| Charter of the High Court of the South Pacific |
I am of a similar opinion, there has been very few times a prosecution arm has been needed to be used in the past, would pretty much be an honorary position with nothing to do.
Alright then, we will not have a prosecution arm.
I'll leave the Charter here for a full review, to raise any other issues of contention before bringing it before the Assembly.
We could still bring back that old system where we maintained a list of volunteers for public defenders and such, that way we have people of some kind available if we ever do need it.
(02-14-2015, 11:27 PM)Farengeto Wrote: We could still bring back that old system where we maintained a list of volunteers for public defenders and such, that way we have people of some kind available if we ever do need it.That is what I intend to do, through some sort of an Associate Justice Apprenticeship Programme, to not only maintain a list of volunteers, but also ensure that these volunteers have sufficient knowledge of the law and legal processes of TSP.
Sorry, busy weekend. If it's okay with everyone, I'll post my final thoughts tonight (GMT) on this.
I do like the idea for an AJAP to train up public defenders. I'm wondering if there is any merit in giving the Cabinet the power to appoint an Attorney General as required to bring forward prosecutions as an alternative to having a permanent but largely empty government office? (02-16-2015, 04:47 AM)Hopolis Wrote: Sorry, busy weekend. If it's okay with everyone, I'll post my final thoughts tonight (GMT) on this. Having an Attorney-General would mean that the Court is subjected to the Cabinet's political whims, so I'd say no. I'll look deeper into this when I get home, but these are just the thoughts off my head now. Edit: I still don't see the need for an Attorney-General. Any citizen, including government officials should be able to bring a case before the Courts anyway. I did some research on the judicial systems of our fellow feeders and sinkers and my findings are as follows: TNP: Has an Attorney-General, but their cases have a history of taking a long time to complete TEP: Shares our judicial system. However, citizens may bring the Delegate before the Courts for any wrongdoing TWP: No information found TP: Court Justices (there is always a sitting Justice, the Senator of Justice) and Attorney-General appointed by the Senate (which I assume is their version of the Assembly). However, the Senate serves under the authority of the Emperor or his deputy, the Regent, which has almost complete control over the region Laz: No information found Bal: No standing judges. A Cabinet member will serve as defense in the event of a criminal charge or the bringing to trial of the Delegate. The Chair of the Assembly will serve as defense in the event of a dispute in the law Osi:Justices are appointed by the Delegate. It apparently seems that only the Attorney-General is allowed to bring criminal charges against others Conclusion: More than anything, the Courts should probably act as a form of checks and balances against the Delegate/Cabinet. The clause below (and variations thereof) has been proposed multiple times in the Assembly, but has consistently been rejected, for some reason Quote:Version proposed by former CJ, Gustave Berr Thoughts, anyone?
Final thoughts on the Charter:
"Section 2, Section 2.1 Complaint's Procedure" - To me the title makes it sound like it's complaining about the Court. Possibly change it to 'Procedure for Filing a Complaint'? *******************************
Section 2, Section 2.1 Complaint's Procedure, Paragraph 5 "Should the evidence presented be deemed sufficient then they will publicly state such, and further inform both the Complainant and the Accused or their representatives via personal message. At this point a case number will be assigned and a new thread created for the Pre-Trial stage and all subsequent stages." - Does the struck out text add anything? From a transparency viewpoint I like the idea of the Court's communications being kept in public rather than via PM so I'd suggest deleting the text as above. *******************************
Section 2, Section 2.2 Pre-trial, Paragraph 4 "Subsequent to this both the Defence and the Prosecution may submit pre-trial motions, including but not limited to motions to dismiss the charges, requests for additional time alter the charges and for one or more Court Justices to recuse themselves. Such motions should provide evidentiary reason to justify them, and will be considered by the Court Justices collectively. Such motions may be considered later at the discretion of the Court Justices, but will not be granted short of extraordinary circumstances outside of the pre-trial stage. Dismissal of charges does not result in jeopardy attaching to the complaint." - I think one of the biggest requests we'll probably get from the defence is more time to prepare their case. While the original wording doesn't stop such a request this makes it explicit. In respect of the 'alter the charges' I'm really uncomfortable with the idea of a prosecution for one thing morphing into another. My limited understanding - and I'm no lawyer - is in a real court that fresh charges would be brought separately if further wrongdoing came to light? *******************************
Section 2, Section 2.2 Pre-trial, Paragraph 6 "The Defence and the Prosecution will then have a further 72 hours to review the approved lists and lodge any objections to the others list. Objections will be considered at the discretion of the Chief Presiding Justice. The Defence and the Prosecution both have the right to cross-examine the others witnesses, and should state such intention at this point. A subsequent request to cross examine a witness after seeing their testimony may be considered at the discretion of the Chief Presiding Justice, but will not be granted short of extraordinary circumstances." - Given that in the previous paragraph the Court has approved the witnesses I'm not sure of the benefit of reopening the Courts decisions over witness approval. I also don't see the benefit in indicating which witnesses will be cross-examined before hearing their testimony as it makes it a gamble for an inexperienced defendant/prosecutor and in most cases you'd ask to cross-examine everyone just to be safe. I'd suggest deleting the whole of paragraph 6 and adding the following text to the end of paragraph 5 "The Defence and the Prosecution both have the right to cross-examine the others witnesses." *******************************
Section 2, Section 2.2 Pre-trial, Paragraph 7 - general point - No changes but it again raises the question of how we would compel someone? *******************************
Section 2, Section 2.2 Pre-trial, Paragraph 8 "Once all witness testimony has been collected it must be submitted to the Chief Presiding Justice for review and approval. The Court Justices will collectively approve or object to each set of testimony or segments of such, and provide the reviewed version to both the Defence and the Prosecution." and Paragraph 9 "The Defence and the Prosecution will then have a further 72 hours to review the provided versions of the witness testimony and lodge any objections. Objections will be considered at the discretion of the Chief Presiding Justice. Once this has been completed the case will move to trial." - From a transparency viewpoint I think all evidence should be provided in public. It seems we have more paragraphs on the pre-trial than the trial itself which makes the trial seem less valuable. The defendant and prosecution are by their very nature likely to dispute the others witness testimonies and play games. I'd suggest deleting paragraphs 8 and 9 in their entirety as they add nothing of value and only confuse and complicate the process. *******************************
Section 2, Section 2.3 Trial - I've listed my suggestions below for a revised trial system based on my previous comments on changing the pretrial and addressing some issues I had with the trial process. I'm not convinced this is the perfect trial process but it seems to me to be better. In either model I have some doubt about how cross-examination will work in reality. Section 2.3: Trial 1. The Prosecution will have 72 hours to present their case, including all approved evidence and witness testimony. 2. The Defence will then have 72 hours to cross-examine the prosecution's witness testimony and offer rebuttal to the Prosecution's case. 3. The Defence will then have 72 hours to present their case, including all approved evidence and witness testimony. 4. The Prosecution will then have 72 hours to cross-examine the defence's witness testimony and offer rebuttal to the Defence’s case. 5. The Prosecution will have 72 hours to present their closing argument. 6. The Defence will have 72 hours to present their closing argument. 7.The case will then proceed to verdict and sentencing. *******************************
Section 3: Verdict and Sentencing, Section 3.1 Verdict, Paragraph 1 and 2 - Suggest rewording to merge paragraphs 1 and 2 as follows: 1. The Court Justices will collectively reach a verdict amongst themselves by majority decision with the Defendant to be found either guilty or not guilty . 2.The Defendant may either be found guilty or not guilty by a majority decision. *******************************
Section 3: Verdict and Sentencing, Section 3.1 Verdict, Paragraph 4. "Should a not guilty verdict be reached then jeopardy attaches to the complaint." - I'd suggest deleting this line. Personally, I think it needs a trial of the complainant rather than arbitrarily assigning jeopardy. *******************************
Section 3: Verdict and Sentencing, Section 3.1 Verdict, Paragraph 5 "Should no majority decision be reached then a mistrial will be declared. The Defendant is found neither guilty nor not guilty, and jeopardy may be attached to the complaint at the discretion of the Court Justices." - I don't think it should be for the Court to assign jeopardy without a trial, so suggest deleting the text struck out above. *******************************
Section 3: Verdict and Sentencing, Section 3.2 Sentencing, Paragraph 1 "Immediately subsequent to reaching a guilty verdict the Court Justices will determine sentence, to be announced at the same time." - Not sure if 'immediate subsequent' is a redundant phrase but it doesn't scan well. Suggest rewording along following lines: "Immediately subsequent to reaching When announcing a guilty verdict the Court Justices will also determinepass sentence, to be announced at the same time. *******************************
Section 4: Other, Paragraph 1 "All verdicts will be accompanied by an explanatory opinion explaining how and why the High Court reached the verdict, and why any particular sentence was imposed. When a Court Justice dissents from a majority verdict they may attach a dissenting opinion. In event of a mistrial then the Chief Presiding Justice is responsible for providing the explanatory opinion explaining how and why a mistrial occurred." - Suggest rewording as follows: 1. All verdicts will be accompanied by an explanatory opinion explaining how and why the High Court reached the verdict, and why any particular sentence was imposed. When a Court Justice dissents from a majority verdict they may attach a dissenting opinion. In event of a mistrial then the Chief Presiding Justice is responsible for providing the explanatory opinion explaining how and why a as to the reasons behind the Court's decision to declare a mistrial occurred. *******************************
Section 4: Other, Paragraph 4 "The Prosecution, Defense, Defendant and Complaint must be citizens of the South Pacific." - In light of the question raised by Escade about representation, I'd like to float some suggested rewording for this paragraph as follows. I'll be honest and say I could go either way on this but feel there might be benefit in raising an alternative: 4. The Defendant and Complainant must be citizens of the South Pacific. Whilst it is preferable for the Prosecution and Defence to also be citizens of the South Pacific, the Chief Presiding Justice may at the pre-trial stage, in consultation with the other presiding justices, grant permission for one or both of the Prosecution and Defence to be exempt from this requirement for the duration of the trial. Any individual/nation currently serving a suspension or ban from the South Pacific, any individual/nation who is a member of a proscribed organisation/region, any individual/nation who is a member of an entity/region against which the South Pacific is taking defensive action or any individual/nation who is a member of a entity/region that the South Pacific is at war with will be considered ineligible to act as a Prosecutor or Defender. In all cases the decision of the Chief Presiding Justice is final. *******************************
Section 5: Criminal Case Appeals, Paragraph 4 "If the Justice chooses to hear the case, it isthey are required to do so in a timely manner. The Justice may issue summary judgments in favour of the defense or prosecution due to excessive absenteeism." - Reword as indicated in red text above. *******************************
Article 10 - Administrative Actions, Paragraph 5(f) "Espionage of the region" - Given in Article 7, Paragraph 4 we'e made espionage a criminal matter it seems odd to then say a decision by the administrative team in respect of espionage removes all right to trial. Therefore suggest deleting paragraph 5(f). *******************************
Article 13, Paragraph 3 "If any Justice or private individual were to disclose or illegally obtain deliberations of the High Court, the individual shall be deemed to have committed treason" - To disclose Cabinet information is espionage, so to find it treason for the High Court seems to set a different benchmark particularly given we don't list it as a crime in Article 7 - Criminal Code. If we're going to make it a criminal offence it should be listed as such in Article 7. *******************************
And that's all I've got. I should add that professionally I'm used to some quite robust peer review where the concept of the stupid question doesn't exist. So apologies if any of this came across as pernickety. That certainly isn't the intent. I think that this is a great document that fills an important whole in TSP's governance framework. Quote:Conclusion: More than anything, the Courts should probably act as a form of checks and balances against the Delegate/Cabinet. The clause below (and variations thereof) has been proposed multiple times in the Assembly, but has consistently been rejected, for some reason I can see why this has been rejected as it criminalises an action without a trial.
Thanks for your insight, Hopolis. I did take up most of the changes that you have proposed. However, there are a few that I did not, the reasons for which are explained below:
The contacting of the Complaint or Accused of the trial in Section 2.1.5, is just to make sure that they are fully aware that a trial for their case is ongoing, a sort of summons to Court, if you will. However, I do agree and believe that for the sake of transparency, that the Chief Presiding Justice should have a copy of the summons in the Trial thread as well. I did add the request for additional time in Section 2.2.4, but also kept the alter the charges portion, since charges should be able to be dropped or added at that time. It is still subjected to consideration by the Justices, so I assure you that nothing of a frivolous or absurd nature would be accepted. The crime for divulging Cabinet and High Court information is now espionage, and have been defined as such in the Criminal Code. -- Is there anyway we could modify the clause suggested by former CJ Gustave Berr to make the Courts an effective form of checks and balances against official? Or should we just leave it out? Quote:The contacting of the Complaint or Accused of the trial in Section 2.1.5, is just to make sure that they are fully aware that a trial for their case is ongoing, a sort of summons to Court, if you will. However, I do agree and believe that for the sake of transparency, that the Chief Presiding Justice should have a copy of the summons in the Trial thread as well. Thanks for clarifying that. I'm happy with the idea of the summons being posted in the trial thread as well. :smiling: Quote:I did add the request for additional time in Section 2.2.4, but also kept the alter the charges portion, since charges should be able to be dropped or added at that time. It is still subjected to consideration by the Justices, so I assure you that nothing of a frivolous or absurd nature would be accepted. As long as that's the case I think I can support it. What I didn't want to see was a fishing expedition where someone made an accusation of a lesser crime and then having gathered evidence as part of that changed it into a more serious set of allegations. Quote:Is there anyway we could modify the clause suggested by former CJ Gustave Berr to make the Courts an effective form of checks and balances against official? Or should we just leave it out? My personal view would be to leave it out. I'm really not comfortable with a legal question being linked to restitution without trial. Also, if the Court has concerns that an official has abused their position then we always have the option of one of us recusing ourselves and bringing forward charges. That being said, and hopefully I've interpreted the proposed clause correctly, if it was concern about some sort of executive or legislative tyranny, perhaps the answer is to focus on the decision itself? Article 4, Section 1(4) already lets the court deal with problems with general law so something similar for the actions of an official. The wording for this wouldn't be an easy one though. A brief thought... Quote:In response to a Legal Question, the High Court may void a decision of the Assembly, the Delegate, the Vice-Delegate or the Cabinet if they are found to have acted contrary to the Charter or Code of Laws in the process of making that decision. The intent would be to force the entity concerned to go back and make the decision properly. |
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