Thank you all for your support.
SillyString:
1) Is there any truth to the rumor that your full name is R3nnifer B. Hersfoldshire? If not, what is?
My real name is Runyon Classification.
2) Where do you stand on judicial abstention from all RA votes? What about abstention from pre-vote discussions in the RA?
I will answer the second question first. I tend to take a more relaxed approach to this issue than Justices in the past. I believe that, within certain boundaries, participation of judges in legislative discussions can be appropriate. I certainly believe that such participation is conducive to the legislative outcome. Our judges frequently are among our most proficient in regional law members. They are also uniquely equipped to detect potential problems and discover helpful solutions, because these are exactly the issues they are called to address in court cases. By requiring that judges completely abstain from legislative debate, all of this expertise goes to waste. In fact, we often observe that upon their retirement, former judges are burned out and no longer eager to use the experience they have accumulated from the bench in the Regional Assembly.
On the other hand, there are undeniable risks arising from having judges take part in legislative debate. A judge, when called to interpret a law they contributed to during its drafting, may fail to detached themselves from preconceived notions of the law’s true meaning. This could be particularly problematic if a judge is asked to confirm an implementation error in a law they drafted, which would constitute admission of their own failure. Of course one could counter that, at the same time, the judge’s involvement in the drafting of the law provide them with a deep understanding of its provisions, valuable for interpretation. In fact, when evaluating candidates for judges, their prior active participation in legislative activities is often seen as a strength, and once elected these judges are rarely expected to recuse themselves from cases involving laws they drafted. Another, more serious risk, is that a judge may find themselves involved in a political debate over a controversial piece of legislation. Judges should just steer clear of such cases.
Balancing the above, I believe the situation is not black-and-white. Judges should not be expected to absolutely abstain from legislative debate; neither should they be afforded the same free-from-restraint participation as other members. Instead, they should be expected to use their own good judgment, and get involved only to the extent that does not compromise their ability, either actual or perceived by the public, to make impartial decisions. To that effect, they should also be expected to immediately and unconditionally recuse themselves at the first expression of doubt in their impartiality. This will be my own stance, should I be elected Justice.
Moving on to your first question, most of the discussion above applies to an extent to legislative votes as well. Yet, I feel in this case the balance tips more heavily towards abstaining. There are fewer things to be gained, with regards to the final legislative output, from having judges vote. A vote is also a much more solid expression of support for one side over the other, than participation in a debate. Therefore, I am inclined to say it would be advisable for judges to abstain from legislative votes, though once again I do not believe this to be a black-and-white issue. Personally, I intend to abstain from all votes if elected Justice.
Closing, note that in all of the above I covered only legislative discussions and votes. Judges are expected to stay out of recall and election debates and votes.
3) What is your opinion of the Judicial Review?
I will answer this in two parts. The reason is that, in The North Pacific, we use “judicial review” as a blanket term for two distinct judicial functions: First, the
after-the-fact review of actions of government officials, including the passage of legislation---this is how “judicial review” is (I believe, I am not a lawyer) interpreted in real life, and how I will use the term in the rest of my answer. Second, the issue of advisory opinions on questions of law.
The first function, judicial review, is critical for the operation of the court, and arguably its main function within our governmental structure. It is the primary means through which the court interprets and enforces the law, and an essential check on all the various branches of government. Our members tend to be overly eager to use judicial reviews to scrutinize their leaders. This is not necessarily problematic, certainly much less so than the other issue I identify in the second part of the answer; and the court should not be hesitant to summarily address trivial requests for review.
Unlike judicial review, advisory opinions are largely supplementary, and certainly not essential for a properly functional judiciary. Though I hinted at it at the beginning of my answer, it is important to spell out the difference between the two functions. Advisory opinions amount to the court interpreting the law in a general sense, detached from any specific circumstances. In advisory opinions, there is no adjudication of particular cases or actual controversy, specific matters of evidence are not to be considered, and actions of officials are not to be upheld or quashed. These matters are reserved for judicial review.
This distinction may perhaps be sound in theory. In practice, though, the line can be blurry and members cannot discriminate between the two; even worse, they may ignore the distinction and abuse advisory opinions. They may request advisory opinions as a means to pre-empt decisions of the court in actual later cases, or to seek prior endorsement or condemnation by the court of their own or their opponents’ actions. In fact, my experience tells me that this is
routinely the case, not just in The North Pacific but in
all regions I have been a member of that have advisory opinions---and I have been in a few. The situation is particularly dire in our region, because of the very litigious attitude of our members, something I discuss in my answer to your next question.
In many real life jurisdictions (including I believe federal courts in the US), advisory opinions are outright prohibited, as they are seen as a not just unnecessary, but also inappropriate function of the judiciary. Where they are not prohibited, access to them is very restricted, often exclusive to the government. In NationStates jurisdictions, advisory opinions arguably have more utility than in real life, owing to the fact that sources of professional legal counsel are much scarcer if at all existent---to put it simply, you cannot hire a professional lawyer in NationStates.
Personally, I tend to reluctantly accept having advisory opinions as a judicial function. However, I generally advocate limiting access to them, by requiring that applicants should demonstrate that they have a specific and substantial stake in the case. This was, in fact, one of the two purposes of the amendment to Article 4, Clause 1 of the Constitution I co-authored with Eluvatar, which inserted the “affected party” clause. Furthermore, I try to discourage their use in favor of a more proactive approach: do first, seek a judicial review second.
Another way to reduce the frequency of advisory opinion applications is by directly attacking the source of their utility as I identified it above: the lack of professional legal counsellors. This can be achieved by reforming the office of the Attorney General to, in addition to its current duties, also act as the chief legal advisor to the government, essentially the government’s lawyer. In that case, it could also be conceivable that access to advisory opinions is restricted exclusively to the Attorney General.
4) Do you feel that the sections in the Constibillocode that deal with the court, trials, rights, and so on need revision? Do you feel it would be appropriate or inappropriate for the RA and the court to work together on amendments or reforms?
Some do need revision. The Constitution covers the court very concisely, at it should, and for the most part those sections are in good form. Some of the sections in the Legal Code must be reviewed, in particular those related to criminal law. I had in the past proposed a fix to a small but serious flaw; and several other members, most notably Gaspo and Sanctaria, have pointed out many other flaws. A comprehensive amendment of those sections would certainly not go amiss.
I feel I should clarify at this point: leaving criminal law aside, I do not believe the court is in need of serious reform. This probably puts me in the minority among our members; indeed, many vocally complain about the operation of the court, and what are perceived as problems it causes to the day-to-day running of the region. Yet in my opinion, these problems have more to do with the simultaneous existence of two attitudes among our members: an over-reliance on the court, and an unwillingness to use other means of government available to them. This is an unfortunate combination. Any action needs to be reviewed and approved by the court first, and pending such a review the region paralyzes. Often the court returns what is regarded as a bad judgment; this is prone to happen, given the volume of cases and that our judges are primarily amateurs with constrained time budgets. Then, the region laments its fate, but still takes no action to mitigate the effects of the decision, say by overriding it through legislation. Some of the points I raise in my answer to your other question, about judicial reviews, are also pertinent to this discussion.
The legislative changes I identified as necessary will not address these issues. Criminal law has negligible, if any, effect to the daily operation of the region. A change in our collective litigious attitude will be required for that.
As to the second part of your question, I believe my answer to question (2) covers it, but to reiterate: I believe it would be appropriate, and also desirable, for the Regional Assembly and the court to work together on these amendments.
