Update: This thread is regarding an Amendment to Article 4 of the Proscription Act (quoted below).

4. Judicial Review

(1) Individuals, regions or organizations subject to a proscription may challenge the issuing authority's determination of hostility in the High Court.

(2) Individuals subject to a proscription of a region or organization may challenge the issuing authority's determination of their membership in that region or organization in the High Court.

(3) For the purposes above, the individual or an individual representing the region or organization must be granted adequate permissions to participate in the High Court proceedings for that case.

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I wish to discuss whether people should be able to appeal a proscription of a region or an organisation.

This discussion is in response to the Chief Justice's Opinion of Non Justiciability of Vulturret's appeal:

In truth, the Court cannot say with full certainty that the Proscription Act allows for the appeal of regional proscriptions in the same way as individual proscriptions may be appealed. That does not mean that a legal challenge on this initial interpretation could not be considered, or that the Assembly could not pass clarifying language. This simply means that, under an initial reading of the Proscription Act, held to a different standard than that of a ruling to a fully argued and considered legal question, regional proscriptions lack a clear and unambiguous path towards being challenged.

I have (admittedly) skimmed the debate thread of the Proscription Act and I did not find specific mentions of regional proscription appeals. It is possible that I missed out a post dealing with the issue, in which case, I would very much appreciate someone pointing me in that direction.

Nevertheless, I think it is appropriate that the Assembly passes clarifying language on whether such appeals are to be allowed in the future.

(This post was last modified: 12-30-2018, 03:24 AM by Amerion.)

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So, here's the thing. I'm happy that the case with Vulturret didn't go further, because that would just have been another shitshow by trolls attempting to troll the region, as was the case with Souls (somewhat successfully, unfortunately).

On the other hand, the principle of the matter bothers me. I don't think there's anything that the Court shouldn't be able to review for legality and adherence, period. I had addressed that here, with some significant discussion, though that kinda died now. I think it would be worth revisiting that, and changing the Court's Mandate in the Charter to universal language that gives the Court a general mandate for review, rather than trying to do an exhaustive list of powers and areas that will most likely be incomplete.

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I agree with the above.

I'll draft something up tomorrow unless someone beats me to the point.

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^ there, beat you to it.

Excited to see what you come up with.

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Don't get too excited as it's really quite mundane

Essentially, based on your proposed changes mentioned in this OP, I think the following amendment should suffice:

4. The High Court has the power to declare any general law or, regulation, Cabinet directive, Chair determination, and Local Council law or regulation, or any other official act of government, in whole or in part, void upon a determination that it violates the terms of this Charter or any other constitutional law.

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It occurs to me that while the above amendment is suitable as an overall clarification on judicial powers, it would still be wise to further elaborate on the specific provisions of the Proscription Act.

Therefore, I am proposing the following amendment, separate from the above amendment (for which I will create a separate thread to discuss it).

4. Judicial Review

(1) Individuals, regions or organizations subject to a proscription may challenge the issuing authority's determination of hostility in the High Court.

(2) Individuals subject to a proscription of a region or organization may challenge the issuing authority's determination of their membership in that region or organization in the High Court.

(3) For the purposes above, the individual or an individual representing the region or organization must be granted adequate permissions to participate in the High Court proceedings for that case.

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I think your amendment is a good idea. However, I also think that individuals affected by region or organisation proscriptions should be able to challenge them. This is because regions and organisations may not care about the proscription, while individuals who are affected by it may do so. To that end, I have added another section to your proposed amendment. Please let me know what your thoughts are on this.

 

4. Judicial Review

(1) Individuals, regions or organizations subject to a proscription may challenge the issuing authority's determination of hostility in the High Court.

(2) Individuals who can demonstrate they have been directly affected by the proscription of a region or organization may challenge the issuing authority's determination of hostility in the High Court.

(2)(3) Individuals subject to a proscription of a region or organization may challenge the issuing authority's determination of their membership in that region or organization in the High Court. 

(3)(4) For the purposes above, the individual or an individual representing the region or organization must be granted adequate permissions to participate in the High Court proceedings for that case.

Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)

(This post was last modified: 12-19-2018, 11:23 PM by Nat.)

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I think your amendment is a good idea. However, I also think that individuals affected by region or organisation proscriptions should be able to challenge them. This is because regions and organisations may not care about the proscription, while individuals who are affected by it may do so. To that end, I have added another section to your proposed amendment. Please let me know what your thoughts are on this.

Thanks for your suggestion @Nat!

It's heartening to see new Legislators get involved in the process

To clarify your suggestion, you are proposing that individuals may themselves challenge a region's or an organisation's proscription even in scenarios where the respective group does not intend to do so?

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Thanks @Amerion

Yes, your interpretation is correct: my suggestion is that individuals who want to be part of TSP but are barred due to a region/organisation proscription should be able to challenge the proscription that affects them, even if their region/organisation does not intend to challenge it.

Since a proscription does not do anything directly to a region/organisation, I would imagine they would be less likely to appeal the proscription on behalf of one of their members who wants to be part of TSP. If that is so, the original proposal would mean that the actual proscription decision would never get reviewed by the court, despite individuals being affected by it. My suggestion (allowing challenges by anyone who wants to be part of TSP but is barred due to a region/organisation proscription) would mean that any and all proscriptions which directly affect people can be reviewed by the court.

It may be necessary to add something to it, such as saying that a second individual who wants to challenge the proscription of the same region/organisation would have to demonstrate a new line of argument or new evidence. That way, the court would not get clogged up by going through identical cases.

Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)

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Thanks @Amerion

Yes, your interpretation is correct: my suggestion is that individuals who want to be part of TSP but are barred due to a region/organisation proscription should be able to challenge the proscription that affects them, even if their region/organisation does not intend to challenge it.

Since a proscription does not do anything directly to a region/organisation, I would imagine they would be less likely to appeal the proscription on behalf of one of their members who wants to be part of TSP. If that is so, the original proposal would mean that the actual proscription decision would never get reviewed by the court, despite individuals being affected by it. My suggestion (allowing challenges by anyone who wants to be part of TSP but is barred due to a region/organisation proscription) would mean that any and all proscriptions which directly affect people can be reviewed by the court.

It may be necessary to add something to it, such as saying that a second individual who wants to challenge the proscription of the same region/organisation would have to demonstrate a new line of argument or new evidence. That way, the court would not get clogged up by going through identical cases.

My understanding of proscriptions against either a region or an organisation is our government views the threat posed by such a group to be so serious as to necessitate the barring of its members from our community, lest it does harm to TSP.

Given this hypothetical threat, I do not think it wise that an individual who belongs to this group is allowed entry into our region. Period. Granted, there may be innocent people who are part of these groups by accident but I imagine that once they are enlightened to the true nature of their company, they would surely renounce all membership and leap at any opportunity to join the good guys.

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