Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 3, 2020 4:44:08 GMT -6
Order. The Senate is now assembled in the Committee of the Whole for the purpose of considering the nomination of S:reu Viteu Ian Marcianüs to be a Justice of the Uppermost Court. This thread will be used to keep track of rules and schedule. Schedule of the Hearing (will be updated periodically)
Jan 3 | Committee assembled | On or before Jan 6 | Opening statement | Jan 7 at 10 TST, for two days | DA SCHIR and guest counsel DAVINESCU | Jan 9 at 10 TST to Jan 10 at 19 TST | PINATSCH and guest counsel BÖRNATFIGLHEU
| Jan 11 at 19 TST to Jan 12 at 10 TST | Gap day
| Jan 12 at 10 TST to Jan 12 at 24 TST | Rest of the time for guest counsel BÖRNATFIGLHEU
| Jan 13 midnight TST, for 48 hours (yielded earlier)
| VALCADAC'H and guest counsel SCHIVÂ
| Jan 15 at 15 TST, for 48 hours
| PLÄTSCHISCH and guest counsel DAVINESCU
| Jan 17 at 15 TST, for 24 hours
| MARCIANÜS's first guest counsel GRISCHUN
| Jan 17 at 15 TST to Jan 19 at 10 TST
| Gap day
| Jan 19 at 10 TST, for 24 hours
| MARCIANÜS's second guest counsel HM KING JOHN
| Jan 20 at 13 TST, for 24 hours (rule 15) (did not speak)
| ARDPRESTEIR
| Jan 21 at 13 TST, for 24 hours (rule 15)
| MERÞEDES
| Jan 22 at 13 TST, for 48 hours
| DEL VAL
| Jan 24 at 20 TST to Jan 26 at 10 TST
| Gap day
| On resuming, if necessary, for 24 hours
| Time allotted to Rule 15 Senators
| Immediately after
| Closing statement
| Immediately after
| Adjournment vote (debate subject to time constraints)
|
Recap of the Set of Rules for the Hearing (I would recommend everyone to read the full set of rules, found here, as the text below has no official standing) Composition
All Senators are members of the Committee. The Senator for Cézembre is fully allowed to speak and vote on the Committee. The nominee can also still vote and speak in the Committee. The Committee is chaired by the Mençei as Chairman, assisted by a Deputy Chairman selected by him. Schedule of the hearing- First, the nominee shall have faculty to make an introductory statement.
- Then, each Senator is called in order of seniority to hold the floor for two days, during which he or she shall be free to ask questions, make statements and present evidence.
- Senators can also yield part or all of their time to a colleague or a guest.
- Senators that foresee to be absent can submit their questions, evidence, statements and/or selection of guest in advance.
- Non-Senators can also take part by submitting statements or by contacting a Senator to be recognised as guests.
- When all Senators have had their two days, the nominee can make a closing statement and we move on to the Adjournment process.
Conduct of the hearing - The Chairman shall have responsibility for keeping the hearing germane and on track, making sure time limits are mostly respected but making allowances in the interest of a fair and complete scrutiny.
- Ultimately, the Chairman has discretion to use his better judgement in handling the proceedings.
- Senators shall be empowered to query the nominee for a written clarification or explanation that will be placed on the record on the first possible opportunity.
- There shall be no set limit to the number of questions from any Senator during interviews; however, the Chairman shall be empowered to entertain objections to the number or quality of questions asked.
- There will be, unless we're late, gap days between each pair of Senators [EDIT: This was revised. All Saturdays are now gap days and the Committee will rise on late Friday afternoon TST and reassemble on Sunday at 10 TST.]
Adjournment
- After the closing statement, the Committee will vote to report back to the full Senate and adjourn. The "report" is a simple sentence that describes what was done.
- Ideally, someone will propose to vote on a non-neutral report that is explicitly in favour/against the nominee; thus, the vote is also indicative of the Senate's opinion.
- If we go over time (the Call for Bills opens), unless we vote to keep meeting [EDIT: and unless a vote is in progress], we will adjourn automatically with a default, neutral report.
- Immediately after the vote passes, the full Senate will assemble again to vote to receive the report. This will be done automatically, by unanimous consent; then, the Committee is officially dissolved.
|
|
Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 3, 2020 4:49:06 GMT -6
First off, I would like to appoint Açafat del Val as Deputy Chairman, conditional on his consent. The Chairman now calls the nominee Viteu Marcianüs to make an introductory statement, on or before January 5th.
|
|
Açafat del Val
Citizen of Talossa
Posts: 112
Talossan Since: 10-15-2017
|
Post by Açafat del Val on Jan 4, 2020 20:14:14 GMT -6
I accept the duty as Deputy Chairman and await the introductory statement.
|
|
Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 5, 2020 12:14:51 GMT -6
Order. I would like to briefly point out that I was not made aware that the Government planned to switch to New Witt without certification provided by 53RZ17. As much as I would like to, the Senate will not move to the other forum except by following the procedure set by law. The hearing will continue here, as will our other ordinary business, until the Secretary of State complies with the law.
The nominee has the floor again.
|
|
|
Post by Viteu Marcianüs on Jan 5, 2020 19:35:04 GMT -6
S:reu Chair and Members of the Committee:
I sincerely apologise but I had a significant amount of work assigned to me this past Friday afternoon that required my exclusive focus this past weekend. I request a one day extension to post my opening statement.
For the duration of these proceedings, when necessary, I commit to informing the Committee if I will be unable to provide full responses within the time allotted to each member as to allow the Chair, in his discretion, to appropriately extend the period.
Respectfully submitted,
Viteu Marcianüs
|
|
Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 6, 2020 2:29:44 GMT -6
The extension is granted.
|
|
|
Post by Viteu Marcianüs on Jan 6, 2020 20:01:48 GMT -6
Distinguished Chair and Members of the Committee:
I am sincerely humbled and grateful for this opportunity to address the Committee of the Whole in connection with my nomination as a Justice of the Uppermost Cort of Talosssa. I also wish to express my gratitude to the Government for putting nominating me to this position.
My excitement at being the first to undergo this type of vetting process cannot be understated. Talossa needs to vet those that would sit on its highest cort, and I applaud the Senats for this initiative. While I lack any clue as to what may lie ahead, and if this process will sink my nomination, at least Talossa will have established a procedure for ensuring that those who sit on the Uppermost Cort are those deserving and with the legal acumen to render fair and just decisions. I think this recent events underscore this necessity more than ever.
I know my nomination has not been without controversy, and I thank those who have come out in support from the onset. It was, however, tamer than I anticipated, but this has not fortified any aspect that it would remain that way. To that end, I thank those who have questioned the wisdom in the nomination. These questions must be raised, and they should not stop at me, but should be raised about anyone that would be appointed as a Justice to the Uppermost Cort. We should not turn away from a situation merely because it challenges us, because it is hard, because maybe we do not like what someone is saying or pointing out. Perhaps those questions will cost me support and confirmation, but the process will have been fair and will have only served Talossa.
In my estimation, there are some who will not be convinced by my statements today, or my testimony in this hearing, or my closing statements. If confirmed, I would endeavor to convince them that of my merit through my conduct as a Justice, both in treating every litigant or party before me with the respect they deserve. This means that what many would label my more raucous nature must be tamed and banished from Talossa. For me to be a successful Justice, to help build the Rule of Law, to gain the trust of those who question my nomination, I must always keep an air of impartiality, decorum, and civility. I must not disparage a party, or any citizen of Talossa, no matter my personal feelings. In the United States, those who accept judgeships, in many states and certainly on the Federal level, understand that they forfeit many rights because they must be viewed as impartial by those who would seek redress from the Cort. That is a trait I should endeavor to emulate if confirmed to the Uppermost Cort.
To that end, confirmation to the Uppermost Cort would retire me from public life. Talossa is a small country and cannot always afford for its citizens to commit to fulfilling one role. However, the role of a Justice is no small task. I do not opine on any sitting Justice and their participation in other activities, and I applaud their ability to keep separate their respective roles in Talossa. But for someone like myself, I believe that a Justice must always keep an air of impartiality and fairness. Speaking only for myself and for no other person, I do not know how I can accomplish that without limiting my involvement to my role as a Justice of the Uppermost Cort.
I do not sit before you today seeking to justify my past conduct, and I am certain that many will disagree with that conduct. But what I will stress is that I am aware that to build trust in the Cort, a Justice must police their public conduct. Every person must feel respected. My feelings about the monarchy become moot when in the Cort, but my feelings must also become measured and quieter in my public conduct to ensure that, if I were to hear a matter involving the monarchy, all parties would trust that my judgment would apply the law to the facts and not stem from my personal notions of justice or be outcome driven.
But many of these will be asked in the interviews, and I want the ability to answer questions honestly and fully when asked, not attempt to answer questions by predicting what may come up. So I will move on.
As alluded to above, many of us are familiar with recent events, and the importance of a Justice to apply the law to the facts. My judicial philosophy is simple – what does the law say? What have the parties argued? What are the facts?
The Cort enjoys the awesome authority to address issues not raised by a party, but it should only exercise that authority in the absolute interest of justice. That means it should be rarely seen and seldom used. The Cort cannot be outcome driven. Of course the Cort may inform a party that its case may be weak, or that more information is needed, but it must refrain from passing early judgments that all but render it an advocate for one side. And in those extremely rare circumstances that justice so demands setting aside those restraints, there must be fully explained and settled procedure and standards for that conduct. It should not vary from one case to the next, but be settled.
Further, the Cort enjoys the burdensome power of judicial review. But that does not mean the Cort displaces the Ziu. It should not write something into the statute that is not there. It should not obviate a statute simply because it disagrees with the statute. It should not seek to render something inorganic simply because it does not agree with the concept. Only those statutes that are plainly inorganic should be struck down. And it should not be for some amorphous concepts of justice, but by a thoroughly explained procedure and legal standard that is easily accessible to every Talossan followed in all cases.
I have taken enough of your time and will close out by highlighting some of what I would hope to achieve as a Justice. First, the Cort must do a better job at explaining itself and its procedure. The procedure must be easy to understand and fully accessible and fit with Talossa’s needs. And the Cort must commit to adhering to that procedure. Presently, the Cort has minimal procedure and seemingly makes it up as it goes. I am working on some basic procedural outlines that I hope to share with everyone shortly, and I would hope that the Cort would adopt.
Next, I would discontinue all matters involving myself and take a close look at all pending matters. That which I am not forced to recuse myself, I would inquire with the Justices about disposition to clean the docket. If the parties were to consent, I would offer to issue a report and recommendation for the presiding Justice to adopt with the appropriate objections. I think this would help get through some backlog.
I would also work to finally establish the National Talossan Bar and get new attorneys admitted. Talossa can no longer acquiesce to the Cort’s dereliction in its duty in this regard.
Additionally, I would work in a public committee with members of any political party that wished to join to come up with the most acceptable ways within the realm of possibility to fix the judiciary.
Finally, and do not let anything I have said suggest otherwise, I would work with all members of the Cort, offering my services and help where welcomed and needed, to foster a collegial environment. The Cort must work as a team, even when we disagree. But our disagreement should be based in our interpretation of law, and if we do include it in decisions, should be fully explained. Talossa deserves, and requires, this.
There is so much I can say, and certainly just under 1,400 words is saying a lot, but I want to invite questions. So with all of this said, I am excited to begin questioning.
Thank you.
Viteu Marcianüs
|
|
Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 7, 2020 9:53:01 GMT -6
Thank you, Senator Marcianüs. The interview period is now open. Senators, please take notice of the amended schedule as posted at the beginning of this thread.
I now have the floor for two days.
|
|
Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 7, 2020 10:47:32 GMT -6
Senator Marcianüs, first off thank you for agreeing to take part in this process. I am pleased that it is being taken seriously by you and by other people involved in and off the Senate and, while you are not under oath, you no doubt are fully aware that you will be held to your word if confirmed.
I have had the pleasure of serving with you in Cabinet for more than a year and a half, while I was serving as Prime Minister and you were the Attorney-General. It's been three years now since we were both sworn in. I must say that, while I thought most of our time together was positive, I don't recall with particular pleasure the reopening of the ESB Affair, which a lot of people in my party felt was seeking to rewrite the history of one of the most egregious cases of fraud in Talossan history. Handling it, and the horde of different opinions and comments I had received, was probably the most uncomfortable moment of my time as Seneschal, as was uncomfortable to me my decision of letting the case proceed without obstructing or intruding. I won't dwell on the merits of the case, and for the record I do think that today the Leader of the Opposition is a perfectly rehabilitated man, but I still think that judgement was wrong and it was also a bad idea to seek to reopen the case.
Would you briefly comment on the case, with more than two years having now elapsed? Has your opinion of it changed or not, and what do you think about its implications on Talossa as a community? If a similar case came up while you were on the bench, would you render a similar verdict?
|
|
|
Post by Viteu Marcianüs on Jan 7, 2020 19:26:04 GMT -6
S:reu Chairperson, I do not recall if I heard this in law school or when I began practicing law, but in conversation, it was stressed to never preface an answer to a judge with “that’s a good question Your Honor.” The Judge knows it is a good question, hence why they asked it. I relay this because I would prefer to avoid, to the best I can, prefatory qualifiers.
Appreciating some irony, that’s a really excellent inquiry. The ESB affair was painful for many, and certainly has not escaped Talossa’s collective consciousness; I doubt that it ever will. I do think it is important to qualify what the cort did – the cort vacated those crimes brought under statutes not in effect at the time, affirmed those parts of the statute that were, and partially vacated ESB’s sentence. His criminal record remains intact. I still maintain that seeking this relief was appropriate under the circumstances. The people must know that their rights are not compromised merely because the Government accuses them of criminal conduct. Talossa is bettered by having some authority on harsh and excessive punishment, what can constitute a crime, and how charges should be brought. Experience has taught me that I should have approached the matter differently. I forgot that not everyone in Talossa practices law outside of Talossa. I did not appreciate that even those who do may practice law are not necessarily passionate about it. As the cliché goes, hindsight is 20/20.
My approach was too rigid and formal and did not appreciate that not everyone acted with malice or an intent to deprive someone of their rights. The matter should have been approached differently with the issues narrowed. I needed to take a step out of my head and remember the nature of Talossa and what it requires, and figure out how to explain what I was trying to convey in terms that apply to Talossa. I certainly regret the collateral issues that arose. (*Addendum* I would point out that my employment at the time wholly consisted of reviewing matters for errors such as these.)
I did take exception to how the cort handled the matter, and I think that remains problematic today. Mainly—the cort should not act as an advocate and needs to focus on the record before it. To answer your question—I do feel that the end result was appropriate, but I would change how I handled the matter. There are many positive implications that may not seem obvious, such as those outlined above. But the negative implications are also there. Looking back, we saw signs of the cort potentially getting a bit wayward. That should have been addressed. This needs to be addressed. But, as I stated, ESB remains convicted, and he served a punishment. We also have stronger protections for individual rights.
To your final question, as to whether a similar case came up if I were on the bench, and how would I render a verdict, I am slightly uneasy answering how I would issue a decision because the facts will vary by case. If there is a matter on point, that must guide my decision. Hypothetically, if the initial matter came before me, I would have returned the charging instrument with explicit direction on what needs to be done with leave to refile. If the type of matter that I commenced as A-G came up, I would need to discuss whether the ESB decision is applicable or not. Likely, I would refer it to the whole Uppermost Cort to issue a definitive decision. Also, under the statute passed thereafter, I would have to ensure that special counsel is appointed to argue against the petition.
To the extent I had to render a verdict, it would stay within the law and the parties’ arguments, not other issues I think are important. That means I do not get to strike down statutes I simply do not like. I should not touch arguments that are not raised by any party unless there is a patently organic question that, failing to address, would frustrate the Organic law. If I felt something needs to be address, it should be provided to the parties in a way that does not advocate for one position, and it certainly should not frustrate the statute or obviate its effect.
At the end of it all, the ESB matter resolved that the conduct was still criminal under Talossa law, but the cort should be reasonable in sentencing. I think that's good. However, the cort's handling of the matter showed signs of it overstepping its authority, and it's something I would strive to reign in.
|
|
Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 8, 2020 5:51:32 GMT -6
Thank you, S:r Marcianüs. Of course, in the matter of the final bit of my first round of questioning, I would not want to put you in a situation where you would have to recuse yourself from a future case, if at all possible. I failed to mention it earlier but I want to make it clear now. My following question - which will also be my last, as I don't think I can squeeze an extra one before calling on the guest counsel to hold the floor - pertains to the comments in your statement about the judiciary being "broken", or at least needing to be "fixed". We are all aware of the backlog of cases that has piled up, and no doubt many of us may feel something has to be done; you in particular have been responsible for multiple proposals to reform the Judiciary, and have been the primary sponsor of some bills that have made it into law, for example the one reforming the National Bar of Talossa. I'd like to give you a chance to explain a bit more in detail your opinions about the current state of the Judiciary, what you would do as a Justice to redress that, and a brief outline of your vision for the Judiciary in the years to come. Once this question has been answered, or six hours have elapsed, my guest counsel Sir Alexandreu Davinescu is invited to hold the floor for the remainder of my allotted time. In the event the guest counsel asks his first question before the nominee has answered my second question, I advise the nominee to post both answers, identifying which one is for which question.
|
|
|
Post by Viteu Marcianüs on Jan 8, 2020 8:21:33 GMT -6
I do not shy away from using the word “broken” to describe the present state of our judiciary. Nor do I assign any blame for its problems. The issues plaguing the judiciary include an absent Cort; unclear or incomplete procedure; broad interpretations of Organic Law provisions regarding the Cort’s authority; its unwillingness to recognize its own Organic limitations; and, at times, a that Cort that acts more as an advocate or sees itself as a Legislature. For clarity, I mean “absent cort” to encompass both those matters that never even get before a Justice, or those matters where the Justice appears once or twice but never issues a final decision. I do not disparage any Justice, and I hope that I am confirmed so I can work with them closely to remedy some of those issues. However, the problem is systemic. No part of me doubts that each Justice understands the importance of the Cort. I will not hypothesize as to the cause of why certain Justices have been absent, and we all appreciate that life happens, but we must make it a point to identify the problem in order to fix it. Talossa, generally, is not a litigious country. Nor do I want to see it become litigious. But that the work is not constant does not mean it should be forgotten. I do want to address potential systematic causes under the structure under the Organic Law. In its current iteration, Article XVI of the 1997 Organic Law sets the number of Uppermost Cort justices at five and permits appeals to a panel of three justices. If certain criteria is met, an appeal may go to a single justice but that decision cannot bind a lower court. Honestly, on paper, that system could work, but it requires active Justices. At the moment, we only have four justices, many of which are not accessible or do not appear. I also note that Article VIII of the 2017 Organic Law, as adopted, generally maintains this structure but removes the ability of a single justice to hear an appeal. Talossa is a small country, and there will be no quick or easy fix to the judiciary. But we include too many aspects of the composition of the Judiciary, how it should decide cases, etc. in the Organic Law. What we need is a pragmatic and plausible restructuring to repair the judiciary today, but is also flexible enough to adept to whatever Talossa’s needs are tomorrow. Nothing I am proposing may be successful, I will concede that, but we must at least be willing to discuss changes, implement changes, and give them a try. To that end, many of the provisions in the Organic Law instruct the Uppermost Cort on judicial philosophy. For instance, the provision on unclear or confusing language in the Organic Law is unnecessary. I personally prefer the approach that the Cort should refrain from touching constitutional issues if it can, and only reach the issues necessary to decide the matter. Section 5 (same in 1997 and 2017) is wholly unnecessary and, truthfully, not really followed anyway. Section 13 (Section 8 in the 2017 Organic Law) is largely unnecessary. I would like to see the Anglo-American law reference removed. But just the entire provision is unnecessary, confused, and abused. That is, I do not read “Any judge or justice may issue court orders or injunctions according to the generally accepted principles of Anglo-American law” to mean anything other than, when a party brings a matter to the cort and seeks specific relief, it may then issue an order or injunction. I do not read it to mean the Cort has authority to just issues orders and injunctions carte blanche. Put another way, the Organic Law should set forth the structure of the Uppermost Cort and its authority, permit the Ziu to create inferior Corts, and leave it at that. I am not opposed to provisions that would allow for some type of reprimand for bad behavior (not for bad decisions) up to and including removal. Structural changes I have proposed and am proposing include reforming the Uppermost Cort back to a three Justice panel, which may be increased by statute as Talossa’s needs grow, or reduced if there is no need for more Justices. Because I’m overly concerned with cort packing (I do live in the US after all), I think such an Organic scheme should contain a maximum number of Justices and a minimum. Further, when there is no inferior cort in existence, a Justice can sit as a nisi prius court (i.e. trial cort). The inspiration for this stems partially from our present structure and partially from the US approach to riding circuits practiced from roughly 1789-1869 (two Supreme Court justices and a local district court judge (trial court) would hear circuit appeals instead of having independent circuit appellate judges). Of course, I would prefer a three Justice Uppermost Cort with statutory inferior corts that would act as corts of original jurisdiction. I am mindful that Talossa is small and hence it makes sense to, at this time, permit a UC Justice to sit as a trial judge. But let’s implement a system that will address Talossa’s needs now while containing flexibility to adept as Talossa grows. I think reforming the Cort back to a three Justice panel with permission for a Justice to sit as a nisi prius court when no inferior corts exists may help. Talossa is a small country; it does not need a huge judiciary. It needs a working one. But the Organic Law should not be amended every time the Corts need updating. The Cort also needs to do a better job at checking its authority. If we were to maintain the present structure and instruction in the Organic Law, the Cort needs to actually explain how it is reading something according to the plain meaning of the words, or why it has the most just and equitable understanding of the law. I view the proscription against Senators sitting as a Justice to be questionable. Interesting fact about the present 1997 Organic Law, it proscribes the King from being a Senator, a Member of the Cosa, Seneschal, Secretary of State, and a Justice. It contains 27 references to the Secretary of State and eight to the Chancery, but never says the Secretary of State cannot be a Seneschal. Yes, the Secretary of State cannot be an MC or Senator, but I see (and perhaps I am missing it) no provision that says the Seneschal must be an MC or Senator. A Senator can be Seneschal. (I am not looking at statutory limitations by the way.) That said, it makes perfect sense to me that we would not want the King or Secretary of State or Seneschal sitting on the Cort. That is, at most, three or four individuals. But the proscription on a Senator sitting as a Justice, and thus precluding an additional eight potential citizens, boggles my mind a bit. I think we can potentially find great minds to sit on the Cort if we removed this needless restriction. My recommendations always include some type of term limits that generally favor automatic re-affirmation or a lower threshold to reaffirm a Justice. Talossa exists on a different time continuum than the rest of the world, and a year of events can easily be three years of events in larger countries. Allowing for the Ziu to periodically determine if a Justice is deserving to keep their position without needing to introduce removal legislation is a good thing. It also gives the Justice an easy out if they wish to retire. I am of the mind that we should aim to keep Justices in their position for long periods to allow for development and consistency of law, so I have consistently proposed five-year terms that may be extended to 10. I stand by that proposal. Turning to my next point regarding unclear or incomplete procedure, I think we have seen this come up in a lot of recent cases. Parties post as they see fit, the Cort ostensibly allows everyone to include their thoughts, no one really knows what to expect next. This hurts the Cort and Talossa. Talossa needs codified procedure set and utilized by the Cort. I recognize that the complex civil and criminal procedure found here in the US is not appropriate for Talossa’s needs, but looking at the basic parts of it, such as how to bring a suit, what a complaint should state, general motion practice, discovery, etc. in both criminal and civil procedure, should be published in a clear and concise matter that allows for flexibility when unique circumstances appear. I have been slowly working on something to this effect that I hope to finish in the next month or so to present to the Ziu or, if affirmed, the Cort. Part of that procedure would include “fill-in” forms with explicit instructions of what needs to be contained so that anyone can access the corts and understand what needs to happen. I did touch on my final two points above—namely the Cort not recognizing its own authority and acting more as an advocate. To the first point, the Uppermost Cort needs its own Marbury v. Madison moment. For those who do not know what I’m talking about, it is the seminal US Supreme Court case from 1803 that established constitutional supremacy, that recognized the Supreme Court’s power of judicial review but also that congress cannot restrict or expand the Court’s authority, and the Court cannot expand its own authority. Right now, I think the “order and injunction” clause is understood beyond its breadth and used in an inconsistent manner to justify judicial activism. That should stop. Finally, Talossa has adopted the common law as developed in England, the US, and, basically, the Commonwealth countries. I advocate for the common law because I’m accustomed to it. I also have some reservations about an outright adoption of the civil law system as practiced in France and elsewhere. But I digress. The common-law legal system tends to favor the adversarial proceedings, and the civil law tends to favor the inquisitorial proceedings. But common feature does not, in my mind, connote requisite aspect. In that regard, I would be open to Talossan corts taking on a more inquisitorial role, provided the burdens of proof remain in place, there is explicit procedure on how this will be done, and that all parties are aware that is how the proceeding will continue. At the moment, however, in some matters, the cort seems to be trying to act in both an adversarial and inquisitorial manner that leaves many of us scratching our heads. When it does this, the cort seems to be taking on the role of advocate and allowing another side to put their feet up while their job is done for them. This must end. The Cort must be impartial to all parties, and give every party a reasonable opportunity to make and address arguments, introduce evidence, etc. If I am appointed, I would seek to work within the cort to discuss the merits of different approaches so we can publish advice on how the Cort will hear cases, what it expects of parties, and when it will ask for more information.
|
|
Lüc da Schir
Senator for Benito
If Italy wins a Six Nations match I will join the Zouaves
Posts: 4,125
Talossan Since: 3-21-2012
|
Post by Lüc da Schir on Jan 8, 2020 9:23:24 GMT -6
Thank you for your answer. I am hardly an expert on judicial topics - indeed few of us are, and as you may recall, you had to stop me once when I barged into the UC with an offer to "help set the facts straight" by providing extra information - but I nevertheless take great interest in these matters and I too want to see all branches of state in good health, and therefore support some degree of reforms. I yield the rest of my time - that is, until 16 UTC tomorrow, or in 25 hours from now - to my guest counsel, Sir Alexandreu Davinescu.
|
|
|
Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:24:48 GMT -6
Thank you, Senator da Schir. I am grateful for this opportunity to question the nominee. I should begin by noting further that the nominee himself proposed that I speak at this hearing. That is appreciated.
Senator Marcianüs, thank you for your time. I have a few questions.
|
|
|
Post by Sir Alexandreu Davinescu on Jan 8, 2020 10:25:13 GMT -6
1. In the past few years, you have expressed fiery and frequent contempt for several people in the Talossan legal community when they have strayed from your view (and the view of most of the American legal community) when it comes to legal concepts and courtroom procedures. I know that Magniloqueu Épiqeu da Lhiun, Ián Tamorán S.H., and Dr. Txec dal Nordselvă have each experienced your unhappy scoldings, for example. And your own commentary and briefs are often thick with your erudition. But Talossa's legal community has been built by amateur enthusiasts from the beginning. Until very recently, all of our important precedents have been created by people who never went to law school, but simply have an active interest in the ideas of political science and legal principles. Indeed, the bench currently only has a single jurist who went to law school, Dama Litz. This is part of the joy of Talossa. It's a country that's small enough that you can take part in activities or institutions that you'd never get to experience in your workaday existence. You can be a scholar or a lawyer or a politician or a civil servant, no matter your experience or background. For many people, this is the main point of Talossa. Given your clear personal predilections for having things done and expressed at a level and in a manner difficult to attain without formal training, how will you make room for enthusiastic amateurs both in our legal profession (thinking here of the bar exam) and in your courtroom specifically?
|
|