Constitutional Law Review: Court Jurisdiction over enforcing site rules - Page 2

MrBaggins · February 18, 2003, 09:42

Quote:

from http://www.ukpoliticsbrief.co.uk/con...n_of_the_j.htm
The Constitutional position of the Judiciary in the UK

Judges interpret and uphold the law, as laid down in statutes by parliament. They are also at present involved in framing laws as the most senior Judges, the Law Lords, sit in the second chamber, the House of Lords, and can seek to influence Bills as they pass through parliament. Michael Howard's Bill to reform sentencing rules was heavily criticised by the Lord Chief Justice, Lord Taylor, as it went through the Lords. In addition, judges contribute to the system of common law when they make decisions in the courts in specific cases ( interpreting statutes ). Decisions made in higher courts are binding on lower courts, and set a precedent for future cases, that judges can draw on.

At the head of the judiciary is the Lord Chancellor, who is appointed by the PM. Distinct from the Lord Chancellor are the government’s own Law Officers, the Attorney General and the Solicitor General, whose job is to handle legal cases that involve government departments.

Although the Chancellor is appointed by the PM he is apolitical in the way he does his job which is concerned with:

- appointments of judges ( in theory the Queen appoints them on the advice of the LC)

- advising the government on reform of the legal system

Britain does not have a codified constitution and so has no constitutional court; judges cannot declare actions or laws unconstitutional but they can declare actions, including those of ministers, unlawful. This can happen in specific cases that involve public bodies and individuals ( called case law ), or in cases where judges are asked to clarify the law in principle.

After 2000 the UK will have the Human Rights Act in operation which will transform the system of individual rights. This could bring judges more into conflict with the government. See new system of rights.

Judicial Review

In the context of the study of government this is the process by which the courts question the legality of ministerial actions or those of statutory bodies. The main cases start in the Queen’s Bench division of the High Court. The Court can decide whether an action is legal in terms of the Act ( or Parent Act in the case of statutory instruments ) but cannot in normal circumstances question the legality of the Act itself. The exception to this is in the area of EU matters; the landmark case is Factor Tame 1990. Jack Straw in March 99 sought a judicial review over early release of IRA terrorists.

High Court judges have 3 principle legal powers ( called prerogative writs) to control the actions of statutory bodies and therefore ministers:

1 The writ of Ultra Vires: declares actions unlawful because they are beyond the powers conferred by Parliament

2 The writ of injunction: banning of an unlawful action

3 The writ of Mandamus: ordering the performance of a public duty

The British constitution is a mixture of modernity and extravagant tradition; we see evidence of the latter continually; the above writs are properly called prerogative writs, and derive from the powers of the monarch. The writ of Ultra Vires declares actions unlawful within the existing set of laws. This is the most significant writ in terms of government and politics as it is the most commonly used and brings the courts into conflict with ministers. Ministers derive their powers from parliament when an Act is passed. The courts can therefore declare actions of ministers unlawful if it can be shown that they are not permitted under the relevant Act; those actions would be declared Ultra Vires ( Latin for beyond the powers ).

Examples of rulings in the High Court and Lords

1993 Lords ruled that public bodies could not sue for libel following Derbyshire County Council’s attempt to sue the Sunday Times

Lords found Kenneth Baker in contempt of court. "The most significant constitutional ruling since John Wilkes obtained damages against a minister in the 18th c". Michael Bellof - constitutional lawyer.

Howard's ban on the head of the Moonies visiting Britain declared unlawful

Lord Rees Mogg brought his case in the High Court to block the Maastricht treaty on the grounds that ministers could not give away sovereignty. He lost the case

1995 High Court ruled that the Foreign Secretary Douglas Hurd had acted unlawfully in using the overseas aid budget to encourage arms sales to Malaysia

1996

High Court ruled that the Prison Service had acted unlawfully in calculating sentences, and so some prisoners released and able to claim compensation.

Appeal Court quashed Howard’s refusal to grant citizenship to the Al Fayed brothers. Howard announced appeal to Lords.

1996 A Sikh activist who had spent 6 years in prison fighting extradition was released by order of Michael Howard after the European Court of Human Rights ruled that if he returned to India he risked torture, contrary to the Convention.

1997 Lords ruled Michael Howard, the former Home Secretary, broke the law when he increased the minimum sentences on the two boys who murdered James Bulger.

1999 Lords ruled that 2 Pakistani women should be given asylum in the UK for fear of ill treatment by relatives in Pakistan.

October 99 House of Lords ruled that a homosexual couple could be described as a family for the purposes of tenancy law; enables partners in gay relationships to carry on a secure tenancy agreement as if a heterosexual couple.

October 99 Lords ruled that the British Government was liable to pay compensation to Spanish trawlermen for restricting them from buying British fishing quotas under the Merchant Shipping Act 1988

February 2000 High Court ruled that the Home Secretary had to release the Pinochet medical file

Factor Tame case

A High court judge held up the implementation of the Merchant Shipping Act 1988 pending referral to the European Court of Justice, 1990.

The UK government had tried to prevent Spanish trawlers being registered in Britain; the trawlermen argued it was in breach of the 1986 Single European Act.

European Court of Justice ruled that an Act of Parliament could be suspended pending its review by the European Court.

Judges have become more politicised

Eg the clashes between Michael Howard and the courts in 1995;

Lord Justice Taylor’s response in the Lords to Howard’s call for mandatory sentencing and Lord Justice Taylor’s response that detection was a better deterrent.

MrBaggins · February 18, 2003, 09:49

Any body which has power or sovereigny over enactment of legislation, by that very action becomes a governing body, ergo part of the government.

Quote:

M-W: govern
1 a : to exercise continuous sovereign authority over; especially : to control and direct the making and administration of policy in b : to rule without sovereign power and usually without having the authority to determine basic policy

Gilgamensch · February 18, 2003, 09:55

But again,

where does it leave us? Here in the DG? The court has not the power to rule over the ministers. It can only act if a file has been filled. SO I still don't see it as part of the government.

MrBaggins · February 18, 2003, 10:20

Proposed amendment (not including impeachment issues as of yet)

Quote:

1. Purpose:

(a) The State Council, or 'Court' is constituted to rule upon: contested disputes involving legal interpretation, validity of polls and elections, violations of the Constitution, or any other legal dispute involving the game.
(b) The State Police is consitituted to detect violations of the Constitution, and to raise suspect matters to the attention of the court, on behalf of the State.

2. Construct of the Judiciary

i. The State Council- The Law Court

(a) The Court is composed of 3 Judges who will serve a three month term of office. There is no limit to the number of terms a Judge may serve.
(b) Each Judge has to be elected by the people in a seperate election poll. Every month one of the Judge positions shall be open for election. This positition shall be the one of the Judge who has reached the end of his term.
(c) When the election of a Judge position starts, the Judge who enters the last month of his term becomes the Senior Justice.
(d) Paragrah 2(c) only applies to regular elections at the end of a Judge's term. It does not apply to elections that take place to replace impeached Judges. The replacement for an impeached Judge shall serve for the remainder of the term that their predecessor served. If the Senior Justice is impeached, the new Judge shall become the Senior Justice. If another Judge was impeached, the Senior Justice shall keep his position.
(e) A Judge may not serve in other governmental posts.

ii. The State Police

(a) The State Police is composed of a single officer, who will serve a one month term of office. There is no limit to the number of terms a citizen may serve as State Police officer.
(b) Elections for the State Police are enacted by the Court. At each monthly term, subsequently to election of any new judges, a public(?) discussion by the court (not to exceed 5 days,) will decide the candidates for the office, and a vote shall be taken, with the names of the candidates, and abstention as options in a poll. The polling shall be for the duration of 3 days. In the event of a tie, the President shall have a deciding vote.
(c) An active State Policeman shall not serve in other judicial or governmental posts for the duration of their office.

Tamerlin · February 18, 2003, 10:23

Right, the Court is not part of the government and we must debate on whether we create a new position or not.

As far as I am concerned I don't think we should as we have already some difficulties to fill the existing positions and because the number of players involved in the game will have a tendency to decrease. Moreover the role of Policeman/Prosecutor in a DG is not really an exhilarating one.
We could adopt a different system, election of a Minister of Justice (with the current powers of Gilgamensh) that would then be part of the government and could open cases. The Minister of Justice would then nominate two other judges, etc... Note the two other Judges would not be part of the government and could not be revoked until the next term.

MrBaggins · February 18, 2003, 10:27

The people should not elect an officer of constitutional enforcement. The election should be performed by the court.

Zaphod Beeblebrox · February 18, 2003, 10:33

i don't think we need any state attorney, police officer or something like that at all at the moment. there is simply no need for it, it will be another vacant position and will scare people off

H Tower · February 18, 2003, 14:16

Ok, we've got WAY too many topics being debated here. The one for which this thread was created has been abandoned it would seem

Fine, I can live with that, but right now we're having an amendment placed before us, a new government position, a big long article about England's court without any comments about what we're supposed to learn out of it, whether or not the court is actually a part of the government, and people talking about the court being able to file cases itself.

As for the Court being a part of the government, I think the constitution speaks upon this:
Article V is titled government changes and specifically mentions the election of judges within. Therefor the court must be part of the government.

I'm against a position to enforce the law. We have several people who are interested enough in the law that not all of them can be judges at once. Locutus has filed several cases and has never been a judge. And J Bytheway wrote an amendment to the constitution and has never been a judge. We also have to remember that we're here as a whole to play a game, not create a perfect system of government or constitution. We have a hard enough time filling the positions in the government as it is. And when I say government I include the court in it.

I'm against judges being able to file certain kinds of cases, it has a conflict of interest involved. However I feel that the judges should be able to rule over the validity of polls without a case being filed by a citizen, this should be an exception to the rule. And as above, we have several citizens who are interested in the law who can file cases without prompting by the judges. If the people don't care if a poll is correctly worded but still gets its point across then the court should just leave well enough alone. Things could get out of hand if the court is flooded with cases that stall the game.

Tamerlin · February 18, 2003, 14:22

Quote:

Originally posted by H Tower
I'm against judges being able to file certain kinds of cases, it has a conflict of interest involved. However I feel that the judges should be able to rule over the validity of polls without a case being filed by a citizen, this should be an exception to the rule. And as above, we have several citizens who are interested in the law who can file cases without prompting by the judges. If the people don't care if a poll is correctly worded but still gets its point across then the court should just leave well enough alone. Things could get out of hand if the court is flooded with cases that stall the game.

I agree with you H Tower, the judges should be allowed to open a file when the validity of a poll seems contested by the citizens in the thread holding the poll.
In the same spirit I agree there is no need to when no one complains.

Perhaps will you be a good Judge after all...

MrBaggins · February 18, 2003, 15:23

Quote:

Originally posted by H Tower
*SNIP* a big long article about England's court without any comments about what we're supposed to learn out of it*SNIP*

The comment was presented in a subsequent post.

Quote:

by MrBaggins:
Any body which has power or sovereigny over enactment of legislation, by that very action becomes a governing body, ergo part of the government.

Quote:

Originally posted by H Tower
I'm against judges being able to file certain kinds of cases, it has a conflict of interest involved. However I feel that the judges should be able to rule over the validity of polls without a case being filed by a citizen, this should be an exception to the rule. And as above, we have several citizens who are interested in the law who can file cases without prompting by the judges. If the people don't care if a poll is correctly worded but still gets its point across then the court should just leave well enough alone. Things could get out of hand if the court is flooded with cases that stall the game.

I agree. Eminently sensible.

However... What about the recent nomination argument within the MoDA Election poll? Should they be able to independently make remedy, given that a ruling had already been made, and that argumentative legal argument was inappropriately being carried out in the thread?

mapfi · February 18, 2003, 18:04

I think with allwoing the court to immideately rule on polls we have resolved that issue - I don't feel there's the need to give the court the power to act without at least someone complaining.

A public investigator is just a dumb idea - it'll hold up the game. E.g. right now we wouldn't have been able to hold last and the next chat because Wise Ass isn't around and IW, his delegate, can't show either. Now IW's appointing a delegate, something rather questionable. Noone cares however, that's why there's no need to bring it to court.

child of Thor · February 18, 2003, 18:54

well its been a somewhat scary read for me.IMHO I'd say it's up to the forum moderator and/or the site staff to deal with spamming/flames(do we have those here?).
I trust Locutus to manage this as he has always done - a quiet word here and there and everyone gets the message.
Its not that we have a problem with lots of screaming ranting types here. Spam happens sometimes and is hardly endemic here compared to some places.
We could get all nazi like i suppose, and for the sake of some people wanting to go all god-like this DG would stand to lose more than it will gain.
How many citizens are there? If you get too draconian that might fall by half.
If it helps we all know who the spammers are(my god i may be one

) and a quick word from Locutus when needed will be enough.
Thought police :shudder:

H Tower · February 18, 2003, 23:13

Quote:

Originally posted by Tamerlin
Perhaps will you be a good Judge after all...

Many of the people seem to think so, I've gotten all 16 votes cast so far

CoT:

Quote:

staff to deal with spamming/flames(do we have those here?).

Well we most definitely have the spam

Mr. Baggins

Quote:

However... What about the recent nomination argument within the MoDA Election poll? Should they be able to independently make remedy, given that a ruling had already been made, and that argumentative legal argument was inappropriately being carried out in the thread?

I most definitely wanted a case to be filed for that one. Gilg did state his opinion on why he did it the way he did, but I think it could have been argued, should have een argued so it would be cleared up for the future. it is entirely possible we may go through the same thing again in the future, and a case could be filed and the decision may rule the opposite way of how this nomination/election played out. which would make the past problem all the sadder.

Gilgamensch · February 19, 2003, 07:37

to be back to your original topic:

As the site-rules are just to cover the overall, we had to specify our own part. And as Tamerlin (when I remember right) pointed out, we are just on a 'national' level.

Idea of it, I think, was actually to give us the possibility to reduce non-thread related stuff, which might not be a concern to the MOD.

Example: I would start to complain about in this threat, that H Tower did salt his eggs, during this thread (or whatever).
This could be still seen as thread related (it includeds the originator and thread related 'information').

The MOD might not be 'bothered', but the originator/interrested posters might see it disturbing, so giving the court a chance to act on.

I am still of the opinion to make the court for this stronger and proactive.

For other's saying the a warning from the MOD did work most of the times, yes, correct, but it should be ourselves 'controling and ruling' above ourselves.

mapfi · February 19, 2003, 08:10

I disagree.

We have the court for ruling on the game and we have ACS staff to make sure that poly rules are obeyed. I myself would never feel right to rule on poly stuff - it's not my business and I don't have the right to do so.
Now if we look at what Gilg just proposed in his post - a threadjack. If ACS staff says it's not - then it shall stay that way, otherwise not. Freedom of speech is not to be denied unless it violates poly rules says our con and to decide if it does violate poly rules or not is not the courts business!

Gilgamensch · February 19, 2003, 08:42

Mapfi,

So you would be happy to see somebody disturbing a threat, which might be very impoprtant to you and because it doesn't violated apoly's rules you would just 'tolerate' it?

mapfi · February 19, 2003, 09:01

Maybe I wouldn't be happy about it and also say so, but if Locutus said it wasn't a violation of poly rules than that's the way it is. As I said - it's not me to judge, I'm not ACS staff

Gilgamensch · February 19, 2003, 09:30

But it is regarding our DG, so why shouldn't we set rules by ourselves and ensure/take actions to make sure they are obeyed?

We are already doing so, for the rest of the game? So where is your problem? It is no difference there.........

mapfi · February 19, 2003, 09:40

Well then go ahead and propose an amendment that allows the court to do so because I'm convinced that the current con doesn't. Nevertheless I'm against more and new restrictions in this game/forum - can we just play the game please?

Zaphod Beeblebrox · February 19, 2003, 10:13

mapfi

Gilgamensch · February 19, 2003, 10:19

As already quoted by H Tower:

Quote:

(d)Punishments the Court may hand out include but are not limited to: warnings, impeachment procedures, barring Citizens from specific or any government offices in future elections, banning Citizens from the Democracy Game, declaring resolutions void, closing threads or polls, deleting or editing posts or threads, declaring polls invalid. Punishments which require action from the CtP2-Democracy Game forum moderator must be approved by this moderator, who shall offer an explanation to the Court if approval is not given.

This means the court can already act upon. But you don't want to act upon?

mapfi · February 19, 2003, 13:47

Those are punishments that can be handed out but in order to punish somebody he must have violated the constitution and since thread-jacking or whatever isn't covered by the con the court can't act (and that's how it should stay as I said earlier).

Gilgamensch · February 19, 2003, 15:56

Sorry, quoted the wrong one:

Quote:

(c) If the Court rules that the actions of certain Citizens are in violation with the Constitution or other rules of Lemuria, it may hand out punishments to these Citizens if it deems this appropriate. The Court will determine for itself what kind of punishment is applied, the punishment must fit the crime. However, no punishments may permanently affect a Citizens participation in the Democracy Game, the Court may not dismiss active members of government (although it may start up impeachment procedures as described in Article V) and the Court may not alter the Constitution (although it may start an Amendment poll, as described in Article IV Subsection 3-IV).

other rule's of Lemuria, would include normal behaviour, so the court could already act upon!!!!!!!!!

Zaphod Beeblebrox · February 19, 2003, 16:04

well, actually there aren't any other rules defined yet. not even civilized behaviour

Gilgamensch · February 19, 2003, 16:11

Yes and no, the court could interpret it as it wishes

Zaphod Beeblebrox · February 19, 2003, 16:14

well, as there are no other rules, there is nothing to interpret

Gilgamensch · February 19, 2003, 16:27

The are always rules. maybe not directly visible and as the court could make it's own rule's for offical threads, they could be applied on a later case........

SO again no need to change the connie

Zaphod Beeblebrox · February 19, 2003, 16:31

well, i don't think the court has the right to make up rules of its own. of course there could be passed laws, which would need a less number of votes than a change in the con. but before the con had to be changed, to allow this

Gilgamensch · February 19, 2003, 16:43

As mentioned by someone:

What isn't mentioned isn't forbidden, so the court could set some rules, espacially as it is concerning OFFICIAL matters and could be extended for the rest...........

Zaphod Beeblebrox · February 19, 2003, 16:46

well, but it could only set rules that forbid nothing, because that would need for a change in the con