The judiciary - positions vacant

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SC meeting for Tuesday, October 3rd at 5 PM SLT

Post by Gwyneth Llewelyn »

Just to announce the SC meeting on Tuesday, October 3rd at 5 PM SLT at the Rathaus, where applications for all the open posts on the Judiciary Branch will be evaluated by the SC members in session.

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Re: The judiciary - positions vacant

Post by Ashcroft Burnham »

[quote="Patroklus Murakami":39bdfvt1]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:39bdfvt1]

That is misconceived, I am afraid. Everybody still has the right to join or be affiliated with a faction. Everybody has the right to stand for election to the PJSP. How is the fact that they may not do both at once a restriction of the general right of free association? Any existing panel member who wishes to join a faction may - he or she just must resign from the panel first.

One of the principal flaws of your argument is that, whilst the UNHDR provides that people shall have the right to freedom of experssion, it does not provide that people shall have the right to join the Public Judiciary Scrutiny Panel. Nothing stops anybody from exercising their right to freedom of expression by joining a political faction: it is just that those who are in factions may not then join, or continue to sit on, the PJSP.

You will note that the current constitution forbids a person from belonging to more than one faction at once. The situation there is exactly the same: one can belong to any one faction, but not more than one at once. Anybody who is a member of the CSDF is prohibited from joining the DPU. Anybody who is a member of the DPU is prohibited from joining the CSDF. Do you think that that is a violation of freedom of expression?

[quote:39bdfvt1]I accept there must be some limits on freedom of expression, but that's not the point at issue here.[/quote:39bdfvt1]

That does not follow; how can it? You are claiming that the provision in qusetion is an improper resriction on freedom of expression. I am arguing that it is not a restriction on freedom of expression at all and that, even if it is, it most certainly is not improper because it falls within one of the necessary limits of freedom of expression. In those circumstances, how can it conceivably not be relevant that there must be limits on the freedom of expression?

[quote:39bdfvt1]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:39bdfvt1]

That argument, I am afraid, is wholly incoherent. You are saying, effectively, that a restriction on freedom of expression is a disproportionate restriction because it is a restriction on the freedom of expression. The question is whether [i:39bdfvt1]this particular[/i:39bdfvt1] restriction (if it really is a restriction at all: see above) is proportionate to a legitimate aim, that being the independence of our judiciary. The right to join political factions is no more fundamental than any other constituent of the right of free expression: the UNHDR certainly makes no such distinction. Do you have any argument at all on the substance of the point, as to why the constitution as it currently stands is [i:39bdfvt1]not[/i:39bdfvt1] proportionate to the legitimate aim of securing the independence of the judiciary? Would you say that, by the same measure, the rule that prohibits judges in England from belonging to political parties, or even expressing political opinions in public, is so? How would you like to be tried by a judge who openly belonged to a political party that is the main opponent of a party that you publicly supported?

[quote:39bdfvt1]I guess you must be regretting that bit about 'affiiates' now :). It's starting to look very dodgy.[/quote:39bdfvt1]

Not at all - the part about affiliates was there merely to prevent people from circumventing the provisions of the constitution by temporarily leaving the political faction in name only, and remaining, and being treated in all respects, as if he or she were still a member of that faction.

[quote:39bdfvt1]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?[/quote:39bdfvt1]

Merely voting for one party in an election - and not keeping secret for whom one voted - is not affiliation. Even judges in England are allowed to vote.

[quote:39bdfvt1]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?[/quote:39bdfvt1]

If it is publicly denied, then it quite clearly does not fall into the definition that I gave above.

No system can be absolutely effective at preventing corruption - secret affiliation is just as hard to detect as bribery - but a system should do all that it can to minimise the chance of it. This measure does that.

[quote:39bdfvt1]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:39bdfvt1]

By getting courts set up as soon as possible. However, I was rather hoping that there wouldn't be any disputes about who is an affiliate to a political faction. If there are, no doubt they can wait until a court is set up.

[quote:39bdfvt1]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.[/quote:39bdfvt1]

It is no easier to detect bribery - do you argue that, for that reason, that should not be prohibited either?

[quote:39bdfvt1]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.[/quote:39bdfvt1]

You fail to distinguish between merely holding an opinion and having public alliegence. The latter does, and the former does not, expose the person in question to potentially considerable external pressure to make decisions in a partisan way.

As I have said before, the best way to have avoided all of this would have been for judges to be appointed directly by existing judges, but some members of the Representative Assembly refused to vote for that. What we have as a result is a solution that is a compromise: less dangerously partisan by far than permitting the Representative Assembly to make the appointments, but not as independent as direct appointment by the existing judiciary.

[quote:39bdfvt1]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.[/quote:39bdfvt1]

We can if by "partisanship" we mean public or formal alleigance, rather than merely the holding of an opinion.

[quote:39bdfvt1]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.[/quote:39bdfvt1]

There is nothing about the fact that it is good that some people join factions that makes it bad that we should not allow those people to sit on the Public Judiciary Scrutiny Panel.

[quote:39bdfvt1]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.[/quote:39bdfvt1]

I have explained precisely why it is necessary. Are there any logical flaws in that argument that you can find? If not, how can you not accept it?

[quote:39bdfvt1]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.[/quote:39bdfvt1]

Do you think that the whole of the English justice system has been kidding itself for the last several hundred years by refusing to permit judges be politically partisan?

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Post by Publius Crabgrass »

[cross-posted under the New Judiciary Act]

I’m new here but have been following the debates about the new judiciary carefully. Indeed, the fact that folks have committed to the rule of law pushed me into joining this society. It is, as my new friend Ashcroft suggests, hard to argue that the judiciary bill was passed without considerable discussion as many bytes have been spilt in the forums over it. However, the new entity of a Public Scrutiny Judicial Panel, a sort of judicial candidate screening body, does appear to have been added at the last minute in a compromise that may have been too hasty.

It does seem odd that there would be a publicly elected body of folks who by the constitution can’t join any faction. In effect, what has been done is to create a new faction, consisting of those who are interested in overseeing the judiciary but cannot belong to any faction. Let’s call them the “faction-that-must-not-be-namedâ€

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass"]It does seem odd that there would be a publicly elected body of folks who by the constitution can’t join any faction. In effect, what has been done is to create a new faction, consisting of those who are interested in overseeing the judiciary but cannot belong to any faction. Let’s call them the “faction-that-must-not-be-namedâ€

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Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":uqcdmnpk]
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.
[/quote:uqcdmnpk]

I would not call them bald assertions, if your own assertion violates the UHDR. It is not particularly different than if you claimed holding deep religious beliefs was undesirable for a member of the judiciary and that we should ban all people who professed religious faith from that branch, although the reaction to that would doubtless be far stronger.

[quote:uqcdmnpk]
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:uqcdmnpk]

And I explain carefully, and using fewer words, short ones, that you are wrong.

[quote:uqcdmnpk]
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:uqcdmnpk]

You are still restricting from freedom of association; [i:uqcdmnpk]factions are not part of the government[/i:uqcdmnpk]. They are non-governmental organizations recognized by the government.

[quote:uqcdmnpk]
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.[/quote:uqcdmnpk]

*sigh*

I hate to give the appearance of the old fogey telling off the johnny-come-lately, but maybe you didn't notice the bit where I was one of the figures that brought forth this Confederation. A name change didn't change the principles Neualtenburg was founded on and were defended [i:uqcdmnpk]even against the wishes of two founders[/i:uqcdmnpk].

Your act does not fit them.

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Post by Ranma Tardis »

It is clear that either amendment needs to be corrected or scrapped (repealed). It is a damaged article as it does not allow members of the CSDF or DPU from serving but allows members of the 14 words to serve. I favor scrapping as there is no need for such in our Neufreisdadt!

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Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":1wu5fryz]I would not call them bald assertions, if your own assertion violates the UHDR. It is not particularly different than if you claimed holding deep religious beliefs was undesirable for a member of the judiciary and that we should ban all people who professed religious faith from that branch, although the reaction to that would doubtless be far stronger.[/quote:1wu5fryz]

Please at least [i:1wu5fryz]read[/i:1wu5fryz] what I write before responding to it. The bald assertions to which I was referring is the bland and unreasoned assertions that people have made over and over again (often not even expressly, but as a necessary premise to the conclusions that they express with equal absence of reason), without any reason whatsoever in support, that there is no problem with having a politicised judiciary. I have explained at very great length many times over why there is such a problem, and why that problem is extremely serious. If you cannot find a logical flaw in those explanations, then it is wholly wrong to attempt nonetheless to rely on that as a premise to any argument in an important public debate.

Furthermore, I have explained [i:1wu5fryz]exactly[/i:1wu5fryz] why having the judiciary selected by people who belong to members of political factions , in particular, would be extremely dangerous in the ways that I have outlined so many times. What you write above does not even attempt to address that, but merely claims that the prohibition on faction members joining the PJSP is like something else, and, for that reason alone, it is wrong. Why do you seek to contradict what I have explained, when I have given reasons for my explanation, and you have given no reasons that show my reasons to be flawed?

[quote:1wu5fryz]And I explain carefully, and using fewer words, short ones, that you are wrong.[/quote:1wu5fryz]

Why on earth do you think that the number or length of words is relevant to anything? This is about substance, not form. In my post above, I [i:1wu5fryz]respond[/i:1wu5fryz] to your attempts to show that I am wrong; are you claiming that the reasoning in that response is flawed? If so, what, specifically, do you claim are the flaws, and how, in each case, do they constitute flaws? If you can find no flaws, how can you honestly claim that I am wrong?

[quote:1wu5fryz]You are still restricting from freedom of association; [i:1wu5fryz]factions are not part of the government[/i:1wu5fryz]. They are non-governmental organizations recognized by the government.[/quote:1wu5fryz]

What does whether faction members are members of government have to do with anything? Why do you fail to answer my questions about how this is different from prohibiting members of one faction joining another?

[quote:1wu5fryz]*sigh*

I hate to give the appearance of the old fogey telling off the johnny-come-lately, but maybe you didn't notice the bit where I was one of the figures that brought forth this Confederation. A name change didn't change the principles Neualtenburg was founded on and were defended [i:1wu5fryz]even against the wishes of two founders[/i:1wu5fryz].

Your act does not fit them.[/quote:1wu5fryz]

If any of the principles upon which the Confederation was founded has the effect of requiring that judicial independence be in any way undermined, then it is a principle that has no place in any civilised nation and should be discarded immediately.

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Post by Publius Crabgrass »

[quote="Ashcroft Burnham":yjwltfoi]If any of the principles upon which the Confederation was founded has the effect of requiring that judicial independence be in any way undermined, then it is a principle that has no place in any civilised nation and should be discarded immediately.[/quote:yjwltfoi]

If one of those principles is participatory democracy through encouraging membership in factions, you would have it give way to judicial independence?

It seems to me that reasonable minds might differ over the relative importance.

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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":in9df9bf]If one of those principles is participatory democracy through encouraging membership in factions, you would have it give way to judicial independence?[/quote:in9df9bf]

It is a mistake to think that the principles conflict. The principle of participatory democracy is not that as many people as possible should join factions, but that whoever wishes to be a member of a group of people who all share broadly the same political views, and who seek to use whatever legitimate means at their disposal to advance those views, including being elected to our legislature, shall be permitted to create a faction or join an existing one. The principle of judicial independence is that the task of appointing judges should not be left to those who are likely to discharge it in a way that tends to further a political objective, rather than merely to find the people who are truly the best judges. The culmination of both of those principles are the propositions that everybody shall be free to join a faction, and that anybody may be a member of the PJSP, but that people may not do both at once. That is not a case of one principle conflicting with each other, but the result of two compatible principles working alongside each other. People seem to be misunderstanding what the principle of participatory democracy is about, and thinking that it conflicts with the principle of judicial independence, when, really, it does not.

In any event, even if they [i:in9df9bf]do[/i:in9df9bf] somehow conflict, even on the strongest arguments of those who claim against the prohibition on faction members joining the PJSP, the extent to which the principle is undermined in practice is necessarily a small one: faction members are prohibited from sitting on one, and only one, panel, which discharges one specific and narrow function. Faction members may do anything else. Indeed, faction members can, conversely, do some important things that non-faction members [i:in9df9bf]cannot[/i:in9df9bf] do, that is stand for election for, and be elected to, the Representative Assembly, a body which has far, far more power than the PJSP. Conversely, the principle of judicial independence is fatally compromised by permitting faction members to sit on the PJSP: a faction would almost inevitably field candidates at any given election both for the RA and the PJSP, and faction members would only get on the list of officially sponsored candidates of a party if they agreed to follow the party line on all issues. A faction could, therefore, very easily win a majority of seats on the RA [i:in9df9bf]and[/i:in9df9bf] PJSP in a single election, because people would make the same voting choices in a PJSP election as the RA election as regards factions. Those in a faction would have a considerable advantage in getting elected compared to those not in a faction. Once a single faction dominates both the RA and PJSP, the leader of that faction could simply instruct its members on the PJSP (on pain of being thrown out of the faction, and/or not being on the offiical list of faction candidates for the PJSP, or even, if the person wanted promotion, RA at the next election) actively to seek to appoint judges who would make decisions as favourable to the current government administration as possible, without regard to any other aspect of judicial ability. That would critically undermine the independence of the judiciary, and render the whole institution of the PJSP worthless. A government that has the power to control the judiciary has the power to increase its own power, which no state institution of any kind should ever have. Therefore, even if the two principles (participatory democracy and judicial independence) do, contrary to what I have exlpained above, conflict, in this particular case, it is judicial independence that must prevail.

[quote:in9df9bf]It seems to me that reasonable minds might differ over the relative importance.[/quote:in9df9bf]

If that is so, the correct means of resolving this conflict is to defer to what the elected representatives have decided, rather than for an unelected body to veto the legislation as unconstiutional.

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Post by Publius Crabgrass »

I believe the question has two parts:

(1) Should judges be factionless? Most of us, I think, believe the answer is yes. [Aliasi, or others, feel free to disagree.]

(2) Should those who vet judges, and hold with others the power to remove them, be factionless? Here is where I think there is room to disagree, and room for the SC to veto to give our elected representatives the chance to think again. Indeed, Ashcroft's default position, if there is not a fully-factionless PSJP, is that the RA (consisting only of those who have joined in factions) can do the job.

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Post by Gwyneth Llewelyn »

To further the philosophical discussion, what does "apolitical" mean in this context? :)

In my mind, all it means is "unable to run for Government, either as a member of a party or as an independent member".

But alternative formulations of "apolitical" are welcome. In a sense, [i:3jng5bqj]everybody[/i:3jng5bqj] is "political" if they have to make decisions.

A definition from Wikipedia:

[quote:3jng5bqj]Politics is the process by which groups make decisions. Although the term is generally applied to behavior within governments, politics is observed in all human (and many non-human) group interactions, including corporate, academic, and religious institutions.[/quote:3jng5bqj]

So, obviously, the answer is that the PSJP will be called to make decisions, and naturally it will be a "political" body.

In that sense, the paragraph that states "judicial independence" can only be applied to mean "political independence from other bodies". There are two ways to reach this:

1) Disallowing members of any other body to be part of the PSJP (easy — this is the same that happens with, say, the SC and Guild).
2) Ensuring that representatives of [i:3jng5bqj]all[/i:3jng5bqj] parties are duly represented in the PSJP.

I have no answers, just questions :)

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Post by Publius Crabgrass »

[quote="Gwyneth Llewelyn":3amlwyk1]To further the philosophical discussion, what does "apolitical" mean in this context? :)
[snip]In that sense, the paragraph that states "judicial independence" can only be applied to mean "political independence from other bodies". [/quote:3amlwyk1]

There is a difference, I think, between apolitical and nonpartisan. I believe the intent of the framers of this bill is to remove the PSJP from the political winds of factions, an intent which would not be met if it were mandated that all factions were represented on the PSJP.

The intent to remove the PSJP from the ill winds of partisan politics, however, might be achieved if faction members (as well as the factionless) could stand for office to the PSJP but not [b:3amlwyk1]as[/b:3amlwyk1] members of a faction. Thus, at election time we would have a faction-based election to the RA and a non-faction-based election to the PSJP, but ALL could fully participate in both elections.

If the SC simply vetoes (or is "rewrites" the appropriate term?) that part of the bill that prohibits members of factions from serving on the PSJP, that puts the issue squarely back in the hands of the legislature to fix it.

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Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":3k0n6k6n]
If any of the principles upon which the Confederation was founded has the effect of requiring that judicial independence be in any way undermined, then it is a principle that has no place in any civilised nation and should be discarded immediately.[/quote:3k0n6k6n]

No.

Perhaps I should back that up, hm?

Ashcroft, the entire problem with your point of view is it seems based around "this is how people should act, how can we force them to do so?" I would prefer a law system based around "This is how people DO act, how can we mitigate the damage?"

You seem to pretend that asking people to not publicly be a member of a faction will keep them independent and not influenced by a faction. This is, of course, utterly impossible. What would prevent me from simply leaving the DPU group while pushing a DPU-friendly agenda at every opportunity? Far better to keep such biases in the open!

Edit: Additionally... it occurs to me you're saying the [i:3k0n6k6n]Universial Declaration of Human Rights[/i:3k0n6k6n] doesn't belong in any civilized nation. Sure you cannot actually mean this?

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a few braincells collided, and I had a thought.

Post by Nightwind Leonov »

I don't mean to stick my nose in this little word flurry, but...

as far as I can tell, the main problem we have is that the wording of this bill says there can be no partisan [party affiliated] judge appointed to this position. We run into a problem that finding such a person is nigh impossible, as even if that person doesn't ascribe to one party or another (such as myself; I'm currently "unaffiliated" as it were), I still have my own views and takes on things, which would lead me to be naturally biased.

By citing the UN charter, yes, it does say to have unbiased judges. But, if we can take it more into context, it's not saying "the judge can't be part of one party or another" but more or less "the judge can't be influenced by one country/faction or another" as that would be the more pressing problem in the international community.

Therefore, I do reccomend this bill just get scrapped, because it's phrasing is far too confusing, and way too harsh. If you want to keep it, then you -literally- need to find new people to fill these honored positions... non citizens, I mean. and that's not only stupid to do, but dangerous to do.

On another random thought tangent... you can't throw out the defining, origional bills and principles this society was founded on. If you look at, say, the US, we still refer to them as our golden era, if you will... what I mean to say is, is that we don't throw out the constitution, or the Bill of rights over a current issue... that would be dangerous. I can only speculate that other modern democracies (France, UK, etc.) do roughly the same thing. The founding principles are, and should rightfully stay, our backbone, our guiding standard of rule, and should be interpreted; yes. altered to fit a current problem? no.

...and soft, fluffy things rock. :3

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Re: a few braincells collided, and I had a thought.

Post by Justice Soothsayer »

[quote="Nightwind Leonov":2tclasop]Therefore, I do reccomend this bill just get scrapped, because it's phrasing is far too confusing, and way too harsh. [/quote:2tclasop]

Let's not throw out the baby with the bath water. There is much that is good about the new judiciary; the controversial discussion so far has been mainly about the non-faction (non-partisan) qualifications.

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