The power of the court

[Barbarossistan]

A known weakness of the TNP constitution is that the court as the first and final arbiter of what is and is not constitutional can effectively nullify the constitution and the Bill of Rights by simply refusing to address obvious violations. For a long time this issue was solved by a certain cautiousness of the court to push the limits of its power.

No longer, today the court threw all caution to the wind and handed down a decision deeply contemptuous of all constitutional and procedural limitations on the courts power. In so doing is has, probably accidentally, declared itself as extra-constitutional dictator, bound neiter by law nor precedent. While the court may yet see the error of its way and restate its position I think it raises the issue how this flaw in the legal system can best be corrected.

My own proposal would be that the constitution be amended to create a new Court of constitutional protection. This court would have as its sole power the ability to void a decision by the normal court on the grounds that it is unconstitutional or violates the bill of rights. The court would then have to give a new decision taking the reasons for the voiding into account.

I have not written a bill to this end as I would like to discuss the problem and potential solutions before a bill is drafted. The composition procedure and power of an appellate court as well as any alternative methods to rein in the court of TNP can be discussed here.

 

[Crushing Our Enemies]

I think a better solution would be to constitutionally prohibit the court from declaring anything to be outside the scope of review, unless it is not a government policy, government action, or law.

We could also consider allowing the RA to explicitly vacate previous rulings of the court when they make an amendment to a law that is germane to that ruling.

I prefer tipping the balance of power away from the court and towards the RA, rather than creating new government positions in the judicial branch.

 

[Eluvatar]

Is a Court finding that something is unreviewable actually binding on the court's ability to review, however?

I think something vaguely analogous to parliamentary sovereignty comes into play, there.

 

[Barbarossistan]

Well, the RA could be given the specific power to void court decisions, although the RA may of course already legislate to overrule a court decision by changing the law to that end.

The problem I see with moving such matters to the RA is that such a procedure is likely to be much longer then it would be before a court and the RA is inherently a political, not a legal body. Bad court decisions are typically the result of politics, so trying to get a political body to fix it seems asking for trouble. We make constitutions and laws at times when we are composed and reasonable precisely to stop ourselves from doing the wrong thing in the heat of the moment.

Additionally, there is the problem that f the RA voids a court decision I do not think it ill be practicable to have the RA give a concise motivation that the court can use to come to better decision and having the RA make a new decision on the case at hand seems especially undesirable, politics not law would be the basis for the decision.

The courts job is to a significant degree to keep the government in check, something the RA can do in theory but not in practice, but Quis custodiet ipsos custodes? is a very old problem. The court can keep the rest of the government in check, but who will be a check on the court? I dont see the RA do it effectively.

 

[Crushing Our Enemies]

Is a Court finding that something is unreviewable actually binding on the court's ability to review, however?

The problem is that the Court has issued an official ruling to that effect, rather than just denying the request for review. The court's decisions are binding upon itself - that has been written into the court rules, and has been the subject of a court ruling in the past. The only way the court can reverse that decision is either ruling on another request for review that explicitly challenges that ruling (the bar for which has just been significantly raised), or just ignoring it and engaging in more illegal activity by accepting requests for review that their previous ruling prohibits, without reversing it. That is exactly the sort of behavior that we are trying to discourage, and which we can potentially address with a constitutional amendment.

I still think it would be a good practical solution to amend the constitution to say that the Court cannot declare anything to be outside the scope of review except on the grounds that it is not a government action, a government policy, or a law. That would explicitly overturn the recent ruling, and hopefully provide enough explicit guidance to future courts that we won't find ourselves in a similar situation in the future.

 

[Mall]

The Court has always had the ability to declare whatever it wants, whenever it wants. That hasn't been a problem until recently, but it bodes for interesting times ahead. I don't know how you could counter it, the Court can always just declare any RA legislation unconstitutional, and can interpret any constitutional amendment how it wants. Abolish the Court, it doesn't really do anything anyways. Have the RA vote on stuff. No more criminal cases, those never work out anyways.

 

[Barbarossistan]

Is a Court finding that something is unreviewable actually binding on the court's ability to review, however?

The problem is that the Court has issued an official ruling to that effect, rather than just denying the request for review. The court's decisions are binding upon itself - that has been written into the court rules, and has been the subject of a court ruling in the past. The only way the court can reverse that decision is either ruling on another request for review that explicitly challenges that ruling (the bar for which has just been significantly raised), or just ignoring it and engaging in more illegal activity by accepting requests for review that their previous ruling prohibits, without reversing it. That is exactly the sort of behavior that we are trying to discourage, and which we can potentially address with a constitutional amendment.

I still think it would be a good practical solution to amend the constitution to say that the Court cannot declare anything to be outside the scope of review except on the grounds that it is not a government action, a government policy, or a law. That would explicitly overturn the recent ruling, and hopefully provide enough explicit guidance to future courts that we won't find ourselves in a similar situation in the future.

The big issue is that the court recently, in just a few lines of text, managed to declare itself unbound by any rule, and the reviewability or lack thereof of court decisions is only part of that. If the constitution were amended to make explicit that court decisions are subject to review, even if the court faithfully implemented that amendment, hardly a given, it would fix exactly nothing when it comes to sua sponte decisions, the importance, or lack thereof, of precedent, the requirement, or lack thereof, for the court to explain its decisions, and last but not least the ability, or lack thereof, of the court to ignore black letter law.

If the court always arrived at good decisions that it explains well the reviewability of court decisions would be moot, the court does not do that so it isnt, but ensuring the decisions are reviewable does not in any way ensure a review will result in something good.