Expediting the development of our legal system

[Ashcroft Burnham]

[u:2vxll6tn][b:2vxll6tn]Latest version of the Judiciary Bill - 19 Sep. 2006[/b:2vxll6tn][/u:2vxll6tn]

Since it was not discussed at the last Representative Assembly meeting, I have made a new integrated version of the [b:2vxll6tn]Judiciary Bill[/b:2vxll6tn], containing all of the amendments to which I make reference above.

I have also made a slight amendment to the wording of the section about judicial vetos to make the procedure clearer, and to prevent the Chief Judge just re-appointing a person who has been vetoed within 6 months of the veto being issued, without leave of a simple majority of the Scientific Council.

I present the revised version below. I will send it to Claude in notecard form in due course.

I urge those in charge of the agenda of the Representative Assembly to place this item sufficiently high that it is able to be discussed: our citizens have been waiting too long for a working judiciary, and we need one before we can even start a proper publicity campaign. It will also need time to bed down.

******

[b:2vxll6tn]The Judiciary Bill
[i:2vxll6tn]19 Sep. 2006 version[/i:2vxll6tn][/b:2vxll6tn]

[i:2vxll6tn]A Bill to make provision for a professional judiciary, judicial procedure, to reform citizenship rights and duties with respect thereto, to make provisions for marshals of the peace, and to make repeals and consequential amendments to the Constitution and certain Acts of the Representative Assembly, as well as to make provisions for bringing official documents in line with the recent change of name to "The Confederation of Democratic Simulators"[/i:2vxll6tn].

[b:2vxll6tn]Chapter I - the Judiciary Commission and the Common Jurisdiction[/b:2vxll6tn]

1. The following section shall be inserted at the end of the Constitution, but before the table of amendments: –

***

[b:2vxll6tn]Article VII - The Judiciary[/b:2vxll6tn]

1. There shall be a Judiciary Commission, the chair of which shall be appointed by simple majority vote in the Scientific Council as soon as is practicable after a vacancy arises, and who shall hold office until resignation or successful impeachment, whichever is sooner.

2. The chair of the Judiciary Commission shall have the power: –

(a) to appoint a Chief Judge of Common Jurisdiction, who shall hold office until resignation or successful impeachment, whichever is sooner;

(b) to determine the total number of Judges of Common Jurisdiction who shall hold office at any given time, who shall each hold office until resignation or successful impeachment, whichever is sooner;

(c) subject to any duly ratified Act of the Representative Assembly, and the exercise of any authority delegated thereby, and subject to any contrary proclamation of the Chancellor, to commission and, once commissioned, maintain and administer as many court-houses as the chair shall deem appropriate, for the purposes of holding trials and other judicial hearings, and any other purposes as the chair shall deem appropriate, provided always that neither the Representative Assembly or the Chancellor individually or between shall prohibit the commissioning, construction, maintenance and continued existence and use of at least one court-house;

(d) to expend any monies held by the Judiciary Commission for any purposes connected with the discharge of any of the functions of the Judiciary Commission;

(e) subject to Section 5 below, to employ, for valuable remuneration or otherwise, such deputies and officers, and to delegate to them such functions, as the chair shall deem appropriate;

(f) to provide, or arrange to have provided, advice to citizens who may submit bills to the Representative Assembly, or any official, or delegate of that official, charged with drafting or approving regulations under powers delegated to her or him by the Constitution or any duly ratified Act of the Representative Assembly, concerning the drafting of such legislation or regulations, provided always that the Judiciary Commission shall not provide advice as to the desirability of any policy objective of such legislation or regulations;

(g) to publicise, both within the Confederation of Democratic Simulators, and elsewhere, the judicial system of the Confederation of Democratic Simulators, or publicise the Confederation of Democratic Simulators (or any geographic subset thereof) by publicising its judicial system;

(h) to provide, and oversee the provision by others of, education concerning the law and legal system of the Confederation of Democratic Simulators, and to issue, or regulate the issue of, qualifications in respect thereof;

(i) to provide advice to other governments and similar institutions in SecondLife and other such virtual worlds concerning the establishment and development of judicial systems therein;

(j) to maintain and publicise a record of all judicial proceedings, precedents and other public official judicial documents, not being documents relating to judicial proceedings in the Scientific Council; and

(k) to bring impeachment proceedings against any Judge of Common Jurisdiction, on the grounds only of either or both of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption, insanity, or any other conduct tending to bring the judiciary of the Confederation of Democratic Simulators into serious disrepute.

3. Even when not sitting as a Judge of Common Jurisdiction in an individual case or cases, the Chief Judge of Common Jurisdiction shall have the power: –

(a) to determine who other than her or himself shall be appointed to be a Judge of Common Jurisdiction;

(b) to determine which Judges of Common Jurisdiction shall hear which cases, or parts thereof;

(c) to issue general directions concerning procedure in Courts of Common Jurisdiction;

(d) to determine which Courts of Common Jurisdiction shall be superior, and which inferior; and

(e) to bring impeachment proceedings against the Chair of the Judiciary Commission or any other Judge of Common Jurisdiction, on the grounds only of either or both of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption, insanity or any other conduct tending to bring the judiciary of the Confederation of Democratic Simulators into serious disrepute, or additionally, in the case of the Chair of the Judiciary Commission, either or both of (i) gross incompetence; or (ii) gross fiscal imprudence.

4. Nothing in this Constitution shall prevent a single person holding office both as the Chair of the Judiciary Commission and the Chief Judge of Common Jurisdiction simultaneously or in succession, but, if a single person simultaneously holds office as any Judge of Common Jurisdiction and the Chair of the Judiciary Commission, any impeachment of that person that succeeds only on grounds applicable only to the Chair of the Judiciary Commission shall not have effect in removing, suspending or disqualifying that person from the office of Judge of Common Jurisdiction, whether Chief Judge or otherwise.

5. Subject to Section 8 below, only Judges of Common Jurisdiction shall preside over proceedings in any trial or other hearing, or deliver any judgment as to the law in any Court of Common Jurisdiction, or otherwise exercise any of the powers of any Court of Common Jurisdiction, save for those powers exercisable by juries, and any power, not exercised during the course of a trial or other hearing, deemed by any Judge of Common Jurisdiction to be administrative in nature, providing always that any party to such proceedings may appeal to a Judge of Common Jurisdiction from any such administrative decision.

6. Subject to Section 8 below, only Judges of Common Jurisdiction or juries empanelled in accordance with law shall deliver any judgment or verdict as to any question of fact in any trial or hearing in any Court of Common Jurisdiction.

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.

9. Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution, Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on a disputed matter between two or more parties (who must be residents of SecondLife or bodies corporate, including states, recognised as such by the law of the Confederation of Democratic Simulators, but who need not be citizens of the Confederation of Democratic Simulators): –

(a) to make binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators;

(b) to make binding determinations of any facts in dispute between any or all such parties, provided that making such determinations are necessary in order to make such a determination as mentioned in paragraph (a) above, or (c) below;

(c) subject to either (i) a party formally accepting, or (ii) a court finding as a fact at a trial held in accordance with law that a party's conduct is culpable, to impose upon that party in respect of that conduct any penalty, including, but not limited to, banishment from any or all territory of the Confederation of Democratic Simulators, either permanently or for such shorter period as shall be specified by the court, and forfeiture of any SecondLife asset (including debts and other such duties owed thereto), either immediately or suspended on such conditions as the court may prescribe;

(d) to make any non-penal orders such as to give effect to the rights, duties, powers, privileges, immunities, liabilities and disabilities of any party according to the law of the Confederation of Democratic Simulators, including any law relating to judicial procedure, or any other person or body on behalf of whom any party makes any claim, or to give effect to any penalty imposed by any Court of Common Jurisdiction in accordance with paragraph (c) above; and

(e) to order that any person be removed from the court-house at which any trial or any other hearing is being held, or, if he or she refuses so to be removed, banished from the Confederation of Democratic Simulators for the duration of that trial or other hearing (and for up to one hour thereafter) on the ground that that person is disrupting court proceedings, improperly interfering with the administration of justice, or attempting to do so.

10. All trials and other hearings in any Court of Common Jurisdiction shall be held in public, and, subject to section 9(e) above and 11 below, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings, a full transcript of which shall be made available to the public at large in perpetuity and without charge.

11. Section 10 above is subject to any rule of law whereby a person who is to be a witness in any judicial proceedings may be excluded from those proceedings, and prohibited from receiving information about the course of those proceedings, until he or she has completed giving her or his evidence, provided always that, at the conclusion of the proceedings, any such person shall have the opportunity to access a full transcript of the whole of the proceedings.

12. When making any binding determination of the rights, duties, powers, privileges, immunities, liabilities and disabilities according to the law of the Confederation of Democratic Simulators of any parties in any proceedings in any Court of Common Jurisdiction, Judges of Common Jurisdiction shall be bound by the following sources of law, each item in the following list
taking precedence over each subsequent item: –

(a) the Constitution (as interpreted by any judgment of the Scientific Council sitting as a court, or of the Scientific Council in any capacity before the passing of the [b:2vxll6tn]Judiciary Act[/b:2vxll6tn] that sets a precedent);

(b) any duly ratified Act of the Representative Assembly;

(c) any regulations made under any powers delegated, whether directly or indirectly, by any duly ratified Act of the Representative Assembly;

(d) any judgment of the Scientific Council sitting as a court (or of the Scientific Council in any capacity before the passing of the [b:2vxll6tn]Judiciary Act[/b:2vxll6tn]) that establishes a precedent;

(e) any judgment of any superior Court of Common Jurisdiction that establishes a precedent;

(f) any judgment of any Court of Common Jurisdiction of equal superiority that establishes a precedent; and

(g) any directions or rules issued under Section 3 (c) above,

and where a judgment of the Scientific Council sitting as a court, or any Court of Common Jurisdiction, establishes a precedent as to whether any regulations of the sort mentioned in paragraph (c) above are made in accordance with, or conflict with, any duly ratified Act of the Representative Assembly, that shall take precedence over any contrary regulations.

13. A judgment establishes a precedent where, in order to determine the outcome of the proceedings in respect of which the judgment, or any part thereof, was given the judge or judges who determined such an outcome (and, if, where more than one judge so determines, they disagree, a simple majority of them) reach any conclusion or conclusions regarding the law of the Confederation of Democratic Simulators, that conclusion, and the reasoning used in reaching that conclusion, being the precedent set thereby.

14. A Judge of Common Jurisdiction, when delivering any judgment in any proceedings, or part thereof, in any Court of Common Jurisdiction, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

15. Nothing in this Constitution shall preclude any procedure whereby a party to proceedings in any inferior Court of Common Jurisdiction may appeal the outcome of such proceedings to any superior Court of Common Jurisdiction, which may allow or dismiss such an appeal in whole or in part.

16. Any Resident of SecondLife, or any body corporate (including any state) recognised by the law of the Confederation of Democratic Simulators, whether or not a citizen of the Confederation of Democratic Simulators, shall be entitled to commence proceedings to resolve any dispute capable of being resolved in accordance with the law of the Confederation of Democratic Simulators, in a Court of Common Jurisdiction.

17. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings.

18. The Court of Common Jurisdiction shall not have the power to hold any impeachment hearing, or to order that any public official who holds office in the Confederation of Democratic Simulators (whether a Judge of Common Jurisdiction, the Chancellor, a member of the Representative Assembly, a member of the Scientific Council, a member of the Artisanal Collective, or other such body, or otherwise) cease to hold or be disqualified from holding such public office, or be suspended therefrom, whether with or without pay.

19. Any Judge of Common Jurisdiction, within 14 days of the appointment of any Judge of Common Jurisdiction, including the Chief Judge of Common Jurisdiction, issue a public notice requiring all Judges of Common Jurisdiction to vote on whether to veto the appointment of that judge, along with a description of the reasons that he or she wishes so to veto.

20. Where a Notice of Veto of Judicial Appointment is issued under Section 19 above, and, within 14 days of the issuance of such a notice, not less than 2/3rds of Judges of Common Jurisdiction vote in favour of such a veto, the Judge of Common Jurisdiction in respect of whom the Notice of Veto of Judicial Appointment was issued shall immediately cease to hold office as a Judge of Common Jurisdiction, and may not be re-appointed as a Judge of Common Jurisdiction within 6 months of the issuance of the notice without leave of the Scientific Council, which shall be determined by a vote of simple majority.

***

2. The following sections of the Constitution shall be repealed: –

(a) Article III, Section 6, apart from the first sentence thereof ([i:2vxll6tn]Scientific Council - Hearings, Trials and Ratifications[/i:2vxll6tn]);

(b) Article III, Section 7 ([i:2vxll6tn]Scientific Council - Alternative Dispute Resolution[/i:2vxll6tn]), the whole section;

(c) Article III, Section 8 before the beginning of the sentence that starts, "In regard to ([i:2vxll6tn]sic[/i:2vxll6tn]) the Representative Branch" ([i:2vxll6tn]Powers of the Scientific Council[/i:2vxll6tn]),

and the title of Article III, Section 6 shall be changed to "Ratification of bills passed by the Representative Assembly".

3. The following part of the NL4-14 Registration and Incorporation Act shall be repealed: Article 2, Section 3 ([i:2vxll6tn]commercial court: constitution[/i:2vxll6tn]): the whole section, and any references in any part of that Act to the "Commercial Court" shall be taken as references to the Court of Common Jurisdiction, and any reference therein to any procedure before the Commercial Court shall be subject to any general directions issued by the Chief Judge of Common Jurisdiction under Article VII, Section 3 (c) of the Constitution.

4. The following shall be added to the Constitution immediately at the end of Article II, Section 4 ([i:2vxll6tn]Powers of the Artisanal Collective[/i:2vxll6tn]): –

***

With respect to the judiciary:

1. The Artisanal Collective may bring impeachment proceedings against the Chair of the Judiciary Commission on the ground of gross fiscal imprudence.

***

5. The following shall be added to the Constitution immediately at the end of Article I, Section 7 ([i:2vxll6tn]Powers of the Representative Assembly[/i:2vxll6tn]): –

***

1. The Representative Assembly may vote by simple majority: –

(a) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction (including the Chief Judge of Common Jurisdiction) before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so; and

(b) to appoint a member of the Representative Assembly to conduct those proceedings on behalf of the Representative Assembly before the Court of Scientific Council.

***

6. The Judiciary Commission shall have the power to serve upon any citizen of the Confederation of Democratic Simulators notice that that person is required to serve on a jury in a Court of Common Jurisdiction; any such person upon whom such notice has been served shall attend at the date and time set out in the notice, unless excused from so doing by a Judge of Common Jurisdiction after notice was served but before the date and time specified therein, and shall, unless excused from so doing by a Judge of Common Jurisdiction, duly serve as a juror, and act in accordance with all lawful directions of the Court.

[b:2vxll6tn]Chapter II - the Scientific Council[/b:2vxll6tn]

7. The following shall be inserted in the Constitution between Article III, Section 6 and Article III, Section 8:

***

[b:2vxll6tn]Section 7 - The Court of Scientific Council[/b:2vxll6tn]

1. The Scientific Council shall sit as a court when it exercises, or is considering whether to exercise, its power: –

(a) to impeach any person; or

(b) to allow any appeal from any Court of Common Jurisdiction.

2. When the Scientific Council sits as a court, it shall be known as "The Court of Scientific Council".

3. Subject to Section 6 below, when sitting as a court, the Scientific Council shall be presided over by an odd number of judges greater in number than one, each of whom shall be members of the Scientific Council, not also being Judges of Common Jurisdiction or the Chair of the Judiciary Commission.

4. The Dean of the Scientific Council shall determine which members of the Scientific Council sit as judges in any trial or other hearing before the Court of Scientific Council.

5. Where not all Judges of the Court of Scientific Council agree on a judgment in any proceedings before it, the judgment of the Court shall be that agreed upon by a simple majority of those judges presiding over those proceedings.

6. When any person bringing impeachment proceedings against any member of the Scientific Council so requires, the impeachment proceedings shall be presided over by one or more (and if more, and odd number of) Judges of Common Jurisdiction, not being members of the Scientific Council, who shall, for the purposes only of those proceedings, exercise all and only the powers exercisable by judges of the Court of Scientific Council.

7. The Scientific Council, when sitting as a court, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

8. All trials and other hearings before the Scientific Council when sitting as a court shall be held in public, and, subject to sections 9 and 10 below, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings.

9. The Court of Scientific Council shall have the same powers as Courts of Common Jurisdiction as is conferred by Article VII, section 9(e) of this Constitution ([i:2vxll6tn]persons misbehaving in court[/i:2vxll6tn]).

10. Section 8 above is subject to any rule of law whereby a person who is to be a witness in any judicial proceedings may be excluded from those proceedings, and prohibited from receiving information about the course of those proceedings, until he or she has completed giving her or his evidence, provided always that, at the conclusion of the proceedings, any such person shall have the opportunity to access a full transcript of the whole of the proceedings.

11. The Court of Scientific Council shall sit without a jury.

12. The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative Assembly.

13. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, the Court of Scientific Council shall have inherent jurisdiction to govern its own proceedings.

14. The Dean of the Scientific Council shall have the power to issue general directions concerning procedure in Scientific Council, when sitting as a court and otherwise, which shall, subject to any contrary provision in the Constitution or any duly ratified Act of the Representative Assembly, have the force of law.

***

8. The following shall be added to the Constitution immediately at the end of Article III, Section 8 ([i:2vxll6tn]Powers of the Scientific Council[/i:2vxll6tn]): –

***

[i:2vxll6tn]With respect to the judiciary[/i:2vxll6tn]:

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 outside its jurisdiction as conferred by the text of this Constitution; 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).

2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds: –

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators (except the common law with respect to the jurisdiction of the Courts of Common Jurisdiction);

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council.

3. The Scientific Council may vote by simple majority: –

(a) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction (including the Chief Judge of Common Jurisdiction) before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so; and

(b) to appoint a member of the Scientific Council to conduct those proceedings on behalf of the Scientific Council before the Court of Scientific Council.

4. Any member of the Scientific Council may, within 14 days of the appointment of any Judge of Common Jurisdiction, including the Chief Judge of Common Jurisdiction, issue a public notice requiring the Scientific Council to vote on whether to veto the appointment of that judge, along with a description of the reasons that he or she wishes so to veto.

5. Where a Notice of Veto of Judicial Appointment is issued under Section 4 above, and, within 14 days of the issuance of such a notice, not less than 2/3rds of the members of the Scientific Council vote in favour of such a veto, the Judge of Common Jurisdiction in respect of whom the Notice of Veto of Judicial Appointment was issued shall immediately cease to hold office as a Judge of Common Jurisdiction, and may not be re-appointed as a Judge of Common Jurisdiction within 6 months of the issuance of the notice without leave of the Scientific Council, which shall be determined by a vote of simple majority.

[i:2vxll6tn]Impeachment proceedings[/i:2vxll6tn]

1. Impeachment is an order that a holder of public office cease to hold such public office, or is suspended from such office for any time with or without pay, and/or is disqualified either permanently or for a term certain from holding any or all public office or offices.

2. A person may only be impeached by the Scientific Council, sitting as a court, following a trial in accordance with law.

3. Only persons (or persons acting on behalf of bodies) specified in the text of the Constitution shall have the power to commence impeachment proceedings.

4. Subject to Article IV, Sections 2 and 7 of this Constitution, nothing in this Constitution shall prevent a Court of Common Jurisdiction from banishing any person, even where that person is a holder of public office in the Confederation of Democratic Simulators, and banishment would preclude that person from continuing to hold such public office.

5. When a member of the Scientific Council brings impeachment proceedings, that person shall not sit as a judge of the Court of Scientific Council hearing those proceedings at any stage thereof.

***

9. The following sections of the constitution shall be repealed: –

(a) Article I, Section 7 ([i:2vxll6tn]Powers of the Representative Assembly[/i:2vxll6tn]), the following text: (i) "The leader of the RA sits as the leader of the Artisanal branch if the Artisanal branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the RA sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the
Artisanal branch"; and

(b) Article II, Section 4 ([i:2vxll6tn]Powers of the Artisanal Collective[/i:2vxll6tn]), the following text: (i) "The leader of the AC sits as the leader of the Representative branch if the Representative branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the AC sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the Representative branch".

[b:2vxll6tn]Chapter III - Name and citizenship[/b:2vxll6tn]

10. The title of the Neufreistadt Constitution shall hereafter be, "The Constitution of the Confederation of Democratic Simulators".

11. Any reference in any Act of the Representative Assembly passed before the date on which this Act comes into force to "Neufreistadt" or to “Neualtenburgâ€

[Ashcroft Burnham]

For those who were not at the Representative Asesmbly meeting this afternoon/morning, the Judiciary Bill was again discussed only briefly, and Justice Soothsayer again made the same objections as he made above, without providing any reasoning to reject any of my arguments in respect of it, stating that the compromises that I had suggested above were insufficient, but articulating no reason to think them insufficient.

Pelanor very helpfully offered to seek furhter compromise on the issue, but I cannot imagine [i:31t83c12]how[/i:31t83c12] any further compromise can be made unless we know from Justice [i:31t83c12]why[/i:31t83c12] he rejects each of my arguments on this thread, and [i:31t83c12]why[/i:31t83c12] he thinks that the compromises so far are insufficient.

Moon Adamant has come up with an interesing proposal in relation to selection, and I have been considering how it might be adapted to work better (and I have come up with a varient that might well be an effective means of making judicial appointments (1) based on merit; (2) non-political; but (3) determined at least partly by the people, but I have no idea whether it will address Justice's concerns unless he tell us more about what they are, by answering the questions above). As to removal from office, for example, no explanation at all has been put forward as to why "other conduct tending to bring the judiciary of the Confederation of Democratic Simulators into serious disrepute" should not suffice for the impeachment standard, and so nobody could have [i:31t83c12]any[/i:31t83c12] possible notion of what conceivable compromise might work, and nor has Justice made any attempt whatever to explain why he favours a [i:31t83c12]nationalised[/i:31t83c12] ADR service, provided by the same institution as checks legislation for constitutionality, conducts impeachment hearings and some appeals.

Justice, the debate will inevitably be deadlocked intractably unless you engage in the substance of it.

[Claude Desmoulins]

Having finally found the time to read the whole thread, I have some thoughts and questions, I'll break them into three sections. The first is about judge selection.

First a word or two about why I'm coming at this from where I am. Almost from the outset, the American political psyche has been absorbed with the idea of preventing a concentration of power. The numerous checks and balances were written into the US constitution to prevent a person or government branch from seizing control of everything. Also, when a structural change is proposed , I tend to measure it with the following test case:

Imagine that someone in [newly created position] wished to use it as a springboard to accumulate power. In such a case, what checks are there to prevent such a seizure of power and how might they work.

Some have accused me of being a pessimist for doing this. However, given that our community has some history of judicial actions which were viewed by some citizens as tyrannical, it's not a pointless exercise.

I share in Justice's concern that the Judiciary proposal as it now stands may create such a concentration of power, especially if one person is allowed to be both the Judiciary Commision chair and Chief Judge.

For example, if one person holds both positions, proposed article VII 3(e) is significantly weakened, as it's unlikely a person would bring impeachment proceedings against him or herself.

Another issue is judge selection. In some quarters where a single person makes judicial appointments, the accusation is made that judicial qualification becomes equated with having the same legal philosophy as the appointer.

To return to the hypothetical worst case scenario, a person serving as Judiciary Chair and Chief Judge could set the number of judgeships and courts and appoint to them only those who were allied with him or her as to judicial philosophy. The power of sitting judges to veto an appointment would likely be meaningless here, since the single appointer would have made sure those in the judges seats were cut from the same cloth as it were.

Tad and Justice have proposed a system with direct popular input. In my first life I live in a jurisdiction that asks me to vote for judges. I'll admit I don't like it particularly. Under normal circumstances, I don't feel especially qualified to judge judicial qualifications, nor am I inclined to invest the research time to attempt to do it properly. However, I wonder if having a check on the judiciary from outside the judiciary is designed for other than normal circumstances.

Also there is the issue of how we wish to define our judiciary. A very insulated judiciary sends the message that one ought not apply unless one is a member of the bar in real life. I think this may go too far. Having drafted a fair bit of it, I firmly believe that one ought not need a RL legal education to understand our system of laws. I worry about the judiciary becoming a very closed and exclusive club.

While I very much respect Ashcroft's concern about the injection of political actors into the judge selection process, I would like to see, at the very least, judicial appointments come from a group (perhaps the SC itself) rather than a single individual.

In a later post, I'll put forth some questions about impeachment and banishment.

[Aliasi Stonebender]

[quote="Claude Desmoulins":2weysx2n]
Imagine that someone in [newly created position] wished to use it as a springboard to accumulate power. In such a case, what checks are there to prevent such a seizure of power and how might they work.

Some have accused me of being a pessimist for doing this. However, given that our community has some history of judicial actions which were viewed by some citizens as tyrannical, it's not a pointless exercise.
[/quote:2weysx2n]

Quite so. I feel any system does need to live up to the 'horrible bastard" test.

[Claude Desmoulins]

First banishment:

I am troubled that the proposed legislation spicifies who may banish, without first addressing which transgressions merit banishment or what person or entity has prosecutorial authority in such criminal cases. I'll grant that the Defense of the Republic Act has some of the same vagueness. However, I worry that without these clarifications, a court of common jurisdiction might banish someone for any old reason.

Now impeachment :

The proposed Article VII, Section 18 states:

[quote:3aryoldz]18. The Court of Common Jurisdiction shall not have the power to hold any impeachment hearing, or to order that any public official who holds office in the Confederation of Democratic Simulators (whether a Judge of Common Jurisdiction, the Chancellor, a member of the Representative Assembly, a member of the Scientific Council, a member of the Artisanal Collective, or other such body, or otherwise) cease to hold or be disqualified from holding such public office, or be suspended therefrom, whether with or without pay. [/quote:3aryoldz]

But a proposed addition to Article III, section 8 states:

[quote:3aryoldz]4. Subject to Article IV, Sections 2 and 7 of this Constitution, nothing in this Constitution shall prevent a Court of Common Jurisdiction from banishing any person, even where that person is a holder of public office in the Confederation of Democratic Simulators, and banishment would preclude that person from continuing to hold such public office. [/quote:3aryoldz]

I undertstand the intent is that public officials shall have no immunity from the law, but it seems that a court of common jurisdiction could, by convicting a public official and banishing him or her, create a state of de facto impeachment contrary in effect to the previously quoted provision. If the latter is approved as is, does the former have any meaning in fact? This is an especially important question given the relative lack of clear banishment standards.

[Ashcroft Burnham]

[quote="Claude Desmoulins":2hkfzofv]First a word or two about why I'm coming at this from where I am. Almost from the outset, the American political psyche has been absorbed with the idea of preventing a concentration of power. The numerous checks and balances were written into the US constitution to prevent a person or government branch from seizing control of everything. Also, when a structural change is proposed , I tend to measure it with the following test case:

Imagine that someone in [newly created position] wished to use it as a springboard to accumulate power. In such a case, what checks are there to prevent such a seizure of power and how might they work.

Some have accused me of being a pessimist for doing this. However, given that our community has some history of judicial actions which were viewed by some citizens as tyrannical, it's not a pointless exercise.[/quote:2hkfzofv]

That is indeed a very sensible test: you will notice that I applied it to the legislature in explaining why it would be very dangerous for the legislature to have any control over judicial appointments.

[quote:2hkfzofv]I share in Justice's concern that the Judiciary proposal as it now stands may create such a concentration of power, especially if one person is allowed to be both the Judiciary Commision chair and Chief Judge.

For example, if one person holds both positions, proposed article VII 3(e) is significantly weakened, as it's unlikely a person would bring impeachment proceedings against him or herself.[/quote:2hkfzofv]

This, I am afraid, I do not follow. The power of the Chair of the Judiciary Commission to impeach Judges of Common Jurisdiction is not the principal basis upon which judicial power is controlled: under the latest proposal, both the SC and the RA have the power to commence impeachemnt proceedings against judges, too. The fact that there is one [i:2hkfzofv]extra[/i:2hkfzofv] person who could, in theory, impeach a judge, but will not because he or she would be impeaching her or himself does not mean that there is thereby an inadequate check on the power of judges.

The power to bring impeachment proceedings aside, therefore, what exact abuses of power can you imagine if the same person who administers the judicial system is its most senior judge? Where do you imagine that you will find the extra person who is both willing and able to undertake the tedious but highly responsible job of being Chair of the Judiciary Commission?

[quote:2hkfzofv]Another issue is judge selection. In some quarters where a single person makes judicial appointments, the accusation is made that judicial qualification becomes equated with having the same legal philosophy as the appointer.

To return to the hypothetical worst case scenario, a person serving as Judiciary Chair and Chief Judge could set the number of judgeships and courts and appoint to them only those who were allied with him or her as to judicial philosophy. The power of sitting judges to veto an appointment would likely be meaningless here, since the single appointer would have made sure those in the judges seats were cut from the same cloth as it were.[/quote:2hkfzofv]

The latest version of the proposals also gives the Scientific Council the power to veto judicial appointments; also the setting the number of judges is not relevant to this particular point, is it?

[quote:2hkfzofv]Tad and Justice have proposed a system with direct popular input. In my first life I live in a jurisdiction that asks me to vote for judges. I'll admit I don't like it particularly. Under normal circumstances, I don't feel especially qualified to judge judicial qualifications, nor am I inclined to invest the research time to attempt to do it properly. However, I wonder if having a check on the judiciary from outside the judiciary is designed for other than normal circumstances.[/quote:2hkfzofv]

I have some difficulty in understanding what you meant by that last sentence - might you have made a mistake with your wording?

[quote:2hkfzofv]Also there is the issue of how we wish to define our judiciary. A very insulated judiciary sends the message that one ought not apply unless one is a member of the bar in real life. I think this may go too far. Having drafted a fair bit of it, I firmly believe that one ought not need a RL legal education to understand our system of laws. I worry about the judiciary becoming a very closed and exclusive club.[/quote:2hkfzofv]

I worry far more about the possibility of appointing people to the rank of judges without adequate qualification. It takes a great deal to be a judge - far more than many people outside the law realise. I had planned, as regards judicial recruitment, to require all prospective judges to go through a rigorous screening process, including (1) a written application; (2) demonstration, by writing essays, of a thorough understanding of our law and legal sysetm, as well as the ability to understand and apply legal reasoning in general; (3) observational experience, by shadowing existing judges in practice presididing over cases; and finally (4) practical testing by requiring the judicial candidates to sit in on real cases (or read the papers, in the case of papers-only cases), and deliver what I term "shadow judgments", which could then be assessed by existing members of the judiciary.

I cannot overemphasise how important it is for the future of our judicial system that our judges are adequately skilled, and have a thorough understanding of the law. The degree of intellect required is very high, especially if we are to be setting new precedents. All too often, even in real-world courts, the more junior judges have fixed mindsets and inadequate ability to think analytically, and, as a result, often return poor judgments that makes things very difficult for litigants (district judges in English civil courts are known for this problem - the more senior judges are not). If even the more junior of real-world judges can cause serious problems, then it the sort of problems that we might have if we end up appointing judges who do not have a thorough grasp on the law, and a high intellectual ability, as well as an ability to be fair and reasonable, would be greater still. In my practice, I often appear before the lower criminal courts in England (magistrates' courts), in which, in most cases, three ordinary members of the public sitting part-time decide the cases, advised by a legally qualified justices' clerk. Lay magistrates are notorious amongst the legal profession for making obvious legal blunders (even with the assistance of a legally qualified clerk) and reaching perverse decisions on the facts, often being too lenient, but other times having little insight into unusual circumstances or special mitigating features that a professional judge might recognise as important. It is hardly surprising, then, that, when given the choice, as they often are, most defendants elect to be tried by the higher Crown court, sitting with a judge and jury (and, unlike in the magistrates' court, the professional, senior judge sums up the facts to the jury, usually with some considerable care, and gives them precise directions on the law), even though the Crown Court has the power to impose harsher sentences.

I had planned to draw our judiciary from the ranks of law students and practising lawyers from common law jurisdictions accross the world to ensure that the standard of our judiciary remained high. I was, and still am, confident that enough people of sufficient talent with some background in the law can be found to fill roles as judges; after all, many in the early years of a legal career (and students especially) would find the idea of being a judge quite exciting.

The danger is that, if a body other than the existing judiciary were to be in charge of making judicial appointments, there would be wholly inadequate scrutiny of applicants' judicial skill, resulting in a judiciary with inadequate understanding of the fundamental tenets of common law legal reasoning, and poor case management abilities, with disasterous consequences for the integrity of our judicial processes. The judiciary will be, and the Scientific Council is not, a body of people with particular skill and expertise in the law. It is important, therefore, that body have the power, at the very least, to stop anybody from becoming a judge on the grounds that the person is ill-qualified. Neither the Scientific Council, nor the Representative Assembly are or are expected to be in a position to determine who does and does not have the requisite skill to be a judge.

Whilst, therefore, I certainly did not plan to restrict the appointees to practising lawyers, because of the degree of skill required to be a truly good judge (and I hope that I am right in presuming that we only want truly good judges), it really will be important for those who seek judicial office with us to have some real-world legal background. This is not unreasonable or arbitrary: what is at stake are the rights and interests of a potentially very large number of CDS citizens. It is for their benefit that the judicial system is administered, and it will be to their detriment if it is not administered with the skill that can only come from a thorough appreciation of the law. Although we cannot reliably test for real-world qualifications in-world, we can make our own, in-world legal qualification a prerequisite for holding judicial office.

[quote:2hkfzofv]While I very much respect Ashcroft's concern about the injection of political actors into the judge selection process, I would like to see, at the very least, judicial appointments come from a group (perhaps the SC itself) rather than a single individual.[/quote:2hkfzofv]

It is certainly possible to have judicial selection by group, but the judiciary must have a significant input into that process to ensure that judges are properly qualified. Ultimately, the judiciary (not necessarily the Chief Judge alone, when there are multiple judges) should be able in respect of any candidate for judicial office to state that he or she is inadequately qualified for the job, and stop her or him from being appointed. Anything else would risk ruinously bad judges making the whole system fall apart.

[Ashcroft Burnham]

[quote="Claude Desmoulins":8uvyujjt]First banishment:

I am troubled that the proposed legislation spicifies who may banish, without first addressing which transgressions merit banishment or what person or entity has prosecutorial authority in such criminal cases. I'll grant that the Defense of the Republic Act has some of the same vagueness. However, I worry that without these clarifications, a court of common jurisdiction might banish someone for any old reason.[/quote:8uvyujjt]

The problem is that there is no realistic alternative as far as our small community is concerned. The only way of defining in advance what conduct is capable of leading to legal penalty is to draft in advance a vast and fully comprehensive code of laws, covering every possible eventuality in which it would be desirable to punish somebody. That would be a gargantuan undertaking for even a fully-established real-world government, and would be utterly impossible for a tiny community such as we are.

That is why we favoured a common law system, as grew up in many real-world jurisdictions, such as England, where cases were decided on the basis of precedents set in earlier cases. Even to-day in England, for example, there is no legislation prohibiting murder or false imprisonment: only old decided cases that set precedents many hundreds of years in the past.

The point is that, whilst, at the very beginning, things may be uncertain, as there will have been no cases decided, once a number of cases have gone through the courts, the precedents (which are, as you will notice in the constitution, of binding effect) will be set, and the law will be firm. The Representative Assembly will always have the power to pass legislation to reverse judicial precedent, make it clearer, or fill in the gaps in the law that has yet to be determined by a decided case.

I do accept that the sort of uncertainty with which we will start is less than ideal - however, there really is no viable alternative. If we have spent two months arguing about the details of just the most basic outline structure of the judiciary, then we will be here until we are all drawing our pensions if we try to draft in advance a comprehensive code of laws. Given that the common law system that I propose is no worse than our existing system (which does not even have a constitutional provision requiring that precedents be binding, and where people can be banished without any sort of trial at all, or the right to make any representations), we would do well to pass the Judiciary Bill first, and then afterwards consider whether we want to declare by legislation that certain sorts of conduct should or should not be capable of warranting banishment.

[quote:8uvyujjt]Now impeachment :

The proposed Article VII, Section 18 states:

[quote:8uvyujjt]18. The Court of Common Jurisdiction shall not have the power to hold any impeachment hearing, or to order that any public official who holds office in the Confederation of Democratic Simulators (whether a Judge of Common Jurisdiction, the Chancellor, a member of the Representative Assembly, a member of the Scientific Council, a member of the Artisanal Collective, or other such body, or otherwise) cease to hold or be disqualified from holding such public office, or be suspended therefrom, whether with or without pay. [/quote:8uvyujjt]

But a proposed addition to Article III, section 8 states:

[quote:8uvyujjt]4. Subject to Article IV, Sections 2 and 7 of this Constitution, nothing in this Constitution shall prevent a Court of Common Jurisdiction from banishing any person, even where that person is a holder of public office in the Confederation of Democratic Simulators, and banishment would preclude that person from continuing to hold such public office. [/quote:8uvyujjt]

I undertstand the intent is that public officials shall have no immunity from the law, but it seems that a court of common jurisdiction could, by convicting a public official and banishing him or her, create a state of de facto impeachment contrary in effect to the previously quoted provision. If the latter is approved as is, does the former have any meaning in fact? This is an especially important question given the relative lack of clear banishment standards.[/quote:8uvyujjt]

There will inevitably be an overlap between the powers of a court that may banish, and a court that may impeach if the two are separate. Remember, the Court of Scientific Council will not have the power to banish anybody for anything at all. If a person who is not a public official can be banned for a certain sort of misconduct, why should a public official be in a better position as a result of being a public official?

The reasoning behind the prohibition on Courts of Common Jurisdiction conducting real impeachment hearings is that the sort of thing that would justify a holder of public office being impeached would be a far wider sort of thing than would justify that person being banished. Banishment would be the most serious punishment, reserved for the most serious culpable misconduct. Impeachment can be brought for something as trivial as fiscal imprudence, which would not even suffice for [i:8uvyujjt]any[/i:8uvyujjt] sort of penalty against somebody other than a government official, but a government official could nonetheless be removed from office and disqualified from holding public office if he or she was sufficiently fiscally imprudent. Things that justify impeachment but not banishment are things of special constitutional importance, and are thus matters within the purview of the Court of Scientific Council. Things justifying banishment do not acquire any greater constitutional significance such as to mean that the Court of Scientific Council, instead of a Court of Common Jurisdiction, must decide the matter merely because the person to be banished is a public official: the things that the court has to decide are in that case the same as in any case where the person is not a public official.

The point is that Courts of Common Jurisdiction, when exercising their penal powers, will deal with [i:8uvyujjt]general[/i:8uvyujjt] misconduct, i.e. misconduct that is treated in exactly the same way whether the person in question is a holder of public office or not. Impeachment, on the other hand, is a special kind of action brought against a holder of public office for doing something which, while not amounting to general culpable misconduct, does amount to an improper use of public office, and justifies a sanction that would not be justified in the case of a person who does not hold public office. That special function has been entrusted to the Court of Scientific Council under my proposals because the [i:8uvyujjt]kind[/i:8uvyujjt] of decision that the court will have to take in those cases is inherently constitutional in a way that questions of banishment for general culpable misconduct is not. One must separate the constitutional significance of the [i:8uvyujjt]basis[/i:8uvyujjt] of the court's decision (which is the basis for giving the Court of Scientific Council special impeachment powers) and the governmental significance of the [i:8uvyujjt]effects[/i:8uvyujjt] of the court's decision, which is purely incidental.

There is, therefore, meaning in the provision that only the Court of Scientific Council can conduct impeachment proceedings, because only the Court of Scientific Council will have the power to remove or disqualify a person from holding public office on grounds that apply only to holders of pulbic office. Courts of Common Jurisdiction can only banish holders of public office for conduct that would be sufficient for banishment even if it were performed by somebody other than a holder of public office.

[Fernando Book]

So, Ashcroft, if I understand you,
[list:1grly51c]
[*:1grly51c]If a judge is accused of, say, "delivering frequent judgments againts the NFS Constitution", it would be an impeachment case and it would fall under the Scientific Council jurisdiction.[/*1grly51c]
[*:1grly51c]If a judge is accused of, say, commercial fraud (not related with his duty as judge), it would fall under the Common Jurisdiction, and the removal from the office would be an added penalty to the main one (given the penalty wasn't a permanent banishment).[/*1grly51c][/list:u:1grly51c]
Or do we need, in the second case, a separate impeachment hearing? As I read VII, 2 (k) we can't remove a judge on this grounds, but perhaps it's a question of precedents.

[Publius Crabgrass]

I have been following this discussion from afar (western US) but feel I’ve gotta jump in as I’ve been thinking of joining y’all soon.

Ashcroft Burnham wrote:

[quote]“One must separate the constitutional significance of the basis of the court's decision (which is the basis for giving the Court of Scientific Council special impeachment powers) and the governmental significance of the effects of the court's decision, which is purely incidental.â€

[Ashcroft Burnham]

[quote="Fernando Book":2t9a4c03]So, Ashcroft, if I understand you,
[list:2t9a4c03]
[*:2t9a4c03]If a judge is accused of, say, "delivering frequent judgments againts the NFS Constitution", it would be an impeachment case and it would fall under the Scientific Council jurisdiction.[/quote:2t9a4c03]

If the conduct was such as to "bring the judiciary of the Confederation of the Democratic Simulators into serious disrepute", then yes. But any such allegation (based on the judge's actual decision in cases) should only succeed in the most extreme circumstances, given the importance of judicial independence. One would expect, for example, a high proportion of successful appeals in the Court of Scientific Council against that judge over a sustained period of time on important points before any such thing could lead to impeachment.

[quote:2t9a4c03][/*2t9a4c03][*:2t9a4c03]If a judge is accused of, say, commercial fraud (not related with his duty as judge), it would fall under the Common Jurisdiction, and the removal from the office would be an added penalty to the main one (given the penalty wasn't a permanent banishment).[/*2t9a4c03][/list:u:2t9a4c03]
Or do we need, in the second case, a separate impeachment hearing? As I read VII, 2 (k) we can't remove a judge on this grounds, but perhaps it's a question of precedents.[/quote:2t9a4c03]

That would depend on the circumstnaces. If the judge is not banished at all, then the finding against her or him in the Court of Common Jurisdiction for commercial fraud would not automatically remove the judge from office: there would have to be separate impeachment proceedings alleging that the fact of a court finding against the judge for commercial fraud means that the judge has engaged in conduct tending to bring the judiciary of the Confederation of Democratic Simulators into serious disrepute.

If, however, the judge was banished for any length of time, then, because the judge would not be able to discharge her or his duties while banished, he or she could be impeached for gross dereliction of duty, which would not have to be sustained for 28 days, because, the court having found the judge culpable in order to have imposed a banishment, the dereliction of duty must be culpable.

Either way, a separate impeachment hearing would be necessary, but, in the latter case, it would be nothing more than a formality. In the former case, it could be argued (less so, probably, in the case of fraud, although lesser forms of misconduct might more yield to such a point) that the misconduct in respect of which the judge has been found culpable is not serious enough of itself to bring the reputation of the judiciary of the Confederation of Democratic Simulators into serious disrepute. That argument should be able to succeed in sufficiently minor cases, but, in your example (commercial fraud), would probably not, because of the dishonesty involved.

[Ashcroft Burnham]

[quote="Publius Crabgrass":3jt6tg2m]I have been following this discussion from afar (western US) but feel I’ve gotta jump in as I’ve been thinking of joining y’all soon.[/quote:3jt6tg2m]

Excellent! The more, the merrier.

[quote]This precise mistake was the basis of one of the most monumentally erroneous judicial predictions of all time by the US Supreme Court in Clinton v. Jones. [For those from outside the US or US folks with short memories, Bill C was sued by Jones alleging sex discrimination, and Jones said Bill lied in denying he exposed the presidential – then gubernatorial – member to her. Jones wanted her case to continue, including depositions]. Anyways, the Supremes decided in 1997 that Jones’ suit could continue while Bill was in office, with Justice Stevens opinion allowing to let Jones pursue her case against a sitting President: “If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of [Bill C’s] time.â€

[Ashcroft Burnham]

[b:2nm7ng3s][u:2nm7ng3s]Getting the details right[/u:2nm7ng3s][/b:2nm7ng3s]

I understand from Pelanor that "[i:2nm7ng3s] [The Representative Assembly is] going to pass your bill with 3 small amendments. The first requires that the 2 positions not be held be a single person. The second uses Moon's proposal, and the third distills Gwyn's comments on the ADR.[/i:2nm7ng3s]"

I have already seen Moon's proposal in the forums, and commented on it there. I do not know what Gwyn has said about alternative dispute resolution. The second of the three amendments is simple.

Those familliar with this debate will already know my positions on many of the points. However, I am as keen as everyone else to get this bill passed, hopefully unanimously. As many of you will have worked out by now, I am a perfectionist, not because I believe in doing things unnecessarily stringently, but because, as far as the law is concerned, at least, doing things stringently is necessary.

For that reason, and, in particular, having read the way in which Moon's amendment was drafted, I am concerned that any amendments might be drafted in such a way as to make the conceptual framework and/or practical operation of certain important aspects of the judiciary unclear and unworkable. That is no criticism of Moon: she does not have, as far as I am aware, any formal training in the law, and, if I remember correctly, English is not even her first language (although one would never tell by the way that she writes on the forums or talks in world). Indeed, the substance of the ideas in Moon's proposal are, in many respects, quite ingenious: separating qualification and appointment, and having a code of judicial ethics are two particularly excellent ideas that she has put forward.

Nevertheless, I am concerned about the way in which the amendments are drafted, not least because it is very unclear how those proposals would fit in with the existing structure that I set out in the Judiciary Bill. What I have done, therefore, is to prepare a full new draft of the Judiciary Bill, incorporating the substance of Moon's amendments, but in a way that integrates much better with the existing Judiciary Bill. Having a single, integrated bill will also make it far easier for those who have to record what the RA has decided. At the same time, I have also incorporated changes to give effect to the other two amendments that Pelanor told me would be made to my bill, so that, hopefully, the complete version that I submit below, and not the 19th of September version plus some pieces of amendment text, is passed.

I hope that I have worded my version such that it is so close in substance to what was originally proposed that it will be treated as a friendly amendment to Moon's, Justice's and Gwyn's amendments and will not, therefore, fall foul of the notice requirement for Bills being submitted to the RA.

I will post below the full text of the latest version, but first I will set out the changes that I have made in the wording of the bill so that all can see that it has, in so far as was possible whilst retaining a coherent structure, the same substance as was evidently intended for the amendments. I am in some difficulty in respect of Gwyn's ADR proposal because I have not seen it, but I hope that what I suggest here will be sufficiently flexibile to allow the substane of whatever she suggested to be implimented.

[b:2nm7ng3s]How I have implimented the amendments proposed in respect of the Chair of the Judiciary Commission and judicial selection[/b:2nm7ng3s]

The part about removing the section prohibiting the Chair of the Judiciary Commission and the Chief Judge of Common Jurisdiction to be the same person is trivial, of course: in my version, I just replace that section with a section that impliments Moon's proposal.

That section reads as follows:

[quote="The latest Judiciary Bill":2nm7ng3s]4. There shall be a Board of the Judiciary Commission, which shall consist of seven or fewer Judges of Common Jurisdiction (to be appointed by election amongst all Judges of Common Jurisdiction in accordance with any procedure determined in accordance with Section 2 (a) above if there are more than seven Judges of Common Jurisdiction), and which shall have the power: –

(a) to draft and publish a Code of Judicial Ethics, by which all Judges of Common Jurisdiction must abide;

(b) to determine the procedures by which the Code of Judicial Ethics may be enforced;

(c) (i) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so, and (ii) to appoint a member of the Board of the Judiciary Commission to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(d) to determine and publish a set of requirements of professional judicial ability that any person must meet before he or she may be appointed as a Judge of Common Jurisdiction;

(e) to determine and administer (or delegate the administration of) procedures whereby whether any applicant for judicial office meets the requirements determined in accordance with paragraph (b) above meets those requirements is determined, and publish the results of such determinations;

(f) to determine which Judge of Common Jurisdiction shall be the Chief Judge of Common Jurisdiction (who, once appointed as Chief Judge, shall remain as Chief Judge until resignation, successful impeachment or a formal declaration that he or she no longer wishes to be the Chief Judge); and

(g) to determine and publish internal procedures for discharging any of its powers.[/quote:2nm7ng3s]

The power of the Chair of the Judiciary Commission to appoint the Chief Judge of Common Jurisdiction is replaced with:

[quote:2nm7ng3s]2. The chair of the Judiciary Commission shall have the power: –

(a) to determine procedures by which Judges of Common Jurisdiction may be elected to the Board of the Judiciary Commission...[/quote:2nm7ng3s]

I call what Moon called the "Judiciary Commission" the "Board of the Judiciary Commission" because the Judiciary Commission is a body already defined in the Bill as having other functions, namely the administration of the judiciary.

I adopt, however, the substance of Moon's proposal, which was, in effect, to give a collective of judges of common jurisdiction the power to determine who shall be qualified to be a Judge of Common Jurisdiction, rather than giving the Chief Judge the power to appoint judges. I also adopt the idea of a code of ethics, and the requirement that it, the qualification requirements, and the persons who are qualified be published. I have not included the part about requiring qualification examinations to be held every term, since it may not be every term that a vacancy in the judiciary arises, and I am mindful of not having to expend unnecessary resources. I have changed slightly the part about discliplinary processes, so that, instead of just removing a judge itself, the Board would have to bring impeachment proceedings before the Court of Scientific Council to impeach a judge to remove her or him, but I have added as a ground of impeachment a "serious breach of the Code of Judicial Ethics", which should again preserve the substance of Moon's intention on the point.

Also, for completeness, Moon's amendment did not formally delete the section in my Bill that gave the Chair of the Judiciary Commission the power to appoint the Chief Judge, and the Chief Judge the power to appoint other judges; this latest version of my bill does so delete (see above).

Additionally, Moon's proposal contained no means of choosing who was to be the Chief Judge of Common Jurisdiction: I resolve that by letting the Board decide that question by a vote: the Chief Judge can be considered, therefore, a sort of first amongst equals.

I also hope that my specific provisions about the size of the Board make the system sufficiently scaleable, since, if all Judges of Common Jurisdiction were to be members of the Board, no matter how many such judges that there were ever to be, it might become horribly uneweildy, and unable to carry out its functions effectively if there were a great many judges.

Furthermore, I always understood that Moon's proposal was that, once qualified by what I call the Board, the Representative Assembly would choose whom to appoint. This was not actually in the text of Moon's proposal. What I have envisaged is slighly more sophisticated than that; it is that there be a special body called the Public Judiciary Scrutiny Panel, which is comprised of 3-5 people elected every term. They must not belong to political factions, and their only job will be to oversee the judiciary (and thus the workload should be quite light). Whenever a judicial vacancy arose, they would decide who to appoint as judge from the list of qualified candidates drawn up by the Board. If and when a time arises where there are fewer than 3 members of the PJSP, the Representative Assembly may do the appointing instead.

The benefit of this is that it uniquely combines a substantial [i:2nm7ng3s]popular[/i:2nm7ng3s] input into the selection of judges, whilst at the same time ensuring that the selection process is completely [i:2nm7ng3s]apolitical[/i:2nm7ng3s]. That is acheived by having people elected just to oversee the judiciary, and not allowing them to belong to a political faction. To meet any concern that, if there are not enough people to fill the roles, the system will grind to a halt, the Representative Assembly may do the appointing when there are fewer than three members. That would, in practice, mean that the Representative Assembly would make the first appointment. Also, to prevent a deadlock arising when there are no Judges of Common Jurisdiction to sit on the Board, the Scientific Council has the power to qualify judges when, and only when, there are at any given time no Judges of Common Jurisdiction in the CDS. Furthermore, the PJSP has a number of ancillary functions, including the investigation of complaints into the judiciary, and the publication of reports in respect of such complaints.

I set out the wording in the latest bill here:

[quote="The Judiciary Bill":2nm7ng3s]19. There shall be a Public Judicial Scrutiny Panel consisting of between three and five members (not being members of, or affiliated with, any political faction in the Confederation of Democratic Simulators), who shall be appointed by popular election at the same time as elections for the Representative Assembly are held, and, additionally, whenever there are fewer than three members, which shall have the power: –

(a) to determine who, of those persons whom the Board of the Judiciary Commission determines as qualified to hold office as Judge of Common Jurisdiction in accordance with Section 4(d) and (e) above, shall be appointed as Judges of Common Jurisdiction;

(b) to investigate any complaint made by any citizen of the Confederation of Democratic Simulators, or any litigant in any court in the Confederation of Democratic Simulators, about the quality of service provided by that court and publish findings and recommendations (if any) in respect of such complaints;

(c) to investigate, other than in response to a complaint, the performance and quality of service of the Courts of Common Jurisdiction and Court of Scientific Council, and to publish the findings of such an investigation, and recommendations (if any) in respect thereof;

(d) in pursuance of its powers under paragraphs (b) and (c) above, to call before it in open session the Chair of the Judiciary Commission or any Judge of Common Jurisdiction to answer questions about the quality of service provided in any Court of Common Jurisdiction, provided that no question shall be asked, and, if asked, no Judge of Common Jurisdiction shall be required to answer any question, concerning a decision of any contested question of law or fact in any case before any Court of Common Jurisdiction;

(e) in pursuance of its powers under paragraph (b) above, to call before it any member of the Scientific Council to answer questions about the quality of service provided in the Court of Scientific Council, provided that no question shall be asked, and, if asked, no member of the Scientific Council shall be required to answer any question, concerning a decision of any contested question of law or fact in any case before the Court of Scientific Council;

(f) (i) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so, and (ii) to appoint a member of the Public Judiciary Scrutiny Panel to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(g) (i) to commence impeachment proceedings against the any member of the Scientific Council before the Court of Scientific Council, on the grounds of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption, insanity, or any other conduct tending to bring the Scientific Council into serious disrepute, but only, in respect of each of those grounds, where they relate to proceedings before the Court of Scientific Council, and (ii) to appoint a member of the Public Judiciary Scrutiny Panel to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(h) to provide or procure from any suitable provider alternative dispute resolution services for litigants or prospective litigants in any court in the Confederation of Democratic Simulators; and

(i) to regulate its own internal procedures for the purposes of discharging its powers.

20. When there are fewer than three members of the Public Judiciary Scrutiny Panel, and a vacancy for a Judge of Common Jurisdiction arises, the Representative Assembly may exercise, in lieu of the Public Judiciary Scrutiny Panel, the power set out under Section 19, paragraph (a) above.

21. When there are fewer than three members of the Public Judiciary Scrutiny Panel, the Representative Assembly may exercise the power set out under Section 19, paragraph (h) above (but only in respect of procurement and not provision of alternative dispute resolution services) if there are no existing arrangements for alternative dispute resolution in place, or the existing arrangements are inadequate.[/quote:2nm7ng3s]

And also:

[quote:2nm7ng3s]4. At any time when no Judges of Common Jurisdiction hold office in the Confederation of Democratic Simulators, the Scientific Council may determine and publish who shall be qualified to be a Judge of Common Jurisdiction, and that determination shall be deemed to be a determination in accordance with Article VII, Section 4, paragraphs (d) and (e).[/quote:2nm7ng3s]

For completeness, and to avoid redundancy, I have removed the provisions whereby the SC or the Judiciary Commission can veto the appointment of judges, as the checks and balances in the appointments process is now dealt with using the sophisticated two stage process of qualification and appointment.

[b:2nm7ng3s]Alternative Dispute Resolution[/b:2nm7ng3s]

It will also be noticed from the above that the Public Judiciary Scrutiny Panel has the power to provide or procure ADR servics. This is intended to be a more flexible approach than is currently in the constiution, which [i:2nm7ng3s]requires[/i:2nm7ng3s] the Scientific Council, and only the Scientific Council, to provide ADR.

As with judicial appointments, if there are not enough people on the PJSP, the Representative Assembly may procure for litigants ADR services, which would, I suppose, include procuring them from the Scientific Council, although I would suggest that there are better ways of doing it than that.

Since I do not know exactly what Gwyn's comments on ADR were that were supposed to be the basis o the amendment in question, I cannot be sure that what I propose exactly covers it, however, since I am proposing something that is deliberately flexible, I think that it would be unlikely that Gwyn's idea (whatever it was) would not be able to be acommodated by what the RA or PJSP would procure or provide.

[b:2nm7ng3s]Example of judicial appointments in action[/b:2nm7ng3s]

On another thread, Pelanor suggested that things might be easier to understand if I were to provide an example of how the judicial selection process might work. I do so here, using my above system.

1. The Chair of the Judiciary Commission, one of whose functions is to make sure that the overall capacity of the judiciary is adequate, decides that there needs to be another judge to deal with an increased workload of cases.

2. The Board of the Judiciary Commission meets and decides how to advertise the vacancy.

3. People respond to the advertisements, and apply to become judges.

4. The Board of the Judiciary Commission subjects the applicants to the procedures that it has already determined for judicial qualification.

5. A list of all the people who qualify according to those procedures is published and passed to the Public Judiciary Scrutiny Panel.

6. The Public Judiciary Scrutiny Panel* uses the procedure that it had already designed for the purpose to choose who to appoint as a judge.

7. That judge is sworn in and officially takes office.

* If the Public Judiciary Scrutiny Panel has fewer than 3 members, the RA carries out step 6 instead.

[b:2nm7ng3s]Conclusion[/b:2nm7ng3s]

Since this post is long, I will post the text of the new Bill in a new post on this thread.

I do hope that it is appreciated that what I propose is not an attempt to undermine the agreement that has been reached, nor an exercise in mindless pedantry, but an attempt to make the substance of what the members of the RA seem to have agreed workable in practice and fit with the structure of the Bill.

I therefore urge the proponents of the three amendments listed by Pelanor above to accept as friendly amendments to those amendments what I have set out in this latest draft of the Judiciary Bill, and thereafter to vote in favour of this latest version in its entirety.

If, contrary to what I very much hope, anybody is dissatisfied with what I propose, I strongly urge any such person to make a precisely-worded amendment [i:2nm7ng3s]to[/i:2nm7ng3s] this latest version, rather than rejecting it in its entirety, and voting in favour of the 19th of September version with the original amendments. I will be available to change the wording of this version if need be right up until the meeting to-morrow: just PM me on the forum or IM me in world, or post a message on this thread.

Thank you to all those who have made much effort to reach agreement on this Bill, and thank you in particular to Pelanor for working so hard to broker such an agreement; I hope that, with this latest version, we can acheive something that is both coherent and acceptable to all.

[Ashcroft Burnham]

[b:3vpn0f98]The Judiciary Bill
[i:3vpn0f98]29 Sep. 2006 version[/i:3vpn0f98][/b:3vpn0f98]

[i:3vpn0f98]A Bill to make provision for a professional judiciary, judicial procedure, to reform citizenship rights and duties with respect thereto, to make provisions for marshals of the peace, and to make repeals and consequential amendments to the Constitution and certain Acts of the Representative Assembly, as well as to make provisions for bringing official documents in line with the recent change of name to "The Confederation of Democratic Simulators"[/i:3vpn0f98].

[b:3vpn0f98]Chapter I - the Judiciary Commission and the Common Jurisdiction[/b:3vpn0f98]

1. The following section shall be inserted at the end of the Constitution, but before the table of amendments: –

***

[b:3vpn0f98]Article VII - The Judiciary[/b:3vpn0f98]

1. There shall be a Judiciary Commission, the chair of which shall be appointed by simple majority vote in the Scientific Council as soon as is practicable after a vacancy arises, and who shall hold office until resignation or successful impeachment, whichever is sooner.

2. The chair of the Judiciary Commission shall have the power: –

(a) to determine procedures by which Judges of Common Jurisdiction may be elected to the Board of the Judiciary Commission;

(b) to determine the total number of Judges of Common Jurisdiction who shall hold office at any given time, who shall each hold office until resignation or successful impeachment, whichever is sooner;

(c) subject to any duly ratified Act of the Representative Assembly, and the exercise of any authority delegated thereby, and subject to any contrary proclamation of the Chancellor, to commission and, once commissioned, maintain and administer as many court-houses as the chair shall deem appropriate, for the purposes of holding trials and other judicial hearings, and any other purposes as the chair shall deem appropriate, provided always that neither the Representative Assembly or the Chancellor individually or between shall prohibit the commissioning, construction, maintenance and continued existence and use of at least one court-house;

(d) to expend any monies held by the Judiciary Commission for any purposes connected with the discharge of any of the functions of the Judiciary Commission;

(e) subject to Section 5 below, to employ, for valuable remuneration or otherwise, such deputies and officers, and to delegate to them such functions, as the chair shall deem appropriate;

(f) to provide, or arrange to have provided, advice to citizens who may submit bills to the Representative Assembly, or any official, or delegate of that official, charged with drafting or approving regulations under powers delegated to her or him by the Constitution or any duly ratified Act of the Representative Assembly, concerning the drafting of such legislation or regulations, provided always that the Judiciary Commission shall not provide advice as to the desirability of any policy objective of such legislation or regulations;

(g) to publicise, both within the Confederation of Democratic Simulators, and elsewhere, the judicial system of the Confederation of Democratic Simulators, or publicise the Confederation of Democratic Simulators (or any geographic subset thereof) by publicising its judicial system;

(h) to provide, and oversee the provision by others of, education concerning the law and legal system of the Confederation of Democratic Simulators, and to issue, or regulate the issue of, qualifications in respect thereof;

(i) to provide advice to other governments and similar institutions in SecondLife and other such virtual worlds concerning the establishment and development of judicial systems therein;

(j) to maintain and publicise a record of all judicial proceedings, precedents and other public official judicial documents, not being documents relating to judicial proceedings in the Scientific Council; and

(k) to bring impeachment proceedings against any Judge of Common Jurisdiction, on the grounds only of either or both of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption, insanity, serious breach of the Code for Judicial Ethics, or any other conduct tending to bring the judiciary of the Confederation of Democratic Simulators into serious disrepute.

3. Even when not sitting as a Judge of Common Jurisdiction in an individual case or cases, the Chief Judge of Common Jurisdiction shall have the power: –

(a) to determine which Judges of Common Jurisdiction shall hear which cases, or parts thereof;

(b) to issue general directions concerning procedure in Courts of Common Jurisdiction;

(c) to determine which Courts of Common Jurisdiction shall be superior, and which inferior; and

(d) to bring impeachment proceedings against the Chair of the Judiciary Commission or any other Judge of Common Jurisdiction, on the grounds only of either or both of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption, insanity, serious breach of the Code for Judicial Ethics or any other conduct tending to bring the judiciary of the Confederation of Democratic Simulators into serious disrepute, or additionally, in the case of the Chair of the Judiciary Commission, either or both of (i) gross incompetence; or (ii) gross fiscal imprudence.

4. There shall be a Board of the Judiciary Commission, which shall consist of seven or fewer Judges of Common Jurisdiction (to be appointed by election amongst all Judges of Common Jurisdiction in accordance with any procedure determined in accordance with Section 2 (a) above if there are more than seven Judges of Common Jurisdiction), and which shall have the power: –

(a) to draft and publish a Code of Judicial Ethics, by which all Judges of Common Jurisdiction must abide;

(b) to determine the procedures by which the Code of Judicial Ethics may be enforced;

(c) (i) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so, and (ii) to appoint a member of the Board of the Judiciary Commission to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(d) to determine and publish a set of requirements of professional judicial ability that any person must meet before he or she may be appointed as a Judge of Common Jurisdiction;

(e) to determine and administer (or delegate the administration of) procedures whereby whether any applicant for judicial office meets the requirements determined in accordance with paragraph (b) above meets those requirements is determined, and publish the results of such determinations;

(f) to determine which Judge of Common Jurisdiction shall be the Chief Judge of Common Jurisdiction (who, once appointed as Chief Judge, shall remain as Chief Judge until resignation, successful impeachment or a formal declaration that he or she no longer wishes to be the Chief Judge); and

(g) to determine and publish internal procedures for discharging any of its powers.

5. Subject to Section 8 below, only Judges of Common Jurisdiction shall preside over proceedings in any trial or other hearing, or deliver any judgment as to the law in any Court of Common Jurisdiction, or otherwise exercise any of the powers of any Court of Common Jurisdiction, save for those powers exercisable by juries, and any power, not exercised during the course of a trial or other hearing, deemed by any Judge of Common Jurisdiction to be administrative in nature, providing always that any party to such proceedings may appeal to a Judge of Common Jurisdiction from any such administrative decision.

6. Subject to Section 8 below, only Judges of Common Jurisdiction or juries empanelled in accordance with law shall deliver any judgment or verdict as to any question of fact in any trial or hearing in any Court of Common Jurisdiction.

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.

9. Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution, Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on a disputed matter between two or more parties (who must be residents of SecondLife or bodies corporate, including states, recognised as such by the law of the Confederation of Democratic Simulators, but who need not be citizens of the Confederation of Democratic Simulators): –

(a) to make binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators;

(b) to make binding determinations of any facts in dispute between any or all such parties, provided that making such determinations are necessary in order to make such a determination as mentioned in paragraph (a) above, or (c) below;

(c) subject to either (i) a party formally accepting, or (ii) a court finding as a fact at a trial held in accordance with law that a party's conduct is culpable, to impose upon that party in respect of that conduct any penalty, including, but not limited to, banishment from any or all territory of the Confederation of Democratic Simulators, either permanently or for such shorter period as shall be specified by the court, and forfeiture of any SecondLife asset (including debts and other such duties owed thereto), either immediately or suspended on such conditions as the court may prescribe;

(d) to make any non-penal orders such as to give effect to the rights, duties, powers, privileges, immunities, liabilities and disabilities of any party according to the law of the Confederation of Democratic Simulators, including any law relating to judicial procedure, or any other person or body on behalf of whom any party makes any claim, or to give effect to any penalty imposed by any Court of Common Jurisdiction in accordance with paragraph (c) above; and

(e) to order that any person be removed from the court-house at which any trial or any other hearing is being held, or, if he or she refuses so to be removed, banished from the Confederation of Democratic Simulators for the duration of that trial or other hearing (and for up to one hour thereafter) on the ground that that person is disrupting court proceedings, improperly interfering with the administration of justice, or attempting to do so.

10. All trials and other hearings in any Court of Common Jurisdiction shall be held in public, and, subject to section 9(e) above and 11 below, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings, a full transcript of which shall be made available to the public at large in perpetuity and without charge.

11. Section 10 above is subject to any rule of law whereby a person who is to be a witness in any judicial proceedings may be excluded from those proceedings, and prohibited from receiving information about the course of those proceedings, until he or she has completed giving her or his evidence, provided always that, at the conclusion of the proceedings, any such person shall have the opportunity to access a full transcript of the whole of the proceedings.

12. When making any binding determination of the rights, duties, powers, privileges, immunities, liabilities and disabilities according to the law of the Confederation of Democratic Simulators of any parties in any proceedings in any Court of Common Jurisdiction, Judges of Common Jurisdiction shall be bound by the following sources of law, each item in the following list
taking precedence over each subsequent item: –

(a) the Constitution (as interpreted by any judgment of the Scientific Council sitting as a court, or of the Scientific Council in any capacity before the passing of the [b:3vpn0f98]Judiciary Act[/b:3vpn0f98] that sets a precedent);

(b) any duly ratified Act of the Representative Assembly;

(c) any regulations made under any powers delegated, whether directly or indirectly, by any duly ratified Act of the Representative Assembly;

(d) any judgment of the Scientific Council sitting as a court (or of the Scientific Council in any capacity before the passing of the [b:3vpn0f98]Judiciary Act[/b:3vpn0f98]) that establishes a precedent;

(e) any judgment of any superior Court of Common Jurisdiction that establishes a precedent;

(f) any judgment of any Court of Common Jurisdiction of equal superiority that establishes a precedent; and

(g) any directions or rules issued under Section 3 (c) above,

and where a judgment of the Scientific Council sitting as a court, or any Court of Common Jurisdiction, establishes a precedent as to whether any regulations of the sort mentioned in paragraph (c) above are made in accordance with, or conflict with, any duly ratified Act of the Representative Assembly, that shall take precedence over any contrary regulations.

13. A judgment establishes a precedent where, in order to determine the outcome of the proceedings in respect of which the judgment, or any part thereof, was given the judge or judges who determined such an outcome (and, if, where more than one judge so determines, they disagree, a simple majority of them) reach any conclusion or conclusions regarding the law of the Confederation of Democratic Simulators, that conclusion, and the reasoning used in reaching that conclusion, being the precedent set thereby.

14. A Judge of Common Jurisdiction, when delivering any judgment in any proceedings, or part thereof, in any Court of Common Jurisdiction, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

15. Nothing in this Constitution shall preclude any procedure whereby a party to proceedings in any inferior Court of Common Jurisdiction may appeal the outcome of such proceedings to any superior Court of Common Jurisdiction, which may allow or dismiss such an appeal in whole or in part.

16. Any Resident of SecondLife, or any body corporate (including any state) recognised by the law of the Confederation of Democratic Simulators, whether or not a citizen of the Confederation of Democratic Simulators, shall be entitled to commence proceedings to resolve any dispute capable of being resolved in accordance with the law of the Confederation of Democratic Simulators, in a Court of Common Jurisdiction.

17. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings.

18. The Court of Common Jurisdiction shall not have the power to hold any impeachment hearing, or to order that any public official who holds office in the Confederation of Democratic Simulators (whether a Judge of Common Jurisdiction, the Chancellor, a member of the Representative Assembly, a member of the Scientific Council, a member of the Artisanal Collective, or other such body, or otherwise) cease to hold or be disqualified from holding such public office, or be suspended therefrom, whether with or without pay.

19. There shall be a Public Judicial Scrutiny Panel consisting of between three and five members (not being members of, or affiliated with, any political faction in the Confederation of Democratic Simulators), who shall be appointed by popular election at the same time as elections for the Representative Assembly are held, and, additionally, whenever there are fewer than three members, which shall have the power: –

(a) to determine who, of those persons whom the Board of the Judiciary Commission determines as qualified to hold office as Judge of Common Jurisdiction in accordance with Section 4(d) and (e) above, shall be appointed as Judges of Common Jurisdiction;

(b) to investigate any complaint made by any citizen of the Confederation of Democratic Simulators, or any litigant in any court in the Confederation of Democratic Simulators, about the quality of service provided by that court and publish findings and recommendations (if any) in respect of such complaints;

(c) to investigate, other than in response to a complaint, the performance and quality of service of the Courts of Common Jurisdiction and Court of Scientific Council, and to publish the findings of such an investigation, and recommendations (if any) in respect thereof;

(d) in pursuance of its powers under paragraphs (b) and (c) above, to call before it in open session the Chair of the Judiciary Commission or any Judge of Common Jurisdiction to answer questions about the quality of service provided in any Court of Common Jurisdiction, provided that no question shall be asked, and, if asked, no Judge of Common Jurisdiction shall be required to answer any question, concerning a decision of any contested question of law or fact in any case before any Court of Common Jurisdiction;

(e) in pursuance of its powers under paragraph (b) above, to call before it any member of the Scientific Council to answer questions about the quality of service provided in the Court of Scientific Council, provided that no question shall be asked, and, if asked, no member of the Scientific Council shall be required to answer any question, concerning a decision of any contested question of law or fact in any case before the Court of Scientific Council;

(f) (i) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so, and (ii) to appoint a member of the Public Judiciary Scrutiny Panel to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(g) (i) to commence impeachment proceedings against the any member of the Scientific Council before the Court of Scientific Council, on the grounds of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption, insanity, or any other conduct tending to bring the Scientific Council into serious disrepute, but only, in respect of each of those grounds, where they relate to proceedings before the Court of Scientific Council, and (ii) to appoint a member of the Public Judiciary Scrutiny Panel to conduct those proceedings on behalf of the Board of the Judiciary Commission before the Court of Scientific Council;

(h) to provide or procure from any suitable provider alternative dispute resolution services for litigants or prospective litigants in any court in the Confederation of Democratic Simulators; and

(i) to regulate its own internal procedures for the purposes of discharging its powers.

20. When there are fewer than three members of the Public Judiciary Scrutiny Panel, and a vacancy for a Judge of Common Jurisdiction arises, the Representative Assembly may exercise, in lieu of the Public Judiciary Scrutiny Panel, the power set out under Section 19, paragraph (a) above.

21. When there are fewer than three members of the Public Judiciary Scrutiny Panel, the Representative Assembly may exercise the power set out under Section 19, paragraph (h) above (but only in respect of procurement and not provision of alternative dispute resolution services) if there are no existing arrangements for alternative dispute resolution in place, or the existing arrangements are inadequate.

***

2. The following sections of the Constitution shall be repealed: –

(a) Article III, Section 6, apart from the first sentence thereof ([i:3vpn0f98]Scientific Council - Hearings, Trials and Ratifications[/i:3vpn0f98]);

(b) Article III, Section 7 ([i:3vpn0f98]Scientific Council - Alternative Dispute Resolution[/i:3vpn0f98]), the whole section;

(c) Article III, Section 8 before the beginning of the sentence that starts, "In regard to ([i:3vpn0f98]sic[/i:3vpn0f98]) the Representative Branch" ([i:3vpn0f98]Powers of the Scientific Council[/i:3vpn0f98]),

and the title of Article III, Section 6 shall be changed to "Ratification of bills passed by the Representative Assembly".

3. The following part of the NL4-14 Registration and Incorporation Act shall be repealed: Article 2, Section 3 ([i:3vpn0f98]commercial court: constitution[/i:3vpn0f98]): the whole section, and any references in any part of that Act to the "Commercial Court" shall be taken as references to the Court of Common Jurisdiction, and any reference therein to any procedure before the Commercial Court shall be subject to any general directions issued by the Chief Judge of Common Jurisdiction under Article VII, Section 3 (c) of the Constitution.

4. The following shall be added to the Constitution immediately at the end of Article II, Section 4 ([i:3vpn0f98]Powers of the Artisanal Collective[/i:3vpn0f98]): –

***

With respect to the judiciary:

1. The Artisanal Collective may bring impeachment proceedings against the Chair of the Judiciary Commission on the ground of gross fiscal imprudence.

***

5. The following shall be added to the Constitution immediately at the end of Article I, Section 7 ([i:3vpn0f98]Powers of the Representative Assembly[/i:3vpn0f98]): –

***

1. The Representative Assembly may vote by simple majority: –

(a) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction (including the Chief Judge of Common Jurisdiction) before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so; and

(b) to appoint a member of the Representative Assembly to conduct those proceedings on behalf of the Representative Assembly before the Court of Scientific Council.

***

6. The Judiciary Commission shall have the power to serve upon any citizen of the Confederation of Democratic Simulators notice that that person is required to serve on a jury in a Court of Common Jurisdiction; any such person upon whom such notice has been served shall attend at the date and time set out in the notice, unless excused from so doing by a Judge of Common Jurisdiction after notice was served but before the date and time specified therein, and shall, unless excused from so doing by a Judge of Common Jurisdiction, duly serve as a juror, and act in accordance with all lawful directions of the Court.

[b:3vpn0f98]Chapter II - the Scientific Council[/b:3vpn0f98]

7. The following shall be inserted in the Constitution between Article III, Section 6 and Article III, Section 8:

***

[b:3vpn0f98]Section 7 - The Court of Scientific Council[/b:3vpn0f98]

1. The Scientific Council shall sit as a court when it exercises, or is considering whether to exercise, its power: –

(a) to impeach any person; or

(b) to allow any appeal from any Court of Common Jurisdiction.

2. When the Scientific Council sits as a court, it shall be known as "The Court of Scientific Council".

3. Subject to Section 6 below, when sitting as a court, the Scientific Council shall be presided over by an odd number of judges greater in number than one, each of whom shall be members of the Scientific Council, not also being Judges of Common Jurisdiction or the Chair of the Judiciary Commission.

4. The Dean of the Scientific Council shall determine which members of the Scientific Council sit as judges in any trial or other hearing before the Court of Scientific Council.

5. Where not all Judges of the Court of Scientific Council agree on a judgment in any proceedings before it, the judgment of the Court shall be that agreed upon by a simple majority of those judges presiding over those proceedings.

6. When any person bringing impeachment proceedings against any member of the Scientific Council so requires, the impeachment proceedings shall be presided over by one or more (and if more, and odd number of) Judges of Common Jurisdiction, not being members of the Scientific Council, who shall, for the purposes only of those proceedings, exercise all and only the powers exercisable by judges of the Court of Scientific Council.

7. The Scientific Council, when sitting as a court, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

8. All trials and other hearings before the Scientific Council when sitting as a court shall be held in public, and, subject to sections 9 and 10 below, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings.

9. The Court of Scientific Council shall have the same powers as Courts of Common Jurisdiction as is conferred by Article VII, section 9(e) of this Constitution ([i:3vpn0f98]persons misbehaving in court[/i:3vpn0f98]).

10. Section 8 above is subject to any rule of law whereby a person who is to be a witness in any judicial proceedings may be excluded from those proceedings, and prohibited from receiving information about the course of those proceedings, until he or she has completed giving her or his evidence, provided always that, at the conclusion of the proceedings, any such person shall have the opportunity to access a full transcript of the whole of the proceedings.

11. The Court of Scientific Council shall sit without a jury.

12. The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative Assembly.

13. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, the Court of Scientific Council shall have inherent jurisdiction to govern its own proceedings.

14. The Dean of the Scientific Council shall have the power to issue general directions concerning procedure in Scientific Council, when sitting as a court and otherwise, which shall, subject to any contrary provision in the Constitution or any duly ratified Act of the Representative Assembly, have the force of law.

***

8. The following shall be added to the Constitution immediately at the end of Article III, Section 8 ([i:3vpn0f98]Powers of the Scientific Council[/i:3vpn0f98]): –

***

[i:3vpn0f98]With respect to the judiciary[/i:3vpn0f98]:

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 outside its jurisdiction as conferred by the text of this Constitution; 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).

2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds: –

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators (except the common law with respect to the jurisdiction of the Courts of Common Jurisdiction);

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council.

3. The Scientific Council may vote by simple majority: –

(a) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction (including the Chief Judge of Common Jurisdiction) before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so; and

(b) to appoint a member of the Scientific Council to conduct those proceedings on behalf of the Scientific Council before the Court of Scientific Council.

4. At any time when no Judges of Common Jurisdiction hold office in the Confederation of Democratic Simulators, the Scientific Council may determine and publish who shall be qualified to be a Judge of Common Jurisdiction, and that determination shall be deemed to be a determination in accordance with Article VII, Section 4, paragraphs (d) and (e).

[i:3vpn0f98]Impeachment proceedings[/i:3vpn0f98]

1. Impeachment is an order that a holder of public office cease to hold such public office, or is suspended from such office for any time with or without pay, and/or is disqualified either permanently or for a term certain from holding any or all public office or offices.

2. A person may only be impeached by the Scientific Council, sitting as a court, following a trial in accordance with law.

3. Only persons (or persons acting on behalf of bodies) specified in the text of the Constitution shall have the power to commence impeachment proceedings.

4. Subject to Article IV, Sections 2 and 7 of this Constitution, nothing in this Constitution shall prevent a Court of Common Jurisdiction from banishing any person, even where that person is a holder of public office in the Confederation of Democratic Simulators, and banishment would preclude that person from continuing to hold such public office.

5. When a member of the Scientific Council brings impeachment proceedings, that person shall not sit as a judge of the Court of Scientific Council hearing those proceedings at any stage thereof.

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9. The following sections of the constitution shall be repealed: –

(a) Article I, Section 7 ([i:3vpn0f98]Powers of the Representative Assembly[/i:3vpn0f98]), the following text: (i) "The leader of the RA sits as the leader of the Artisanal branch if the Artisanal branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the RA sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the
Artisanal branch"; and

(b) Article II, Section 4 ([i:3vpn0f98]Powers of the Artisanal Collective[/i:3vpn0f98]), the following text: (i) "The leader of the AC sits as the leader of the Representative branch if the Representative branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the AC sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the Representative branch".

[b:3vpn0f98]Chapter III - Name and citizenship[/b:3vpn0f98]

10. The title of the Neufreistadt Constitution shall hereafter be, "The Constitution of the Confederation of Democratic Simulators".

11. Any reference in any Act of the Representative Assembly passed before the date on which this Act comes into force to "Neufreistadt" or to “Neualtenburgâ€