Does the UDHR apply to the CDS?

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Patroklus Murakami
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Does the UDHR apply to the CDS?

Post by Patroklus Murakami »

(For the benefit of anyone suffering from acronym hell :) :
the UDHR is the Universal Declaration of Human Rights and the CDS is the Confederation of Democratic Sims, the overall 'nation' which the cities of Neufreistadt and Colonia Nova are parts of.)

Ash has posted elsewhere that the UDHR is not a source of law in the CDS despite it being one of the founding documents mentioned in the Preamble. Yet again, he quotes the amendments to the Constitution [i:yqtjxrmp]that he drafted[/i:yqtjxrmp] in support of this conclusion. And, once again, there has been no debate or discussion over whether the UDHR [i:yqtjxrmp]should[/i:yqtjxrmp] be a source of law in the CDS. Instead our Chief Judge takes it upon himself to deliver an interpretation of the Constitution that is news to all of us and certainly something many of us are opposed to.

This is particularly worrying as we appear to have the head of a branch of government (though I'm sure we'll hear that the Judiciary is not a branch of government) undermining the UDHR despite the fact that:

[quote:yqtjxrmp]All branches of the government are bound to serve the public before themselves and to uphold the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards without exception.[/quote:yqtjxrmp]If this doesn't apply to the Judiciary then it ought to. Time for more constitutional twiddling.

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Post by Ashcroft Burnham »

Pat, why do you see the Universal Declaration as a useful source of law (given its extreme vagueness), and why do you think that it is better to have courts apply that, rather than, as I had always intended, build up, through the common law, rights and principles that are specific to our context in SecondLife?

Also, where would you put the UDHR in the list of sources of law?

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Fernando Book
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Post by Fernando Book »

The UDHR is not a source of law, but a cast that must be seen in every action of the government (and that includes the Judiciary) of the CDS. In fact, although with another wording, is very similar to article 10.2 of the Spanish Constitution (1978).
[quote:2omefekw]Provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain.[/quote:2omefekw]
This clause puts the UDHR, in a way, above the Spanish Constitution, as the plain language of the Constitution can only be understood in the light of the UDHR.

Also, we can think that, for any official in the CDS, not upholding the UDHR may be seen as "gross dereliction of duty".

And, again, I found very disturbing the "as I had always intended" as a source of law.

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Post by Beathan »

From the moment I became acquainted with the CDS, I understood that the UDHR was not only law, but was paramount law, in the CDS. I think Justice observed (and I agreed) that insofar as we have "entrenched" law, the UDHR is (or is among) that law.

It is true that the UDHR is vague. So is the U.S. Bill of Rights. So is any complete statement of human rights. It is impossible to describe human rights completely and in all its richness -- so we intentionally fall back to vagueness to give us the operational flexibility to fully protect our rights. This is not a flaw in the UDHR -- it is an essential part of it.

I personally have doubts about the UDHR. I think that some provisions of it are not proper human rights. (The anti-defamation clause, for instance.) However, I joined the CDS in large part because I thought my rights were preserved and protected by giving the UDHR pride of place as the first and ultimate law in the CDS.

It is clear that the JA does not improve on deepening acquaintance. It is becoming increasingly clear that the JA was a coup by professional lawyers. It created a privileged class while, at the same time, removing the important civil liberty, democratic, and constitutional checks on power that previously preserved the liberty of CDS citizens.

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Post by Gwyneth Llewelyn »

Two or three things need definitely to be clarified here, and although the RA is always able to override (and further clarify) anything I might say :) we should be able to at least know where we stand.

The [url=http://www.un.org/Overview/rights.html:bljglhvw]Universal Declaration of Human Rights[/url:bljglhvw] is a philosophic treaty establishing the concept of "unalienable rights". It was set in 1948, centuries after that concept first appeared in a written Constitution, as I don't need to remind anyone here :)

Its preamble is rather clear on this. All member states of the UN were compelled to follow these principles, to promote them, to disseminate them, and to incorporate them in their own body of laws:
[quote:bljglhvw]"[...]it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law".[/quote:bljglhvw]

The issue here is to understand if the UDHR, by itself, constitute a "source of law". I have some issues with the definition of the words "source of law". Does it mean that the UDHR, by itself, [i:bljglhvw]is[/i:bljglhvw] law — or that all laws (and the Constitution), are [i:bljglhvw]derived[/i:bljglhvw] from applying the principles stated in the UDHR, and, naturally, any interpretation and application of the law must always conform to the rights as set by the UDHR?

Fernando states the very easy case of Spain (Portugal is exactly in the same position). Almost all constitutions written after 1948 by member states of the UN have solved this dilemma by directly embodying the rights stated by the UDHR in their constitutions — just expanding each principle and defining how it should be applied and interpreted under a judiciary system. Thus, these Constitutions are, in a sense, [i:bljglhvw]extensions[/i:bljglhvw] or [i:bljglhvw]expansions[/i:bljglhvw] of the UDHR, "codified into law". They are also almost always civil law systems, where the concept of codification, structure, framework, and guidelines make sense as the fundamental way of organising the body of laws into a coherent set.

Common law systems, or countries with pre-1948 Constitutions (which have not been thoroughly amended in any case), tend to follow a different route: they establish a "Bill of Rights" or a "Charter of Freedoms and Rights" (whatever it might be called), where all rights established by the UDHR become, [i:bljglhvw]de jure[/i:bljglhvw], laws. The reference that the courts use to apply decisions and interpretations will refer to that document instead of going directly to the UDHR, which can be "vague and conflicting". These countries' legislators have felt that human rights might be better protected using a document that embodies the spirit of the UDHR but that provides for a better clarification of what the rights stated there actually are and how they should be validated under a system of courts that needs "laws" to be applied, and not "principles".

Why wasn't this issue never raised before in the CDS? You might recall that I'm always remembering people that Neualtenburg, at its root, had up to 60 members, then declined rapidly after a period, to go up again above the 60 citizens. So it's not as if one could explain the "vagueness" of the system by saying "oh, there were only a handful of people around, so they got together well and never addressed these issues".

Rather the contrary. When it was established how our system was going to work, there were some "assumptions" for it. These resemble very likely the "unwritten code" that is common in, well, some common law legislations, but also on some legislations like the Scandinavian ones. There were some "founding principles" for the whole virtual nation. But they were not "codified". They were "written down" by luck — all discussions in and around Second Life are in written, on the forums or in-world, so much has survived from the discussion (and archived somewhere by Linden Lab and beyond our reach today, unfortunately).

One of those "assumptions" is that all human beings in the CDS have, indeed, unalienable rights. But that we did not need to set them explicitly in the Constitution — like the US had to do in their days — because we are lucky to live after 1948. We used the UDHR as our "Bill of Rights". Inspired by the way the UDHR states certain rights — the right to take part in government, the right to free elections, the right to an impartial judiciary and fair trials, etc. — the Constitution was written, establishing the [i:bljglhvw]form of government[/i:bljglhvw] that a virtual state, under the "spirit" of the UDHR, would take.

While it's undeniable that the Constitution [i:bljglhvw]is[/i:bljglhvw] law, the question might be raised if the UDHR is, or not, "law" by itself. As said, there was no reason for asking that question. All laws — and Constitution amendments — would [i:bljglhvw]always[/i:bljglhvw] follow the UDHR, and would [i:bljglhvw]never[/i:bljglhvw] violate them. That was, in fact, the role of the Scientific Council: to make sure that no law is passed that violates the UDHR or the Constitution (and that the Constitution also never violated the UDHR).

The question might arise [i:bljglhvw]now[/i:bljglhvw] if someone, for instance, claims that their right to free speech has been violated by someone else, and brings the case to court. In absence of a "Bill of Rights", or anything explicitly stating in the Constitution how to handle with violations of the right to freedom of expression, what should a decision be based upon?

In the past, the issue was easily solved — not [i:bljglhvw]de jure[/i:bljglhvw], in the sense that adequate legislation was passed; but only [i:bljglhvw]de facto[/i:bljglhvw]. By stating that the UDHR cannot be violated in the jurisdiction of the CDS, it was effectively referring to the UDHR that decisions were taken, when a human right was at stake.

All this that I'm writing now was really never "written" down :) It was [i:bljglhvw]assumed[/i:bljglhvw] that the model under which Neualtenburg (and now the CDS) would work was rather simple. It had a bunch of "founding documents". One establish human rights: the UDHR. One establishes the model of Government: the Constitution. A few establish ancillary rights — the Linden Lab ToS (and the CDS ToS). And one establishes the [i:bljglhvw]form[/i:bljglhvw] that the whole are put together, the "founding principles" (the original of this document, sadly, is under copyright protection which does not allow derivative works; a truly sad legacy of Ulrika's days).

It was not clear to the many amateurs (including myself) that established this model for regulating our community and virtual nation that the very [i:bljglhvw]status[/i:bljglhvw] of these documents would ever be questioned. Actually, to make sure that they would [i:bljglhvw]not[/i:bljglhvw] be questioned, it was clearly stated that [i:bljglhvw]all branches of the government are bound to serve the public before themselves and to uphold the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards without exception.[/i:bljglhvw] (from the Preamble of the Constitution)

Now, does the Preamble in fact create the "sources of law" that have been the subject of this discussion, or doesn't it? In my mind, twisted by common law systems, I always read the preamble (well, I might be accused of having participated in its writing, and thus be biased... :) ) as meaning: "these are the frameworks under which the CDS is effectively governed". I've chosen the word "frameworks" deliberately. Human language is always vague and imprecise; it was expected that things that were vague or inconsistent at some stage would simply be fixed on a subsequent revision that would clarify them; so if someone had doubts of how to apply "freedom of expression" to a specific case (a fundamental right established by the UDHR), legislation would be passed to clarify the case "as needed" (very much in the spirit of a common law system) and open to review under the democratic procedures of our government.

But what if there was [i:bljglhvw]no[/i:bljglhvw] legislation to apply, and no time to approve legislation for a specific case to be settled? Well, that was the prerrogative of the Philosophical Branch to decide — and thus the deliberate choice of having a "philosophical branch" which had, in fact, the arbitration/moderation powers of a Judiciary. The jurists among you might always be shocked by the immense power that the SC was supposed to have, that the SC members, as a body, could effectively apply interpretations, not based upon a literal reading of the legislation, but a [i:bljglhvw]philosophical[/i:bljglhvw] interpretation of what the legislation [i:bljglhvw]means[/i:bljglhvw] and how it [i:bljglhvw]ought[/i:bljglhvw] to be applied. Also, if no legislation applied to a specific case, one would simply fall back to the "founding documents". What do they say in this case? What is relevant?

If [i:bljglhvw]nothing[/i:bljglhvw] relevant was found to apply, the SC usually had the irritating answer back to the RA: "We don't know. Please legislate to clarify." :) I know I have driven poor Claude to madness in some of these cases (my public apologies for that). In effect, the SC had no "co-legislative" powers — even if many saw it like that — and not even the usual power of a common law judiciary to interpret the law as they see fit. All it did was to validate legislation and provide an interpretation according to the principles stated in the founding documents. When no such interpretation was found, the SC had nothing to report.

To conclude, while from a strictly "literalist" point of view, the UDHR is not explicitly made a "source of law", in the sense that its 30 articles are part of the Code of Law of the CDS, it definitely was established as providing a [i:bljglhvw]framework[/i:bljglhvw] for all possible and valid laws and Constitutional amendments that would ever be devised, as well as providing the required [i:bljglhvw]philosophic[/i:bljglhvw] background whenever needing to make a decision when applying a specific law, rule, act, or whatever official executive action was taken. I hesitate to call it a "[i:bljglhvw]de facto[/i:bljglhvw] source of law" because that has a very specific meaning in the jurist world, of which I'm no part of. Rather I prefer the concept of a framework, a guideline, and a "founding document". It means it cannot be ignored by any CDS official holding a public office. In fact, every CDS official is mandated to [i:bljglhvw]uphold[/i:bljglhvw] it, [i:bljglhvw]all the time[/i:bljglhvw], and failing to do that, as Fernando has mentioned, is very likely a gross dereliction of duty.

I have only to echo Fernando on this. In my mind, there is no alternative explanation. The Constitution was written having the UDHR in mind; the UDHR is a set of principles even more precious than the Constitution itself. I cannot say, as Beathan says, that the UDHR is the "first and ultimate law" in the CDS, but I can definitely say that it is the first and ultimate [i:bljglhvw]set of principles[/i:bljglhvw] that should govern all our procedures and laws.

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Post by Beathan »

Gwyn --

The problem with your exposition is that principles, as such, have no force in their application. A principle is aspirational, not obligatory, at least from a legalistic perspective.

As Ash, our only judge, takes a legalistic perspective, we run into a serious problem. The UDHR cannot be plead or proved in a lawsuit as something that determines an outcome. Ash has made this clear. He has said, in no uncertain terms, that no one can have a successful case in his court based on a claim that some statute or other act violated a right under the UDHR.

This means that, unless the UDHR is considered law, it will have no role to play in our courts, at least our courts under Ash. The rights will only be given legal force and respected as legal principles if they are incorporated into a Bill of Rights, which becomes express law. However, this means that, on Ash's account, we have no inherent, unalienable rights. We only have those rights specifically given us by law. This is the legalistic theory of rights -- a specific British theory of rights that has been considered and categorically rejected in the U.S. and in many other jurisdictions -- that informs his legal theory.

(This is the theory of Harris and Hohfeld -- which present an incoherent distinction between human rights, which humans have but laws and judges need not respect, and legal rights, which are the only things that can demand respect in a legal action by imposing a legal duty on others. This is horrible theory -- and one that does serious violence to human rights, civil rights, and the respect due to humans as humans. It utterly destroys equality before the law except the equality of the equally oppressed. It elevates, reifies, justifies and even sanctifies authoritarian and totalitarian legal systems and legal theories. It is antithetical to all that is true and good about the CDS. The moral bankruptcy of this theory cannot be overstated. Yet, through the Judiciary Act, and our chief judge, we have invited this viper into our bed and onto our breast. Please, people, please let's pluck it off.)

(Ash will probably, and correctly, note that Hohfeld was an American legal scholar. However, Hohfeld was an American scholar of the Nineteenth Century. His view coincided with the American view of the time -- which also specifically allowed sterilization for eugenic purposes. This theory has been completely an categorically rejected in the U.S. since the 1950s. The U.S. has developed the idea of a fundamental "right to privacy" -- meaning a right to be respected in a person's self -- even though no such right is found anywhere in the literal text of our Constitution. However, such a right is required to preserve basic human rights -- so we have it. At this point, even our most conservative justices respect the right under the principle of [i:2lgnfmv5] stare decisis [/i:2lgnfmv5] (or "let the decision stand"), noting that a rejection of fundamental human rights would cause social disruption on a scale most closely approximated by the battlefield during wartime.)

In fact, Hohfeld's outdated theory was specifically incorporated into Ash's examination qualification for future judges. The Hohfeld theory was a theory one that applicants were asked to explain and apply. There is no question that Ash's view takes the UDHR out of the question. Ash can fairly claim that he has been consistent and unfront about this from the beginning, allowing him to ask us, with some justice, just what we are complaining about.

The answer is, clear as Ash's answer is, it is authoritarian, overly legalistic, and just plain wrong. The JA would never have passed if people understood Ash's agenda. We need to do something about this problem.

If we have a formal legal system incorporated from elsewhere (as opposed to one developed here from our own principles), we sacrifice the force of our (native) principles to the force of our (foreign) laws. Therefore, to preserve our principles, we need to give them force as laws. There is no reason not to do this with the UDHR. It can and should be done simply by having the SC declare that the UDHR is our fundamental and ultimate law.

Principles are nice to have -- but when we have rigid, literalist, legalist judges, principles don't help us much. Ashcroftian judges will be free to rule, and will feel justified in ruling, "that this right from the UDHR is a nice principle -- and the asserted right is a human right; however, it is not a legal right, and I am bound by the limits of the law; therefore, you must wear the yellow star and board the train; the law requires nothing more and nothing less; of course, you can also request that your fellow jews do likewise, it is their duty after all."

This whole problem and debate proves my general point about how important it is to use native principle and native social interactions when we develop our laws and institutions. The UDHR has always been considered to the fundamental principles in our community. Apparently, the UDHR does not state fundamental principles in the UK. By incorporating a legal system, wholesale, from the UK, we sacrificed these principles. We would not have done so had we developed our laws and institutions out of our principles and practices. We certainly did not intend to sacrifice our principles through some Faustian bargain with Ashcroft, losing our rights in exchange for a justice system.

The preservation of our rights and our principles should be something around which all factions, including C.A.R.E., can rally. I call on C.A.R.E. to clarify its position here and to specifically reject this Faustian bargain and to promise to respect the UDHR and join the rest of the CDS community in undertaking all steps, including repeal of the Judiciary Act, necessary to respect the UDHR.

Beathan

Last edited by Beathan on Wed Jan 03, 2007 2:04 pm, edited 2 times in total.
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Gwyneth Llewelyn
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Post by Gwyneth Llewelyn »

You're right, Beathan, in identifying that the Judiciary Act in effect removed the ability to do "judging by principles" as opposed to "judging by (strict literal interpretation of) laws".

This was one of my personal objection at the time the JA was under discussion at the SC level. However, from a purely constitutionalist point of view, the SC could not oppose to a change — that was approved by the RA, remember — to move the "philosophical" approach of interpreting laws (because of the fears that this could lead to abuse) into a "literal" model of interpretation.

Right now, however, it is not my place any more to comment on what is "better", or "preferred", or that "better protects the citizens from potential abuse". All these powers have been removed from the SC, as you know. Also, it is quite clear than in past decisions of the SC, the UDHR was viewed simply as a method of establishing policy, and that its words were elevated to a "holy" status — in the sense if all else failed, at least things would be vetoed on the grounds that it violated the UDHR, which is a founding document, and thus has the full force of establishing policy (the only possible policy, in fact).

However, I cannot claim after-the-fact that the UDHR was a source of law just because it was used [i:3e6ojh4o]de facto[/i:3e6ojh4o] as one. It was never [i:3e6ojh4o]defined[/i:3e6ojh4o] as being one — but "only" as a document that had to be "upholded", and a whole branch of Government was dedicated to validate that this document was being "upholded" at all times. This was found to be crucial in our tiny virtual nation in the past, even if it concentrated too much "power" in a single body.

Now there is only one issue that remains to be solved (which I also have asked Ashcroft in another thread) and that you have just enumerated again— if a citizen presents a case based on a violation of the UDHR, what will the Judiciary do about that case?

Ashcroft's answer will provide us with a clue not on the purpose of the Judiciary Act, but of his own personal willingness to uphold the founding documents when judging cases :) And since all holders of public offices are compelled to uphold them, you know what the consequences are of not doing so...

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Post by Oni Jiutai »

I agree with Gwyn. ;-)

But I don't disagree with Ash either.

I do disagree with Beathan - but not about the end aim (I think we can all agree to be pro-Human Rights), rather about the options for getting there.

I do think there's an important distinction between the question "Does the UDHR apply in the CDS?" and "Is the UDHR a law?". For clarity, I believe the answers are 'yes and 'no', in that order. I conclude that from the wording of the Constitution - it requires that the government (including the judiciary) uphold the UDHR - but it is not in the list of sources of law, enumerated in the constitution.

To my mind that makes the UDHR a philosophic statement of principles, rather than a law. But it is no less important for all that (the laws of physics aren't laws in the legal sense either, but judges are bound by them anyway).

To my mind the UDHR impacts the judiciary in two main ways:

[b:e6qj45tg]Interpreting Existing Legislation[/b:e6qj45tg]

All existing law should be interpreted in light of the UDHR principles.

For example, with apologies to the US Constitution, say the RA passes an Act saying something like "Open government and democracy is vital, therefore all meetings should be recorded and the logs published". Some time later, a group of citizens create a group to promote their business and create a shared advert. At some point, some obstreperous fellow brings a case to court saying that there have been meetings of this group and that the log hasn't been published.

Now arguably the Act can be read two ways (it is, of course, a silly argument, but bear with me). One, it means government meetings only, since 'meeting' is implicitly qualified by the reference to government and the context of the Act. Two, 'meeting' means any meeting, and all the stuff before the first comma is mere explanation of the motive behind the Act.

Faced with such an ambiguity, the Court looks to the UDHR. There they find freedom of speech, privacy and freedom of association. These clearly point to a narrow reading of the Act, to protect the rights of the members of the group.

[b:e6qj45tg]Extending the Common Law[/b:e6qj45tg]

This is slightly more complicated, partly, I suspect, because the development of Common Law systems happened before the concept of Bills of Rights or Constitutions. Nonetheless, I think the circle can be squared. In doing so, I think I can answer Gwyn's question about what happens is somebody brings a case based on a UDHR right - at least as I see it.

At the moment the 'causes of action' , i.e. the things for which one can sue in the CDS are not entirely clear. We're pretty sure, for example, that we can sue for breach of contract, but there are lots of things we just don't know about.

Take, for example, discrimination. Say somebody refuses to employ somebody because they know, or suspect, their religion and the person involved is of a different religion (establishing such facts is, naturally tricky, but I assume for purposes of the argument). Now, as things stand I don't believe we have an equivalent to the 'Employment Equality (Religion or Belief) Regulations 2003 in the UK or anything similar.

The first decision for a court then would be whether it had jurisdiction to hear a case on the basis of Religious Discrimination. In line with the standard Common Law approach the Court is defining the law in response to the question "Can I sue if I suffer religious discrimination?". Now, under the CDS constitution, that question is not answered in a vacuum, but guided by the principles in the UDHR. So Article 18 is probably the decisive argument that some sort of cause of action in relation to religious discrimination must be possible (although its precise scope is a much more complicated question).

The Court would then go on, not only in that case, but subsequent cases, to develop a law of religious discrimination (guided by the UDHR) - supplemented / overridden by whatever legislation the RA passes on the subject.

The distinction is probably a technical one, more than a substantive one. It's the difference between suing under Article 18, and using Article 18 to justify the existence of a Common Law right of action.

[b:e6qj45tg]In conclusion...[/b:e6qj45tg]

So basically, I would put the UDHR as outside the law - a guiding statement of principles rather than as a set of rules. In that light the UHDR is an attempt to write down the ur-rules, those principles of justice (in the widest possible sense) from which the legal rules - along with many other things - come from. Anyone formulating the legal rules (whether it be the RA, the Courts, the SC e.t.c) is bound to do so in line with the UDHR. Anyone implementing them is similarly bound.

The question of whether it is best to have the UDHR (or something like it) exist as part of the legal code as well as / instead of as a statement of moral principle is an important one. Personally, I think a CDS Bill of Rights, based on the UNDHR and entrenched in the Constitution might be a very good thing. But there are any number of alternatives - such as the current status quo - and arguments on both sides. The fact that the UDHR isn't part of the Code of Law doesn't mean that it doesn't apply in the CDS.

Incidentally, I would have thought that putting the UDHR into the Code of Law would give more power to the judiciary - which I understand that people are concerned about. At the moment, the decision on whether any legislation is Constitutional (including, I think, whether it is UDHR compliant) is a matter for the RA and the SC. Once those two groups pass a law the courts must follow it. If the UDHR itself is made law, the Courts would be in the position of the US Supreme Court - able to strike down legislation as unconstitutional on wide grounds.

Now there are all sorts of arguments in favour of that system - I'm a fan of the Supreme Court myself; and all sorts of arguments against. On balance, though, I'm firmly against giving the CDS judiciary any further powers at this point and I suspect I'm in the majority. ;-)

Last edited by Oni Jiutai on Tue Jan 02, 2007 6:54 am, edited 1 time in total.
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Post by Oni Jiutai »

[quote:ybv5f89v]Principles are nice to have -- but when we have rigid, literalist, legalist judges, principles don't help us much. Ashcroftian judges will be free to rule, and will feel justified in ruling, "that this right from the UDHR is a nice principle -- and the asserted right is a human right; however, it is not a legal right, and I am bound by the limits of the law; therefore, you must wear the yellow star and board the train; the law requires nothing more and nothing less; of course, you can also request that your fellow jews do likewise, it is their duty after all." [/quote:ybv5f89v]

Leaving aside the historical analogy, I think this is the law as it stands. If the RA passes a law and the SC ratifies a law that is abominable, the Courts have no legal basis to strike it down on the basis that it is abominable. Incidentally, I use the word abominable in the strongest possible sense, as being not merely bad law or law one might disagree with, but something that is truly morally repugnant.

The only way to avoid that situation is to give judges veto power on legislation or for the RA and SC not to pass abominable legislation in the first place. As I've said, i think the later solution is currently the better approach. Ultimately, we have to trust to the good sense of the electorate and the soundness of our elected officials to protect us here.

Speaking as a judicial applicant, if the CDS law required me to do something I found morally repugnant, I would resign. Which I hope is what I would do if a similar situation arose in RL. Ultimately, it's not for a judge to decide what law he wants to apply. If its a matter of law or conscience it's all or nothing, you can't try to hang onto bits of each.

On a quite separate matter, I'd like to suggest an entirely unenforceable, informal and non-binding gentlemen's agreement that we all refrain from mentioning the Nazis. As a metaphor it strikes me as being inexact at best, and I know it makes me uncomfortable.

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Post by Patroklus Murakami »

[quote="Oni Jiutai":347395iy]On a quite separate matter, I'd like to suggest an entirely unenforceable, informal and non-binding gentlemen's agreement that we all refrain from mentioning the Nazis. As a metaphor it strikes me as being inexact at best, and I know it makes me uncomfortable.[/quote:347395iy]Hear, hear!

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Post by Fernando Book »

[quote="Oni Jiutai":13dv4eom]
Leaving aside the historical analogy, I think this is the law as it stands. If the RA passes a law and the SC ratifies a law that is abominable, the Courts have no legal basis to strike it down on the basis that it is abominable. Incidentally, I use the word abominable in the strongest possible sense, as being not merely bad law or law one might disagree with, but something that is truly morally repugnant.

The only way to avoid that situation is to give judges veto power on legislation or for the RA and SC not to pass abominable legislation in the first place. As I've said, i think the later solution is currently the better approach. Ultimately, we have to trust to the good sense of the electorate and the soundness of our elected officials to protect us here.[/quote:13dv4eom]

We can have a third approach (currently not allowed by the Constitution). As the SC has only 48 hours to flag a law for unconstitutionality it's not impossible to pass inadvertently a law without noticing a problem. So, perhaps we can give the judges (and only the judges) a way to fast-track to the SC a question about the constitutionality of a given aspect of the law he has to apply. If the SC has studied before the problem and decided the law is constitutional, it could reject the question without comments; or can study the question and decide the law is constitutional. But sometimes the judges would bring to the SC a part of a law that only in the time and place of its use reveals its unconstitutionality.

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Post by Oni Jiutai »

Yep, that would certainly work and I for one would support such a process.

The other thing that I suspect would happen under the current system is Judges saying (as they do in RL):

"Under the law as it stands I must reach the conclusion I have. However, I think this case shows that the law is working in a surprising and possibly undesirable way. I would suggest the legislature takes a look at it."

Of course, the RA would then be free to come to a different conclusion (as, indeed they frequently do in RL!)

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Post by Gwyneth Llewelyn »

Ok, thanks, Oni, for the long explanation, but I think it serves as an answer to this dilemma: "It's the difference between suing under Article 18, and using Article 18 to justify the existence of a Common Law right of action."

So in effect I can sleep better knowing that any cases brought before our Judiciary on violations of human rights will [i:1wmzckwa]not[/i:1wmzckwa] be discarded simply because there is no legislation, but just "guiding principles".

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Post by Oni Jiutai »

[quote:6un8q0u2]So in effect I can sleep better knowing that any cases brought before our Judiciary on violations of human rights will not be discarded simply because there is no legislation, but just "guiding principles".[/quote:6un8q0u2]

Absolutely.

Arguably, even if the UDHR wasn't in the constitution a common law system should develop them (or something similar) from scratch. Part of the point of Human Rights (at least in my view) is that, at core, they exist independently of any legal system or set of rules. If there was a revolution in the UK tomorrow and a totalitarian government passed laws quashing my rights of freedom of speech and religion, I would still have those rights. It's just that my rights would be being violated. The rights themselves are, famously, self-evident and unalienable.

Having them expressly there as guiding principles puts the question beyond doubt to my mind.

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Post by Flyingroc Chung »

[quote:2ohte3en]
We can have a third approach (currently not allowed by the Constitution). As the SC has only 48 hours to flag a law for unconstitutionality.
[/quote:2ohte3en]

AFAIK, the SC has the power to declare existing laws unconstitutional? That is, the SC can (and has, iirc) review existing law for constitutionality after the 48 hours expires. Or is this someting the JA disallows?

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