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This is related to "Data Retention Directive" [1] which was declared invalid by EU Court of Justice for violating EU Charter of Fundamental Rights. It means me

by lubos 11y ago

This is related to "Data Retention Directive" [1] which was declared invalid by EU Court of Justice for violating EU Charter of Fundamental Rights. It means member EU states must update their legislation which will prohibit metadata retention by communication operators (including ISPs) to absolute minimum (generally only what's required for invoicing). That's why this ruling by Slovak Constitutional Court seems a bit pointless. Slovak parliament would prohibit mass surveillance sooner or later anyway as a result of EU Court of Justice ruling. [1]: http://en.wikipedia.org/wiki/Data_Retention_Directive http://en.wikipedia.org/wiki/Data_Retention_Directive

madez 11y ago
I wonder why politicians that enact unconstitutional laws don't get punished. They breached the rules. Everybody else except bankers and the police get punished for that.
- ctolsen 11y ago
  Leaders who do unconstitutional things might be. If you trample on your citizens sufficiently, you might live to see the inside of the Hague. But it would be completely ridiculous to imprison someone for passing a law. The process here did exactly what it's supposed to do. Politicians make a law. People are unhappy with said law and challenge it. People win in court. Law is no longer in force and the people get their redress. Also, politicians might enact an unconstitutional law with popular support. And even if that doesn't happen, it is far from obvious what is constitutional and what is not. Should John McCain go to prison because of Citizens United? Should local politicians be incarcerated after the city lost McDonald v Chicago? That would be ridiculous. Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world.
  - jsnathan 11y ago
    Intentionally violating the constitution is a violation of the privileges of office. If it can be proven, they should be forced out of office. As for the "punishment", it should clearly correspond to the actual law having been passed, and in what manner it infringed on the constitutional rights of citizens. Popular support does not make this any better, as minorities are usually the ones who end up hurt.
    - ctolsen 11y ago
      Politicians can be forced out of office for anything. It's called elections. Most countries also have some kind of impeachment process. Are you saying politicians shouldn't attempt to do what their constituents sent them to do, under the penalty of imprisonment? Minorities are protected not by politics, rather by judicial review, which worked great in this case.
      - jsnathan 11y ago
        Are you suggesting that elections should give people a status that puts them beyond the countries constitution? Remember that these principles are so general, they must apply equally to Western politicians pushing security policies, as to e.g. Muslim politicians in Egypt or other ME countries pushing for Sharia-inspired policies. What their constituents want is a nice idea until this violates the most basic rights of citizens spelled out clearly for this purpose, i.e. to guide and limit any future laws. That being said, there is always the possibility of revising the constitution. Even if that is not a good idea. But for good reason, that is a lot more difficult to accomplish.
        ctolsen 11y ago
        It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.
        jsnathan 11y ago
        > It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. If transient violations that might take many years to resolve, and often present a slippery slope, do not face any censure, then they are practically above the constitution, even if there is a theoretical process. While you point out that it worked in this case, that is nothing but an anecdote. I could equally list many cases where the exact opposite is the case. Consider for example the difficulty faced in bringing security policies before the courts in the U.S., due to the government claiming that the very discussion of the details of the implementations of these policies would harm national security. > Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability. I'm sorry if I was unclear, but I tried to address both of these points in my first reply. Let me try again to put it more clearly. First, they should lose their office for abusing its privileges. This has nothing to do with the fact that they violated, or worked against the constitution specifically, but that they violated the oaths of their offices, which happen to preclude that. Secondly, the punishment does not require newly introduced 'ex post facto' laws, as you seem to be implying, but should be in keeping with the facilitation of the violation of actual existing laws, which prevented the unconstitutional actions from taken place before the new laws were passed. In other words, a politician that facilitates a law that unconstitutionally provides exceptions to previous existing laws, should be liable as an accessory to the crimes specified by that pre-existing law. As far as determing their complicity is concerned, I believe that the fact that most everything is on record makes that fairly trivial.
  - chriswarbo 11y ago
    > Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world. We shouldn't do that in the modern world, but we do http://en.wikipedia.org/wiki/Anti-social_behaviour_order http://en.wikipedia.org/wiki/Anti-social_behaviour_order
  - DannoHung 11y ago
    I dunno, maybe we oughta make it that way. Wouldn't it be nice if there was a chilling effect around passing laws that may step on someone's rights.
- rayiner 11y ago
  So if Justice Roberts was feeling slightly different one morning, we should have punished Obama for trying to pass an unconstitutional law?
  - pcwalton 11y ago
    I agree that we shouldn't prosecute politicians for this kind of thing, but note that Justice Roberts feeling different one morning can mean the difference between punishment and not for ordinary people when the law in question is unsettled. (Morse v. Frederick comes to mind.)
- Arnt 11y ago
  Because there isn't a law against enacting unconstitutional laws. Actions are legal by default. I suspect that if you try to write a coherent rule set that would punish those who vote to enact unconstitutional laws, you might find the solution worse than the problem. For instance, think about the relationship between punishable votes and secret elections.
- eli 11y ago
  Sure, then we'll lock up developers who write insecure software. I think we'll need some bigger jails.
atlantic 11y ago
European directives are often ignored by national governments, until they are challenged in court (often in the European courts) and actually forced to implement them. So any efforts by the various national courts and legislatures are very welcome and hardly pointless.
throwaway7767 11y ago
The ECJ declared the data retention directive invalid, which means that member states are not required to implement it in their legislature. However, that decision does not remove the DRD from effect in the countries that already implemented it and it does not ban countries from implementing their own version of it. It sounds like the slovak government was trying to implement its own version despite the europe-wide law being struck down.
- zurn 11y ago
  > It sounds like the slovak government was trying to implement its own version despite the europe-wide law being struck down. EU countries first decided to create the directive, and then implemented this while it was in force. There was no big bad EU imposing it on reluctant states. And now most countries are in no hurry to dismantle the their national legislation implementing the directive.
- vilhelm_s 11y ago
  So how exactly does this "Charter of Fundamental Rights of the European Union" work? Wikipedia says > European Union must act and legislate consistently with the Charter and the EU's courts will strike down legislation adopted by the EU's institutions that contravenes it. So somehow it constrains EU institutions, but not EU member states, somewhat like the US Bill of Rights before the 14th amendment?

by lubos 11y ago

madez 11y ago

I wonder why politicians that enact unconstitutional laws don't get punished. They breached the rules. Everybody else except bankers and the police get punished for that.

ctolsen 11y ago
Leaders who do unconstitutional things might be. If you trample on your citizens sufficiently, you might live to see the inside of the Hague. But it would be completely ridiculous to imprison someone for passing a law. The process here did exactly what it's supposed to do. Politicians make a law. People are unhappy with said law and challenge it. People win in court. Law is no longer in force and the people get their redress. Also, politicians might enact an unconstitutional law with popular support. And even if that doesn't happen, it is far from obvious what is constitutional and what is not. Should John McCain go to prison because of Citizens United? Should local politicians be incarcerated after the city lost McDonald v Chicago? That would be ridiculous. Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world.
- jsnathan 11y ago
  Intentionally violating the constitution is a violation of the privileges of office. If it can be proven, they should be forced out of office. As for the "punishment", it should clearly correspond to the actual law having been passed, and in what manner it infringed on the constitutional rights of citizens. Popular support does not make this any better, as minorities are usually the ones who end up hurt.
  - ctolsen 11y ago
    Politicians can be forced out of office for anything. It's called elections. Most countries also have some kind of impeachment process. Are you saying politicians shouldn't attempt to do what their constituents sent them to do, under the penalty of imprisonment? Minorities are protected not by politics, rather by judicial review, which worked great in this case.
    - jsnathan 11y ago
      Are you suggesting that elections should give people a status that puts them beyond the countries constitution? Remember that these principles are so general, they must apply equally to Western politicians pushing security policies, as to e.g. Muslim politicians in Egypt or other ME countries pushing for Sharia-inspired policies. What their constituents want is a nice idea until this violates the most basic rights of citizens spelled out clearly for this purpose, i.e. to guide and limit any future laws. That being said, there is always the possibility of revising the constitution. Even if that is not a good idea. But for good reason, that is a lot more difficult to accomplish.
      - ctolsen 11y ago
        It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability.
        jsnathan 11y ago
        > It's not putting them above a constitution. There is a process in place to resolve constitutional issues. In this case it worked perfectly. If transient violations that might take many years to resolve, and often present a slippery slope, do not face any censure, then they are practically above the constitution, even if there is a theoretical process. While you point out that it worked in this case, that is nothing but an anecdote. I could equally list many cases where the exact opposite is the case. Consider for example the difficulty faced in bringing security policies before the courts in the U.S., due to the government claiming that the very discussion of the details of the implementations of these policies would harm national security. > Punishing people merely for passing a law would itself be unconstitutional. There is no enumerated punishment nor is there any reasonable way to assert culpability. I'm sorry if I was unclear, but I tried to address both of these points in my first reply. Let me try again to put it more clearly. First, they should lose their office for abusing its privileges. This has nothing to do with the fact that they violated, or worked against the constitution specifically, but that they violated the oaths of their offices, which happen to preclude that. Secondly, the punishment does not require newly introduced 'ex post facto' laws, as you seem to be implying, but should be in keeping with the facilitation of the violation of actual existing laws, which prevented the unconstitutional actions from taken place before the new laws were passed. In other words, a politician that facilitates a law that unconstitutionally provides exceptions to previous existing laws, should be liable as an accessory to the crimes specified by that pre-existing law. As far as determing their complicity is concerned, I believe that the fact that most everything is on record makes that fairly trivial.
- chriswarbo 11y ago
  > Lastly it would mean punishing people for something that doesn't have an enumerated punishment. We don't do that in the modern world. We shouldn't do that in the modern world, but we do http://en.wikipedia.org/wiki/Anti-social_behaviour_order http://en.wikipedia.org/wiki/Anti-social_behaviour_order
- DannoHung 11y ago
  I dunno, maybe we oughta make it that way. Wouldn't it be nice if there was a chilling effect around passing laws that may step on someone's rights.
rayiner 11y ago
So if Justice Roberts was feeling slightly different one morning, we should have punished Obama for trying to pass an unconstitutional law?
- pcwalton 11y ago
  I agree that we shouldn't prosecute politicians for this kind of thing, but note that Justice Roberts feeling different one morning can mean the difference between punishment and not for ordinary people when the law in question is unsettled. (Morse v. Frederick comes to mind.)
Arnt 11y ago
Because there isn't a law against enacting unconstitutional laws. Actions are legal by default. I suspect that if you try to write a coherent rule set that would punish those who vote to enact unconstitutional laws, you might find the solution worse than the problem. For instance, think about the relationship between punishable votes and secret elections.
eli 11y ago
Sure, then we'll lock up developers who write insecure software. I think we'll need some bigger jails.

atlantic 11y ago

European directives are often ignored by national governments, until they are challenged in court (often in the European courts) and actually forced to implement them. So any efforts by the various national courts and legislatures are very welcome and hardly pointless.

throwaway7767 11y ago

The ECJ declared the data retention directive invalid, which means that member states are not required to implement it in their legislature. However, that decision does not remove the DRD from effect in the countries that already implemented it and it does not ban countries from implementing their own version of it. It sounds like the slovak government was trying to implement its own version despite the europe-wide law being struck down.

zurn 11y ago
> It sounds like the slovak government was trying to implement its own version despite the europe-wide law being struck down. EU countries first decided to create the directive, and then implemented this while it was in force. There was no big bad EU imposing it on reluctant states. And now most countries are in no hurry to dismantle the their national legislation implementing the directive.
vilhelm_s 11y ago
So how exactly does this "Charter of Fundamental Rights of the European Union" work? Wikipedia says > European Union must act and legislate consistently with the Charter and the EU's courts will strike down legislation adopted by the EU's institutions that contravenes it. So somehow it constrains EU institutions, but not EU member states, somewhat like the US Bill of Rights before the 14th amendment?