Judiciary Act Hearing Commission Bill

michelmanen · Post by **michelmanen** » Thu Dec 07, 2006 12:41 pm

I agree in principle - with 2 key caveats:

1. I think before we start hearings, we should have citizen information sessions (not antagonistic debates!) where the Chiej Justice holds information sessions for all citizens who care to attend, where he explains the main thrust and advantages of the Act and the Code, informs them that user-friendly How-To's will be shortly prepared (Pat's grat suggestion) and fields questions from the audience. Such sessions should be limited to no more than eight citizens and should be as many as required to include all citizens interested to take part. Only afterward can wew have any meaningful public consultation - no before.

2. I have a client (CDS citizen) who has mandated me to file his cases as soon as possible under the present Code. Suspending the Code, even in draft form, is incompatible with the effective and efficient administration of justice: "Justice delayed is justice denied". This is actually a good thing, because we will gain first-hand experience as to how our legal system will perform under the new Act and Code. In any case, I strongly oppose any suggestion of suspending the Code.

michelmanen · Post by **michelmanen** » Thu Dec 07, 2006 12:44 pm

Beathan,

"By any means necessary" indeed.... This time you outdid yourself.

'Nuff said.

Beathan · Post by **Beathan** » Thu Dec 07, 2006 12:45 pm

Michel --

Wow. A prospective and aspiring judge is, right prior to seeking appointment as one of a very few first judges, going to file a legal action advocating for a client. I find that the prejudice of our prospective judges is now a matter of fact rather than merely being an abstract and accidental feature of our qualification procedure. How is this not a conflict of interest?

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Thu Dec 07, 2006 1:35 pm

[quote="Justice Soothsayer":2dlvmfqz]5. The RA will consider the report of the Special Commission and any dissenting opinions during its regularly scheduled meeting on December 16, 2006. The Code of Procedure issued on December 5, 2006 is hereby suspended until December 17, 2006.[/quote:2dlvmfqz]

Suspending the code of procedures, without putting anything else in place, is unlawful: it violates the right to an effective judiciary under the UDHR; it would have to be vetoed by the Scientific Council. There is alerady SC precedent requiring acts to be vetoed on the basis of the mere possibility that the judiciary will become ineffective (by being unable to impeach PJSP members).

Any proposal to stop the judiciary from working during the currency of the special commission (or to require the commission to work in so short a time as it will be unlikely that the judiciary will have completed hearing an individual case) will make absoltuely sure that the results of the commission's enquires are unfair ones. The only fair test of the present system is to let it run, and let the enquiry report on its progress in running. I have asked before and I shall ask again: why should the commission of enquiry have to rely on speculation when there is an opportunity for it to base its conclusions on real evidence? The Arbitration Bill will see to it that the Special Commission, if it is allowed to gather enough data, and not artificially stifled by an ultra-short timetable, on the relative merits of two judicial ideas running side by side. Only that sort of enquiry can hope to produce any fair result. Why would you want any sort of enquiry that does anything other than produce a fair result? Do you [i:2dlvmfqz]want[/i:2dlvmfqz] a fair test of the judiciary, or merely the fastest possible way of getting whatever mandate you need to make the judiciary exactly how you wanted it in the first place before you compromised?

Ashcroft Burnham · Post by **Ashcroft Burnham** » Thu Dec 07, 2006 1:38 pm

[quote="Beathan":wqc6exer]Wow. A prospective and aspiring judge is, right prior to seeking appointment as one of a very few first judges, going to file a legal action advocating for a client. I find that the prejudice of our prospective judges is now a matter of fact rather than merely being an abstract and accidental feature of our qualification procedure. How is this not a conflict of interest?[/quote:wqc6exer]

Your bizarre views of ethics rear their head again. In England we have had a very long time indeed part-time judges called "recorders". They are people who sit as judges part-time, and practise as barristers the rest of the time. There are no ethical problems, since they never represent litigants in the same cases as they judge, nor, indeed, do they ever act as judge in any cases in which people whom they have represented have appeared.

However, the idea of using judges who also practise in the CDS was not mine: Publius suggested having [i:wqc6exer]pro tem[/i:wqc6exer] judges (the American equivalent, I understand, of recorders: I think that you were originally wanting to be one), and the possibility is specifically canvassed in the application form.

Justice Soothsayer · Post by **Justice Soothsayer** » Thu Dec 07, 2006 1:44 pm

[quote="Ashcroft Burnham":2b9j5xuj]Suspending the code of procedures, without putting anything else in place, is unlawful: it violates the right to an effective judiciary under the UDHR; it would have to be vetoed by the Scientific Council. There is alerady SC precedent requiring acts to be vetoed on the basis of the mere possibility that the judiciary will become ineffective (by being unable to impeach PJSP members).[/quote:2b9j5xuj]

But you have already acknowledged that the legislature may override any part of the code it chooses; I don't see why it cannot do so temporarily while soliciting public comment.

Maybe we need a Paragraph 6: Until the Special Commission has completed it's work, any judicial cases may be heard by the SC.

michelmanen · Post by **michelmanen** » Thu Dec 07, 2006 1:50 pm

Beathan,

We know already that you will use any and all means necessary to avoid the implementation of our legal system, so your continuing personal attacks and invectives don't surprise me. I will treat them will all the attention and respect they deserve.

Beathan · Post by **Beathan** » Thu Dec 07, 2006 2:09 pm

Ash --

Indeed, I did suggest the possibility of using pro tem judges to get the process moving. I have reconsidered that position and changed my mind. The judges we select will be the first judges we have. They will surely be charged, working together, to decide many issues of administration of the justice system. While an established justice system, which has already defined itself and resolved fundamental issues of administration, can safely hire lawyers who act as judges in specific cases -- I don't think a justice system can do so at the start without risking developing standards that privilege the decisionmaker in related and pending cases. I don't think this ethical concern is bizarre at all.

Beathan

Beathan · Post by **Beathan** » Thu Dec 07, 2006 2:12 pm

Justice --

Can you reconsider your withdrawal of your proposal to amend the Judiciary Act. I think we should as many options available in the debate as possible. If the RA fails to pass one of these options, preferring another, it can return to it later if it changes its mind. However, given the extent of debate and divergence of opinions, we need as full and thorough an airing as possible.

Unfortunately, I may be at a debate tournament again. I may not be at it, yet, as there might be less Saturday prep needed. If I can, I will attend the RA hearing.

Beathan

Justice Soothsayer · Post by **Justice Soothsayer** » Thu Dec 07, 2006 2:50 pm

[quote="Beathan":2ri6xj69]Justice --

Can you reconsider your withdrawal of your proposal to amend the Judiciary Act. I think we should as many options available in the debate as possible. If the RA fails to pass one of these options, preferring another, it can return to it later if it changes its mind. However, given the extent of debate and divergence of opinions, we need as full and thorough an airing as possible.

Beathan[/quote:2ri6xj69]

Beathan - I'm only withdrawing my proposal to amend the Judiciary Act from Saturday's RA meeting, and I think Moon's idea of a commission is essentially sound. We do need a thorough airing of all possible options (including the status quo) before moving forward. My proposed amendment could be one that the Special Commission considers, and the RA might adopt, but I do think further public input is required.

Beathan · Post by **Beathan** » Thu Dec 07, 2006 2:56 pm

Fair enough. I am again not sure that we need to delay and slow debate while simultaneously running full speed towards staffing and preparing to implement the existing system. I think suspending the Code is good -- but we need more. We need to suspend the Act.

Beathan

Ashcroft Burnham · Post by **Ashcroft Burnham** » Thu Dec 07, 2006 3:16 pm

[quote="Justice Soothsayer":2hg95uco]But you have already acknowledged that the legislature may override any part of the code it chooses; I don't see why it cannot do so temporarily while soliciting public comment.[/quote:2hg95uco]

The power to over-ride procedures must be exercised only in ways compatible with the right to an effective judicial system. Removing all procedures and replacing them with nothing is not so compatible.

[quote:2hg95uco]Maybe we need a Paragraph 6: Until the Special Commission has completed it's work, any judicial cases may be heard by the SC.[/quote:2hg95uco]

This would need a constitutional amendment of precisely the sort that it is the commission's business to enquire as to whether is needed. You are again trying to prejudge the outcome. I notice that you again pointldly fail to answer the question of why you think that the commission should have to base its outcomes on speculation - and speculation over an extremely short period of time at that - rather than real evidence as to how the judiciary is working. Why do you fail to answer that point? Do you have an answer?

Justice Soothsayer · Post by **Justice Soothsayer** » Thu Dec 07, 2006 3:32 pm

[quote="Ashcroft Burnham":3id80054]You are again trying to prejudge the outcome. I notice that you again pointldly fail to answer the question of why you think that the commission should have to base its outcomes on speculation - and speculation over an extremely short period of time at that - rather than real evidence as to how the judiciary is working. Why do you fail to answer that point? Do you have an answer?[/quote:3id80054]
If your car is about to crash over the bridge, tap the brakes, not the accelerator.

I am not trying to prejudge the outcome of the work of a Special Commission that we do not yet even have, I just want to give it breathing room to work.

Why the rush to implement a Code that you yourself acknowledge could have benefitted from a period of public comment before implementation?

Ashcroft Burnham · Post by **Ashcroft Burnham** » Thu Dec 07, 2006 4:02 pm

[quote="Justice Soothsayer":dr3yzcao]If your car is about to crash over the bridge, tap the brakes, not the accelerator.[/quote:dr3yzcao]

Justice, the whole point of the commission of enquiry is to determine whether there is any such problem. By stating that, you have made it clearer than ever that prejudicing the outcome is exactly what you are doing. Am I right in surmising that, as far as you are concerned, there is only one right outcome for the commission?

[quote:dr3yzcao]I am not trying to prejudge the outcome of the work of a Special Commission that we do not yet even have, I just want to give it breathing room to work.[/quote:dr3yzcao]

Your version of the proposal most certainly does not give the Special Commission "breathing room": you insist that it make its decision in two weeks without having the opportunity to assess how the system about which it is an enquiry is working. I ask [i:dr3yzcao]again[/i:dr3yzcao]: why should the Special Commission work on the basis of speculation when it can have hard evidence as to how the system is working? What do you have to lose by the Commission actually knowing how the system works?

[quote:dr3yzcao]Why the rush to implement a Code that you yourself acknowledge could have benefitted from a period of public comment before implementation?[/quote:dr3yzcao]

I have already answered this question: because there are cases pending, and it is better to have a first draft of a code, that can be refined based on experience at the same time as feedback, than no code at all.

michelmanen · Post by **michelmanen** » Thu Dec 07, 2006 4:02 pm

Because cases are pending, because "Justice delayed is justice denied", and because it is by observing how the system works in practice that we can best find out how to improve it.

How is this so unreasonable and elitist?

CDS Discussion

Judiciary Act Hearing Commission Bill

Special Commission on the Judiciary Proposal

Wholesale arbitrary suspension of Act, Code, Judge selection

Repeal of the Judiciary Act