[quote="Patroklus Murakami":o92bjlpx]This is the heart of the matter. It's very difficult to address without getting into assessments of character which, while not in themselves amounting to personal attacks, may well feel that way and escalate the situation. So, I'll try to be diplomatic.[/quote:o92bjlpx]
So you accept that you are seeking to make sweeping institutional changes based on your view of one particular person in one particular institution?
[quote:o92bjlpx]The Judiciary is currently untried and untested.[/quote:o92bjlpx]
The Scientific Council is very little tried in the realm of judicial decision-making either, and, where it has been tried, it has failed: do you consider the Ulrika trial to have been a success? It was precisely for this reason that the new judiciary was introduced in the first place. May I ask, what precisely will be the procedures that the Scientific Council will adopt on appeals?
[quote:o92bjlpx]A number of citizens have very serious doubts about the structure and the suitability for office of our Chief Judge. If there were to be vote of confidence (in the RA, the SC or by referendum of our citizens) I doubt whether either would gather a majority of votes.[/quote:o92bjlpx]
Do you accept that what matters is not whether people have such an opinion, but whether it is, as a matter of substance, inherently well-founded?
[quote:o92bjlpx]Part of the reason for the lack of confidence is down to the fact that the system is untried and untested; people are always suspicious and inclined to mistrust something new. This is the part that requires a 'leap of faith', a willingness to take the risk of trying something new for the benefit you believe it will bring. I've been prepared, up until now, to take that leap of faith. The other part of the reasons for the lack of confidence is down to the following:
[list:o92bjlpx]*Immediately after appointment our first Judge declared himself Chief Judge (a lifetime appointment with significant powers to shape the development of the Judiciary).[/quote:o92bjlpx]
I have explained this before, and I have no idea why everybody is ignoring what I have written. The early drafts of the Judiciary Act had the Chief Judge as a specific appointment by the Scientific Council, who would then have the power to appoint all other judges. The appointment mechanism for the Chief Judge was therefore a [i:o92bjlpx]different[/i:o92bjlpx] appointment mechanism than for other judges. At that stage, I had made it quite clear that I was proposing both the Judiciary Act be adopted and that I be appointed as both Chief Judge and Chair of the Judiciary Commission. I had designed it such that a single person could share both roles, and that the system could function with only that person (and perhaps a clerk) precisely because some people (Jon in particular) had expressed the concern that there may be difficulty in finding other people to staff the institutions. What I was proposing was a whole judicial system, not just the Act, but the development of common law and procedures based on my initial ideas posted in the original "Developing our legal system" thread. To carry out those ideas, more than just the Judiciary Act itself would be needed; I should then have to draft procedure, and develop the common law in the way outlined. Determining the procedure was a power given to the Chief Judge, and I had made it plain at the early stages that that is the position for which I was applying.
When the Judiciary Bill was discussed, it became apparent people wanted a system in which the judges would not be selected merely by existing judges. There was some lengthy debate on the issue, and eventually Moon came up with an interesting idea based on what she called at the time the "Order of Judges", where that set of all judges would qualify further judges, who would then be appointed by the Representative Assembly. That was discussed further; I saw that the idea had potential, but also that there were some problems with it, so I came up with a revised version (calling the "Order of Judges" the "Board of the Judiciary Commission", and inventing the PJSP to prevent the political legislature from having a role in judicial appointments). Moon's original proposal, if I recall correctly, had the Chief Judge qualified by the Scientific Council and appointed by the Representative Assembly, and other judges qualified by the Order of Judges and appointed by the Assembly. The problem with this, of course, was that the Scientific Council, which is not composed of legal experts, would be choosing each subsequent Chief Judge, as well as the first (it needed to choose the first as there were, of course, no existing Judges of Common Jurisdiction). So, I amended that, too, and instead of having the Chief Judge of Common Jurisdiction appointed by a different mechanism, had her or him set to be appointed in the way that all other judges were appointed, and then made Chief Judge by a decision of the Board. This would mean two things: (1) that the first judge ever to be appointed would inevitably be the Chief Judge; and (2) that future Chief Judges would be selected by existing judges, not by the Scientific Council.
When I was appointed as a judge, the quota for judges remained at the default of 1. There was only one judge, somebody had to be the Chief Judge, and that was the position that, all along, I had been seeking in order to carry out my original plans, detailed on the original "Developing our legal system" thread. At the time that I became the Chief Judge, I had no reason to believe that Publius would be increasing the judge quota a few days later. Indeed, I recall reading in a transcript of a CSDF meeting from late October that Moon had specifically said that she had thought that the plan was for the SC to qualify, and the RA to appoint, the first chief judge, and that chief judges thereafter would be appointed by existing judges: that is exactly what transpired in fact, and exactly how the system was designed to work: by appointing a single first judge, the SC and RA were, as far as I could see, quite deliberately, appointing the first chief judge, just as Moon had envisaged when she drafted what was to become, with some modifications, the basis of our judicial appointments system.
I therefore find it wholly bizarre and quite unfair that people now criticise me for doing what I had always planned to do, what I had always made clear that I had always planned to do, what at least one member of the legislature publicly stated she understood that I had always planned to do, what was inevitable in the circumstances that I should have to do (no cases can be heard without a Chief Judge, since it is the Chief Judge who assigns judges to cases and sets procedure), and what was necessary for me to do in order to carry out my original plan (in the "Developing..." thread) that I had also made clear was always my intention to do.
[quote:o92bjlpx]*The application process devised for the selection of new Judges raised a number of concerns related to length, complexity, process and cultural bias. These concerns were stonewalled by the only person with power to change them, our Chief Judge.[/quote:o92bjlpx]
Again, this criticism is wholly unfair and utterly bizarre. I had always made clear that I was creating a [i:o92bjlpx]professional[/i:o92bjlpx] judiciary. I had made my proposal on the basis of my knowledge and experience of legal practice based on my own profession. The word "professional" even appears in the preamble of the Judiciary Act. I had argued publicly and strongly in favour of judicial qualifications being set by existing judges because the existing judges in our new, professional judiciary would be legally skilled, and would be the best people to determine the legal skill of future judges. I always made clear that legal skill was of the utmost importance to judicial ability.
In order, therefore, to ensure that judges were sufficiently legally skilled, I drafted a set of qualification requirements and an application form designed to discover legal skill as effectively as I possibly could. A shorter test simply would not have been as effective, and the need to have skilled judges is paramount.
The concerns that were raised were evidently from people who did not share the belief in the importance of judicial skill: certainly, nobody has even tried to argue that the test that I drafted was not an effective test in distinguishing who does and does not have legal skill. However, we had already decided, finally, decisively, when giving the power to qualify judges to the existing judges, not to the Scientific Council, that judicial skill is something for which the qualification procedure for judges must test rigorously.
You claim that I "stonewalled" those who disagreed with me: I consider that to be a wholly inaccurate characterisation of my response. "Stonewalling" means to refuse to answer or to engage (the [url=http://www.tfd.com/stonewall:o92bjlpx]dictionary[/url:o92bjlpx] says:
[quote:o92bjlpx]stone·wall Pronunciation (stnwôl)
v. stone·walled, stone·wall·ing, stone·walls
v.intr.
1. Informal
a. To engage in delaying tactics; stall: "stonewalling for time in order to close the missile gap" James Reston.
b. To refuse to answer or cooperate.
2. Sports To play defensively rather than trying to score in cricket.
v.tr. Informal
To refuse to answer or cooperate with; resist or rebuff: "I want you to stonewall it, let them plead the Fifth Amendment" Richard M. Nixon),[/quote:o92bjlpx]
whereas, in fact, I engaged in lengthy, detailed, substantive debate on all of the points raised. I have always acted, and made it clear that I only ever act, on the basis of reason: if I believe a reason to be a good reason, I will act on it; if I believe it to be a bad reason, I will not.
Beathan raised two concerns in relation to the form: (1) that it would take too long to complete; and (2) that the hypothetical questions were unethical. In relation to the first, my response was (1) that judges, in order to judge cases properly, would have to spend a great deal of time and effort doing so, so it is not a bad thing that people should have their willingness to spend time and effort tested in the application process; and (2) that, since we had already started the qualification procedure, it would be insane to stop it on the basis of speculation about whether enough people would be prepared to apply, and it would be better to wait and see whether enough people apply before judging that it is too long. In fact, two very able people did apply, and were qualified, disproving the validity of the first objection, so I was entirely right to reject it at that stage.
As to the second, I gave precise and detailed reasons why I disagreed with Beathan's analysis of the ethical issue with hypothetical questions. I considered the point that he was making very carefully before coming to the conclusion that it was not well founded. Why are you accusing me of "stonewalling" my critics when what I actually did was make a careful and thorough consideration, on the merits, of their claims, and decided in the end against them? Is that not precisely how a judge is supposed to make decisions - on the merits of the matter at hand, and nothing else? The whole point of there existing an office that has the power to determine these things is that it is the people who are in that office, and not other people, who decide how to discharge those powers. If, on one hand, a person is claiming that a power should be exercised in one way, and, on the other hand, somebody else is claiming that it should be exercised in another way, what possible means is there of breaking the tie except by the person whose job it is to exercise that power, determining, on the inherent merits of the argument, which is the correct thing to do?
[quote:o92bjlpx]*A lengthy Code of Procedure was developed by one individual, again our Chief Judge, and then published for 'consultation'. All attempts to discuss the principles underlying the code, length, assumption etc were stonewalled once more.[/quote:o92bjlpx]
As to "stonewalling", see above. The Code [i:o92bjlpx]needed[/i:o92bjlpx] to be lengthy and detailed in order to work, especially given the fact that the people here share very few assumptions about legal systems in common: every detail had to be spelt out clearly and precisely. The Code followed very exactly the plans that I had laid out in my original "Developing our legal system" thread, which had been available for [i:o92bjlpx]months[/i:o92bjlpx] in advance for consultation. Furthermore, it is absurd to criticise the fact that the code was written by one individual, since that is precisely what was mandated by the constitution.
[quote:o92bjlpx]In the end the RA overrode the Chief Judge and passed a much shorter, simplified Code of Procedure. (Incidentally, I think the 'right' code would be somewhere in between the length and comprehensive nature of the original code and the simplified 'Soothsayer Rules' but how do we get there if our Chief Judge will not compromise?)[/quote:o92bjlpx]
I disagree with that premise: as I have stated many times at some length (and nobody has ever found any real, compelling or specific arguments against what I have argued for), a code of at least the detail and precision that I drafted very much is necessary. It is also very odd that you should think that any other kind of procedure without me "compromising" (whatever you mean by that). It is entirely reasonable of me not to start from scratch and set about drafting [i:o92bjlpx]yet more[/i:o92bjlpx] rules when so much of the effort that I put into drafting the original ones was discarded so recklessly and for such insubstantial reason. Nothing is stopping anyone else proposing better procedures to the Representative Assembly that I, of course, would follow when deciding cases. But I think it now unlikely that you will get anybody prepared to do that given just how disrespectful that the current legislature has shown itself as being over other people's work, and how reckless that it is in discarding it.
[quote:o92bjlpx]*We learn that, contrary to the definition of the SCs role in the Constitution, the final judge of what goes on our forums is... the Judiciary! What's more, it's our fault for not realising this and raising any concerns we had when we had the chance.[/quote:o92bjlpx]
It is extremely bizarre that you should list this amongst reasons not to be confident in the judicial personnel: as I have explained before (and as even Publius agrees), the power of judicial review is entailed by the clear wording of the constitution itself. What on earth does this have to do with anybody's confidence in me or a system?
Why do you think that the power of judicial review is contrary to anything in the constitution? Judicial review of executive action is a standard feature of any developed judicial system. In the UK, for example, the National Health Service is correctly described as the body that provides for healthcare, but certain decisions taken by hospital managers and doctors (about whether to treat patients or whether to withhold treatment on grounds of cost) can be the subject of judicial review. That does not mean that one can sensibly say that the High Court of England and Wales is the real health service! Similarly, the Scientific Council [i:o92bjlpx]moderates[/i:o92bjlpx] the forums, but there is nothing to stop any person seeking judicial review of that executive discretion - why should there be?
Again, I ask, why do you think that I should have realised that you did not realise this? After all, a forum moderation appeal was part of the judicial function of the Scientific Council; the purpose of the Judiciary Act was clearly to take [i:o92bjlpx]all[/i:o92bjlpx] the judicial functions of the Scientific Council, bar impeachments and appeals on purely constitutional grounds, and give them to the new, professional judiciary. I had mentioned moderatorial appeals in my original explanation of procedures. How on earth did you expect me to know: (1) that you (or anyone else, although it is not clear that anyone else except Beathan ever did believe this) thought that moderatorial appeals would remain with the Scientific Council; despite (a) the clear scheme of the Judiciary Act outlined above; (b) the mention of notices of moderatiral appeal in the discussion on procedures; and (c) the clear wording of the constitution and (2) that you thought that the position was important enough to merit some sort of special mention. I ask again, since I have not received an answer to this question now despite having asked it a great many times (and that really [i:o92bjlpx]is[/i:o92bjlpx] stonewalling), what precisely do you think that I should have done to make it clearer to you that that was the effect of the Judiciary Act, and how was I supposed to know that you needed it to be made clear in that specific way?
[quote:o92bjlpx]*Finally, we learn that our Chief Judge believes that the UDHR no longer applies to the CDS. No one else believes this as it's clearly laid out in the preamble to the Constitution but this is, apparently, not enough.[/list:u:o92bjlpx]
This part is much more serious. It leaves me with nagging concerns about the path we have embarked upon and which I have vehemently defended, up until now. [/quote:o92bjlpx]
As I have explained before, and as Gwyn has also explained, the UDHR was never designed to be treated as a source of [i:o92bjlpx]law[/i:o92bjlpx], and it would be quite absurd to treat it as such. It was always designed to be a series of approximate standards by which international agencies could judge governments to see that they are appropriately respecting human rights, and a series of guidelines for governments about how they should design their laws so as to respect human rights. It was never intended to be law itself. It was not drafted as legislation and should not be treated as legislation: it would be a disaster if one tried because it is so vague. It sets out a large number of conflicting rights with no indication at all about how any of those conflicts should be resolved (even the European Convention on Human Rights, which is, extremely unwisely, treated as a source of law by the specially constituted European Court of Human Rights contains [i:o92bjlpx]some[/i:o92bjlpx] guidance on which rights should prevail in which circumstances). It is simply unsuitable as legislation.
That does not, of course, mean that I have no respect for human rights themselves, and it is again utterly absurd to jump to that conclusion from the premise that I believe, and therefore act on that belief when drafting legislation, that human rights treaties were not intended to be, and should never be, treated as if they were legislation. The idea was, as I have explained now multiple times (which nobody has even attempted to address) that rights would be built up from the common law, just as the law of contract, the law of harassment, the law of property and so forth were to be built up from the common law. That is a far saner, safer, more reliable method of proceeding than treating a human rights treaty as if it were legislation.
[quote:o92bjlpx]Actually, I do trust the Scientific Council to make better judgements than the Judiciary, despite the latter having more legal training and having passed a lengthy application and approval process. I intend no disrespect by this, it's simply that I know my fellow members of the SC through observing their forum posts, their behaviour in meetings, their general conduct and their interactions with me. I don't really know the other Judges but I do know our Chief Judge by the same set of behaviours that I know the members of the SC. Some of the criteria I use to form the basis of my trust are: ability to form a reasoned opinion on a subject; ability to understand another person's point of view and adapt (or not) one's own position in response; reasonableness; a sense of proportion; commitment to the ideal of developing a democratic, self-governing community; willingness to put the needs of the community first; lack of self-aggrandisement; lack of pomposity; willingness to listen. I've observed the members of the SC and our Chief Judge for several months now and feel I have a good base of evidence on which to form a judgement. For these reasons I prefer to see the SC given back its role as final arbiter of what goes on the forums and to be the court of final appeal and authority on the constitution because, on the basis of the evidence I have before me, I believe they will make better decisions.[/quote:o92bjlpx]
Perhaps you should make your decisions on whether the professional judiciary whose purpose it always was to take over the day-to-day judicial functions of the Scientific Council because their legal training and experience made them more adapt at doing so based on having seen such people judging actual cases (and see whether the upcoming Thor Forte trial will be better or worse handled than the Ulrika Zugzwang trial), rather than on speculation of the sort that has proved to be wholly unfounded in the past (I am referring in particular to the speculation that there would not be enough suitably skilled people interested in completing a lengthy application for judicial office).
Overall, I find the whole approach taken by many to this judicial system to be utterly bizarre: I come to what is now the CDS, present a detailed plan (in the "Developing our legal system" thread), draft a Bill that is the first step towards implementing that plan, which, after some discussion and compromise on all sides, is passed, then set about implementing the rest of the plan in [i:o92bjlpx]exactly[/i:o92bjlpx] the way that I have spelt out on the original thread, on subsequent threads, and during the debate I had planned to do, and I am criticised for implementing the system badly for doing nothing other than following the plan of which I had always made clear that the Judiciary Act was the first part. Everything for which you have sought to criticise me above is was a necessary and inevitable part of putting the original, fully published, plan into operation in exactly the manner that I had always made quite clear was necessary, so it is utterly unfair that I should be made the subject of criticism for so implementing it. It is seeming more and more like the people here who call themselves a government do not know the first thing about law or legal systems, or, for that matter, how to run a government or what legislation means, and lurch from one crisis to the next with very little thought or planning at all. Despite my best efforts to create a professional judiciary, the government seems utterly bent on remaining for ever amateurish.
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