[quote="Publius Crabgrass":1rhqwczx](cross-posted in Judiciary Discussion)
As discussed elsewhere in the judicial forum http://forums.neufreistadt.info/viewtopic.php?p=2371, I’m concerned that our one and only judge has seen fit in at best unseemly fashion to appoint himself Chief Judge-for-life and constitute himself as a one-person Board of the Judiciary, wants to write the rules of procedure, judicial ethics, and (eventually, when he gets around to it) judicial selection by himself and without legislative oversight, wants the judiciary independently to set court costs, and to have his own separate treasury in the name of “judicial independenceâ€. All of that is a little too much independence and independent action for me. I think the RA needs to rein in some of this, and soon.[/quote:1rhqwczx]
I find the way in which you are addressing this very disturbing. As I have already posted, the principles behind judicial selection were debated long and hard by the members of the representative assembly before the final, precisely balanced compromise acceptable to all was arrived at. A huge amount of time was devoted by those who involved themselves with the debate in getting the respective powers of different elements of the judiciary just right. The system as so designed has just been implimented, and, before it is even fully working, you are seeking radically to overhaul it. That is not in the least appropriate. As I have pointed out before, the present position has arisen not as a result of a blunder or oversight as you originally seemed to imagine, but was the quite deliberate result of the way in which the legislation was drafted and adopted. Consensus was reached, and you are seeking to reverse it before it has even taken full effect.
I find it particularly distasteful that you suggest that my actions in appointing myself (currently the only Judge of Common Jurisdiction) as Chief Judge, and then setting about discharging the duties of the Chief Judge and the Board of the Judiciary Commission are "unseemly". I had so appointed and started work before you ever announced that the default position of one judge should change to three judges. As you know, under the Constitution, there [i:1rhqwczx]cannot[/i:1rhqwczx] be any further judges appointed unless they have been qualified by the Board of the Judiciary Commission. It is therefore quite improper to suggest that my plans to fulfil your requirement of having three judges are somehow "unseemly": that is the [i:1rhqwczx]only possible way[/i:1rhqwczx] in which such a requirement can be fulfilled. Furhtermore, the Chief Judge, as you know, is the one with the power to make general directions as to procedure in Courts of Common Jurisdiction. I am setting about that as dilligently and expeditiously as I can so as to have the very much needed working judicary for which the RA voted when it passed the Judiciary Act implimented as soon as possible, without compromising on the quality of drafting.
The original proposal that I posted months ago for a judicial system contained some very precise ideas about procedure that I expressed in some detail. It must have been clear to members of the Representative Assembly that they were voting for the whole system as I had originally proposed it, including procedural rules based on the outline that I gave in that original thread. It was therefore no doubt very much the RA's intention to appoint as judge somebody who would have to become Chief Judge (it would be insane for there to be a judge, but no Chief Judge), and would thereby have the power to draft the rules, and it should be no surprise to anybody who has kept her or himself properly informed about the development of hte judiciary that, if I was appointed, I should immediately set about setting up the procedural rules in exactly the way that I had outlined in my original proposal.
You may also note that the constitution places the procedural rules at the bottom of the heirachy of sources of law, below legislation from the Representative Assembly. It is therefore not true that there is no legislative oversight of judicial procedure: if the legislature dislikes any particular procedural rule, it can change it by passing legislation, without changing the constitution. I suggest that you read the constition more carefully in future before making remarks of that nature.
Furthermore, I find it especially distasteful and uncalled-for that you write,
[quote:1rhqwczx]and (eventually, when he gets around to it) judicial selection,[/quote:1rhqwczx]
and, by so doing, imply that I am being deliberately ponderous with respect to setting the procedures for qualifying additional judges. That is a wholly unfounded assertion, and one made quite improperly. I am also keen for there to be further judges, but I am also keen that the means of judicial selection be duly rigerous, and that the Code of Procedure take priority. I should be very happy indeed if I could wave a wond and have all the documents drafted by to-morrow, and the additional two judges in office by next week. Unfortunately (for these purposes), I have a day job which takes up much of my time, and drafting such documents in a way as to get them right is a lengthy process, so it cannot be done overnight. Nevertheless, I am working as fast as I can to ensure that the judiciary is fully up to speed, with a full set of procedural rules, code of ethics, and a full compliment of properly qualified and rigourously selected judges as soon as I can. The sooner that this system is working fully, the better for everyone.
[quote:1rhqwczx]It is true that like most of us I was not involved in the debates on the legislation that created this situation, but I’m now charged with helping implement it and have quickly seen some problem areas. I’m afraid I don’t have the time to engage in a bit of legislative drafting right now, but perhaps it would be helpful for the RA to consider adopting a resolution fixing some key principles, then follow up with appropriate legislation and/or constitutional amendments as needed.[/quote:1rhqwczx]
Aside from the substance for a moment, what on earth is the point of the RA passing a [i:1rhqwczx]formal[/i:1rhqwczx] resolution that has no binding effect?
[quote:1rhqwczx]The RA meeting is far too early in the morning for me, but the RA may wish to organize its debate along the following points:
RESOLUTION REGARDING THE IMPLEMENTATION OF A JUDICIARY
Whereas, having further considered the implementation of a judiciary, IT IS THE SENSE OF THE R.A. THAT:
1) The SC should qualify and RA should appoint at least three (two additional) judges.[/quote:1rhqwczx]
This vastly changes the carefully designed, balanced and negotiated position that the SC is only involved when there are no judges at all, based on the principle that it is [i:1rhqwczx]always[/i:1rhqwczx] better for judicial applicants to be qualified by Judges of Common Jurisdiction than members of the Scientific Council, and that the SC should only become involved when it is [i:1rhqwczx]impossible[/i:1rhqwczx] for any sitting judge to appoint anybody (because there is no sitting judge).
[quote:1rhqwczx]2) There should be at least three Judges to constitute the Board of the Judiciary; once fully constituted the Board should elect one of their number to serve as Chief Judge.[/quote:1rhqwczx]
You are attempting to elevate your capacitational decision into something of constitutional importance, when that was never intended. Your power to set the total number of judges is borne out of your function as a [i:1rhqwczx]manager[/i:1rhqwczx] and [i:1rhqwczx]administrator[/i:1rhqwczx], charged with working out what [i:1rhqwczx]capacity[/i:1rhqwczx] that the courts need, and planning accordingly. It was never intended to be some sort of check on the powers of the Chief Judge. The powers of the PJSP in appointing (or not appointing) judges qualified by the Board, and the powers of the RA in being able to legislate about judicial procedure are, and have been designed to be, sufficient.
[quote:1rhqwczx]3) The fully-constituted Board (of at least three members) should propose the adoption of rules (procedures, ethics, judicial qualifications, etc.) subject to a period of public comment, and which may be rejected or amended by the RA prior to final adoption.[/quote:1rhqwczx]
As I have already explained, the RA already has the power to over-ride any procedural direction issued by the Chief Judge. As Beathan has already pointed out, it is common in courts in the first life for senior judges to have the power to make procedural rules, whilst the legislature has the power to over-ride those rules. This enables the legislature, who are not legal experts, to be able to avoid having to get into the details of judicial procedure, but gives them the power to intervene when necessary. This is what our legislature has, after a truly astronomical amount of debate has decided is the correct balance of power in our system. Explain why it is appropriate that that should be changed almost immediately after inception.
[quote:1rhqwczx]4) All funds collected by judiciary must go into the CDS treasury. [/quote:1rhqwczx]
Why? Why should the treasury have absolute control of the judiciary's purse strings? Why should money paid in fixed court fees and stipends (if any) from the treasury not be paid into a fixed fund, from which judicial salaries and expenses are, in turn, paid, whilst fines are paid to the treasury, as Claude suggested?
[quote:1rhqwczx]5) The RA will establish (with advice of the judiciary) a schedule of court costs and a budget.[/quote:1rhqwczx]
The RA already has the power to set court costs if it wants. Presumably, though, it is only worth the RA doing this if it is dissatisfied with what the Chief Judge comes up with. I will be consulting on the point when the first draft of the code is issued, and hope to reach a broad agreement as to the appropriate level of costs.
[quote:1rhqwczx]6) The RA will consider appropriate legislation and constitutional amendments to adopt these principles.[/quote:1rhqwczx]
Coming so soon after the already gargantuan debate on the judiciary, in which judicial selection, in particular, was debated at inordinate length, this would be utterly inappropriate at this stage.
