| [DISCUSSION] Amendment to Article 4 of the Proscription Act (Judicial Review) |
|
I think the Court's power of review is an important check against arbitrary and political usage of the Proscription Act, and I would warn against weakening it.
Minister of Media, Subversion and Sandwich Making
Associate Justice of the High Court and Senior Moderator ![[Image: B9ytUsy.png]](https://i.imgur.com/B9ytUsy.png)
@Beepee, I am having some difficulty understanding your suggested changes. Could you please elaborate some more?
Article 3, Section 2 relates to the proscription being issued publicly with reasons attached. Are you intending to limit appeals to whether the proscription was made publicly or not? Or are you intending to limit appeals to the publicly-stated reasons for the proscription? Sorry, it may be obvious to others but I am having some difficulty in determining which one. Also, special leave to individuals was not accepted by Amerion as part of his draft. It is now a separate competing proposal: http://tspforums.xyz/thread-6715.html
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
Hi Nat,
Bear with me on this one. My argument is left field… Currently, under the Act you can only appeal the determination that you are hostile. You can’t appeal the proscription. That is because under section 4(1) individuals ‘may challenge the issuing authority’s determination of hostility’. Indeed, proscriptions themselves under Section 2 do not mention hostile individuals. Whilst Section 3(2) requires a report to accompany the proscription there is not requirement that the hostilities form part of the proscription (there is no requirement to include evidentiary support or further details other than Person X is hostile to TSP). Except… Under Section 3(1) the Cabinet can only proscribe someone they deem as hostile. And whilst Hostility is tightly drawn around 5 classes set out in Section 1, nothing in Section 3(1) requires the Cabinet to ensure that the Hostilities in Section 1 form part of the consideration for the proscription. The inference is there, and a common sense reading requires it, but a naïve reading doesn’t. Effectively, this is how I read the findings of the Court in the EWS case; where the justices determined that the Cabinet’s consideration of the facts were that EWS was not hostile, although EWS is/was ‘negative’ towards TSP due to the tight wording of Hostile in Section 1. (see the part which says EWS has made it clear he wishes to see the coalition overthrown). The effective result of EWS Case law is now that if someone is a threat, but not hostile, you can’t proscribe them. This is effectively how I read the Courts judgement where the justices say ‘it is not sufficient for an individual to express an act’, rather they must have already carried out such acts. In the EWS judgement, the Court has created the case law now that hostility must be as defined in Section 1 (a common sense approach). This is because, in theory, the EWS proscription was nullified by the Court as the wording of 3(1) is “the cabinet may proscribe an individual that they determine is a hostile”. The Courts determined that the interpretation of hostile falls in Section 1. In common sense, you wouldn’t proscribe someone who isn’t hostile; but you might want to proscribe someone who threatens to see the coalition overthrown, for example. Before the EWS Case, the argument could have been that no evidence is actually needed for someone to be proscribed. The Cabinet just had to consider them hostile. We now require that evidentiary support is required and that that evidence is effectively issued under Section 3(2). Finally, In theory, EWS’s complaint that there was no report attached to the proscription in line with Section 3(2) could not have been considered under the proscription Act– Rather it should be considered through the Charter Under Article VIII(4). In my view, that’s a clear oversight that needs to be amended. By forcing appeals through Section 3(2) of the Act, the case law (as described above) and the processes can be amalgamated.
Also yes.... i see i have used a draft policy now removed As my base. The restriction on appeals should I think just be added in. I can see chief justice ready to hit me with "don't restrict the Courts powers".
Thanks for your reply @Beepee
I believe that the ramifications of the EWS proscription appeal are contested by different groups. Is that correct or am I thinking of a different case? If so, I shall have to take some time (not today) to examine everything surrounding that case before I can arrive at any conclusion myself. Notwithstanding that, I do not think the wording of your suggestion is the best. I personally found it a bit difficult to understand (perhaps that is just me though). What do you think about this wording instead? Amendments to the Proscription Act Wrote:4. Judicial Review
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
(12-26-2018, 09:27 PM)Beepee Wrote: In terms of the current draft, I would ask if a further restriction on the grounds of appeal as follows could be added: (12-26-2018, 10:17 PM)Belschaft Wrote: I think the Court's power of review is an important check against arbitrary and political usage of the Proscription Act, and I would warn against weakening it. I'm inclined to agree with Bel here. I'm all for the High Court to have an all-encompassing mandate. Perhaps, our recent controversies surrounding the proscriptions was not so much the appeals themselves but the legal criteria used to establish a valid proscription? (12-28-2018, 03:50 AM)Amerion Wrote: I'm inclined to agree with Bel here. I'm all for the High Court to have an all-encompassing mandate. Perhaps, our recent controversies surrounding the proscriptions was not so much the appeals themselves but the legal criteria used to establish a valid proscription? I think you might be right.... I think court oversight/mandate is generally agreed. But I think the language of the act could be issue. I like the general thrust of (i do hope im using the right base this time) 4. Judicial Review (1) Individuals, regions or organizations subject to a proscription may challenge the issuing authority's determination of hostility and/or the issue of the proscription 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 and/or the issue of the proscription 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.
The fundamental problem I have with the Court is its belief that it can appoint itself a member of the CRS. We do not choose our justices based on their security prowess. So we should not be okay with justices disregarding the security analyses of the people we do.
The Court’s role should be enforcing the procedural process, not being a “second opinion” on if something is a security concern. It would be like the US Supreme Court overseeing whether or not a military strike is a smart strategic move. If there is disagreement between the Court and the CRS or Cabinet on if an act counts as hostility, then the Court rightly should defer to the CRS’s or the Cabinet’s judgement. After all, we did not place the determination of hostility in the hands of the Court, so why are they deciding what acts are serious, dismissing the Cabinet’s concerns because a justice thinks something is a joke, etc? The Court likes to pride itself on judicial restraint, but is blind to how its Proscription Act jurisprudence is anything but restrained. All due respect to Belschaft, but he did not strike down Souls’ proscription because it was arbitrary or political— he struck it down because he personally disagreed that Souls’ comments and actions were serious. Which would be fine if he was a member of the CRS or Cabinet voting on the Proscription, rather than a Justice of the Court. 7 people across 2 Cabinets debates the security concerns and reached one conclusion. 2 people not appointed nor elected to manage our security overruled that because they disagreed with the analysis, not because the Cabinet was acting politically or arbitrarily. The precedent established by the Court is that *it* is the CRS or the Cabinet at the end of the day. And that should worry everyone. The Court’s role needs to be reigned in to an appropriate degree. Judicial review may be essential in ensuring the Proscription Act’s procedures are followed correctly. But the Court is not the CRS nor the Cabinet. Sent from my iPhone using Tapatalk
To the contrary, the Court struck down the proscription of EWS because the publically made allegations were not substantiated by the evidence presented. If the Cabinet or CRS wants to proscribe someone for doing X, then they need to have evidence that they did X.
In EWS' case you did not. I once again invite you to declassify Item E, which you continue to rely on to make your argument whilst not letting anyone else see it. Of the "7 people across 2 Cabinets" how many actually saw Item E, and how many were told they couldn't but should take your word at it? EWS' case is a clear example of why judicial overview is so important; so that security officials can't hide behind secrecy, using it to misrepresent evidence. Minister of Media, Subversion and Sandwich Making
Associate Justice of the High Court and Senior Moderator
You: “To the contrary, the Court struck down the proscription of EWS because the publically made allegations were not substantiated by the evidence presented. “
Kris: “There's also the whole issue with Evidence E, which you keep portraying as the defining piece of evidence in the Court's ruling, when it was simply one of five such pieces. ... I know you guys think that the EWS ruling has some kind of precedential value, and that it outright dismissed Evidence E, but for the nth time, it doesn't and it didn't.” Have a chat? Sent from my iPhone using Tapatalk |
![[+]](/images/collapse_collapsed.png "[+]")
PREVIOUS ROLES ![[-]](https://tspforums.xyz/images/sidr/blue/collapse.png)
| Users browsing this thread: |
| 1 Guest(s) |