The judiciary - positions vacant

Here you might discuss basically everything.

Moderator: SC Moderators

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

The judiciary - positions vacant

Post by Ashcroft Burnham »

[b:2cpx1v9i][u:2cpx1v9i]The judiciary - positions vacant[/u:2cpx1v9i][/b:2cpx1v9i]

Since the Representative Assembly this morning passed [url=http://forums.neufreistadt.info/viewtop ... 5:2cpx1v9i]the Judiciary Act[/url:2cpx1v9i], a number of new judiciary-related offices have become vacant. Citizens of the Confederation of Democratic Simulators are invited to apply (by replying to this thread) for the vacant posts. I set out a description of those jobs below.

[b:2cpx1v9i]Chair of the Judiciary Commission[/b:2cpx1v9i]

The Chair of the Judiciary Commission [i:2cpx1v9i]administers[/i:2cpx1v9i] the judiciary. This post does not require specialist legal knowledge (the judge/judges would advise the Chair on such matters).

The job involves: (1) determining the capacity of the judiciary (specifically, setting the number of courts and judges); (2) judicial procurement and budget management; (3) overseeing education and training (although it is expected that this would be provided in large part by the judge/judges); (4) overseeing judicial archiving and records (possibly with the help of the PIO) (5) promoting our judiciary (again, possibly with the help of the PIO, and no doubt the judge/judges will help, too); and (6) hiring and firing administrative staff (in particular, court clerks - alternatively, the Chair of the Judiciary Commission could act as a court clerk).

No budget has yet been formally approved for a salary for this post, but it is hoped that one will be approved at the next meeting of the Representative Assembly. The standard CDS salary for civil servants is L$1,000 per calendar month. If applicants are only willing to undertake this task if paid, then they should state so on the application.

The Chair of the Judiciary Commission is appointed by the Scientific Council.

The Chair of the Judiciary Commission is a very important post, and I should strongly encourage anybody interested in working in a very important civil service job to apply as soon as possible.

[b:2cpx1v9i]Judges of Common Jurisdiction[/b:2cpx1v9i]

What judges do is self-evidant. The first judge will be appointed by a two-stage process, involving the Scientific Council qualifying the judge, and the Representative Assembly appointing the judge. Further judges will be qualified by existing judges, and appointed by a Public Judiciary Scrutiny Panel (see below).

I have formally applied to the Scientific Council to be qualified as a judge.

[b:2cpx1v9i]Members of the Public Judiciary Scrutiny Panel[/b:2cpx1v9i]

The Public Judiciary Scrutiny Panel selects new judges from a list of those qualified as judges by existing judges (if there are any), or by the Scientific Council (if there are none). When there are fewer than three people on the PJSP, the Representative Assembly appoints judges instead.

However, the Public Judiciary Scrutiny Panel has other functions, as well, including investigating any complaints into the judiciary, and providing (or procuring from others) alternative dispute resolution services. The idea is that the Public Judiciary Scrutiny Panel is a popular but apolitical overseer of the judiciary. For that reason, members or affiliates of political factions are not allowed to sit on the panel.

Although the posts will not be paid, it is expected that the workload will be light, because there will not need to be many rounds of judicial appointments, and I am hoping that there will not be very many complaints, either.

The panel will consist of five people (but can run with as few as three if not as many as five people can be found), who are chosen by way of popular election. The timing of the election has not yet been fixed, but I suspect that that will partly depend on when people apply in any case.

I should encourage those who have taken an active interest in the judiciary debate, but who are not members of political factions, to stand to be elected to this office.

Ashcroft Burnham

Where reason fails, all hope is lost.
User avatar
Patroklus Murakami
Forum Wizard
Forum Wizard
Posts: 1929
Joined: Fri Jun 02, 2006 5:54 pm

Re: The judiciary - positions vacant

Post by Patroklus Murakami »

[quote="Ashcroft Burnham":28c7vvwp]However, the Public Judiciary Scrutiny Panel has other functions, as well, including investigating any complaints into the judiciary, and providing (or procuring from others) alternative dispute resolution services. The idea is that the Public Judiciary Scrutiny Panel is a popular but apolitical overseer of the judiciary. For that reason, [b:28c7vvwp]members or affiliates of political factions are not allowed to sit on the panel.[/b:28c7vvwp]

.......

I should encourage those who have taken an active interest in the judiciary debate, but [b:28c7vvwp]who are not members of political factions[/b:28c7vvwp], to stand to be elected to this office.[/quote:28c7vvwp]

My emphasis added in bold.

I now realise why I was uncomfortable about this part of the amendment to the Judiciary Bill. Apologies for not raising it at the time.

It's illegal, isn't it? The Universal Declaration of Human Rights in one of the founding documents of Neufreistadt/CDS. The UDHR guarantees freedom of expression and of freedom of association. By restricting membership of this body to those who have no declared political affiliation this decision discriminates against those who have joined political factions within NFS/CDS in good faith. Factions are a fundamental part of our political system and citizens have been encouraged to join them in order to influence the political process, particlularly at election time.

It seems somewhat perverse to now discriminate against members of political factions in this new area of activity.

There's a practical problem too; how you are going to ascertain that someone is an 'affiliate' of a political faction? Membership is pretty easy, but what makes someone an affiliate? Prior membership? Regular attendance at meetings? Forum postings in support of the faction's proposals? Will prospective candidates have to sign a declaration along the lines of "I am not, and have never been, a member of affiliate of the Costume Party" before they are considerd acceptable candidates? And who gets to decide?

This discrimination may also be counter-productive. Members of political factions declare their alignment by joining a group established for that purpose in Second Life. Someone who is not a member of a political faction may be non-aligned, or they may be aligned but not wish to declare their alignment, or they may have firm political views which are not represented by the currently active factions. To take non-membership of a faction as evidence of someone's non-partisan nature is at best naive, and at worst deluded, in my humble opinion :)

User avatar
Aliasi Stonebender
I need a hobby
I need a hobby
Posts: 586
Joined: Fri May 26, 2006 12:58 pm

Post by Aliasi Stonebender »

You bring up an excellent point, Patro.

While it is traditionally the Scientific Council's responsibility to veto on unconstitutional grounds - and safer, too, since an SC veto cannot be overridden - as a former member of the SC I can say that, firstly, I really should read the Judicary act more closely to see if there's any other gotchas. I blame my lack of attention to just about everything political after I quit myself from the government. Secondly, this definitely looks unconstitutional. If the SC does not veto and a rewritten bill submitted, I'll be forced to for the reasons Patro brings up.

I think it's clear the citizenry want some version of this to pass, and I don't intend to stand in the way of it. But I think wanting to 'get it over with' may have caused us to act in haste.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Re: The judiciary - positions vacant

Post by Ashcroft Burnham »

[quote="Patroklus Murakami":3ibcf0og][quote="Ashcroft Burnham":3ibcf0og]However, the Public Judiciary Scrutiny Panel has other functions, as well, including investigating any complaints into the judiciary, and providing (or procuring from others) alternative dispute resolution services. The idea is that the Public Judiciary Scrutiny Panel is a popular but apolitical overseer of the judiciary. For that reason, [b:3ibcf0og]members or affiliates of political factions are not allowed to sit on the panel.[/b:3ibcf0og]

.......

I should encourage those who have taken an active interest in the judiciary debate, but [b:3ibcf0og]who are not members of political factions[/b:3ibcf0og], to stand to be elected to this office.[/quote:3ibcf0og]

My emphasis added in bold.

I now realise why I was uncomfortable about this part of the amendment to the Judiciary Bill. Apologies for not raising it at the time.

It's illegal, isn't it? The Universal Declaration of Human Rights in one of the founding documents of Neufreistadt/CDS. The UDHR guarantees freedom of expression and of freedom of association. By restricting membership of this body to those who have no declared political affiliation this decision discriminates against those who have joined political factions within NFS/CDS in good faith. Factions are a fundamental part of our political system and citizens have been encouraged to join them in order to influence the political process, particlularly at election time.[/quote:3ibcf0og]

I am afraid that your arguments do not follow: nothing in our constitution prevents people from associating with each other freely, or expressing themselves. It merely means that those who are allied to particular political interest groups cannot perform one particular function because it is imperative that those who perform that function do so entirely independently of any political pressure whatsoever.

Freedom of expression, as no doubt you well know, is a qualified, not an absolute right: it can be restricted on many grounds, including preventing the judicial system's operation from being prejudiced. Article 10 of the European Convention of Human Rights and Fundamental Freedoms , for example, provides,

[quote:3ibcf0og] 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, [b:3ibcf0og]or for maintaining the authority and impartiality of the judiciary[/b:3ibcf0og].[/quote:3ibcf0og]

(Emphasis mine).

Even though the UNHDR is far more vague on the point,

[quote:3ibcf0og]Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers,[/quote:3ibcf0og]

you must accept that there must be some limits on freedom of expression, since you yourself argued some time ago that people should not be free to impart information in the form of chatlogs where the other party/parties to that conversation had not given her/his/their consent thereto.

The whole point of having a Public Judiciary Scrutiny Panel, rather than leaving judicial selection to the politically partisan Representative Assembly was to ensure that the judicial selection process remained entirely free of political influence. For reasons that I have already explained at great length many times, ensuring that the judiciary is entirely free of political influence is absolutely vital.

[quote:3ibcf0og]There's a practical problem too; how you are going to ascertain that someone is an 'affiliate' of a political faction?
Membership is pretty easy, but what makes someone an affiliate? Prior membership? Regular attendance at meetings? Forum postings in support of the faction's proposals? Will prospective candidates have to sign a declaration along the lines of "I am not, and have never been, a member of affiliate of the Costume Party" before they are considerd acceptable candidates? And who gets to decide?[/quote:3ibcf0og]

Somebody is an affiliate when, although not formally a member, he or she publicly delcares allegience to the faction in question, or where a member of that faction declares that person allied, and that person refuses to deny such alliegence. Any dispute on the question would be settled, just like any other dispute, by a court.

[quote:3ibcf0og]This discrimination may also be counter-productive. Members of political factions declare their alignment by joining a group established for that purpose in Second Life. Someone who is not a member of a political faction may be non-aligned, or they may be aligned but not wish to declare their alignment, or they may have firm political views which are not represented by the currently active factions. To take non-membership of a faction as evidence of someone's non-partisan nature is at best naive, and at worst deluded, in my humble opinion :)[/quote:3ibcf0og]

There is no certain test for whether a person will be impartial or not, however, preventing people who are in or allied to factions from being elected to the PJSP will ensure that they cannot readily be subjected to pressure or control from other faction members (for example, by a promise that the member will be placed high on the faction list of candidates in the next general election if he or she votes in favour of or against a particular judicial appointment). It also means that panel members are less likely to be political, since a majority of those who want to be aligned to a particular political faction will become aligned by joining, or at least being affiliated to, such a faction.

Ashcroft Burnham

Where reason fails, all hope is lost.
User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Constiutional amdendments and vetos

Post by Ashcroft Burnham »

Furthermore, it is highly doubtful that the Scientific Council has the power in any event to veto a constitutional amendment: since the SC can only veto an Act of the RA on the grounds that it is unconstitutional, and since what is unconstitutional is judged by reference to our written constitution, then an Act which, when passed with the requisite majority, [i:1vuitqyr]changes[/i:1vuitqyr] our written constitution, also changes what it takes for something to be constitutional or unconstitutional.

What Aliasi and Pat are effectively saying is that it is possible for the constitution to be unconstitutional, which is incoherent.

Ashcroft Burnham

Where reason fails, all hope is lost.
Justice Soothsayer
Pundit
Pundit
Posts: 375
Joined: Sun Jun 04, 2006 1:14 pm

Post by Justice Soothsayer »

This may be an important test case of the powers of the SC. Article III, Section 8 says in pertinent part:

[quote:1y0y4a5j]In regards to the Representative branch:

The Philosophic branch may veto or rewrite and resubmit a bill or constitutional amendment if it is in violation of any of the founding documents. [/quote:1y0y4a5j]

Notwithstanding the inconsistency of a constitutional amendment being unconstitutional, it seems to me that it is consistent with the constitution for the SC to have the power to be inconsistent.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Justice Soothsayer":719fcmkv]This may be an important test case of the powers of the SC. Article III, Section 8 says in pertinent part:

[quote:719fcmkv]In regards to the Representative branch:

The Philosophic branch may veto or rewrite and resubmit a bill or constitutional amendment if it is in violation of any of the founding documents. [/quote:719fcmkv]

Notwithstanding the inconsistency of a constitutional amendment being unconstitutional, it seems to me that it is consistent with the constitution for the SC to have the power to be inconsistent.[/quote:719fcmkv]

Is the point not that the founding documents provide a procedure by which they might lawfully be altered (by a 2/3rds majority vote in the Representative Assembly)?

Ashcroft Burnham

Where reason fails, all hope is lost.
Justice Soothsayer
Pundit
Pundit
Posts: 375
Joined: Sun Jun 04, 2006 1:14 pm

Post by Justice Soothsayer »

[quote="Ashcroft Burnham":287tt29b]Is the point not that the founding documents provide a procedure by which they might lawfully be altered (by a 2/3rds majority vote in the Representative Assembly)?[/quote:287tt29b]

The "founding documents" appear to include (per the Preamble) "the Universal Declaration Of Human Rights, Founding Philosophy [whatever that is], Constitution, local laws, the SL ToS, and Community Standards".

So, in theory, the RA could pass a constitutional amendment that is inconsistent with the SL ToS, and the SC could veto it. That's why, I think, some have argued that limiting membership to the factionless violates the Universal Declaration of Human Rights - it is the bootstrap to the argument that a constitutional amendment is unconstitutional.

User avatar
Gwyneth Llewelyn
Forum Wizard
Forum Wizard
Posts: 1188
Joined: Thu May 25, 2006 8:00 am
Contact:

Post by Gwyneth Llewelyn »

Two clarifications:

1) The Judges and the Chair of the JC ill not need to "renounce" their personal beliefs and their affiliation through this Act. Similar to the precedent of not having SC members and the Guildmeister be on the lists to get elected to the RA, we should use a similar approach for the Judges and Chair of the JC. They should not be active members of any party while they serve in the judiciary, propose any bill, or openly discuss their party's ideas in public.

Naturally enough, a human being is a human being with their ideas always in their minds :) We can't also prevent Judges to join political meetings and/or prevent them to read the forums. Thus, I believe that the way this Act promotes their "independence" from political partisanship is simply to disallow them to have an [i:khpwnp9u]active[/i:khpwnp9u] role in parties. In either case, it'll be up to the Panel to judge if one of their members is going too far in showing their "true colours" publicly.

2) There are no "unconstitutional amendments to the constitution". This was a weird idea that was vented publicly by Ulrika in the past, and, naturally, it is not only incoherent, but makes no sense ([i:khpwnp9u]all[/i:khpwnp9u] amendments to the constitution are, per definition, unconstitutional :) ... except perhaps those that just correct the spelling)

What we have is a different provision — allowing the SC to be "unbound" by the constitution when exercising the veto, and being able to draw upon the founding documents — namely, LL's ToS and the Universal Declaration of Human Rights — when deciding if something should be vetoed or not.

Thus, a Constitutional change that deprives people of their unalienable rights (typical example: the right to vote) would be most certainly vetoed. Similarly, a bill that allows people to incite violence and hate speech in the CDS, which is strictly forbidden under the LL ToS, would also be vetoed.

There are many borderline cases. Requiring Judges to take a passive role in political meetings, and disallowing them to run for the RA, is not depriving them of a fundamental right — if so, all SC members and the Guildmeister would have been deprived of that very same right as well. The right of association is, in my mind, preserved — the Judges have their Judiciary Commission which is an association of sorts, that will allow the Judges to publicly manifest their opinion in associative form. To my understanding, what the Judiciary Act NL 5-9 states is that judges cannot have a [i:khpwnp9u]political[/i:khpwnp9u] manifestation of any sort — ie. not campaigning, not introducing bills, not running for office in Government — while they serve in the Judiciary Branch. This is a rather good trade-off. Yes, I expect Judges to sit on CSDF or DPU meetings, they'll probably even talk there, and they'll probably come for the RA to sit down and discuss things. But they will be disallowed to manifest a strong supportive position of the parties' politics in public or in transcripts.

The SC will (try to) meet on this, but I'm rather optimistic that there is no intention to deprive Judges from any of their fundamental, unalienable rights as stated on the UDHR.

It's interesting that the European Convention of Human Rights and Fundamental Freedoms is a bit more clear on those issues. ;) I shall hang Article 10 on my shop in the Marktplatz; it defines so very well where the boundaries between "total freedom of expression" are drawn, in a form that is consistent, coherent, and rather well explained, IMHO. Of course, I'm also biased here :)

"I'm not building a game. I'm building a new country."
  -- Philip "Linden" Rosedale, interview to Wired, 2004-05-08

PGP Fingerprint: CE8A 6006 B611 850F 1275 72BA D93E AA3D C4B3 E1CB

Justice Soothsayer
Pundit
Pundit
Posts: 375
Joined: Sun Jun 04, 2006 1:14 pm

Post by Justice Soothsayer »

[quote="Gwyneth Llewelyn":3dlz6q5g]The Judges and the Chair of the JC ill not need to "renounce" their personal beliefs and their affiliation through this Act. Similar to the precedent of not having SC members and the Guildmeister be on the lists to get elected to the RA, we should use a similar approach for the Judges and Chair of the JC. They should not be active members of any party while they serve in the judiciary, propose any bill, or openly discuss their party's ideas in public.

[/quote:3dlz6q5g]

I may be wrong about this, but I think the argument is not as to [i:3dlz6q5g]judges[/i:3dlz6q5g], but members of the [i:3dlz6q5g]Public Judiciary Scrutiny Panel[/i:3dlz6q5g] who by constitutional amendment may not be members of any faction.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Justice Soothsayer":kpl17af1]I may be wrong about this, but I think the argument is not as to [i:kpl17af1]judges[/i:kpl17af1], but members of the [i:kpl17af1]Public Judiciary Scrutiny Panel[/i:kpl17af1] who by constitutional amendment may not be members of any faction.[/quote:kpl17af1]

You are right: it is about members of the PJSP, but the same points apply to both.

Ashcroft Burnham

Where reason fails, all hope is lost.
User avatar
Aliasi Stonebender
I need a hobby
I need a hobby
Posts: 586
Joined: Fri May 26, 2006 12:58 pm

Re: Constiutional amdendments and vetos

Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":n4x3yrfc]Furthermore, it is highly doubtful that the Scientific Council has the power in any event to veto a constitutional amendment: since the SC can only veto an Act of the RA on the grounds that it is unconstitutional, and since what is unconstitutional is judged by reference to our written constitution, then an Act which, when passed with the requisite majority, [i:n4x3yrfc]changes[/i:n4x3yrfc] our written constitution, also changes what it takes for something to be constitutional or unconstitutional.

What Aliasi and Pat are effectively saying is that it is possible for the constitution to be unconstitutional, which is incoherent.[/quote:n4x3yrfc]

Not in the least. We have more founding documents than the constitution, and the constitution can [i:n4x3yrfc]certainly[/i:n4x3yrfc] violate any of these others. Some are simply practical; we [i:n4x3yrfc]can't[/i:n4x3yrfc] violate the Second Life Terms of Service. Others are a matter of philosophical committment, such as the UDHR.

User avatar
Aliasi Stonebender
I need a hobby
I need a hobby
Posts: 586
Joined: Fri May 26, 2006 12:58 pm

Post by Aliasi Stonebender »

[quote="Gwyneth Llewelyn":oineijo8]Two clarifications:

1) The Judges and the Chair of the JC ill not need to "renounce" their personal beliefs and their affiliation through this Act. Similar to the precedent of not having SC members and the Guildmeister be on the lists to get elected to the RA, we should use a similar approach for the Judges and Chair of the JC. They should not be active members of any party while they serve in the judiciary, propose any bill, or openly discuss their party's ideas in public.
[/quote:oineijo8]

There is no law preventing SC members or the Guildmeister - or the Chancellor! - from [i:oineijo8]simply belonging to a faction[/i:oineijo8]. This is important, since faction members get the tiniest bit of extra control over what individuals actually get elected, as opposed to vague hopes a faction lives up to its platform.

[quote:oineijo8]
What we have is a different provision — allowing the SC to be "unbound" by the constitution when exercising the veto, and being able to draw upon the founding documents — namely, LL's ToS and the Universal Declaration of Human Rights — when deciding if something should be vetoed or not.
[/quote:oineijo8]

Then is this case not clear-cut?

[quote:oineijo8]
There are many borderline cases. Requiring Judges to take a passive role in political meetings, and disallowing them to run for the RA, is not depriving them of a fundamental right — if so, all SC members and the Guildmeister would have been deprived of that very same right as well.
[/quote:oineijo8]

Neither the SC nor the Guildmeister are forbidden from joining a political party. There's a world of difference from "because this would concentrate too much power, SC members can't run for RA" and "keep your opinions to yourself while in this job".

[quote:oineijo8]
The SC will (try to) meet on this, but I'm rather optimistic that there is no intention to deprive Judges from any of their fundamental, unalienable rights as stated on the UDHR.
[/quote:oineijo8]

I am not so optimistic. But then, I am no longer a member of the Scientific Council, so it's not as if my opinion counts, hm? ;)

[quote:oineijo8]
It's interesting that the European Convention of Human Rights and Fundamental Freedoms is a bit more clear on those issues. ;) I shall hang Article 10 on my shop in the Marktplatz; it defines so very well where the boundaries between "total freedom of expression" are drawn, in a form that is consistent, coherent, and rather well explained, IMHO. Of course, I'm also biased here :)[/quote:oineijo8]

The European Convention of Human Rights and Fundamental Freedoms is not one of our founding documents, however - and when I deal with issues of freedom of speech and expression, I am understandably biased towards the American model where only direct threats of an illegal action are supposed to be restricted - no yelling 'fire' in a crowded theatre, or inciting violence, and so forth.

All in all, I'm really rather concerned with the tone the supporters of the Act have taken in debate. It smacks very much of "of COURSE this is right, and anyone thinking otherwise is educated stupid" without regard for precedent or the integrity of our governmental structure. The Chancellor amendment was a minor change in comparison, merely shifting some of the duties that were held by the Guild or not clearly held at all to one person who remains under the tight leash of the RA. I have voiced my concerns about this before, but apparently I am in the minority.

All in all, this doesn't seem to fit the Neualtenburg I joined.

User avatar
Patroklus Murakami
Forum Wizard
Forum Wizard
Posts: 1929
Joined: Fri Jun 02, 2006 5:54 pm

Re: The judiciary - positions vacant

Post by Patroklus Murakami »

/me rolls up sleeves. Time for another legal slug-fest with Ashcroft!

[quote="Ashcroft Burnham":4imgjp8d]I am afraid that your arguments do not follow: nothing in our constitution prevents people from associating with each other freely, or expressing themselves. It merely means that those who are allied to particular political interest groups cannot perform one particular function because it is imperative that those who perform that function do so entirely independently of any political pressure whatsoever. [/quote:4imgjp8d]
I'm afraid this is a restriction on our citizens' right to free association. Consider the citizens elected to serve on the Public Judiciary Scrutiny Panel. Let's assume that we manage to find five non-partisan citizens to sit on the panel. What if one or more of them then decide that they wish to join the CSDF or the DPU or some yet-to-be-formed faction? Presumably they will then be kicked off the panel. I think that this would represent an infringement of their rights under the UDHR.

[quote:4imgjp8d]Freedom of expression, as no doubt you well know, is a qualified, not an absolute right: it can be restricted on many grounds, including preventing the judicial system's operation from being prejudiced. Article 10 of the European Convention of Human Rights and Fundamental Freedoms , for example, provides,

[quote:4imgjp8d] 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, [b:4imgjp8d]or for maintaining the authority and impartiality of the judiciary[/b:4imgjp8d].[/quote:4imgjp8d][/quote:4imgjp8d]
Aah, but we're not discussing the European Convention on Human Rights here, are we? So this point is not relevant.

[quote:4imgjp8d]you must accept that there must be some limits on freedom of expression, since you yourself argued some time ago that people should not be free to impart information in the form of chatlogs where the other party/parties to that conversation had not given her/his/their consent thereto. [/quote:4imgjp8d]
I accept there must be some limits on freedom of expression, but that's not the point at issue here. The question is whether the provision in this hasty, poorly-discussed amendment is proportionate, reasonable and effective. I maintain that it is disproportionate and unreasonable because it restricts our citizens in enjoying a fundamental right - that to join political factions. I will deal with your side-stepping of whether it is effective below.

[quote:4imgjp8d]Somebody is an affiliate when, although not formally a member, he or she publicly delcares allegience to the faction in question, or where a member of that faction declares that person allied, and that person refuses to deny such alliegence. Any dispute on the question would be settled, just like any other dispute, by a court.[/quote:4imgjp8d]
I guess you must be regretting that bit about 'affiiates' now :). It's starting to look very dodgy. Here's a scenario for you: let's imagine that someone decides to stand for election to this panel, they're not a member of a faction but everyone knows which way they voted in the last election. Would you class them as an affiliate? Who will decide if they're an affilate of a faction? What if they deny it and yet others continue to insist they are secretly affiliated to one of the political factions? Are you seriously suggesting that a court is to rule on this? We haven't got any yet! How are we going to resolve this situation without them?

[quote:4imgjp8d]There is no certain test for whether a person will be impartial or not, however, preventing people who are in or allied to factions from being elected to the PJSP will ensure that they cannot readily be subjected to pressure or control from other faction members (for example, by a promise that the member will be placed high on the faction list of candidates in the next general election if he or she votes in favour of or against a particular judicial appointment). It also means that panel members are less likely to be political, since a majority of those who want to be aligned to a particular political faction will become aligned by joining, or at least being affiliated to, such a faction.[/quote:4imgjp8d]
This is a terribly weak argument. Someone outside of the faction system could just as easily be involved in a deal of this kind. They could promise, in a secret deal, to act in a particular way on the panel in return for political favours later once they have left the panel and joined the faction they secretly owe allegiance to. Nothing in this aspect of the proposal guards against that possibility.

I note that you have failed to address my point that candidates may well be entirely partisan but choose to keep this a secret when standing for election to this panel. Since this would lead to partisan citizens ending up on this supposedly 'non-political' panel I would have thought you would need to to counter that.

I can see why this has been proposed, for entirely the best of intentions, but it doesn't sit well with the liberal democracy we are supposed to be. We cannot simply legislate against partisanship. It's a good thing after all that people consider political issues in Neufreistadt/CDS and that they form factions to promote their programme. We should take this as a matter of fact in public life and act accordingly.

But there is precedent here. Gwyn's role as Dean of the SC has meant that she couldn't make too many public pronouncements as an active member of the CSDF as well. I think that's a misreading of the Constitution and an infringement of her rights. I can now see it was the thin end of the wedge and now we're seeing this principle affect other aspects of public life in NFS/CDS. It's unnecessary. We should allow people to be open and honest about their political beliefs and accept that almost everybody will have them. I fear some people are kidding themselves if they believe that you can ensure 'non-partisanship' by excluding those who choose to perfectly legally join one faction or another.

User avatar
Ashcroft Burnham
Forum Wizard
Forum Wizard
Posts: 1093
Joined: Thu Aug 03, 2006 3:21 pm

Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":2t4mj23p]There is no law preventing SC members or the Guildmeister - or the Chancellor! - from [i:2t4mj23p]simply belonging to a faction[/i:2t4mj23p]. This is important, since faction members get the tiniest bit of extra control over what individuals actually get elected, as opposed to vague hopes a faction lives up to its platform.[/quote:2t4mj23p]

There is no problem with the executive belonging to a faction: the executive is just as much a political role as the legislature. What must, however, be fully independent from policical structures is the judiciary, for reasons that I have stated over and over again in response to nothing more than bald assertions to the contrary, and which nobody, not even once, in this whole debate has found a single reason to impugn. If you cannot find a logical flaw in my reasoning in favour of judicial independence, then it is wholly wrong to continue to make assertions premised on there being such a flaw.

Incidentally, the fact that members of the Scientific Council are not prohibited from also being members of political factions, even though they should be, is not an argument in favour of a wholly different proposition, namely that prohibiting members of political factions from standing for election to the Public Judiciary Scrutiny Panel is a violation of a right to freedom of expression.

[quote:2t4mj23p]Then is this case not clear-cut?[/quote:2t4mj23p]

What exactly do you mean? I have explained carefully and at length in my post above exactly why it is that the suggestion that the prohibition on members of the Public Judiciary Scrutiny Panel belonging to political factions somehow violates a right of freedom of expression is utterly misconceived.

[quote:2t4mj23p]Neither the SC nor the Guildmeister are forbidden from joining a political party. There's a world of difference from "because this would concentrate too much power, SC members can't run for RA" and "keep your opinions to yourself while in this job".[/quote:2t4mj23p]

As I have explained carefully above, all that is prohibited is members or affiliates of political factions joining the Public Judiciary Scrutiny Panel. Nobody is prohibited from merely expressing an opinion. It is political alliegence that is prohibited, for the reasons that I explain above. Why have you ignored that reasoning?

[quote:2t4mj23p]The European Convention of Human Rights and Fundamental Freedoms is not one of our founding documents, however - and when I deal with issues of freedom of speech and expression, I am understandably biased towards the American model where only direct threats of an illegal action are supposed to be restricted - no yelling 'fire' in a crowded theatre, or inciting violence, and so forth.[/quote:2t4mj23p]

So what is your view on disclosure of chatlogs, then? That, after all, is not a direct threat of illegal action. What about confidence? Do you support the idea of your doctor being able to tell the world and his dog about all of your ailments in the name of freedom of expression? You say that you live in the US - does your law allow parties in court cases to talk to jurors directly, outside court, during those cases? If not, do you consider that a violation of a right to freedom of expression? If not, why not, and how is that reason consistent with your stance here?

[quote:2t4mj23p]All in all, I'm really rather concerned with the tone the supporters of the Act have taken in debate. It smacks very much of "of COURSE this is right, and anyone thinking otherwise is educated stupid" without regard for precedent or the integrity of our governmental structure.[/quote:2t4mj23p]

Quite the contrary - it precisely is because of the importance of judicial independence to the integrity of our governmental structure that it is so vital that the PJSP be wholly apolitical, for the reasons that I have explained, and in which you have found no flaw whatsoever, above.

[quote:2t4mj23p]All in all, this doesn't seem to fit the Neualtenburg I joined.[/quote:2t4mj23p]

That is because this is not the Neualtenburg that you joined - this is a new, far better nation, called the Confederation of Democratic Simulators, where we believe in and understand the importance of judicial independence.

Ashcroft Burnham

Where reason fails, all hope is lost.
Post Reply

Return to “General Discussion”