators, commensurate with the severity of the crime. The Uppermost Cort may in certain extreme circumstances impose the penalty of expulsion from the country, by a unanimous vote. Sentences may only be overturned by Royal Pardon.

Section 13
Any judge or justice may issue court orders or injunctions according to the generally accepted principles of Anglo-American law. These injunctions may order a party to perform his legal duty, or may prevent the enforcement of a law which may be Inorganic (unconstitutional). Violation of an injunction is treated as contempt of court. The final arbiter of the organicity of injunctions is the Uppermost Cort of Talossa.

[Miestrâ Schivâ, UrN]

For those playing along at home, that is of course Article XVI of the current OrgLaw, copied and pasted.

But, ha ha, let's play along for a moment. Do you believe this would fit in with the rest of the Current Draft OrgLaw? Because if you don't, then you're just acting in obstructionist bad faith again. If you do, however, then, I'm keen for a debate.

[Sir Alexandreu Davinescu]

For those playing along at home, I made key changes to improve the judiciary

But yes, I think the current system would fit basically in with the rest of the mess. We'd probably need to tinker on the edges a bit to make it work, of course. Once you read the FDT/MRPT constitution, you'll note provisions related to an institution in other sections, and so a lot of those would need to be moved. There's a lot of overall rewriting that needs to happen, anyway, of course. You have all sorts of weird things, such as a provision citing another provision for a definition of age of majority, only to find no age of majority explicitly defined in that different chapter. Why are the requirements for voting a full five chapters away from the point of necessity at which they'd be used? Your guess is as good as mine!

[Sir Alexandreu Davinescu]

I mean, what is the whole point of Chapter 1, Article 2? Is it a table of contents for the document that includes definitions, but is set away from the actual institutions for which it is defining things? What is the point of that beyond to really be confusing!? Is it just to say the branches of government in a super-fancy way? Because that could be done better and smarter in one sentence elsewhere.

[Miestrâ Schivâ, UrN]

All political trolling aside, you make several points which may possibly be good.

The fact of the matter is that the Distáin has been out of regular communication with the Cabinet for a while. We are honestly not sure why - he had a family crisis recently, so it may be related to that. I have deferred to him because he's written this whole thing himself through 5 drafts, trying to make it a coherent whole. I continue to defer to him, but I honestly hope he'll be back soon. Because there are certain parts of this document that I honestly can't tell why they're better than the existing version - but I trust his judgement, as he's a lawyer and I'm not. There has been too much bad law in Talossa for too long because it's written by people pretending to be lawyers, rather than actual lawyers.

[Sir Alexandreu Davinescu]

If no one can understand and defend and improve this thing but him, then how can it possibly be useful? The law should be as accessible to ordinary people as possible, and written in the plainest and easiest language that is possible without being ambiguous. That's why we have el Lexhatx. Compare the OrgLaw with this mess on voting, the topic I just noticed.

OrgLaw:
...universal popular vote by all adult citizens (age 14 and over).

Mess:
No citizens, having achieved the age of majority as set forth in Chapter VII, article I, section 1 of this Organic law, shall be disenfranchised through the use of taxes or tests or other undue burdens ---> Children born after 1 January 1989/X, one (or both) of whose biological or adoptive parents is a Talossan citizen at the time of the birth, are native-born Talossan citizens ("Dandelions") and shall automatically have full voting rights when they register themselves with the appropriate authority on or after their 14th birthday.

Notice how much more confusing the second one is, how much harder to understand, and how it requires checking two places in the document and worrying you missed a third? Notice how it actually doesn't do a very good job since:
- it doesn't spell out the age of majority
- it defines a negative right (no one shall take away your vote) rather than a positive one (you have the right to vote at 14)?
- it has huge loopholes, like a "proper authority" to determine voting rights.

There's a ton of this stuff.

If V is the only one who can understand and change and defend this, that's a enormous flaw. You're smart and can read English well... you should be able to use your own judgment here and compare these two and know which is better!

[Sir Alexandreu Davinescu]

Today is the one-month anniversary of the last time anyone besides me meaningfully worked on the proposed replacement for the entire justice system. I'm throwing a party.

[Viteu Marcianüs]

I've made the changes in the original thread.

[Viteu Marcianüs]

Nov 26, 2018 18:36:42 GMT -6 Sir Alexandreu Davinescu said:

Continuing the discussion of unresolved issues. These were addressed to V, but I guess now they're for the Seneschal?

1. It seems like Organic protections would attach to something we call a trial conducted by a defined body sitting in judgment and resulting in something we call a conviction. Presumably that is not intended, so we should fix this.

2. You want to create a court with three seats, but there are four justices. Nothing in the bill removes any justices, as far as I can see. What is the plan?

3. You want five judges total, with three on the CpI and two district judges. We don't have five people to be judges. What is the plan?

4. The Ziu regularly re-electing members of another branch of government seems like a problem in terms of balance of powers.

5. The Ziu setting rules for lower courts also seems like it's a problem in terms of balance of powers. A simple majority could impose a rule that gives them power to advance or slow cases, for example. It wouldn't require much ingenuity. That seems like a big problem.

6. Did you return the name of the CpI back to the current Talossan one?

 (1) What?!? 

(2) I really can't understand how you couldn't figure out that they would be removed upon removal of the very provision that authorizes them to hold that seat; but fine, your pedantry is answered. it's been fixed. 

(3) I want a three-justice UC. 

(4) The Ziu relecting members of another branch in generla is not a problem in terms of balance of powers, but re-confirmation at intervals is a problem? Looks like you're taking a note from PM May's book in thinking that democratic votes somehow undermines democracy. 

(5) Stop talking out of both sides of your mouth - you went up in arms about the removal of Ben-Ard when "no rules were set," and now that I'm answering that by allowing for rules, you're saying it's problematic.

(6) Already fixed. 


Come up with new stuff before you expect me to engage you again.