Action, Part 4: Legislatures Can Lift a Court’s Technical Roadblocks to Justice

Protestors of the treatment of prisoners at Guantanamo. Photo: AP/Evan Vucci

by Mary W Maxwell, LLB

This series of articles, entitled “Action” attempts to locate entry points at which a citizen can get in to ameliorate our present crisis. By “crisis” I mean the fact that we are being forced to accept a World Government.  Many people feel so overwhelmed and scared that they think it’s already “all over.”

It certainly is not over. Part 1 showed how sheriffs can fight it off by protecting the Constitution. Part 2 imagined us negotiating a peace treaty with our oppressors. Part 3 suggested a committee to prosecute officials for crimes regarding the Covid pandemic.  Here in Part 4, I show how Legislatures can lift some of the famous roadblocks in the justice system.

As a law school graduate, I can say that we were taught to treat the courts as having the final say not only in cases, but in the way a case is to be run. In this article, I show that a legislature has much control over the way cases are run. Granted, the judicial branch does, and should, “own” the law.  But they lack statutory authority to do some of the things they do. When this harms justice, someone must step in. Legal scholars, writing in journals, have been handy at that. But my argument here is that a Congress or a Parliament has clear authority to alter the situation.

Hear me out on these four judicial roadblocks to justice: gag orders, unfair statutes of limitations, the closing of a court to a “vexatious” litigant, and the question of who is immune from lawsuit. All these can be whisked away by legislation. Also, a legislature can always undo anything it originally did, by repealing or amending a statute.

Gag Orders

Two gag orders come to mind. One affects the ability of a whistleblower in the US to say, in open court, why he blew the whistle. The other affects a parent, in Australia, from divulging what she knows about the sexual abuse of a child. I claim that such gag orders can be immediately legislated out of existence.

Edward Snowden and Julian Assange have both done a huge favor to the United States of America by revealing to the population the terrible things that are done overseas in their name. Namely, the war crimes we commit and the torture we REGULARLY perform, out of sight.

This is not the place to discuss that.  I am only interested in the one section of the law that criminalizes espionage. It dates to 1917 and includes a very obstructive item. Namely, it says that the spy — or the whistleblower who leaks classified material to the press — cannot, in his own defense, say what he was doing and why. He is gagged.

This is a harmful law. At the moment it is keeping Edward Snowden from returning to the US.  He says he would return if that section of the law were deleted. He would be arrested but he feels he could win an acquittal by showing his motive, which was to tell Americans things they need to know.

Many citizens may think a gag order is something that the judge presiding over the case could get around — she could declare the evidence admissible. Granted, judges have great discretion as to what they will allow to be discussed. But if the law specifically prevents it, then it is up to the legislature to change that law.

By the way, I think the original section was inserted maliciously – I surmise that it’s meant to protect government (and military) criminals. But no one needs to prove that. It’s enough to say “We don’t want that section anymore, thank you.”

In the case of Julian Assange, who is an Australian citizen being held, in solitary, in a UK prison while the US makes up its mind about extraditing him, the same law applies. The Espionage Act of 1917 can throw him into prison in the US. Yet what he told us, such as about our cruelties in the Middle East (which are no secret to the rest of the world!) is stuff that we are entitled to hear. Our government is, after all, ours — we are a sovereign people.

Folks have been asking the US president(s) to pardon Snowden and/or Assange.  Well, that is one way to solve the problem of those two men. But why not just have Congress amend the law? A pardon would work only for particular individuals, but would not help the next whistleblower.

Now for the gag orders in Australia related to children. As we have been exposing at for the last four years, child sexual abuse is rampant. A whole Royal Commission was devoted to investigating it. Yet in the specific area of the Family Court, there is a big legal hush-hush.

If a mother finds out that her husband is abusing their child, she naturally wants to get help. She may call the police and start to get help. But the husband will go to court — per a pre-arranged racket for pedophiles — and ask for custody. The Family Law Act of 1974 then comes into play. One of its sections, S121, provides for gagging.

Naturally we want sex matters, and especially child sex matters, to have privacy. I am all for great privacy. No child should see his name in the newspaper with regard to any family matter or sex matter. But it is clear to those of us who have dealt with the pedophile problem that section 121 was inserted to allow for protection of pedophiles — and the government’s complicity in this crime!

The law should be reworded in such a way that gives any child utmost dignity but does not gag a parent from speaking out when urgently required to protect the child.  This is not the place for me to say more about that — I am merely pointing to the fact that when you hit a wall in a judicial matter, it may be that the wall needs to be hooted down, like the walls of Jericho, by a legislative operation.

Unfair Statute of Limitations

Here is good news.  In Australia, thanks to the 2018 recommendations of the Royal Commission into Institutional Response to Child Sexual Abuse, the former inability of a grown-up victim to sue his childhood perpetrator has been redressed. Most of the six states of Australia have now made it easy for a victim to come forward many years after the abuse took place.

In the US, I think there should be an almost indefinite “tolling” of the statutory date of limitation where a government entity has had the ability to suppress the facts, or even to suppress citizens’ knowledge of a government program.

Consider the MK-Ultra program which was run by the CIA, from 1950 to at least 1980, with some of the work contracted out to hospitals, universities and army bases.  Many children were subjected to experiments that involved torture. By the 1990s they, as grown-ups, began to speak out.  They had been trained to believe that they would be killed if they spoke out.

As far as I am aware, there has been no legislative effort to help these people. There was a president’s commission on radiation experiments that some soldiers had undergone. A few MK-Ultra girls, such as Claudia Mullen, had also been in the radiation experiments, so they had a chance to give testimony – at last!  The commission ended with a formal apology by President Bill Clinton. Congress — or even the states — could now pass a law “freeing the crime of human experimentation from any statute of limitations.”  Who could argue against it? And the universities and hospitals who contracted with the perpetrators should not be shielded from lawsuit.

Vexatious Litigants

Courts, notably in Australia, can use the flimsy excuses of “vexatious litigant” to douse any court case that might hurt the powerful. Psychologists, who I suspect are on the payroll, go so far as to diagnose mental conditions such as “fixated persons” (like me, fixated on the proper purpose of law!) or “ODD” – oppositional defiance disorder, to make a person ineligible to mount a case.

Wait — don’t some people pester the court because they’re unreasonable and seeking attention, or whatever?  Sure, there could be such types here and there.  A legislature can address that easily by passing a law that says courts may block a litigant for vexatiousness but only when a jury agree has OK’d that. This idea was proposed by Bill Windsor in his excellent YouTube series, Lawless America. (He ended up in jail for his ideas.)

Note: This is reminiscent of the “nemo judex” maxim “Nemo judex in causa sua.” A man must not be the judge in his own case.  The government may be trying to silence a litigant, in the government’s best interest. Don’t let the government be the judge of that person’s vexatiousness!

“Immunity” Wants Clear Law

Most citizens have a wrong impression about governmental immunity. First of all, it does not apply to crime. Members of government very definitely do not have any legal protection against being charged with crime. In Australia, one person is above the law, the monarch, but the prospect of charging the monarch with crime is negligible. So let’s just say NO ONE HAS IMMUNITY FROM CRIMINAL SANCTION.

Years ago, a US Attorney General gave the CIA permission to commit crime. People have said he granted immunity. Whatever you call it, he acted completely outside his authority. Are you with me?  NO ONE HAS IMMUNITY FROM CRIMINAL SANCTION.

A government prosecutor does, at times, make an offer of immunity to an individual in exchange for information. “Tell us who bossed Joe to do this and we will spare you from prosecution – or will charge you only with a lesser offense.”  I hear you say “He can plead the fifth.” Yes, but only if he is known to have been involved in that crime. It should not be used in regard to his merely having the dirt on a third party — in that case he could be forced to cough up the information. Legislation should make this clear.

But I am here to talk about government’s immunity from lawsuit, which is a reasonable tradition.  A sovereign state should not be sued by a citizen, unless she is given leave to sue (which is frequently given). Generally, it is proper that no judge be sued for any ruling he makes in a case, no matter how unfair. (If he is a bad judge, impeach him.) What judge would be willing to rule firmly if he had to watch his own wallet in doing so?

It is also proper that law enforcers and soldiers not have civil liability for what they do in the course of duty.  But if they act outside their job description – say, if a cop rapes you during duty hours – he should face lawsuit by you, not just criminal charges.  I do not know the various laws of the 50 American states or the 6 Australian states, but here is one instance in which the law does hold government workers immune from private lawsuit, no matter how egregious their behavior. The Public Sector Act 2009 of South Australia, section 74, says:

“Immunity relating to official powers or functions (1) This section applies to (a)  a public official; and (b) a public sector employee; and …  (d) a person who is, in accordance with an Act, assisting a public sector employee or public official in the enforcement of the Act. (2) Subject to this Act, no civil liability attaches to a person to whom this section applies for an act or omission in the exercise or purported exercise of official powers or functions. (3) An action that would, but for subsection (2), lie against a person lies instead against the Crown ….”

Let’s say a social worker in a child protection unit of government harms the child by lying in court to hide the abuse that the child reported. Should she be open to suit by the child (in addition to charges of perjury and obstruction of justice) for doing that? I say yes, because she has acted outside her job description. Surely she has not been instructed by her superiors to lie.

Or has she?  I think she has.  As stated earlier, there is a criminal enterprise going on, known as child trafficking, and it seems to involve any group that is ostensibly in existence for the sake of the child’s safety. Police, child psychologists, social workers, lawyers, and even charitable groups that “rescue” kids, may be part of organized crime. So it may be that low-level office workers in a Child Protection Department are indeed instructed to fudge the files.  They may be told to suppress reports of abuse made by a kid to its teacher, doctor, etc.

There is a famous YouTube video of a young female prosecutor “explaining” to the judge that it is OK for social workers to lie. Luckily the judge said – in so many words – “You’ve got to be kidding.” (He raises his voice at 5.05 minutes). But not all judges do that, and in the South Australian setting, the judge would correctly read Section 74 of the Public Sector Act to approve of outrageous deception. Parliament must fix this immediately. My Action theme, then, is that it’s time for the walls of Jericho (injustice) to be hooted down by a legislative operation.

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Note: Here are the first 5 replies listed to that video, as retrieved on April 13, 2021:

Marcia Williams
— They need to go back and review every case that these CPS workers were involved in.

streetcop157 — When the judge interrupts you to ask if you are seriously making an argument that’s a bad sign….

Matthew Morris — Why aren’t the CPS employees in jail for knowingly lying to the court?

Don Wick — The fact that this is being argued is wild as all hell.

Marie LaRosa — These CPS workers need to have all their past cases looked at and reviewed because they are corrupt as hell!!!!!


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