What was your biggest mistake during any of your terms as justice?
What court rulings do you disagree with and why?
What court ruling do you see as your best so far?
I think that looking back my biggest mistake was allocating Wonderess to moderate
TNP v Pigeonstan, given that his poor judgement around Mall’s requests as defence counsel led to the collapse of the trial. I don’t think I could have predicted it would have went the route it did but, in retrospect, I was mistaken. I think I could maybe have also been clearer in discussing it with Wonderess while the trial was ongoing and that could maybe have avoided it. I will link the discussions and you can judge for yourself:
here.
The two other candidates would have been the first in the “r4r r4r r4r” (or, the nesting doll r4r) series and the original sentence in
TNP v Whole India. The thread for the first has been lost to the sands of time, but in any case, requests for review were brought and succeeded in each case. Naturally, had I been able to see forward and have the outcomes of the future requests for review when looking at the original decisions, I would have approached them differently. However, I don’t think I would really be being honest if I said either of those two. I have made defences of my thinking on them before and why I disagreed with the outcomes of the requests for review (and I will reproduce them in answer to your next question). I will obviously follow the decisions of the Court, those I agree with and those I don’t, but I do still disagree with those outcomes.
In relation to rulings I disagree with, I won’t be covering rulings that have been overturned. The exception to that is in relation to the partially overturned decision
on the Delegate’s Authority to Staff the Executive Branch. I am very glad to have seen the Court partially overturn it recently for the reasons Eluvatar gave in his dissent in that case and that the Court gives in
on the Regulation of the Regional Message Board.
In terms of other decisions, I haven’t read through every decision again to answer this, if I had done so maybe there would be more. Instead, I have looked through the list and focused on those that stick out in my mind.
- The Advisory Opinion. A decision on the Court’s own motion, contrary to the requirement for a request from an affected party. Ultimately, even if accepting everything it says, it seems to me it was simply beyond the Court’s power to issue.
- On the Definition of Government Officials. I largely agree with the conclusion (or, agreed, given the underlying law has been reformed) but the reasoning, particularly around deputies, was very lacklustre. I also think the format of the ruling as in the original thread is just hideous.
- On the Process of Declassifying Information for Use as Evidence in a Criminal Trial. Only partial disagreement as to the conclusion that RL information should be withheld from the Court’s review. I think there is a gap in the Court’s approach on that issue, as the Court was reasoning by analogy from the FoIA but the FoIA does allow such information to be turned over. The reason for that, ultimately, was that the Court was squeamish about the turning over of such information even in the context of the FoIA but there isn’t really any reason given in the decision and I think it creates an odd, unexplained inconsistency.
- On the Validity of a Previous Ruling. My view was and is that this request for review was an abuse of the Court’s process. It was contrary to the decision on the Nature of Precedent and the Scope of the Court’s Powers, essentially being a naked request to look again at the decision just rendered, and effectively overturned it.
- On Court Review of RA Proposals. I may have agreed with the ultimate conclusion here (that the original request should not have been answered by the Court), but I think that there are flaws with the reasoning. At the time, the Court’s jurisdiction included “resolve conflicts or ambiguities in the law, and review the constitutionality of laws or legality of government policies by request of an affected party” (bolding mine; repealed by the AGORA Act), I think that the original request did include a question which would have been within this jurisdiction and a question about the constitutionality of the emergency law (though, with the loss of the thread for the original review I think that you will have to take my recollection and what fragments are quoted in the thread for this review on this). That being so, I think the Court was wrong to say that the request was not within jurisdiction (even if parts of it may not have been). I also think the Court wrongly elided the initial acceptance of a review by a Justice (which to my mind is only ever provisional) and the decision by the Court, which would need to address standing and jurisdiction itself, and preempted the Court’s consideration of that.
- On the Sentence Issued by the Court in the Case of The North Pacific v Whole India. I think that the Court could note the fact that the images were put before and that it could properly draw the conclusion that they were inconsistent with the plea that was entered, I don’t think the images needed authenticating to do that (indeed, authentication would be contrary to the conclusion and plea).
Of my decisions, I would say
on the Speaker’s Power to Schedule Votes. It builds on a line of decisions about the Speaker’s powers which I think is one of the most consistent over time and reinforces important ideas around the balancing of interests which I think is important to our constitutional scheme. I also think it is a clear decision that avoids deciding more than it needs to.
To some extent, those things are down to what the request related to.
On the Constitutionality of Vague Laws and Gross Misconduct, by way of comparison, related to a more novel issue and, while I do like that ruling as well, it does end up with a less clear cut decision.
What are your opinions about the current requirements for standing in R4Rs?
From time to time, there has been discussions about the issue of standing, and some have been arguing that the requirements are too strict. Do you think the requirements for standing should be loosen?
I am of the view that there ought to be a requirement for standing. I think that it is usually easier, as a Justice, to look at an issue when someone who is affected by a particular act is there making their argument against it. I also think that a world without the standing requirement is one which would probably see more requests for review aimed at stirring up trouble or impeding regional government. The latter point could be a particular problem because we do not have any limitation rule that would stop someone from simply looking back and bringing challenges to things long in the past.
That said, I think that the approach of the Court has on occasion read too much into the requirement. In particular, there has sometimes been an approach of requiring an “adverse” effect (this can be seen in the request for review template for question 4), which is not a strict requirement of the Constitution and the decision
on Standing and the Definition of Affected Party reflects that by referring to “those affected, adversely or otherwise”.
I do, however, think that there was merit in having ways around the standing requirement for issues where there is a wider regional interest. The “compelling regional interest” exception is one way around that but it is one that is relatively difficult to meet. I think the Attorney General’s universal standing or some other form of standing that relies on a responsible gatekeeper other than the Court itself is something that could be usefully explored to help widen the scope for reviews that cannot necessarily meet the “compelling regional interest” hurdle. Obviously, such a reform would be for the Assembly to consider but I would like to see it.
