Re-writing the Judiciary Act

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Ashcroft Burnham
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Re-writing the Judiciary Act

Post by Ashcroft Burnham »

I am very disappointed by the recent decision of the Scientific Council that the prohibition on faction members serving on the Public Judiciary Scrutiny Panel would violate people's right to free association, and was not a proportionate response to the legitimate aim of securing judicial independence, and that the creation of a functioning judiciary has been delayed yet agian. I am particularly disappointed by the fact that the very specific, precise and careful reasoning that I had set out on the "Judiciary - positions vacant" thread, explaining exactly how faction membership, in particular, and over and above membership of any other kind of organisation, critically endangered judicial independence, itself a right guaranteed by Article 10 of the UNHDR. I am also most disappointed that the timing of the meeting was such as to prevent me from attending and defending effectively my arguments on the point.

The bad decision being made, however, and being binding, its ill effects must be mitigated in what I hope really will be the final draft of the Judiciary Act. I was very late at court to-day, and am thus unable to do the drafting this evening, but I will set out what I propose in broad outline, and draft the new version to-morrow.

Firstly, I shall, as the Scientific Council ordered, delete the faction prohibition on PJSP members. Secondly, as the Scientific Council ordered, I shall add sections preventing members of the government from being judges, the Chair of the Judiciary Commission, or members of the Public Judiciary Scrutiny Panel. Thirdly, I shall make the Code of Judicial Ethics binding on members of the PJSP, and forthly, I shall give the judiciary and the Scientific Council (and those bodies alone) the power to impeach members of the PJSP on the same grounds as on which judges can be impeached (bias, corruption, insanity, gross dereliction of duty, serious breach of the code of ethics, conduct tending to bring the judiciary into serious disrepute).

The Code of Judicial Ethics, in turn, will contain, when drafted by the Board of the Judiciary Commission, provisions limiting the partisanship of those who are members of, or standing for positions on, the PJSP, without prohibiting faction membership outright, by, for example, prohibiting candidates for the PJSP standing for election on a platform that they will vote to install judges who will favour one or other party in any case, or who will advance any particular policy objective or objectives.

I hope that, finally, all parties will be at least minimially satisfied with this proposal, and I shall post a full draft of it as soon as I can.

Ashcroft Burnham

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Re: Re-writing the Judiciary Act

Post by Ranma Tardis »

[quote="Ashcroft Burnham":2eixkhqo]I am very disappointed by the recent decision of the Scientific Council that the prohibition on faction members serving on the Public Judiciary Scrutiny Panel would violate people's right to free association, and was not a proportionate response to the legitimate aim of securing judicial independence, and that the creation of a functioning judiciary has been delayed yet agian. I am particularly disappointed by the fact that the very specific, precise and careful reasoning that I had set out on the "Judiciary - positions vacant" thread, explaining exactly how faction membership, in particular, and over and above membership of any other kind of organisation, critically endangered judicial independence, itself a right guaranteed by Article 10 of the UNHDR. I am also most disappointed that the timing of the meeting was such as to prevent me from attending and defending effectively my arguments on the point.

The bad decision being made, however, and being binding, its ill effects must be mitigated in what I hope really will be the final draft of the Judiciary Act. I was very late at court to-day, and am thus unable to do the drafting this evening, but I will set out what I propose in broad outline, and draft the new version to-morrow.

Firstly, I shall, as the Scientific Council ordered, delete the faction prohibition on PJSP members. Secondly, as the Scientific Council ordered, I shall add sections preventing members of the government from being judges, the Chair of the Judiciary Commission, or members of the Public Judiciary Scrutiny Panel. Thirdly, I shall make the Code of Judicial Ethics binding on members of the PJSP, and forthly, I shall give the judiciary and the Scientific Council (and those bodies alone) the power to impeach members of the PJSP on the same grounds as on which judges can be impeached (bias, corruption, insanity, gross dereliction of duty, serious breach of the code of ethics, conduct tending to bring the judiciary into serious disrepute).

The Code of Judicial Ethics, in turn, will contain, when drafted by the Board of the Judiciary Commission, provisions limiting the partisanship of those who are members of, or standing for positions on, the PJSP, without prohibiting faction membership outright, by, for example, prohibiting candidates for the PJSP standing for election on a platform that they will vote to install judges who will favour one or other party in any case, or who will advance any particular policy objective or objectives.

I hope that, finally, all parties will be at least minimially satisfied with this proposal, and I shall post a full draft of it as soon as I can.[/quote:2eixkhqo]

I think more study is needed before this bill can be approved. It is very complex and is outside of my area of experience. My knowledge of law is limited mostly to the business aspects in Japan and the United States. It is easy to get impatience and pass a bill on the quick. It is harder to put a more thoughtful effort into the process, I urge that the process lean toward the thoughtful careful approach over the other. I think a public hearing on this subject is in order and at a friendly time for most citizens. Holding a meeting at 4am means excluding a lot of the residents from attending.

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Post by Patroklus Murakami »

Respectfully Ranma, I don't agree that this is necessary.

As several people have pointed out, the Judiciary Bill has been fully debated in numerous fora including RA meetings, CSDF meetings and these forums for two months now. The bill was passed unanimously by the RA and I don't accept that it should be unpicked now the decision has been taken.

The issue I raised here was related solely to the selection of the PJSP. Once an acceptable way forward is developed for that I think we need to progress towards a fully functioning judiciary as quickly as we can to realise the benefits this will bring to Neufreistadt/CDS.

Ranma Tardis

Post by Ranma Tardis »

Respectfully Pat,

I disagreed with this bill yesterday, today and will continue to do so tomorrow. Nothing will change my mind on this bill. It is way too complex for an easy understanding and seems somewhat redundant. I came to Neufreistadt with a 3 part government the Regular Assembly, Science Council and Guild. Now it appears that 2 out of three are gone or in the process of disappearing. I wonder when the last one will disappear as we know it. It would seem that she whose name that must not be spoken might not be completely incorrect after all. There is nothing more to be spoken, I have nothing more to say.

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Post by Justice Soothsayer »

[quote:62ltnjtm]The Code of Judicial Ethics, in turn, will contain, when drafted by the Board of the Judiciary Commission, provisions limiting the partisanship of those who are members of, or standing for positions on, the PJSP, without prohibiting faction membership outright, by, for example, prohibiting candidates for the PJSP standing for election on a platform that they will vote to install judges who will favour one or other party in any case, or who will advance any particular policy objective or objectives.
[/quote:62ltnjtm]

I am a little concerned about this paragraph. A code of judicial ethics is good, but perhaps it should be reviewed by the legislative branch, although I suppose the RA could always delete by legislation any provisions that it disagrees with.

I am more troubled by restricting the campaigning by prospective members of the PSJP who seek to install judges who "who will advance any particular policy objective or objectives". Let's imagine a scenario, for example, where the judiciary took months to resolve simple cases, and some stood for the PSJP on a platform of installing judges who were more prompt. This as yet unwritten code could improperly restrict the free speech rights of candidates for the PSJP.

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Re: Re-writing the Judiciary Act

Post by Dianne »

[quote="Ashcroft Burnham":2xutuunn]... the creation of a functioning judiciary has been delayed yet agian. ....[/quote:2xutuunn]This phrase keeps coming up again and again and it just makes me wonder what the big deal is.

We are talking about a complete Judiciary system and fitting it into an already extant and working state with a rudimentary judicial system of it's own that in my humble opinion has worked very well the very few times it has been called upon. What exactly is this "need for speed?"

I am certainly not against the establishment of a judicial system, but why the rush, and why the seeming need to present a perfectly crafted "bill to end all bills" that won't be altered or changed?

IMO we should start with a simple constitutional amendment that establishes the need for a Judicial branch of government in the first place and argue about that for a while. Then if that is approved, we can argue about the details of the Judicial appointments based on our now improved understanding of how this [b:2xutuunn]new branch of government[/b:2xutuunn] fits in with the others.

Is the Judiciary a part of the Philosophical branch or a separate branch as others have suggested? The answer to that question contains the information needed to answer the questions posted on this thread about association and bias.

If the Judiciary is a part of the Philosophical branch, then it's members may not serve on the other branches, but may be members of political parties, that's already in the constitution. If it's not, then how does it fit into the three way veto that the original three branches of government have? does it not unbalance that stable triangle to an extent?

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Re: Re-writing the Judiciary Act

Post by Ashcroft Burnham »

[quote="Ranma Tardis":6l8izsrk]I think more study is needed before this bill can be approved. It is very complex and is outside of my area of experience. My knowledge of law is limited mostly to the business aspects in Japan and the United States. It is easy to get impatience and pass a bill on the quick. It is harder to put a more thoughtful effort into the process, I urge that the process lean toward the thoughtful careful approach over the other. I think a public hearing on this subject is in order and at a friendly time for most citizens. Holding a meeting at 4am means excluding a lot of the residents from attending.[/quote:6l8izsrk]

This is an inappropriate thread for this point: this thread is about discussing the particular amendments necessary to the Judiciary Act to enable it to be ratified by the Scientific Council. If you have a more generalised point about the Judiciary Act, you ought to have made a separate thread.

In any event, your suggestion does not make any sense: firstly, I know that you dislike complexity (although you have not even attempted to explain how it is conceptually possible to have a system that is truly simple, given the inherent complexity of the issues that it will have to decide), but the matter has already been finally decided, subject to the amendment of one small section for Scientific Council ratification. Secondly, you claim that your knowledge of such matters is limited, and yet claim that more thought of an unspecificed kind is necessary for an unspecified purpose.

It is wholly wrong to suggest that inadequate thought has gone into the Judiciary Act - a very great deal indeed of thought has gone into it over a very long time by a great many people. It is recklessly ill-informed to imply, as you clearly do, that the matter has not been given enough thought.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":2wkmsiw9]I am a little concerned about this paragraph. A code of judicial ethics is good, but perhaps it should be reviewed by the legislative branch, although I suppose the RA could always delete by legislation any provisions that it disagrees with.

I am more troubled by restricting the campaigning by prospective members of the PSJP who seek to install judges who "who will advance any particular policy objective or objectives". Let's imagine a scenario, for example, where the judiciary took months to resolve simple cases, and some stood for the PSJP on a platform of installing judges who were more prompt. This as yet unwritten code could improperly restrict the free speech rights of candidates for the PSJP.[/quote:2wkmsiw9]

Ahh, I see the point "policy" could be interpreted broadly to mean "policy with respect to judicial efficiency or standard of service", which would not be a sensible thing to restrict. That was not the final wording, of course, but a rough outline. Clearly members of the PJSP should not have to be silent on issues of policy relating to judicial efficiency, and related matters, but, at the same time, judicial independence should be maintained by prohibiting people from being elected to the PJSP on such a platform as "I will vote for judges who will decide cases in favour of business owners over consumers", or "I will vote for judges who believe in Marxist principles, and who will use the judiciary to advance Marxist policies in the CDS".

Perhaps the best way of restricting it would be to prevent candidates claiming in any campaign that they would vote for judges on the basis of which judicial candidates would advance any policy objective by the way in which they would decide contested issues between litigants.

Incidentally, the issue is not one of freedom of speech: the point is not that the rules would not allow people to express themselves, but that the rules should prevent people, not only from claiming that they will do these things, but from actually doing them, and that a rule preventing people from claiming that they will do what will in any event be prohibited is just a means of enforcing the substantive prhoibition.

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Re: Re-writing the Judiciary Act

Post by Ranma Tardis »

[quote="Ashcroft Burnham":3p9dwq5d][quote="Ranma Tardis":3p9dwq5d]I think more study is needed before this bill can be approved. It is very complex and is outside of my area of experience. My knowledge of law is limited mostly to the business aspects in Japan and the United States. It is easy to get impatience and pass a bill on the quick. It is harder to put a more thoughtful effort into the process, I urge that the process lean toward the thoughtful careful approach over the other. I think a public hearing on this subject is in order and at a friendly time for most citizens. Holding a meeting at 4am means excluding a lot of the residents from attending.[/quote:3p9dwq5d]

This is an inappropriate thread for this point: this thread is about discussing the particular amendments necessary to the Judiciary Act to enable it to be ratified by the Scientific Council. If you have a more generalised point about the Judiciary Act, you ought to have made a separate thread.

In any event, your suggestion does not make any sense: firstly, I know that you dislike complexity (although you have not even attempted to explain how it is conceptually possible to have a system that is truly simple, given the inherent complexity of the issues that it will have to decide), but the matter has already been finally decided, subject to the amendment of one small section for Scientific Council ratification. Secondly, you claim that your knowledge of such matters is limited, and yet claim that more thought of an unspecificed kind is necessary for an unspecified purpose.

It is wholly wrong to suggest that inadequate thought has gone into the Judiciary Act - a very great deal indeed of thought has gone into it over a very long time by a great many people. It is recklessly ill-informed to imply, as you clearly do, that the matter has not been given enough thought.[/quote:3p9dwq5d]

I disagree with you on this point. A bill was passed and the Science Council sent it back to the Regular Assembly. Part of any action is to determine if the bill was worthy of passing in the first place. The second part would be for the RA members to get with the citizens to determine what actions they desire.
The problem with the bill is that it is flawed in so many ways. Thus it is correct to determine if something is possible to rewrite it at all. I do not believe this bill is constitutional since it is trying to change the basic government structure of Neufreistadt. This requires a constitutional amendment. The RA lacks the authority to do this.
(An update) Gwyneth Llewelyn has written under the SC Forum that the 5 members of the RA can change the consitution? If this is true in essence all bills can be consitutional admendments. There is no checks and balance to their power. Anything they "create" can be as easliy "eliminated". If this is true the NEUALTENBURG PROJEKT is a complete failure.

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Re: Re-writing the Judiciary Act

Post by Ashcroft Burnham »

[quote="Dianne":1alq5pys][quote="Ashcroft Burnham":1alq5pys]... the creation of a functioning judiciary has been delayed yet agian. ....[/quote:1alq5pys]This phrase keeps coming up again and again and it just makes me wonder what the big deal is.[/quote:1alq5pys]

All things being equal, it is always better to do something that needs to be done sooner, rather than later. At this juncture, I do not believe that there are any reasons to believe that anything is relevantly unequal in this regard.

[quote:1alq5pys]We are talking about a complete Judiciary system and fitting it into an already extant and working state with a rudimentary judicial system of it's own that in my humble opinion has worked very well the very few times it has been called upon. What exactly is this "need for speed?"[/quote:1alq5pys]

Many would disagree that it worked well on the two occasions that it was called on to work, and it may well be that the fewness of the cases that it had to decide was partly due to the lack of any formalised procedure by which cases can be brought, meaning that fewer disputes were resolved by our judiciary than needed resolving. I have written at length elsewhere on the problems with our former judicial system.

[quote:1alq5pys]I am certainly not against the establishment of a judicial system, but why the rush, and why the seeming need to present a perfectly crafted "bill to end all bills" that won't be altered or changed?[/quote:1alq5pys]

Are you suggesting that it is a [i:1alq5pys]bad[/i:1alq5pys] thing to try to perfect a bill before it is passed, rather than pass something in a rush and have to change it later? Is that not the exact opposite of what you have been claiming elsewhere?

[quote:1alq5pys]IMO we should start with a simple constitutional amendment that establishes the need for a Judicial branch of government in the first place and argue about that for a while.[/quote:1alq5pys]

Do you mean "should have started", since the Judiciary Act is now law, subject to the revisions ordered by the Scientific Council?

In any event, what exactly would this acheive? What precisely would be the effect of such a constitutional amendment? The idea of introducing a judicial system piecemeal was debated at length and rejected as being unworkable.

[quote:1alq5pys]Then if that is approved, we can argue about the details of the Judicial appointments based on our now improved understanding of how this [b:1alq5pys]new branch of government[/b:1alq5pys] fits in with the others. [/quote:1alq5pys]

Why on earth do people keep calling the judiciary a "branch of government"? A judicial system may be an institution of state, but, certainly in the CDS, and any other civilised nation, it is most certainly not a branch of government: it is independent of government.

But what exactly do you think is wrong with the understanding of how the judiciary that we now have fits in with our other branches of government? Did Gwyneth not explain it very well indeed in the Scientific Council meeting the transcript of which was posted recently?

[quote:1alq5pys]Is the Judiciary a part of the Philosophical branch or a separate branch as others have suggested?[/quote:1alq5pys]

I cannot see how the answer to that can be unclear: our new judiciary is an autonomous institution of state, and not part of any of our previously existing branches of government. Its relationship with all of the other elements of the state is clearly and precisely set out in the Judiciary Act.

[quote:1alq5pys] The answer to that question contains the information needed to answer the questions posted on this thread about association and bias.

If the Judiciary is a part of the Philosophical branch, then its members may not serve on the other branches, but may be members of political parties, that's already in the constitution.[/quote:1alq5pys]

The Scientific Council ordered, did it not, that the Judiciary Act be amended so as to contain an express prohibition on members of the judiciary being members of any other institution of state?

[quote:1alq5pys] If it's not, then how does it fit into the three way veto that the original three branches of government have?[/quote:1alq5pys]

The judiciary does not, nor ought it, veto anything. It is not a political institution, but a judicial one. Its function is to decide cases brought before it in accordance with our law. That function is not compatible with exercising a power of veto over anything, or any power of veto being exercised over it in relation to anything (except certain ancillary administrative functions, perhaps).

[quote:1alq5pys]does it not unbalance that stable triangle to an extent?[/quote:1alq5pys]

How, exactly, do you imagine that it does that?

In any event, as I have already stated, the judiciary debate is in the past: the democratically elected legislature are all agreed that the Judiciary Act should be passed, and the Scientific Council ratified it after deletion of one clause, ordering the Representative Assembly to amend it in certain respects. All that remains is for the Representative Assembly to make those amendments and for the Scientific Council to appoint the people who have already applied to the new positions that it creates. I find it odd that you are now making these points, since you have already stated that you agree with all but some very specific parts of our new judiciary (those issues being ones that had already been debated at length).

It is time to move forwards, not back, and to embrace the great benefits that a proper judiciary will bring us, whilst we focus on the new issues that face us, such as developing and populating Colonia Nova, and expanding to the mainland through franchulates. As with the Chancellor, there were some aspects of the way in which the constitution was set out in relation to the Chancellor with which I did not agree, but we have a chancellor now, and, since the system seems to be working well enough, I do not dwell on those issues, but look forwards to what we seek to acheive in the future. I cannot see why the position should be any different in relation to the judiciary. There comes a time when, whatever one's views, one must accept what has been decided by established procedure, and move on. Now is that time in relation to our new judiciary.

[i:1alq5pys]Edit[/i:1alq5pys]: Dianne, from reading your post in the Scientific Council Announcements forum, you seem to think that the Judiciary Act was not a constitutional amendment, which might be what made you think that the rules were not being followed. I do not know why you think that the Judiciary Act was not a constitutional amendment, since it expressly purported to amend the text of the constitution. It [i:1alq5pys]was[/i:1alq5pys] a constitutional amendment: it inserts new passages into the written constitution. It could not have been passed without a 2/3rds majority in the Representative Assembly.

It was never intended to be a "patch", as you wrote elsewhere, on our existing constitution, but a carefully planned amendment to part of it. Perhaps you were confused by the form of the Judiciary Act (I followed the British convention of having one legislative Act amend a document by specifically stating what sections are to be removed and inserted); were you under the impression that the [i:1alq5pys]name[/i:1alq5pys] meant that it was not a constitutional amendment (such that it ought to have been called the "Judiciary Amendment")? Perhaps this is a clash of protocols, but it is a matter of form, rather than substance, since (1) it is clear that the Act purports to amend the constitution, and thus is a constitutional amendment, and (2) the Act was passed with the requisite majority. Since no express stipulation of the constitution requires constitutional amendments to be in any particular form, it cannot be invalid for that reason alone.

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Re: Re-writing the Judiciary Act

Post by Ashcroft Burnham »

[quote="Ranma Tardis":3mlcsusa]I disagree with you on this point. A bill was passed and the Science Council sent it back to the Regular Assembly.[/quote:3mlcsusa]

The Scientific Council specifically did not veto the whole bill, but removed a single clause, and ordered the Representaive Assembly to add a new section: that is clear from the meeting transcript.

[quote:3mlcsusa]Part of any action is to determine if the bill was worthy of passing in the first place.[/quote:3mlcsusa]

The Sceintific Council only has the power to veto or amend an act of the Representative Assembly on the ground that it is either unconstitutional or in conflict with a founding document. It is for the Representative Assembly alone to determine whether any bill is worth passing.

[quote:3mlcsusa]The second part would be for the RA members to get with the citizens to determine what actions they desire.[/quote:3mlcsusa]

The issue has already been decided.

[quote:3mlcsusa]The problem with the bill is that it is flawed in so many ways.[/quote:3mlcsusa]

You had plenty of opportunity to outline in detail the ways in which you believed that the Judiciary Act was flawed when it was being debated prior to being passed. You chose not to take that opportunity. It is now too late, and rightly so.

[quote:3mlcsusa]Thus it is correct to determine if something is possible to rewrite it at all. I do not believe this bill is constitutional since it is trying to change the basic government structure of Neufreistadt.[/quote:3mlcsusa]

That is not what the Scientific Council decided: it decided that one clause, and one clause alone, was incompatible with the UNHDR.

[quote:3mlcsusa]This requires a constitutional amendment. The RA lacks the authority to do this.[/quote:3mlcsusa]

You grossly misunderstand the powers of the Representative Assembly: the constitution clearly states that, by a 2/3rds majority, the Representative Assembly may amend the constitution. The Judiciary Act was passed unanimously.

[quote:3mlcsusa]An update) Gwyneth Llewelyn has written under the SC Forum that the 5 members of the RA can change the consitution? If this is true in essence all bills can be consitutional admendments. There is no checks and balance to their power. Anything they "create" can be as easliy "eliminated". If this is true the NEUALTENBURG PROJEKT is a complete failure.[/quote:3mlcsusa]

You think that a government is a failure merely because it may change and adapt as the state of which it is a government matures? Why, precisely? What, exactly, do you claim that the criteria are for judging the success of a government - in other words, what, precisely, do you claim that the functions of government are?

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Post by Gwyneth Llewelyn »

To clarify,

Indeed the SC did not "reject" the bill introducing the Judiciary, but just submitted two proposals for the RA to rewrite some tiny aspects of it. Technically, of course, by using that power of resubmitting the bill it is still a veto :) but in its weakest form — a plea for correcting a slight wording of the bill that the SC found out to be a "too strong" requirement in overriding unalienable human rights.

Contrast that with a veto on the (former) bill introducing the Finance Committee without properly changing the Constitution by relocating some of the powers of the Guild into a new branch. That was a legislative decision of the RA to acquire powers it did not have; thus, the SC flagged it for review and did not allow it to pass as a new law. Subsequently, the RA clarified the scope of the Guild's powers, and enacted the Constitutional Amendment that introduced the Executive Branch. With those in place, the SC had no more legal grounds to raise any issues. Thus, right now, the Treasurer has the legal power of appointing its own Finance Committee, if they wish. This is the way the RA and the SC act in tandem to introduce change to adapt it to the needs of a working government :)

Also to clarify on Ashcroft's comments on "being disappointed" with the recent decision of the SC to suggest a rewriting of the bill. Diderot Mirabeau reasoned very correctly that there are, indeed, issues to be addressed when validating the independence and neutrality of members of the Judiciary. It is also reasonable to accept some limitations on the exercise of a particular right as established by the 30 articles of the UDHR, in exchange for a working and operational judiciary system. However, the [i:2djdsz81]scope[/i:2djdsz81] of the need of limiting the exercise of those rights is really the issue here. Ashcroft tends to argue that non-affiliation to a party is more important than any other thing, to the point that his suggestion was to introduce that as part of the Constitution.

The reasoning of the SC was, however, that the "dangers" attributed to party affiliation are mostly irrational, compared, for instance, with the dangers of getting bribed to interfere with a judicial decision, or the dangers of members of the Panel to be affiliated with other organisations (companies and businesses, pressure groups, lobbies). In effect, the SC suggested that there is a rather large scope of ways that individual members of the judiciary can be corrupted, bribed, biased, blackmailed, threatened, or otherwise prompted to pronounce a non-neutral judgement. The plethora of possibilities is too vast to enumerate.

However, the very same bill addresses all those issues, by introducing several checks and balances on the powers of the members of the judiciary. There is a whole body (the Panel) just to deal with irregularities. All branches of government have impeachment powers over the Judiciary. The Judiciary Comission will have a Code of Ethics (since it's a Constitutional requirement, they cannot escape the need to draw one), and provisions have been made, at several sections of the Judiciary Act, to validate all actions and eventual irregularities of all members of the judiciary. The very same Panel is validated by the whole citizenry through a popular vote.

In effect, there are so many provisions drawn on the Judiciary Act to constantly guarantee that members of the Judiciary remain neutral and unbiased, and so many possible checks at each step allowing external bodies to remove a member of the judiciary guilty of bias, corruption, or non-neutrality, that is too strong a requirement for a member of the Judicia to [i:2djdsz81]additionally[/i:2djdsz81] forfeit one of their unalianable rights (while, for instance, still allow them many other rights that can conduct to an unbiased stance — the right to own property, the right to own a business, and so on), based mostly on a strong argumentation on the "dangers of party affiliation", which are grounded on a personal fear which is not only rather irrational, but certainly not shared by most of the citizens of Neufreistadt.

In fact, if that "fear" leads indeed to "imminent danger", and this is a position shared by all members of the newly-to-be-appointed Judges, they might embody it in their Code of Ethics. As it stands now, this code doesn't require any validation by anyone else but the Judges of the Common Jurisdiction — if they, among themselves, require non-allegiance to any political party or similar political affiliation, as a corporativistic structure, they will certainly be allowed to do that. The SC does not have any "power" over any corporation's internal procedures and codes of ethics; all they need is to validate that a bill introducing a constitutional amendment respects, in the letter as well as in spirit, the requirements of the founding documents, among these the Universal Declaration of Human Rights. What private citizens do among themselves is not for the SC to decide :)

There remains a question if the [i:2djdsz81]Panel[/i:2djdsz81] (and not the Judges) — which might not be bound by any Code of Ethics — will mantain any semblance of neutrality if they are affiliated to any party. In this particular case, the best ever method of dealing with that is getting them elected by the citizens :) And this is [i:2djdsz81]precisely[/i:2djdsz81] what the Judiciary Act states. So, in the end, the overseers of neutrality and non-bias will be the citizens themselves, collectively.

In retrospective, the SC just made a rather simple statement (which will be certainly used in future proceedings!): if there are any "fears" of "imminent danger", introduce more checks and balances; if those checks and balances are felt not to be enough, rely upon the wisdom of the citizens to elect their representatives whom they feel to be the best ones to comply with the requirements. :) Always avoid to artifically remove any unalienable human rights if there are far better choices for accomplishing the very same goal — in this case, the risks of bias and corruption — which don't need such strong requirements.

As a personal note, and not speaking [i:2djdsz81]ex cathedra[/i:2djdsz81] as a member of the SC, of course, I should add that I'm much more scared of a legislature that allows the reduction of basic human rights — such a bad precedent! — even if it is "for a good cause", than I fear bias and corruption, when proper mechanisms to deal with those are in place. The "danger", in my mind, is much greater when human rights are removed!

Also, I should add that as a citizen of Neufreistadt, I would certainly had preferred to have this discussed [i:2djdsz81]before[/i:2djdsz81] the bill was voted. However, I'm always in the very difficult position of possibly being accused of "bias" if I [i:2djdsz81]suggest[/i:2djdsz81] how a bill should be worded in order not to veto it at the SC — since this would lead inevitably to another bad precedent of having the SC "gently nudging" the RA to pass "appropriate" legislation, and, in a way, to illegitimately "introduce" lesgislation that way. It is a rather hard feat to be able to voice a personal opinion while at the same time avoiding to give the impression that the SC has any legislative powers. It does not, and cannot have any.

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Re: Re-writing the Judiciary Act

Post by Dianne »

Ashcroft, you simply write too much in terms of volume than any one person can begin to answer. You should be careful you are not stifling your critics out of sheer exhaustion rather than points won or lost in a debate. :)

Perhaps it's your legal training but it's really not necessary to respond to every single sentence of every single post with a counter sentence. It just makes the debate defuse and impossible to follow.

In scanning this post (between the dozens of other RL duties I perform this day) I notice one clear error so I will respond to that alone.

[quote="Ashcroft Burnham":1vor07ie]... Do you mean "should have started", since [b:1vor07ie]the Judiciary Act is now law[/b:1vor07ie], subject to the revisions ordered by the Scientific Council? ....[/quote:1vor07ie]

As far as I am aware, a bill is not law until it is passed and ratified.
The SC has not ratified it, nor "ordered" revisions, but instead [i:1vor07ie]suggested[/i:1vor07ie] revisions. The bill is not law at all.

RA can either chose to ignore the SC, or they can re-write the bill and resubmit it to the RA for another vote. The SC as far as I understand it, does not have the power to write or re-write bills, nor to force changes in bills so that they may pass. They are not elected after all. All they can do is deny the passage of the bill, effectively denying it legal status.

The Judiciary bill is therefore [b:1vor07ie]not[/b:1vor07ie] [i:1vor07ie]"a law that just awaits a few revisions."[/i:1vor07ie]

It is a bill that failed and now needs to be re-written and re-submitted.

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Gwyneth Llewelyn
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Post by Gwyneth Llewelyn »

Ranma,

Under our Constitution, a bill that changes the Constitution is "just a bill": Art I, Section 6 states:
[quote:3anlksvk]A vote in the RA is a simple majority vote of representative seats.
Constitutional amendments require a 2/3 vote. [/quote:3anlksvk]
Which is reinforced by Section 7: [quote:3anlksvk]The RA can amend the constitution with a 2/3 vote.[/quote:3anlksvk]
That's all it takes. It's very simple. ;)

Yes, all constitutional amendments are very simple bills; they're just "special" because they need a 2/3 vote.

But we certainly have all required checks and balances: all bills — Constitutional Amendments or otherwise — can be vetoed by the Scientific Council, if they are unconstitutional (in the case of bills introducing laws) or found to violate the letter or the spirit of the founding documents (LL ToS, UDHR...).

And obviously, RA members can be impeached by either the SC or the Guild.

Most important than that, of course, RA members serve for a fixed term and a new group can always be elected on the subsequent term.

If you think that's not enough, well, let's see some more proposals to the effect :) There have been some floating around...

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Post by Gwyneth Llewelyn »

Hehe yes, Dianne, it's a technicality, but you're right. A law is only a law after being approved by the RA, if it wasn't vetoed by the SC or rewritten and resubmitted to the RA.

So, the SC has actually [i:2jqjl2lk]two[/i:2jqjl2lk] powers regarding the bills approved by the RA. It can veto it (which happened twice). [i:2jqjl2lk]Or[/i:2jqjl2lk] it can rewrite it and resubmit it back to the RA for approval.

Notice the wording of the Constitution, Art. III, Section 8: [quote:2jqjl2lk]The Philosophic branch may veto [b:2jqjl2lk][i:2jqjl2lk]or[/i:2jqjl2lk][/b:2jqjl2lk] rewrite and resubmit a bill or constitutional amendment if it is in violation of any of the founding documents.[/quote:2jqjl2lk] (emphasis mine)

There is obviously a world of difference of rejecting a law, vetoing it all the way because the [i:2jqjl2lk]whole[/i:2jqjl2lk] law is unconstitutional or violates the founding documents, or just rewriting and resubmitting it to the RA for approval.

It is also clear that a rewriting and resubmission of a bill is [i:2jqjl2lk]not[/i:2jqjl2lk] a veto on [i:2jqjl2lk]the whole bill[/i:2jqjl2lk], but an [i:2jqjl2lk]additional[/i:2jqjl2lk] (in the sense of "different") power that the SC has. This is a technicality which I called a "weak veto", although that really doesn't exist.

It was just a power never employed in our two years of history :)

This is what happened in the case of the Judiciary Act. It was not vetoed; it was rewritten and resubmitted for the RA for approval. Technically, however, it's indeed not a law — [i:2jqjl2lk]yet[/i:2jqjl2lk].

Also, you're obviously right that the SC cannot "order" the RA to change the wording of a bill. I think Ashcroft is fully aware of it, since the very first post in this thread was about his own suggestion of rewriting the bill, and it's quite clear that his intentions of rewriting it go far beyond what the SC suggested that was required :) But, alas, that's in the power of the RA to approve, if they so wish.

Last edited by Gwyneth Llewelyn on Thu Oct 05, 2006 2:08 pm, edited 1 time in total.

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