Üc R. Tärfâ
Talossan since 3-8-2005
Deputy Fiôván Secretary of State
Posts: 760
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Post by Üc R. Tärfâ on Jan 2, 2014 15:43:23 GMT -6
That's why I always thought Talossa needs a proper judicial code. I think there's a huge misunderstanding. The Petitioner is not a native english speaker and he doesn't live in an Anglo-Saxon country with a common law system. I don't think he asked for a "judicial review" as you, Hon. Adjudicator, understood. After reading the ruling, because I didn't understand it, I googled "judicial review" and I found out what "judicial review" means for you anglo-saxons! There's even a page in the Italian Wikipedia called Judicial Review in english, because it's a concept alien to our system. I think he was indeed asking the Landsdoom simply a judicial review --> a review of the actions of the Office of the SoS by the Judiciary on whether the SoS fulfilled its duty as prescribed by the law. The answer to this question should be "no" imho.
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Üc R. Tärfâ
Talossan since 3-8-2005
Deputy Fiôván Secretary of State
Posts: 760
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Post by Üc R. Tärfâ on Jan 2, 2014 16:09:22 GMT -6
I'm writing a new petition.
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Post by D. N. Vercáriâ on Jan 2, 2014 16:12:14 GMT -6
I have to read all this tricky stuff tomorrow again, as it's bedtime here. Anyway I've got a feeling that S:reu Asmour's complaint has been shot down for scientific, theoretical reasons. Apparently he doesn't tell a judicial review from a simple complaint about violations of formal rules and rights, and so the ruling of the Landsdoom is missing the core of the issue as well.
He couldn't cast a vote when he should have been entitled to cast a vote, in his opinion, that's what the case is about. The reply is somewhat incomprehensible, aside of two letters that are reading "NO".
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Sir Tamorán dal Navâ
Shackamaxon man/Can you tell me where you stand?
Posts: 772
Talossan Since: 2-21-1998
Motto: Cedo nulli.
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Post by Sir Tamorán dal Navâ on Jan 2, 2014 16:39:40 GMT -6
That's why I always thought Talossa needs a proper judicial code. And in the Republic, we had one! I designed it, based on the idea that every bill from the Parliament that passed would then be "encoded", that is, given a proper place in the outline. This provides easier reference, either for lawmakers looking not to reinvent the wheel, executives looking to find the correct wording of enforcement, and the judiciary as well. And my initial idea was that teh only part of a bill that was law was after the "Therefore" (preceding that was flowery language or some legal justification), so that would be the only part that would be encoded. I think he was indeed asking the Landsdoom simply a judicial review --> a review of the actions of the Office of the SoS by the Judiciary on whether the SoS fulfilled its duty as prescribed by the law. The answer to this question should be "no" imho. I cannot provide that, for the reasons I listed, Ugo. Specifically this part: If the petitioner feels the law has been violated (and they are perfectly fine to do so), then a suit should be brought. I do not see it is the Landsdoom's duty to declare a crime has been committed just by reviewing the facts. That ends up being TWO tasks: investigation and deliberation. Investigation is *not* the duty of the courts; it's the duty of an attorney-general or other prosecutor. The courts have the case presented to them, giving each party their fair say, and tehn deliberates. If I was to issue a judgment based on the petition, then I would be denying the Office of the Secretary of State the opportunity to defend themselves. And that's not acceptable. The pursuit of justice is not an acceptable excuse for violating the rights of the individual.I understand what the petitioner was trying to accomplish, but I disagree that this is the mechanism with which to accomplish it.
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Üc R. Tärfâ
Talossan since 3-8-2005
Deputy Fiôván Secretary of State
Posts: 760
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Post by Üc R. Tärfâ on Jan 2, 2014 16:46:16 GMT -6
If the petitioner feels the law has been violated (and they are perfectly fine to do so), then a suit should be brought. I do not see it is the Landsdoom's duty to declare a crime has been committed just by reviewing the facts. That ends up being TWO tasks: investigation and deliberation. Investigation is *not* the duty of the courts; it's the duty of an attorney-general or other prosecutor. The courts have the case presented to them, giving each party their fair say, and tehn deliberates. If I was to issue a judgment based on the petition, then I would be denying the Office of the Secretary of State the opportunity to defend themselves. And that's not acceptable. The pursuit of justice is not an acceptable excuse for violating the rights of the individual.I understand what the petitioner was trying to accomplish, but I disagree that this is the mechanism with which to accomplish it. Ehm, Hon. Adjudicator... That's not what I understand from Title II, Section 8 of the Electoral Law: A citizen may petition the Landsdoom for a judicial review of an election if he/she feels that his/her rights under the constitution and law of Fiôvâ have been violated. On receipt of such a petition a judge of the Landsdoom shall conduct an inquiry into the charges and shall present his/her finding no later than one week after the receipt of the petition. In the event that the charges are upheld by the examining judge, the Landsdoom may order that: - there be a recount of the ballots by a person or persons independent of the Office of the Secretary of State, and that the result of this recount shall be certified as the official result of the election - that the election be declared void and a new election held under the procedures outlined in this Act.
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Sir Tamorán dal Navâ
Shackamaxon man/Can you tell me where you stand?
Posts: 772
Talossan Since: 2-21-1998
Motto: Cedo nulli.
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Post by Sir Tamorán dal Navâ on Jan 2, 2014 17:19:32 GMT -6
I understand that, Ugo. I also disagree with the idea that the Landsdoom is an investigative body, meant to bring charges. How is it legal to overturn an election without the Office of the Secretary of State having a say in the case? It's a matter of "instant justice": things didn't go the way I like it, I petitioned the Landsdoom, the Landsdoom had a week to throw out the election results, the SoS never has to defend him/herself. That's a bad law. I should be investigating and overturning that law, as it compels a judiciary to act as a constabulary as well as a court. In addition, I have done my homework, and I have dug into the case, and I will tell you this: I will not issue a judgment to overturn an election of any sort without due process. And any process that circumvents the right of the accused to address the charges is not due process. Here's the stuff in the Covenant of Rights and Freedoms that I feel applies here: - Fifth Covenant: Any person charged with an offence shall be presumed innocent until proven guilty, and has the right to request information on his legal rights. No accused person shall be twice put in jeopardy of life, liberty, or property for the same offence, or without due process of law; nor shall any citizen be compelled in any criminal case to bear witness against himself. Excessive fines, and cruel and bizarre punishments, shall not be inflicted.
- Ninth Covenant: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury or tribunal of the Crown. The accused shall have the right to be informed of the nature and cause of the accusation, to confront the witnesses against him, and to have subpoena power to obtain witnesses in his favour. The accused has the right to have the assistance of counsel for his defence.
- Tenth Covenant: Anyone whose rights and freedoms, as guaranteed by these Covenants, have been infringed or denied may appeal to a court of competent jurisdiction to obtain such redress of grievances as the court considers appropriate and just in the circumstances, but the award granted to the plaintiff for punitive damages shall not exceed that granted for compensatory damages.
This law seeks a decision done in a speedy manner that circumvents or violates the Fifth, Ninth, and Tenth covenants. In the Fifth, the SoS is innocent, and therefore the law cannot be used to declare him guilty. In the Ninth, I'm expected find him guilty without a trial. In the Tenth, speeding through a decision and overturning an election is not something this court finds appropriate and just, as it would not give the accused an opportunity to defend themselves. Again: the pursuit of justice is not an acceptable excuse for violating the rights of the individual. I am not denying the petitioner (or his fellow petitioners) the right to redress this grievance; I am asking them to use a more appropriate mechanism with which to do so. I will not be compelled to give a decision on this matter that circumvents the rights of the accused any more than I would give a decision that violates the rights of the accuser. It is the decision of the Landsdoom that the petition is lacking in merit. Fortunately, there is another means by which the petitioners can seek and receive justice — lawsuit. This is, by the way, the recommended means, as outlined in the Decision.
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Sir Tamorán dal Navâ
Shackamaxon man/Can you tell me where you stand?
Posts: 772
Talossan Since: 2-21-1998
Motto: Cedo nulli.
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Post by Sir Tamorán dal Navâ on Jan 2, 2014 17:28:26 GMT -6
Apparently he doesn't tell a judicial review from a simple complaint about violations of formal rules and rights, and so the ruling of the Landsdoom is missing the core of the issue as well. No, sir. The Landsdoom completely comprehends the core of the issue. The core of the issue is that the petitioner feels the Office of the Secretary of State did not carry out its duties in providing protection of the petitioner's rights, as outlined in the law. But the core of the issue should be addressed fairly. And a decision of overturning an election without the accused being allowed to bring their case before the courts publicly is inherently unfair. He couldn't cast a vote when he should have been entitled to cast a vote, in his opinion, that's what the case is about. The reply is somewhat incomprehensible, aside of two letters that are reading "NO". The reply is based on the idea that the accuser's rights are better addressed and protected via another legal means. The case has no merit as a petition. Without merit, there cannot be a decision. It does, in my off-hand opinion, have vast merit as a lawsuit. The Landsdoom is not a retail store complain department. It does not exist so that you can complain about an employee at the store, and we have to reprimand the employee at your request. It exists to provide you an opportunity to be heard and answered. And if you involve an additional party (or more), then that other party has the right to defend themselves. Rework the petition into a lawsuit and it will be heard. Frame it as a petition to gain a massive legal decision while compromising the rights of those accused and we have a problem. Doing it NOW doesn't mean compromising on doing it RIGHT.
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Sir Tamorán dal Navâ
Shackamaxon man/Can you tell me where you stand?
Posts: 772
Talossan Since: 2-21-1998
Motto: Cedo nulli.
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Post by Sir Tamorán dal Navâ on Jan 2, 2014 17:30:24 GMT -6
If the Landsdoom were to carry this out as specifically proscribed here, then the Landsdoom would be in violation of the Organic Law.
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Post by C. Carlüs Xheraltescù on Jan 2, 2014 17:37:58 GMT -6
If the Landsdoom were to carry this out as specifically proscribed here, then the Landsdoom would be in violation of the Organic Law. Presumably that's applicable when the petition doesn't concern one individual's conduct in particular?
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Üc R. Tärfâ
Talossan since 3-8-2005
Deputy Fiôván Secretary of State
Posts: 760
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Post by Üc R. Tärfâ on Jan 2, 2014 18:09:07 GMT -6
I disagree with your disagreement Hon. Adjudicator. I understand that, Ugo. I also disagree with the idea that the Landsdoom is an investigative body, meant to bring charges. How is it legal to overturn an election without the Office of the Secretary of State having a say in the case? [...] In addition, I have done my homework, and I have dug into the case, and I will tell you this: I will not issue a judgment to overturn an election of any sort without due process. And any process that circumvents the right of the accused to address the charges is not due process. The point is, that the Law doesn't require a lawsuit. The aim of this is not to bring a charge against the Secretary of State of failing to fulfill his duties; but whether or not the election has been conducted according with the law, and so whether or not the election should be declared void. The Landsdoom is not required to rule against an accused person, but to rule on the election. The Landsdoom is not required to find someone guilty. The Landsdoom is not required to take action against the Secretary of State. This is not a matter of criminal or civil law, but of administrative law. Those Convenants are not violated because they are not relevant in this case. The Fifth is not relevant becasue there isn't a person charged with an offence. The Ninth is not relevant because this is not a criminal prosecutions. The Tenth in not relevant because there ins't a person accused to whom the opportuntiny to defend himself should be given. The Landsdoom is not asked to rule if the SoS committed an offence, but the Electoral Law give to the court the ability to rule wheter the election was conducted accordingly with the law.No one is required to exercise his right to defend himself. The Landsdoom has to verify the correctness of the election, the Secretary of State it's not a defendant, the Secretary of State is required to answer to the inquiries. The inquiry should rule wheter or not the law has been violated, and whether or not the election should be declared void. The law doesn't press charges against the SoS. That you cannot decide unless this question is brought to the Landsdoom. [/quote] Here you are suggesting that it's not the election that should be questioned, but instead that a charge must be pressed against the Secretary of State. It's not up to you to decide which is the appropriate means. In this you are overstepping the consitutional precedence of law defined in Article 9 of the Consitution. Unless a provision of the law is ruled inconstitutional, in contrast with a federal law or inorganic; a law approved by the General Assembly takes precedence over a decision of the Landsdoom.
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Sir Tamorán dal Navâ
Shackamaxon man/Can you tell me where you stand?
Posts: 772
Talossan Since: 2-21-1998
Motto: Cedo nulli.
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Post by Sir Tamorán dal Navâ on Jan 2, 2014 18:57:55 GMT -6
The point is, that the Law doesn't require a lawsuit. The aim of this is not to bring a charge against the Secretary of State of failing to fulfill his duties; but whether or not the election has been conducted according with the law, and so whether or not the election should be declared void. The Landsdoom is not required to rule against an accused person, but to rule on the election. The Landsdoom is not required to find someone guilty. This is not a matter of criminal or civil law, but of administrative law. That is true if you overlook something you see repeatedly while reading the law: Why the words "charges" unless there is someone or something being charged? How can a law be violated if there's no one around to violate it? Are you seriously suggesting that an individual's rights are being violated, but that nobody is actually being accused of having committed the violation? I've heard of victimless crimes, but I've never heard of perpetratorless crimes. The petitioner states "feeling that my rights under the constitution and law of Fiôvâ have been violated"... violated by whom? Against whom are these charges (the word used by the very law you quote) brought? You cannot violation without a violator, now, can you? In addition, this law says if one person feels they are not given sufficient opportunity to vote, then instead of allowing them to vote, everyone's votes are thrown out. If the court is compelled to void an election, then the actions or inactions of the SoS are being judged as violating the law, and therefore the SoS is deemed guilty. Right — it's got the weight of a trial but with none of the benefits. Except that there is. The Landsdoom is not an attorney-general. If, in the pursuit of carrying out the provincial law, the Landsdoom is guilty of violating federal law, then what? You are asking the Landsdoom to speed through a decision. A decision that would overturn an entire election, thereby making the already-cast votes null and void, requiring an entirely new election. Using this mechanism to do so would be a very bad idea — especially since the law seems to hamstring the Landsdoom to two options: recount or void. There are no grounds for a recount, as there is no compelling evidence that there has been a failure to count the votes correctly. There are no grounds for voiding the election, since the argument is that someone was not given adequate notice to vote. Someone not being given adequate notice to vote shouldn't lead to voiding the votes already cast; it should lead to a new proper opportunity for them to vote. Look at the Organic Law, Article XVI, 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 Landsdoom has ruled, according to law. Judicial review, in the tradition of Anglo-American law (Section 13: "Any judge or justice may issue court orders or injunctions according to the generally accepted principles of Anglo-American law."), does not include reviewing the actions or inactions of a public body and acting against those actions or inactions. It includes deciding whether forthright execution of a law is a violation of the existing, and often precedent, law. And, as such, in carrying out he duty of the Landsdoom, I did review the facts, and I did review the law, and I have found that the only valid execution of the Fiôvân Elections and Referendums Law that does not violate the precedent law is dismissal, since there is a better way to handle this. In addition (addressing your accusation that I have somehow "overstepp[ed] the constitutional precedence of law"), I suggest you look at Section 5 again: "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." Now, if you'd like, I can put my justifications into the Decision as an addendum. But I have not overstepped my bounds nor have I acted in any way that is extra-legal or illegal. The original intent of the law was to afford citizens ample opportunity and notice to vote. I have seen no evidence that the petitioner has been denied his vote. And unless you know of this being otherwise, I would suggest you consider not further pursuing this line of reasoning, or make a specific effort to redress the grievance in such a manner as is still available to the petitioner (on whose behalf you apparently are advocating, which is odd, since no legal representation on behalf of M. Asmour has been brought to my attention). The dismissal has been issued.
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Post by D. N. Vercáriâ on Jan 3, 2014 2:57:53 GMT -6
Anyway, Cxhn Asmoûr is saying that he wasn't properly informed about the Senatorial election in Fiôvâ, and when he eventually wanted to vote, he was told that the election was over (while in three other provinces the ballot boxes in the Senatorial race were still open).
He says that this is unfair, and that therefor the election has to be re-run. Others say, that this is not or only a little bit unfair, so therefor the election is over, period. He was told to bring his case to the Landsdoom, if he thinks that thus some of his civil rights were withheld.
So are you saying that the Landsdoom isn't entitled to make a decision in this question? In, say, fifty words or less? Or are you saying that Cxhn Asmoûr simply has to stick his case into a different envelope, one with an other word than "petition" on it?
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Üc R. Tärfâ
Talossan since 3-8-2005
Deputy Fiôván Secretary of State
Posts: 760
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Post by Üc R. Tärfâ on Jan 3, 2014 6:08:24 GMT -6
He's saying that he should not question if the election was run as prescribed by the law ,as the law says it's the duty of the Landsdoom, but that he should charge instead the SoS of failing to perform his duties in a civil suit. But it's not the same thing! These fare two different things. I'm afraid that this could be a precedent where the only way to adress a wrong action is to bring the actor in a civil suit. A terrible future to live in. If a police man make an arrest without following all the requirements of the law, the only way to declare the arrest void is to charge the police man??I'm planning to bring this Decision before a Court.
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Post by D. N. Vercáriâ on Jan 3, 2014 7:27:40 GMT -6
He's saying that he should not question if the election was run as prescribed by the law ,as the law says it's the duty of the Landsdoom, but that he should charge instead the SoS of failing to perform his duties in a civil suit. But it's not the same thing! These fare two different things. I'm afraid that this could be a precedent where the only way to adress a wrong action is to bring the actor in a civil suit. A terrible future to live in. If a police man make an arrest without following all the requirements of the law, the only way to declare the arrest void is to charge the police man??I'm planning to bring this Decision before a Court. This is indeed absurd. Cxhn Asmoûr wants to see his right to vote restored, positively, as simple as this - he is not interested in playing "whodunnit" or seeking a cheap revenge.
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Post by Magniloqueu Épiqeu da Lhiun on Jan 3, 2014 7:40:41 GMT -6
Judge, your jurisdiction in this Court is NOT to interpret organicity of a law. It is up to the Uppermost Court, and you are not acting in that capacity.
If you question organicity of a law you have to abide by as Landsdoom, refer the case to the Uppermost Court, as is custom.
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