Debate:The Fixing the Deck Judicial Clean-Up Act

Law:The Fixing the Deck Judicial Clean-Up Act

Date Introduced to the Hopper: Oct 1, 2015 at 12:09pm
Author: Sir Alexandreu Davinescu

Ián Tamorán Oct 8, 2015 at 3:58pm

I have no power here - and, indeed, should not have any.

BUT I disagree both with this proposed bill and with the environment (albeit -arguably - legally endorsed) that necessitates it.

I agree that the Corts are slow - but in the exercise of justice, slowness is not always a fault, but the consequence of careful thought. In my opinion (and this is only my personal opinion, and not in any way my opinion as a Justice) reducing the number of layers of Cort is a bad idea. It is a bad idea because (1) all the powers of judicial decision are placed in one body, and unless the appeal process is enforced to use a different bench from that of the first trial, then it removes some of the real efficacy of appeal, and (2) no Cort is perfect: there must be some, internal, method of correcting errors of some Cort by means of another Cort. Of course, it could be argued, the Ziu could perform that action - but that would be really dangerous, as it would permit the Ziu to pass retrospective laws - laws correcting some past decision of the Corts. The Ziu could commute a sentence - that is safe - but not impose, retrospectively, an increase in a sentence. The process of appeal (again, in my personal opinion) should, at the last resort, culminate in the Monarchy, who can only pardon but never convict, and such pardon could be advised by the Ziu (but never enforced by it), or could come directly from the wishes of the Monarch him/herself.

There is nothing, in these ideas, stopping the Ziu from changing the laws to prevent subsequent errors of justice - but not previous exercises of justice, other than by reduction of sentence.

I also recognise that these ideas result in more complication than the simplified scheme now (nominally) in force - but simplification is not always correct. Simplification in engineering, yes: but simplification in the exercise of justice, not always.

Sir Alexandreu Davinescu Oct 8, 2015 at 4:25pm

Again, just like in the other bill, the Magistrate's Court is already gone. Its members were elevated to the CpI and no more will be appointed.

Sir C. M. Siervicül Oct 8, 2015 at 6:07pm

Quote: Oct 8, 2015 at 3:58pm Ián Tamorán said:
It is a bad idea because (1) all the powers of judicial decision are placed in one body, and unless the appeal process is enforced to use a different bench from that of the first trial, then it removes some of the real efficacy of appeal

Curiously, I raised exactly this concern on behalf of the respondent in the 47RZ28 case, because the use of a three-judge panel at trial makes it impossible not to have an overlapping panel on appeal, and was told that the UC had unanimously decided to stick with a 3-judge trial panel anyways.

Sir Alexandreu Davinescu Oct 8, 2015 at 7:03pm

I thought of that, too. Is Justice Tamoran on that panel?

Sir C. M. Siervicül Oct 8, 2015 at 8:43pm

Quote: Oct 8, 2015 at 7:03pm Sir Alexandreu Davinescu said:
I thought of that, too. Is Justice Tamoran on that panel?

I think not.

Dr. Txec dal Nordselvă Oct 9, 2015 at 7:32am

Quote: Oct 8, 2015 at 8:43pm Sir C. M. Siervicül said:
I think not.

No - justices Edwards, Cjantscheir and Nordselva.

Dr. Txec dal Nordselvă Oct 9, 2015 at 7:34am

Quote: Oct 8, 2015 at 6:07pm Sir C. M. Siervicül said:
Curiously, I raised exactly this concern on behalf of the respondent in the 47RZ28 case, because the use of a three-judge panel at trial makes it impossible not to have an overlapping panel on appeal, and was told that the UC had unanimously decided to stick with a 3-judge trial panel anyways.

The relevant ruling:

"The Cort has decided with full consensus of all five justices that in cases where the interpretation of Organic Law is in question, a three member panel of justices should sit. In civil/criminal cases, a single justice will be assigned and any appeals will be heard by a three member panel."

Sir C. M. Siervicül Oct 9, 2015 at 8:11am

Quote: Oct 9, 2015 at 7:34am Dr. Txec dal Nordselvă said:
The relevant ruling:

"The Cort has decided with full consensus of all five justices that in cases where the interpretation of Organic Law is in question, a three member panel of justices should sit. In civil/criminal cases, a single justice will be assigned and any appeals will be heard by a three member panel."

Indeed. I suppose it could be that Justice Tamoran is mostly concerned about having separate trial and appeal panels in criminal cases, since his later comments seem to be focused on criminal cases.

Sir Alexandreu Davinescu Oct 12, 2015 at 7:44pm

Anyway, any other thoughts or suggestions?

Ián Tamorán Oct 13, 2015 at 3:27pm

Quote: Oct 9, 2015 at 8:11am Sir C. M. Siervicül said:
Indeed. I suppose it could be that Justice Tamoran is mostly concerned about having separate trial and appeal panels in criminal cases, since his later comments seem to be focused on criminal cases.

That is, primarily, the case - though we need to remember that there can be contentious "civil" cases too, which we must be sure we can - with justice - accommodate.

Miestrâ Schivâ, UrN Oct 16, 2015 at 2:48am

As A-G I am in favour of this.

Sir Alexandreu Davinescu Oct 26, 2015 at 4:23pm

I will clark this in the next Clark.