Special Commission on the Judiciary (bill as passed by RA)

[Justice Soothsayer]

The following was passed by the RA this morning, 9 Dec. 2006:

[quote:tcup05e0][b:tcup05e0]Special Commission on the Judiciary[/b:tcup05e0]

1. Substantial concerns regarding the Judiciary Act and its implementation have been raised by a significant number of citizens, a number of proposals have been made to amend or repeal the Judiciary Act, and considerable discussion has taken place on the forums.

2. The RA concludes that it is appropriate to seek public input regarding the Judiciary Act beyond that which occurs on the forums, and therefore appoints a Special Commission on the Judiciary, to be co-chaired by an RA member to be named by the leader of each faction. Any citizen may join as a member of the Commission by sending notification to the LRA by IM.

3. The Special Commission shall take public testimony regarding the Judiciary Act, judicial qualifications, and the Code of Procedure in at least two hearings to be scheduled by the co-chairs between (a) 1:00 pm SLT and 4:00 pm SLT (Euro-friendly) and (b) 3:00 SLT and 10:00 pm SLT (US mainland friendly). Each citizen wishing to address the Commission shall be afforded the opportunity to speak uninterrupted for up to five minutes, following which testimony the hearing shall be open for dialogue. Public testimony may also be made by written submission to the forums.

4. The Special Commission shall meet on December 13, 2006 to make written recommendations to the RA no later than 5:00 pm SLT on December 14, 2006 regarding what action, if any, the RA should take on the various proposals to amend or repeal the Judiciary Act, and the recommendations shall be posted on the forums. Any member or group of members of the Special Commission may submit dissenting opinions on the forums.

5. The RA will consider the report of the Special Commission and any dissenting opinions during its regularly scheduled meeting on December 16, 2006.

6. The Code of Procedure issued on December 5, 2006 is hereby replaced with the following:

[quote="Rules":tcup05e0]Rule 1 - Initiating notecard

A case is be initiated by submitting a notecard containing (1) name of the Complainant, (2) name of the Respondent(s), and (3) a short and simple statement of the facts of the case. The notecard shall be dropped into the inventory of the Chair of the Judiciary Commission, who shall within 24 hours send the notecard and IM notice of the submission of the notecard to each defendant(s), and the Chair shall maintain a record of having done so.

Rule 2 - Reply notecard

A Respondent shall reply to the initiating notecard within ten days by submitting a reply notecard containing a short and simple statement of the facts of the case. The reply notecard shall be dropped into the inventory of the Chair of the Judiciary Commission, who shall within 24 hours send the notecard and IM notice of the submission of the notecard to the Complainant, and the Chair shall maintain a record of having done so.

Rule 3 - Pretrial hearing

Within ten days of service of the Rule 2 notecard on the Complainant(s), the court shall convene a meeting of the parties (either at the same time in world, via IM, or via email) to discuss any procedures required for handling the case. The parties may agree on a pretrial order setting forth the procedures and timetable by which the case will be handled, including any trial procedures. In the event that no agreement is reached, the court may issue a pretrial order, but such pretrial order may be immediately appealed to the Scientific Council, which may reverse, remand, or amend any order that it deems unreasonable.

Rule 4 - No costs, attorneys fees or other expenses

There shall be no court costs or attorneys fees assessed against any party, and all parties shall bear their own expenses, unless a contract between the parties or an Act passed by the RA provides otherwise.

Rule 5 - Judgments

The court may enter judgment following trial, or upon motion by a party as long as all parties have been given an opportunity to be heard on the motion. The court may enter judgment by default if a party fails to participate at any stage, so long as the party is given notice via notecard providing for at least ten days to show cause why default judgment should not be entered.[/quote:tcup05e0]
[/quote:tcup05e0]

[Beathan]

This procedure is both simple and complete. It is very workable. I could certainly litigate a case from start to finish under this procedure. Good job, RA, for resolving a large part of the current Judiciary controversy so wisely and well.

We still have the qualification problem as an unresolved issue. We also still may have the relative balance of power between the RA and the Judiciary as an unresolved problem. We still do not have rules concerning the ethics and conduct of lawyers and judges -- and history suggests that there will be problems in these areas as well.

That said, under this procedure, with a judge, we now have a working judiciary. This is a major accomplishment -- even if the system is and should be in flux which may, perhaps, result in radical redrawing of lines and redefinition of roles.

Beathan

[Ashcroft Burnham]

Please note that, since this bill has been flagged for constitutionality by the SC, it will not be in force unless and until it is ratified by the SC. The SC sit to decide whether or not to ratify it on Sunday the 10th of December.

[Ashcroft Burnham]

[quote="Beathan":2tu9880z]That said, under this procedure, with a judge, we now have a working judiciary. [/quote:2tu9880z]

We had a working judiciary before Justice tried to oversimplify the procedure. You not liking a system does not mean that it is not functioning.

[Beathan]

Ash --

We did not have a working judiciary. It is also disputed whether we had a workable judiciary. We now certainly have a workable judiciary.

I was not here this morning at 4 am because 1. I have a cold and 2. one of my dogs died yesterday afternoon and I am depressed. For that reason, I don't understand the constitutional problem. I hope the SC approves this wise and reasonable course the RA has charted for us.

That said, I note that Ash himself said [quote:emxzmk3x]The point that I made was quite clear: there is a difference between blandly "suspending" the whole code (which applies only to a particular code, rather than any principle contained within it, and is thus of little effect), and in any event is unconstitutional and unlawful, and the legislature making its own specific rules. In summary, the legislature can say what the procedure is, but cannot say that there will be no procedure at all. [/quote:emxzmk3x]

The RA did not do the thing Ash claimed was unconstitutional -- suspending the Code. Rather, the RA made its own specific rules, a power Ash acknowledged the RA had. The rules are workable, so there is no problem arising from our not having a workable judiciary as required by the Constitution. In fact, this Act fixed that problem.

I hope that the SC will review and accept the constitutional balance of relative power argument I made in the Commission Bill thread. It sets out what is, I think, the most defensible and proper balancing between the RA and the Judiciary. The RA has ultimate legislative authority. The Judiciary has ultimate judicial authority (within constitional limits under the SC). Therefore, while the judiciary has some delegated legislative function, it exercises that function subject to review and ultimate control by the RA -- and RA regulation of judicial process is a proper legislative function.

We still have a dispute about whether qualification and regulation of attorneys and judges is a legislative or judicial function. However, we are putting that off for another day. On that dispute, however, I note only that such regulation looks more like generally applicable law or standards (legislative function) than it looks like the particular resolution of a dispute (judicial function). Something is not a judicial function just because it functions on or through the judiciary.

First, on the Common Law model, both legislatures and judiciaries make law. However, this means that not all lawmaking is a judicial function -- even though all laws act on and through the judiciary. All law would be a judicial function on a model that implies that everything that affects or acts through the judiciary is a judicial funciton. (I note that this extreme version of judicial independence is not even the law in the UK -- nowhere iRL do we find a Krytocracy -- except, perhaps, Iran. I also note -- anticipating Michel Manen's objection to the RA procedure -- that while this procedure looks like Iran's procedure in some ways, it is not objectionable for that reason. What is objectionable about Iran is not the legal procedure used there. What is objectionable is 1. the substantive content of their law (Sharia on an extreme interpretation) and 2. the Krytocratic nature of government by Ayatollahs. This procedure is not unique to Iran. It is also known in Native American justice systems that work quite well and without the substantive objections that can be raised to Iranian law.) Therefore, we need to look at the nature and application of a law to determine if it looks like a statute or like a court ruling, which might have precedental value. I submit that qualification and regulation standards for lawyers and judges, by being promulgated, codified, general standards -- and not holdings in a case considering a specific dispute -- are legislative, not judicial, in nature and function.

Beathan

[Ashcroft Burnham]

Beathan, the constitutional problem is that the new rules purport to give a right to appeal to the Court of Scientific Council other than on the limited grounds that the constitution permits.

[Beathan]

Ash --

Ok, I see this problem. If the SC needs to, it should strike down that section only, leaving the rest in place. We then need to move forward ASAP to get a functioning judicial appeal process. A justice system that does not provide for appeals is not a justice system at all. Rather, it is personal rule, in specific cases, by autocratic judges.

We should have at least 5 judges so that in every case we can have a trial judge, a judge appellate panel, and a spare judge. The RA should act to appoint such judges ASAP -- and on its own authority, under qualification rules it creates.

That said, just because the Constitution gives the SC jurisdiction over a certain subject, it does not follow that the Constitution denies the SC jurisdication over other subjects. In other words, the Constitution might require that Constitutional appeals be heard and decided by the SC without forbidding other appeals from being heard by the SC. Further, my understanding is that, until there is a judicial appeal process, every appeal presents Constitutional issues because the Constitution requires a full and proper process. Therefore, if the judiciary cannot provide for appeals, there is a Constitutional violation-- giving the SC jurisdiction even on an anemic interpretation of SC appellate jurisdiction under the Constitution. In other words, the SC can hear appeals at this point because there is a Constitutional violation in fact (no other appeal process) even if the SC would not be able to hear appeals if there were judicial appeals available.

Beathan

[Ashcroft Burnham]

[quote="Beathan":33xd7ltj]Ok, I see this problem. If the SC needs to, it should strike down that section only, leaving the rest in place. We then need to move forward ASAP to get a functioning judicial appeal process. A justice system that does not provide for appeals is not a justice system at all. Rather, it is personal rule, in specific cases, by autocratic judges. [/quote:33xd7ltj]

The system as I designed it from the outset was designed to have appeals: from inferior courts of common jursdiction to superior courts of common jurisdiction.

[quote:33xd7ltj]We should have at least 5 judges so that in every case we can have a trial judge, a judge appellate panel, and a spare judge. The RA should act to appoint such judges ASAP -- and on its own authority, under qualification rules it creates.[/quote:33xd7ltj]

We have one judge, three have applied for qualificiation, and one more would have applied if he had more time.

[quote:33xd7ltj]That said, just because the Constitution gives the SC jurisdiction over a certain subject, it does not follow that the Constitution denies the SC jurisdication over other subjects. In other words, the Constitution might require that Constitutional appeals be heard and decided by the SC without forbidding other appeals from being heard by the SC. Further, my understanding is that, until there is a judicial appeal process, every appeal presents Constitutional issues because the Constitution requires a full and proper process. Therefore, if the judiciary cannot provide for appeals, there is a Constitutional violation-- giving the SC jurisidiction even on an enemic interpretation of SC appellate jurisdiction under the Constitution. In other words, the SC can hear appeals at this point because there is a Constitutional violation in fact (no other appeal process) even if the SC would not be able to hear appeals if there were judicial appeals available.[/quote:33xd7ltj]

The consitution does expressly [i:33xd7ltj]limit[/i:33xd7ltj] the remit of the Court of Scientific Council when considering appeals.

[Beathan]

First, as I understand it, there are grave concerns in this community both about the qualification process in general and the qualifications
(especially enculturation and temperament) of at least some applicants in particular. Three applicants does not mean three more judges. Four applicants does not mean four more judges. The PJSP still needs to consider the applications -- and the PJSP should be far more than just a rubber-stamping body. Ash himself has deferred the most important issues -- character and temperament -- to the PJSP.

With regard to the SC's jurisdiction, the Judiciary Act states [quote:u9hs4x1m]1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision (or any part thereof) from which the appeal is made, but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought: –

(a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and

(b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute).

2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds: –

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators (except the common law with respect to the jurisdiction of the Courts of Common Jurisdiction);

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council.

[/quote:u9hs4x1m]

This arguably provides expansive appellate jurisdiction to the SC. The Judiciary is charged with the fair and proper administration of justice. Therefore, whenever the Judiciary gets things wrong, it has "acted outside the scope of its authority." Further, the attempt to limit substantive review of judicial opinions can be bypassed by simply defining the questions in terms of Constitutional issues -- such as "Did the Judiciary properly fulfill its constitutional obligation when it (state specific issue)."

Further, right now this is not even a difficult question -- or one that needs careful definition of the problem to trigger SC jurisdiction. Right not, in every case, the Judiciary, by failing to provide for an appeal, is failing to discharge its Constitutional duty -- thereby triggering SC jurisdiction over every case, at least for appeal purposes.

Further, the requirement that the SC confine itself to the text of the Constitution does not limit its appeal authority. The Constitution contains many general and grand terms, which are ambiguous -- and which provide great latitude to textual interpreters. It is much like the US Constitution in that way. Textualism has never held any Constitutional judge back -- and never can -- and never should. In the US, we often see Scalia and Souter on different sides of the same case on "strict textual" grounds.

Beathan

[Justice Soothsayer]

The Judiciary Act states (Article III, Section 8 of the Constitution):

[quote:10e1j9p2]1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision (or any part thereof) from which the appeal is made, but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought: –

(a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and

(b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute). [/quote:10e1j9p2]
and (in Constitution Article VII):
[quote:10e1j9p2]17. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings. [/quote:10e1j9p2]
Rule 3 provides in pertinent part that [quote:10e1j9p2]"The parties may agree on a pretrial order setting forth the procedures and timetable by which the case will be handled, including any trial procedures. In the event that no agreement is reached, the court may issue a pretrial order, but such pretrial order may be immediately appealed to the Scientific Council, which may reverse, remand, or amend any order that it deems unreasonable,"[/quote:10e1j9p2]

Section 17 of the Judiciary Act makes the "inherent jurisdiction" of the courts to make rules subject to "any duly ratified Act" of the RA. Rule 3 of The Special Commission bill establishes a "rule of reasonableness" as to any pretrial order. Consequently, under this Rule, a court which enters an unreasonable pretrial order is acting outside of its jurisdiction. The SC has jurisdiction to consider appeals where a court "a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and (b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute). " Therefore, appeals about a court acting outside its authority to adopt reasonable pretrial procedures are properly given to the SC.

[Ashcroft Burnham]

[quote="Justice Soothsayer":1kxt202h]Section 17 of the Judiciary Act makes the "inherent jurisdiction" of the courts to make rules subject to "any duly ratified Act" of the RA. Rule 3 of The Special Commission bill establishes a "rule of reasonableness" as to any pretrial order. Consequently, under this Rule, a court which enters an unreasonable pretrial order is acting outside of its jurisdiction. The SC has jurisdiction to consider appeals where a court "a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and (b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute). " Therefore, appeals about a court acting outside its authority to adopt reasonable pretrial procedures are properly given to the SC.[/quote:1kxt202h]

The "rule of reasonableness" is a statutory rule, not a constitutional rule. As to statutory interpretation, the constitution provides:

[quote:1kxt202h]2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds: –

...

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly)...[/quote:1kxt202h]

It is quite clear, therefore, that only interpretations of the text of the constitution, and not of statute, are appealable to the Court of Scientific Council. The Courts of Common Jurisdiction exclusively determine what is "reasonable" according to any statutory rule requiring reasonableness.

[Beathan]

Ash --

Ash misses the point. The Courts have a Constitutional duty to act reasonably. This is an inherent and implied obligation which we can clearly find in the intent of the Act (which, as Ash asserts, is to have a justice system that acts more reasonably than the old system of SC administered justice did.) Therefore, if a Court acts unreasonably, it has failed to act in accord with its statutory and Constitutional duties under the Judiciary Act. Further, if the Court issues an unreasonable order, then it has acted outside of its Constitutional authority (to act reasonably) and is subject to SC review.

Further, the Judiciary Act itself sets forth the Constitutional limits of Judicial action.
[quote:16a58v6k] 12. When making any binding determination of the rights, duties, powers, privileges, immunities, liabilities and disabilities according to the law of the Confederation of Democratic Simulators of any parties in any proceedings in any Court of Common Jurisdiction, Judges of Common Jurisdiction shall be bound by the following sources of law, each item in the following list
taking precedence over each subsequent item: –

(a) the Constitution (as interpreted by any judgment of the Scientific Council sitting as a court, or of the Scientific Council in any capacity before the passing of the Judiciary Act that sets a precedent);

(b) any duly ratified Act of the Representative Assembly;

(c) any regulations made under any powers delegated, whether directly or indirectly, by any duly ratified Act of the Representative Assembly;

[/quote:16a58v6k]

Thus, even if the Court is not bound by reasonableness as a Constitutional principle because the Constitution is silent, it is still bound by it as an act of the RA (which is the next paramount authority). The RA is certainly not bound to only impose requirements on Judicial action that are required by the Constitution itself. Any such limitation would defeat the purpose of the RA as a lawmaking body. As I have previously analysed, the RA has inherent authority to make general, code-like law. I further note that the Judiciary's own code-making authority is expressly subordinated to the RA on the above limitation. Further, because this obligation to follow Acts ot the RA is a Constitutional requirement, if a judge disregards a duly ratified Act of the RA, it has acted outside its Constitutional authority, triggering SC review. This review applies whether or not the Act that is disregarded directly involves Court procedure. There is no special exceptions to this requirement to follow statutory law.

Further, it just makes good sense to have some reasonableness check on the Judiciary. What if a Judge intentionally limits the time of one side to present evidence -- or arbitrarily excludes evidence from one side -- or sets hearings at inconvenient times for a party just to prejudice the case. These acts would be unreasonable. These acts need to be prevented somehow -- and are not prevented if we have absolute judicial control over itself. If the most unreasonable person is given the power to assess his own reasonableness, we will never have a correction to that unreasonableness. I think the SC is well suited, especially with its current members, be to a critical check on judicial action. Surely there is nothing wrong with providing an institutional guarantee that the judiciary act reasonably. I wonder what the judiciary intends to do that makes it concerned that the SC might police its reasonableness.

The critical point that his missing in Ash's analysis that the SC has a role to play in the Constitutional structure of the SC. At least part of that role is to be the final arbiter of Constitutional questions. The SC's role is a Constitutional question (as is the Judiciary's role and the RA's role). Therefore, only the SC can ultimately determine the balance of power among and between the branches of government. More importantly, only the SC can set or limit its own jurisdiction, including appellate jurisdiction.

Even though the Constitution provides guidance on these questions, and the SC should and (I'm sure) will look to this guidance, the plain language of the Constitution allows for great latitude in this decision. The range of options available to the SC in answering this question is very large. The SC can define its own limits as narrowly as (or more narrowly than) Ash sees them, or it can define them as broadly as (or more broadly than) I and Justice see them. Personally, I think that the broad definition is the best and safest as allowing the greatest safeguard for citizen rights and constitutional balance in the face of what seems to be an imperial judiciary.

Beathan

[Ashcroft Burnham]

[quote="Beathan":2s26mq0b]Ash misses the point. The Courts have a Constitutional duty to act reasonably. This is an inherent and implied obligation which we can clearly find in the intent of the Act (which, as Ash asserts, is to have a justice system that acts more reasonably than the old system of SC administered justice did.)[/quote:2s26mq0b]

No, the intention of the Act was to restrict appeals to the Court of Scientific Council to very narrow grounds. That is clear when a long list of grounds upon which appeal cannot be made to the CSC are listed, and appeals are limited to circumstances in which the Court of Common Jurisdiction has "acted outside its [i:2s26mq0b]jurisdiction[/i:2s26mq0b] as conferred by the [i:2s26mq0b]text[/i:2s26mq0b] of this constitution".

The point is that it is not for the Court of Scientific Council to determine whether the Courts of Common Jurisdicion have acted reasonably in general: if it were, the precise exclusionary rules, and the use of the words "the text of the constitution" would have been redundant. What meaning do you assert that they could have if the Court of Scientific Council had such a power? It is good that the Courts of Common Jurisdiction act reasonably, but that does not entail that they are acting outside their [i:2s26mq0b]constitutional jurisdiction[/i:2s26mq0b] if they act in a way that the members of the Scientific Council think is unreasonable. The word "jurisdiciton" was also deliberate.

[quote:2s26mq0b]Thus, even if the Court is not bound by reasonableness as a Constitutional principle because the Constitution is silent, it is still bound by it as an act of the RA (which is the next paramount authority). The RA is certainly not bound to only impose requirements on Judicial action that are required by the Constitution itself. Any such limitation would defeat the purpose of the RA as a lawmaking body. As I have previously analysed, the RA has inherent authority to make general, code-like law. I further note that the Judiciary's own code-making authority is expressly subordinated to the RA on the above limitation. Further, because this obligation to follow Acts ot the RA is a Constitutional requirement, if a judge disregards a duly ratified Act of the RA, it has acted outside its Constitutional authority, triggering SC review.[/quote:2s26mq0b]

Only if the Court of Common Jurisdiction "expressly purports to disapply" any duly ratified Act. The Court of Scientific Council is expressly excluded from allowing an appeal on the ground that a Court of Common Jurisdiction wrongly interpreted any duly ratified Act.

[quote:2s26mq0b]Further, it just makes good sense to have some reasonableness check on the Judiciary.[/quote:2s26mq0b]

That you want something to be law does not mean that it is. The scheme of the Judiciary Act was to provide for only very limited review of the Courts of Common Jurisdiction. The point of that was that members of the Scientific Council are not in a better position to determine general reasonableness than Judges of Common Jurisdiciton, and, in fact, because Judges of Common Jurisdiction are, and members of the Scientific Council are not, legal professionals, are in a far worse position. That was the whole reason for having a narrow jurisdiction to appeal in the first place.

[quote:2s26mq0b]What if a Judge intentionally limits the time of one side to present evidence -- or arbitrarily excludes evidence from one side -- or sets hearings at inconvenient times for a party just to prejudice the case. These acts would be unreasonable. These acts need to be prevented somehow -- and are not prevented if we have absolute judicial control over itself.

If the most unreasonable person is given the power to assess his own reasonableness, we will never have a correction to that unreasonableness. I think the SC is well suited, especially with its current members, be to a critical check on judicial action. Surely there is nothing wrong with prividing an institutional guarantee that the judiciary act reasonably. I wonder what the judiciary intends to do that makes it concerned that the SC might police its reasonableness.[/quote:2s26mq0b]

This argument does not make any sense: why should this apply to Judges of Common Jurisdiction but not members of the Scientific Council? Who acts as a check on the Scientific Council? What if the Court of Scienitifc Council arbitrarily allows an appeal, or acts unreasonably itself? Does that mean that the "purpose of the Act" means that there can be some further appeal? The buck has to stop somewhere, and, for everything other than questions of whether the Court of Common Jurisdiciton has "acted within its jurisdiction as conferred by the text of this constitution", the buck stops with Courts of Common Jurisdiction.

[quote:2s26mq0b]The critical point that his missing in Ash's analysis that the SC has a role to play in the Constitutional structure of the SC. At least part of that role is to be the final arbiter of Constitutional questions.[/quote:2s26mq0b]

Only in so far as it answers those questions in a way consistent with the express wording of the constiution.

[quote:2s26mq0b] The SC's role is a Constitutional question (as is the Judiciary's role and the RA's role). Therefore, only the SC can ultimately determine the balance of power among and between the branches of government.[/quote:2s26mq0b]

No, all that the Council may do is interpret the constitution. It is those who write the constitution who determine the balance of power. The Scientific Council cannot go behind what is written in the text of the constitution just because it dislikes it.

[quote:2s26mq0b]More importantly, only the SC can set or limit its own jurisdiction, including appellate jurisdiction.[/quote:2s26mq0b]

What is the source for that proposition of law? The constitution provides express and very precise limits on the SC's appellate jurisdiction.

[quote:2s26mq0b]Even though the Constitution provides guidance on these questions, and the SC should and (I'm sure) will look to this guidance, the plain language of the Constitution allows for great latitude in this decision.[/quote:2s26mq0b]

The constitution is not "guidance" that the SC may follow or ignore at will. It is the ultimate source of the SC's authority, and it has no power to depart from it. If it does so, it will have acted unlawfully, and its members may be impeached.

[quote:2s26mq0b]The range of options available to the SC in answering this question is very large. The SC can define its own limits as narrowly as (or more narrowly than) Ash sees them, or it can define them as broadly as (or more broadly than) I and Justice see them.[/quote:2s26mq0b]

It cannot define them in such a way for the reasons given above.

[quote:2s26mq0b]Personally, I think that the broad definition is the best and safest as allowing the greatest safeguard for citizen rights and constitutional balance in the face of what seems to be an imperial judiciary.[/quote:2s26mq0b]

More spite and malice. You really do lower the tone.

[Beathan]

Ash writes that a judge violates his duty to apply RA ratified Acts[quote:11qtnjm5]Only if the Court of Common Jurisdiction "expressly purports to disapply" any duly ratified Act. The Court of Scientific Council is expressly excluded from allowing an appeal on the ground that a Court of Common Jurisdiction wrongly interpreted any duly ratified Act. [/quote:11qtnjm5]

This is very dangerous. In fact, this threatens the entire constitutional order. Ash is saying that the Judiciary can disregard any act of the RA provided the judge simply ignores it. In other words, Judges only violate their duty when they say the words, "although I know the RA ratified Act provides otherwise, I rule X" -- and do not violate their duty if they just say "I rule X."

This is Krytocracy in its boldest form. This theory is irresponsible and antithetical to any constitutional union of balanced arms of government. This theory is so dangerous to the CDS as a democratic society that I call on the present government to institute proceedings to remove Ash from his office. We cannot afford to have an autocrat in any position of power -- let alone one that the autocrat believes to be both powerful and unchecked.

Ash also argues that the SC cannot review the Judiciary unless the judiciary is acting outside its jurisdiction. That is not true of constitutional issues. The SC has ultimate power to review constitutional issues. My argument is that the SC can and should define this constitutional review power very broadly -- so broadly that it gives the SC general review power if a judge acts unreasonably or illegally and, therefore, acts in a way that is not in accord with the judge's constititional duty and authority.

With regard to my argument that common sense requires that the SC be able to review acts of the Judiciary for reasonableness. Ash asks, why should this check apply to judges and not to the SC. Well, first, we have far more reason to believe that the SC will be reasonable given its membership than we have given the membership and prospective membership of the Judiciary. "Reasonable" is surely one of the words that springs to mind if someone is asked to describe Gwyn. I'm not sure that the word would even make the list of people asked to describe me, or Ash, or Michel, or any other judicial hopeful (official or unofficial). (Except the new member, Oni, who Justice described to me as "reasonable" by way of contrast.) However, that is accidental. The more important argument is that when we ask the SC to review the Judiciary, we are running through a check and second check process for reasonableness. When we ask the judiciary to review itself, there is a single check. It is like the difference between having a person read over a paper he wrote to see if he made mistakes, verses having a second person read and edit it. The second process is always better.

With regard to my argument that the SC is the ultimate constitional check, although the Judiciary Act gutted the SC's purpose, it did leave the SC's heart in place. That heart is to act as the guardian of the Constitution. The SC still has that authority. This means that the SC is the ultimate arbiter of Constitutional questions -- including questions about the power and purpose of branches of government and about the relative power of those branches in their various overlapping functions.

I use the term "imperial judiciary" advisedly -- and not out of a spirit of spite and malice. The Judiciary does not have ultimate and general power in the CDS. The CDS is carefully set up so that there is no branch that has ultimate and general power. However, we see the Judiciary trying to place itself above the RA in legislative authority and above the SC in Constitutional authority. If this is not an "imperial judiciary" I don't know what is.

Beathan

[Ashcroft Burnham]

[quote="Beathan":l94x61zj]Ash writes that a judge violates his duty to apply RA ratified Acts[quote:l94x61zj]Only if the Court of Common Jurisdiction "expressly purports to disapply" any duly ratified Act. The Court of Scientific Council is expressly excluded from allowing an appeal on the ground that a Court of Common Jurisdiction wrongly interpreted any duly ratified Act. [/quote:l94x61zj]

This is very dangerous. In fact, this threatens the entire constitutional order. Ash is saying that the Judiciary can disregard any act of the RA provided the judge simply ignores it. In other words, Judges only violate their duty when they say the words, "although I know the RA ratified Act provides otherwise, I rule X" -- and do not violate their duty if they just say "I rule X."[/quote:l94x61zj]

You disliking the constitution does not make it not so. And you have again missed the point: we could perfectly well have a system that doesn't have two distinct types of courts, just two levels of what we now have as courts of common jurisdiciton. In effect, we have three levels of court: (1) the Court of Scientifiic Council; (2) superior Courts of Common Jurisdiction; and (3) inferior Courts of Common Jurisdiciton. We could very well have a system without no. 1, just two levels of court. We only had the CSC for historical reasons, and because it is useful to have a body that has a specific function of upholding the rule of specifcially constitutional law.

It does not make any sense to say "it is dangerous to have this court because one can't appeal from it", because one can never have infinite appeals: there always must be [i:l94x61zj]one[/i:l94x61zj] court from which one cannot appeal. Some jurisdictions have a single highest court to which one can appeal on any ground, but we do it differently: we have one court (the superior courts of common jurisdiciton) to which one can appeal from inferior courts on a broad range of grounds, and another level on top of that to which one can only appeal on very narrow, constitutional grounds. That is a special, extra step: nothing about having it means that one needs to give that court appellate jurisdiciton over everything else, too.