INITIAL DISCUSSION - contempt of court

The JAL trial has highlighted that our region has no legal way to deal with issues of contempt of court. The court can act - but it does so outside of its legislative mandate.

We probably need to address this.

I am seeking to draft a new offence of Contempt of Court. this would cover such things as:

Treating the justices, officers of the court, Attorney General and defence counsel with contempt.

Refusal to enter a plea, respond to a summons, appear in court as a witness or defendent.

Conduct unbecoming while in court. (that would cover a defence counsel like me mouthing off at the court).


Penalties for contempt I would suggest as:

The right of the court to enter a plea on behalf of a stubborn defendant.
The right of the court to appoint a defence counsel for a defendant who is being uncooperative.
The right of the court to conduct a trial in absentia if someone refuses to attend.
The right of the court to suspend indefinitely or permanently or eject someone from the Regional Assembly for contempt.
Other sanctions against those who are deliberately uncooperative (I am open to suggestions).

what do you think? I would like an initial debate before I draft something for voting on. I am aware that some of these sanctions may have problems under our bill of rights (for example, the court-appointed defence counsel).


I would also suggest making this legislation retroactive, so that we can deal with those bastards in the JAL trial who are making a mockery of the region.

Are there any laws that forbid legislation being retrospective? Because typically that would violate the rule of law in most jurisdictions.

I am for the idea generally however. It is important that we establish some framework for the judiciary to hold someone in contempt of court.

Question "the right of the court to enter a plea......." would this decision be at the courts discretion, or should we legislate it to say that the plea shall always be considered innocent if the defendant refuses to enter a plea... I just don't really like the idea of leaving it to individual judges and what side of the bed they woke up on that morning.

I think thats all for now.. I support the general idea of the proposal.

You are probably right about the plea thingy.

How about "in the event of the defendant refusing to enter a plea, the plea shall be considered to be not guilty"

I would support that, that way its universal across the board.

Like I said to you on IRC. I still need to be convinced on the retroactive part of the legislation.

Good plan. Retroactive bit made me

What you‘ve outline seems reasonable to me.

The problem with NOT making it retroactive is that it still leaves the court acting illegally in the JAL trial.

I am trying to find a solution that does not leave our justices making up law on the fly.

As far as I‘m aware there is only one instance of contempt coming up, would it not be easier to judicial review that one decision and make this the contempt standard going forward? Regardless of a bills merits I‘d be very uneasy voting for anything with a retroactive clause in.

This wouldn't be legal based on Section 9 of the Bill of Rights.

9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of this Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

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Hileville:

This wouldn't be legal based on Section 9 of the Bill of Rights.

9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of this Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

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I agree with the court justice, It does seem that this proposed contempt of court draft would violate the bill of rights, and if this draft is Approved the way it is currently written it may lead to constitutional crises.

I agree. Ex post facto laws are prohibited but the contempt of court issue is straight-on target.

Here's one of the related problems, and directly concerning this issue, and one that needs to be addressed, and which details a major defect in the whole legal code.

There are two systems of law in terms of principles of enforcement:

Statute based: one in which the legal code is carved in stone and anything that is or isn't specifically mentioned is beyond the scope of the law or is not open to mitigating circumstances.

Common Law/Positive Law based: a legal system in which common sense and tradition can be used to negate charges due to mitigating circumstances. An example would be Common Law and Anglo-Saxon positive law which takes into consideration logical and rational issues that can over-ride strict tort, civil or criminal law.

And example of such would be the 'reasonable man' principle. This asks the primary question of whether or not a defendant acted in a way that any reasonable person would have acted and without malice or forethought.

If laws are inflexible they remove the human element. It also removes the possibility that certain injustices such as long, drawn out procedures like we find in the JAL trial violating the Common Law principle of the right to a quick and speedy trial in which the accused can confront the accusers.

The lack of a Common Law principle base for a legal code also precludes the Presumption of Innocence until proven guilty. Under our present system which has no underlying core of logic, reason, rationality and proper precedence in terms of underlying principles, there is a presumption of guilt. Hence, the JAL trial which has gone on forever.

That said, I would like to add to this proposal a means for providing for Clemency and/or Pardon for those who are being prosecuted in violation of logic, reason, rationality and lack of timely prosecution provided that a violation of some Common Law principle has been attained. I would also suggest that there be a provision for 'Jury Nullification' of charges in any given case should a Jury choose not to convict for any reason they so choose.

Very well, I take the point. I was simply trying to find a way to save the court from continuing to take illegal actions in the jal trial.

The ex post facto bit will not be included in the final draft.

Could not the RA pass a law that specifically 'Pardon's' JAl given his right to a speedy trial has obviously been violated, and as a result, the possibility of a fair trial is impossible?

That isn't needed: http://forum.thenorthpacific.org/single/?p=8047513&t=6894143

In terms of pleas, I don't think the Court should get to decide it. That wouldn't be good for their impartiality and what not. It would be simpler to just have the default plea be innocent if no response is made in a timely manner.

The other proposals I'm generally behind, though I might prefer a clear definition of what constitutes treating justices or counsels with contempt. I feel a very broad definition opens up unwelcome avenues for abuse.

Gulliver:

The other proposals I'm generally behind, though I might prefer a clear definition of what constitutes treating justices or counsels with contempt. I feel a very broad definition opens up unwelcome avenues for abuse.

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Personally I'd prefer a broad definition that allows judges room to move and decide on (and do the job we elect them for), than narrow one that virtually invalidates itself.

I think a guideline that warnings should be issued before jumping straight to declaring someone in contempt should allow everyone to get a feel of where a judge's boundaries are.

Good point Nam. It also allows those boundaries to be set by custom and practice and builds a specific precedent for contempt of court without having to actually define it in too much detail in the legal system (i.e.: by statute). It would allow for gradually creating a body of law for certain nebulously defined or undefined/unwritten 'laws' like 'contempt of court'. It would be (and should be) a Common Law system in principal, in a manner of speaking.