Proposed Constitutional Amendment: Clarification of Powers

[Jon Seattle]

(This is proposed by the CSDF.)

Constitutional Amendment: Clarification of Powers

Preamble

This Constitutional Amendment clarifies the status of the Scientific Council as the court of final appeal for all cases heard in the CDS, as the sole body empowered to interpret the constitution, and clarifies that the sole body empowered to pass legislation is the Representative Assembly. Specifically:

1. All decisions made by the Courts of Common Jurisdiction may be appealed to the Scientific Council. The SC will have the power to revise or overturn any decision in part or in whole.

2. The sole body empowered to interpret the constitution is the Scientific Council. The Courts shall refer any question regarding the interpretation of the constitution to the SC and shall make no official pronouncements regarding it. The Court must abide by decisions of the SC.

3. The Representative Assembly is the sole body with power to pass legislation.

4. As described in the constitution in Article III, Section 1, the Scientific Council retains the sole right to moderate the forum. No part of the Judicial Act shall be considered to overturn this.

Article III, Section 1 is hereby amended to read:
"The Scientific Council (SC) is a self-selected meritocracy. Its governmental role is to interpret and enforce the constitution. The SC is the sole body empowered to moderate user forums and events by this constitution."

Article III, Section 8 is hereby amended to read, from 'With respect to the Judiciary':
"1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any Court of Common Jurisdiction and either uphold or overturn the decision (or any part thereof) from which the appeal is made.

Part 2 beginning "Without prejudice to the specificity of the foregoing.." is repealed.

Article VII, Section 9 is hereby amended to read:
"Subject to any powers of the Scientific Council stated in the text of this Constitution, Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power..."

Article VII, Section 12 is hereby amended to read:
"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)..."

Article I, Section 6 is hereby amended to begin:
"The Representative Assembly is the sole body empowered to pass legislation by this Constitution. To the exclusion of any other branch of State, the RA holds the power to adopt laws. This power is exclusive and cannot be transmitted or delegated.

A vote in the RA is a simple majority vote ..."

[Publius Crabgrass]

Perhaps in light of the discussion [url=http://forums.neufreistadt.info/viewtop ... 4:2ne15rvu]elsewhere[/url:2ne15rvu], it may be prudent to explicitly include the Preamble's recitation of "the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards [to be upheld] without exception" in the "hierarchy of laws" found in Article VII, Section 12.

[Ashcroft Burnham]

I consider the title to be deliberately misleading, since this does not clarify: it radically changes fundamental nature of our existing judiciary. In fact, there is nothing in the least unclear about our existing constitution at present as to the powers of the Scientific Council.

Furthermore, do you really want to prohibit constitutionally the possibility of delegated legislation? Delegated legislation is a common feature of many legislatures. Why should the Chancellor, for example, not have power to make certain regulations if the Assembly so provides?

[Patroklus Murakami]

[quote="Ashcroft Burnham":10g0ry58]I consider the title to be deliberately misleading, since this does not clarify: it radically changes fundamental nature of our existing judiciary. In fact, there is nothing in the least unclear about our existing constitution at present as to the powers of the Scientific Council.[/quote:10g0ry58]The title is not misleading and I resent the accusation that this CSDF proposal is 'deliberately misleading'. It is prompted by the fact that the constitutional setup, as amended by the Judiciary Act, is far from clear. The SCs power to moderate the forums, and act as final arbiter, has been taken away by the JA with no debate or discussion bar one oblique reference in a series of lengthy posts made six months ago. To spare us any further 'surprises' this amendment makes it clear that the SC is the final Court of Appeal on all matters, that the SC moderates the forums and the RA is the only body empowered to adopt legislation.

[quote:10g0ry58]Furthermore, do you really want to prohibit constitutionally the possibility of delegated legislation? Delegated legislation is a common feature of many legislatures. Why should the Chancellor, for example, not have power to make certain regulations if the Assembly so provides?[/quote:10g0ry58]Yes. That's why we have explicitly prohibited delegated legislation in this proposal. There is one body with the power to adopt legislation in our constitution, the RA, we intend to keep it that way.

[Ashcroft Burnham]

[quote="Patroklus Murakami":2pgpygzx]The title is not misleading and I resent the accusation that this CSDF proposal is 'deliberately misleading'. It is prompted by the fact that the constitutional setup, as amended by the Judiciary Act, is far from clear.[/quote:2pgpygzx]

I do not agree that the existing arrangements are unclear: they are perfectly clear: the Courts of Common Jurisdiction are the final arbiters of all legal disputes arising under CDS law, except (1) impeachment hearings, and (2) appeals on the grounds that the Courts of Common Jurisdiction have exceeded their authority as conferred by the text of the constitution. What could be clearer than that?

[quote:2pgpygzx]The SCs power to moderate the forums, and act as final arbiter, has been taken away by the JA with no debate or discussion bar one oblique reference in a series of lengthy posts made six months ago.[/quote:2pgpygzx]

The SC's power to moderate the forums, as Publius points out, remains. Just like any executive power, however, the courts may entertain judicial review of it, just as the courts may entertain judicial review of an action, for example, of the Chancellor. It was always firmly [i:2pgpygzx]intended[/i:2pgpygzx] that the Scientific Council's power to act as final arbiter on all but specifically constitutional questions be given to the new Courts of Common Jurisdiction: that was indeed expressly discussed and agreed upon. It was not unclear to anyone at the time. That was the whole basis and scheme of the Judiciary Act. The reasoning, as I have pointed out many times elsewhere, was that the Scientific Council's members were appointed on the basis of their understanding of the constitution, not on their legal expertise. They should not, therefore, be involved in ordinary legal disputes, but only, as the keepers of the constitution, in matters that are specifically constitutional. The Courts of Common Jurisdiction, whose judges are appointed specifically on the basis of their legal expertise, were always planned to be the final arbiter in the vast majority of cases. It was quite clear from the outset that that was the very basis of the Judiciary Act, and the whole reason for having separate Courts of Common Jurisdiction in the first place. They were not intended merely as lower courts, as evident by the fact that there were always supposed to be inferior and superior Courts of Common Jurisdiction. If whether this was a good idea or not was not hotly debated, therefore, it was because it was nearly universally accepted, not because it was unnoticed.

The reason that I wrote that it was deliberately misleading is that a "clarification" purports to make the existing situation clearer, not to change one clear state of affairs to another. Since it must have been obvious to Jon, at least, who proposed the above and voted for the original Judiciary Act, that the whole scheme of the latter was to have Courts of Common Jurisdiction as the final arbiters of all matters of dispute save for the specifically constitutional, it cannot honestly be represented that changing that fundamental position is doing no more than making things clearer. I am also aware, through reading the transcripts of previous CSDF meetings, that Jon harbours an intense personal and irrational disliking of me (having claimed, for instance, before any judges were qualified, that I had deliberately made the qualification test so difficult as to prevent anybody at all but me from being a judge), and would do anything that he could to undermine the powers of the Courts of Common Jurisdiction of which he also has an intense and irrational disliking.

[quote:2pgpygzx]To spare us any further 'surprises' this amendment makes it clear that the SC is the final Court of Appeal on all matters, that the SC moderates the forums and the RA is the only body empowered to adopt legislation.[/quote:2pgpygzx]

I still do not understand why on earth you think that the position in respect of judicial review of forum moderations was a surprise, since it was a necessary deductive consequence of the relevant part of the Act. Also, why do you consider it an unpleasant surprise, given that you were, in fact, surprised?

The part about legislation, incidentally, is unnecessary given the enumerated sources of law in the constitution: if another body purported to legislate, the courts would simply ignore it. But notice that delegated legislation is included in that enumerated list, and making delegated legislation is also a specifically enumerated power of the Chancellor; for all your hurry to abolish the RA's power to delegate its legislative functions, you have not sought to address those anomalies.

[quote:2pgpygzx]Yes. That's why we have explicitly prohibited delegated legislation in this proposal. There is one body with the power to adopt legislation in our constitution, the RA, we intend to keep it that way.[/quote:2pgpygzx]

Why do you want to foreclose the possibility of delegated legislation, when your party has previously voted for a constitutional amendment that gives the executive power to make delegated legislation?

[Gxeremio Dimsum]

Ash, the "clarification" of this measure seems to be for [i:14pdr3iv]you[/i:14pdr3iv]. You can say the RA expressed its will by passing the JA, but isn't it more and more clear that while [i:14pdr3iv]you[/i:14pdr3iv] thought the results of your plan were clear, others didn't and don't think they were clear, and don't agree with many of the results you intend?

[Ashcroft Burnham]

[quote="Gxeremio Dimsum":26yeole0]Ash, the "clarification" of this measure seems to be for [i:26yeole0]you[/i:26yeole0]. You can say the RA expressed its will by passing the JA, but isn't it more and more clear that while [i:26yeole0]you[/i:26yeole0] thought the results of your plan were clear, others didn't and don't think they were clear, and don't agree with many of the results you intend?[/quote:26yeole0]

Nothing can be clearer than that the scheme of the original Act was, as far as everybody was concerned, to take the judicial functions that the Scientific Council had hitherto exercised, and give them to a new, professional judicial body, the Council retaining, as far as judicial functions are concerned, only (1) impeachment hearings; and (2) appeals from the new professional judicial body on specifically constitutional grounds.

[Jon Seattle]

I harbor no personal dislike for you Ash, rational or irrational. Normally I find you interesting, intellectually challenging, and often very charming. I am pleased to have you as a neighbor and fellow citizen.

The proposal is the product of a number of people’s thoughts and was voted on and supported by the CSDF. It is not my work alone. It makes clear some things that were not clear to members of the RA when they voted on the Judicial Act because they were, intentionally or unintentionally, left open to interpretation. This amendment clarifies those issues.

The claim that I would “do anything that he could to undermine the powers of the Courts of Common Jurisdiction of which he [Jon] also has an intense and irrational disliking.” is untrue. I am very aware that in a small community there is a danger that a judge could overreach and take away our rights as citizens. I want to make sure those rights are protected. You should want those protections as well.

The fact that you now resort to personal attacks is yet additional evidence that there is an serious problem that needs to be addressed.

[Jon Seattle]

[quote="Publius Crabgrass":3azqf7g5]Perhaps in light of the discussion [url=http://forums.neufreistadt.info/viewtop ... 4:3azqf7g5]elsewhere[/url:3azqf7g5], it may be prudent to explicitly include the Preamble's recitation of "the Universal Declaration Of Human Rights, Founding Philosophy, Constitution, local laws, the SL ToS, and Community Standards [to be upheld] without exception" in the "hierarchy of laws" found in Article VII, Section 12.[/quote:3azqf7g5]
This is an excellent suggestion Publius. The Universal Declaration Of Human Rights is a critical part of what makes us different from other privately run sim regions. We are intentionally for democracy and human rights. This deserves to be protected as a key foundation of our constitution and society.

[Ashcroft Burnham]

[quote="Jon Seattle":1z5pw8pr]I harbor no personal dislike for you Ash, rational or irrational. Normally I find you interesting, intellectually challenging, and often very charming. I am pleased to have you as a neighbor and fellow citizen.[/quote:1z5pw8pr]

That is kind of you to say. However, my conclusion was formed from the following remarks at the CSDF meeting on the 8th of December:

[quote:1z5pw8pr]My feeling is that Ash's behavor in this matter is so far off the mark that there is an imdediment in most trials.[/quote:1z5pw8pr]

[quote:1z5pw8pr]Why would we ever want to have a cheif judge who felt fine ignoring the RA's bills.[/quote:1z5pw8pr]

[quote:1z5pw8pr]I see no sign that our new cheif judge in this case is willing to listen to the legislature[/quote:1z5pw8pr]

[quote:1z5pw8pr] No, we asked him to do two things and he ignored that bill. You can fall back on "well, he was not strictly required to" but he should have gone on to include more people in his deliberations.[/quote:1z5pw8pr]

(That part especially since Claude made abundently clear at the meeting in question that the resolution was conditional on no action being taken in judicial qualifications)

[quote:1z5pw8pr]Very slowly and in such a way as they were not written in good faith. I believe the qualification procedures are meant to exclude others.[/quote:1z5pw8pr]

[quote:1z5pw8pr]We have warned Ash with the prior bill and he has not responded.[/quote:1z5pw8pr]

[quote:1z5pw8pr] Because Ash will not have any reason to come to the table in the current situation.[/quote:1z5pw8pr]

However, it is in particular the allegation that I drafted the judicial qualification requirements other than in good faith that is utterly improper, and why it is impossible for me ever to trust that you will act in good faith again: the allegation is simultaneously so serious and so groundless that it can only have been made dishonestly and maliciously, especially since the reality has proven just how groundless your accusation was: both of the judges who applied were qualified.

[quote:1z5pw8pr]The proposal is the product of a number of people’s thoughts and was voted on and supported by the CSDF. It is not my work alone. It makes clear some things that were not clear to members of the RA when they voted on the Judicial Act because they were, intentionally or unintentionally, left open to interpretation. This amendment clarifies those issues.[/quote:1z5pw8pr]

It cannot be the case that there was any lack of clarity whatsoever that the judicial function of the Scientific Council was being restricted to specifically constitutional matters. Do you or do you not accept, therefore, that, by giving the Scientific Council power to consider [i:1z5pw8pr]any[/i:1z5pw8pr] judicial matter under the sun, you are (1) radically altering the scheme of the Judiciary Act as originally intended; and therefore (2) going far beyond merely clarifying what is even arguably unclear?

[quote:1z5pw8pr]The claim that I would “do anything that he could to undermine the powers of the Courts of Common Jurisdiction of which he [Jon] also has an intense and irrational disliking.” is untrue. I am very aware that in a small community there is a danger that a judge could overreach and take away our rights as citizens. I want to make sure those rights are protected. You should want those protections as well.[/quote:1z5pw8pr]

Your comments at the meeting overwhelmingly suggest that your actions are based on a personal, ungrounded and irrational disliking or mistrust of me, and belief that I will not decide cases fairly. That is not only an utterly absurd reason to change the entire constitutional structure, it is also a wholly improper assessment of the situation that has no grounding in reality. Nothing about giving the Scientific Council power to hear any appeal under the sun confers any additional protection on anyone - how can it unless you assume that the people in the Scientific Council are inherently more fair than the people who make up the Courts of Common Jurisdiction?

[quote:1z5pw8pr]The fact that you now resort to personal attacks is yet additional evidence that there is an serious problem that needs to be addressed.[/quote:1z5pw8pr]

This is more evidence that your motives are personal, not constitutional. My reason for stating that the title of this was deliberately misleading I have already stated, and I notice that nobody has explained how what is proposed could possibly be honestly described as nothing more than making clear what was previously unclear, since it envisages an extremely radical change to the whole foundation of the Judiciary Act. Given that you have noted that the entire CSDF voted for it, it is not necessarily a criticism specifically of you.

[Beathan]

I think that Ash correctly points out that the purpose of the Judiciary Act was to strip judicial power from the SC and give it to a professional judiciary composed, selected, and administered by an insular and elite group of RL lawyers. This was the intent. It was also a horrible idea and a disastrous mistep. I think that the implications of this step were not fully considered -- and now that they have been, most citizens do not like what they see.

However, because the root o f the problem is not the details of the JA, but is the general intent of the JA to create an elite and privileged class of justice-givers within the CDS, the JA cannot both preserve its spirit and be acceptable within the CDS ethos. The most efficient way to handle this problem is to repeal the JA and restart the task of fixing any problems (which were mostly procedural and not substantive) with the administration of justice by the SC. However, the restoration of ultimate appellate authority to the SC, provided the SC is not, and does not become, a privileged group drawn from the judicial and legal elite created by the JA, is a good step. It is a half-step, because it does not destroy the class distinctions created by the elitism of the JA, but it does temper those class distinctions.

One of the great things about the CDS, at least the CDS prior to the JA, was the attempt to avoid class distinction that are so corrosive iRL. This is a noble and worthy attempt. Ultimately, it may be impossible -- but that does not mean that we should not continue to try to maintain it. We certainly should not to anything that dooms this project by creating a professional elite of any sort.

Beathan

P.S. ::sigh:: I'm no longer a pundit.

[Jon Seattle]

Ashcroft, we of the CSDF open our internal debate to the world for better or worse. It is quite possible that I sometimes take a position in our party discussions that I revise later after I have heard other people’s views. However, the interesting thing, is that all the bits you have selected to quote (without context) have to do with my opinion on policy or on your execution of your responsibilities as chief judge. None has to do with you personally. I think you are quite fine as a person, and really have made a mess of your role as judge. The sad thing is that you have managed to undo most of what you intended.

1. Yes, I do think your qualifications for judges were inappropriate.

2. Yes, I do think that fact that you have not worked to gain confidence of the citizens or of the RA has undermined your ability to function effectively as judge.

3. Yes, you really have not responded as I would have liked to requests from the RA, even threatening us with chaos in one session if you did not get your way.

[Patroklus Murakami]

Ash

It's very frustrating, when having a discussion like this, to constantly be told your motives are 'personal', 'irrational' etc. You don't know what Jon's motives are any more than I do, we're neither of us mind-readers Why can't you take Jon's assurance that this is not personal at face value and argue the substance?

You are right to say that this amendment fundamentally alters the powers and functions of the Judiciary. Your Judiciary Act took powers away from the SC, we want to give them back. We don't want the SC to be limited to ruling on constitutional matters (and then only under the limited circumstances provided for by the JA) but to be the final Court of Appeal in all cases. It doesn't matter what the original intent of the JA was and whether this was understood by you, the RA, the SC or St Peter and the Choir Invisible, we don't like the way the JA is turning out and we want to change things. Your postings on this subject, the UDHR and lord knows what else only strengthen our case.

[Ashcroft Burnham]

Beathan, what do you mean by "elite" here? The [url=http://www.tfd.com/elite:258smdyi]dictionary[/url:258smdyi] gives two definitions:

[quote="The dictionary":258smdyi]a. A group or class of persons or a member of such a group or class, enjoying superior intellectual, social, or economic status: [i:258smdyi]"In addition to notions of social equality there was much emphasis on the role of elites and of heroes within them" Times Literary Supplement.[/i:258smdyi]
b. The best or most skilled members of a group: [i:258smdyi]the football team's elite[/i:258smdyi].[/quote:258smdyi]

If it was meant in the latter sense, then it may be accurate to call it elite (although not insular), since the judiciary was supposed to be professional (whereas you prefer amateurish), run by people who knew about law, either by being lawyers in real life, or by having been trained under a system of legal education that I hoped would be introduced here. The judges would be elite in the sense of being "the most skilled" at law, the purpose of which was to provide the highest quality of service.

One cannot honestly take it to mean "elite" in the other sense of having a higher social status, except to the extent that any public office confers upon its holder higher social status than a person not holding such office, since there are no specific privileges attaching to judicial office beyond those necessarily attaching to any given public office.

[Beathan]

Ash --

I agree with your definition of elite. However, being a lawyer who deals with other lawyers every day, and being a CDS citizen who has had the privilege of speaking with Gwyn and Diderot and FR and others, I can say without hestitation that the class of lawyers does not possess intellectual superiority over the nonlawyer citizens of the CDS. That means that the legal elite is either a social or an economic elite. Such social or economic elites tend to hold their positions for very bad reason -- by fiat rather than my merit.

Unlike the SC, which is set up to be a meritocratic elite, the judiciary is just a social elite based on RL considerations which are not appropriate when structuring the CDS social structure. I know that you contend that the judiciary is intended to be meritocratic -- but I don't see it. I rather see it as the creation of a social elite based on factors other than merit -- including the importation into SL and the CDS of RL social divisions. This is dangerous and horribly wrong.

I see my commitment as egalitarian, not amateurish. I see nothing special about lawyers that makes lawyers any more able to resolve most disputes. Lawyers are necessary iRL not because lawyers are smarter or better as resolving disputes, but because RL laws are so godawful complex that it takes special training to understand and apply them. This is a problem with RL law -- and one that we should avoid as much as possible, and for as long as possible, in the CDS. Other than the JA, the Code of the CDS does not have this defect. The JA has it -- which is a good reason to repeal the JA. Otherwise the JA is just what I think it is -- the self-justifying creation of an improper and unnecessary social elite composed of RL lawyers.

Beathan