Pronoun I am not liking your snarky comments. You definitely know what that means. I don’t know what your motive is by giving me this snark so I am respectfully asking you to only respond if you have a legitimate question or you’re actually serious about something because you’re clearly you are not being serious whatsoever.
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I’m not trying to be snarky — I just genuinely am not sure I understand your argument. If you want to rephrase it in a way I might understand better, I’m all ears.
The way I see it, the Charter has provisions for the separation of powers that we do in fact use and that are in fact related. It defines certain positions — Offices of the Coalition — that cannot be held concurrently, and establishes procedures to ensure that.
I think we use this all the time, because we do not have people holding more than one Office of the Coalition at the same time. That’s why I raised the example of a murder law. If the law functions to prohibit something, then the law is not useless just because the thing that’s prohibited doesn’t happen. We have, in fact, used this law before. For example, when Kris was elected as Prime Minister, that constituted an automatic resignation as Chief Justice. Similarly, when LordNwahs was confirmed as Minister of Foreign Affairs, that constituted an automatic resignation as Chair of the Assembly. This happened because — and only because — the Charter’s separation of powers provisions said so.
Therefore, if you wanted to include Associate Justices in that — regardless of my personal disagreement with that idea — you could do that by proposing a separate amendment to the Charter. You would probably only need to change a couple of words. You can amend that law regardless of what new judicial procedure we decide. As Welly noted, there’s no need to amend the Judicial Act specifically, and as Henn noted, the Charter is the logical place because that’s where we put all our other requirements like “you can’t hold these two positions at the same time” already.
The way I would put the question is–who should win on ties? Generally, the underlying opinion should. But when a criminal conviction is on the line, it makes sense to give the benefit of the doubt to the criminal defendant.
Sure, there are two reasons. First, I don’t agree with the changes that you are proposing. I would make more minor tweaks to our separation of powers rules, as I outlined in the linked post. More importantly, separation of powers is not the focus of this reform, and including such changes is likely to derail and perhaps even doom a worthwhile reform. As has been amply demonstrated by the discussion thus far, separation of powers is a topic that arouses strong opinions on both sides. It merits its own separate discussion, not being rolled into–and then taking over–all discussion on a Judicial Act overhaul that is primarily focused on High Court procedure.
I will implement the changes that have been discussed thus far this evening.
By that point the person would’ve been convicted though. The nature of an appeal is that the convicted party is claiming there was a certain error by the presiding justice who originally considered the case. If the full court does not agree with the claim of error, via a majority vote (in other words, the question is whether the first instance court erred) is it really reasonable to rule for the appellant?
So, a few more substantial comments—
- Does 1(6)c mean refraining from political commentary in the context of opinions or in a capacity as a Justice? That I’d agree with. But I think the wording is a bit broad. I think citizens are liable to comment on “the wisdom or desirability of political actions” every election cycle and it’s not like people can hide the fact that they’re a Justice even if they are just commenting in a personal capacity as a citizen.
- I would think “new evidence shows I was wrongly convicted” and “this legal provision should be interpreted differently” seem like two distinct types of criminal appeals.
- In the former, it might make sense to hold a retrial en banc, but I think it makes more sense to decide en banc whether or not the new evidence warrants a retrial, and if so, to follow the standard procedure for a criminal trial from there on.
- In the latter, I’m not sure it’s all that different from a legal question or, indeed, whether we should even treat it differently. I don’t know if I’ve thought through all the implications of this, but perhaps we could have a system where criminal appeals are for requests for a retrial — new evidence, procedural errors, and so forth — whereas ‘appeals’ arguing that the verdict contradicts some law because the law should really be interpreted differently can just be legal questions about how to interpret that law.
- Regarding the ‘rule of lenity’ in this context — I could maybe see the argument for criminal statutes, but wouldn’t really want a system where we’d have to go, “oh, that clause in the Charter? Yeah, we interpret it inconsistently from our other jurisprudence, because it favored a criminal defendant five years ago.” The actual underlying legal issue in that case just seems to me like a legal question. I think the fairness concerns could be addressed by mens rea? As in, you can say, “the law means X but the defendant reasonably thought it meant Y.” That way, the Court can interpret the law in the way that it thinks actually makes the most sense, but there’s an escape hatch for defendants who interpreted it differently.
- I didn’t have problems with the current provision that the other justices could collectively order the recusal of the Chief Justice. Is there a reason you removed it? (Or did I just miss it?)
- Regarding 6(1), does a verdict count as a ‘decision’? That probably sounds like a silly question considering the literal meaning of the word, but the civil case procedure requires issuing a ‘decision’ while the criminal case procedure requires issuing a ‘verdict’ so I don’t think it’s obvious if one is supposed to be a subset of the other.
Yes, I think so. But I will admit that I would like to think about it a bit more. Curious to hear @Erstavik’s views on this as well.
That’s how it was intended. And it’s why that section requires Justices to abide by those standards of conduct only “in the discharge of their official duties,” i.e., when acting as Justices, not as normal citizens or as legislators. Do you think an even more express carve out is required?
A simpler way to resolve this might be to authorize the court to either affirm, reverse, or reverse and remand on appeal, the latter of which could be used when a new trial is more appropriate than the High Court simply resolving the case en banc. Thoughts?
That was not meant to be cut. If it was, it was an omission, and I will re-insert in the next round of edits.
Yes, a verdict is a decision. But for the avoidance of doubt, I can make it clear that an appeal will lie from a decision or verdict?
I say this because section 2.3(a) assigns the responsibility to process applications to the Chief Justice. My point wasn’t so much about the Chief Justice as it was about the Court’s seemingly total discretionary power to accept or deny cases as they choose. To be more exact, your bill says that the Court “may” hear any legal question and “may” hear any criminal case that is not frivolous; by contrast, section 6.3 sets at length the criteria for the Court to hear an appeal.
I was thinking mostly of cases in which the defendant would have to be tried in absentia.
But if you have a three-seat court, one of the three members of the appellate panel is going to be the presiding justice of the original case, who is presumably going to be convinced that their decision was correct. So in practice you’d still need the other two justices to overturn anything, which isn’t practically different from what we have now. My suggestion would be to include a provision preventing the presiding justice of the original case from sitting on the panel.
Doesn’t it violate the defendant’s right to an appeal to have the presiding justice’s determination on matters of fact be effectively final?
Thank you for directing me to the Charter. I see your point, but I disagree with it. If a government official is failing to perform a legally required act, isn’t that effectively an act by omission - in this case, misfeasance in office?
That said, it seems that the High Court actually has no power at all to enforce non-constitutional laws through civil action, as the section you cite refers only to the Charter and other constitutional laws. The relevant sections of the Charter are poorly constructed overall.
To the point on appeals, I agree with Kris Kringle. There should be no presumption in favour of the defendant following a conviction. That is the “proven guilty” half of “innocent until proven guilty.”
I think an option to remand is good, but I’m not sure it solves the issue where criminal appeals can just be civil cases by another name. Ultimately, I just don’t think we really need to consider questions of legal interpretation under the banner of criminal appeals in a system where we have a procedure actually intended for questions of legal interpretation, namely legal questions. If one appeals a criminal conviction under a theory of some different legal interpretation, I don’t think that necessarily suggests the need for a remand, but I do think it’s better handled as a proper legal question.
To that end, maybe the current Judicial Act has it backwards. A legal question can be born out of a criminal case. To decide if someone has broken the law, perhaps we first have to interpret what the law means, and after that we can make a factual determination of whether that person indeed broke the law or not. In the legal question, the Court exercises its authority under the Charter to ‘clarify’ or ‘interpret’ law. In the criminal case, the Court exercises its authority to adjudicate questions of guilt. I find that preferable to situations where the Court is really asked to ‘clarify’ or ‘interpret’ law under its authority to answer legal questions except the legal question is actually a… criminal appeal?
I might suggest revising the criminal case procedure to require a decision, as the civil case procedure does, with the difference that a criminal decision must include a verdict (and, presumably, some explanation for it).
I’m not sure I agree with this. The Court doesn’t really have power to enforce anything at all except for issue decisions that it hopes people will obey. I think it’s entirely possible to ask a legal question about whether some government conduct (or non-conduct) is lawful. The Court can answer that legal question by saying it’s not lawful but, at the end of the day, if the government official decides to persist in unlawful conduct, it’s not like the Court has a police force to go do anything about it.
On that note, I think it’s useful to have review requests so that the Court can, for example, void a law that it finds unconstitutional. I am not so sure that they couldn’t be better handled, in terms of procedure, as legal questions.
Ah, I see your point now. That implication was not intentional. The purpose of those sections is to clarify what parties are permitted to file each type of civil case, not to make the Court’s civil jurisdiction wholly discretionary. I will resolve this in the next round of edits.
Again, while I see the concern with such cases, I just don’t think there is any purpose to making an unenforceable provision regarding public defenders. The Court can’t force any TSP resident to serve as defense counsel, whether for a defendant within the region or without.
In the situation that you outline, there would be two Justices voting to overturn the decision of one Justice. Under the current system, there would be two Justices voting to overturn the decision of two Justices. I maintain that is a meaningful practical difference.
I considered that, but I actually prefer to keep that Justice on the panel for a number of reasons. First, it maintains a full en banc panel of the Court deciding appeals, which is one goal of this reform. Second, I think it is helpful to have the Presiding Justice participate in the Court’s discussions and, if reversed, file a dissent defending their opinion below. The reality is that in systems of discretionary appellate review, the appellate court most often grants an appeal in order to reverse the lower court’s judgement. In general, it strikes me that the Court is more likely to produce a stronger work product and adequately consider all counterarguments if the Presiding Justice whose opinion they are considering reversing is able to participate in the deliberations and, if necessary, publicly critique their decision via dissent.
Definitionally, no. As far as I am aware, a defendant does not have any “right” to appeal beyond that which is provided for by the Judicial Act. So the contours of that right are defined by the procedures and limitations set forth in this statute. So if the statute creating the right provides that it does not extend to de novo review of factual findings, then it doesn’t. That is not a denial of the right, it’s simply a limitation on the content of the right itself.
I disagree with that reading, but I see your point. Where the real issue arises, to my mind, is the use of the word “void.” Even assuming that failing to perform a legally required act is an act of omission, there is no way that the Court can “void” an omission. It is too much verbal and logical gymnastics for me to read that as some sort of double negative–that voiding an omission means ordering affirmative action.
I actually think that the current Judicial Act has it just right. Interpreting the relevant law and then applying that law to the facts of a given case are the two fundamental elements of a legal case–a single case. That is what happens in every review request–the Court determines the meaning of the applicable constitutional provisions governing the challenged government action, then applies that interpretation to the facts of the challenged action to determine if the action was lawful. That is what happens in every criminal case–the Court interprets the provision of the Criminal Code that was allegedly violated and applies that interpretation to the facts of defendant’s conduct to determine if the defendant committed the crime of which they are accused. Indeed, it is what happens in every legal question based on a “concrete” situation. The only instance in which the Court resolves a truly abstract question of law divorced from any real world facts is in its “hypothetical scenario” legal question jurisdiction. Put differently, a legal question can be (often is) part of a criminal case, but is not an entirely separate case.
Nor do I see any real reason to create an entirely separate legal question case in response to every criminal complaint. Instead, the Presiding Justice will interpret relevant law, apply it to the facts, and resolve the case. If the defendant believes that an error of law was made–for example, that the Presiding Justice misinterpreted the Criminal Code to apply to the defendant’s conduct when it does not–then the defendant can appeal. If the en banc Court agrees with the defendant, then the Court will reverse and find the defendant not guilty; as a matter of law, the Criminal Code did not criminalize the defendant’s conduct. If, on the other hand, the defendant seeks to bring forward new evidence or alleged a procedural violation on appeal, then–should the full Court agree–it can reverse and remand for a new trial that will allow the evidence to be presented and / or follow proper procedure.
I don’t see a huge distinction, but I’m fine doing this.
Sure, but I’m also not sure we need review requests either 
However, under the Charter, the Court needs to actually be presented with a legal question in order to clarify or interpret provisions of law.
I think that system makes sense. Legal questions are the mechanism for legal interpretation, so we should make use of them. Additional scaffolding like review requests or criminal trials make sense where we want judicial procedure to accommodate additional needs — for example, if we want to privilege a government official’s defense of their actions, want to ensure criminal defendants have a chance to present evidence, and so forth — but I don’t think that means we need a different procedure for legal interpretation under those circumstances.
It also keeps judicial decisions focused. When the Court is asked a legal question, it has specific points of confusion or ambiguity, outlined by the question, to clarify. Unlike other types of cases, that actually carries precedential weight under law — if the Court has clarified or interpreted a provision of law, it has actually stated what it means.
I don’t think every criminal complaint would spur legal questions. Sometimes, maybe the law isn’t ambiguous to anyone. But if it is, then I think we should handle it under the procedure designed for clarifying legal ambiguity. I think a fair trial encompasses a fair opportunity to question the laws at stake, but I think submitting a legal question for a determination of justicability — like anybody else submitting a legal question — is that fair opportunity and I’m not sure why we should use criminal trials to bypass regular procedure.
What’s the standard for determining what law is ‘relevant’? I’d imagine a defendant has every reason to — and every right to — challenge a number of different laws. I think the existing procedures for determining justiciability are a reasonable way to determine which of those challenges concern genuine ambiguity in those laws.
Also, what’s the standard for interpreting that law? I think the criminal burden of proof makes a lot of sense in factual determinations, but less so in legal interpretation. Why should the same legal provision be interpreted differently depending on the kind of case? If the Court can clarify or interpret provisions of law, ideally it wouldn’t need to caveat all its rulings with a disclaimer that it might reach an entirely different result if someone posed the same legal question in a different kind of case. (On the other hand, if the defendant argues they had a genuine interpretation of the law that made their conduct legal, that strikes me as a mens rea defense, and I think it’s entirely possible to both acquit the defendant in the criminal trial and also clarify that’s not what the law means in a legal question.)
(Admittedly, I’m not even sure if we need the preponderance standard in legal questions. If there are three viable interpretations of a law and the Court figures none of them reach more than 50% likelihood, should it just… dismiss the case?)
With respect, I’m finding it difficult to find any part of this that I agree with. I’ll try to work through my responses in turn, but, at bottom, I am having a hard time understanding why the Court would deviate from the way it currently handles criminal cases and review requests, i.e., as unitary cases in which–if interpretation of law is necessary–it is carried out in the course of applying law to fact in that individual case. The idea of stalling a criminal trial while one or more legal questions are presented and adjudicated entirely separately makes no sense to me whatsoever. And is not consonant with how I understand the Court’s procedures ever to have worked.
I do not agree with that interpretation of the Charter, and do not believe that the Court adheres to it. The Court is vested with “judicial authority”–that is the power to hear and decide cases within its jurisdiction, including by making both factual and legal determinations as necessary to resolve those cases.
The Charter provides that the Court “may clarify and interpret provisions of law when presented with a Legal Question about them.” That is a grant of authority, not a limitation on the Court’s authority to engage in legal interpretation within its criminal or review request jurisdiction.
Indeed, the Charter’s vesting of review request authority clearly contemplates that the Court will interpret relevant provisions of law if necessary to adjudicate review requests. There is no way that the Court could “determin[e] that [the challenged official action] violates the terms of this Charter or any other constitutional law” if it were categorically prohibited from interpreting the Charter or any other constitutional law when deciding a review request.
Likewise, the Court frequently interprets the underlying criminal law in adjudicating criminal cases. Consider Henn v. Belschaft, 2502.HC. The Court’s decision in that case turned on the meaning of the phrase “underlying corrupt purpose” as used in the Criminal Code. As the Court correctly explained, I advanced the argument that “the very fact of recruiting from abroad constitutes a corrupt purpose.” The Court disagreed with me, concluding that “while actions can be indicative of purpose, one cannot be confused with the other.” In other words, the Court interpreted the phrase “underlying corrupt purpose,” found it had a different meaning than that which I was advancing, and applied that interpretation to resolve the criminal case at hand. It did not refuse to adjudicate the case on the grounds that doing so would requiring interpreting language in the Criminal Code and that all interpretation must be accomplished via legal question. I am not aware of the Court ever issuing such a decision.
There is no different interpretive procedure. In all cases–legal questions, criminal trials, and review requests–the Court identifies the relevant provisions of law that bear upon the case, interpret those provisions, and apply them to the facts at hand. Even in purely hypothetical legal questions, the same process is followed, as the Court is asked how the given provisions of law apply to “hypothetical scenarios.”
And again, in candor and without meaning to sound overly blunt, I think that system makes no sense. I cannot see any benefit to be derived from having an entirely separate proceeding or proceedings to resolve the possible ancillary legal questions that could arise in any given criminal case or review request.
That is precisely what happens when questions of legal interpretation arise in the criminal complaint or review request context. Was there any confusion on the Court as to the interpretive question that it was required to answer in Henn v. Belschaft? Would there have been any benefit to requiring Bel or Henn to file a separate legal question asking the Court to answer whether the mere solicitation of foreign votes constituted an “underlying corrupt purpose” within the meaning of the Criminal Code? It strikes me that the Court’s decision in that case–whether I agreed with it or not–was quite focused on the relevant interpretive question at hand.
As for precedent, I agree with you that the strange “full force of law” clause in the current Judicial Act seems to give greater precedential weight to interpretations made in the legal question jurisdiction than others. For numerous reasons, I cut that pean to judicial supremacy from this revised draft. But one such reason was that there is no particular reason to privilege legal questions in that manner. Should the Court’s decision in Henn on the meaning of “underlying corrupt purpose” carry any less precedential weight than if I submitted the exact same set of facts, down to the exact same Discord posts, as a legal question on the meaning of the Criminal Code as applied to that “concrete” set of facts?
Again, I fail to understand what is gained by submitting a separate legal question case on a legal question that arises in the course of deciding a criminal trial. If the interpretive question is so obvious, if the legal provision questioned by the defendant is clear and unambiguous, then the Court can simply say that in deciding the criminal trial. “The Criminal Defendant argued that provision X means Y. That is an incorrect reading–provision X means Z.” Having the criminal defendant instead halt the criminal proceeding, file a legal question on the meaning of that provision, have the Court dismiss as non-justiciable, have the criminal defendant request an in-chambers opinion explaining the reason, only for the Court to say “this is non-justiciable because provision X unambiguously means Z,” strikes me as a substantial waste of time to reach the same result as if the Court simply interpreted the provision in adjudicating the criminal case.
That is not bypassing regular procedure–resolving relevant interpretive issues is part of the procedure of a criminal trial. Since a criminal complaint will be dismissed unless there is probable cause that a crime has been committed, it cannot simply be used in lieu of submitting a legal question whenever a person wants to avoid the justiciability limits on legal questions.
This appears to conflate two different issues. Whether the interpretation of a law is relevant to the adjudication of a criminal case is not the same as whether it is justiciable if presented in a legal question. Relevance in this sense means whether the interpretive question has any bearing on the criminal case at hand. That is to say, could the resolution of competing interpretations of that law have any effect on the outcome of the case? To go back to Henn, Belschaft rightly raised the question–doubtless relevant–of how the provision under which he had been indicted should be interpreted. If he had raised a question about the proper interpretation of an ambiguous provision of the Cultural Act, it would, almost certainly, have had no bearing on the outcome of the case and would not be properly resolved by the Court in that context. The Cultural Act question might well have been justiciable if presented as a legal question; in this hypothetical, I’m conceding that the Cultural Act provision is ambiguous. But it simply has no bearing on whether Belschaft committed electoral fraud as that crime is defined in the Criminal Code.
The standard for statutory interpretation is the same in both criminal and civil cases, except with the possibility of application of the rule of lenity to criminal statutes only. The higher standard of proof in criminal cases applies to questions of fact, not questions of law. Hence, the results of the interpretive enterprise should be the same in both criminal and civil cases. Insofar as the rule of lenity applies (and I am not sure that the Court has adopted it), it applies to the interpretation of all criminal statutes, not simply in criminal trials. So the results, again, should be the same if the Court is presented with a legal question about the meaning of a criminal statute as if it interprets that same statute in the course of adjudicating a criminal trial.
I do not agree that misunderstanding of law is a mens rea defense. Ignorantia juris non excusat.
Again, the preponderance standard of proof applies to factual findings. When called upon to interpret a statute–a pure question of law, not fact–the Court’s job is to use all interpretative tools at its disposal to determine the best meaning of the statute. It is not required to conclude that meaning has been proven by a preponderance of the evidence.
Perhaps unlike you, I actually find several parts of your response that I do agree with 
— maybe I just read the current draft differently.
But first, a brief clarification.
The current Judicial Act can be a bit of a quagmire. That said, technically, while an indictment is a type of case seemingly distinct from legal questions (3(1)), it can only be initiated by a justice as part of another case (5(1)). In practice, this is almost always a legal question asking about the applicability of the Criminal Code to some conduct. I agree that in practice this effectively functions as a distinct criminal procedure — indeed, the indictment even need not be a ‘separate’ case (5(1)) — but technically there is a legal question in there.
Alternatively, if review requests are legal questions, then the Court has the power to interpret the law to answer the legal question — and if the answer is that some action or law is unconstitutional, then it has the additional power to void it. I don’t think the Charter requires that review requests be a separate kind of case.
I think I agree with this, I’m just not sure the law reads that way. For instance, I could imagine the argument that it’s not “substantially more likely than not that the indicted party committed the relevant crime” because the interpretation of the Criminal Code is not substantially more likely than not true, even if it is, as you say, “the best meaning of the statute.”
The cleanest solution I could think of was to extract the legal interpretation into a proper legal question. But if you’re more amenable to tinkering with the wording here — admittedly I’m not sure what exactly to suggest — I think I could get behind that.
How about misunderstanding of Latin?
In any case, I think ‘misunderstanding of law’ is a bit broader than my actual views on the issue but, seeing that I actually agreed with your thoughts on standards for statutory interpretation, I’m not actually sure this debate is relevant anymore. (Maybe fun, though, where it’s not cluttering up the topic.)
I don’t necessarily think anyone would have to be “forced” to serve as counsel–as you say, it would be entirely plausible for the Court to put out a call for volunteers. In the case that no one volunteered, I suppose that is unsolvable, but it doesn’t mean an effort shouldn’t be made.
To have the judge in the original case also sit in judgement on the appeal completely violates the principle that cases should be heard by impartial judges. By definition, the justice who made the original decision is not impartial. There is no value to a “dissent” from that justice, because they cannot provide a clear-eyed, independent perspective on the original case. Additionally, even disregarding votes, it is unfair to the appellant to have what amounts to an advocate for the respondent present in the justices’ private deliberations. The proper venue for argumentation between individuals who already have a stake in the case is in the public hearing. The private discussions among the justices should not, in any way, involve individuals who are already partial. In any case, it is the responsibility of the justice in the court of first instance to fully explain their reasoning in the judgement. If they have failed to do so, then they have produced a poor decision; moreover, if the Court can’t understand the presiding justice’s decision and requires the presiding justice to explain it to them again, in all likelihood the decision should be overturned.
There is a clear difference between a panel of three impartial justices, and a panel of two impartial justices and one justice who has already ruled against the appellant. In the latter case, one justice’s vote is effectively closed off. That is effectively the same thing as a case where the unanimous agreement of a two-judge panel is necessary.
I was speaking more of the principle that defendants should have the right to an appeal, rather than what the law is. Why should the presiding justice have the absolute ability to make factual determinations that cannot be appealed? If you are going to have an appeals system, what is the reason for this limitation?
By the logic you are using, the Assembly does not “really” have the power to make laws, and elections do not “really” choose government officials, because these decisions are, in the most essential mechanical sense, enforced by the delegate and the root administrator of the forum. In that sense, the “police force” the Court would employ is the same that is used by every other government institution.
If you are saying that the Court’s power to order government officials to obey laws is contained in article 7.6, then that is a reasonable point, but it is not as direct as the Court having the explicit power to order the government to act in a lawful manner.
That is a valid point, which is why I think the ideal solution is likely to amend the Charter to empower the Court to “void an omission.”
There is no “standard of proof” in interpreting law. That is a misapplication of the concept of the standard of proof, which is about evidence used to determine factual matters.
I think it’s possible for justices to change their minds on appeal, but sure, let’s suppose that it’s not possible. Even so, why should the time when a justice reaches their decision matter? If a majority of justices on the Court agree with a particular legal interpretation, I’m not sure why it matters if one of the justices in the majority reached their decision earlier.
If an direct and explicit grant is required… where does the Charter say the Assembly has the power to make laws? It just says the Assembly holds supreme legislative authority in the Coalition. Similarly, the Court holds exclusive judicial authority in the Coalition. Both of these branches do have the power to say what government officials should and shouldn’t do, but…
…I’m not sure what we would accomplish by letting the Court say “we order the government to obey the law.” I don’t think the Assembly needs to end every law by ordering people to obey it, and I don’t think the Court needs to end every decision that way.
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Whether or not justices can change their minds is irrelevant. There is a vast difference between convincing an impartial justice to one’s side, and convincing a justice who has already stated, at length, their contrary position on the matter.
You are thinking of it as though the case was decided by the whole court at the first instance. In that case, there is no point to having an appeals system. If there is going to be an appeals system, all the justices involved in the appeal must be impartial. Otherwise, all cases should be decided en banc at the first instance, with no possibility of appeal.
If your point is that legal questions fulfill essentially the same function I am referring to, then I see your point. I was referring to your claim that the Court doesn’t “really” have the power to enforce its own decisions.
Before any substantive responses, I will note that the draft has been updated with all changes to which I agreed in this thread except the criminal appeals issue, on which I would appreciate further input.
Now we are getting somewhere–we certainly agree about this!
Ok, this is helpful to start sorting through where we disagree, and, from the sounds of it, it’s more about interpretation of the current Judicial Act than about the draft. While the current Judicial Act is so confusing that it’s impossible for me to be entirely confident in my interpretation, I don’t agree that an indictment / criminal case can only be initiated as part of a criminal case. Here is how I unpack these baffling provisions:
- The Judicial Act appears to recognize four types of case: “a legal question, an appeal, an indictment, or a sentencing.” Judicial Act 3(1).
- Each of these four types of case can be “submitted to the High Court via a public post in the High Court area by any individual authorized to submit a case of the given type.” Judicial Act 3(1).
- The Court’s Standards for Case Management tell us who is authorized to submit cases: “The High Court may consider legal questions, review requests, criminal complaints and appeals when they have been submitted by a member of the South Pacific.” So, under current law and procedure, any member of the South Pacific can commence a criminal case by submitting a criminal complaint for the Court’s consideration. There is no requirement that a legal question be submitted first.
- But wait, what is this reference to a “criminal complaint”? That doesn’t appear in the Judicial Act! True. But, to my mind, the erroneous use of the term “indictment” in Judicial Act 3(1) is what’s causing a lot of confusion here. An indictment is not really a type of case; it is a part of a criminal case, during which a judge (or a grand jury) finds that there is probable cause that a criminal defendant committed a crime such that they must stand trial for that offense. Another part of a criminal case is the filing of a criminal complaint, in which an individual submits evidence accusing another of a criminal offense. If, after consideration of that complaint, the court finds probable cause, then the defendant is indicted, and the criminal case proceeds to the next two parts, i.e., a trial to determine guilt or innocence and, if necessary, sentencing.
- That process of indictment appears to be what Judicial Act 5(1) is referring to, again, albeit very confusingly: “As part of a case, the Justice may indict an individual if there is probable cause that this individual has committed a criminal act.” By “as part of a case,” I take this section to mean that a Justice may issue an indictment if that Justice finds probable cause of a criminal offense in the course of adjudicating any type of case. So, if in a criminal case initiated by the submission of a criminal complaint a Justice finds probable cause, then the Justice may issue an indictment. Or if the Justice finds such evidence in the processing of a civil case like a legal question (e.g., evidence of contempt of Court in the civil proceedings), then the Justice can issue an indictment then too.
- The latter situation is what 5(1) is referring to when it provides that “[i]f the criminal act is not substantially related to the case, the assigned Justice is encouraged to start a separate case for the indictment.” In other words, if a Justice happens to find evidence of criminal wrongdoing in the course of adjudicating an entirely unrelated civil or criminal case, the Justice should start a separate criminal case to process that indictment. That’s not a limitation on how criminal cases can be submitted–it doesn’t require that every criminal case start as a legal question and then be split out. Instead, it creates an additional way in which a criminal indictment can be issued beyond the typical submission of a criminal complaint.
- This is how I understand the Court to interpret and apply the Judicial Act currently. I am not aware that the Court has ever required the submission of a legal question and then split that question into a criminal case. Instead, it simply accepts the submission of criminal complaints, then proceeds to determine if probable cause exists to indict. In other words, the Court’s procedures have, correctly in my view, worked to accommodate the Judicial Act’s bizarre reference to an “indictment” within a rational system of case processing.
The draft statute eliminates this confusion and brings the statute into alignment with the Court’s longstanding practice by replacing the confusing reference to “indictment” as a case type with criminal complaint / criminal case.
Unless the Court has ever (erroneously) treated standards of proof in the way that concerns Pronoun, I tend to agree with Comfed. Standards of proof just don’t apply to questions of law / legal interpretation. I would only feel the need to tinker with the wording if it were required to correct the Court’s erroneous understanding of standard of proof. Provided the Court has correctly applied this concept to date (which it’s my understanding that it has), then I would prefer just to leave it to it.
Fair enough. I have included a provision to permit this.
I just don’t think we are going to come to agreement here, as we disagree on this fundamental premise. I will only add that it is fairly common RL practice to have the original judges who heard and decided a case in the first instance sit on an en banc panel reviewing that decision. You may not agree with that practice, but I’m simply pointing out that those en banc procedures are not generally viewed as violating the requirement that the case be heard by an impartial tribunal.
Well, there is not an absolute prohibition on reversing factual determinations. The limitation is that those determinations can be reversed only if they are clearly erroneous. It’s just a higher standard of review, not a categorical bar.
As for why, as explained above, it’s my view that en banc appellate proceedings should be primarily focused on resolving important legal issues that will govern future cases, rather than case-specific factual determinations.
Apologies for the delay in my response. I’ve been quite busy with school, and there’s a great deal to unpack in this bill. For now, I’ll focus solely on the issue of tie votes.
Under the system established in this bill, a single justice would hear the case and make an independent determination of the defendant’s guilt. The defendant would then have the ability to appeal that decision to the full High Court, which would review the case en banc, including the presiding justice whose conviction is being appealed. The High Court would, by majority vote en banc, have the authority to affirm, reverse, or remand the decision of the presiding justice. Section 1(1) provides that the High Court should consist of at least three justices, one of whom shall be the Chief Justice. The issue of a tie vote only arises when the number of justices exceeds the required minimum and is even. In a three justice panel, if two justices favor a reversal or remand, they would prevail. However, in a four justice panel where the votes are split evenly, the presiding justice’s decision would be affirmed.
We are effectively merging elements of appellate review and en banc rehearing in way that, in practice, permits a conviction without the support of a majority. To my understanding, typically when an appellate court grants an en banc rehearing, it vacates the court’s original judgment and opinion. That is not the case under this bill, which allows the presiding justice’s decision to prevail in the event of a tie, which includes that justice’s vote. While I agree that it is acceptable not to disturb the presiding justice’s decision in civil cases, criminal cases demand a higer standard. It is a long standing principle that the defendant must be given the benefit of the doubt, and that it is a greater injustice to convict the innocent than to acquit the guilty. It is prudent to err on the side of the defendant when there is a tie vote, especially given that the tie would include the vote of the single presiding justice. To allow a conviction to stand without majority support does not, in my view, serve the interest of justice, nor would it be fair to the accused.
I continue to agree with this point in principle, but I’m trying to think through how it could be made to work in practice. If the Defendant appeals on an issue of law that, if resolved in their favor, would require them to be acquitted of the underlying charges, then in the case of a tie vote the Court would just reverse the Presiding Justice’s decision. But if the appeal were based on new evidence or procedural error, then a judgement of acquittal on appeal would not seem proper; instead, the case should be remanded for a new trial. So would the provision read something like: “If the High Court is evenly divided over whether to affirm or reverse a Presiding Justice’s decision in a criminal case, then said decision shall be either reversed or reversed and remanded for further proceedings, as appropriate under the circumstances of the case.”
Apologies for the double post, but I would tentatively invite a motion to vote on this bill.
To be sure, there are still a few open points that we could continue discussing. But these seem to be either relatively marginal issues that don’t bear directly on the core structural reforms in the bill (e.g., the rule for ties on criminal appeals) or major proposals for further reform (e.g., amending the Charter to authorize the Court to issue affirmative orders compelling government officials to perform duties required by law). While I believe that these topics merit further consideration, I think that they would be better addressed as individual amendments once this overall reform is passed. It would be easier and, to my mind, more productive, to enact the changes for which there is general agreement (which I hope the current bill reflects) then address more heavily debated and / or substantial new changes separately.
I am, of course, open to continuing the discussion on the current bill if legislators have more questions, concerns, or thoughts on its specific provisions.
Edit: Thanks to the eagle eyes of our Prime Minister, I have made one edit to a provision that previously appeared to give the Court the authority to confer whatever powers it wanted on the CJ. Thus, I would amend my request to invite a motion to vote once the three day debate period has expired.
My apologies for not following up on the tie vote discussion. Overall, this an excellent bill and I agree that we can handle the smaller adjustments through a seprate amendment.
I move that we proceed to a vote on the bill.