Zyvetskistaahn for Justice

Zyvetskistaahn

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Zyvetskistaahn
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Zyvet#9958
Zyvetskistaahn for Justice

Hello, I am running for reelection as Justice. I have been Chief Justice this past term, which has been a very busy one, and have also historically served as Justice and Speaker for lengthy periods.

In the past term I have overseen a criminal case and have contributed to the three sentencing decisions that the Court has handed down; I have also given a number of reasoned decisions of myself as an individual Justice in relation to requests for review and approvals of bans. In a previous term I also authored the decision in the review Re: the Speaker's Power to Extend Voting Periods. I have also provided briefs in a number of requests for review, including most recently in the review concerning the sentence in The North Pacific v Whole India.

There are number of issues that will require activity from the Court in the upcoming term, due largely to the recent passage of the AGORA Act. The prescribed form for requests for review needs alteration (though I must say I hope that will actually be done before the election concludes) and, I think, it would be appropriate to introduce a prescribed form for indictments and perhaps other elements of criminal proceedings, to reflect the fact that complaints will initially be brought by individual complainants. Rule amendments to reflect the inevitable delay that will come from appointing a prosecutor after charges are accepted and, potentially, to make the indictment process clearer.

There are also other amendments to the criminal rules which I want to pursue in light of some points that have came up in criminal trials this term. Firstly, to indictments and requests for approval for bans, both aimed at clarity and ensuring that the requests for approval reflect the provisions of the Legal Code. Secondly, to changes in indictments, in essence to require that changes to indictments are approved by the Court and that there is clear process for them. Third, to the guilty plea process, to ensure that the basis for a guilty plea is clear and to allow for process to determine disputes between the prosecution and defence as to the basis for guilt (and thus sentence).

Further, there are amendments to certain other areas of the Rules that I would like to make. Those amendments would be along the lines that are indicated in the consultation that is, or will soon be, before the Assembly.

Finally, there is the question of what to do with the records of the Attorney General and, in future, prosecutors. While I think this is probably something that could be determined by the Assembly, I would be minded to establish a regime of declassification in the coming term. In broad terms, I would think that a regime along the lines of that established for court records would be appropriate. Some principal points of difference are that: I do not think that there would be any necessity in absolutely restricting release during the term of the Court, given that the purpose of that is to prevent the Court being subject to undue political pressure which is not a concern for the prosecutor (who will no longer be in office by the time the records are in the Court's hands), but I would probably suggest applying the "compelling interest" standard for all records under six months in age; and, that, in relation to the Attorney General's records, I would be minded to say that records concerning charges that were not brought or made publicly known should probably not be released, having regard to the potential impact on the reputations of those who were not in fact charged.

Any questions?
 
The general public has expressed concern over what they perceive as overly harsh sentencing in court cases, without breaking court secrecy on past cases, can you explain your approach to determining a proper sentence in a criminal case?
 
The general public has expressed concern over what they perceive as overly harsh sentencing in court cases, without breaking court secrecy on past cases, can you explain your approach to determining a proper sentence in a criminal case?
Ultimately, reaching appropriate sentences in The North Pacific is difficult to do. The discretion of the Court is very broad and the law on sentencing vague; there is not a substantial body of caselaw or set of guidelines to which the Court can refer. Necessarily, the result of this is that Justices must rely on their own sense of what is an appropriate level of punishment. That sense will inevitably differ from that of some citizens and may well differ from that of many of them.

In terms of my own approach, I try generally to look at the facts of the crime and come to a broad view on what would be appropriate for it absent aggravation and mitigation. Where there are reasonably comparable cases, this involves looking to the facts of those cases and considering the relative seriousness of the case I dealing with by comparison. It can be difficult to draw a firm line between what are inherent facts of the crime and what are aggravating and mitigating factors and, as I have stated, this approach necessarily rests on my views as to the seriousness of crimes and on what points I consider more and less serious. Broadly, I think that harm resulting makes a crime more seriousness, other particularly relevant factors would be length and the level of intention the Defendant had.

I would then look to aggravation and mitigation, form a view as to the balance of them and adjust the sentence up or down accordingly. Aggravation may include some particular risk to regional security, previous criminal conduct, or the commission of a number of crimes at the same time. There are a number of factors outside of the crime that would be mitigating (to my mind substantially so), such as the entry of a prompt and complete guilty plea, demonstrable remorse, and good character of the Defendant.

When sentencing for a number of crimes, I think that the Court should also generally try to take an overall view of the course of them, rather than simply aggregating the sentences all together; plainly it is possible to think of circumstances in which truly distinct crimes would be tried together, but in general the history of criminal cases in TNP is for a single course of behaviour to result in multiple crimes being committed and I think it would be disproportionate to treat that situation as requiring wholly separate punishment.
 
Is there a reason you do not particularly value brevity? Can more be said with less? Why/why not?
My writing style has been verbose for quite some time. I don't think that that is a consequence of not valuing brevity, so much as it is a consequence of not being especially good at being brief. There can certainly be value in concision in effectively conveying an idea and it does not follow that longer speech is necessarily conveying more relevant details. In that sense, it could that more could be said with less. There are, however, circumstances where compression leads to loss of meaning and relevant detail.

One area where I think saying less is not especially helpful in The North Pacific is in many of our older Court opinions, which often adopt an oracular style that limits any ability to draw from, scrutinise and apply their reasoning. Another area, again connected to the Court, where I think elaboration can be of assistance, is in the decisions that can be made by an individual Justices which are final in nature or which affect the rights of nations. In these areas, a lack of detail risks placing nations, and the region at large, on an unsure footing as to the law and subjecting them to decisions which, even if not arbitrary, can appear so when lacking reasons. It is better, I think, for nations to be able to see the reasoning of the Court and apply it more broadly, rather than simply having yes or no answers to questions, and to know why decisions to deny them review or to allow their ejection are made as they are. That being said, it does not follow that all cases and all decisions require substantial and lengthy decisions, sometimes the reasons can be simple and short and all the better for it.

All of which is to say that, while I do accept that I tend towards prolixity and that that is a flaw, I do think that there are worse areas in which to have such a tendency.
 
Consider the following.

The Regional Assembly has changed the citizenship law. In order to become or maintain citizenship, all citizens must disclose any and all information they have about other regions they are in.

1) Bobberino is a citizen of TNP and TRR. When asked by a regional officer to disclose the information Bob has on TRR, Bob refuses. Bob does so publicly. The Speaker revokes his citizenship in accordance with the law. Bob files an R4R. In it, he states that the requirement violates his right to free speech. He states that the right to free speech includes the right to be free from government compulsion to speak.

Using existing case law and regional laws, would Bob be correct in his assumption? Can the Regional Assembly require a citizen to provide it with information about other regions as a condition of Citizenship, since Citizenship is voluntary?

2) TRR is informed of the case. TRR contends that Bob's disclosure would be a violation of its laws and a form of indirect espionage under The Unicorn Star Treaty. Can Bob be forced to commit a crime in another region by the Government of TNP?
 
In general, I am interested in getting your thoughts for why successfully prosecuting defamation of character cases in the North Pacific has historically proven to be very difficult. Do you believe this to be something that exists in the status quo, and if so, with the abolition of the Attorney General position who would have the best opportunity to bring forth a case about it in a manner for which the Court would be inclined to accept? By asking “do you believe this to be something that exists in the status quo” I’m seeking clarification of if you differentiate defamation of character from things like fraud and slander.
 
Consider the following.

The Regional Assembly has changed the citizenship law. In order to become or maintain citizenship, all citizens must disclose any and all information they have about other regions they are in.

1) Bobberino is a citizen of TNP and TRR. When asked by a regional officer to disclose the information Bob has on TRR, Bob refuses. Bob does so publicly. The Speaker revokes his citizenship in accordance with the law. Bob files an R4R. In it, he states that the requirement violates his right to free speech. He states that the right to free speech includes the right to be free from government compulsion to speak.

Using existing case law and regional laws, would Bob be correct in his assumption? Can the Regional Assembly require a citizen to provide it with information about other regions as a condition of Citizenship, since Citizenship is voluntary?

2) TRR is informed of the case. TRR contends that Bob's disclosure would be a violation of its laws and a form of indirect espionage under The Unicorn Star Treaty. Can Bob be forced to commit a crime in another region by the Government of TNP?

My answer for both questions essentially runs together, so I have not distinguished between the two.

As to the nature of the right of free speech, compelled speech in general is not a point that has received the attention of the Court, undoubtedly because of the wisdom of the Assembly and government more generally in refraining from seeking to compel speech. Two notable areas of exception to this, which are quite specific and seem to lack application, are in relation to compelled testimony and self-incrimination (in Re: Right against Self Incrimination) and speech by government officials (in Re: the Delegate's Authority to Staff the Executive Branch). The bulk of other cases concerning free speech are concerned with attempts to suppress or restrict speech, rather than requiring it.

However, it is clear that the Assembly does have the authority to establish requirements for citizenship (Constitution, Art 2, cl 3) and it has used that to require certain speech in relation to citizenship (Legal Code, Section 6.1, cl 2). The oath was considered by the Court in Re: Alterations to the Citizenship Oath, which concerned the oath as required by law. In that case the Court held there was not an infringement on the right to free speech as the requirement to take the oath as sworn was only a small restriction. Whether that was truly a case of compelled speech or a case of restriction is somewhat difficult to entangle, but, ultimately, it seems beyond dispute that the Assembly has the power to condition citizenship on some exercise of speech, given that such a requirement has stood in law for so long, that it is so integrated into the laws of the region, and that the Court has, when given the opportunity to address challenges to the oath, held that it must be sworn as prescribed.

More historically, the Assembly did in fact require speech beyond the swearing of an oath as a condition for membership of the Assembly (then the equivalent of what is now citizenship), in the form of the RA WA Verification and Confidentiality Act (Legal Code, as enacted, Section 6.2 (link)). That provision was considered by the Court in Re: WA Nation Disclosure Requirements. In that case, the Court considered that the requirements of the law were consistent with the Bill of Rights as membership of the World Assembly is voluntary and, consequently, the burden of compliance with the law was voluntarily taken on by the nation.

It does not, however, follow that the Assembly may therefore prescribe any speech on the part of citizens. In the first place, it would clearly be intolerable if the Assembly could require a citizen to say anything as a condition for gaining or keeping citizenship. Moreover, it is notable that the Court in Re: WA Nation Disclosure Requirements did not decide that the law was permissible due to the voluntary nature of membership of the Regional Assembly but because of the voluntary nature of membership of the World Assembly and, again, that the Court in Re: Alterations to the Citizenship Oath did not decide prescription of the oath was permissible because the petitioner could have simply not became a citizen but because the burden was small.

Consequently, my sense is that, while the Assembly can compel some speech by citizens, that compulsion must be assessed by reference to the burden it would impose on the applicant. In this case, the burden that would be imposed for many prospective citizens would be vast and difficult (if not impossible) to meet, given it requires disclosure of "any and all information"; further, for some it would give rise to substantial risk of liability in other regions, which would seem to me to be easy to categorise as a burden (whether the Assembly could require a citizen to take an action that was unlawful elsewhere, in the abstract, is I think too broad to answer). To my mind, such a burden would be of such a level that it would be infringement on the right to free speech and, consequently, unconstitutional.

In general, I am interested in getting your thoughts for why successfully prosecuting defamation of character cases in the North Pacific has historically proven to be very difficult. Do you believe this to be something that exists in the status quo, and if so, with the abolition of the Attorney General position who would have the best opportunity to bring forth a case about it in a manner for which the Court would be inclined to accept? By asking “do you believe this to be something that exists in the status quo” I’m seeking clarification of if you differentiate defamation of character from things like fraud and slander.
There is a difficulty in analysis in that there have been relatively few criminal cases in general, so I am not sure that there is in fact a difficulty in proving such cases, at least relative to other crimes. I don't think that there have been many cases alleging only fraud to damage another (as opposed to where that is alleged together with fraud for benefit) in recent years, the few that come to mind are the various Grosseschnauzer related cases, which are now relatively aged.

I think the difficulty that was encountered in those cases is unlikely to recur, to be frank. There has been a clear statement of the law of fraud by the Court in a request for review since that time which has made clear that intention and the expected consequence can be properly established by reference to reasonable expectation and deduction, which is almost certainly easier to establish than what seems to have been thought to have been required prior to that decision.

I do not think that there is likely to be any real difference in the treatment of the Court of different complainants. It may, perhaps, be that the person actually claiming to have been damaged by a falsehood has somewhat of an advantage in that they can, presumably, guarantee their own testimony, but ultimately the question of whether the falsehood is made to damage another is an objective question for the Court that should be determinable by reference only to the testimony of the Defendant and the falsehood itself.

I am not too sure what is meant by whether I differentiate between defamation, fraud, and slander. In a certain sense I do, in that only fraud is a crime, but the nature of our fraud law is that it covers more or less what one would think of in Real Life as defamation (notionally including slander, though most interaction in NationStates would not be such). As to whether I differentiate between fraud to damage another and fraud for some benefit, I think there is clearly a difference between them and they could be satisfied by different conduct. By way of example, if someone made a claim about their own character, it would be difficult to see how it would satisfy damage to another, whereas a claim about the character of someone else could plausibly be both. In that sense, I would be bound to differentiate, but I do not see that it would require a different standard or kind of evidence.

EDIT: "from" is not "for"
 
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@Zyvetskistaahn you have demonstrated that you are just as serious and professional a justice as you were a Speaker. Your rulings are as impressive as they are long, and you have given us a lot to think about particularly during the last term. I have a series of questions:

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?

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?

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 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?

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?

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.

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.

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?

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?

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?

Now Zyvet, as the Chief Justice, your decisions have a lot of sway and significance. As such, I have a few more questions for you:

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?
 
In hindsight, what would you have changed for the original sentencing order in relation to TNP vs. Whole India?
 
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.
 
As always, you are quite thorough in your approach to things. Although I was not around for your lengthy tenure as Speaker of the Regional Assembly, I have heard that you performed quite well in that capacity and that you're very familiar with technicalities in the law. I can appreciate that level of savviness immensely, and thus I'm pleased to say you'll enjoy my support.
 
Ditto to the above. Your career and campaign speak for themselves. You've got my vote.
 
I have always thought of you as one of the best individuals legally in TNP. Unfortunately, I will not be voting for you. I do not approve of your finding of WI guilty of doctoring evidence and despite the R4R noting the error, you continue to insist that you did not.

I am not willing to vote for a candidate who is willing to find a nation guilty of a crime without the opportunity for them to defend themselves.
 
I have always thought of you as one of the best individuals legally in TNP. Unfortunately, I will not be voting for you. I do not approve of your finding of WI guilty of doctoring evidence and despite the R4R noting the error, you continue to insist that you did not.

I am not willing to vote for a candidate who is willing to find a nation guilty of a crime without the opportunity for them to defend themselves.
The Court did not find the Defendant guilty of any crime separate to that they were accused of. The Court made findings as to the mode by which they committed that crime, as is plain from the wording of the decision. The conclusion of the Court considering the request for review was not that Whole India was found guilty of a separate crime, it was that the Court, absent authentication or purported authentication of the images and absent a clear averment as to the images in the indictment, could not properly draw conclusions as to them in connection with the mode of committing the crime and, thus, in connection with sentence. It was a narrow error and is not the sort of gross injustice you insist was perpetrated.
 
The Court did not find the Defendant guilty of any crime separate to that they were accused of. The Court made findings as to the mode by which they committed that crime, as is plain from the wording of the decision. The conclusion of the Court considering the request for review was not that Whole India was found guilty of a separate crime, it was that the Court, absent authentication or purported authentication of the images and absent a clear averment as to the images in the indictment, could not properly draw conclusions as to them in connection with the mode of committing the crime and, thus, in connection with sentence. It was a narrow error and is not the sort of gross injustice you insist was perpetrated.
It is clear that the Court determined that the images were doctored without providing the defendant or his counsel the opportunity to defend himself from the Court determining such. You call it an error yet you also disagree with the conclusion.

You are welcome to continue to protest, however, if you really want to dispute it, I would suggest taking it up with the Court.
 
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It is clear that the Court determined that the images were doctored without providing the defendant or his counsel the opportunity to defend himself from the Court determining such. You call it an error yet you also disagree with the conclusion.

You are welcome to continue to protest, however, if you really want to dispute it, I would suggest taking it up with the Court.
The Court drew the finding on the basis that the truth of the images was inconsistent with a plea; for a Defendant to say that they lied about being threatened and yet also that there are true images showing that they were threatened is inconsistent. The conclusion of the Court in disposing of the review was that the Court could have no regard to those images as they had not been admitted, such that there was no inconsistency before the Court, had they been admitted or had the indictment differed slightly the conclusion could have been drawn. That is a narrow error.

I do disagree with the conclusion of the review, I think, as I have indicated, that the Court could have congnisance of the fact that the images were before it and that it could properly draw the conclusion that they were inconsistent with the plea that was entered. My disagreement does not mean that the decision of the Court in the review is not binding upon me or that I would not obey it, as such it is right to say that the decision of the original court was erroneous on the law now stated. Nor does my disagreement mean that I intend or would have basis to seek to challenge the decision in the review. The Court in the review has reached a conclusion that I would not have, but it was one open to it in relation to an untested question. I have made clear in other circumstances my disdain for the idea that one can simply bring new requests for review until the Court rules how one wishes, I would not encourage such nonsense by engaging in it myself.

EDIT: "by engaging"
 
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