PCA: Judiciary Oversight

[Claude Desmoulins]

The Code of judicial procedure and ethics and the procedures for judge qualification shall be subject to review by the SC, either independently, or upon appeal by a citizen.

[Beathan]

I think this is a good proposal, except I would add "or amendment or modification, in whole or in part" after "review."

Beathan

[Ashcroft Burnham]

[quote="Claude Desmoulins":1ky1mmzz]The Code of judicial procedure and ethics and the procedures for judge qualification shall be subject to review by the SC, either independently, or upon appeal by a citizen.[/quote:1ky1mmzz]

As to the code of procedure, why is this necessary when the legislature can always pass legislation to amend the procedures (as in most common law countries, in which the judiciary, by virtue of courts having inherent jurisdiction to govern their own proceedings, can set the procedural rules, but the legislature can make its own)?

[Claude Desmoulins]

I have posted a more detailed explanation of both my proposals in Judiciary Discussion

[Ashcroft Burnham]

Explanation [url=http://forums.neufreistadt.info/viewtop ... 8:1dstpco4]here[/url:1dstpco4]

[i:1dstpco4]Replace the entire text with[/i:1dstpco4]:

1. The following shall be added to Chapter II of the constitution, at the end of the section under the heading, [i:1dstpco4]with respect to the Judiciary[/i:1dstpco4]:

***

5. Whenever fewer than three Judges of Common Jurisdiction hold office, the Dean of the Scientific Council may appoint to the Board of the Judiciary Commission as Special Commissioners of the Judicary as many members of the Scientific Council as it takes to bring the total number of members of the Board of the Judiciary Commission to 3.

6. Special Commissioners of the Judiciary shall have all the powers of members of the Board of the Judiciary Commission in respect of the discharge of any of the powers of the Board of the Judiciary Commission, but shall not have any of the other powers of Judges of Common Jurisdiction.

7. Whenever the number of Judges of Common Jurisdiction increase such that fewer Special Commissioners of the Judiciary are required to make the number of members of the Board of the Judiciary Commission up to 3 than hitherto, the number of Special Commissioners of the Judiciary shall be reduced accordingly, and the Dean of the Scientific Council shall determine which Special Commissioner(s) of the Judiciary shall remain.

***

[Claude Desmoulins]

I'll take this a a friendly substitute.

[Beathan]

This is a good substitute, but the number of judges should be at least 4 to allow for appeals.

However, it is not a friendly substitute and should not be treated as such. As proposed by Ashcroft, the entire point of the proposal and entire resolution proposed disappears and is replaced by an entirely different subject. This subject is worthwhile -- but not as a sustitute proposal. We should amend, not replace, the original proposal.

Therefore, we should still require oversight and review of appointment procedures and case procedures. This amendment, as accepted by Claude, totally erases the original intent and thrust of the bill. I would add an additional section that restates and retains the language Claude originally proposed, with my proposed revision to it.

Therefore, I would add:

8. The Code of judicial procedure and ethics and the procedures for judge qualification shall be subject to review, revision and amendment, in whole or in part, by the SC, either independently, or upon appeal by a citizen.

Beathan

[Ashcroft Burnham]

[quote="Beathan":3l0grifn]This is a good substitute, but the number of judges should be at least 4 to allow for appeals.[/quote:3l0grifn]

That is something of which you need to persuade Publius, not the legislature.

[quote:3l0grifn]However, it is not a friendly substitute and should not be treated as such. As proposed by Ashcroft, the entire point of the proposal and entire resolution proposed disappears and is replaced by an entirely different subject. This subject is worthwhile -- but not as a sustitute proposal. We should amend, not replace, the original proposal.[/quote:3l0grifn]

I think that it is Claude who knows more than anyone what his original intent in the proposal is - it is not for you to say what he intended if he says that what he intended is adequately addressed by what I wrote.

[quote:3l0grifn]Therefore, we should still require oversight and review of appointment procedures and case procedures. This amendment, as accepted by Claude, totally erases the original intent and thrust of the bill.[/quote:3l0grifn]

Why do you think that the original intent and thrust of the Bill was anything other than ensuring that the powers of the Board of the Judiciary Commission were never able to be exercised by just one or two people?

[quote:3l0grifn]I would add an additional section that restates and retains the language Claude originally proposed, with my proposed revision to it.

Therefore, I would add:

8. The Code of judicial procedure and ethics and the procedures for judge qualification shall be subject to review, revision and amendment, in whole or in part, by the SC, either independently, or upon appeal by a citizen. [/quote:3l0grifn]

That creates the same impasse problems as described above. That also reverses the Great Compromise on judicial appointments, and undermines the independence of the judiciary. Why should the Scientific Council be better qualified than a Board of the Judiciary Commission consisting of three members (whether Judges of Common Jurisdiction or Special Commissioners of the Judiciary) to determine the issues of judicial qualification requirements and procedures and judicial ethics?

[Beathan]

In his post, Ashcroft refers to the "Great Compromise" regarding the judiciary. Presumably by this he means "very big compromise' because we surely do not have a "vey good compromise."

I was preparing debate students for a tournament this morning, so I was unable to attend the RA meeting. However, I have serious concerns if this matter went forward on Ashcroft's unrevised amendment, which was a complete substitute for Claude's original proposal and which had the effect of preserving the status quo rather than inacting needed change.

The original proposal provided for needed oversight of the judiciary to prevent what Publius has aptly described as the possibility kritocracy and what I have suggested threatens to be a personality cult of Ashcroft, to the severe detriment of our democracy. The revised proposal not only fails to accomplish this goal of creating oversight, it tends to further insulate the judiciary in general and Ashcroft in particular from social and political control. This is extremely dangerous.

Ashcroft raises two concerns with the original proposal. First, he states that the proposal would undermine the independence of the judiciary. Second, he again asks why the Scientific Council is better able to decide matters of judicial process and appointment. Both these points indicate either that Ashcroft is interested in creating a personal fiefdom, or that he fails to understand the constitution of and balance of powers in the CDS.

As constituted, the Scientific Council serves and is set up to serve the function of channelling ideology and other social functions in productive and safe directions. (The RA expresses ideology and other social functions; the executive is poised to execute and implement such ideology and social determinations.) In other words, the Scientific Council already serves a judicial function. From what I have seen of the CDS's history, the SC did its job adequately well -- and on simpler terms than the new judiciary.

Thus, subordinating the judiciary to the SC does not threaten the independence of the judiciary any more than subordinating a lower court to a higher one does. Judicial independence is preserved by separation of function -- and by subordinating the offices of judge to a judicial, rather than a legisliative or executive, institution. Further, as to the quesiton, "why is the SC more able to perform this function?", there is no better answer than that it is more trusted to perform the function fairly, impartially, and well. The nearly universal unpopularity of the processes implemented by Ashcroft following his popular passage of the judiciary act shows this fact more clearly than any particular argument ever could.

Thus, subordinating the judiciary to the Scientific Council increases, rather than decreases, faith in the judiciary -- reaping real benefits to the institution. Further, because the Scientific Council is already judicial in nature, we receive these benefits without sacrificing judicial independence. We do do away with the personal independence of the judges, and the insulation of those judges from the political process and legitimate will of the citizens of CDS, but I consider this loss to be far more of a benefit than a sacrifice, preventing as it does the looming danger of kritocracy and judicial personality cults.

On this basis, I am preparing and will submit for debate and consideration a substantial revision to and simplication of the judiciary act. Further, if real oversight over the judiciary was not provided in the current session of the RA, I will draft and present proposals to accomplish it at each RA session until such a protective device is implemented. Finally, I will work to persuade the Simplicity Party to make these proposals, and the goal of simplification, clearly stated and specific action-items on the party platform.

Parenthetically, in a previous post, before Claude's proposals, I placed the blame for the current mess on the DPU. In light of his response, halfhearted and quickly-abandoned as it was, and in light of Patroklus's stubborn defense of the status quo, I think that the DPU may be less to blame than its sister party. However, in either case, it is well time for a change in governmental direction that only a change in partisan control can give us. I continue to have great hope for the Simplicity Party.

Beathan

[Ashcroft Burnham]

[quote="Beathan":3d2yha3y]In his post, Ashcroft refers to the "Great Compromise" regarding the judiciary. Presumably by this he means "very big compromise' because we surely do not have a "vey good compromise."[/quote:3d2yha3y]

I do not agree.

[quote:3d2yha3y]I was preparing debate students for a tournament this morning, so I was unable to attend the RA meeting. However, I have serious concerns if this matter went forward on Ashcroft's unrevised amendment, which was a complete substitute for Claude's original proposal and which had the effect of preserving the status quo rather than inacting needed change.[/quote:3d2yha3y]

Why do you think that change is needed to do anything other than increase the number of people in whose hands the powers of the Board of the Judiciary Commission is invested?

[quote:3d2yha3y]The original proposal provided for needed oversight of the judiciary to prevent what Publius has aptly described as the possibility kritocracy and what I have suggested threatens to be a personality cult of Ashcroft, to the severe detriment of our democracy.[/quote:3d2yha3y]

How can there be a "personal cult of Ashcroft" when the Board of the Judicary Commission would, under the proposal, always be composed of enough members to outvote me?

[quote:3d2yha3y]The revised proposal not only fails to accomplish this goal of creating oversight, it tends to further insulate the judiciary in general and Ashcroft in particular from social and political control. This is extremely dangerous.[/quote:3d2yha3y]

How does the creation of Special Commissioners, in and of itself, insulate anyone from anything?

[quote:3d2yha3y]Ashcroft raises two concerns with the original proposal. First, he states that the proposal would undermine the independence of the judiciary. Second, he again asks why the Scientific Council is better able to decide matters of judicial process and appointment. Both these points indicate either that Ashcroft is interested in creating a personal fiefdom, or that he fails to understand the constitution of and balance of powers in the CDS.

As constituted, the Scientific Council serves and is set up to serve the function of channelling ideology and other social functions in productive and safe directions. (The RA expresses ideology and other social functions; the executive is poised to execute and implement such ideology and social determinations.) In other words, the Scientific Council already serves a judicial function. From what I have seen of the CDS's history, the SC did its job adequately well -- and on simpler terms than the new judiciary.[/quote:3d2yha3y]

You are evidently wholly unfamilliar with our history. The SC has only ever had one judicial hearing, the Ulrika "trial", which was a disaster. The function of the Scientific Council is to exercise a check on the power of the legislature, and generally to act as an overseer of the constitution. There is nothing inconsistent between that and having a truly independent judiciary. One of the reasons that that the function of judicial qualification was not vested in the SC in the Judiciary Act was because the SC is not composed of people who have any particular legal expertise, nor who will acquire the exerience that our judges will of deciding real cases. That was expressly debated when the Great Compromise was reached.

In any event, why do you think that the Scientific Council is in any better position to discharge judicial functions than the Board of the Judiciary Commission when composed of three or more members? Why do you think that the Board, so composed, would inspire less public confidence than the Scientific Council?

[quote:3d2yha3y]Thus, subordinating the judiciary to the SC does not threaten the independence of the judiciary any more than subordinating a lower court to a higher one does.[/quote:3d2yha3y]

The Judiciary Act was carefully designed to ensure a very precise balance of power between the judiciary and the Scientific Council, ensuring that the latter kept its role as guardian of the constitution, but ensuring also that the indepedence of the former in ordinary operational matters was fully maintained. Having a body with quasi-legislative powers (the power to veto legislation) have full control over the judiciary is not consistent with judicial independence.

[quote:3d2yha3y]Judicial independence is preserved by separation of function -- and by subordinating the offices of judge to a judicial, rather than a legisliative or executive, institution. Further, as to the quesiton, "why is the SC more able to perform this function?", there is no better answer than that it is more trusted to perform the function fairly, impartially, and well. The nearly universal unpopularity of the processes implemented by Ashcroft following his popular passage of the judiciary act shows this fact more clearly than any particular argument ever could.[/quote:3d2yha3y]

There is no reason to believe that there is any greater confidence in the processes of the Scientific Council, especially following the recent debacle over the [url=http://forums.neufreistadt.info/viewtop ... 3:3d2yha3y]publication of transcripts[/url:3d2yha3y], which has at least as much constitutional significance as judicial qualifications, but has attracted less attention because those who post most regularly tend to focus on the judiciary.

As far as I can see, whatever unpopularity that there is of the judiciary comes from two camps: (1) the people who dislike the idea of one person being able to decide the judicial qualification requirements, etc. (which is fully addressed by the Special Commissioners proposal), and (2) the people who came to the CDS after the Judiciary Act was passed, and are unhappy that they did not get a chnace to join in the debate and influence the system more closely to follow the American, rather than the British, model of the judiciary, and now seize any chance to do so. I doubt that those in the second group are a majority of the citizens overall (indeed, those in the latter group seem to be you, Publius and possibly Grexinimo).

[quote:3d2yha3y]Thus, subordinating the judiciary to the Scientific Council increases, rather than decreases, faith in the judiciary -- reaping real benefits to the institution. Further, because the Scientific Council is already judicial in nature, we receive these benefits without sacrificing judicial independence. We do do away with the personal independence of the judges, and the insulation of those judges from the political process and legitimate will of the citizens of CDS, but I consider this loss to be far more of a benefit than a sacrifice, preventing as it does the looming danger of kritocracy and judicial personality cults.[/quote:3d2yha3y]

The only legitimate influence that the legislature has over judges is in passing legislation that judges are bound to follow when applying the law in courts. Remember, in the US, the judiciary is more powerful (in that the Suprme Court, at least, can invalidate legislation by declaring it unconstitutional), but less independent (in the sense of being politically appointed, and often for a limited term) than the UK, where the judges are appointed apolitically for a lifetime, but where they are bound to follow legislation from Parliament come what may. We have a system that is closer to the Britsh model, except that we have an extra check on the legislature in the form of the Scientific Council veto, which must be exercised within a limited time after the passage of legislation, after which it can only be repealed by further legislation, and otherwise stands supreme, and binds all courts.

[quote:3d2yha3y]On this basis, I am preparing and will submit for debate and consideration a substantial revision to and simplication of the judiciary act. Further, if real oversight over the judiciary was not provided in the current session of the RA, I will draft and present proposals to accomplish it [b:3d2yha3y]at each RA session until such a protective device is implemented[/b:3d2yha3y].[/quote:3d2yha3y]

Are you serious? Take a step back for a moment and read what you hae written: are you trying to [i:3d2yha3y]threaten[/i:3d2yha3y] the legislature?

[quote:3d2yha3y]Parenthetically, in a previous post, before Claude's proposals, I placed the blame for the current mess on the DPU. In light of his response, halfhearted and quickly-abandoned as it was, and in light of Patroklus's stubborn defense of the status quo...[/quote:3d2yha3y]

That is hardly a fair characterisation of Pat's response to Claude's initial, and very rash, suggestion of abolishing the judiciary entirely.

[Gwyneth Llewelyn]

Just for the record, why was the Ulrika trial "a disaster"?

1) There were proceedings for establishing a hearing of the case.
2) There was an existing body of law that could be applied to the case.
3) There was an impartial hearing, allowing Ulrika to be present, as well as Kendra, who was invited to present Ulrika's case, and the consultation of documentation and interviewing the witnesses.
4) There was a SC review of the hearing, and sanctions were applied after the whole case was documented.
5) Transcripts of the two hearings were published, as well as three documents:
a) A thorough list of the facts established during the trial
b) A resumed version of the facts established, as well as an explanation for the sanctions applied
c) A 17-page or so Abuse Report was sent to Linden Lab, which was reviewed according to LL's own ToS/CS, adding references to the hearing
5) An appeal was made on the basis that it was a "kangaroo court", and a demand for a new trial was publicly submitted, which was rejected mostly on the basis that new evidence was presented that could sustain a re-opening of the case, although an opportunity was given to submit a request for a new application for citizenship after 6 months had expired, after the election of a new Dean.

I would be interested in understanding better why it was a "disaster", one could learn a lot from those reasons...

[Claude Desmoulins]

Disaster is too strong a term, but I think there were two significant difficulties in the process

1. There was no separation between investigative, accusative/prosecutorial, and judicial functions.

2. The hearing was originally described as an administrative review of Aliasi's banning of Ulrika from the sim. The banning was unusual in that it was preemptive and in that it applied in world sanctions based on behavior that did not take place in world.

By the time it was finished, the hearing had become a process wherein the SC determined whether what Ulrika did was culpable (as I recall there was little dispute as to the facts of the case) and what punishment was applicable. There was some question as to whether, in so doing, the SC was creating criminal law from the bench, and the RA took up these issues in the (now repealed) defense of the republic act.

[Beathan]

Claude Highlighted two problems with the Ulrika trial. While I wasn't there, I want to note that if these two issues were the only concerns about the Ulrika trial, then the trial was a success, not a failure. In fact, neither of these issues is properly a "problem" at all.

First, Claude notes that "1. There was no separation between investigative, accusative/prosecutorial, and judicial functions. " This is contrary to the way things are done in the US and UK. However, it is a fairly common feature of many European judicial systems. Further, it is probably the most common way cases are prosecuted in the world outside of the Commonwealth. I personally have problems with the process -- but I admit that my issues with it (unlike my issues with the currend CDS judicial system) may arise from proAmerican (or ProAnglo-American) prejudice.

Second, Claude notes that [quote:20yjurkp]2. The hearing was originally described as an administrative review of Aliasi's banning of Ulrika from the sim. The banning was unusual in that it was preemptive and in that it applied in world sanctions based on behavior that did not take place in world. [/quote:20yjurkp]

This arises from the fact that, unlike RL, there is an avoidable bifurcation between player and avatar -- and that both matter. Any system of virtual justice will have to work out a way to address this issue -- either by ignoring relevant player activity because it did not occur "inworld" or by considering that behavior. This is a policy judgment. I merely note that player reputation matters, regardless of which avatar they are using. That is why we like to know that an "alt" is an "alt." Second, in RL professional regulation, such as the regulation of US attorneys, there is often a process of "sympathetic punishment." That is, when one jurisdiction disbars an attorney because of misdeeds in that jurisdiction, most jurisdictions also disbar the attorney even though the attorney has done nothing wrong in the other jurisdictions. This works to protect those jurisdictions pre-emptively -- and I think that this protection has good effects in general.

Finally, there is the concern about creating criminal law from the bench. This is not necessrily a bad thing either. In fact, historically, in common law, that is how things were done. The power is checked if znd when the Legislature has the ability to intervene and change the rules by passing a relevant and binding statute. However, because the Legislature is not prescient and cannot predict every problem, it is wise to give the judiciary power to respond, within reason and the guidance of precedent and binding law, to unanticipated problems. This is the genius of common law.

Of course, the drawback of common law is that it is made up as it goes along. This means that it is not perfectly predictable. For people who need certainty in their lives, this causes problems. As a result, we have the civil law model, in which problems are not fixed until the legislature fixes them explicity. Again, my preference is for the common law, but this might be a Pro-Anglo-American prejudice.

Beathan

[Ashcroft Burnham]

Actually, the biggest problem of the Ulrika trial was that there were virtually no documented procedures from the start, and what documented procedures that there were (the constitutional requirement to have trial by jury) was disapplied by the Scientific Council because it believed that the "facts were not clear enough". The remedy for unclear facts is the burden of proof, not the disappliction of procedural rules. If there is not strong enough evidence to support a proposition that a party has to prove to succeed, that party does not succeed.

The Scientific Council no doubt had the constitional [i:1pwwniq5]power[/i:1pwwniq5] to disapply the rule because, back then, it was "not bound by a strict and literal interpretation of the constitution", but that was a serious flaw in itself, and one remedied by the Judiciary Act.

It is worthy of note that the same criticisms came up in relation to the Starfleet trial: although I had given the prospective judge a rundown of how an English jury trial works, because the details were not known to the parties (and the judge forgot important bits like the indictment and the summing up), people from different legal culturses had contradictory expectations about how things would work, which conflict in and of itself, in the absence of defined, detailed, written rules, caused problems. Chief amongst them was the lack of any understanding about the notion of different [i:1pwwniq5]degrees[/i:1pwwniq5] of offence of which the defendant could have been convicted; the judge never directed the jury, for example, that they must be sure that the defendant committed the offence in teh first, rather than the second, degree to convict, and, indeed, the jury were not even [i:1pwwniq5]asked[/i:1pwwniq5] of what degree that they were convicting the defendant. One has some syphathy with those StarFleet admirals who, being wholly unfamilliar with legal processes except by means of a very brief introduction from me, were plunged into a world of needing to have a trial, and, to their credit, they are working now on a better system, but that does highlight the real and serious problems caused by the lack of detailed, written procedural rules.

[Beathan]

Ashcroft's response merely indicates that there should be procedural rules in place from the outset of the case to guide the case, and these rules should not change during the progress of the case and should be clearly understood by all participants.

I agree. Indeed, I strongly agree.

However, it does not follow that we should have one set of over-arching rules, applied from above by legal fiat and force. My proposal gives us all the certainty we need and all the flexibility and freedom we want. Surely it is to be preferred for that reason.

Beathan