High Court of Error and Appeal

High Court of Error and Appeal
The Supreme Court (building), where the Court of Appeal sits
Established	time immemorial 1820 (current jurisdiction)
Location	Kien-k'ang
Composition method	Appointed by the monarch on the advice of the prime minister
Authorized by	Uniformity of Process Acts
Appeals to	House of Lords
Appeals from	Supreme Court of Themiclesia Provincial magisterial courts Court for the Correction of Errors in Regimental Courts Central Admiralty Court Appellate Division, Air Force Court of Justice Court for Marine Causes
Judge term length	Life
Number of positions	11, up to 16
Lord Chief Justice of Error and Appeal
Currently	Tung Ghwra-lem
Since	2012

The High Court of Error and Appeal (廷㷉廷, ling-′uts-ling) is an appellate court in Themiclesia. Appeals from this court went to the court of dernier resort, the Appellate Committee of the House of Lords sitting as the Council of Barons-in-Waiting representing the Crown. Depending on the case type and the mode of trial selected, the court below may have been either a court of first instance, such as the Supreme Court of Themiclesia, or another appellate court, such as the Court for the Correction of Errors in Regimental Courts.

Name

The Themiclesian name of the Court of Appeal is 廷㷉寺 ling-′uts-leqs.  ling-′uts was an ancient official probably established in the 2nd century under Menghean influence, who presided over (at least some of) the judicial functions of the royal court. The second leqs means "office", so the name of this court means "the office of the justice of the (royal) court".

The former Tyrannian name "High Court of Appeal" was officially adopted in 1875. In 1971, the court annexed the Error Division in the Exchequer Court and started taking appeals from that court, prompting the addition of "Error" in its name.  In Themiclesian juridical jargon, the word "appeal" meant review by a different authority, while the procedure of "error" indicated review by the same authority or a different authority in the same jurisdiction, though not the same official.

History

This court was originally part of the traditional judicial apparatus in antiquity and continued to hear appeals from regional courts in both civil and criminal matters, but it is unclear whether it possessed original jurisdiction under ordinary circumstances. Its jurisdiction over cases involving aliens was transferred in 1708 to the Supreme Court of Themiclesia (which, despite the name, is the lowest court for most non-trivial cases).

Jurisdiction

The Uniformity of Process Act of 1880 provides that all judgments of the Supreme Court may be contested in the Court of Appeal. That law requires the appellant to apply for a writ of error from the Chancellor, who is the legal superior of the Chief Justice of Appeal, commanding the latter to hear the case being appealled. The writ is issued as a matter of course, the Chancellor (or any of his representatives) having no power to delay or refuse its issuance. After the writ is issued, the appellant must file it with the Master of the Court within the current judicial year and pray the issuance of a bill of detention (or suspension) to the Supreme Court, ordering it not to submit the case record to the Chancellor. Once the record is submitted, the judgment becomes final.

Position

The Court of Appeal has been noted as a bastion of conservatism in the early 20th century, particularly over the issue of constitutionalism that gradually became accepted in Themiclesian society. In a number of judgments involving the principles of the separation of powers and checks and balance, the Court of Appeal have consistently rejected these principles to the extent that some foreign commentators suspected them of being absolutists and primitivists. Chief Justice of Appeal, Nem, said in 1943:

The constitution of this nation is simple, as previous instances instruct us, consisting of one principle and two corollaries. The principle is that all power is shared between a monarch and the enfranchised people. The corollaries are: first, the monarch is established by the assent of the people, and this assent is valid for the reigning monarch and his progeny, until a revolution occurs; and second, anything which the monarch and people agree to establish becomes the law, and anything which both agree to abolish shall be abolished. Our constitution aims to prevent tyranny of both the monarch and factions that may arise in the public and ensure stability.

The effect of this belief is the dereification of justice. In later decades, Nem's philosophy have largely been discredited, but a number of transitional justices have defended Nem's philosophy. A prominent justice of appeal, Rjem ′jik, cites Nem to decide (1970) that marriage is a union beteen two persons, not necessarily of any specific sex. He condeded that his decision was "not sensible or moral, but legal", encouraging other judges to put their work in proper perspective, that "laws are laws because they are established, not because they are right." Positions in the 60s became more flexible. While Rjem held that it was the job of the legal system "to decide what was lawful", it was up to Parliament "to establish what is just". He also led the court to reverse Nem's position on the impossibility of judicial review, saying the court had at least the power to decide whether a law was truly established with the assent of the people. However, this still limited the court to reviewing the procedural legality of statutes—not its substance.

Noted rulings

Nong v. Royal Signals Corps (1937)

Nong, a Menghean immigrant who naturalized in 1934, was refused enlistment in the Royal Signals Corps but successfully joined the Militia of Mhje′. In Feb. 1935, he was without warning discharged from the Militia, for which he alleged that the Royal Signals Corps had somehow found out about his enlistment and pressured the Militia to expel him. The case was heard before the Supreme Court in 1936, where the Militia's ruling was reversed, saying that the Royal Signals Corps had no right to pass this information to the Militia. The Royal Signals Corps appealed the decision, saying that it owed a duty to report suspicious activity in order to protect the Militia's internal order, and the Supreme Court had interfered with legitimate sharing of information between the branches of the army. The Court of Appeal affirmed the judgment of the court below, saying that the Army was not a statutory institution and was not entitled to share information internally. Thus, if Nong had to be discharged, the Militia would have to witness suspicious activity independently and not base its judgment off the Royal Signals Corps' observations.

Mikawa Appellant v. Admiralty Respondant (1943)

Mikawa Takamasa was a cousin of Midori Takamasa, a Dayashinese operative infiltrating the Themiclesian Marines. Midori was with a small group of infiltrators on their way to Gwrjêng-′al Palace, where the emperor resided, apparently intent to assassinate him. The Admiralty ordered by telegram a different group of marines to intercept and kill them forthwith. Midori died, but his cousin contended that he did not have a weapon on hand and was not a legitimate threat to the public peace. This led him to bring the Admiralty to court to recover damages for its reckless use of force. The Admiralty argued in the Exchequer (the Navy's domestic court) that Takamasa was a highly-trained operative under a criminal mission that was a threat to public peace and it reacted with the "regrettable but only measure" available. Additionally, they argued that Mikawa was a patent traitor and no longer had protection under the law. The Exchequer acquitted the Admiralty, Mikawa appealing to the Supreme Court, which affirmed the Exchequer. Brought before the Court of Appeal, the judgment was reversed on the grounds that the court below had mistakenly assumed Midori to be a criminal in a civil suit. In other words, because Midori was never convicted of treason, he and legal inerests in him were still protected. The Court awarded Mikawa, who was Midori's employer, 195 m′rjing in damages.

Mikawa Appellant v. Tsaw Pjeh et al. Respondants (1944)

This case was connected with the one where Mikawa recovered damages from his cousin's death. Mikawa launched a private prosecution against the marines and their officers that were sent to intercept and kill his cousin on the charge of murder. The Supreme Court ruled that the enlisted men Tsaw Pjeh et al. were only following formally legitimate orders and incurred no criminal liability for the men they killed. The Court of Appeal affirmed the ruling of the court below. Mikawa would further appeal this to the House of Lords, which similarly affirmed the rulings of the three courts below. However, the Court of Appeal convicted Lieutenants Trim Mep and Rory Kram of the lesser crime of voluntary manslaughter for failing to instruct their men properly to distinguish between genuine threats to public peace and Midori, who did not carry a gun or weapon of another kind when he was killed. Mep and Kram averred in court that they were not present at the site where the killing took place. The Court ruled that the conduct of their men were their responsibility, and their personal absence is not a defence to liability. Mep and Kram were sentenced to 18 and 15 years in prison respectively. This case was further argued before the House of Lords, which affirmed the judgments of the court below but reduced their sentences to 12 and 10 years respectively.

Kraw nLui v. R. (1952)

In 1949, Parliament resurrected the process of impeachment to convict Lieutenant-general Kraw Har of rape and sentenced him to death in absentia. Kraw was implicated in Dayashina over the suicide of a 16-year-old Dayashinese girl, who accused Kraw of raping her and forcing her to commit suicide to regain her honour. The girl's parents complained to the Themiclesian Army, which ran an internal inquiry and found insufficient evidence to convict him. However, this matter was published widely by the Dayashinese press and threatened to become a rallying cry for Dayashinese communities to resist occupation. The Army refused to proceed further, citing the lack of witnesses. The girl's parents then petitioned the Themiclesian Parliament, which convicted Kraw in Feb. 1950, taking in statements from witnesses who claimed they did not dare come forth for fear of retaliation. To great surprise, Parliament sentenced him to death on Mar. 1, 1950. Kraw hanged himself in Dayashina on Mar. 4. Since the process of impeachment was not regulated under the Uniformity of Process Act of 1880, Kraw's real and movable properties were confiscated to the state.

Kraw's son and would-be heir Kraw nLui challenged the decision to confiscate his estate, but the broader question was whether Parliament still possessed the judicial power to hold impeachment trials, which had not occurred since the 1400s. Kraw's attorney argued that the Uniformity of Process Act implicitly abolished the process of impeachment, since its fourth section provided that the Act applied to "all judicial causes, civil and criminal, arising in the Demesne and abroad where subjects of the Crown shall be implicated". He further cited the sixtieth section, which provided that "no forfeiture of the person or estate shall henceforth occur upon conviction of crime". These two sections, he argued, combined to mean that Parliament had no power to try Lt. Gen. Kraw before the case was appealed to it via the Court of Appeal, and at any rate his property should not have been confiscated. Furthermore, capital punishment had been abolished 98 years ago, which suggested that Parliament's judgment was outside of the law. He claimed that "a great number of constitutional changes" have intervened between impeachment, which was a royal prerogative exercised by the legislature, and the customary and accepted process in the modern day.

In 1951, the Supreme Court ruled that it had no power to question the substantive decisions made by Parliament, saying it "possessed and exercised unlimited powers". Next year, the decision was contested in the Court of Appeal. The Chief Justice of Appeal, Nem Njing-mjet, led the court to affirm the Supreme Court's judgment, adding that "the power of impeachment is, as the Plaintiff-in-Error rightly claims, founded on royal prerogative and is akin to primary law, which cannot be restricted by another primary law". Questioned whether Parliament was able to impose any punishment it liked whatsoever, Nem verbally replied that he believed this to be true. The plaintiff's attorney asked if the court believed Parliament's decision was just, to which Nem said that they believed it was consistent with the law, not necessarily just, since "Parliament's decisions are, by definition, legal". Instead, Nem recommended Kraw nLui to seek an audience with the Privy Council or petition Parliament to have his inheritance restored to him, which was granted by the Secretary of State for Home Affairs in the same year.

Premises

The Court of Appeal sits in the Supreme Court (building) and usually shares its courtrooms and other facilities, though the staff of the two courts are kept separate.

See also

• Supreme Court (Themiclesia)