In re Article 56, s4 of the Criminal Code 2020 SDSC 12
In re Article 56, s4 of the Criminal Code [2020] SDSC 12
| Date of judgment | 28th August 2020 |
| Justices |
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| Held | Article 56, s4 of the Criminal Code, which allows for the Senate to try and convict for Contempt of the Senate charges, is unconstitutional as it violates the right to a fair hearing. It is also unconstitutional as the Senate has no jurisdiction to hear criminal cases. |
| Ruling | 3-0 |
| Applicable precedent | The “competent court” for criminal and civil cases at first instance are the inferior courts, [5] |
MAJORITY OPINION by Acting Justice Creative
(with Chief Justice Danyo and Justice CreatingKing agreeing)
Introduction
[1] The petitioner is seeking judicial review of Article 56, s4 of the Criminal Code (Contempt of Senate) on multiple grounds, the most important of which are Article 7, s1 of the Constitution (original jurisdiction of the inferior courts), and Article 19, s1 of the Constitution (right to a fair hearing).
Argument
[2] Article 56, s4 of the Criminal Code states that “Contempt of the Senate may be either punished by a trial in the Senate; or by a criminal court.” A trial by the Senate then requires, as stated in s4.1, “[...] a two thirds majority [...] for a conviction; afterwards the Speaker of the Senate is to determine appropriate punishment; any senator including Speaker of the Senate may recuse themselves from the trial because of conflict of interest.”
[3] Article 7, s1 of the Constitution is under the third part of the Constitution. It details the judicial branch of the SimDemocracy government. Article 7, s1 of the Constitution states that “There shall be inferior courts, where the original jurisdiction of all criminal and civil cases lies.”
[4] Article 19, s1 of the Constitution, meanwhile, states that “Every person shall be entitled to a fair hearing by a competent court in accordance with law.”
[5] For the purposes of Article 19, s1, “competent court” means a court with the legal authority or jurisdiction to hear such a case. A competent court for criminal and civil cases would be one which is presided over by a judge from the judiciary branch, as stated under Article 7, s1 of the Constitution, which gives inferior courts original jurisdiction. This means that only the inferior courts within the judiciary have the jurisdiction to hear both criminal and civil cases for the first time.
[6] As the courts from the judiciary have original jurisdiction to hear both criminal and civil cases, the Senate does not have jurisdiction to hear and judge over any such case, which means that Article 56, s4 of the Criminal Code violates Article 7, s1 of the Constitution.
[7] Article 56, s4 of the Criminal Code alongside Article 56, s4.1 allow for the criminal conviction of a person by the Senate alone, without allowing for a hearing by a competent court, making it violating Article 19, s1 of the Constitution (Right to a Fair Hearing) as well.
[8] The only way the government can legally infringe on someone’s constitutional rights is if they are protecting the rights of others (Article 26, s1 of the Constitution, known as the permissible infringement clause). As Senate trials do not protect someone else’s constitutional rights, there is no lawful reason to violate someone’s Article 19 rights (Right to a fair Hearing). Therefore it is unconstitutional on this ground too.
Verdict
[9] Articles 56, s4 and s4.1 of the Criminal Code are unconstitutional, void, and of no effect.
Citations
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