User:Regaliorum/Sandpit

Analysis and recommendations
The Lovian Constitution of April 2010 refers to the separation of powers as an organizational principle and explicitly adds the word 'balance':


 * Art. 1.A.3: "Lovia shall be organized based on the principle of the separation and balance of powers - legislative, executive, and judicial - within the framework of constitutional democracy. Therefore no person is entitled to combine a top function in two or three branches of government; thus, the ruling monarch, the Prime Minister and the Supreme Court Judge shall be no less than three different persons."

This formulation makes 'mutual control of the powers' a more favorable interpretation of the principle than 'a strict division of the powers'. Also, this article clearly explains the separation of powers is limited to the impossibility of combining any two of the three named mandates: ruling monarch, Prime Minister and Supreme Court Judge. It are the words 'therefore' and 'thus' that prohibit a stricter interpretation of Article 1.A.3.

Suggestion: without making the division too strict, the powers should be given more means to control each other. The current minimalist approach especially leaves the judicial branch underdeveloped. There is no hierarchy of judicial norms, which can cause trouble when Congress would issue a law which is incompatible with the Constitution. Any reform must at least comprise a judicial institution that is allowed to suspend and annul legislation after it has been found incompatible with the Constitutional values. On a more positive note: the power of Congress over the government is substantial, which strengthens the Lovian democracy. A solution is provided by the following recommendations:
 * An expansion of the separation of power ('privatization') for the judicial branch + Congressional initiative in the appointment of judges.
 * Include a hierarchy of judicial norms in the Constitution; primacy of the Constitution and its principles, both written and unwritten.
 * Erect a State Council that can suspend and annul unconstitutional legislation, as well as resolve conflicts between powers.
 * Adopt a plea of illegality: judges are not allowed to implement unlawful legislation as defined by the State Council.
 * Create a Judicial High Council under the Secretary of Justice that controls the Supreme Court for issues such as appeal or challenging of judges.
 * Allow a constructive motion of distrust: Congress fires a single secretary and appoints a replacement.

Actual legislation - Due process of law
We need to start by guaranteeing a fair trial. I will write a bill based on the criteria defined by Article 6 of the European Convention on Human Rights. The ECHR gives one of the most democratic and complete interpretations of human rights. I write this article as a Constitutional amendment which adds a section to the constitution.


 * 1) All people accused in a civil or criminal case pending with a Lovian court are entitled to a due process of law as defined in this section of the Constitution, in correspondence with Articles 1.A.2 and 2.1.5.
 * 2) To ensure a due process of law a defendant in a civil or criminal case pending with a Lovian court has the following rights:
 * 3) To have access to an independent and impartial judge with the full judicial power to judge on both the facts and the rights.
 * 4) A judge is considered independent if he does not follow instructions of another judge or a political actor.
 * 5) A judge is considered impartial if he does not show any bias towards a party in a case he is judging.
 * 6) The fair access to a judge is guaranteed by allowing any involved party to challenge the judge before the Judicial Council.
 * 7) If the Judicial Council agrees to the challenge it can either appoint a replacing judge or judge the case itself.
 * 8) If the Judicial Council denounces the challenge the judge resumes his duty and his judgement is legally binding.
 * 9) To be provided the following means in order to be sufficiently able to exercise one's right to a fair defense:
 * 10) The ability to choose not to speak or answer any question by calling upon one's right to remain silent.
 * 11) The ability to get advice from and to be defended by a lawyer which can not be treated as a witness.
 * 12) A treatment in compliance with the presumption of innocence for the duration of the trial.
 * 13) The ability to contradict all elements of a case during the trial and to be given the proper time to do so.
 * 14) The right to contradiction is limited to the substantial case and does not apply to police research.
 * 15) The judge can make an exception to this right to protect an anonymous witness from harm.
 * 16) To be judged and hear one's verdict in publicity, ensured by entrance to the court room free to the public.
 * 17) The judge can cancel this right to protect an involved party from harm or to ensure public order.
 * 18) If the judge cancels this right he has to inform the involved parties at the start of the trial.
 * 19) To ensure a due process of law the parties in a civil or criminal case pending with a Lovian court have the following rights:
 * 20) To receive sufficient factual and judicial motivation for the verdict given in which all means raised are to be answered.
 * 21) If the motivation is believed to be insufficient, ...
 * 22) To be provided with a judgement within a reasonable amount of time.