Post by merni on Apr 27, 2020 8:22:14 GMT
Judiciary Act
Author: Zhang Xiaoqing (Socialist)
Sponsors: Willem van Aldenkamp (Reform), Peng Rong (NBF), Jan van der Stel (NVP), Susilo Sri (UCP), Lao Tzu-Lu (RPP)
Sponsors: Willem van Aldenkamp (Reform), Peng Rong (NBF), Jan van der Stel (NVP), Susilo Sri (UCP), Lao Tzu-Lu (RPP)
An Act to reform the judicial system of Banduria
BE IT THEREFORE ENACTED, as follows:
§1 - Definitions
- Criminal offences are offences under the Penal Code.
- Any offence under any other law is a civil offence, unless the law specifies that it is a criminal offence.
- A civil dispute is a dispute (of ownership, etc.) between two or more persons which is brought by one or more of them to a court for resolution.
- A criminal case is a case wherein the accused is charged by a public prosecutor with at least one capital or criminal offence. Any other trial is a civil case. Trials of civil cases are civil trials, and trials of criminal cases are criminal trials.
§2 - Establishment and Jurisdiction of Courts
- The Supreme Court of Banduria shall be established at Boschstad, and shall have national jurisdiction.
- The Supreme Court shall consist of 15 judges. New judges shall be appointed by consensus among the existing judges, from State Court judges.
- The judges of the Supreme Court shall elect from their number a Chief Justice. The Chief Justice shall be responsible for allocation of cases to benches of judges. Judges may recuse themselves from cases in which they would not be able to deliver a fair and unbiased judgement.
- The Supreme Court shall determine its own rules of procedure by consensus in all matters not expressly addressed by law.
- All cases in the Supreme Court shall be heard by a bench of not less than 3 judges.
- The Supreme Court shall hear appeals and referrals from State Courts.
- The Supreme Court shall have original jurisdiction in hearing cases brought to it against the Government of Banduria, alleging that a law or regulation enacted by the Government of Banduria or any of its agencies is in contravention of any national law in effect after its enactment, or is an overreach of the powers of the Government of Banduria as defined by law.
- The decision of a bench of the Supreme Court can be appealed to a larger bench of the Supreme Court. A bench may also refer a case to a larger bench if it is unable to suitably decide on the case.
- State Courts shall be established at either the capitals or largest cities of each state, and shall have jurisdiction over the entire state.
- State Courts shall consist of not less than 9 judges, appointed by the existing judges from the registered barristers of that court or from the judges of lower courts in that state.
- The judges of State Courts shall elect from their number a Chief Justice. The Chief Justice shall be responsible for allocation of cases to benches of judges. Judges may recuse themselves from cases in which they would not be able to deliver a fair and unbiased judgement.
- State Courts shall determine its own rules of procedure by consensus in all matters not expressly addressed by law.
- All cases in State Courts shall be heard by a bench of not less than 3 judges.
- State Courts shall hear appeals and referrals from lower courts.
- State Courts shall have original jurisdiction in hearing cases brought to it against that state's government, alleging that a law or regulation enacted by the state government or any of its agencies is in contravention of any national law or regulation or state law in effect after its enactment, or is an overreach of the powers of a state government as defined by law.
- Decisions of State Courts can be appealed to the Supreme Court. A bench of a State Court may also refer a case to the Supreme Court if is unable to suitably decide on the case.
- Local courts shall be established by state governments. Each state shall be divided into a suitable number of court districts, considering population and other factors, and one local court shall be established having jurisdiction over each district. As far as possible, local courts shall be located within their district of jurisdiction.
- Local courts shall have judges appointed by the state government, after consulting with the national and local governments. In rural areas, judges without legal qualifications may be appointed.
- The rules of procedure for all local courts in a state shall be standardised by the State Courts after consulting the local courts.
- The judges shall elect from their number a Chief Justice, who must be legally qualified.
- Cases in local courts may be judged by 1-5 judges.
- Local courts have original jurisdiction in all matters other than those in which State Courts or the Supreme Courts have original jurisdiction.
- Local courts may not impose the penalties of death or life imprisonment. If a case warrants these penalties, the local court may refer the case for sentencing to the State Court. (If appealed, the appeal will again be heard in the State Court)
- Decisions of local courts can be appealed to the State Court. The local court may also refer a case to the State Court if it is unable to suitably decide on the case.
- Local courts shall have judges appointed by the state government, after consulting with the national and local governments. In rural areas, judges without legal qualifications may be appointed.
- Other specialised courts may be established by state governments or by the Government of Banduria. Unless otherwise specified, courts established by state governments shall have the same level as local courts, while courts established by the Government of Banduria may have either the level of local or State Courts. No other court may have the level of the Supreme Court.
§3 - Rights, Principles and Other Provisions
- Right to fair, public and speedy trial: Every person has the right to a fair trial. All trials shall be public except during testimony or discussion which would seriously endanger the security of the nation if made public. Every person has the right to a speedy trial, without unnecessary delay or obstruction.
- Presumption of innocence: Every person accused of committing an offence shall be presumed innocent until proven guilty.
- Right to counsel: Every person against whom a civil or criminal case has been filed has the right to competent and qualified legal counsel, even if unable to pay for the same.
- Appeals: Any party in a civil case decided in a local court has the right to appeal to a State Court, and then to the Supreme Court, with suitable reasons. In a criminal case, either prosecutor or defendant may appeal in the same way, but an appeal can either be an appeal on the verdict or an appeal on the sentence or both, and only the relevant part will be considered by the higher court. If the higher court finds the reasons adequate, it shall grant the appeal, and then either overturn or uphold the verdict, as appropriate.
- Role of the judiciary: The judiciary shall have an investigative role, and its first duty shall be to ascertain the facts of a case.
- Trial on evidence: Decisions must be made only on the basis of the facts, evidence and law.
- Unacceptable evidence: Evidence obtained by illegal means or by violation of the legal rights of any person, and self-incriminating evidence or evidence incriminating the immediate family of the person giving it, is unacceptable in court, unless used with the consent of the concerned person.
- Ratio decidendi: The judge(s) of a case must, when making the judgement, provide full reasoning for their conclusions, with reference to the evidence and the law as necessary. The document containing these must be published (with redactions only to protect privacy and sensitive information), and a full public record must be kept by each court containing such documents for all cases decided by it.
- Civil law: Banduria shall have a civil law system. The only law that decisions may take into account as law are laws and regulations enacted by the national, state and local governments. Precedent shall not be binding and shall not be treated as law, but precedent may be used as a supporting argument in a judgement if necessary.
- Retrial and protection against double jeopardy: No person shall be prosecuted again for an offence of which he/she has already been convicted. No person shall be tried twice for the same offence, unless a party to the original trial approaches the Supreme Court with compelling evidence that important new evidence has been discovered which appears to contradict the verdict of the original trial. If the Supreme Court finds this true, it may order a retrial, which will be conducted by the Supreme Court. Once a retrial has been conducted, no more retrials may be ordered under any circumstances. The rules for normal trials in the Supreme Court also apply to retrials.