Proposal for a Way Forward

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Patroklus Murakami
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Proposal for a Way Forward

Post by Patroklus Murakami »

Beathan has posted a proposal [url=http://forums.neufreistadt.info/viewtop ... 4:29b8bmey]here[/url:29b8bmey] for a way forward. I think this is a positive move and I think it can form the basis for a way out of our current impasse. Like Beathan I agree that we need to consider the issues raised in the Commission on the Judiciary Act a few at a time and agree amendments that bring the JA closer to a system we can all live with (if not love :)). I'm not sure that the 'Commission and sub-committees' approach will work though so I'm suggesting an alternative approach here.

I propose that we agree to invest a substantial portion of our time (the first three months of the next legislative term) sorting out the Judiciary and agreeing amendments to the Judiciary Act which address the many problems that some citizens see with it. For convenience, I suggest we take the ten agenda items set by the Commission Co-chairs and devote two weeks to considering the agenda items two or three at a time (though in a slightly different order). During those two weeks we should, as a community, discuss the underlying principles and develop proposals for amendments to the JA through a mixture of inworld meetings and Forum discussion and then, at the end of each two-week period, the RA would vote on any proposal(s) submitted.

Timetable
[list:29b8bmey]w/c 22 January 2007. Agenda items 3, 4 and 5 'Relation of the Judiciary with the other branches of state', 'Judges' and 'SC'.

w/c 5 February. Agenda items 6 and 7 'Privacy and Protection' and 'Juries'

w/c 19 February. Agenda items 8, 9 and 10 'Financial issues', 'Formalities and procedures' and 'Citizens and non-citizens'

w/c 5 March. The PJSP begins formal consideration of agenda items 1 and 2 and prepares a report on the Judiciary in operation along with recommendations for change by 26 March.
[/list:u:29b8bmey]
Agenda Items (with revised questions)
[i:29b8bmey][b:29b8bmey]1) Test of the Judiciary Act [/b:29b8bmey][/i:29b8bmey]
This should take place at the end of our period of reflection and amendment. I suggest that the PJSP should prepare a report on the operation of the Judiciary over the previous six months and put forward any final recommendations for change to the RA (without prejudice to other changes being necessary at some future point).

[i:29b8bmey][b:29b8bmey]2. Complexity of the Judiciary [/b:29b8bmey][/i:29b8bmey]
Again, this is best covered at the end of the six month period when the Judiciary has had time to operate. The goal of simplification of the Judiciary and the other branches of government (I would prefer to call it 'better regulation') should be an ongoing one.

[i:29b8bmey][b:29b8bmey]3. Relation of the Judiciary with the other branches of state [/b:29b8bmey][/i:29b8bmey]
a) What is "judicial independence"? How do we define it, and how do we guarantee it?
b) What is the jurisdiction of the Judiciary? What are the limits to the power of the Judiciary? How do we put in checks and balances to prevent 'rule by Judges'?

[i:29b8bmey][b:29b8bmey]4. Judges [/b:29b8bmey][/i:29b8bmey]
How should judges be selected and appointed? Is there need for peer qualification? Are the judicial selection procedures appropriate? What should be the duration of the term of office of judges?

[i:29b8bmey][b:29b8bmey]5. SC [/b:29b8bmey][/i:29b8bmey]
Is the new role of the SC appropriate? Should it act as the final court of last resort? Should it have any role in supervising the judiciary?

[i:29b8bmey][b:29b8bmey]6. Privacy and protection [/b:29b8bmey][/i:29b8bmey]
Does the system provide for sufficient privacy/protection of the parties? To what extent has the public a 'need to know'?

[i:29b8bmey][b:29b8bmey]7. Juries [/b:29b8bmey][/i:29b8bmey]
Should we have juries?

[i:29b8bmey][b:29b8bmey]8. Financial issues[/b:29b8bmey] [/i:29b8bmey]
Who should set court costs? Should attorneys fees be part of costs? Who should handle money collected or disbursed by the judiciary? Who should pay the court costs?

[i:29b8bmey][b:29b8bmey]9. Formalities and procedures [/b:29b8bmey][/i:29b8bmey]
Should the procedures mandate formalities that are not required to operate the system? Should these be made optional?

[i:29b8bmey][b:29b8bmey]10. Citizens and non-citizens [/b:29b8bmey][/i:29b8bmey]
Up to now most of the discussion has assumed that the court will be used to result conflicts between citizens. In a case that involves a citizen and a non-citizen the citizen has much more to lose -- as much as hundreds of dollars invested in CDS properties, court costs, and reputation in their home community. Non-citizens may more easily file cases using an alt (because they are less well known), and at most risk banning from CDS regions. If a person is banned they can always re-enter using an alt. The Non-citizen has very little to loose. How can we preserve universal access to the courts while creating a level playing field? Can we protect citizens from cases filed for the purpose of retribution or to defame a citizen at very low risk by non-citizens?

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Post by Ashcroft Burnham »

Pat, why do you think that this is necessary [i:c92uup06]in addition[/i:c92uup06] to the work of the PJSP? The PJSP is, after all, the very body that was designed to deal with oversight of the judiciary. This strikes me as being duplicative and unnecessariy time-consuming. I am also very concerned that any self-selecting body would not be properly representative in the way that an elected body, such as the PJSP, would be.

Furthermore, committees will tend to do things to justify thier existence: if one establishes a committee to find faults, it invariably will, whether there are faults to be found or not. This also does not seem to be a very productive use of the time of such a large number of our members. Why should we not let the PJSP get on with their constitutional task, let the judiciary prove itself (or otherwise), and let everybody else concentrate on something other than the judiciary for a change?

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Post by Beathan »

Pat --

I concur with your proposal, and think that it accomplishes everything my proposal is designed to accomplish, while having the additional benefit of being more streamlined and certain.

However, either as part of a discussion of the ten points (perhaps, as I suggested elsewhere, as part of the discussion on complexity), I think we need to discuss theories of flexibility in process and decisionmaking. There is widespread disagreement about how much we want to bind ourselves to hard-and-fast rules, in advance, without knowing how the rules and their alternatives actually work. This discussion overlaps between the meta-discussions of the first set of meetings and the "formalities and procedures" discussions of the last. I don't know if this overlap means that we need to consider regrouping (I'm inclined to think not -- and think instead that we should address flexibility as a theory in the first set of discussions -- discussing formalities and procedures based on what we decide in those first discussions.)

Further, as part of the discussion of either judges or the relationship of the judiciary with other branches, I think that we really need to come to grips with and reach consensus on the idea of judicial independence as a policy matter -- beyond definition. I think the proposal already has this as an agenda item, I just want to underscore it.

Beathan

P.S. I added these suggestions after my first post. I see that Pat has responded to them. I really need to figure out the trick some people claim of getting things right the first time. ;-)

Last edited by Beathan on Tue Dec 19, 2006 4:11 pm, edited 4 times in total.
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Post by Patroklus Murakami »

[quote="Ashcroft Burnham":2cjua2em]Pat, why do you think that this is necessary [i:2cjua2em]in addition[/i:2cjua2em] to the work of the PJSP?[/quote:2cjua2em]Well, first of all, what PJSP? How can we rely on a body that has yet to be brought into existence to resolve these issues?
[quote:2cjua2em]Furthermore, committees will tend to do things to justify thier existence: if one establishes a committee to find faults, it invariably will, whether there are faults to be found or not.[/quote:2cjua2em]I have not suggested forming more committees. I have proposed that we should discuss these issues, in sensible groupings, as a community. This would involve forum discussion and inworld meetings.
[quote:2cjua2em]This also does not seem to be a very productive use of the time of such a large number of our members. Why should we not let the PJSP get on with their constitutional task, let the judiciary prove itself (or otherwise), and let everybody else concentrate on something other than the judiciary for a change?[/quote:2cjua2em]I would dearly love to concentrate on something else apart from the Judiciary. I'm heartily sick of discussing the Judiciary and I'm sure I'm not the only one. But, what I have learned from the Commission on the Judiciary is that a significant number of citizens have a significant number of problems with the Judiciary Act as passed by the RA. There is a clear mandate for pursuing amendments to the JA but no concensus or clear view on what those amendments should be. My proposal is a way to clarify what the issues are and make necessary changes to restore confidence in the Judiciary as an institution.

I hope that the proponents of repeal of the JA will engage with this opportunity to amend the JA and bring it closer to a system they can live with. I also hope that you, as Chief Judge and chief architect of the JA, will engage with a serious discussion of how we can improve the JA and garner more public support for it.

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Post by Patroklus Murakami »

[quote="Beathan":2q50cxyr]Pat --

I concur with your proposal, and think that it accomplishes everything my proposal is designed to accomplish, while having the additional benefit of being more streamlined and certain.

Beathan[/quote:2q50cxyr]I'm really pleased to see that, despite our differences, we've managed to find agreement on a way forward.

I think that, if the RA agrees to this as a way forward, it will be time well spent.

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Post by Ashcroft Burnham »

[quote="Patroklus Murakami":2cp7lgq5]Well, first of all, what PJSP? How can we rely on a body that has yet to be brought into existence to resolve these issues?[/quote:2cp7lgq5]

The above committees do not exist either yet. There are enough people willing and able to serve on the PJSP - the only reason that the body is not yet constituted is because the SC delayed the election until January.

[quote:2cp7lgq5]I would dearly love to concentrate on something else apart from the Judiciary. I'm heartily sick of discussing the Judiciary and I'm sure I'm not the only one. But, what I have learned from the Commission on the Judiciary is that a significant number of citizens have a significant number of problems with the Judiciary Act as passed by the RA. There is a clear mandate for pursuing amendments to the JA but no concensus or clear view on what those amendments should be. My proposal is a way to clarify what the issues are and make necessary changes to restore confidence in the Judiciary as an institution.[/quote:2cp7lgq5]

I understand that a number of people do not like the current arrangement (although there are at least an equal number of people who would be at least equally dissatisfied with anything that involves substantial changes), but that does not mean that this should be achieved by these committees asking "what are the problems?", rather than by the neutral PJSP standing back, looking at how the judiciary is actually functioning, and asking, "Firstly, are there any serious problems, or have people just over-reacted?". Anything that does not start from that premise is substantially prejudicing the outcome.

What is your position 0n the question of whether the committees should be self-selecting or not? As far as I can see, self-selecting committees are undemocratic, which is another strong reason to prefer the elected PJSP.

[quote:2cp7lgq5]I hope that the proponents of repeal of the JA will engage with this opportunity to amend the JA and bring it closer to a system they can live with. I also hope that you, as Chief Judge and chief architect of the JA, will engage with a serious discussion of how we can improve the JA and garner more public support for it.[/quote:2cp7lgq5]

Before we have discussion about how to change the Act, we need to finish the discussion about whether to make any substantial changes: there is certainly no consensus that anything other than minor changes ought be made. That discussion can only take place against a background of a substantial period during which the judiciary is fully functioning, as originally intended, with the original rules (in wiki format, with guides), and is best done, initially at least, by those who have been elected by the general population to oversee the judiciary and write reports on it. What, if anything, needs to be changed should be considered in the light of such reports.

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Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":6xbfqc9t]As far as I can see, self-selecting committees are undemocratic[/quote:6xbfqc9t]
/me imagines Ashcroft standing outside the entrance to an open meeting where anyone can attend and vote shouting "This meeting is undemocratic!"

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Post by Beathan »

Ash wrote [quote:3ho7lioi]What is your position 0n the question of whether the committees should be self-selecting or not? As far as I can see, self-selecting committees are undemocratic... [/quote:3ho7lioi]

I agree within limits. This is why I think that the currently theory of the judiciary -- in which it is largely a self-selected committee -- is undemocratic. This is one of the most serious quarrels I and others have with the current method for selecting judges.

The difference is that the Judiciary Commission has no governmental power in its own right. It does not legislate, enforce or judge. It merely makes recommendations to the elected RA. Therefore, it acts as an appendage to a democratic institution -- and is democratic in the large sense as a result.

Further, the Commission acts democratically. We debate the issues and poll the members. Thus, the Commission acts democratically within its sphere of action as well. Thus, it is democratic in this small sense as well.

Beathan

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Post by Ashcroft Burnham »

[quote="Beathan":14obnkd0]Ash wrote [quote:14obnkd0]What is your position 0n the question of whether the committees should be self-selecting or not? As far as I can see, self-selecting committees are undemocratic... [/quote:14obnkd0]

I agree within limits. This is why I think that the currently theory of the judiciary -- in which it is largely a self-selected committee -- is undemocratic. This is one of the most serious quarrels I and others have with the current method for selecting judges.[/quote:14obnkd0]

As I have written over and over again, and you have ignored over and over again, a judiciary is not supposed to be democratic: it is supposed to be meritocratic. Different kinds of institutions need different kinds of checks on their power. Legislative and executive institutions need democratic checks: the judiciary needs meritocratic checks. The kind of checks on power reflect the kind of power that an institution exercises. The legislature has ultimate power in making general rules. The judiciary ultimately decides what happens in individual cases. A democratic check is more appropriate for the former, a meritocratic check for the latter. The relationship between the institutions needs also to be considered: one of the functions of the judiciary in a democracy is to prevent the excesses of popularism; one of the functions of the legislature in a democracy is to give effect to popular opinion. The result, when executed properly, is two differnt insitutions, with very different powers, and very different internal checks on their powers, acting so as to balance each other and produce the best results overall. That is the concept of the balance of powers.

[quote:14obnkd0]The difference is that the Judiciary Commission has no governmental power in its own right. It does not legislate, enforce or judge. It merely makes recommendations to the elected RA. Therefore, it acts as an appendage to a democratic institution -- and is democratic in the large sense as a result.[/quote:14obnkd0]

The question is then what the Representative Assembly does with the results. If it takes them seriously, it is acting undemocratically, since there is nothing saying that the internal results are anything more than the views of a vocal minority and/or extremist lobby group. If the results were taken to represent the views of citizens generally, it would be a serious failing in democratic process. As proposed to be constituted, the continuing Special Commission on the Judiciary (do not confuse it with the Judiciary Commisison, which is the body provided for by the constitution to administer the judiciary, the chair of which is Publius) would be no more than a series of ad-hoc lobby groups. If the legislature treats them as anything else, it will be acting on a seriously flawed basis: it will effectively be delegating consideration of the judiciary to a random group of people.

[quote:14obnkd0]Further, the Commission acts democratically. We debate the issues and poll the members. Thus, the Commission acts democratically within its sphere of action as well. Thus, it is democratic in this small sense as well.[/quote:14obnkd0]

That is like saying that a single lobby group is democratic because it has a vote amongst its members about what to do: that does not mean that the legislature should take it as being meaningfully representative of the views of anybody other than its members.

What exactly do you have against the elected Public Judiciary Scrutiny Panel doing this work?

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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":243ymm3t]The question is then what the Representative Assembly does with the results. If it takes them seriously, it is acting undemocratically, since there is nothing saying that the internal results are anything more than the views of a vocal minority and/or extremist lobby group.[/quote:243ymm3t]

What a load of tripe. If this were true, it would have been even more undemocratic for the RA to have listened to one person - you - in establishing the JA in the first place. Is that your position?
Meritocracy for you, democracy for your opponents, but in all cases the number of opponents shall be called a "vocal minority." Eh?

[quote:243ymm3t]What exactly do you have against the elected Public Judiciary Scrutiny Panel doing this work?[/quote:243ymm3t]

Do you believe the PJSP has the right to recommend dismantling the Judiciary, or merely to suggest tweaks?

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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":39ipq7l0]What a load of tripe. If this were true, it would have been even more undemocratic for the RA to have listened to one person - you - in establishing the JA in the first place. Is that your position?[/quote:39ipq7l0]

This is seriously flawed: I did not purport to represent anybody's opinion: I came to the legislature with a proposal that was specifically mine. That is a fundamentally different proposition to the legislature creating committees itself to address issues: the fact that the committees were created by the legislature lends their results a weight that is out of proportion to their composition. Nothing, of course, is stopping anybody forming their own committees and recommending things to the legislature without the legislature asking them to do so.

[quote:39ipq7l0]Meritocracy for you, democracy for your opponents, but in all cases the number of opponents shall be called a "vocal minority." Eh?[/quote:39ipq7l0]

I consider this to be a disingenuous comment.

[quote:39ipq7l0]Do you believe the PJSP has the right to recommend dismantling the Judiciary, or merely to suggest tweaks?[/quote:39ipq7l0]

The Public Judiciary Scrutiny Panel may:

[quote:39ipq7l0]...investigate, other than in response to a complaint, the performance and quality of service of the Courts of Common Jurisdiction and Court of Scientific Council, and to publish the findings of such an investigation, and recommendations (if any) in respect thereof...[/quote:39ipq7l0]

There are no limits on what it may recommend about the performance and quality of service of the Courts of Common Jurisdiction or Court of Scientific Council, or how to improve them. If the panel members really come to the conclusion that the only way of improving the performance or quality of service is by radical changes to the constitutional structure, then nothing in the constitution prevents the PJSP from so recommending.

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