Judiciary Act Hearing Commission Bill

[Ashcroft Burnham]

It might also be noted that any Act of the RA to suspend any particular code could be circumvented merely by the issuing of a new, nearly-identical code. The RA has the power to [i:r2nqen45]over-ride[/i:r2nqen45], not suspend, directions on procedure issued by the Chief Judge. That means that the RA may say, for example, "These shall be the court costs..." or "the time limit for serving notices in the ordinary shall be...". It does not have the power to prevent the Chief Judge from issuing any codes at all, for that would contradict the constitution, providing that the Chief Judge shall have just such a power. So, either purporting to suspend the codes is ineffective, or, if it is effective, it is unconstitional.

[Beathan]

Ash --

OK -- the solution is simple. The RA should suspend the Act, not the Code. Constitutional problem solved -- along with many others.

Beathan

[michelmanen]

Fortunately, the RA will make up its own collective mind, irrespective of the hundreds of posts you put up ranting and raving about this.

[Gxeremio Dimsum]

In another thread, Michel and I agreed that it would be fair to give this system a chance to prove itself, IF at the end of a trial time all options were on the table. This is not Ashcroft's position; in fact he surprisingly seems to believe that the RA can do very little to stop him from doing as he well pleases at this point. Does anyone else have a problem with that?

Unless I am assured that the proponents of the system are willing to radically alter or even completely remove the system that is being implemented, should it prove to be the colossal mess it is shaping up to be, I must ask for the repeal of the system before the power grab becomes a [i:1yzd38re]fait accompli[/i:1yzd38re], precipitating a constitutional crisis.

[Justice Soothsayer]

[quote="Ashcroft Burnham":20tlq9ul]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:20tlq9ul]
No, you are not right. I made a proposal for amendment of the Judiciary Act, but I am certainly willing to listen to other suggestions. Yes, I am more and more convinced that there is a problem and regret my vote in favor of the Judiciary Act, but I am sure there are other solutions which may be as acceptable (or even more acceptable) than my proposal.

[Justice Soothsayer]

[quote="Gxeremio Dimsum":2zcnslv2]In another thread, Michel and I agreed that it would be fair to give this system a chance to prove itself, IF at the end of a trial time all options were on the table. This is not Ashcroft's position; in fact he surprisingly seems to believe that the RA can do very little to stop him from doing as he well pleases at this point. Does anyone else have a problem with that?

Unless I am assured that the proponents of the system are willing to radically alter or even completely remove the system that is being implemented, should it prove to be the colossal mess it is shaping up to be, I must ask for the repeal of the system before the power grab becomes a [i:2zcnslv2]fait accompli[/i:2zcnslv2], precipitating a constitutional crisis.[/quote:2zcnslv2]

The system HAS been given a chance to prove itself, and has failed that test by the promulgation of judicial qualification procedures that don't meet the citizens' smell test, unilateral adoption of a first-draft mammoth Code of Procedure without respecting the public by at least asking first, and by refusing to even consider delaying adoption of the Code when reasonable objections in opposition to it have been lodged.

[michelmanen]

[quote:p7vm8im8]The system HAS been given a chance to prove itself, and has failed that test by the promulgation of judicial qualification procedures that don't meet the citizens' smell test,[/quote:p7vm8im8]

The purpose of the qualification procedures is not to select the most popular judge, it is to select the most qualified judge. The actual test of the procedures will be in the quality of applicants it attracts and the legitimacy of the decisions it delivers. These we can only assess if the system is allowed to function on practice.

[quote:p7vm8im8] unilateral adoption of a first-draft mammoth Code of Procedure without respecting the public by at least asking first, [/quote:p7vm8im8]

The Code came into force temporarily, to assess how it works in practice and give th Commission the chance to make up its mind about its recommendations having at its disposal as many facts as possible. All citizens who will wish to take part in the consultation process will have the opportunity to do so.

[quote:p7vm8im8]and by refusing to even consider delaying adoption of the Code when reasonable objections in opposition to it have been lodged.[/quote:p7vm8im8]

Objections can only be reasonable once we see how the entire system functions in practice. This has not happened yet. In fact, some are determined to make use of any and all means necessary to violate the RA's democratically legitimated vote in favour of the Act and its implementation, and hind at all costs the legal system to prove itself in light of Beathan's "harsher standard" - in this case, practical performance in-world in in-world legal cases.

[Beathan]

Michel --

The qualification procedure was submitted "for public comment" as well. No public comments were effective. Significant public doubt has arisen, without being acted on, that the qualification proposal will give us neither the most popular nor the most qualified judges. It will give us judges according to an ideological and ethical litmus test many citizens object to. This is one of the principle failures people recognize in the Act.

The other main failure is in the Code -- which is far too complicated. However, so far this public concern is being treated with the same cavalier disregard that greeted concern about the qualification process.

People are sick of the Act. We are in a democracy where people can get rid of things that make them sick. That is all we Simpletons (and others) are saying here. Let's act democratically to fix a problem -- let's not ignore the problem because we got into through democratic process.

Beathan

[michelmanen]

Beathan,

I'm all for acting democratically. In fact, that's what I have been busting a gut for so long in defending.

The Judicial Act was passed democratically.

The Chief Justice was mandated democratically to devise, implement and test the Judicature Act, the Judge selection process, and the Code of Procedure.

The Judiciary is required by our only democratically-elected institution, the Representative Assembly, to start the administration of justice in practice as soon as possible.

And until and unless the RA votes otherwise with hte required majority, this is what will happen.

If and when the RA decides otherwise, after the Commission holds free and fair public consultations where all citizens will have the opportunity ot have their say, and where all options will be on the table, I will be the first and most ardent supporter of the RA's democratically arrived at decision, in accordance with principles of fairness and the rule of law.

I trust you entirely agree with me?

Michel

[Beathan]

Michel --

Yes, I do, but I think the RA has far more authority and freedom to Act than you imply. The RA can impose a process for the Judiciary to follow in exercising its duties -- even if the RA does not take away those duties. In other words, even if the RA cannot replace the delegated legislative function of developing qualifications and procedures without amending the Constitution, the RA can amend those qualifications and procedures and can set up a process which the Judiciary must follow in developing or implementing its procedures and qualifications. These are ordinary acts of the legislature -- not Constitutional acts or amendments.

In other words, while the Judiciary has the power and duty to do certain things -- the RA has the power to tell the Judiciary how to do those things and to set guidelines for the activity. Nothing in the Judiciary Act or the Constitution strips this fundamental legislative power from the RA. Therefore, I think, that the RA can exercise these powers by simple statute, rather than by consitutitional amendment.

I hope and trust that the RA wil act wisely.

Beathan

[michelmanen]

Beathan,

[quote:111fs28b]In other words, while the Judiciary has the power and duty to do certain things -- the RA has the power to tell the Judiciary how to do those things and to set guidelines for the activity. Nothing in the Judiciary Act or the Constitution strips this fundamental legislative power from the RA. [/quote:111fs28b]

Now this is language I understand! I agree with you here - to the extent that the RA does not undermine the judiciary's independence, of course.

If you would have adopted this position from the beginning, respectful of our democratic institutions and of the rule of law, we would have not had so many disagreements.

I trust the RA will act wisely as well.

Michel

[Beathan]

Michel writes, agreeing with my last post, [quote:qkbdfsya]
Now this is language I understand! I agree with you here - to the extent that the RA does not undermine the judiciary's independence, of course.

If you would have adopted this position from the beginning, respectful of our democratic institutions and of the rule of law, we would have not had so many disagreements.

I trust the RA will act wisely as well.
[/quote:qkbdfsya]

I think that this is the position I have consistently held. However, most of my posts have focussed on the policy and not on the process or mechanism for bringing it about. We have to find the right policy and then use democratic process to achieve it. I'm sorry that I didn't communicate this more clearly.

With regard to judicial independence, I see the current Judiciary as being charged with two different kinds of activity. First, it has the judicial function of hearing and deciding cases. This is the area of its independence from outside control. No other agency should be able to dictate and control the decisions judges make in specific cases. (That said, the RA can respond to a decision by passing a generally applicable law that, as a matter of substantive law, changes the law. That would change the outcome of future cases. However, no nonjudicial branch of government should have the authority to change the specific outcome of any given case.)

However, the Judiciary Act also delegates some legislative authority to the Judiciary. Specifically, the Act authorizes the Judiciary to pass general law governing judge qualifications and ethical standards, regulation of CDS attorneys, and legal process. These are not areas in which the Judiciary should be insulated in its operations. As a matter of Constitutional law, in the CDS all legislative authority is vested in the RA. The RA can share that authority -- but cannot delegate it way. To use the term I propose, the "source and seat" of all Legislative power is in the RA. Therefore, even though the RA specifically charged the Judiciary to pass generally applicable law regarding qualifications and process, it did not give up its own authority to regulate in those areas. Further, the RA has the final word as the ultimate legislative actor.

In other words, I would pose a distinction, which is true iRL, between the judicial function of the Judiciary and the legislative, or quasi-legislative, function of the Judiciary. The Judiciary is free from control by the RA (or anyone else) in its exercise of its judicial function. However, the RA has nondelegable ultimate power in all legislative matters, so the Judiciary is not free from RA control in its exercise of its legislative or quasi-legislative function.

Glad to have cleared the air.

Beathan

[Ashcroft Burnham]

As I have stated many times before, deciding who shall be a judge is not a legislative function: it is a judicial function, the absolute independence of which from the legislature (or, indeed, the executive) is vital to ensure the independence of the judiciary in the way that individual cases are decided, since the legislature and executive could otherwise mandate (whether directly or indirectly) the appointment of judges who tend to decide cases in particular ways.

[Ashcroft Burnham]

[quote="Justice Soothsayer":gselbqry]The system HAS been given a chance to prove itself, and has failed that test by the promulgation of judicial qualification procedures that don't meet the citizens' smell test, unilateral adoption of a first-draft mammoth Code of Procedure without respecting the public by at least asking first, and by refusing to even consider delaying adoption of the Code when reasonable objections in opposition to it have been lodged.[/quote:gselbqry]

According to the Scientific Council, it would have been unlawful of me to have delayed either the issuance of the Code or the qualification procedures/requirements:

[quote="The Scientific Council":gselbqry] 1. That once a Judge of the Common Jurisdiction was appointed and validated, as well as the Chair of the Judiciary Commission was appointed and validated, the Judiciary Act entered in full effect of the law;
2. That as soon this happened, the SC has no further role in establishing and defining the start of the Judiciary, but that the Judiciary will establish itself under the self-same Judiciary Act in full effect;
3. That, under the Judiciary Act, the Chair of the Judiciary Commission is fully entitled to define the minimum number of judges that should serve in the Judiciary;
4. That, to comply with the demands of the Chair of the Judiciary Commission, the Board of the Judiciary Commission is thus compelled to complete procedures for qualification of at least two further Judges, subject to appointment by the Public Judiciary Scrutiny Panel, or the Representative Assembly if said Public Judiciary Scrutiny Panel has less than three judges;
5. That, to allow pending cases to be heard, the Board of the Judges of the Common Jurisdiction shall publish a Code of Procedures;
6. That the previous points should be completed in reasonable time, not over 28 days after the Judiciary Act was approved by the Representative Assembly (or not over 28 days after the requirement for the apppointment of another two Judges was made public), and that the Chief Judge of the Common Jurisdiction is compelled to comply with this required timeline, subject to further inquiry by the Scientific Council if the demands are not met, which could lead to gross dereliction of duty and be grounds for impeachment.[/quote:gselbqry]

[Beathan]

Ash --

Ash's argument points to a harm that is not unique. If the judiciary is self-selecting, without any outside control, than the judiciary can appoint judges who will decide cases in certain ways. This danger is no different than the danger Ash seeks to avoid by completely excluding the RA from the process.

I agree that litmus test appointments are improper -- but they are improper whether the litmus test is imposed by the legislature or by the judiciary. The only way to avoid this harm is to have a process of checks and balances. I believe that RA control over general rules, coupled with a specific multi-agency process (say SC nomination, RA appointment; or Exe nomination, RA approval) is the best way to protect against litmus test judicial appointments.

I want to point out that one of the primary reasons for the current criticism of the Judiciary Act is that the Judiciary (which at this time means Ash) is imposing a litmus test on judicial applicants. This test favors those with a certain theory of judicial ethics against others.

(I might divide these theories between those that favor judicial independence from influence verses those that favor judicial neutrality in the face of influence. That doesn't quite get the issue -- but I think it approximates it. I, of course, support neutrality -- because the idea of independence strikes me as silly and unrealistic. Judges are not voices from on high. Judges live in the world. They are influence by it. Rather than try to pretend that we can insulate judges from the world, we should innoculate judges from the negative effects of the influence they will inevitably experience. Judges should be fair, unprejudiced and impartial -- they should not be clueless, unworldly, or disinterested in human concerns.)

The ethical bias in the current qualification process is inappropriate both as a matter of fairness to judicial candidates and because the Judiciary (and the RA) has not yet decided on what the proper theory of judicial ethics should be. This litmus test appointment process prejudges that matter of court administration, if nothing else.

Beathan