Replacement forthcoming.
Draft 2.
This now focuses more on the core argument below, quoting Kenmoria:
The core argument is that the ‘public interest’ exception is overly broad. This is because an actor in a member-nation could be the one with the ability to determine what is in the public interest.”
Draft 2
The World Assembly,
Noting that many nations across the multi-verse consider their democratically-elected national legislature(s) to be sovereign and their laws to be non-justiciable;
Concerned by clause 2(1) of this resolution, which failed to define what constitutes a "demonstrabl(e)" case of "public interest" or "the public's interest" in enacting "measures such as commutations and pardons, including refraining from prosecuting a case";
Dismayed by the flaws deriving from the lack of such definitions, which may permit politicians to determine themselves the fate of pardons and prosecutions for crimes in the absence of an independent "public interest" test and undermine due process of law;
Anxious at the same time at the compliance powers derived from GAR#440 and perverse incentives resulting thereof, such as this resolution lacking a provision for police discretion in enforcing minor offences, leading to unnecessary arrests and strain on police resources;
Hereby repeals "Legal Equality Act".
Co-author: Kenmoria
Draft 1
The resolution is short but the explanation is very complex. In simple terms, as it applies to the UK or to other common law jurisdictions (excluding the US, but the US has different issues, see below):
- Parliament is sovereign.
- Courts cannot overturn the decision of Parliament.
- Therefore, the current resolution allows Parliament to act in whatever it determines to be "in the public interest".
- In fact, the UK Supreme Court has ruled that "Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.... The constraints upon its exercise by Parliament are ultimately political, not legal."
Arguments against this resolution - as it applies to jurisdictions other than the US
Arguments against this loophole under civil laws are more straight forward - the codified law of the legislature is superior to case law and not all countries allow judicial reviews of legislations.
Arguments against this loophole under common law jurisidictions (particularly England) are more complex, see below.
"Demonstrably"
“Demonstrate”, in common law, means “an entity with the power to determine makes a decision”. That decision can only be overruled on what are termed Wednesbury grounds, from Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, and even then only if statute does not include an ouster clause.
Plain and literal meanings are only used insofar as there is not a statutory presumption in a different direction. For example, if a plain and literal meaning would render a provision nugatory, then another is typically adopted. Likewise, in the UK, section 3 of the Human Rights Act 1998 means that all legislation must be interpreted, even if it goes against the literal wording of the legislation, in line with the European Court of Human Rights.
R (Simms) v Secretary of State (links to further explanations: Lawprof and Wikipedia, which means that legislation must likewise be interpreted in line with the common law.
In short, the plain and literal meaning is a good starting point in law, but it is far from the end of statutory interpretation. The case of Anisminic provided possibly the best example of this, when a statutory presumption meant that the UKSC interpreted “no decision of the foreign minister shall be questioned in a court of law” to mean “any decision of the foreign minister can be questioned in a court of law”.
In short, to quote from the judgment ([2000] 2 AC 115, 131[3]):
Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.
Common law arguments on the lack of a public interest test in this resolution
With reference to the common law, there are few different facets here. The first one is "non-justiciability". The Supreme Court of the United Kingdom (UKSC) does not have a power of review. It cannot annul Parliamentary legislation, nor even secondary legislation authorised by an explicit statutory framework.
The Courts can, ever since Prohibitions del Roy (1607) 12 Co Rep 77 (see this link for a more easily digestible version on Wikipedia) override the King’s prerogative, including executive powers, such as in AG v De Keyser’s Royal Hotel Ltd [1914] UKHL 1, but it has never been able to override Parliament. (The English courts did have some powers from 1607 until the Glorious Revolution of 1688 and Bill of Rights 1689, which meant Parliament reigned supreme over the courts). This is because, again, Parliament is sovereign.
That means that, if Parliament declares that something is in a certain way, the courts cannot question it. It comes from ideas of democracy, at least according to such writers as Dicey and Wade, and the idea of legislative supremacy. However, some, such as myself, would contest that it arises simply from the passage of unlimited power from the Crown to Parliament, in the Glorious Revolution.
The other facet here is the idea of discretionary powers being rendered non-justiciable. Take the case of R (Sandiford) v Secretary of State ([2014] UKSC 44), That case involved someone, Sandiford, being sentenced to death in Indonesia. The Secretary of State had the power to intervene, and indeed had to do so in certain circumstances, based on whether he felt that it would be in the public interest, inter alia.
The UKSC held that the Secretary of State (an elected politician, one of 650-odd) had a discretionary power, so it was non-justiciable. This means that the court could not inquire into the reasoning of the Secretary of State, simply having to accept that he had decided the matter correctly. Obviously, Diceyan orthodox Parliamentary sovereignty cannot apply (see the case of R (Factortame) v Secretary of State (No. 2)), but non-justiciability certainly can.
As it applies to the US
Note that none of the below applies to the United States (except the prosecution powers part), firstly due to Congress not being sovereign. The Supreme Court also has the power to interpret the Constitution. The United States also of course decided to give carte blanche to the President all powers over pardons/commutations etc for federal crimes anyway, and treats it as a political decision (Article II, Section 2, Clause 1 of the US Constitution) and indeed pardons have generated plenty of controversy politically. The equivalent also applies to state governors.
In effect, the US (at least some states) allow elected prosecutors and elected judges, so it has decided to politicize the entire process. But it does create its own problems (such as politicians firing prosecutors, as Ron DeSantis recently did), but that's somewhat beyond the scope of both the original resolution and this repeal.
