#2 Common Law – what exactly is that?

In previous posts of this blog I have given broad outlines of different kinds of Law in practice today. One of those is Common Law. The Thesaurus gives “widespread”, “general” and “universal” as synonyms for Common. As the second part of its name implies, it has to do with rules and regulations.

There are but two rules/commandments given to Humanity, which most of us are familiar with and therefore can rightly be called “Universal Laws”. Those two concern Love, love and respect for our Creator and love and respect for what He created. Love does no harm to anyone or anything that was created.

Then there are rules and regulations which communities of people have adopted by unanimous decision in order to maintain peace amongst each other and regulate their day to day affairs. The Mosaic Law for instance was commonly known amongst the Israelites, it was their Common Law. 

Authority vs Tyranny

Common Law, then, is rooted in the Natural Law of love and care for each other. It is expressed by the people, for the people. It is activated by the people when they realize the need for a law. Its purpose is the protection of the inherent freedom and autonomy of all the people within a community.  It operates on the simple principle of what is best for the community and every part in it.  

Any legal decision that only serves a certain part of the community is not rooted in Common Law, not rooted in love.  Roman/Civil Law only serves parts of the community and is therefore diametrically opposed to Common Law.

Jury vs Judge

Under Common Law the inherent capacity of a sovereign people to objectively judge right from wrong is represented by a Jury of at least 12 independent people, who only serve on a temporary basis, judging or deciding on a specific case or issue. Their unanimous decision is respected and accepted as final. 

Under Roman/Civil Law the decision of one judge can be repealed by another one, depending on the arguments presented by people trained to look for loopholes in the confusion of statutes. Thus lies become truth and truth is no longer truth.

Court of the people vs Court of Rulers

Though Common Law is used everywhere in everyday life, certain matters and situations need to be dealt with more formally, before a tribunal of people in a specific place called a court.

Common Law Courts are courts of the people, where people are tried by their neighbors, who act as Jury, everyone being equal, having the same rights, freedoms and sovereignty. In order to prevent chaos at such a hearing, certain proven rules are followed, just as in the courts of the rulers.

The big difference is that instead of one state appointed judge, juries of 12 normal, untrained people act in that capacity on a temporary basis for the time of trial.  This is a better guarantee for a fair trial, as the Rules of evidence and just procedure have to be followed strictly in order for the Jury to arrive at just decision.

In the courts of the rulers judges regularly ignore rules of evidence and just procedure and are allowed to do so by their statutes. They are even allowed to silence a party in a dispute. Being appointed by the state in a permanent capacity, they can easily be politically manipulated and bribed.

Summary

A truly sovereign and free community can only stay sovereign and free when the people within the community take charge of their own affairs on every level.

As John Hancock, a founding father of the American Republic, declared in 1777:  

“If we have not Courts that are established and maintained by the People, rather than by bribable Judges, then we will have no Republic … Our Constitution and our Nation will rise or fall according to the independence of our Courts.”

In the next part of this series on Common Law I’ll discuss its applicability in Namibia.  

Enforce Your Right in Court - Transcript for Namibians

Ensuring a Fair Trial

The Namibian Constitution – is the supreme law of the land.

Article 5  subjects  the  Executive, Legislature and Judiciary and all organs of the Government and its agencies to it.   

Article 12  describes the right to a fair and public hearing.                                                                              

Thus it follows that when State appears against defendant, defendant must be given the opportunity to understand and establish the nature and cause of the charges against him and the jurisdiction to be used in order to properly defend him/her self in a fair trial. 

 How to do that is discussed in the audio embedded in the first article on this matter. Since that audio cannot be saved, I have made a transcript of the steps and adapted them where applicable to the Namibian Constitution. The steps can now be copied or printed as needed.

Steps to follow in Court

1. The first question of the judge must be: do you understand the charges against you?                                                  

    You: NO your honor, I don’t. I need you to answer a couple of questions.  I need to understand the nature and cause of the charges against me. Is this case to be heard under a civil or a criminal jurisdiction?  

If the judge does not ask that question, you immediately say:  

Objection, your honor. I do not understand the nature and cause of the charges against me. I need some questions to be answered. Is this case to be heard under a civil or a criminal jurisdiction?  

 2.1. If judge answers “civil”  

    

   You: Thank you, your honor. Let the record of this court then show that this action against me, (your name), is a civil action. Since this is a civil action, I make a motion to dismiss for lack of a sworn complaint by an injured party and no injured party is present.

2.1.2. If the judge then says the State is the injured party                           

You: I make a motion that this case be dismissed. We are in the wrong court.  If the State is a party to the case, they cannot also be the judge and prosecutors. This case needs to be transferred to an independent, impartial court or be dismissed.

2.1.3. If the judge denies this motion                                                         

You : Objection, your honor. Article 12 of the Constitution guarantees me a fair and public hearing by an independent, impartial and competent Court or Tribunal. Let the record of this court then show that the motion to dismiss this case on grounds of partiality has been denied by this court.

2.1.4. If the judge advises legal help                                                                

You: Thank you, your honor, but I don’t think you’d be violating your oath of office if you did your duty under the Constitution. You see, I’m not seeking legal advice, but legal intent. I have the constitutional right to appear as myself in my own person without a licensed attorney. In order to intelligently defend myself I have to get certain questions answered.  The Constitution grants me the right to a fair trial and it assigns you the duty to ensure its fairness. I don’t think you’d be violating your office for doing your duty. Therefore, will you please answer my question so this court is properly identified.

2.2. If the judge answers “criminal”                                                               

You: Thank you, your honor. Let the record of this court then show that this action against me,(your name), is a criminal action. Now I have another question, your honor. The Constitution grants this court two different criminal jurisdictions. One is a criminal jurisdiction under the common law and the other is a criminal jurisdiction under civil law. In which of these two jurisdictions does the court intend to try me?

  3.  If the Judge tells you to get an attorney

Y You: Thank you, your honor, but I don’t think you’d be violating your oath of office if you did your duty under the Constitution. You see, I’m not seeking legal advice, but legal intent. According to article 12 (1)(d) I have the constitutional right to appear as myself in my own person without a licensed attorney although I am entitled to be defended by a legal practitioner of my choice. In order to intelligently defend myself, I have to know under which jurisdiction you intend to try me so as to proceed with this case. Therefore, will you please answer my question, so this court is properly identified.

  4. If the Judge tells you it's a court under statutory jurisdiction of the laws of Namibia.

   You: Thank you, your honor. Please let the record of this court show that it intends to conduct a criminal action against me, (your name), under a statutory jurisdiction. But your honor, that raises another question. I have never heard of such a thing as a criminal action under statutory jurisdiction and there is no such reference in the constitution.   I would be happy to accept this, your honor, if you could please tell me where I could find the published rules of criminal procedure under statutory jurisdiction and where this nature, cause and jurisdiction information exists. It is imperative that I have the published rules of procedure, so that I can conduct a fair defense in a fair trial.

5.1. If the Judge wants to plead "not guilty" on your behalf

You: Your honor, I object. For you to enter a plea on my behalf is practicing law from the bench, because offering a plea is my or my attorneys job. Has the court made a judicial determination that I am not guilty?
       If he says yes:  
Thank you, your honor.Let the record reflect that the judge has made a judicial determination that I am not guilty of the charges against me. Therefore I make a motion that the case be dismissed because the judge has determined that I am not guilty. 
       If he says no:
Thank you your honor.I make a motion that the plea be withdrawn and I be allowed to make my own plea once I know the nature and cause of the case pending against me.

5.2. If the Judge wants to enter a plea of “no contest” on your behalf

You: Your honor, I object. For you to enter a plea on my behalf is practicing law from the bench, because offering a plea is my or my attorneys job. For you to make a judicial determination that I am entering a plea of no contest would result in the court treating me as though I have pleaded guilty. The court is trying to constrain me to an unfair plea choice of no contest in absence of my understanding the nature and cause of the charges against me. 
I make a motion that the plea be withdrawn and this case be dismissed because the court has failed to identify a legitimate jurisdiction.

 

6. If the Judge: denies motion for withdrawal of plea and dismissal of case

   You:   Your honor, Article 12(1)(e) of the Constitution affords me adequate time before commencement of or during the trial for preparation and presentment of my defense. Therefore I would like to request that we set a motions hearing prior to the trial, as I must resolve some pivotal key issues in order to continue and these motions must be heard prior to the trial so that I can properly defend myself. 

7. If judge threatens with contempt of court                                                               You : Your honor, I do not wish to be held in contempt.I am simply trying to exercise my constitutional right that you disclose the nature and cause of the charges against me.
I can provide court citations that show that the exercise of a constitutional right cannot be converted into a crime. Please, either properly identify the jusrisdiction or I make a motion that the case against me be dismissed.


8. If judge dismisses the case:
Thank you your honor. Let the record of this court reflect
that case number ...against (your name here) has been dismissed. 
   ----------------------------------------------------------------------------
   Important Note:
   If you want to use the Steps in court, DO NOT deviate. Use them exactly as they are, in English. They are a transcript from the audio here, which is authoritative, meaning it comes from those in the know, legal advisers.

   A transcript is but a written version of an Audio of Video. It assists those who are unable to listen. 
   Any deviation whatsoever places you in a vulnerable position.
 

Enforce Your Right in Court and Win.

Most of us may try to stay out of court during our lifetime, yet there is no guarantee to our being successful at that. It therefore is important to prepare yourself ahead of time in order to handle such a situation to your benefit. Being prepared is half the battle won already. I know of at least one person who would have been able to avoid being incarcerated if he had been prepared properly.

The video below explains how you can learn to enforce your right in a fair hearing in court. Never give the court jurisdiction over you by entering a plea.

  

Even though the above video was made for Americans, the procedure can be applied in any country where human rights are enshrined in a constitution. Thus a knowledge of ones constitutional rights is a prerequisite.

In Namibia the right to a fair trial is enshrined in Article 12 of the Namibian Constitution.