[quote="Publius Crabgrass":3ej9eku0]Notably, the [url=http://www.aliasi.us/nburgwiki/tiki-ind ... t:3ej9eku0]Judiciary Act[/url:3ej9eku0] did not amend Article III, Section 1 of the Constitution which gives the SC the service role to "moderate user forums and events", so the answer to the topic question is that the SC moderates the forum. Nor did the Judiciary Act tell the SC how to fulfill its role as forum moderator - it would certainly be proper for the SC to delegate its work to one or more members, subject to review by the entire body, which is exactly what it did by adopting the [url=http://forums.neufreistadt.info/viewtop ... 1:3ej9eku0]Forum Moderation Guidelines[/url:3ej9eku0].
The US lawyers among us will recognize a similar process occurs in the US Courts of Appeals. Those courts hear appeals in panels of three judges, but further appeal may be made to the entire court in what is called [i:3ej9eku0]en banc[/i:3ej9eku0] review. Such [i:3ej9eku0]en banc[/i:3ej9eku0] appeals are rarely heard, but they do happen in the most significant cases. In the case of forum moderation, it seems that the SC has chosen to let its individual members act as moderators, subject to [i:3ej9eku0]en banc[/i:3ej9eku0] review by the entire SC.
The interesting part is what happens next, after the full SC reviews one SC member's action in imposing a sanction. I think Ashcroft is correct, that the Judiciary Act does give the Court of Common Jurisdiction the authority to hear appeals from decisions of the forum moderators. Of course, we now have only one judge, who happens to have been warned in the exact same individual moderator decision that Beathan seeks to have reviewed by the full SC. So if Beathan is disappointed by a decision of the full SC, he could appeal to the Court of Common Jurisdiction. Ashcroft would, I trust, recuse himself from hearing such an appeal, and on the same grounds might consider refraining in the future for calling upon the moderators to review postings.
If we had more than one judge, the Chief Judge could recuse himself from hearing a case where he was personally involved. But the judicial qualification procedures ensure (at least for now) that any judges chosen to replace the Chief would have been personally albeit anonymously approved by the Chief as "qualified". Ash has also proposed another way around this dilemmna, which is to let the SC appoint "special commisisoners" to handle matters when we don't have a sufficient number of permanently appointed judges.
If Ash were not personally involved in this imbroglio, he would be empowered to make a decision, which could then be further appealed [i:3ej9eku0]back to the SC[/i:3ej9eku0], but this time acting as the "Court of the Scientific Council" which hears final appeals on constitutional questions. Beathan's appeal undoubtedly raises a constitutional question, as it is about his claim that the forum rules bump up against our constitutional guarantee to respect the Universal Declaration of Human Rights. So the appeal route would end up in full circle back to the SC. Gwyneth needs to make another diagram! [/quote:3ej9eku0]
For the most part, this is a lucid explanation of the position. There are, however, one or two corrections that need to be made. Firstly, in respect of judges; in this particular case, I shall indeed (if the matter is brought before a court) recuse myself from hearing the case, since I posted on the same thread. There is no reason that judges who were qualified by me should also recuse themselves, since they were not involved on the thread in question. If those qualified judges are not appointed in time for any hearing in the matter, then the constitution provides:
[quote:3ej9eku0]7. A person who is a party to any proceedings before any Court of Common Jurisdiction shall not preside over those proceedings as judge or juror, or over any part thereof, or deliver any judgment or verdict in respect of those proceedings.
8. If no Judge of Common Jurisdiction is available to preside over any proceedings in any Court of Common Jurisdiction, either by virtue of Section 7 above, or because there is no Judge of Common Jurisdiction at all who holds office at a time at which a Judge of Common Jurisdiction is required to preside over such proceedings, the Dean of the Scientific Council shall appoint a member of the Scientific Council to act as judge in those proceedings, and that person shall, for the purposes only of the particular proceedings for which he or she is appointed, have all and only the powers in respect of those proceedings as a Judge of Common Jurisdiction,[/quote:3ej9eku0]
which would, since I would interpret section 7 broadly and consider myself to be a party to the proceedings for the purposes of that section, enable the Dean of the Scientific Council to appoint a member of the Scientific Council to act as a special judge to hear the case.
Further, something is not appealable to the Court of Scientific Council from a Court of Common Jurisdiction merely because it involves a question relating to the UDHR: the constitution provides:
[quote:3ej9eku0]1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision (or any part thereof) from which the appeal is made, but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought: –
(a) acted in the proceedings out of which the appeal arises [b:3ej9eku0]outside its jurisdiction as conferred by the text of this Constitution[/b:3ej9eku0]; and
(b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute).[/quote:3ej9eku0]
(Emphasis mine). The text of the constitution does not provide that the Courts of Common Jurisdiction shall take the Universal Declaration as a source of law, nor is the Universal Declaration itself part of the text of the constitution. The only reference to it is here:
[quote:3ej9eku0]The Philosophic branch may veto or rewrite and resubmit a bill or constitutional amendment if it is in violation of any of the founding documents.[/quote:3ej9eku0]
Although it is not expressed in the text of the constitution, it seems that the Universal Declaration is taken to be among the founding documents. The Council therefore is expressly given the power to veto legislation for non-compliance with a "founding document" other than the constitution itself, whereas, in considering appeals from Courts of Common Jurisdiction, it is restricted to cases where it can be satisfied that the Court of Common Jurisdiction has acted outside its jurisdiction as conferred by the text specifically of the [i:3ej9eku0]constitution[/i:3ej9eku0]. Since the text of the constitution does not enjoin Courts of Common Jurisdiction to treat the Universal Declaration as a source of law (which would be very unwise, given how vague that it is, as I pointed out at the time), the Court of Scientific Council cannot say, "We think that the Universal Declaration means that the Court of Common Jurisdiction should have done [i:3ej9eku0]this[/i:3ej9eku0], and therefore we allow the appeal". There is nothing specifically constitutional about the Universal Declaration: it is an extraconstitutional document (expressly recognised in the constitution as such), and there is no reason why rights ought not be built up through the common law developed by Courts of Common Jurisdiction, rather than based on the Scientific Council's interpretation of the vagueness of the Universal Declaration.
Even that argument notwithstanding, the decision could only be appealed to the Court of Scientific Council if the way in which the Court of Common Jurisdiction from which the appeal was made acted outside its jurisdiction as conferred by the text of the constitution in such a way as altered the outcome of the case: so, if the Court of Common Jurisdiction, for example, declined to make any declaration on the Universal Declaration issues because it did not consider them to resolve any practical dispute, then that would not be the kind of thing that one could appeal to the Scientific Council.
In any event, to surmise, as Publius points out, although I had imagined when drafting the Judiciary Act all moderatorial appeals being dealt with at first instance by the Courts of Common Jurisdiction, there is certainly some force in saying that the Scientific Council ought be invited to review the decision of one of its individual moderators before a case is presented to a Court of Common Jurisdiction (and, indeed, for a Court of Common Jurisdiction - possibly - to refuse to hear a case in which that has not happened because the parties have not exhausted their remedies). Nonetheless, the jurisdiction of the Courts of Common Jurisdiction as I have described it remains.