Hi.

You know that thing that TSP does every once in a while and then immediately wants to do again?

Yeah let's stop that cycle now with a healthy dose of near-perfection

I have a draft here for a new Judicial Act, to replace the old Judiciary Act and Court Procedures Act in their entirety. It's a ground-up rewrite and rethinking of the Court. Here are the features:

It's simple! There is no convoluted trial system, no separate appeals mechanism full of holes, or any of that sort. Everything that the court handles goes through one unified procedure, similar to Legal Questions. The court is granted significant discretion in effectively determing how a particular case is best handled. Despite containing 8 separate articles, it's substantially shorter and simpler than what preceeds it.

It's non-adversarial! It's not about plaintiff vs. defendant, with the court just sitting as idle arbiter and judge of what is presented - rather, it's about getting to the truth, and the court should always strive to find out the truth and rule based upon that. A non-adversarial system allows this.

Leave the Pool for swimming! Gone is the weird Permanent Justice and Pool Justice model that nobody likes. Instead, we just have the High Court, led by a firewalled chief justice and aided by several non-firewalled associate justices. With this model, we can adds sensible checks as needed without blocking people from office needlessly.

TIL likes it! It's non-adversarial, it does not block too many people from office, and it's simple. This is what TIL wants in court reform, and this is what this bill provides.

APC likes it! Procedurally solid, minimizing loop-holes, while ensuring sensible checks are in place. This is what APC wants in court reform, and this is what this bill provides.

Standards of Evidence! To finally put to rest the frequent debate of "beyond a reasonable doubt" vs "probable cause" vs "preponderance of the evidence" vs ......

Reduces fear of the court! How often in the past two years have things not gone before the court because of convoluted procedures, the arcane applicability of legal questions, or other such matters? No more. Have a question, bring it to court - that can be a legal question, a criminal accusation, a request for review, or anything else. Each case will be handled with a simple but reasonable process.

...and more! Am I promising too much? You tell me.

Judicial Act
An act to establish operational principle, procedures, and best practices for the High Court

Article 1: The High Court

(1) The High Court comprises a chief justice and at least two associate justices.

(2) The chief justice operates the High Court. In case of vacancy, absence, or recusal, the associate justices shall collectively operate the High Court.

(3) The chief justice may order the recusal of any associate justice on a specific issue. The associate justices may collectively force the recusal of the chief justice on a specific issue.

(4) In case of a vacancy, the associate justices will select a willing and eligible individual amongst themselves to serve as chief justice.

(5) To appoint an associate justice, the Cabinet will consult with the High Court and present a willing and eligible individual to the Assembly for an approval vote.

(6) The Cabinet is compelled to appoint a fitting individual as per above with all deliberate speed if
a. there are less than two associate justices on the High Court,
b. the chief justice position is vacant and the associate justices cannot determine a new chief justice amongst themselves for any reason, or
c. a case cannot continue due to recusals.

Article 2: Judicial Conduct and Requirements

(1) Justices of the High Court shall
a. rule upon what is written in law, and not be influenced by prejudice based on personal bias, corruption by undue influence, or discord,
b. consider the impact of Court rulings carefully., ensuring whenever possible that no individual is empowered to exploit rulings of the Court,
c. maintain good communication with fellow Justices as well as the broader community, and
d. be reasonably inquisitorial.

(2) An associate justice must have legislator status in the South Pacific and take an oath of confidentiality and impartiality.

(3) The chief justice must fulfill the requirements to be an associate justice, and additionally may not not serve as senior or junior cabinet minister, as Chair of Assembly or deputy, or as Delegate.

Article 3: Case Procedure

(1) A case is submitted to the High Court via a public post in the High Court area by any individual authorized to submit a case of the given type. A case can be a legal question, an appeal, an indictment, or a sentencing.

(2) The High Court will determine with reasonable speed whether a case is justiciable. If found justiciable, a justice will be assigned to the case, otherwise the case is unappealably dismissed.

(3) Any member of the South Pacific may request the recusal of the assigned justice at any time, which will be reviewed by the High Court. If granted, the High Court will assign another justice.

(4) Any member of the South Pacific may submit information, evidence, or opinions on the matter. To facilitate this, a case may not run for less than 72 hours.

(5) The assigned justice may, as necessary, request information, evidence, or opinions from any member or institution. With the approval of another justice, a member or institution may be compelled to answer such a request.

(6) Once the assigned justice has all necessary information and evidence, they will analyze the question with all deliberate speed to deliver an opinion. Any individuals involved in the crafting of the opinion must be named within it. The opinion must be approved by another justice not recused from the case.

Article 4: Legal Questions

(1) A legal question is a case containing one or more questions seeking to receive clarification on the meaning of existing law or the applicability of law to concrete or hypothetical situations.

(2) Legal questions can be submitted by any member of the South Pacific.

(3) The opinion delivered for a legal question shall have the full force of law until appealed or the law upon which the opinion was based is significantly changed.

Article 5: Criminal Cases

(1) As part of a case, the justice may indict an individual if there is probable cause that this individual has committed a criminal act. If the criminal act is not substantially related to the case, the assigned justice is encouraged to start a separate case for the indictment.

(2) Upon indictment, the individual will be contact through at least one reasonable means of contact and given at least one week to defend themselves before an opinion may be delivered.

(3) The assigned justice will deliver with the opinion a verdict for each indictment contained within the case. The verdict shall be guilty if and only if the accused admitted guilt or the justice has determined preponderance of the evidence that the criminal act occurred.

Article 6: Sentencing

(1) A sentencing case is started when an individual has been found guilty after being indicted. The case is started, if possible, by the justice that delivered the conviction.

(2) The sentencing case shall be on hold if an appeal for the conviction has been filed, for the duration of that appeal. If the original conviction is overturned, the sentencing case is automatically dismissed.

Article 7: Appeals

(1) An appeal is a case for which the petitioner seeks to reverse or reevaluate a concluded case that itself is not an appeal. An appeal may be filed by any member of the South Pacific or by any non-member with a vested interest in the case.

(2) Appeals may only be submitted on grounds of process violations, contradictions of law, or judicial misconduct.

(3) The assigned justice of the case being appealed is automatically recused from the appeal case.

Article 8: Confidentiality

(1) By default, material submitted for a case shall be submitted alongside the case proceedings in a public venue.

(2) Material that is confidential and may harm regional security may be submitted to the Court, provided that the Court works with the corresponding authority to redact the information that may harm regional security.

(3) Material that is of a personal nature, such as revealing personally identifiable information or would otherwise unreasonably violate personal privacy, may be provided to the Court on a confidential basis, and published in a redacted form only if a reasonable person could not deduce the identity being protected.

(what's still missing is the appropriate Charter amendment - I will do that later)

Many thanks to Glen/Sandaoguo for help with the wording on a few items plus general mentorship and inspiration.

(This post was last modified: 03-17-2018, 11:08 AM by Nakari.)

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Genuine question— how exactly does the Chief Justice/Associate Justices thing work differently from the pool? Will the Cabinet have just as difficult a time finding Associate Justices? Are these Justices privy to *all* court cases and discussions, or just the ones assigned to them?


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Genuine question— how exactly does the Chief Justice/Associate Justices thing work differently from the pool?

The important differences, as I see it:

• The associate justices are not firewalled, while pool justices are firewalled to enter active judicial duty. That means you can appoint any player you deem capable of being a justice to be an associate justice regardless of whatever political or other roles they might be doing, and can contribute to the court. I'll give you an example - you are certainly a player who would be a good justice, but you may at some point be elected as MoFA again as well. If a case came up regarding, say, the LegComm act, then there shouldn't be a reason why you couldn't rule on that. Or even if you weren't even assigned to be a justice for any case, you could also still contribute by signing off opinions and compulsion of evidence.
  
• The associate justices are active components of the court, the pool justices are not. When a pool justice has to spring into action, and this is a justice that has not been in the High Court before, they are essentially thrown into cold water. An associate justice is already part of the workings of the court and therefore familiar with processes and procedures of the court set by law and by itself. Furthermore, this means that we automatically foster people that can become chief justice. We won't always get an immediately strong candidate like Kris, so we want to make sure that we have experienced members that can pick up where the departed chief justice left off.
  
• The chief justice is an associate justice promoted by their peers, while the permanent justice is selected by the Cabinet out of a vacuum to run the court from scratch. The difference here is that a newly minted chief justice already was part of the court (see the previous bullet point) and therefore has a running start.
  
• The chief justice directs the operation of the courts, while the permanent justice must run the entire court unilaterally. If the permanent justice has a busy week or two IRL, the court basically grinds to a halt. If the chief justice has such two weeks, it's not a problem because the associate justices are there as active components to the court. Furthermore, this allows fulfilling the wish that APC had long ago during the APC/TIL discussions that a ruling justice just has somebody else to look over and say "yup that works" as a simple but effective check.
  

There are others too but I can't think of them right now

Will the Cabinet have just as difficult a time finding Associate Justices?

No. I was in Cabinet for both of the recent judicial appointments, and in each case the issue wasn't deciding who should be in the pool, but rather who should be the permanent justice. This shouldn't be an issue with the new model, as the chief justice will be selected by their peers and furthermore will be less intrinsically high-profile than the permanent justice is.

Are these Justices privy to *all* court cases and discussions, or just the ones assigned to them?

That's internal structuring of the court, really. I see the legitimate concern that a non-firewalled non-assigned associate justice could see confidential information shared with the court that they are not authorized to see.

If your concern arises out of the 2015 debacle with TAC Saxton etc., then I think this issue wouldn't arise here. There is still one nominal justice responsible for the case, rather than three ruling together, the difference is simply that another justice is called in to look over the opinion and sign off on it.

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I'd prefer "clear and convincing evidence" to "preponderance of the evidence"; preponderance is simply "more likely than not".

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We had a conversation between primarily Belschaft, Glen, and myself on Discord regarding the standard of evidence. Generally, we agreed that "clear and convincing evidence" is a preferable standard of evidence to "preponderance of the evidence", but Glen remarked that the term itself may, to the average reader, not convey the subtle position between "preponderance" and "beyond a reasonable doubt" that "clear and convincing evidence" is situated in. We therefore agreed that it's best to simply define it in place, rather than using the term.

Belschaft provided the definition "substantially more likely than not that it is true" from Cornell's legal dictionary. I'll be using that definition in the next full draft:

(3) The assigned justice will deliver with the opinion a verdict for each indictment contained within the case. The verdict shall be guilty if and only if the accused admitted guilt or the justice has determined preponderance of the evidence it substantially more likely than not that the criminal act occurred.

(This post was last modified: 02-14-2018, 05:27 PM by Roavin.)

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Nakari also noted a few typos that I hadn't noticed:

(3) The chief justice must fulfill the requirements to be an associate justice, and additionally may not not serve as senior or junior cabinet minister, as Chair of Assembly or deputy, or as Delegate.

(2) Upon indictment, the individual will be contacted through at least one reasonable means of contact and given at least one week to defend themselves before an opinion may be delivered.

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I'd like for a bit more clarification on this (Article 1.4, with similar phrasing in 1.6):

(4) In case of a vacancy, the associate justices will select a willing and eligible individual amongst themselves to serve as chief justice.

The way it is written, so long as the decision is taken collectively, the associate justices could choose anybody, which I don't think is the intention - the 'amongst' could be either 'individual amongst themselves' or 'select... amongst themselves'. I would suggest "the associate justices will collectively select a willing and eligible individual from their number", perhaps. Or, if you did intend for them to be able to select anyone, "the associate justices will select amongst themselves a willing and eligible individual".

Plus, another typo in Article 2:

(1) Justices of the High Court shall 
a. rule upon what is written in law, and not be influenced by prejudice based on personal bias, corruption by undue influence, or discord,
b. consider the impact of Court rulings carefully., ensuring whenever possible that no individual is empowered to exploit rulings of the Court,

Being a grammatical pedant too, this phrasing in Article 8 does not work for me:

(3) Material that is of a personal nature, such as revealing personally identifiable information or would otherwise unreasonably violate personal privacy,

The two parts just don't agree grammatically, and I can't find something that does match them both satisfyingly. Perhaps:
"Material that is of a personal nature, such as that which reveals personally identifiable information or which would otherwise..."
Though that's still a little unwieldy.

(This post was last modified: 02-14-2018, 05:45 PM by Nakari.)

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The necessary Charter amendment:

1 The High Court will consist of one Permanent Justice chief justice and a Pool of Justices a number of associate justices, and will hold exclusive judicial authority in the Coalition.

2. The procedure for the appointment of the Permanent Justice and the members of the Pool of Justices the justices will be defined in a general law by the Assembly.

And a continuing resolution - note that I'm only taking over Kris here so that we can form the pool anew.

Resolution on the Passage of the Judicial Act

The Assembly of the Coalition of the South Pacific resolves the following upon passage of the Judicial Act:

(1) The incumbent Permanent Justice will be appointed as chief justice.

(2) The Pool of Justices will be dissolved.

(3) As per Article 1, Section 6.a of the Judicial Act, the Cabinet is compelled to swiftly nominate associate justices. The Assembly demands that the Cabinet issue at least two nominations within a week of passage.

(4) Any cases of the High Court extant at the time of passage will be completed as per the previous court procedures. This does not include appeals filed after passage.

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Could you capitalise Chief Justice and Justices?


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I'd like for a bit more clarification on this (Article 1.4, with similar phrasing in 1.6):

(4) In case of a vacancy, the associate justices will select a willing and eligible individual amongst themselves to serve as chief justice.

The way it is written, so long as the decision is taken collectively, the associate justices could choose anybody, which I don't think is the intention - the 'amongst' could be either 'individual amongst themselves' or 'select... amongst themselves'. I would suggest "the associate justices will collectively select a willing and eligible individual from their number", perhaps. Or, if you did intend for them to be able to select anyone, "the associate justices will select amongst themselves a willing and eligible individual".

The intent is that the associate justices pick a justice from their ranks to fill the slot, yeah. I didn't think it was ambiguous but I can see how that could be with your explanation. How about this?

(4) In case of a vacancy, a willing and eligible associate justice will be selected by their peers to serve as chief justice.

Being a grammatical pedant too, this phrasing in Article 8 does not work for me:

(3) Material that is of a personal nature, such as revealing personally identifiable information or would otherwise unreasonably violate personal privacy,

The two parts just don't agree grammatically, and I can't find something that does match them both satisfyingly. Perhaps:
"Material that is of a personal nature, such as that which reveals personally identifiable information or which would otherwise..."
Though that's still a little unwieldy.

I actually like your rephrasing tbh.

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