Law and Justice

Posts Tagged ‘Constitutional’

Because our family courts are not setup to protect the rights of litigants but a so-called ‘higher good’, it’s ripe for distributing injustice and persecution – mostly to fathers and their children. This article explains why.

Thomas Jefferson stated that trial by such a jury is the only anchor yet known to man to hold the state to the principles of the constitution so as not to leave the protection of the individual solely up to the government or judicial elites.

It’s through the jury that ‘the people’ participate in the judicial process and rein in unconstitutional or unreasonable laws and judgments of the state. Without the protection of a jury trial, tyranny will surely reign.

*Our most fundamental rights are in jeopardy in family court for doing no wrong:

At stake are your right to parent your child, to control and choose your income and profession, your right to maintain your professional and driver’s licenses, your right to have or maintain your passport and travel as you see fit. These rights are guaranteed by the constitution.

*What about the ‘best interest of the child’ – isn’t that ‘a greater good’?

Greater goods are part of dictatorships and tyrannies. The greatest goods of republics are peoples’ constitutional rights which includes the protection of ‘due process’. Supreme Court case laws states that the ‘best interest of the child’ resides in a ‘fit’ parent – not the state.

*How are fundamental rights at stake?

Because if the family court judge assigns you to be the noncustodial parent, you lose your parenting rights to your children (i.e. to support them directly, live with them, and direct their lives) and then you’re forced by the court to pay the mother whatever the judge says – amounts that will impoverish most fathers. If you don’t pay regularly and pay it all, you’ll go to jail without a trial.

*What do you have to do wrong to be assigned the noncustodial status?

Nothing! Fit parents – overwhelmingly fathers – have their constitutional rights denied by judges assigning them as noncustodial parents.

The judge – as representative of the state – invokes his ‘illegal’ right to take away constitutional rights of fit fathers for the ‘best interests’ of the children. Best interest determinations are only to be invoked when there are no fit parents.

*The family court setup prevents protection of father’s constitutional rights:

The family court doesn’t allow a trial with a jury. It only permits ‘bench’ trial which means that the judge is both judge and jury for you. So you’re denied the protection of the people from the legal elites and special interest groups that feed off the injustice that the family courts produce.

*Why doesn’t the family court protect a father’s constitutional rights?

Because when you eliminate the natural protections – like a jury – you leave judicial elites in power. More power means a more corruptible system. That’s human nature.

The family court and its affiliates have seized on a ‘greater good’ excuse such as ‘best interest of the children’ and ‘safety of women’ to forego constitutional law and protections for fathers.

*Special interest groups influence on the family court setup and actions:

A host of legal and court-assisting persons and organizations have a strong financial interest in keeping the family court set-up as it is. They together can be called the Divorce and Domestic Violence Industry (the DDVI).

The DDVI is made up of the judges, lawyers, GALs, mothers/women, probation/family service officers, psychiatrists, sociologists, visitation centers, battered women’s shelters, the abuse industry, women’s advocates, the state’s department of revenue (DOR), the federal government’s child support enforcement division…and more! Let’s consider where some of these entities find their financial interest in the family court setup.

The DDVI have interest in:

* Setting larger child support orders.

Both the court and DOR/CSE(child support enforcement (agency)) receive federal incentive payments. Court-DOR (Department of Revenue) agreements send some DOR money to the Court systems. County jails make money by more inmates – who are court-created deadbeat dads.

* Making abuse allegations more easily allowed.

Visitation centers and lawyers benefit by this as well as do Battered Women shelters and Batterers Groups. Incidentally, battering is relatively rare; accusations are very common.

* Aggravating parental exchanges and unequal allotment of rights – as the court imposes.

This makes lots of money and job security for lawyers, family services officers, psychologists, GALS, parenting class coordinators, women’s groups, and affiliated VAWA organizations who receive some $5 Billion over 5 years.

The DDVI, taken together, is a powerful lobby and participant in the rule-making process. They’re not about to favor any change – however fair – that will undermine their positions, benefits, or money and power they’ve accumulated.

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The individual mandate to buy health insurance is a key part of the Democrats’ health-care plan. Their package, if they can pass it now, doesn’t work without the mandate. But is it constitutional?

Sen. Patty Murray, a Democrat, who has been working to pass it, said it is, easily. “We have done it before,” she said, noting that Social Security, which is federal, is mandatory insurance.

But when it came to the Supreme Court in 1937, Social Security was approved as a tax and a spending program. A single-payer plan might be approved that way, but not the current plan. This is mandatory private insurance.

Requiring people to buy that, former Sen. Slade Gorton, a Republican, told me, is “clearly and blatantly unconstitutional.” He immediately sanded down that statement, however, by saying the Founders would have thought it so. Today’s Supreme Court would split on it, he said, and “it will probably be Justice Kennedy who decides it.”

The argument against the mandate is that it exceeds the powers of Congress. The Constitution lists these powers in Article 1, Section 8, from declaring war and fighting pirates to imposing taxes, borrowing money and running the Post Office. They describe a small government. It has grown large by stretching one thing on the list, the power “to regulate Commerce … among the several States … ” This has been interpreted to cover all activities that affect commerce, from racial discrimination to growing marijuana to a hundred other things.

As it said “yes” to federal power, one claim at a time, the Supreme Court kept saying there was a limit. There had to be, otherwise the commerce power would swallow up all the others and federal power would be unlimited. But in 75 years the Supreme Court has only twice said a law exceeded that limit: a gun law and a rape law. Both cases were decided 5-4, with the swing vote Justice Anthony Kennedy’s.

Now comes the mandate to buy health insurance. “The question,” said attorney David Rifkin, who spoke to the Federalist Society in Seattle last fall, “is how to shoehorn this into the Constitution.”

For some, it is easy. Stewart Jay, who teaches constitutional law at the University of Washington School of Law, and has written several histories on constitutional law, said: “Congress is allowed to regulate economic activity, and buying insurance is an economic activity.”

Case done.

Rifkin, of Baker & Hostetler, Washington, D.C, said, “there is something really weaselly about that argument.” The commerce power has always been about regulating an activity. And Rifkin said, “Is refusing to purchase insurance an activity?”

Attorney General Rob McKenna is among a group of Republican state attorneys general who may challenge the individual mandate on just that point.

“My opinion,” said McKenna, “is that it isn’t clear where the federal government would derive its authority to force individuals to buy health insurance. These are individuals who have chosen not to participate in commerce.”

I like McKenna’s argument because I like where it goes. I don’t want government to tell me how to spend the money I have left over after paying taxes. The state government may do it — with car insurance, for example — and that’s enough for me.

The Supreme Court could go either way on this. In the end, it comes down not to who’s “right” about the law, but about what people want.

Will Nancy Pelosi and Barack Obama be able to twist enough arms to pass a health bill in the next few days? If they can’t gather 216 votes, will the Slaughter the bill, as in just  DEEM the Senate bill passed even though not many House members like the bill, nor the process? Are we drifting into so sort of revolutionary base building or what? 

If a bill is passed that requires people to buy insurance will the constitutionality of such be challenged?

Well, Idaho took the lead in a growing, nationwide fight against health care overhaul Wednesday when its governor became the first to sign a measure requiring the state attorney general to sue the federal government if residents are forced to buy health insurance. Similar legislation is pending in 37 other states.

Constitutional law experts say the movement is mostly symbolic because federal laws supersede those of the states.

But the state measures reflect a growing frustration with President Barack Obama’s health care overhaul. The proposal would cover some 30 million uninsured people, end insurance practices such as denying coverage to those with pre-existing conditions, require almost all Americans to get coverage by law, and try to slow the cost of medical care nationwide.

Last week, Virginia legislators passed a measure similar to Idaho’s new law, but Otter was the first state chief executive to sign such a bill, according to the American Legislative Exchange Council, which created model legislation for Idaho and other states. The Washington, D.C.,-based nonprofit group promotes limited government.

“Congress is planning to force an unconstitutional mandate on the states,” said Herrera, the group’s health task force director.

Stay tuned!

The Parliamentary Committee on Constitutional Reforms is all set to recommend a new procedure for the appointment of judges of the superior judiciary in line with the Charter of Democracy (CoD) when it meets next week.

Sources in the committee said that the present constitutional procedure for the appointment of judges in high courts and the Supreme Court will be replaced by a better system, which is being practised in some developed countries, including the United States.

Interestingly, the judges’ appointment system is being reviewed by the parliamentary committee at a time when the country has just witnessed a serious controversy over the judges appointment with the executive trying to over-step its limits to have its choice judges in the superior judiciary.

The proposed system as is reflected in the CoD would involve the judiciary, the executive and the legislature to appoint judges in the superior judiciary in a transparent manner, ensuring that no individual has arbitrary powers in this regard.

Although the committee would give final shape to these recommendations, a source said that draft recommendations prepared by Senator Raza Rabbani, who is also head of the constitutional reform committee, in line with the CoD in 2008 is the most serious work done so far on the issue. The source said that these draft recommendations suggest that the chief justice of Pakistan would be appointed by the president after consultation with the commission to be constituted under the Constitution while judges of the Supreme Court, high courts and the Federal Shariat Court would be appointed by the president in consultation with the chief justice and the commission. Consultation with the commission shall be binding on the president.

The commission, as referred above, would be called the Judicial Commission of Pakistan and would consist of the chief justice (chairman), two next most senior judges of the SC, four chief justices of the high courts, a member of the Pakistan Bar Council, the president of the Supreme Court Bar Association in matter related to the SC, four president of the high court bar associations at the principal seats of the high courts in matters related to their respective high court, a MNA nominated by the prime minister, a MNA nominated by the opposition leader and four members of the Senate (one from each province to be nominated by the chairman Senate in consultation with the leader of the house and the leader of the opposition).

The commission shall forward a panel of three names in each vacancy (of a judge) to the prime minister, who shall forward one name to the joint parliamentary committee for confirmation of the nomination through a transparent public hearing.

The joint parliamentary committee shall comprise of 50 per cent members from the treasury benches and the remaining 50 per cent from the opposition parties based on their strength in parliament, to be nominated by respective parliamentary leaders.

After the appointment of the judges and their taking oath under the Constitution, taking of another oath subsequently (for example PCO) will automatically terminate the incumbent from the office of the chief justice or any other judge for such office as the case may be.

No change in the age of the Supreme Court or the high courts is expected. However, age for the appointment of high court judge would possibly be recommended to reduce from 45 to 40.

For the appointment of the acting chief justice, the senior most judge would be appointed as such. The ad hoc judges of the Supreme Court and additional judges of the high court would be appointed for a period not more than one year. The president’s power to transfer a high court judge from one high court to the other is also likely to be deleted.

The commission besides being involved in the appointment of judges, would also recommended to inquire into the conduct of a judge: a) If upon any matter inquired into by the commission there is a difference of opinion amongst its members, the opinion of the majority shall prevail and the report of the commission to the president would be expressed in terms of the view of the majority. b) If, on information received from any source, the chairman of the commission may or on the requisition of not less than one-fourth of the total membership of the commission, the chairman, shall direct the Inquiry Committee of the Commission to enquire into the capacity and conduct of a judge of the Supreme Court of high court as to whether he may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct.

On receipt of the report of inquiry committee the commission would consider the matter and make appropriate recommendations to the president. On receipt of the recommendation from the Commission to the effect that the Judge is incapable of performing the duties of his office or has been guilty of misconduct the President shall remove the judge from the office. A judge of the Supreme Court and high court shall not be removed from the office except as provided under this Article.

The commission shall issue a code of conduct to be observed by the Judges of the Supreme Court and high courts. Although the CoD also reflects on the setting up of a constitutional court, this proposal is not expected to get through the parliamentary committee owing to the changed situation following the restoration of the judiciary and because of the fact that the system of constitutional court is not practiced by most of the countries including the most developed nations.

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A Constitutional Amendment is any form of adjustment to the legislator system of a country. The constitution of a country is a lists of rulings that are approved by the congress of a state that are implemented to govern its people.In order for these rulings to be modified, there are certain procedures that need to be employed, which can sometimes follow irregular proceedings from what would be enacted for ordinary laws. A constitutional amendment has to be validated by a submission through either the members of congress or by the request of certain civilian bodies. However, some amendments can only be achieved with the direct approval of the electorate in a referendum.

The way in which a constitution is altered may vary from state to state. In some states the jurisdictions entail that a constitutional amendment must be agreed upon by the governing body of a country on two separate occasions during two separate but consecutive terms, and is done through a general election. The proceedings of the legislature is then suspended to allow a general election whenever an amendment is being implemented for the first time. This is done in sovereign states such as Denmark, The Netherlands, Iceland and Norway and in individual states in America like Iowa, Vermont and Wisconsin.

In countries like the United States of America three quarters of the legislature body have to agree upon a change in the constitution before it can be formally put into practice. In countries like Switzerland, Canada and Australia, different requirements apply. In Canada, after a proposition is made by the members of parliament then the approval of a provincial legislature is required. While in Switzerland and Australia, a constitutional amendment has to be passed by the leading vote of electorates as well as separate majorities in each state within the country.

Many states also combine various elements from each amendment proceedings. In cases like the French, their constitution amendment system is formulated from one or two procedures. It can either be done by a majority vote or by a referendum. In the U.S. Commonwealth of Massachusetts a constitutional amendment has to be passed by a special majority of legislature during two back to back terms which is then submitted to a referendum for a final approval.

In Austria, the Constitutional settings are much more moderate in regards to the recording of constitutional amendments. Almost any piece of parliamentary legislation can be voted in as part of the constitution if the required supermajority and other dealings for an amendment are met. An amendment may adopt to the form of a change of the centerpiece of the constitution, a change to another constitutional act, the B-VG, a new constitutional act, or a section of constitutional law in a non-constitutional act.