FD - Judicial Changes

mr_sniffles

mr_sniffles

TNPer
As proposed by Heft:

ARTICLE V. The Judicial System.

Section 1. The Court of The North Pacific.

A - The judicial authority of the Regional Government is vested in a court, to be known as "The Court of The North Pacific." The Court is composed of a number of judicial officers, that is, a Chief Justice and at least two Associate Justices, with such an additional number as may be ascertained by law.
B - Trials and Hearings in civil, criminal and impeachment cases shall be before a single judicial officer.
C - Trials and Hearings in criminal and impeachment cases shall be before the entire Court, with the Chief Justice presiding.
D - Appeals of final judgments of trials and hearings of civil cases shall be to the Court en banc before the Chief Justice and all of the Associate Justices.
F E - The Court has power to adopt rules and regulations for the procedure of trials, hearings, and its internal operations, including rules of evidence and the random selection of trial and grand juries, not inconsistent with this Constitution or The North Pacific Legal Code.

Section 2. Chief Justice and Associate Justices.

A - The Chief Justice shall be the head of the Judiciary of The North Pacific Regional Government. The Chief Justice is responsible for oversight of all judiciary activities in the Region, civil, criminal, or otherwise, including hearings on Regional security issues and ejections from the Region.
B - The Chief Justice and the Associate Justices shall each serve a term of six months. The Chief Justice and the Associate Justices shall be Members of the Regional Assembly who shall hold no other office during their tenure as judges.
C - The term of office of the Chief Justice shall begin on the first day of the months of August and February. Nominations and referendums for the full term shall take place during the months of July and January. The term of office of the Associate Justices shall begin on the first day of the months of May and November. Nominations and referendums for the full term shall take place during the months of April and October. The Chief Justice and the Associate Justices shall be nominated by the Prime Minister with the advice and consent of the Cabinet, and during the interim period between the creation of a vacancy in the office of Chief Justice or an Associate Justice and the confirmation and installation of a successor to that office, the nominee shall serve as an acting judicial officer on the Court of The North Pacific and have the authority to exercise the duties and responsibilities of the office.
D - The appointment must thereafter be approved at a referendum, which shall extend for seven days, of the Regional Assembly, with the participation of a quorum, by at least a 50 per cent vote in favor of a motion for confirmation. The nomination and referendum election shall be conducted as expeditiously as practicable. If the motion for confirmation fails to receive such approval, then the appointee is not confirmed to serve as a judicial officer, and the Prime Minister shall promptly propose another nominee, with the advice and consent of the Cabinet, who shall act as a judicial officer, subject to approval of a motion for confirmation in a referendum by the Regional Assembly.

Section 3. Civil Proceedings.

A - Any nation that believes some other nation in The North Pacific has caused injury to any right, liberty, privilege, protection, or other duty that belongs to that nation as a matter of right under the Constitution of The North Pacific, or The North Pacific Legal Code, and which does not rise to the level of a criminal offense, that nation may file, or may request the Attorney General to file, a civil complaint.
B - The Court may adopt procedures for trial of a civil complaint, which may be tried with or without a jury.

Section 4. Criminal and Impeachment Trial and Appeal Rules and Procedures.

A - The Court shall adopt rules and regulations as to the procedures for trial of criminal indictments, and the trial of government officials on articles of impeachment.
B - All criminal trials shall be judged by all sitting Justices of The Court of The North Pacificinclude a randomly selected trial jury of five Regional Assembly Members drawn from the list of Regional Assembly Members.
C - A jury shall have the power to recommend a proportionate punishment to any conviction to the judicial officer, who shall impose such recommendation as the sentence of the Court provided that the sentence is proportionate to the offense in scope and duration. The Court shall impose a punishment proportional to the offense in scope and duration. Any sentence may include the suspension of any or all of a Regional Assembly member's rights to participate in the government as a Regional Assembly member, to hold office, to participate in the North Pacific Army, to participate in the North Pacific Intelligence Agency, or otherwise, as deemed appropriate to the circumstances.
D – Any defendant Nation in a Criminal proceeding retains the right to appeal the decision.
E – The Nation in question, or the Nation’s defense council, shall present a Notice of Appeal to the Speaker of the Regional Assembly. The Speaker shall then begin a Seven Day discussion period within the Regional Assembly. During this period, Regional Assembly members will have the opportunity to ask questions of all parties involved in the trial. The Defendant will be expected to present solid reasoning to support the assertion they have been wrongly convicted. Likewise, the Prosecution, including the Attorney General, Minister of Justice, and any other designated prosecutors, will be expected to present solid reasoning in support of the conviction.
F - At the close of the Seven Days, the Speaker shall initiate a Seven Day Referendum within the Regional Assembly. A minimum of 60%+1 of the votes cast must be in favor of the Defendant for the decision to be overturned.
G – If the Appeal is denied and the punishment passed on the Nation is longer than two months, the Nation retains the option of presenting a second Notice of Appeal after a minimum of two months from the start of the first Referendum. The process and requirements for the second appeal shall be the same as the first. The outcome of this appeal shall be final, and no more Notice of Appeals shall be accepted.

Section 5. Grounds for Civil, Criminal or Impeachment Proceedings.

The following acts shall constitute grounds for civil, criminal or impeachment proceedings:
A - Failure of a Nation to observe and abide by the Constitution of The North Pacific and The North Pacific Legal Code.
B - Failure of a Nation to refrain from the threat or use of force against the territorial integrity or political independence of any other nation or region in a manner inconsistent with the Constitution of The North Pacific and the North Pacific Legal Code.
C - Failure of a Nation to refrain from giving assistance to any nation or region against which The North Pacific is taking defensive or enforcement action. Exceptions is given to those Nations acting with official authorization of the North Pacific Army or the North Pacific Intelligence Agency, and is subject to the consent of the Cabinet officer having appropriate jurisdiction.
D - Failure of a Nation to Observe Its Oath of Office or its Oath as a Regional Assembly Member.


Section 6. Continuity of Trials.

In the event an elected term of office for the Attorney General, the Prime Minister or the presiding judicial officer in a trial expires during trial proceedings, the outgoing incumbents of the designated offices shall complete the trial. In the event of a vacancy in the office during the trial proceedings, the acting or interim successor shall assume the responsibility for the trial without interruption or delay.

Section 7. Impeachment.

A - Any Regional Assembly Member may bring charges against a Cabinet-level position if they believe the officeholder has violated this Constitution or partaken in other gross misconduct. The Nation must provide enough evidence to a Grand Jury to warrant a trial evidence to the Speaker of the Regional Assembly or, if the Speaker is the target of the charges, the elected Delegate, and either the Cabinet, in the case of charges being brought against an officer of the Court, or, otherwise, the Court. Whichever body this duty falls upon shall have not more than 96 hours to review and weigh the evidence cited in the complaint, and determine whether a referendum is warranted.
B - A panel of five Regional Assembly members who are not holding a Cabinet-level position and who are randomly selected from a jury pool shall be selected by the Chief Justice to review the evidence given. If the Chief Justice is being impeached, the Prime Minister will randomly select the Grand Jury. If any jury member expresses a clear bias, they shall be excluded from the Grand Jury and replaced with another juror. The Grand Jury shall have not more than 96 hours to review and weigh the evidence cited in the complaint, and determine whether a trial is warranted.
B - All proceedings shall be recorded and sealed by the Chief Justice, or his/her designees, where applicable (including the Prime Minister if the Chief Justice is being impeached), until that officeholder is either exonerated or removed from office. Thereafter, the proceedings shall be published.
C B - If the Speaker or Delegate and the Cabinet or Court (in accordance with Clause A), by majority vote, decides that the given information provides a reasonable basis to warrant a referendum for removal from office, the Chief Justice Speaker (or the Prime Minister Delegate, if the Chief Justice Speaker is being impeached) shall call a referendum within the Regional Assembly. This trial shall be conducted under the same rules as a criminal trial, except that the Prime Minister shall preside if the Chief Justice is being impeached, and all remaining Cabinet Ministers shall serve as the Jury. Should the defendant be found guilty, they will be immediately removed from office. The Referendum shall last for Seven days. If at least 66%+1 of the votes cast are in favor of impeachment, the defendant will be immediately removed from office. After removal, the removed officeholder may be subject to expulsion from the Region following a separate criminal trial.

Section 8. Right to Judicial Review.

A - Any nation may request the Court to review any statute, law, or other government action to determine whether that action, statute, or law is in conformity with or is in violation of a provision of this Constitution.
B- The Court may grant such a remedy as it determines to be appropriate in the circumstances.
C - In any such proceeding, the Court shall give notice to the Prime Minister and the Attorney General of the request for judicial review, and may permit the Regional Government or other parties to intervene in a judicial proceeding for the purposes of the requested judicial review.
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If such amendment passes then additional changes to TNP Laws will need to be made too. As would a new edition of Interim Court Rules.
 
Heft:
Grosseschnauzer:
Not really.

First, it should be the burden of the Attorney General/Minister of Justice, and the designated prosecutors to defend a conviction on appeal, not the Court's.
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Well, that's not a difficult change to make, or one I'm really hung up on, so I don't have any issue with that.

Second, that provision underscore my objection to this proposal in that it would make the judicial branch subservient to the legislative branch, rather than being one of three equal branches of government.
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Hmm, I've always considered the RA to be above the rest of the government, so that doesn't really bother me. The Judiciary's job is to protect the RA, and to protect....minorities from the potential mob-mentality that a body like the RA could develop. However, if the Judiciary has just convicted someone, than they obviously feel that the person being convicted is in the wrong and not simply being lynched or whatnot.

As to the process of the basis of the appeal, it would still be difficult if not impossible to delineate the rationale for the result of an appeal if more than one issue were raised.

I cannot even begin to imagine thrashing out a statement in the regional assembly stating the reasoning behind a vote on an appeal on one issue, much less if more than one issue were raised. It can be difficult enough among a handful of justices, but the whole Regional Assembly?
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You mean it would be difficult for the RA to craft an announcement stating "Appeal has been denied for X, Y, and Z reasons" (of course, much longer and more verbose)? Well, yes, and it would also be unnecessary. Hence, I'm not too bothered by that.
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The conceptual differences over the role of the three branches of government is so basic and fundamental to this discussion and proposal that I wouldn't know where to start.

I believe there is another way (or several other ways for that matter) for any changes in the judicial system to be addressed that do not threaten the indepdendence of the judicial branch.

The roles of the three branches of government are so intertwined in a bad way under this proposal as it currently stands. Such a drastic change is not in the best interests of regional poltical stability and opens the door to autocratic government. A government dominated by the legislature isn't much better than the government dominated by the parties who controlled the Delegate's chair during the Pixiedance era.

A complete as possible separation needs to be maintained.

And keep in mind that the protection provided by the jury system was its randomness -- so that the possibility of a "packed" jury (or a "kangaroo court" was greatly reduced.

As to knowing the basis for the result of an appeal.....such issues provide guidance to the trial courts in the future. Knowing only that a verdict was overturned without knowing why makes consistency in the judicial system far more difficult if not impossible. The absence of stating and explaning the reasons for a reversal also makes it far more difficult to see if changes in the substative law or procedure might be needed. I would also suggest that it would weaken the constitutional guarantees included in the Declaration of Rights. In any event, it is not in the best long-term interests of the region to take that route.
 
How will you maintain the randomness of juries if only a few persons are available to participate therein?

NS does not lend itself well to the intricasies of RL judicial situations given that there are no ways to enforce jury participation like RL nor to ascertain true motives and allegiances and bias like in a true jury selection process. Do we want to incorporate that too?

Then most members of any region would have to recuse themselves from sitting in judgement, for I'm fairly certain that many have already taken sides on matters.
 
I can see your point Fergi, but I am beginning to see Grosseschnauzer's point. Juries are difficult and often tedious to assemble in NationStates, however they do protect the speration of the branches. Is it not worth it to go through more trouble to keep the branches more seperate?

Fergi, how would you justify the idea of making the Judicial Branch subserviant to the legisaltive branch.
 
Every Jury system I've seen would probably do more (in actual practice, as opposed to meaningless theory) to damage our liberties than these changes I've proposed.

Also, the charge that this violates Separation of Powers is, I believe, simply wrong. The only area this makes the Legislature superior to the Judicial is in the area of appeals for criminal trials. It's, really, little more than a Legislative check on the Courts.
 
I would agree with Neu Grosseschnauzer here, although I understand that the difficulties of assembling a jury when you cannot make someone participate.

Juries by definition need to be one-hundred percent unbiased and I think it does need to stay that way.
 
Emperor Matthuis:
Juries by definition need to be one-hundred percent unbiased and I think it does need to stay that way.
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That is impossible in this setting. Everyone has, at the very least, been exposed (and in most cases been somehow involved with) the issues going to trial. Hence, no one can be 100% unbiased.

AlHoma:
I hate to throw a wrench into the works, but (currently) the AG is also the MoJ
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Yea, what's up with that anyway? Hardly seems like an effective way to separate the branches. Regardless, I'm not sure that really affects this proposal, unless I've missed something?
 
Under the original Constitution, the MoJ headed all legislative and judicial functions of the regional government. There was no AG and no Speaker.

Under the NPC revision, an Attorney General was introduced to serve as chief prosecutor, so that the MoJ could act as a judicial officer with0ut any conflict. The MoJ still led the legislative functions.
At the Constitutiional Convention, having served as MoJ, I pushed for the creation of an independent Court headed by a Chief Justice and others pushed for a regional assembly. I also proposed that the legislative functions be headed by a Speaker. In effect, the old Minister of Justice position was divided between the Speaker and the Chief Justice, and the responsibility for prosecutorial functions remained in the Ministry of Justice, now headed by the Attorney General. That is why the Constitution specifies that the Attorney General, serving as Minister of Justice is an elected member of the Cabinet.
 
Heh, ahh, I see. Well, doesn't particularly change the functionality of it, just makes it a little redundant. Feel free to change it to just include the Attorney General.
 
Heft:
Emperor Matthuis:
Juries by definition need to be one-hundred percent unbiased and I think it does need to stay that way.
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That is impossible in this setting. Everyone has, at the very least, been exposed (and in most cases been somehow involved with) the issues going to trial. Hence, no one can be 100% unbiased.
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No jury is every 100% unbiased. But it is a lot more biased without a jury and just a judge deciding the outcome of the case.

In the end I think the positives for having juries outweight the work that it takes to assemble them.
 
No jury is every 100% unbiased. But it is a lot more biased without a jury and just a judge deciding the outcome of the case.

In the end I think the positives for having juries outweight the work that it takes to assemble them.
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I don't, not when it takes over a month (two?) to get a jury together. I do not believe random juries are necessarily going to be anymore unbiased than the justices.

sniffles:
Just tell me when you're ready and show me the FINAL copy and I'll send it to a vote.
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The final copy is just the one you posted with "Minister of Justice" removed from 4-D.
 
I like the idea of a jury...but not a grand jury.

I would be willing to let the justices decide if a case has merit, but guilt should only be assigned by a jury.
 
My main objection is to:

Section 1, part c: "Trials and Hearings in criminal and impeachment cases shall be before the entire Court, with the Chief Justice presiding."


Since impeachment (that is, bringing charges against an elected or impointed official for wrong doing in relation to the office) is reserved for those elected to office, the decision to convict/equit should be by those who constitute the electoral body or their representatives, i.e.: the Regional Assembly.

Traditionally, in parliamentary systems, it is the legislative branch (representatives) who conduct trials resulting from impeachment.
 
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