Surveying Citizens Views on the Judiciary Act

Forum to discuss issues pertaining to the organisation and operations of the judiciary.

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The Judiciary Act should be:

left intact
6
38%
amended by Justice's proposal
8
50%
amended some way other than Justice proposed
2
13%
 
Total votes: 16

Gxeremio Dimsum
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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":2hfh6ohl] Furthermore, suspending the operation of an entire judicial system, without immediately replacing it, is unlawful, since it does not provide an effective judicial system, as mandated by the UNHDR. That is again something that the RA does not have the power to do. [/quote:2hfh6ohl]

By the way, it's the UDHR - Universal Declaration of Human Rights not United Nations HDR (?).
Here are the parts of the UDHR that have relation to a judiciary:

Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. [NOTE: Independent doesn't mean the same thing to all of us in this discussion, clearly.]

Article 11.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

I don't think that falling back on the SC as our tribunal presents any danger in this regard. In fact, on further reading of the UDHR, your proposed judiciary could violate Article 21:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. [As opposed to rule by lawyers.]

(2) Everyone has the right of equal access to public service in his country. [Less possible with stringent and unnecessary requirements.]

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Perhaps this last point could best be expressed as Rule of the People through Law, not simply Rule of Law or Rule of Procedures.

[quote:2hfh6ohl]What you propose will do the opposite: ensure that the judiciary remains unresolved for an indefinite period of time. Some people, having spent half a year working on the project, and half a year battling hard to defend important ideals from those who would have an unworkably oversimplified system, or those who would have the judiciary under the thumb of politicians, both to the infinite detriment of justice, to secure the prize of living in a community in which true justice and the rule of law prevails, being a pioneer in SecondLife, being able to say to the world, "this is what I have had a hand in creating - look how well it is working", and, above all, having the fascinating task of judging cases. [/quote:2hfh6ohl]

Amazing how you can say, without proof or example, that a simplified system is unworkable, and should not be given a chance to succeed, while at the same time arguing that the patience of the public should hold for what is perceived by many as an overcomplicated system. Don't you think others of us have joined this community to make a mark too?

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Post by Ashcroft Burnham »

[quote="Jon Seattle":33h9o2wr]Hmmm.. Ashcroft, it seems to me that your assertion that the representative assembly does not have the ability to pass an amendment to suspend the judiciary is an astounding attack on representative government. You are telling me we cannot go back, that somehow we have handed power over to you and we have no ability to moderate that power?[/quote:33h9o2wr]

No, what I wrote was that parts of the constitution may not be [i:33h9o2wr]suspended[/i:33h9o2wr]. That is different to repeal.

Furthermore, whilst the legislature may change the constitution, it may not do so in ways that violate the UNHDR, as the constitution itself says. Any change to the constitition that indefinitely prevents there from being any sort of judicial system is in violation of the UNHDR.

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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":20voe5i6]Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. [NOTE: Independent doesn't mean the same thing to all of us in this discussion, clearly.][/quote:20voe5i6]

With no judiciary, nobody would have an effective remedy. The old SC failed to determine any of the banishment cases that it had a duty to determine. The old "review" system under the Defense of the Republic act did not provide for a fair and public hearing in teh determination of a person's rights and obligations: it provided, in practice, for no hearings at all.

As for independence, independence is now itself defined in our constitution as,

[quote:20voe5i6]The independence of the judiciary from external pressure as to how contested matters in individual cases are decided, or the procedure by which they are decided[/quote:20voe5i6]

[quote:20voe5i6]Article 11.
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.[/quote:20voe5i6]

The present Article VII of the constitution provides for a public trial. I am not aware that the SC hearings of old were public. Indeed, I thin that parts of the Ulrika trial were held in "closed session".

[quote:20voe5i6]I don't think that falling back on the SC as our tribunal presents any danger in this regard. In fact, on further reading of the UDHR, your proposed judiciary could violate Article 21:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. [As opposed to rule by lawyers.]

(2) Everyone has the right of equal access to public service in his country. [/quote:20voe5i6]

Do you [i:20voe5i6]honestly[/i:20voe5i6] think that each and every nation on earth with a professional judiciary is, by virtue alone of having a professional judiciary, in violaion of the UDHR? Indeed, are not the judges in the court that determines violations of the UDHR not [i:20voe5i6]themselves[/i:20voe5i6] required to be professionally qualified?

[quote:20voe5i6]Perhaps this last point could best be expressed as Rule of the People through Law, not simply Rule of Law or Rule of Procedures.[/quote:20voe5i6]

The rule of law is an important concept, the significance of which I have explained elsewhere and shall not waste my time repeating here.

[quote:20voe5i6]Amazing how you can say, without proof or example, that a simplified system is unworkable[/quote:20voe5i6]

The "proof or example" of how an oversimplified system is unworkable is the fact that every last judicial system of a civilised country on earth is not oversimplified, and is, in fact, many orders of magnitude more complicated than ours.

[quote:20voe5i6]and should not be given a chance to succeed, while at the same time arguing that the patience of the public should hold for what is perceived by many as an overcomplicated system. Don't you think others of us have joined this community to make a mark too?[/quote:20voe5i6]

The mark that others seem to be wanting to make is to destroy the work and effort that I have put into creating a working judicial system for the last [i:20voe5i6]six months[/i:20voe5i6]. What little work that they have done has been done, unlike the work that I have done, knowing that there is an existing judicial system in place that was recently put in place and has not yet been tested by use.

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Post by Diderot Mirabeau »

The survey has spoken clearly. Members of the RA have spoken clearly. Why do you persist in defending so absolutely something that clearly does not have credibility in the view of a significant part of our community?

I have personally found that actually listening to people and trying to accommodate one's proposals to take into account their concerns while respecting in full the basis of their concern regardless of the empirical validity of its base is a far more successful strategy to bestow legislation and institutions with credibility compared to brushing off any comment made and challenging it as if one were in a trial court. Perhaps that is advice you might beneficially take to heart? You are after all living in and part of a community and not the sole proprietor of some ivory tower project with an unlimited mandate by the RA to implement things fully as you see fit.

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Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":4u90ijui]The survey has spoken clearly. Members of the RA have spoken clearly. Why do you persist in defending so absolutely something that clearly does not have credibility in the view of a significant part of our community?[/quote:4u90ijui]

Clearly? How is a survey of a small minority of the population of the CDS clear on anything?

I will defend whatever I believe is right, whether a significant number of people disagree with me or not. If you do not believe in people defending what they believe in despite social pressure, then why do you believe in democracy at all?

[quote:4u90ijui]I have personally found that actually listening to people and trying to accommodate one's proposals to take into account their concerns while respecting in full the basis of their concern regardless of the empirical validity of its base is a far more successful strategy to bestow legislation and institutions with credibility compared to brushing off any comment made and challenging it as if one were in a trial court. Perhaps that is advice you might beneficially take to heart? You are after all living in and part of a community and not the sole proprietor of some ivory tower project with an unlimited mandate by the RA to implement things fully as you see fit.[/quote:4u90ijui]

The whole point of judicial independence, as I have repeatedly stated, and against which nobody has ever presented a credible argument, is that it is very dangerous indeed for the judiciary to be able to be influenced directly in its operations by popular pressure. See also the thread on the rule of law. It is my firm belief in judicial independence, that I made clear right from the start, long before the legislautre ever passed the Act that gave clear democratic mandate - thrice - to real judicial independence that leads me to stand firm in what I believe is right despite the pressure of a vocal minority to change for the worse what is ultimately a very beneficial institution.

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Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":2wpcdrsz]Clearly? How is a survey of a small minority of the population of the CDS clear on anything?[/quote:2wpcdrsz]

That question is just rhetoric. I will ignore it.

[quote:2wpcdrsz]I will defend whatever I believe is right, whether a significant number of people disagree with me or not. If you do not believe in people defending what they believe in despite social pressure, then why do you believe in democracy at all?[/quote:2wpcdrsz]

I have not challenged your right to defend what you believe. I have merely questioned your ability to realise that compromise is the most useful institution of democracy. I think the issue of your ability to comprehend the utility of compromise is of interest to the public at large considering that you will be serving the public in the capacity as a judge. My own RL experience in judging cases has shown that the ability to strike a compromise between opposing interests is an absolute necessity in order to reach decisions that can be called fair in my conscience. If your tenure as an RL lawyer has tilted you in a direction where you are unable to strike a compromise because of many years spent arguing ferociously only the one side of an argument then that in my view could necessitate a review of the SC decision that you were indeed qualified to become a judge.

[quote:2wpcdrsz]The whole point of judicial independence, as I have repeatedly stated, and against which nobody has ever presented a credible argument, is that it is very dangerous indeed for the judiciary to be able to be influenced directly in its operations by popular pressure.[/quote:2wpcdrsz]

The only reason why you can use the argument of 'judicial independence' as a strawman to resist any proposed alterations to the implementation of the judiciary act with which you do not agree (all but one) is because you have managed to put yourself in a position where you are the only one entitled to speak on behalf of the judiciary. If you had managed to recruit other judges they might well have disagreed with you on the same points and suddenly this would no longer be a question of judicial independence - without changing a single word in the argument.

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Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":2rl0hkqa]That question is just rhetoric. I will ignore it.[/quote:2rl0hkqa]

No, it is not rhetoric. It is a question that I pointedly asked in order for you to answer it. If you cannot answer it, how can your argument have any weight?

[quote:2rl0hkqa]I have not challenged your right to defend what you believe. I have merely questioned your ability to realise that compromise is the most useful institution of democracy. I think the issue of your ability to comprehend the utility of compromise is of interest to the public at large considering that you will be serving the public in the capacity as a judge. [/quote:2rl0hkqa]

I [i:2rl0hkqa]have[/i:2rl0hkqa] compromised, [i:2rl0hkqa]lots of times[/i:2rl0hkqa]. The current Judiciary Act is awash with compromises. What I find of grave concern is the apparent inability to compromise of those who, having (evidently ostensibly) compromised on important issues, use any excuse that they can to go back on those compromises.

Furthermore, as I have repeatedly stated, I am willing to compromise some [i:2rl0hkqa]more[/i:2rl0hkqa]: as I have written over and over and over again, if there are no applicants by this Friday, I will review the qualificaiton procedures. I have made the Special Commissioners proposal. It is others who are unwilling to see these as compromises, and are pressing for what it seems that they really wanted all along, come what may.

[quote:2rl0hkqa]My own RL experience in judging cases has shown that the ability to strike a compromise between opposing interests is an absolute necessity in order to reach decisions that can be called fair in my conscience.[/quote:2rl0hkqa]

In law, there are some cases in which compromise is the right answer, but that is not all cases. Consider the innocent man wrongly accused - what would a compromise involve there? Having him plead guilty to a lesser offence of which he is equally innocent? Justice does not always entail compromise.

[quote:2rl0hkqa]If your tenure as an RL lawyer has tilted you in a direction where you are unable to strike a compromise because of many years spent arguing ferociously only the one side of an argument then that in my view could necessitate a review of the SC decision that you were indeed qualified to become a judge.[/quote:2rl0hkqa]

Firstly, I am not incapable of compromise, as the numerous compromises that I have already made, and am yet willing to make, demonstrate. Secondly, the Scientific Counci has no such power.

[quote:2rl0hkqa]The only reason why you can use the argument of 'judicial independence' as a strawman to resist any proposed alterations to the implementation of the judiciary act with which you do not agree (all but one) is because you have managed to put yourself in a position where you are the only one entitled to speak on behalf of the judiciary.[/quote:2rl0hkqa]

Put myself in such a position? How many judges did [i:2rl0hkqa]you[/i:2rl0hkqa] qualify, right after the Act was passed? To what lengths did [i:2rl0hkqa]you[/i:2rl0hkqa] go to find other judges? I, meanwhile, have spent [i:2rl0hkqa]hours[/i:2rl0hkqa] trying to find more and more people interested in being judges, and setting up procedures by which they should be qualified. The most charitable possible interpretation of what you have written above is that it is a grossly unfair and thoroughly ill-conceived point.

[quote:2rl0hkqa]If you had managed to recruit other judges they might well have disagreed with you on the same points and suddenly this would no longer be a question of judicial independence - without changing a single word in the argument.[/quote:2rl0hkqa]

That is not the point: the point is that you are criticising me [i:2rl0hkqa]because[/i:2rl0hkqa] I have not given in to public pressure [i:2rl0hkqa]merely because it is public pressure[/i:2rl0hkqa]. If there were other judges (I understand that one person has now completed an application form), then that would be fair enough. But [i:2rl0hkqa]they[/i:2rl0hkqa] would not be able properly to be criticised merely for failing to be bent or browbeaten by popular opinion (or, at least, the opinion of a vocal minority), either.

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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":3mu6oglk]That is not the point: the point is that you are criticising me [i:3mu6oglk]because[/i:3mu6oglk] I have not given in to public pressure [i:3mu6oglk]merely because it is public pressure[/i:3mu6oglk]. If there were other judges (I understand that one person has now completed an application form), then that would be fair enough. But [i:3mu6oglk]they[/i:3mu6oglk] would not be able properly to be criticised merely for failing to be bent or browbeaten by popular opinion (or, at least, the opinion of a vocal minority), either.[/quote:3mu6oglk]

You might note that we are not trying a case. The fair application of law to individual citizens is not at stake here. This is not a mob calling for an unpopular defendant to be wrongly prosecuted and found guilty. Your appeal to judicial independence is unfounded and illogical.
It seems to me that enough people are seeing through the thin veneer of excuses as to why we should keep trodding on down an elitist, expensive, complicated, disenfranchising path. I am happy for this, because if this matter is not solved democratically I will be among those who vote with my feet and leave the CDS.

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Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":jey42kks]No, it is not rhetoric. It is a question that I pointedly asked in order for you to answer it. If you cannot answer it, how can your argument have any weight?[/quote:jey42kks]

Yet more rhetoric. How revealing it is that you write "in order for me to answer it" and not "in order to understand better your point of view."

I could respond but it is rather pointless since it has become painstakingly obvious over time that you do not ask in order to achieve understanding but rather to try and frame my discourse sophistically as being without merit.

[quote="Ashcroft Burnham":jey42kks]How is a survey of a small minority of the population of the CDS clear on anything?[/quote:jey42kks]

You consider 13 out of 61 people to be a "small minority"? First of all you cannot know if it is a minority since you do not know the points of view held by those that have not yet answered the survey.

Second, as regards your choice of the adjective "small" to characterise a population of 13 out of 61 I am wondering if it might be because of a lack of ability to calculate percentages or if perhaps your assessment of what it takes to not be "small" is influenced in a sophistic manner by your interest in trivialising any opposition to your approach. Just in case it stems from the former let me inform you that 13 out of 61 is in fact more than 20% of the population. Even if the latest figure is 65 it remains 20% of the population - a figure significantly larger than what most public opinion polls save referendums and elections base themselves upon. In fact, the number 13 corresponds to the current record of the number of users simultaneously active in the Neufreistadt forums.

There. I've now spent 5 minutes accommodating your need to have your rhetorical question answered. Does this bring the two of us closer to any kind of common understanding? No? Well, I didn't think so either .. that is why I did not bother responding in the first place. In fact, it is quite likely that the only purpose I have served by taking the time to answer is to have given you another opportunity to break my answer up into small bits and pieces and highlight each part of which that you consider suitably contestable in an untiring attempt at trying to portray my arguments as being without merit.

[quote="Ashcroft Burnham":jey42kks]I [i:jey42kks]have[/i:jey42kks] compromised, [i:jey42kks]lots of times[/i:jey42kks]. The current Judiciary Act is awash with compromises.[/quote:jey42kks]

I should be quite interested to know of any examples of you reaching for a compromise without having the pressure of (a) a political majority against you or (b) being at the risk of accusations of negligence and thus of impeachment.

[quote:jey42kks]Furthermore, as I have repeatedly stated, I am willing to compromise some [i:jey42kks]more[/i:jey42kks]: as I have written over and over and over again, if there are no applicants by this Friday, I will review the qualificaiton procedures.[/quote:jey42kks]

I find it rather strange that you describe your possible clash with reality as you making a compromise with people of opposing observation. The fact is that the RA and the PJSP have decided they want at least three judges appointed so it seems to me that you have not really reached very far in order to enable this compromise. "Burning platform" seems to me a more accurate description of your motivation to accept the necessity of reviewing the qualification procedure.

[quote="Ashcroft Burnham":jey42kks]I have made the Special Commissioners proposal. It is others who are unwilling to see these as compromises, and are pressing for what it seems that they really wanted all along, come what may.[/quote:jey42kks]

This does not count as a compromise either since it is quite clear that you did not offer this up before it was evident that the RA would be taking steps to remedy the deadlock of the judiciary. It is hard to see your hurried proposal as anything but an attempt at 'damage control'.

[quote="Ashcroft Burnham":jey42kks]In law, there are some cases in which compromise is the right answer, but that is not all cases. Consider the innocent man wrongly accused - what would a compromise involve there? Having him plead guilty to a lesser offence of which he is equally innocent? Justice does not always entail compromise.[/quote:jey42kks]

So you consider yourself to be 'the innocent man wrongly accused'?

[quote:jey42kks]Firstly, I am not incapable of compromise, as the numerous compromises that I have already made, and am yet willing to make, demonstrate.[/quote ]

Sorry but as I have repeatedly stated giving up some of one's position when the alternative is having someone else do it for you is not a compromise. It is damage control.

[quote="Ashcroft Burnham":jey42kks]Secondly, the Scientific Counci has no such power.[/quote:jey42kks]

I can fully understand if you are having difficulty navigating the clauses of the judiciary act. It is after all quite a monolithic document. However, let me guide you along:

According to the judiciary act's amendment of the Constitution's Article III Section 8 (Powers of the Scientific Council):

[quote="The Constitution":jey42kks]3. The Scientific Council may vote by simple majority: –

(a) to commence impeachment proceedings against the Chair of the Judiciary Commission or any Judge of Common Jurisdiction (including the Chief Judge of Common Jurisdiction) before the Court of Scientific Council, on any of the grounds on which the Chief Judge of Common Jurisdiction may do so; and[/quote:jey42kks]

[quote:jey42kks]The only reason why you can use the argument of 'judicial independence' as a strawman to resist any proposed alterations to the implementation of the judiciary act with which you do not agree (all but one) is because you have managed to put yourself in a position where you are the only one entitled to speak on behalf of the judiciary.[/quote:jey42kks]

[quote="Ashcroft Burnham":jey42kks]Put myself in such a position?[/quote:jey42kks]

Yes - "managing to put oneself in a position" is an expression that can be used to describe a situation where the sequence of acts by a person has unintentionally landed said person in circumstances that he may not have envisioned nor desired. Consider for example the question "How did you manage to put yourself in that position?" as said by the mother untangling the child who unintentionally put his head through the right sleeve of the sweater instead of as intended through the collar.

[quote:jey42kks]How many judges did [i:jey42kks]you[/i:jey42kks] qualify, right after the Act was passed?[/quote:jey42kks]

Sadly only one. I would have been more than willing to qualify more but there was only one candidate presented to me since the other applicant was needed for an equally important position.

[quote:jey42kks]To what lengths did [i:jey42kks]you[/i:jey42kks] go to find other judges? I, meanwhile, have spent [i:jey42kks]hours[/i:jey42kks] trying to find more and more people interested in being judges, and setting up procedures by which they should be qualified.[/quote:jey42kks]

I am not particularly keen on encouraging a faction of people from outside our community to apply for citizenship in order to become judges since I am of the opinion that our judiciary must necessarily build upon the trust and goodwill of our community. I have encouraged any citizen who confided in me that he/she considered applying to become a judge. I find it hard to see why you should be considered a saint for having laboured to set up procedures by which they should be qualified. It is quite obvious that you have treated this task as your exclusive privilege despite numerous offers from our community to help you achieve the right balance in your assessment.

[quote="Ashcroft Burnham":jey42kks] The most charitable possible interpretation of what you have written above is that it is a grossly unfair and thoroughly ill-conceived point.[/quote:jey42kks]

I see. While you are engaged in the business of making charitable interpretations could you answer me how to interpret the following characterisations: "... at the very least hugely ignorant of X", "... for the most part at least, your ability to reason is good", "Your conduct is utterly deplorable, and wholly unbecoming of anybody who holds public office."?

Once you have given me an answer perhaps we can start discussing what is a fair characterisation.

[quote="Ashcroft Burnham":jey42kks][quote="Diderot Mirabeau":jey42kks]If you had managed to recruit other judges they might well have disagreed with you on the same points and suddenly this would no longer be a question of judicial independence - without changing a single word in the argument.[/quote:jey42kks]

That is not the point: the point is that you are criticising me [i:jey42kks]because[/i:jey42kks] I have not given in to public pressure [i:jey42kks]merely because it is public pressure[/i:jey42kks].[/quote:jey42kks][/quote:jey42kks]

No that is not the point. The point is that other posters have at length explained to you time and time again the tenets of their arguments against your approach to an extent where it is completely out of the question to summarise fairly the thrust of their arguments. I support most of the criticism and saw no need to further reproduce it in this post, the intention of which it was to address my increasing doubts about your ability to engage in a compromise. You have not exactly managed to allay those doubts by way of your response.

Last edited by Diderot Mirabeau on Tue Dec 05, 2006 12:58 pm, edited 1 time in total.
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Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":3lfu4ax4]
No, what I wrote was that parts of the constitution may not be [i:3lfu4ax4]suspended[/i:3lfu4ax4]. That is different to repeal.
[/quote:3lfu4ax4]

I think we can do it very easily, by an amendment along the lines of "thus and such is suspended until X happens, or Y occurs."

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