|
Post by Deleted on Mar 19, 2009 14:11:45 GMT -6
Just because they are not called "judges" does not change the nature of the role, while one might argue that a "magistrate" is neither a "justice" nor a "judge" the fact that they would be deciding cases in an inferior court would include them.
They would have to be appointed just like UC Justices, by the Ziu and for life unless they are removed or resign.
|
|
Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
|
Post by Sir C. M. Siervicül on Mar 19, 2009 14:16:00 GMT -6
Note that the Organic Law already contemplates the creation of provincial courts, and specifies that any provincial courts must allow appeal to the Uppermost Cort. No new law is needed to accomplish that. Maricopa has such provision in its own constitution. I don't think we should expect that every province can or must create its own court, though, which is why national courts to handle cases arising under national law (especially in provinces too small or inactive to have their own courts) are important, and why the bill is structured the way it is.
|
|
|
Post by Deleted on Mar 19, 2009 14:27:20 GMT -6
Note that the Organic Law already contemplates the creation of provincial courts, and specifies that any provincial courts must allow appeal to the Uppermost Cort. No new law is needed to accomplish that. Maricopa has such provision in its own constitution. I don't think we should expect that every province can or must create its own court, though, which is why national courts to handle cases arising under national law (especially in provinces too small or inactive to have their own courts) are important, and why the bill is structured the way it is. Nobody is forcing any province to do anything. And while Article XVII Section 9 mentions provincial courts (if any), Article XVI Section 1 states that judicial authority is vested in the Uppermost Cort and inferior Courts established by the Cosa. Now, while a Province CAN establish a provincial court in its constitution, my reading of the law is that in order for it to be an actual judiciary, the Cosa reserves the right to grant that, making any provincial law to that effect void. So, a province can establish all sorts of things, they can have a panel of three people, a Justice, or whatever, but according to Article XVI Section 1, if the Cosa didn't make it, it ain't a court. So, there are different approaches here. But, if a Province wants to establish a court, I think a blanket authorisation for provinces to do so would be a good start. That those provincial courts might take on some federal responsibilities as being inferior courts to the Uppermost Court, I just thought would package it nicely. Just a thought, but I do want to clarify the point on provincial courts.
|
|
|
Post by Sir Alexandreu Davinescu on Mar 19, 2009 17:56:38 GMT -6
As you have said, there is no evidence that the Uppermost Cort cannot handle affairs at this present time. But there is evidence. Look in the Court thread. The Government vs. Chancery case opened in September and arguments concluded in December. It is now March and no decision has been made. Aside from this, S:reu Weckstrom was told he would face criminal charges which were forwarded to the Uppermost Cort for action, there has been no action since then. In addition, the Ministry of Defence requested judicial intervention back in January, with no response. Let's be entirely frank: Are these cases being handled so slowly because of excessive business on the part of the Cort? Inasmuch as I am aware, Justice Seirvicul is the only active member of the Cort, and that is the only hold-up. This is indelicate, but it seems pretty clear to me that we're just trying to remove any burden at all from the Cort pu Inalt barring the most extreme cases of appeal and the like, and allowing the only active member of it to delegate out all of its work. They didn't take care of these cases, I agree. But you haven't shown that they were too busy to do so; there's only a backlog because these sparse cases have not been addressed. I'm not suggesting any radical changes, but I would sooner a resolution of the Cosa (or I daresay even the Ziu) requesting that they handle those cases put before them, and a second resolution again requesting a bar exam. Aside from that, a conviction by the Uppermost Cort leaves a person with only one recourse, Royal Clemency or Pardon. That is pretty extreme. To compare it to the U.S. System, presently a parking ticket would be handled by the Supreme Court with the only hope for appeal being a Presidential Pardon. We are not a large enough nation to need redundant corts, is my position. As evidence for this, I point to your own post above and the small handful of cases that have arisen. Further, while it may seem extreme, I am not aware of any miscarriage of justice that has occurred under the combined watch of the Cort pu Inalt, Seneschal, and King.
|
|
|
Post by Deleted on Mar 19, 2009 19:41:00 GMT -6
And so your preferred course of action would be...?
|
|
|
Post by Sir Alexandreu Davinescu on Mar 19, 2009 20:22:03 GMT -6
I'm not suggesting any radical changes, but I would sooner a resolution of the Cosa (or I daresay even the Ziu) requesting that they handle those cases put before them, and a second resolution again requesting a bar exam.
|
|
|
Post by Owen Edwards on Mar 19, 2009 21:06:30 GMT -6
You substantively fail to address the issue of appeals and the issue of present and future efficiency - which do not hold entirely consist of concerns about activity of two of the Justices. And senses of the Ziu don't legally accomplish anything, either...so your concrete option to solve these three issues?
|
|
|
Post by Sir Alexandreu Davinescu on Mar 19, 2009 21:27:22 GMT -6
As to appeals, I believe that the Seneschal and King are a sufficient check and provide more than enough oversight at this time. I am not aware of any miscarriages of justice in Talossa; when would an appeals court have helped? Who wanted to appeal, or deserved clemency and didn't get it?
Perhaps with increased volume there might be a need for an inferior court, but we are a very long way from that. I have seen no reasons that suggest that three cases a year are a burden a single active Cort pu Inalt couldn't handle.
I apologize if I have no bill of my own to offer yet on this matter. Let us accept that fact with my sorrows, and continue with examination of this one.
|
|
Capt. Sir Mick Preston
Capitán of the Zouaves
Posts: 6,511
Talossan Since: 9-21-2006
Knight Since: 10-12-2010
Motto: Cuimhnichibh air na daoine bho'n d'thainig sibh
|
Post by Capt. Sir Mick Preston on Mar 19, 2009 22:38:22 GMT -6
Perhaps with increased volume there might be a need for an inferior court, but we are a very long way from that. I have seen no reasons that suggest that three cases a year are a burden a single active Cort pu Inalt couldn't handle. My Dear Friend, Senator Davis. The Cort can't reach a decision on a case that has been on their docket for 6 months. The ONLY case, btw. Increased Volume? What ...doubling the cases to ...TWO a year? The Cort can't handle the burden of ONE case. There are no barristers that are certified to argue in front of the Cort, btw. Our Cort system needs an overhaul. As it is now, it does a disservice to Talossa, and all the Citizens.
|
|
|
Post by Sir Alexandreu Davinescu on Mar 19, 2009 23:34:56 GMT -6
I agree: there is a problem. I am most emphatically not trying to ignore it.
Ignoring it, in fact, is what this legislation would do. It bypasses the problem and tries to replace almost all the duties of the Cort pu Inalt by giving them to a new entity. That's not a solution.
|
|
|
Post by Daniel Filan on Mar 20, 2009 0:44:13 GMT -6
I find myself agreeing with Senator Davis. The main problem with the current court system appears to be that it takes quite a while for court cases to get judged. Getting new judges in provincial courts does not mean that those courts will operate any more quickly in the long term. Of course, in the short term, it will be faster, simply because the judges/magistrates chosen will be currently active Talossans, but that won't stop the basic problem after a year or so, when the currently active Talossans could quite possibly turn into inactive Talossans who will take as long to judge cases as the current court. The best solution that I can personally see is shorter terms for justices of the Cort pu Inalt to coincide with shorter terms of Talossan activity, which would mean no more life-long judges. So perhaps every couple of Cosas justices would be elected along with the Ziu and whichever Senators. I don't know how workeable this is, but I think that it strikes at the heart of the problem more than either of the two proposed bills in this thread.
|
|
|
Post by Deleted on Mar 20, 2009 4:53:48 GMT -6
Let me clarify a point, my proposal to give a blanket authorisation for provincial courts is not intended to serve as a replacement for the Uppermost Cort or to even pass along most of its duties. I proposed it simply because as Provinces are now becoming more active and establishing Constitutions. While there is mention of Provincial courts in the OrgLaw, I simply am not satisfied that the OrgLaw, at present, gives provinces permission to establish actual courts without the Ziu's stamp of approval.
So, to grant that approval for any province through statutory law is my thought. And, if we're doing that, I thought perhaps allowing those justices to handle minor affairs, at the discretion of the Uppermost Cort, could be a nice thing.
Again though, I am not attempting to replace the Uppermost Cort with Provincial Courts, my aim is to expressly give Provincial Courts the authority that is, at present, only implied.
|
|
Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
|
Post by Sir C. M. Siervicül on Mar 20, 2009 9:14:51 GMT -6
Nobody is forcing any province to do anything. And while Article XVII Section 9 mentions provincial courts (if any), Article XVI Section 1 states that judicial authority is vested in the Uppermost Cort and inferior Courts established by the Cosa. Now, while a Province CAN establish a provincial court in its constitution, my reading of the law is that in order for it to be an actual judiciary, the Cosa reserves the right to grant that, making any provincial law to that effect void. So, a province can establish all sorts of things, they can have a panel of three people, a Justice, or whatever, but according to Article XVI Section 1, if the Cosa didn't make it, it ain't a court. So, there are different approaches here. But, if a Province wants to establish a court, I think a blanket authorisation for provinces to do so would be a good start. That those provincial courts might take on some federal responsibilities as being inferior courts to the Uppermost Court, I just thought would package it nicely. Just a thought, but I do want to clarify the point on provincial courts. The OrgLaw also refers to reserved sovereignty held by the provinces, and states that " all powers not vested in the Kingdom by this Organic Law shall be vested exclusively in the Provinces." I would submit that the only way to read the various clauses of the OrgLaw in harmony is to conclude that "the judicial power of Talossa" (Art XVI Sec 1) is not the same as the judicial power of each province, that the former encompasses only cases arising under the laws of Talossa (those involving acts of the Ziu or directly implicating the OrgLaw), while cases arising under provincial law fall under the authority of the provinces. Art XVI Sec 1 was, after all, patterned after Art III Sec 1 of the U.S. Constitution, which says: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." That doesn't prevent the various states from creating their own courts in which to vest the state's own judicial power. Anyways, if additional authorisation were necessary for provincial courts, it would take an OrgLaw amendment to do it. Otherwise each judge of a provincial court would have to be elected by the Cosa, and arguably each provincial court would have to be specifically created by the Cosa. If the OrgLaw says inferior courts of Talossa are to be created by the Cosa, I don't think the Cosa can delegate this authority to the provinces, any more than it could pass a law authorizing the Seneschal to create whatever courts he wants.
|
|
Sir C. M. Siervicül
Posts: 9,636
Talossan Since: 8-13-2005
Knight Since: 7-28-2007
Motto: Nonnisi Deo serviendum
|
Post by Sir C. M. Siervicül on Mar 20, 2009 9:30:27 GMT -6
As to appeals, I believe that the Seneschal and King are a sufficient check and provide more than enough oversight at this time. I am not aware of any miscarriages of justice in Talossa; when would an appeals court have helped? Who wanted to appeal, or deserved clemency and didn't get it? Perhaps with increased volume there might be a need for an inferior court, but we are a very long way from that. I have seen no reasons that suggest that three cases a year are a burden a single active Cort pu Inalt couldn't handle. The power of clemency, which the King holds, is fundamentally different from appellate judicial review. For one thing, it really only allows for mercy in criminal cases. It can't remedy a misapplication of law in a civil case. There is also a difference between trial courts and appellate courts which bears on the difficulties of the Uppermost Cort. An appellate court receives a fixed record of trial, accepts arguments about it, ponders the legal issues, and makes a decision. A trial court has to develop the record of trial, dealing with witnesses, documents and factual/evidentiary issues in a much more involved way. You'll note that even in the U.S., trial courts are normally presided over by a single judge, while appellate courts have multi-judge panels. The judicial situation in Talossa today is different from that at any previous era in Talossan history because our procedural and evidentiary rules are far more rigorous than ever before. This gives us a more mature and respectable system of justice, but in practice it has proven quite burdensome for three geographically separated justices to confer and act collectively at each stage of a trial. Especially when the nature of the job almost requires that comparatively inactive citizens be assigned to it. The problem is not that there are too many cases, but that each case is a lot more work, because we are now, finally, taking them more seriously.
|
|
|
Post by Deleted on Mar 20, 2009 12:02:38 GMT -6
Point made, and that is why they pay you the big bucks, Justice. Regarding the matter of the need for the court, I agree with many of the points Senator Davis has raised. In particular, does the lack of action of the UC on its present caseload warrant the creation of a new court? I would say it does not, when phrased as such. However, what we must look at is that we see a problem in our judicial system. We have two ways to remedy it. One is that we can create an inferior court where one judge or magistrate can handle a case, leaving the parties to option to appeal to the Uppermost Cort. The second is that we take a heavy hand on any Justice who doesn't deliver a decision in a timely fashion. The latter seems to be the course that some wish to take. However, this is, above all, the biggest bandaid we can put on the problem. Firing Justices and appointing three new people would likely give us 3 fresh Justices who would be chomping at the bit to decide the two cases before the court right now. However, that novelty would soon wear off and, without the ability to participate in the legislature or serve in the Cabinet, those Justices would likely also fall inactive and we would be right back here, deciding whether we change the manner in which cases are decided or the individuals tasked with deciding them. I am not comfortable with, and no citizen should be comfortable with their case being heard only once by a court which can sentence an individual to banishment with their only recourse being seeking clemency from the King. I think each citizen should have the opportunity to have the judicial process, which convicts him, reviewed by a higher court. As stated, there are no concrete examples where there has been a miscarriage of justice. But, the present system definitely allows for it, with nobody double checking a Justice's work. The part I like about Owen's plan in particular is that an individual magistrate can decide a case. For a relatively minor affair, this means we can have a speedy resolution rather than forcing three justices to deliberate, combating time zone differences, family issues and their day jobs along the way.
|
|