Regional Bar Discussion

[Comfed]

Since it seems like the Bar Commission is finally getting on its feet and already has an application, I figured that it would be worth starting a discussion thread here for discussion on this new institution of the government.

I, for one, am not entirely sure what the purpose of the "Acceptability Disclosure" section of the application is. I have always been wary of the requirement to ban people serving a judicially-imposed sentence from service on the Bar Commission, but many of phrasing in these questions demand repentance for things which may have occurred a long time ago and not be a consideration for someone applying to a similar body like, say, the Election Commission.

I am also concerned about the disclosure rules of the Bar Commission, which are as follows:

Section Three: Publication of Decisions [Chapter 2]
1. The Bar Commissioners will discuss and decide applications for admission to the Bar in private.
2. The Bar Commissioners will publish any decision to admit or refuse an applicant.
3. If the application was decided by the Bar Commissioners without a further assessment, the Bar Commissioners will publish their discussions.
4. If the application was decided by the Bar Commissioners following a further assessment, the Bar Commissioners will not publish their discussions.

Section Five: Publication of Decisions [Chapter 3]
1. The Bar Commissioners will discuss and decide any re-assessment or revocation of membership of the Bar in private.
2. The Bar Commissioners will publish any decision to revoke membership of the Bar.
3. If the Bar Commissioners are required to give reasons for revoking membership of the Bar, they must publish those reasons.
4. The Bar Commissioners will not publish their discussions of any re-assessment or revocation of membership of the Bar.

It seems to me that these rules are excessively restrictive in their scope, as any substantive applications or revocations of membership will simply "not be published". I find this to be rather unacceptable when even the Court holds itself to higher standards (it, according to its rules, releases records which have reached one year of age according to procedures that differ little from the regular FOIA law.

 

[Zyvetskistaahn]

I am glad to see engagement with the Commission’s decisions. I and, I believe, my fellow Commissioners recognise we are in the early days of implementing the application process and expect it to be subject to revision, so input from the Assembly would help me in that and, I would think, my fellow Commissioners.

I would like to offer some explanation and my own thinking in relation to the points made.

On the acceptability criterion, I don’t expect this will be something that will trouble the vast majority of applicants and, to my mind, the issues raised are ones that are relevant to whether someone ought to be a member of the Bar. I would note that the number of nations affected is vanishingly small. Very few nations have been convicted of a crime in TNP. Very few have been recalled as Justice or Prosecutor (to be honest, as I type I am not sure if I can think of a specific one). No nation (as far as I am aware) has been held in contempt or to have brought a vexatious appeal or request for review and, obviously, no nation has yet been removed from membership of the bar.

Were a nation to apply that had been convicted of a crime or which had served so poorly as Justice or Prosecutor as to merit recall, I would think that the Assembly would expect the Commission not to act blind as to that. Similarly, if the nation behaved so poorly in Court proceedings as to be subject to sanctions the Court has never yet had to use or were previously removed from the Bar for reasons that (under the Rules as they are now) are connected with failure to meet requirements of the Bar. If these things are taken account of, as I think is appropriate, they would weigh against admission to the bar, so the applicant is given opportunity to make their case why they should be admitted nevertheless.

I see the point that these aren’t necessarily things that would be considered for a place as Election Commissioner or, indeed, other office, but I would expect that those making appointments or the electorate would have in mind things of this nature that are relevant to the office, even if they ultimately decided they did not mean the candidate should not be appointed or elected. For example, if the Delegate were looking to appoint an Election Commissioner who has been recalled as Election Commissioner previously, I would expect them to consider that, whether it meant they were not appropriate to appoint or if the passage of time or the circumstances or reasons for the recall meant it should be overlooked.

I would be interested for views on the issue of disclosure but, in relation to assessment and re-assessment in particular, there is an issue around maintaining the integrity of the assessment. If questions, answers, and the Commission’s views about the correctness of particular answers are published, then the integrity of the assessment is affected because applicants can simply copy answers that have been previously given and which they can see from the Commission’s discussions are correct. Obviously, the Commission can be conscious about that issue but I would think it preferable to limit the scope for it.