No more legal questions

So I liked Nakari’s idea to remove legal questions. Maybe we would be done by now if it wasn’t for the legal question system. Instead of legislating things, we try to delegate them to the High Court so we don’t have to do it. If you want something more in-depth go read that thread.

here you go

This is an illogical premise. Nobody is ever forced to submit a legal question. People always the the option of drafting an amendment yet they choose to go to the judiciary. I fail to see what upside is there to depriving people of the option of having a neutral setting to resolve legal controversies.

In any case I would question the point of a judiciary that would only be there to address criminal complaints. In 20 years of existence, the region has only had 36 criminal complaints and only 13 were admitted to trial. It would be better to abolish the judiciary altogether.

I don’t necessarily agree with this line of argument. Any one person can take a case to the High Court regardless of what the majority of the region wants, and then once it’s at the Court, it’s at the Court! And since people are invested in specific outcomes, they’ll strategically assess “do I think my probability of winning is higher at the Court or via the Assembly?”. Sure, no one is forced to go to the Court, but there are incentives to do so - strategic ones - that result in the legislative option rarely being taken

Is the solution to abolish legal questions, then?

I don't agree with that. There is nothing preventing people from having a parallel discussion in the Assembly and taking away the need for the Court to rule at all, if they have the majority for it. If nobody does that then clearly there isn't enough interest in legislating on that particular matter in the first place.

I would also caution against doing away with legal questions without carefully considering the implications of doing that. If the Court can no longer consider legal questions then there will no longer be any judicial recourse for a wide variety of issues, from unjust bans to unfair government actions to legal contradictions. Those would all be gone because those are all forms of legal questions.

In any event, I would prefer that we all be honest about what is being proposed. Most of what the Court does is legal questions, not criminal complaints, so doing away with legal questions would mean abolishing the Court in all but name. If that’s what we want to do then let’s talk about abolishing the Court rather than leaving it as some sort of zombie institution that will, in all likelihood, never be used.

Not necessarily. I quite liked Glen’s idea of amending the Judiciary Act to limit the Court’s discretion in accepting LQs where players don’t have standing, the question isn’t relevant, a Court decision is genuinely necessary, etc. The details of that law would be hugely important, but a middle ground seems a viable option here

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The High Court already has discretion in what legal questions they want to take, do they not? What is the purpose of limiting that further?

Not that I am :sparkles: biased :sparkles: or anything, but I think the current setup is fine.

More than a couple of times (after I’ve accepted a case and begun working on an opinion) the underlying law was changed and I asked the petitioner if they wished to withdraw the LQ.

If the public thinks that the Court shouldn’t be relied upon as much, then that just requires a mindset shift. There isn’t a need to rid the Court of most of its responsibilities.

Not really. We can only decline questions if we decide they are not justiciable or if they are vexatious, in the latter case by voting unanimously.

Sure, but those changes would never apply retroactively to a decision made under the previous law, which is where we often get gummed up with court process instead of relying on the jurisdiction of the original official who made the call (i.e. the EC, Chair, Cabinet, etc.), who the Court often ends up deferring to anyways. When the Court takes those questions, they kill motivation and take the decision out of the hands of the Assembly or elected officials even where it might be unnecessary.

I agree with you that it’s mostly a cultural question, but I don’t think it’s entirely a cultural question

I remain convinced that if the goal is to do away with legal questions then we might as well abolish the judiciary. I’m not even saying this as a hyperbole, I genuinely do mean it. There is no practical point to the judiciary if it doesn’t do legal questions.

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I’d prefer transforming it so that the legal question isn’t a reason for a court case. As in, a legal question would be transformed into the HC informing whether they’d consider a particular case justiciable or not.
Now, I don’t know whether this should be a mandatory pre-requisite (intuition shows a big no) or just an available pre-requisite for legislators to check whether a case would even be processed by the court or not.

I’m not sure I understand.

So then would would do criminal cases and actual judicial review? While it is true that a Court without LQs would probably be even less active than it is now… we still need it as an institution or something like it to preserve the rule of law.

What is called judicial review is what we in the South Pacific call legal questions. A legal question is a case about the legality of a law or action, or the applicability of a law to a real or hypothetical situation. These are the overwhelming majority of what the Court does, amounting to 86 legal questions vs. 13 trials over the course of the past 20 years.
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Ah, I see. I think I assumed appeals fulfilled that role.

In that case, no, we should not get rid of legal questions. That would be terrible.

For example, a legal question would now examine whether a phenomena (action/law/situation) is justiciable - as in, would the HC consider (event) as something within its’ jurisdiction and then separately examine whether (event) is legal or not. The HC would see the legal question as consulting whether the law can be applied to a given phenomena.
This means removing the power of a legal question to answer whether the phenomena in itself is legal or not; rather it answers whether the phenomena has any reason to be taken as a case which the HC examines or not.

I still don’t understand, but that sounds rather convoluted regardless.

Okay, I think doing it by draft will finally elaborate it properly, I hope.

I don’t understand what difference you think this makes.