Decisions of the SC meeting of October 3rd, 2006

[Gwyneth Llewelyn]

Dear citizens,

Having met on the 3rd of October of 2006, at around 5 PM SLT, in the Rathaus of the City of Neufreistadt, the Scientific Council of the Confederation of Democratic Simulators, deliberated the following:

1) That by an unanimous vote of all present members, Gwyneth Llewelyn should be elected Dean for another term.

2) That the [url=http://forums.neufreistadt.info/viewtop ... 5:2pb6hxhm]Judiciary Act[/url:2pb6hxhm], approved by the Representative Assembly on September 30th, 2006, contains two small passages that are deemed to be contrary to the principles embodying our constitution or clear violations of it, and thus will be vetoed and resubmitted to the RA with suggestions on how to rewrite it.

The first issue is in the parenthetical in the following sentence of Article VII, Section 19.:[quote:2pb6hxhm](not being members of, or affiliated with, any political faction in the Confederation of Democratic Simulators)[/quote:2pb6hxhm]
Limiting the right of association is a violation of the Universal Declaration of Human Rights (article 20, (1) "Everyone has the right to freedom of peaceful assembly and association."). Although in some cases the trading-off of certain rights is allowed under the UDHR, for the purposes of better serving the public (ie. members of the Judiciary forfeiting, of their own will, their right to free association for better serving the public), the UDHR also states under Article 29. (2) "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."

Although an impartial Judiciary is essential for a well-run legal system, there are far more possibilities of impartiality than merely the right to be an (unelected) party member and showing publicly their political affiliation. No provision has been found under this Judiciary Act to deal, for instance, with other forms of impartiality — eg. the right to freely establish business or work elsewhere (UDHR Article 23 [1]), the right to be part of a trade union (UDHR Article 23 [4]), the right to own property and benefit from it (UDHR Article 17 [1]), the right to discuss openly matters of judiciary secret and publicly emitting opinions in the media or on the streets (UDHR Article 19) about how a process should be judged, among many similar possibilities of impartiality, a list which is not exhaustive.

Picking one specific liberty — the freedom of association — while ignoring all the others was deemed by the SC to be unworth to fix constitutionally, since in effect it is too strong a right to get removed, while in fact it accomplishes not much in terms of validating "impartiality" of Judges. Actually, all the above issues — and plenty of others — are very likely more appropriate as a Code for Judicial Ethics (Judiciary Act, Constitutional Art. VII, Section 4 a), to be drafted by the Board of the Judiciary Commission and overseen by the Public Judicial Scrutiny Panel. Removing one of the fundamental rights is thus unnecessary for properly guaranteeing impartiality.

There is in the text of the Judiciary Act no plausible explanation why membership in a party is, in fact, more prone to impartiality than any of the other issues mentioned above.

The SC thus suggests to strike out the parenthetical in the text of Article VII, Section 19. An alternative is take similar measures to ensure that members are not influenced by other interests that might make them partial in their decisions — and not only party affiliation. Although, since the determination of "impartiality", under the Judiciary Act (corruption, bias, etc.), will be overseen by several other bodies, and ruled by a Code for Judicial Ethics, these checks and balances should suffice, as an alternative to removing a fundamental right.

A second issue is that, once this parenthetical is stricken out of the text of Article VII, Section 19., there is no provision for disallowing members of the Representative Assembly [i:2pb6hxhm]not[/i:2pb6hxhm] to serve in the Judiciary. The current spirit of the Constitution disallows members of the RA to serve on other branches: "Citizens may not serve simultaneously in the Representative and Philosophic branch. Members of the Representative Assembly and the Scientific Council may be members of the Artisanal Collective but may not vote nor hold elected positions in the Artisan". It seems clear that the purpose is to list, on the Constitution, which branches the RA members [i:2pb6hxhm]cannot[/i:2pb6hxhm] be voting/elected members in.

We thus encourage the RA to add a further amendment that explicitly disallows Judges to hold office while serving as elected members of the RA, eg, "Citizens may not serve simultaneously in the Representative, Philosophic, and Judiciary branch." or any similar formula that establishes the same principles, thus promoting an addition of a new Branch with proper symmetry to the existing ones.

3) Since the Judiciary Act is now resubmitted to the Representative Assembly for rewriting, it was felt to be premature to be appointing the required members of the future Judiciary, and the Scientific Council set the next meeting for October, 10th, at 1 PM SLT, to analyse the rewritten bill by the RA and eventual approval, as well as appointing the first members of the Judiciary.

We would like to express our personal thanks to all citizens who very encouragingly sent their submissions for admittance to the Judiciary (some of them even publicly).

Attending the meeting were Diderot Mirabeau, Flyingroc Chung, and Gwyneth Llewelyn, as well as quite a number of people in the public.

[Gwyneth Llewelyn]

Transcript and resolutions have been posted to the [url=http://wiki.neufreistadt.info/:2jn5x80e]Wiki[/url:2jn5x80e]

[Dianne]

Apologies to my fellow members of the SC for not attending the meeting.
I had intended to, but somehow was under the mistaken impression that the meeting was this [i:2ghnwdv1]weekend[/i:2ghnwdv1], not on Tuesday evening.

Gwyn asked for comments, so my comment is as follows:

I generally agree with the SC's handling of the review of this bill for constitutional problems or violations/conflicts with the founding documents. I disagree with the section of the bill where we are attempting to apply our rule of law to non-citizens and the world at large as I think it's terribly silly and indeed counterproductive, but unfortunately it does not violate the constitution or the founding documents merely to be "silly," and thus not within the purview of the SC to change or complain about that in any case.

My only disagreement in regards how this bill fits in with the founding documents is that it seems to be a reworking of the constitutional basis of the state "through the back door" sort of speak.

IMO what we are seeing with this bill is "part two." of a giant shift in the structure of the state itself, and given that this is being done without recourse to a constitutional convention or to properly addressing the structure of the state with constitutional amendments, I am opposed to it on those grounds.

While the bill seems like a simple law and order bill involving "house-cleaning" and simple clarification of rules we perhaps already agree to, I find that it changes the basic structure of government in a substantial way. Given that the presentation of the bill (as a judicial "house cleaning" bill), is not "in sync" with it's purpose and given that it's true meaning is not apparent, I would not have approved it, had I not (again!) been asleep at the wheel and failed to come to the SC meeting. (In my defense it was terribly short notice after months of inactivity).

To be specific, the foundation of our state is the three "branches" or lobes of government, as Gwyn mentions herself here when quoting from our constitution about who is allowed to serve on each branch:

[quote="Gwyneth Llewelyn":2ghnwdv1]... The current spirit of the Constitution disallows members of the RA to serve on other branches: [i:2ghnwdv1]"Citizens may not serve simultaneously in the Representative and Philosophic branch. Members of the Representative Assembly and the Scientific Council may be members of the Artisanal Collective but may not vote nor hold elected positions in the Artisan"[/i:2ghnwdv1]. .....[/quote:2ghnwdv1]

I find that without actually saying it, we are now living in a four, or perhaps five lobed state. Without actually naming it as such, the recent election of the Chancellor has effectively created an "Executive branch" of the government despite no clear statement to that effect and no constitutional amendments that I am aware of (someone please correct me if I am wrong on that). People I have talked to in the streets refer to the "executive branch of government" quite regularly.

Now, again as Gwyn herself states, we have a new "Judiciary Branch" of government, even as the "Artisinal Branch" withers on the vine (it's not official that the Artisinal branch is powerles and inconsequential now, it's just obvious that it is.)

[quote="Gwyneth Llewelyn":2ghnwdv1]... We thus encourage the RA to add a further amendment that explicitly disallows Judges to hold office while serving as elected members of the RA, eg, "Citizens may not serve simultaneously in the Representative, Philosophic, and [b:2ghnwdv1]Judiciary branch[/b:2ghnwdv1]." or any similar formula that establishes the same principles, thus promoting [b:2ghnwdv1]an addition of a new Branch with proper symmetry to the existing ones[/b:2ghnwdv1].....[/quote:2ghnwdv1]

Since the very foundation of our state is supposed to be the three equal branches of Government how can we now have four or five without calling it a constitutional change? Gwyn is right suggesting a constitutional amendment here, but my personal view is that this is perhaps putting the cart before the horse. Why pass a bill that has large constitutional ramifications and then suggest a "patch" on the constitution to ease it's passage? Shouldn't we be addressing the constitution directly here?

As I have said on many occasions, I am not adverse to completely re-working the constitution or the state and am no fan of the original setup that Ulrika et al. came up with. This is why I have several times promoted the idea of a constitutional conference and also why I advised the council on more than one occasion to scrap the constitution and begin anew with a new mandate from the people of the state itself, especially when it became clear that some of the founding members were actually trying to claim IP rights on the constitution itself.

Given that we decided to stick with the current constitution and founding documents however, IMO at minimum this bill should be reformulated as a constitutional amendment which is what it is.

Although I remain steadfast in the suggestion that given how "hazy" and out of focus our state has become and all the myriad problems we have with the founding documents as they currently stand a constitutional convention is really the only way to proceed .

Please note that I can only read so much, and this entire comment is based on my belief that the election of the Chancelllor and the passing of the Judiciary bill were done [i:2ghnwdv1]without[/i:2ghnwdv1] proper Constitutional amendments (I can find no mention of such anyway). If both things were in fact achieved by constitutional amendment and with the appropriate approval of the appropriate amount of the populace then...

nevermind.

[Gwyneth Llewelyn]

Well, to ease your mind a bit, Dianne, there have, indeed, been several amendments of the Constitution put into place. They're not even "implied" or even "hinted" or "shady", but definite and well-established.

There is perhaps some unclearness when the RA says "a bill has been passed that does this and that". Since the RA can pass bills which become laws, Constitutional amendments, and budget items, it's sometimes confusing to understand what the bill actually does.

The "Judiciary Act" is one of those cases. It is [i:32cwro92]mostly[/i:32cwro92] a Constitutional amendment. But it also passes laws to supercede former laws that became irrelevant or inconsistent.

There is no provision in the Constitution to require a Constitutional Convention to be called, in order to change that very same constitution. As a matter of fact, we have at this moment 12 amendments to the Constitution. None have called for a Constitutional Convention. As a matter of fact, when a citizen (Rudy Ruml) publicly suggested that a constitutional convention would be a good idea to hold, the very few who appeared there voted against this suggestion. In a sense, the notion of a "constitutional convention" is not embodied in Neufreistadt Law — if it were, things would be different.

There is nothing "written on stone" about the Constitution. The number of branches is not "holy"; neither is the way they interact and have checks and balances between them. It only says that any changes need to be validated by the SC regarding their conformity with the founding documents — meaning, mostly, that any constitutional changes can't violate either the Linden Lab ToS or the Universal Declaration of Human Rights.

The SC, as "Defender of the Constitution", is [i:32cwro92]not[/i:32cwro92] a body that tells the world how the Constitution should look like; rather the contrary — it's the [i:32cwro92]Representative Assembly[/i:32cwro92] that has that power. The SC only verifies that the way things get changed are valid according to the very same rules that were established.

Thus, there is no legitimacy — in the sense of the Constitution — to say that "the very foundation of our state is the three equal branches of Government". The very foundation of our state is, indeed, the Constitution which allows us to create a body of laws above every citizen and the ability to vote on elected representatives that are allowed to change all those laws at will — if they follow the procedures that were established.

Our job as the SC is just to confirm that those procedures were, indeed, followed. And they certainly have been.

I agree that my wording on the explanation might have been unfortunate, and that's why I asked all members of the SC to revise it before posting it. This "bill", Dianne, is precisely a bill of [i:32cwro92]a constitutional amendment[/i:32cwro92]. It starts at the very beginning, just after the preamble:

[quote:32cwro92]1. The following section shall be inserted at the end of the Constitution, but before the table of amendments: –[/quote:32cwro92]

It is quite clear what it is about: it's a bill for a constitutional amendment!

I fail to understand what your issue is?

If the RA indeed calls for a constitutional convention, or even proposes that constitutional conventions are, indeed, the way to deal with future constitutional amendments, well, that's up to the RA. The SC cannot interfere. Not even advise — unless that advice is asked for!

I would also like you to point out that the Executive Branch was created, in fact, through Amendment 11 of the Constitution, and Amendment 12 introduces an Executive Branch veto. So, yes, you have some catching up to do — but fortunately, the RA Archivist has posted all that to the Wiki.

Finally, constitutional amendments just need a 2/3 supermajority of the RA to be approved. These amendments (and the one now introduced by the Judiciary Act) were passed [i:32cwro92]unanimously[/i:32cwro92]

I hope that explains it clearly enough!

[Dianne]

[quote="Gwyneth Llewelyn":1efqocal]...
It is quite clear what it is about: it's a bill for a constitutional amendment!

I fail to understand what your issue is?...[/quote:1efqocal]

My issue is exactly that. I completely disagree that it is "clear" (let alone "quite clear"), that this bill is really about a [b:1efqocal]major revision to the constitution[/b:1efqocal]. It reads like a rather minor alteration in the way trials are conducted and is put forward as such by Ashcroft, yet it actually envisions radical changes to the structure of the state itself.

It seems really bad form to me to have (as you yourself mention), the bills going through the house sometimes referred to as bills and sometimes referred to as constitutional amendments. They are either one or the other as there is a different legislative requirement for each. To have bills go through the house that seems to be "a bit of each," is unclear at best.

A constitutional amendment is a different thing entirely from simply passing a law about what colour the houses in the main square should be or some such piffle, and I would think that the many hours of debate that has ensued over the topic would inform everyone in government by now that constitutional amendments are indeed a touchy subject with a sizable percentage of the population.

We have had many debates about this before and had many SC meetings where this exact thing (being clear about the difference between the two things) was brought up. We eventually decided that a constitutional amendment was a different order of beast altogether, requiring of more than just a simple majority vote. We even pushed around the idea that a popular referendum should be called on all Constitutional amendments. I didn't agree with that, but many of our citizens thought it was the way to go at the time.

To say now that we can just mix the two objectives together in a single bill and not get to upset about differentiating the one from the other, or even being that clear about what is being proposed is to ignore hours of debate on the subject. Excuse me for being dumb, but I didn't realise that this was a revision to the constitution, at least not on first sight. This bill should have had [b:1efqocal]"Constitutional Amendment"[/b:1efqocal] at the top of the page in big letters and be structured so that it's *only* concern was the specific amendment to the Constitution required to make the Judicial changes work. It should (IMO) also contain a full explanation of the ramifications of the proposed change. A separate [i:1efqocal]second[/i:1efqocal] bill that dealt with the details of the Judicial system that need not be contained in the constitutional amendment should then follow it.

There is also a difference in scale here. A constitutional amendment that simply clarifies a "fuzzy" passage in our constitution (and this is indeed the nature of most of the constitutional amendments made so far) is one thing. A constitutional amendment that goes to the heart of the very structure of the government is something else entirely. My point is that a wise government, and a just government, would not think of doing such things without first garnering the almost unanimous support of the population either through a referendum or a constitutional convention. We have had several discussions amongst ourselves about this fact.

I am of course completely aware that constitutional amendments have been passed before and that there is no requirement in the constitution for the RA to seek a proper mandate from the people to put forward even the most radical of changes. This is sad, and I think dangerous, but it's the way it is. It's not illegal, it's not even completely without precedent in RL, but it is (IMO) shocking, and terribly unwise.

As to the three parts or branches of government [b:1efqocal]not[/b:1efqocal] being the "foundation of our state" I respectfully disagree. The constitution is of course the foundation as you suggest, but the constitution is not a blank piece of paper.

The constitution primarily lays out the form and structure of the government of Neufreistadt. It's main descriptive phrases and the majority of its substance is devoted to describing the three lobed governmental structure and a very few of the practical details of that structure. That *is* (for better or worse), the structure of our government. Since the majority of the constitution itself is about this structure how can that structure not be the foundation of our state?

Adding "extra lobes" or cutting off old ones is indeed [b:1efqocal]radical constitutional surgery[/b:1efqocal], worthy or more than a simple .."oh, and this part of this bill means we change this part of the constitution." It's tantamount to saying in the US that a single bill can wipe out the House of Representatives and establish a new branch of government called the "business branch," that now has equal power with the executive branch, or any other radical nonsensical thing you can think of.

Because I have been in error over missing information and my inability to read the voluminous material on the subject I will refrain from further comment on this subject until the next SC meeting, but this whole thing is just looking more and more ridiculous to me.

Think of it this way. Why would anyone ever trust their business or their money or their criminal proceedings to a government that could change from a democracy into a dictatorship or from a matriarchy into a federation or any number of a hundred other forms in such a short time? What if we decide next month that the Guild was actually kind of a good idea and we want it back?

IMO there has to be some [b:1efqocal]stability[/b:1efqocal] to the structure of the state and it should of necessity be a slow and difficult process to change it. If we are in fact engaged in a process of radical constitutional revision then the appropriate forum for that is a constitutional convention.