Judicial Reform
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Gracius Maximus
Tyrant (Ret.)
Based upon my interpretation of the strike-through bonanza, it would cease to exist.RPI:
Because the foundation of a non-adversarial justice system is a Judge Led Inquiry. A separate office tasked with prosecution is a fundamental element of adversarial systems, whereas in non-adversarial systems the "Assessors" or officials responsible to them conduct an investigation into the facts of the matter, devoid of preference either for or against conviction. An AG or an equivalent official does not exist in non-adversarial systems.RPI:
There is an ongoing question as to how the investigation should be be conducted in TNP, and there have been suggestions of establishing an independent investigative office, but I believe that such a separation compromises the integrity of a Judge Led Inquiry. I'm currently leaning towards one of two options;
1. A fourth justice, so one of the justices could act as investigator via rotation
2. Court appointed investigators as needed
There's no real reason for there to be any particular number of justices, but generally speaking you want to have an odd number if possible so as to prevent tied decisions as much as possible. The number four was suggested so as to allow three "Assessors" and one "Investigator" during criminal matters. If instead of a justice the investigation was to be handled by appointed officials, then maintaining three justices is the natural option.RPI:
A strong argument could be made in favor of increasing the size of the court from three to five justices, as it reduces the impact of an absent or busy justice (four justices could still reach a 3/1 majority with one being absent, whilst with three justices an absence leads to a 1/1 tie) and introduces more opinions and voices in internal debates, which is a good thing in terms of deliberation and judicial review. However, there is the issue of the number of competent candidates, and whether we have enough quality individuals seeking judicial office to maintain five justices at the same time.
Ideally, if it could be shown that we have enough people of quality to staff it, I would be in favor of moving to five justices and having appointed investigators as needed.
PaulWallLibertarian42
TNPer
Wouldnt a non adversarial system create the justices as judge jury and executioner?
You said yourself in the OP there would be no traditional Prosecution or defense
Instead Judges would act as Investigators and Sentencers. By researching the facts of the matter and coming to a conclusion themselves...to me I would be afraid the accused would not be able yo defend themselves accordingly if the justices already researched the facts beforehand and already had preconcieved notions or made up thier minds on the matter before formally announcing the inquiry findings...
The Adversarial system has its own flaws....but I like the idea of the Justices remaining impartial and not being vested in the investigations and hearing arguments from the prosecution and defense and coming to a conclusion based on facts and the arguments.
To keep the elements of the court compartmentalized.
The AGs office takes a complaint and launches its inquiry/investigation and sorts out the facts of a case.
The judges hears this...
And then the accused is afforded a legal representative of their own choosing to present counter evidence/theories to refute the claims
And the Justices uses their best judgement and rationale to make a ruling.
I dont think there is nessicarily an issue with the adversarial system...but we need to elect smart judges and put real enforceable policies on the books to allow those accused to provide an adequate defense but also we need to draw a fine line and not allow people to obstruct justice from being served or to grandstand.
You said yourself in the OP there would be no traditional Prosecution or defense
Instead Judges would act as Investigators and Sentencers. By researching the facts of the matter and coming to a conclusion themselves...to me I would be afraid the accused would not be able yo defend themselves accordingly if the justices already researched the facts beforehand and already had preconcieved notions or made up thier minds on the matter before formally announcing the inquiry findings...
The Adversarial system has its own flaws....but I like the idea of the Justices remaining impartial and not being vested in the investigations and hearing arguments from the prosecution and defense and coming to a conclusion based on facts and the arguments.
To keep the elements of the court compartmentalized.
The AGs office takes a complaint and launches its inquiry/investigation and sorts out the facts of a case.
The judges hears this...
And then the accused is afforded a legal representative of their own choosing to present counter evidence/theories to refute the claims
And the Justices uses their best judgement and rationale to make a ruling.
I dont think there is nessicarily an issue with the adversarial system...but we need to elect smart judges and put real enforceable policies on the books to allow those accused to provide an adequate defense but also we need to draw a fine line and not allow people to obstruct justice from being served or to grandstand.
In theory that is the case, but in reality what we get is a defense and a prosecution arguing over interpretation of facts that are fairly clear to everyone, and searching for legal loopholes to support their argument, whilst the Justices act as circus master trying to maintain some actual sense of direction, purpose and sanity.
Adversarial Justice works fantastically IRL, but sucks in NS.
Adversarial Justice works fantastically IRL, but sucks in NS.
Gracius Maximus
Tyrant (Ret.)
Out of curiosity, how many terms have you served as a member of TNP's Court (as Justice or AG)? And how many trials in TNP have you participated in directly?Belschaft:
RPI
TNPer
I don't believe he has to serve as a member of the court, but I do wonder: have you personally participated in, or at least watched a few court proceedings to back up your claim that "...TNP's Courts are dysfunctional to the point of being a running joke in NationStates," Belschaft?Gracius Maximus:
I continue to note that there has been no argument whatsoever put forward to support the idea that electing an investigator independently would be a problem. Electing a prosecutor would not work, yes, but an investigator is not a prosecutor.
In my opinion, there are significant benefits to electing them separately - primarily that you are electing someone whom you believe can and will act as a neutral party, who will investigate complaints without bias, who will present evidence logically and make rational arguments for how to proceed, and who will seek resolutions above convictions. Meanwhile, you are separately electing judges whom you believe can and will listen impartially and make good decisions, and who you also believe can and will rule correctly on questions of law.
Someone can be a good investigator without being a good justice, and someone can be a good justice without being a good investigator. It makes no sense whatsoever to force two entirely independent roles into a single body, and I for one do not accept that it's a problem simply because you're calling it one.
An investigator elected separately, tasked specifically with investigating, is no more prone to prosecution bias than an investigator appointed on the spot or selected from the Court. If there's evidence to the contrary, present it.
In my opinion, there are significant benefits to electing them separately - primarily that you are electing someone whom you believe can and will act as a neutral party, who will investigate complaints without bias, who will present evidence logically and make rational arguments for how to proceed, and who will seek resolutions above convictions. Meanwhile, you are separately electing judges whom you believe can and will listen impartially and make good decisions, and who you also believe can and will rule correctly on questions of law.
Someone can be a good investigator without being a good justice, and someone can be a good justice without being a good investigator. It makes no sense whatsoever to force two entirely independent roles into a single body, and I for one do not accept that it's a problem simply because you're calling it one.
An investigator elected separately, tasked specifically with investigating, is no more prone to prosecution bias than an investigator appointed on the spot or selected from the Court. If there's evidence to the contrary, present it.
Gracius Maximus
Tyrant (Ret.)
I am fairly certain I know the answer to this question, but my question still remains. You make a lot of generalisations.Gracius Maximus:
I've served one term as a Court Justice, and one term as an Assistant-Attorney General (under you). During my time as Justice no criminal charges were brought to trial, but I been involved in two trials in TNP as Defense Counsel and one trial as Assistant-Attorney General.Gracius Maximus:
Outside of TNP I've served three terms as Chief Justice in TSP, acted as a prosecutor in TSP, and have acted as a consulting legal counsel to a number of people over the years in various regions.
I'd say I have fairly extensive NS legal experience, and disagree with the suggestion that my criticisms of TNP's current justice system constitute generalizations.
Funkadelia
TNPer
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I would rather find out which option everyone prefers rather than have this time wasted because of this disagreement over which option should be implemented.
I'm not sure the poll is useful - there's a big difference between supporting an elected investigator as one of the justices and supporting an investogator elected separately from the justices.
Gracius Maximus
Tyrant (Ret.)
I disagree. I do not believe 'legal' services from outside TNP constitute any measure of experience in regards to our system here. I have been associated with judicial systems at the regional level across NS for over a decade but do not ever enter into the Courts here with a predisposed opinion of the outcome based upon that 'experience'.Belschaft:
While I am one of the first to decry some of the inadequacies of our system, I also see the value of pursuing excellence within the system as it exists instead of instantly defaulting to an 'it's broken so why try' mentality that many have decided to adopt over the last year or so.
TNP has one of the longest serving systems of justice within NS. The system can work, and has in the past. It is the overly cumbersome Court Rules, which are not part of what you are trying to change here, and the incompetence of the people winning office because of the asinine popularity syndrome that often overtakes the Justice electoral process, that are the problems, not the structure itself.
I agree with the Vice Delegate. I do not believe you have made a sufficient argument against the current system.
So sorry to be late to this party. I am open-minded towards considering alternative systems. Are there other regions using the non-adversarial system? It would help me understand it better if I could see it in action somewhere.
I do believe we need to be careful of the number of participants any new system would require. When I hear numbers like 5 justices and 3 or more investigators... well, there are a couple of reasons why that's a bad idea. First, it's like herding cats to get that many participants with a sustainable level of involvement over the long term. Second, ideas that look great during periods of high activity can become unworkable in the event forum interest flags.
I do believe we need to be careful of the number of participants any new system would require. When I hear numbers like 5 justices and 3 or more investigators... well, there are a couple of reasons why that's a bad idea. First, it's like herding cats to get that many participants with a sustainable level of involvement over the long term. Second, ideas that look great during periods of high activity can become unworkable in the event forum interest flags.
To my knowledge no region in NS currently uses a non-adversarial system. Adversarial justice systems are ubiquitous throughout NS due to a tendency for people to ape really life practice when drafting constitutions, but my experiences in TNP and other regions have led me to believe this is often a mistake.RPI:
Some regions have used inquisitorial systems, but they have tended to have a very... well, Inquisitiorial bent. 
But no one expects the Spanish Inquisition. (someone was bound to say it sooner or later)
Currently, the AG's office is tasked with fact-finding, organizing and submitting the evidence. Then they must construct arguments which explain how the evidence shows that laws were broken. It is not a easy job.
Under the proposed system the AG is eliminated. So who is going to do what? The Office of Inquiry will do the fact-finding, but who does the rest?
Currently, the AG's office is tasked with fact-finding, organizing and submitting the evidence. Then they must construct arguments which explain how the evidence shows that laws were broken. It is not a easy job.
Under the proposed system the AG is eliminated. So who is going to do what? The Office of Inquiry will do the fact-finding, but who does the rest?
The job of the AG is to produce a case in favor of conviction, and present it as such. Based upon current popularity it'll probably be replaced with a non-partisan investigative office tasked with fact-finding and presentation of all relevant evidence.Great Bights Mum:
The key distinction between adversarial and non-adversarial systems is that there isn't a "rest" once you get past fact-finding. The investigator presents the facts to the assessors, and interested parties - especially the accused - are invited to submit evidence as well. Instead of an adversarial trial, however, we move immediately to deliberation with the assessors examining the facts and questioning witnesses as needed, before coming to a decision. There's no face of between a prosecution and a defense, as it's an inquiry rather than a trial.
So there are no arguments? What would the counsel for the accused do?
I think it'd be more accurate to say that the job of the AG is to figure out if there is a case that merits conviction, and construct one if there is. The AG's office has rejected plenty of complaints that don't merit pursuit, so it's not entirely and solely about always getting a guilty verdict.Belschaft:
Correct, there is no "argument of the evidence" between a prosecution and a defense, as there is no formal prosecution or defense; instead there is an investigator, who presents evidence, and assessors who determine fact. The counsel for the accused would be responsible for representing the interests of the accused, be it by providing evidence, organizing witness testimony or negotiating a plea with the assessors.Great Bights Mum:
You need to look at the process from a different perspective, as you're trying to compare the structures and work out what is equivalent in a non-adversarial system to the adversarial norms you're used to. There aren't equivalent structures as the two systems are fundamentally different.
In an adversarial system you have;
1. A prosecution, who argues for conviction
2. A defense, who argues against conviction
3. The Justices, who consider the arguments and determine guilt and sentence
In a non-adversarial system you have;
1. An investigator, who presents evidence and witnesses to give testimony
2. Interested parties, who may also present evidence and give testimony
3. Assessors, who examine the evidence, question witnesses, and guide the investigation before determining fact
The key distinction is that in an adversarial system you have two opposed parties who present the evidence they want the court to see, and argue what it means, with Justices managing the debate. In a non-adversarial system you have an investigation, to which all interested parties are invited to contribute via. evidence or testimony, guided by assessors who seek to determine fact. The assessors don't hear arguments because their not interested in partisan interpretation of events; the idea is to present them with nothing but the evidence, so they can determine what happened.
Bel, I think the part that I'm skeptical about is the idea that the investigator will actually present all the facts, and present them impartially. If the accused is a friend or an enemy, I think that's very likely to skew what they say and how they say it.
I think the area of witness testimony is where it could get very dodgy. The "facts" an investigator uncovers are dependent on the types of questions he asks. The counsel for the accused must be able to cross-examine witnesses.
Also, I don't see how the accused can be dealt with fairly if his counsel does not present arguments on his behalf - in short, Defends him.
Finally, how does one negotiate a plea? Negotiation presumes there are 2 different positions in opposition to one another.
Also, I don't see how the accused can be dealt with fairly if his counsel does not present arguments on his behalf - in short, Defends him.
Finally, how does one negotiate a plea? Negotiation presumes there are 2 different positions in opposition to one another.
Which was my concern as well, and why I didn't want to split the investigative function from the assessor function. This risk is mitigated by the ability of interested parties to submit evidence, and if the investigator is acting in a non-objective manner it should become apparent, but corruption in officials is always a concern.SillyString:
Eh, I think it's a risk no matter how they're chosen, unless you really want to say that we've never seen justices have issues with personal bias.
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- Eluvatar#8517
Belschaft:
Interestingly enough, TNP did not adopt an adversarial justice system due to a tendency to ape real life. It did so as part of a broader reaction to the NPD and the failures of TNP's first constitution, which included a not-quite-adversarial system.
The Blackshear Constitution:
One of the fatal flaws of the above system, as predicted at the time by Costelloism, was in the power in the hands of the Minister of Justice. (Gracius Maximus could tell us more on this point, I imagine).
The NPD's Ministry of Liberty followed a similar model and was infamous for 2 minute trials and assumption of guilt.
Following the immediately preceding crisis and the period of the NPD regime, TNP held a constitutional convention, in which a solid consensus favored the institution of an adversarial system with a separate official prosecutor and presiding judicial officer.
Now certainly whatever non-adversarial system of justice we put together today, it will not be controlled by a single person. However, I am concerned that we may be taking things for granted.
Our system is not perfect. It has only convicted someone who contested an accusation once so far. On the other hand, one would be hard-pressed to accuse it of ever wrongfully convicting anyone.
It's not the case however that only the inability to prosecute to the expected standard has been an impediment to justice. Prior to a number of more recent reforms, but after the adoption of broadly the current approach of separate elected prosecutor and justices, the first TNP v JAL trial was devastated primarily by inconsistent behavior by the justices. (The second was dismissed by the court for no legally adequate reason I can fathom.) The third TNP v JAL trial was disrupted by a disruptive defense counsel and a presiding justice who allowed himself to be riled by them.
I fear that an expectation that only 'pure' evidence could and should be presented to assessors is flawed for at least a couple reasons. The first is that TNP Law is written with some concepts that are difficult to quantify or subjective. A number of crimes are defined with intent conditions, for instance. Intent is debatable. Evidence of intent is subject to interpretation. Different interpretations can only be compared, as I see it, through debate. The second is that the degree of certainty evidence presents can be debatable. arguments can and should be made regarding the value of unauthenticated screenshots or logs as proof.
I think that this is a useful discussion to have, and we may indeed want drastic changes, but we should consider them in full understanding of the facts.
Looking back, one big concern of mine is that it is risky to build any system where there is one person who needs to be impartial for the system to be fair and is not directly answerable to anyone else.
Gracius Maximus
Tyrant (Ret.)
We need a 'like' button for this board.
I agree with the points made by Eluvatar above. And since it was mentioned, he is correct, the NPD did maintain a non-adversarial system of justice and as can be seen from the historical record, it can be manipulated much more easily from within than the current system. Giving the Justices all of the authority and all of the power would be a negative for the community in my opinion. All it takes is one heavy-handed Justice who is also charismatic in his arguments to completely disrupt the system according to how this would be set up.
I agree with the points made by Eluvatar above. And since it was mentioned, he is correct, the NPD did maintain a non-adversarial system of justice and as can be seen from the historical record, it can be manipulated much more easily from within than the current system. Giving the Justices all of the authority and all of the power would be a negative for the community in my opinion. All it takes is one heavy-handed Justice who is also charismatic in his arguments to completely disrupt the system according to how this would be set up.
While this is true, we do at least have a little bit more to work with than just the term "intent".Eluvatar: