Sunday, January 3, 2010

My Constitution, Section 25

Section 25 - Issue and execution of warrants

Note: I added in a new clause 1.

25(1) No warrant, whether specific or general, shall be issued other than by a judge with sufficient jurisdiction for the matter at hand.
The say-so for any departure from full liberty lies with judges, who are removed from the heat of the matter at hand so that they may be impartial and objective. This is obviously valid for specific warrants, but it also means that the final say-so as to who gets to be a professional law-enforcement Officer by being issued with a general warrant for powers of arrest and detention lie with a judge. It is the judge in the case of LEO cadet-graduation who will make the judgements required under S24(2) above.

25(2) No individual shall, without specific warrant, be subject to:
(i) arrest by forcible removal from private property lacking public access;
(ii) search and seizure;
(iii) surveillance and interception of communications;
(iv) compulsion to provide information about another; or
(v) having information about him held by any government authority be given to any other government authority;
which specific warrants shall only be executed by citizens under oath of law-enforcement Office.

Full liberty is the default position. Law enforcement Officers may only act in certain ways when this default would be broken. These are the bulk of those certain ways, and are the most egregious of departures from full liberty of an innocent man.

A specific warrant is one that specifically identifies what the LEO’s are going to do and to whom in one specific action. The contrast is to general warrants as described in the previous section, which have much more limited powers attached to them (ie generally of powers of arrest and detention).

The need for action under oath is part of the process of making the use of non-emergency retaliatory force objective by giving the authority to direct it as a monopoly to government. That doesn’t mean only government personnel may do the physical work, as citizens under oath may also do it, but the say-so lies in the hands of a judge. In this way there is an instance of the judicial branch (the judge) being a check and balance against an instance of the executive branch (the LEOs).

In the first item, the distinction between places with and without public access is that in the non-public place the LEOs are required to justify themselves to the owner of the property as well as the person so arrested. The warrant authorises them to enter property when they cannot rely upon standing general permission by the owner to do so.

In addition to the second item being a protection against government snooping and the lack of such an item being critical for a government seeking to enforce censorship and approved thinking, the taking of papers or other property is a substantial departure from liberty just as much as arrest is because it can lead to serious repercussions in a man’s ability to get on with his affairs. That can be as conceptually simple as his personal life with his family and friends to something as enormous as matters pertaining to an inter-corporate contract negotiation.

The third item is more directly related to anti-authoritarianism than the second is. Here a government is forbidden to keep tabs on people without good reason and without independent oversight and authorisation. This wont stop an integrated government from being oppressive – no Constitution can do everything – but requiring warrants for wiretapping and the like is a reasonable speed-bump against its eventuality by being a warning signal to the populace.

The fourth item should also be obvious. Compelling someone to divulge information is a direct departure from that man’s liberty, as well as the same concerns again about snooping and consequences for his other affairs.

The fifth is the same as the fourth in justification, but applies to government holders of information rather than private. Firewalling information like this constitutes another speed-bump, and in this case the warning may come from whistleblowers or auditors who are members of those departments or of other departments again.

25(3) Specific warrants shall not be issued except where the Reasonable Person could, from the evidence so presented in application for the warrant, infer that the individual upon whom the warrant is to be executed is, in some way that is not unreasonably remote, connected with a breach of rights; and warrants must describe:
(i) the summons to be served;
(ii) the individual to be arrested and detained;
(iii) items to be searched for and seized; or
(iv) the alleged offence requiring further surveillance and interception or provision of information.
Since the specific warrants allow for greater departures from full liberty they have to be more tightly controlled. They must be connected with a reasonable suspicion of breach of rights sufficient to justify that departure in the eyes of the Reasonable Person, and be limited in their specifics to the matters that would provide that justification. The listing of the specifics is also connected with the clause below.

25(4) All individuals have the right to demand examination of all warrants, and to obtain one notarised copy of the original specific warrants, being executed upon them.
Not only must the warrant be justified in the eyes of the Reasonable Person but the man on whom they are executed must also be able to examine them so that he knows what he has to do to comply without much murmur to the extent that he judges the warrant to be justified but also to take appropriate legal action (both during and after the fact) to the extent he objects to the warrant.

25(5) Law enforcement Officers shall not enter private property that is neither in nor near an area under Martial Law while having neither implied or express consent of the owner nor a specific warrant unless there is reasonable cause to believe that the delay associated with obtaining consent or a specific warrant would jeopardise the rights of individuals.
Again, the only thing that justifies a departure from full liberty is a reasonable suspicion of a breach of rights. When there is time to make a calm judgement then that judgement should be left to a judge where all that the law enforcement Officers may do in the meantime is gather evidence in an appropriate manner and make their case to that judge.


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