In terms of the questions about timing, I'd point out that as part of my election statements I stated that I wanted to see clear procedures for the court developed something that people supported. As far as I am aware the only matter that the timing relates to is the concern that we could be going to trial without a clear set of procedures for the conduct of that trial - something that the Charter expressly states we should have in place and we don't.

Secondly, yes Bel did do the first draft of the trial process but for clarity I should state that we have made substantial changes to his original draft in places to develop a simpler more transparent system. If people don't like 72 hours for the trial periods, what would they prefer? 96? 120? longer?

In respect of the legal question point, this doesn't supercede the Assembly in any way as far as I can see. If anything it makes it stronger. The court would only void a decision as a result of a legal question if it was "if they are found to have acted contrary to the Charter or Code of Laws in the process of making that decision". Something courts in every democracy do. Does anyone actually want to keep a decision of any body of TSP if it wasn't taken in accordance with our Charter or Col? All this does is make the relevant body go back and make the decision properly. Nothing in that line gives the judiciary the power to overturn a decision because they don't agree with it. You don't like a decision of the Delegate / VD or Cabinet? Resolve the matter in the Assembly or at the ballot box. That's politics. You don't think a decision has been lawfully made? That's the judiciary. In the UK we call it 'Judicial Review' - the definition of which is listed as "judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached."

A statement was made earlier about the intentions of the drafters. I may not have been the prime drafter of this but - as the other Justices will tell you - I've made comments (some carried, some not) on about every point in this Charter. My intentions were purely honourable and about delivering that which I promised as part of my election statements I would deliver. Nothing more, nothing less. You don't like the Charter? Vote it down. Amend it. But don't question the motivations of four people have worked hard to put something into the Assembly for discussion.

(02-20-2015, 04:58 PM)Kris Kringle Wrote: I still don't see why we need an Attorney General in the first place. If a citizen has a complaint, then they can submit it before the High Court. Having submissions form, so that plaintiffs know exactly what to present,  would be much more useful than a useless AG position.

It's not the complaint, per se, it's the argument to make it stick (especially with criminal cases). We don't just make a charge and let the judiciary run with it. People defend themselves and have a trial., etc.

Thoughts on Summary Judgement?

"A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried." -Law.com

My suggestions:

1. Rename to Rules of the High Court of the South Pacific
2. Remove the Preamble
3. Remove Articles 1, 3, 13 and 14
4. Remove the sections that are already in the Charter or the Code of Laws
5. Remove figure of Chief Presiding Judge
6. Propose Criminal and Penal Code reform in a different thread

This thread should only be about specific Court procedure, not making a whole new document that looks more like an attempt to enshrine the Court as the most powerful institution in government. I believe this was made with the best of intentions, but is a very dangerous document.

Quote:Regarding some of Uni's concerns, this was being put together during the same time as the Great Council so it would just be updating this draft. Also, we can make a stipulation so that this needs a 75% vote to change it.

Not all of the Charter should require 75% for amendments - the Criminal Code and Penal Code has always been alterable with 50+1% support.

Quote:In respect of the legal question point, this doesn't supercede the Assembly in any way as far as I can see. If anything it makes it stronger. The court would only void a decision as a result of a legal question if it was "if they are found to have acted contrary to the Charter or Code of Laws in the process of making that decision". Something courts in every democracy do. Does anyone actually want to keep a decision of any body of TSP if it wasn't taken in accordance with our Charter or Col? All this does is make the relevant body go back and make the decision properly. Nothing in that line gives the judiciary the power to overturn a decision because they don't agree with it. You don't like a decision of the Delegate / VD or Cabinet? Resolve the matter in the Assembly or at the ballot box. That's politics. You don't think a decision has been lawfully made? That's the judiciary.

My concern is that:

1. Interpreting what is a contradiction with the Charter or a Code of Laws gives justices a lot of leeway and latitude to consider things contradictions which really aren't contradictions. I've seen it before and I'm worried about executive and assembly decisions being voided basically because some influential justices don't like them.

2. It can be very difficult to reverse the voiding of an executive or Assembly decision. For example, if the court were to look at its tea leaves and come to the conclusion that the process of Belschaft's security risk declaration was unconstitutional - it'd be difficult to re-vote on everything to return Belschaft back to being a security risk. The cabinet would have to revote and the Assembly would have to re-vote. It'd be a few weeks and a major opportunity for Belschaft. Arguably, his citizenship could be reinstated right there - giving him a voice in all of the proceedings and the ability to derail the conversations. It'd be a media hoopla over a situation where procedure WAS followed, but some justices didn't like the decision and could vaguely argue that something wasn't right about it.

I understand you have the best of intentions here, but the document simply carries with it a lot of institutional problems and not too much benefit.

I do like the idea of the 'first among equals' and I like that we're clarifying the relationship of the court between residents and non-citizens, but I don't think a new document is necessary and even if it were, a lot of the additions here are very problematic. 

Well sorry Hopolis however here if something isn't liked it's not going to pass even with change.

If this was passed the Court would overrule the Assembly, that would mean if the Justices did not like what the Assembly had passed the Court would over rule it! If the Assembly tried to have the Justices removed the Court would just over rule it! You can't give so much power to a few people.

This Charter would undermine democracy in fact it would as good as destroy it. The Court would be in charge of TSP and there would be nothing in the eyes of the law we would be able to do about it. As its unlikely the Justices would want to give up that power.

TAC we agree on something!!!! Is this a first?

(02-20-2015, 06:27 PM)Punchwood Wrote: Well sorry Hopolis however here if something isn't liked it's not going to pass even with change.

If this was passed the Court would overrule the Assembly, that would mean if the Justices did not like what the Assembly had passed the Court would over rule it! If the Assembly tried to have the Justices removed the Court would just over rule it! You can't give so much power to a few people.

This Charter would undermine democracy in fact it would as good as destroy it. The Court would be in charge of TSP and there would be nothing in the eyes of the law we would be able to do about it. As its unlikely the Justices would want to give up that power.

In order...

1. That's democracy. The Assembly doesn't support it, then it doesn't get approved. I've no problem with that.

2. Judicial Review has nothing to do with liking or not liking a decision. The quote I used which comes from the UK government pages on Judicial Review (worth a read) specifically states that it has nothing to do with liking or not liking a decision. It is whether the decision was taken lawfully. End of. I would never support the Judiciary being the driving pillar of government in TSP. This Charter doesn't advance such a thing. What it does advance is the judiciary being a balance between the executive and the people.

Given that every major democracy in the world has a version of judicial review and as far as I'm aware the Courts aren't running UK govt for example, I don't see how anyone can claim it would undermine democracy.

That being said, vote for it. Don't vote for it. I really couldn't care right now.

Yes however this isn't real life is it? Here people will become corrupt for the fun of it. That's the problem here and in the UK's case at the end of the day the Commons have the final decision on the matter. As they will simply change something about it or the law because MPs always win as they help create democracy.

(02-20-2015, 06:39 PM)Hopolis Wrote:

(02-20-2015, 06:27 PM)Punchwood Wrote: Well sorry Hopolis however here if something isn't liked it's not going to pass even with change.

If this was passed the Court would overrule the Assembly, that would mean if the Justices did not like what the Assembly had passed the Court would over rule it! If the Assembly tried to have the Justices removed the Court would just over rule it! You can't give so much power to a few people.

This Charter would undermine democracy in fact it would as good as destroy it. The Court would be in charge of TSP and there would be nothing in the eyes of the law we would be able to do about it. As its unlikely the Justices would want to give up that power.

In order...

1. That's democracy. The Assembly doesn't support it, then it doesn't get approved. I've no problem with that.

2. Judicial Review has nothing to do with liking or not liking a decision. The quote I used which comes from the UK government pages on Judicial Review (worth a read) specifically states that it has nothing to do with liking or not liking a decision. It is whether the decision was taken lawfully. End of. I would never support the Judiciary being the driving pillar of government in TSP. This Charter doesn't advance such a thing. What it does advance is the judiciary being a balance between the executive and the people.

Given that every major democracy in the world has a version of judicial review and as far as I'm aware the Courts aren't running UK govt for example, I don't see how anyone can claim it would undermine democracy.

That being said, vote for it. Don't vote for it. I really couldn't care right now.

Thank you Hopo for being a voice of reason here. I havent made up my mind on this but i think it is on the right track. I believe we need a fully functional judiciary that is on equal footing with the Assembly. it makes zero sense to even have a court system if its just for show.