Users browsing this thread:

**Belschaft** · 03-29-2017, 11:32 AM

Your honour,

Article III. Clause 3. of The Charter of The South Pacific declares;

Charter Article III Clause 3 Wrote:2. The right to a fair trial and defense against criminal accusations will not be abridged. No member may be subject to any bill of attainder, be tried for the same crime more than once, or be tried ex post facto.

My question is;

When an accusation of criminal behaviour or activities that would equal such (as defined by the Criminal Code of the South Pacific) has been made, may a process other than a Criminal Trial (as defined by the Court Procedures Act) be substituted for a Criminal Trial?

The petitioner believes that the substitution of any process other than a Criminal Trial, as defined by the Court Procedures Act, when an accusation of criminal behaviour or activities that would equal such has been made, represents an abridgement of the constitutional guarantee of a fair trial and defense against criminal accusations, as granted via Article III of the Charter. As such, when an accusation of criminal behaviour or activities that would equal such has been made, no process other than a Criminal Trial may be used to address this situation.

Thus, where an accusation is not one of criminal behaviour or activities that would equal such, a process other than a Criminal Trial may be used to to address the situation, but no such process could be used in place of a Criminal Trial where one is required by the Charter.

The petitioner refers the court to the newly enacted Security Powers Act, which creates such an alternative process. The petitioner believes that the protection of the rights and freedoms granted via Article III of the Charter requires that legislation such as this be limited only to those accusations that fall outside the scope of the judicial system, as defined by the Criminal Code and the Court Procedures Act. Failure to issue such a limiting ruling would in effect represent the abridgement of Article III of the Charter.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

(This post was last modified: 03-29-2017, 11:41 AM by Belschaft. Edit Reason: Typographical change to clarify question; replaced commas with parentheses )

***sandaoguo*** · 03-29-2017, 01:10 PM

This is a classic attempt to conflate security with criminal law enforcement. The two are not interchangeable, a fact Belschaft understands just fine.

Not everything that poses a risk or threat to regional security is a crime, and not every crime poses a risk or threat to regional security.

(This post was last modified: 03-29-2017, 01:10 PM by sandaoguo.)

**Belschaft** · 03-29-2017, 01:25 PM

Even had I made that argument, which I didn't, your comment would remain irrelevant to this Legal Question. I do not argue that the SPA should be stricken from the law books, merely that a limiting ruling must be issued to protect Article III rights and freedoms. Specifically, that when there is an allegation of criminality the SPA may not be invoked in place of a fair trial, in accordance with Article III's guarantee of such.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

Omega · 03-29-2017, 06:03 PM

I would like to move that a member of the pool of justices be selected to answer this question as our Permanent Justice is a member of the CRS and as such, I believe there is a clear conflict of interest.

Above all else, I hope to be a decent person.
Has Been
What's Next?

CoA: August 2016-January 2017
Minister of Foreign Affairs: October 2019-June 2020, October 2020- February 2021

**Belschaft** · 03-30-2017, 11:45 AM

For the record, I have no issue with Farengeto ruling on this matter. I do not believe his CoI is disqualifying, and trust that he is sufficiently objective to rule on a correct basis regardless of it.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

Omega · 03-30-2017, 04:33 PM

Having noted that the petitioner has faith in the Permanent Justice and does not see this Conflict of Interest as disqualifying, I withdraw my motion.

Above all else, I hope to be a decent person.
Has Been
What's Next?

CoA: August 2016-January 2017
Minister of Foreign Affairs: October 2019-June 2020, October 2020- February 2021

(This post was last modified: 03-30-2017, 04:33 PM by Omega.)

**Belschaft** · 04-04-2017, 06:10 PM

To provide clarity, my question refers to Article 1, Section 6 through Section 9. I do not have any question in regards to the constitutionality of Article 1, Section 1 through Section 5.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

**Farengeto** · 04-16-2017, 11:14 PM

After deliberation the Court has chosen to hear this legal question, hereafter designated HCLQ 1705. Interested parties are invited to submit an amicus brief on the matter.

**Belschaft** · 04-18-2017, 11:17 AM

Your honour, if it so please the court;

Petitioner believes that this is a relatively simple matter, in that it deals with the supremacy of the Charter and Article III of the Charter, Rights and Freedoms. Not only is the supremacy of the Charter over all other laws fundamental to our form of government, it is explicitly stated in Article I, Clause 3 of the Charter; "This Charter is a constitutional law holding supremacy over all others, and defines the purpose of our government and its framework."

This being the case, and the supremacy of the Charter being unquestionable, the Court must simply determine whether or not the Security Powers Act (SPA) contradicts the Charter. The Court is not only granted this power by Article VIII of the Charter, it has the duty to do so, for this power of legal interpretation is a fundamental check on the excesses and failings of the other branches of government. It is the duty of the Court to prevent other branches and institutions of government from acting in ways that are illegal or unconstitutional.

The only question is the extent and form in which the Court will rule; the Court may clarify and interpret the SPA, issuing a limiting ruling that brings into into compliance with the Charter; the Court may reconcile the contradictions between the Charter and the SPA, striking down only those sections of the SPA that are unconstitutional; or the Court may rule the entirety of the SPA unconditional, and strike it down as a whole. But, should the SPA contradict the Charter, the Court must do one of these things.

Petitioner believes that there is no question of whether or not the SPA contradicts the Charter.

The Court's attention must be drawn to Article III of the Charter, Rights and Freedoms, specifically clause two. This reads as follows;

Article III, Clause 2, The Charter of The South Pacific Wrote:2. The right to a fair trial and defense against criminal accusations will not be abridged. No member may be subject to any bill of attainder, be tried for the same crime more than once, or be tried ex post facto.

Your honour, this clearly establishes an inviolable right. The word "abridged" has a specific legal meaning; reduced or curtailed in any way. The meaning of this clause and it's implications in regards to the SPA is thus clear and unquestionable; where criminal accusations are made, there must be a trial. There is no possible alternative interpretation of this clause.

The Court's attention must also be drawn to Article VIII of the Charter, The High Court, specially clause seven. This reads as follows;

Article VIII, Clause 7, The Charter of The South Pacific Wrote:7. The High Court holds the sole power to conduct a criminal trial.

Your honour, this clearly establishes that this Court has the sole power to conduct a criminal trial. Thus, we can conclude the following;

That where there is a criminal accusation there must be a trial, and that where there is a trial it must be held by the High Court.

Your honour, despite the nebulous and ill-defined nature of "security risk", it is clear that the any basis for such a declaration will in most cases serve as a de-facto criminal accusation. The South Pacific has an existing Criminal Code consisting of nine separate offences. Where the basis for a "security risk" declaration amounts or equates to actions meeting the definition of one of these offences, such a declaration would be illegal. The Charter establishes a single constitutional process for handing criminal accusations, and that process is not the SPA. This process cannot be circumvented via the substitution of any other without abridging the right to a fair trial. Whilst the SPA is legal in regards to "security risk" declarations with a basis that does not amount or equate to a criminal accusation, where this is the case it is unambiguously illegal. It is the duty of the Court to protect the rights and freedoms contained in the Charter, and this duty must extend to ruling illegal attempts to reduce or curtail them via semantic or legalistic means. What the CRS chooses to call something is irrelevant; what it is matters. The CRS cannot abridge "the right to a fair trial and defense against criminal accusations" by carefully wording their declarations; the Court must address the substance of the matter when upholding the supremacy of the Charter and the rights it guarantees.

Petitioner believes that Article 1, Clauses one through five, of the SPA are most likely legal, in that these relate to temporary provisions during a CRS investigation. This does not serve to abridge the rights granted via Article 3, Clause 2 of the Charter - due to the temporary and investigatory nature of these provisions. Article 1, Clauses six through eight, of the SPA are however in clear contradiction of the Charter. The Court must, at the very least, issue limiting instructions clarifying that these clauses cannot apply where the CRS declaration would amount or equate to a criminal accusation.

Petitioner believes that the best and least ambiguous course of action is for the court to make use of it's power to reconcile contradictions, by altering the language of the SPA as follows;

Article 1, Clauses 6-9, Reconciled Security Powers Act Wrote:(6) If the Council on Regional Security determines that an individual declared a security risk poses a long-term threat to regional security, the Council will declare the individual a security threat.

(7) Upon declaring an individual a security threat, the Council on Regional Security may subject that individual to increased security precautions, including:
a. Removal from any office the individual already holds;
b. Prohibition against standing for election or being appointed to any office;
c. Removal of legislator status, if the individual is already a legislator;
d. Prohibition of legislator status;
e. Prohibition against participation in government ministries;
f. Prohibition against service as a game-side Regional Officer;
g. Prohibition against maintaining a World Assembly nation in the South Pacific.

(8) If the basis of a security threat declaration amounts or equates to a criminal accusation, the Council on Regional Security must immediately press appropriate charges. The security threat designation will be rescinded should this not result in a conviction.

(9) After being declared a security threat by the Council on Regional Security, should the individual persist in posing a threat to regional security through further threatening behavior, the Council may impose bans against the individual game-side, via the regional forum, and via any other off-site property maintained for official use by the Coalition of the South Pacific. The Council may rescind such bans.

(10) The Council on Regional Security may rescind a security threat declaration, at which time all precautions to which the individual had been subjected will be rescinded.

Petitioner believes that this would bring the SPA into compliance with the Charter.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

(This post was last modified: 04-18-2017, 11:28 AM by Belschaft. Edit Reason: Typo )

**Belschaft** · 04-24-2017, 01:28 PM

Your honour, it has been nearly a month since this Legal Question was asked. Considering other developments, this delay is becoming increasingly unacceptable.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

(This post was last modified: 04-24-2017, 01:29 PM by Belschaft.)