[b:1nza5uwo]Of Pendulums and Rules[/b:1nza5uwo]
Oni has quite helpfully categorized the questions in our judicial debate:
[quote="Oni":1nza5uwo]Question One - Complexity
[list:1nza5uwo]View One: A sophisticated system, with clearly defined procedure that aims to be complete will provide the best justice because it offers clarity and predictability. This detailed system can then be changed as we learn.
View Two: A simple, more bare bones system will be easier for non-lawyers to understand and will offer us greater flexibility as we move forward. This will ultimately lead to a better system. [/list:u:1nza5uwo]
Question Two - Judicial Systems
[list:1nza5uwo]View One: A SL judiciary is much like normal judiciaries and requires the same sorts of protections - such as security of post and apolitical selection.
View Two: We are concerned that such a system, in the context of the CDS, gives Judges too much power and prefer a different system with different checks and balances - and a different balance of power within the state triumvirate (executive, legislature and judiciary)[/list:u:1nza5uwo][/quote:1nza5uwo]
Readers will no doubt recall that the Chief Judge issued a set of court rules (the “Code of Procedureâ€) on December 5th. The Code, issued in a file termed “first draft†but announced as immediately going into force, consisted of 95 plus pages (depending on one’s font size) that set out in mind numbing detail issues from the vital (how to initiate a lawsuit) to the trivial (robe trim colours and the required amount of in-court bowing). Most significantly, the Code of Procedure made several important policy choices on such matters as court costs, forms of pleading, evidentiary burdens of proof, trial procedures, and appointment of counsel. Interestingly, criticism of the Code before its issuance was called premature, and after its issuance critics were told that they should not have been surprised by it because the Code was based on the original scheme for the judiciary.
However, as Ashcroft has noted, “Anything in the Code of Procedure is a matter for the legislature if the legislature wants it to be, but, until then, it is a matter for the Chief Judgeâ€. As one of those legislators, I concluded that many of these matters should be more appropriately decided by the RA rather than by one judge. I would have preferred to simply stop the Code of Procedure, but was convinced that we needed to put something in its place. I therefore introduced legislation that ultimately adopted (after the SC suggested and the RA adopted a small amendment) the following simple rules:
[quote="Rules":1nza5uwo][b:1nza5uwo]Rule 1 - Initiating notecard [/b:1nza5uwo]
A case is be initiated by submitting a notecard containing (1) name of the Complainant, (2) name of the Respondent(s), and (3) a short and simple statement of the facts of the case. The notecard shall be dropped into the inventory of the Chair of the Judiciary Commission, who shall within 24 hours send the notecard and IM notice of the submission of the notecard to each defendant(s), and the Chair shall maintain a record of having done so.
[b:1nza5uwo]Rule 2 - Reply notecard [/b:1nza5uwo]
A Respondent shall reply to the initiating notecard within ten days by submitting a reply notecard containing a short and simple statement of the facts of the case. The reply notecard shall be dropped into the inventory of the Chair of the Judiciary Commission, who shall within 24 hours send the notecard and IM notice of the submission of the notecard to the Complainant, and the Chair shall maintain a record of having done so.
[b:1nza5uwo]Rule 3 - Pretrial hearing [/b:1nza5uwo]
Within ten days of service of the Rule 2 notecard on the Complainant(s), the court shall convene a meeting of the parties (either at the same time in world, via IM, or via email) to discuss any procedures required for handling the case. The parties may agree on a pretrial order setting forth the procedures and timetable by which the case will be handled, including any trial procedures. In the event that no agreement is reached, the court may issue a pretrial order.
[b:1nza5uwo]Rule 4 - No costs, attorneys fees or other expenses [/b:1nza5uwo]
There shall be no court costs or attorneys fees assessed against any party, and all parties shall bear their own expenses, unless a contract between the parties or an Act passed by the RA provides otherwise.
[b:1nza5uwo]Rule 5 - Judgments [/b:1nza5uwo]
The court may enter judgment following trial, or upon motion by a party as long as all parties have been given an opportunity to be heard on the motion. The court may enter judgment by default if a party fails to participate at any stage, so long as the party is given notice via notecard providing for at least ten days to show cause why default judgment should not be entered.[/quote:1nza5uwo]
Ashcroft has in typically injudicious rhetoric termed these new and currently governing rules as “irresponsibleâ€. I believe that it would have been irresponsible to let the Ashcroftian Code take effect without significant public input and debate. Three of our five branches of government agreed, as 4 RA members voted for the new rules (Pelanor abatained), the SC ratified them after deletion of one clause, and the Chancellor refrained from vetoing. (The AC didn’t get a vote on this one, and the judicial branch dissents.)
These Rules do represent a swinging of the pendulum from Oni’s View One (the Ashcroftian Code) to View Two (the “Soothsayer Rules†or as I prefer the “Rules of Justiceâ€). I am among the first to acknowledge that the pendulum may have swung too far. For instance, it has been accurately noted that the rules do not cover appeals. Rule 3, though, allows the parties and the judge(s) if necessary to adopt a standard form of pretrial order setting out any needed procedures to govern a particular case. In the course of the Commission meetings I invited the judiciary and anyone else to propose further amendments to these Rules, and I offer that invitation again.