[For Discussion] Nomination of an adjudicator

[Istefan Perþonest]

The Capitán has advised me to nominate S:reu Tamorán dal Navâ for adjudicator of the Landsdoom. I am inclined to do so, but I wanted to see what the general opinion was on two items first.

1) S:reu Tamorán dal Navâ is a member of the Uppermost Cort, to which decisions of the Landsdoom may (eventually) be appealed. Indeed, it would be possible for him to hear an appeal sitting as the sole Justice deciding for the Cort. Would this be considered acceptable?

2) The exact language of the provision of the constitution specifies that "Judicial power is exercised by a Landsdoom, consisting of one or more adjudicators nominated by the Cunstavál and approved by the General Assembly, as and when necessary."

It is not entirely clear to me whether the clause "as and when necessary" indicates when the Landsdoom exercises the judicial power, or when the Cunstavál makes the nomination. If the latter, I would not actually make a nomination until a case or controversy arose requiring adjudication.

So, people of Fiôvâ, what do you think?

[D. N. Vercáriâ]

1) Not acceptable at all. How could a solely sitting Justice of the UC avoid the impression that his examination of a Landsdoom case is not impartial, if he's been the one who presided said Landsdoom case as well?

IMHO you wouldn't do Sir Tamoran a favour by nominating him for adjudicator of the Landsdoom.

[C. Carlüs Xheraltescù]

My concern was that if such an eventuality were to arise in which an adjudicator were required to make a decision, it would be a long and arduous task of having to go through the General Assembly. As such, surely it would be a good idea to have an adjudicator ready for such a circumstance.

Much like the esteemed Cunstaval, I too would like to hear/read the opinions of the rest of Fiova.

[C. Carlüs Xheraltescù]

Jul 4, 2012 14:10:01 GMT -6 D. N. Vercáriâ said:

1) Not acceptable at all. How could a solely sitting Justice of the UC avoid the impression that his examination of a Landsdoom case is not impartial, if he's been the one who presided said Landsdoom case as well?

IMHO you wouldn't do Sir Tamoran a favour by nominating him for adjudicator of the Landsdoom.

Surely the UC would see this and have another of the sitting Justices to preside over the appeal?

[D. N. Vercáriâ]

Anyway what would be the point of appealing to a higher court if you're meeting the same personnel up there? Do you expect an UC Justice to rule that his lower-court ego screwed up at some time?

[C. Carlüs Xheraltescù]

Jul 4, 2012 14:19:17 GMT -6 D. N. Vercáriâ said:

Anyway what would be the point of appealing to a higher court if you're meeting the same personnel up there? Do you expect an UC Justice to rule that his lower-court ego screwed up at some time?

I'm afraid I don't understand. Like I said above, if a case were to be appealed to the UC - I'm sure they would see the impartiality as an issue and not place S:reu dal Nava as the presiding Justice.

Of course, if a member of the UC would like to state that they think they would do so if such an eventuality arose, I would most certainly agree with your point, S:reu Vercáriâ.

[D. N. Vercáriâ]

It is not only a matter of presiding... someone who ruled in a lower court case must not even come close to sitting in a team of justices at the upper juridical appellation level.

[C. Carlüs Xheraltescù]

Okay, so you believe this is a big issue? We'll have to consider alternatives then; I'm struggling to think of someone with a sufficient degree of impartiality.

[D. N. Vercáriâ]

Is it an urgent issue? We could wait till the election is over and see if there will be more possible candidates for the appointment in question then.

[C. Carlüs Xheraltescù]

It is not an urgent issue, no. For me, however, I would still question the partiality of all of the current candidates with regards to them having contested an election very recently.
That's just an ever so slight concern though.

[D. N. Vercáriâ]

As for Grubi, he sure would be a wonderful candidate, if only he wasn't in the UC already. I must say I tip my hat to the Cunstaval that he decently hinted in the direction of a possible role-conflict.

[Ián B. Anglatzarâ]

Well, I'd say it depends on how the UC works -- which I don't know. If the entire court handles all cases, it is not acceptable at all, regardless of who is presiding. If the UC normally lets just one Justice handle individual cases, then of course S:reu dal Navâ would recuse himself and all would be fine.

[C. Carlüs Xheraltescù]

Jul 4, 2012 16:00:35 GMT -6 Ián B. Anglatzarâ said:

Well, I'd say it depends on how the UC works -- which I don't know. If the entire court handles all cases, it is not acceptable at all, regardless of who is presiding. If the UC normally lets just one Justice handle individual cases, then of course S:reu dal Navâ would recuse himself and all would be fine.

Well that's what I was getting at, but S:reu Vercaria seems to think that it would be an issue even then.

[Xhorxh Asmour]

Jul 4, 2012 16:00:35 GMT -6 Ián B. Anglatzarâ said:

Well, I'd say it depends on how the UC works -- which I don't know. If the entire court handles all cases, it is not acceptable at all, regardless of who is presiding. If the UC normally lets just one Justice handle individual cases, then of course S:reu dal Navâ would recuse himself and all would be fine.

This would be fine by me.

[D. N. Vercáriâ]

Jul 4, 2012 16:00:35 GMT -6 Ián B. Anglatzarâ said:

Well, I'd say it depends on how the UC works -- which I don't know. If the entire court handles all cases, it is not acceptable at all, regardless of who is presiding. If the UC normally lets just one Justice handle individual cases, then of course S:reu dal Navâ would recuse himself and all would be fine.

OrgLaw XVI, 7: "If a judge or Justice is a party in a court case, he shall exempt himself from the bench for the duration of the case, and nominate a temporary replacement, who will be approved by the other judges or Justices of the court."

There is also section 8 (and its pending amendment 43RZ32), according to which the Court Justices can decide on letting one of them preside a case all alone, but still section 7 may require that Justice Dal Navâ will have to nominate a temporary replacement of himself, in a case in which he had been party in the Fiovan Landsdoom.