Some hypothetical alterations to the Judiciary Bill

[Diderot Mirabeau]

This post can be safely disregarded by most people and is simply to be considered a legislative appendix to my recent posting in the "In defense of complexity" thread in the general discussion forum:
http://forums.neufreistadt.info/viewtop ... =1788#1788

<*** REMOVING JURIES ALTOGETHER***>

Replace 1. with "[..] 5. A person who is a party to any case shall not preside over that case as judge or over any part thereof. [..]

3. Only Judges of Common Jurisdiction shall preside over proceedings in any trial or other hearing, or deliver any judgment as to the law in any Court of Common Jurisdiction, or otherwise exercise any of the powers of any Court of Common Jurisdiction, and any power, not exercised during the course of a trial or other hearing, deemed by any Judge of Common Jurisdiction to be administrative in nature, providing always that any party to such proceedings may appeal to a Judge of Common Jurisdiction from any such administrative decision.

4. Only Judges of Common Jurisdiction shall deliver any judgment or verdict as to any question of fact in any trial or hearing in any Court of Common Jurisdiction.

[..]

<*** LIMITING JURISDICTION TO A FEW EXPLICITLY SPECIFIED SITUATIONS ***>

6. Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution, Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on

either
(a) a disputed matter between two or more parties (who must be citizens; registered or incorporated entitites of the Confederation of Democratic Simulators or a government entity) over the fulfilment of their respective obligations in relation to an agreement entered into in writing by signature and notarisation at the Neufreistadt Rathaus or equivalent body)

or
(b) the appeal by a citizen of the Confederation of Democratic Simulators of a sanction passed by any entity of a Neufreistadt government - except the judiciary - by which the applicant is personally affected or the same appeal by a non-citizen on the recommendation of two citizens of a sanction passed by any entity of a Neufreistadt government - except the judiciary - by which the applicant is personally affected with respect to the FACTS OF THE MATTER upon which the decision to impose a sanction was based; the INTERPRETATION of the APPLICABLE Neufreistadt LAW authorising the government entity in question to impose such a sanction; the CULPABILITY of the citizen in relation to same law; or the PROPORTIONALITY of the resulting SENTENCE : -

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

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

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

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

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

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

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

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

replace 18. with 18. "For the purposes of Article IV, Section 4 of the Constitution, any person who holds office as a Marshal of the Peace is empowered to issue summary banishments {of up to fourteen days} where, otherwise than in the course of judicial proceedings, there are substantial grounds for believing that the person in question, if not summarily banished: –

replace 19. with 19. "Any Marshal of the Peace who exercises her or his power to issue a summary banishment shall serve upon the person summarily banished within 48 hours of being so banished a written notice stating: –

(a) that he or she has been banished summarily;

(b) the reason or reasons that he or she has been so banished;

(c) that the person banished has the right, upon submitting notice in writing to a Court of Common Jurisdiction, in any form that shall be prescribed by the Chief Judge of Common Jurisdiction (and, if such a form is prescribed, the details thereof, or information as to where such details can be obtained), to make representations to a Court of Common Jurisdiction as to why he or she should not be made the subject of such a sanction as an ordinary appeal in accordance with Article 6 of the Constitution."

<*** ESTABLISHING A REGISTRY OF BANISHMENTS ***>

add 23. "It befalls upon the Chief Judge of Common Jurisdiction to establish a registry of avatars temporarily banished from the sim following a court order and to maintain it as follows:

(a) Upon temporary banishment of an avatar following a court order the name and expiration date of the banishment shall be added to the registry and a marshall of the peace shall be requested to effectuate the banishment.
(b) Upon expiration of the sentence a marshall of the peace shall be requested to revoke the banishment upon which the relevant entry shall be struck from the registry.
(c) The registry shall be publicly accessible at all times in order that the public may scrutinise that proper procedures are maintained."

[Ashcroft Burnham]

I deal with the issue about jurisdiction and juries in the [url=http://forums.neufreistadt.info/viewtop ... 8:3vusdxln]other thread[/url:3vusdxln], but I ought address the additional suggestion here of a registry of banishments.

[quote="Diderot Mirabeau":3vusdxln]
<*** ESTABLISHING A REGISTRY OF BANISHMENTS ***>

add 23. "It befalls upon the Chief Judge of Common Jurisdiction to establish a registry of avatars temporarily banished from the sim following a court order and to maintain it as follows:

(a) Upon temporary banishment of an avatar following a court order the name and expiration date of the banishment shall be added to the registry and a marshall of the peace shall be requested to effectuate the banishment.
(b) Upon expiration of the sentence a marshall of the peace shall be requested to revoke the banishment upon which the relevant entry shall be struck from the registry.
(c) The registry shall be publicly accessible at all times in order that the public may scrutinise that proper procedures are maintained."[/quote:3vusdxln]

The function that you seek to assign to the Chief Judge is an administrative function, so it is very unclear why you seek to assign it to a judge, rather than to the Chair of the Judiciary Commission, who is in charge of judicial administration. In any event, the Bill as it is currently drafted already provides,

[quote="The Judiciary Bill":3vusdxln]2. The chair of the Judiciary Commission shall have the power: –
...
(j) to maintain and publicise a record of all judicial proceedings, precedents and other public official judicial documents, not being documents relating to judicial proceedings in the Scientific Council...[/quote:3vusdxln]

and

[quote:3vusdxln]21. A Marshal or Marshals of the Peace shall execute any order of any Court to banish any person, whether permanently, for a term certain, or pending trial, and shall revoke that banishment: –

(a) upon further Order of the Court to do so;

(b) upon the expiry of the term of the banishment, if fixed; or

(c) immediately preceding a trial if the banishment is pending a trial,

whichever is sooner, and, if a person who has been the subject to an interim banishment pending trial has had her or his banishment revoked for the purposes of attending a trial under paragraph (c) above, to guard that person with a view to exercising, if necessary, her or his powers of summary banishment, or executing forthwith any order of banishment issued by the Court,[/quote:3vusdxln]

which was intended to cover both the execution of banishments and records of judicial proceedings (including the penalties, and, ergo, including who is banished).

If you think that it would be worthwhile to have a special registry of banishments over and above the general record of judicial proceedings kept by the Chair of the Judiciary Commission (or those to whom he or she delegates the function), then it may be worth proposing a separate bill to do so (giving reasons why you think that records of proceedings in general are not adequate), but there is no reason to have that sort of administrative detail written into the constitution, as you propose, and it could perfectly well be an ordinary Act, not a constitutional amendment.

[Ashcroft Burnham]

[b:29ex4lz9][u:29ex4lz9]Further problems with this proposal[/u:29ex4lz9][/b:29ex4lz9]

Since posting the above and other comments on this proposal, I have spotted even [i:29ex4lz9]more[/i:29ex4lz9] problems with it. The difficulty is that restricting the jurisdiction of the courts renders other parts of the Bill incoherent: the section on marshals of the peace, for instance, would require marshals of the peace to do the legally impossible, and the section conferring upon Courts of Common Jurisdiction the powers of the current Commercial Court would also be incoherent. Indeed, in so far as the non-constitutional amendment parts would conflict with those parts that do amend the constitution, they would be unconstitutional, and have to be vetoed by the Scientific Council.

Worse than that, the entire Registration and Incorporation Act would be rendered unworkable, because no court would be able to exercise the powers of what that Act created and called the Commercial Court, and what the Judiciary Act passes onto the Courts of Common Jurisdiction.

These suggested amendments have far-reaching, ill-considered and potentially disasterous consequences, and should not be adopted.