In light of the recently passed AGORA Act, is it your opinion that the Court no longer can resolve matters of ambiguity or clarify legal questions through the normal Court process? If not, what is the best way for the Court to do that? Is that something the Court should be doing?
In a sense, it depends what is meant by "the normal Court process". I do not think that the AGORA Act has changed how the bulk of Court processes work in that regard. In requests for review concerning the legality or constitutionality policies or acts or laws or in criminal trials, the Court necessarily has a power to resolve legal questions, including ambiguity in the law, insofar as it forms part of the those functions. If the question of whether a ban is lawful, for instance, turns on the meaning of the law authorising the ban, the Court can decide that meaning; if a Defendant were to say that they are not guilty of a crime not because they have not done what is said but because what that have done simply is not within the definition of the crime, the Court can decide the scope of the definition.
However, I do think that the jurisdiction of the Court has been reduced by the AGORA Act. Any request for review must now necessarily turn on particular policies, acts or laws being said to be illegal or unconstitutional. The Court cannot properly answer requests that do not raise such a challenge. That is a change because it is demonstrably the case that the Court has for the longest time had a power to determine meaning independent of a request saying a particular policy, act or law is illegal or unconstitutional. That tended to require the intervention of the Attorney General, due to the difficulty in meeting the affected person standard in such cases, but it could be done. By way of example, the Court's decision
Re: the Standard of Proof and Intent was on a request by the Attorney General as to what the law on fraud meant, not on any claim that the law was unconstitutional or that it had been incorrectly (and thus illegally) applied. There are several other decisions, including some that are quite fundamental, that were reached similarly. Those decisions could not, to my mind, be properly made by the Court under the law as it now stands, without there being a challenge to specific act or policy requiring consideration of the law underlying a the act or policy or a challenge to the law requiring its meaning to be decided so that it can be decided whether that meaning is contrary to the Constitution.
As to whether it is something the Court should be doing, I think that the answer is clearly yes when it is required to carry out the other functions of the Court. As to whether there should exist a freestanding jurisdiction to address ambiguity, I remain of the view that there should. It has, I think, been a clear benefit to the region that the Court has been able to answer requests of that nature historically and the law would be less clear and less developed if the Court had not had that jurisdiction in the past.
What is your opinion on setting up a civil procedure for the Court? Is it necessary? Would it work? If you attempted to pursue it, how would you do it?
I presume that this is meaning to resolve disputes as between residents. I think, ultimately, that at this stage that must be a matter for the Assembly, given the Court's civil jurisdiction was expressly repealed. However, my view is that there should not be a such a jurisdiction or, if there is, it should be of highly limited nature.
Such a jurisdiction presents a number of issues that make it difficult, if not impossible, to do well. One issue is deciding what disputes between residents actually should be subject to the oversight of the Court. In doing so, just drawing from Real Life does not really make sense: contractual relationships don't really exist in NationStates, perhaps the exception to that would be employment-type relationships but the vast majority of them are in governmental settings and are, on anticipates, generally within the scope of the Court's jurisdiction by that means; many other types of claim similarly do not exist. Perhaps the most notable exception is in defamation, given that NationStates is a world of words. Another issue, perhaps the more intractable, is as to what the Court would realistically be able to do in such a dispute. While the Court could decide which side is right, there are not really that many remedies that the Court could give.
I do not think that a civil jurisdiction is necessary. As I have indicated, I think that most of the sort of thing that is of a private, civil nature in Real Life does not exist in NationStates in a meaningful way or is already covered by the Court's jurisdiction in relation to government, which plays a truly preeminent role in NationStates.
I am going to take the latter two together, because I think that it could work and, if I were to do it, I would try to do it an a way that would work. There are two main things I think one would need to think about to make such a jurisdiction work: scope and enforcement.
The first thing, and most important thing, that I think could make it work would be to narrowly define its scope. I think, in so doing, one would have to look at the areas where the Court can, realistically, give a remedy of some kind. A possibility is defamation, the Court can give remedy by making a determination as to the falsehood or otherwise of the thing said. Another is in relation to organised entities that have rules to govern them (by way of example, the University were it to operate privately), in relation to which the Court can decide the meaning of those rules and order them to be carried out. I would note, I think that there are limits to those remedies: the Court deciding on a falsehood will not necessarily change beliefs so as to provide adequate restitution; an entity's members could disband the entity, given they could not be forced to remain associated.
The second thing, which I think would be necessary but also one of the most problematic issues, would be to establish criminal sanction for failing to abide by an order. Insofar as the remedy of the Court does not rely simply on the Court's words being promulgated and, instead, depends on an individual's compliance. Unfortunately, methods of enforcement in NationStates are few and far between and tend to be relied on for criminal issues. Realistically, to avoid simple defiance of the Court's orders, one would have to establish a crime of failing to comply (willfully) with an order and without doing so I think one would invite nations not to comply.
There are many other things that one would have to consider: the burden and standard of proof; what the mode of trial would be (the whole Court, an individual Justice, some mix of modes for different issues); whether the rules of evidence would be the same or different to criminal trials; and many others. These things, though important, don't seem to me to be the critical ones for making a system that works.
Is there any criteria you feel would render a legal complaint frivolous or illegitimate? If so, what circumstances do you imagine would meet this criteria?
There are a number of circumstances that would render a complaint frivolous, I would not claim to be exhaustive. In basic terms, to my mind it would be a complaint which does not have a real chance of succeeding or which has already been subject to decision by the Court. To take an example, if a request for review was filed challenging a Court approved pre-trial ban on the basis that the nation in question was not recklessly gathering endorsements, such a request would be frivolous given it does not actually go to the decision at issue. Alternatively, suppose the moderating Justice in a trial allowed a given piece of evidence to be admitted and the Defendant files a request for review of that decision, which is decided against them, only for the Defendant to file the request again. Those are, I think, particularly clear scenarios.
There are others that are, perhaps, less clear but which, to my mind, could be thought frivolous, though each would turn on its own facts. Again, by way of example, suppose a Prosecutor were to challenge a decision of the Court to order the disclosure of exculpatory evidence, arguing the Court could not make such an order, while it may have at one time been arguable as to whether the Court had the power to do so, the Court has ruled on the issue several times and reached the conclusion that it does, such that it would, to my mind, be frivolous to challenge on that basis.
There have been a series of cases within the last year which featured guilty pleas and advocacy for reduced sentences, and yet the Court rendered what many felt were overly harsh judgments. Looking back at these recent cases, can you identify any which you feel had overly harsh sentences, and if so, how would you have ruled differently?
Being frank, I think that the judgments of the Court as to sentence have tended to be about right. I presume that that will not be a surprise to many, given that I anticipate that one of those that has been felt to be harsh was
Whole India, in relation to which I drafted the order. As I have indicated, I think that sentencing is among the most difficult tasks for the Court, given the breadth of its discretion and the sparsity of guidance, and it does not surprise me that the result is that there is disagreement.
To go through the decisions in issue, if one sets the sentences given against those recommended to the Court, I do not think that they were truly that harsh:
In
Madjack, the recommendation of the Defendant was a 2 month voting suspension, the prosecution was for a 4 month voting suspension and an election restriction until after the January 2020 election, and the final sentence was a 3 month voting suspension and an election restriction until 1 February 2020, between the recommendations given to it albeit nearer to the prosecution's.
In
Bobberino, the defence recommendation was a 2 and a half month voting suspension, the prosecution was for a 2 and half month general voting suspension and a consecutive 2 and a half month election voting suspension, and the final sentence was a 5 month voting suspension, the same overall length as the prosecution recommendation and not greatly harsher in effect.
In
Ikea Rike, the Defendant recommended a ban of one year, the prosecution an indefinite ban, while the final sentence was somewhat complicated such that I won't set it all out here, it was lesser, I would suggest, than both recommendations.
In
Slatos, both the defence and prosecution recommendations were relatively complicated and differed only in that the defence recommended a ban of 90 days while the prosecution recommended a ban of 180 days, the final sentence was more or less that recommended by the defence and was, I would suggest, lesser again in that its elements all had longstops while the parties' recommendations did not.
The relative outlier is
Whole India, in which the parties together recommended a 1 month voting suspension and a 3 month restriction on holding office, with the Court rendering a final decision of a 70 day voting suspension and a 4 month restriction on standing for election, a sentence which is as to both elements longer than that recommended, however, I would note that the second element is in fact less restrictive as it does not bar holding all offices and, insofar as it applies to elections, of similar effect (in that if covers the same number of regular elections) and the voting restriction, while a fair bit longer in relative terms, is in absolute terms not that much greater.
Is there any other case previously heard by the Court that you feel was decided incorrectly or inappropriately, and if so, how would you have ruled differently?
Being frank, there are a number of cases I think were decided incorrectly or inappropriately.
One, now quite aged, would be
Re: the Definition of Government Officials. I do not think, really, that I disagree with the result, but the reasoning of the Court was, I think, lacking and, more fundamentally, it was brought with no real regard for the requirement of standing; ultimately, I would not have ruled on the question, as I would have refused the request as being without standing.
A more recent decision, and I appreciate I may be courting some controversy, is
Re: Court Review of RA Proposals. I do not think that the Court in that matter paid any real regard to the Court's jurisdiction to determine ambiguities in the law and, effectively, wrongly reduced that part of the Constitution to mere surplusage, in essence ignoring that the petitioner in the original review had, in actuality, asked a number of questions including a question as to the meaning of the law on emergencies; I think the Court also, unhelpfully and wrongly, elided the question of the decision of the individual justice and the decision of the Court as to standing, the former could have been, and ought to have been, regarded as a provisional decision that was subject to the ultimate decision of the Court and that should not have been interfered with, without the original Court having the opportunity to make the final determination on the issue. Again, ultimately, I may have reached a similar conclusion, that the original petitioner lacked standing and that the original review should not have proceeded to the merits, but ultimately I think that the Court's reasoning was flawed.
Judicial restraint is something many would consider to be worthy of pursuit. Explain your vision and personal philosophy as it comes to restraint and how this principle would be embodied, or tempered, by your own actions on the Court.
I'm not sure I would be so grand as to say I have a vision, but, to my mind, judicial restraint in The North Pacific should really be characterised by two points: one, by trying to avoid unnecessarily overturning Court decisions, as too great a willingness to overturn decisions is liable to lead to frequent changes in the law which should, more properly, be the province of the Assembly; and, two, by recognising that for many decisions there exist margins within which other entities have power to act with discretion and without undue second-guessing, except where there are clear boundaries to the discretion or clearly wrong decisions within those boundaries.
Related to the above, given that the number of cases the Court hears each term may be few and far between and the region's Court precedent slow to develop, do you believe that it is desirable to use the Court to right wrongs or address problems in existing law if given the chance with a relevant case? For the purposes of this question, I am taking it for granted that the Court will not rule on something or expand an opinion beyond what is germane to a case they are hearing.
As I presume will be gathered from my above action, I think that generally the Court should be slow to address issues that are not necessary for its decisions. That is not to say the Court should never do so, there are clearly times where the decision of the Court will raise further questions and where failing to give some guidance as to them will create unnecessary uncertainty. However, frequently taking steps to develop or correct the law beyond what is necessary does tend to have the effect of reducing the scope of legislative action and risks the Court reaching conclusions that, while sensible on the points before it, do not actually follow when the future scenario requiring their applications arise.
Considering that Justices are elected in TNP just as officials in the others branches are, do you believe there is an imperative for the Court to defer entirely to the other branches when faced with situations where laws or decisions may be at risk of being overturned or deemed inconsistent with the constitution? Where is the bar for you when it comes to using your judgment to possibly reverse or undo the efforts of the other branches? Are there clear situations where this should or should not be done?
I think there is arguably a lesser imperative than may exist were the Court to lack a democratic imprimatur, but I do not think the Court should engage, in all circumstances, in second-guessing. The Court and other offices have different roles and competences. Those elected Speaker may not be suited to the Court or vice versa, by way of example. The Court should recognise that fact and afford a discretion, as it has on a number of occasions afforded, to other branches. However, there are necessarily limits within which the discretion would operate and, even within those limits, one can conceive of improper exercises of discretion.
As to the bar, I think it is difficult to come up with a universal test. I think there are a number of factors that come into the issue. One might be the source of the discretion, where the discretion is granted expressly by the Constitution, that must be seriously regarded; another is the impact on the rights of residents, a discretion to ban should probably be more strictly scrutinised than other exercises of discretion that do not impact on individual rights. The clearest situation for overturning a decision, to my mind, is where some issue is prescribed by law or rule. In such a circumstance, deviation should not be permitted, as the Assembly has determined the process that should be followed. The clearest in the other end would be where the standard the Court would have to apply would be vague and more suited to judgment by the Assembly, as the Court has held for most exercises of the Speaker's discretion.
The penal code contemplates sentences that are mostly finite in nature, but in a few situations may be indefinite or permanent. In your view is there a functional difference between an indefinite sentence versus a permanent one in our laws as written? If so, what situations may one form of sentence be preferable over the other?
I think there is a difference, in that I would say a permanent sentence is a species of indefinite sentence. An indefinite sentence, to my mind, is one that does not have a known point at which it will be served. That may be because it is expressed in terms that make its completion in some way conditioned such that it is possible that it would never be completed, alternatively it may be what one could call permanent, which is to say it is not conditioned on anything but instead lasts forever.
As to when a permanent sentence would be preferable, I think it would have to be a result of truly widespread and heinous acts of forum destruction, but I have to say it is difficult, to my mind, to see many scenarios where such a sentence would really be proportionate.
It has been remarked at various times that the Court does not provide an opportunity for interested citizens to learn the ropes or get acquainted with the region's legal system outside of reading legal documents and case law. Do you believe there is a way to provide such opportunities to citizens, such as a clerk or staff position working under the justices? Is this even something that is desirable or worthy or pursuit? If so, how would you propose going about doing that?
It is an interesting concept. I think there are two difficulties with it, one is as to the constitutional position of staff in relation to the Court which the Court would need to come to some view on, but the second, somewhat more fundamental one, is that part of the lack of opportunity is simply that the Court is often not busy. I can arguably see utility in something along the lines of law clerks or judicial assistants, in terms of making recommendations to the Court on some issues, for example around standing in requests for review. I would need to give it further thought as to whether it is something to be pursued, as I think it would be liable to tend towards positions without much for their holders to do and, insofar as it would provide benefit, I would be concerned that the low workload would mean that so few would be required that the benefit would not really accrue to that many.
Your ruling in The North Pacific v. Whole India was vacated due to what can be fairly described as judicial overreach, that is, pronouncing guilt where no evidence was submitted to that effect and using that perceived guilt as part of a sentence. I recall well a previous decision, On the Speaker's Power to Extend Voting Periods, also authored by yourself, which was notable for keeping strictly to the letter of the law and not permitting the Speaker to assert an ability to extend debate and in so doing forced the RA to vote a second time on the confirmation of a Security Councillor. Could you explain better where you stand regarding judicial activism and going beyond the scope of the letter of the law? From where I sit it appears you were a lot stricter when it came to the Speaker's office than you are when it comes to the limits of the Court. Do you feel you made an error in how you handled Whole India's case? If not, why not? Do you accept the Court's ruling vacating that sentence?
I do not think of any of my decisions as activist, to be honest.
As to
Re: the Speaker's Power to Extend Voting Periods, I do not think that is an example of activism. The rule that the Assembly established was clear, "The Speaker will, at the beginning of a vote of the Regional Assembly, decide its duration as permitted by law". That the Speaker will decide the duration of the vote at the beginning of it, not later. The supplementary rule, allowing extension for want of quorum makes no sense if the Speaker had a wide ranging discretion outside of it. While plainly I was not Speaker when I made that decision, I have to say that while Speaker I never considered that I had the discretionary power contended for in that case. The Constitution gives the power to the Assembly to determine its Rules and the Speaker to act where they are lacking; here the Assembly made its Rules and it was not for the Speaker to disregard them. The decision of the Court ensured the decision of the Assembly was effective.
As to whether I am stricter with the boundaries of the Speaker's Office than that of the Court, I do not think that I am. I have to say, I think I was a substantially more activist Speaker than many have been, in terms of exercising the discretion to not allow votes or debate, and I can think of quite a few times, in honesty, where my decisions as Speaker were thought to be overreaching. In the Court, as I have set out, I think the conclusion of
Re: the Speaker's Power to Extend Voting Periods was not in any sense an overstep but was a clear application of the Constitution and the Rules; the decision of the Court accrued no power to itself, its only effect was to leave the question of the Assembly's procedure for extending votes in the Assembly's hands.
Whole India is discussed below, but again, I do not think it is right to characterise it as an overreach, simply as an error.
I do not think that it would be right to describe the
Whole India review as being a result of overreach. Not all errors are ones of overreaching. The error which was found by the reviewing Court was a narrow one, that the images had not been certified as true. I reject wholly any contention that the Court found Whole India guilty of any crime they were not accused of. That is a pernicious and false conclusion. The ruling of the Court was clear as to its decision, that the images were produced as part of the crime the Defendant had entered a plea to. I disagree with the conclusion of the review that the Court could not properly have regard to the images without them having been admitted. The Court can have regard to facts that are before it that do not require authentication, such as the fact that the Defendant had sought to exhibit the images as part of a defence and that the Defendant had not authenticated their truth; further, I would note that Jakker had in fact given evidence as to the conversation with the Defendant and had stated it to be complete without those telegrams. I note also that there are a number of points that are not subject to evidence that the Court has regularly drawn in Defendants' favour without requiring evidence, such as on remorse.
As to whether I accepted the Court's ruling, naturally I do and am bound by it. That ruling is a substantial part of why I consider changes to the Court Rules are required, as without such changes, the effect of the Court's ruling is problematic for the guilty plea process. I am aware that some have suggested that the Court, in its resentencing sought to defy the review Court decision. That is wrong. While I cannot disclose the deliberations of the Court, I would note, as I did in my brief in the
Whole India review, that those images formed only a small part of the Court's reasoning and, further, I would note that the THOs who conducted the review had access to those deliberations, they were well aware of the thinking of the Court beyond even its public reasons, and not one of them, to my knowledge, has indicated that they consider the Court defied their ruling; if I am wrong and they do so consider, I urge them to say so.
In hindsight, what would you have changed for the original sentencing order in relation to TNP vs. Whole India?
Were I to have had the benefit of the decision on review in advance of the original sentencing order, I would have handed down a sentencing order in much the same terms as the resentence.
