Capriciously verbose thread titles notwithstanding...
The program of the incumbent Government includes, in part:
Quote
Setting up two Ziu committees with equal Govt/Opposition representation to produce reports, including proposed legislation if appropriate, on:
Reform of the Cosă/Ziu.
These might include: the Cosă's size, electoral system and ways of assigning seats; the possibility of a unicameral Ziu; moving responsibility for the Clark from the Chancery to the Mençéi and the Tuíschac'h.
Law reform.
This might include: removing Wisconsin law from el Lexhatx in favour of an indigenous equivalent; moving to an inquisitorial rather than adversarial Cort system; moving to a civil law rather than a common law system.
Accordingly, I am opening the roll and asking if there are any "volunteers". Specifically, do the
@Seneschal and
@Leader of the Opposition have anyone which they would like to include or see included in this endeavor?
Thank you kindly.
Quote from: Açafat del Val on January 10, 2021, 08:32:23 PM
Capriciously verbose thread titles notwithstanding...
The program of the incumbent Government includes, in part:
Quote
Setting up two Ziu committees with equal Govt/Opposition representation to produce reports, including proposed legislation if appropriate, on ... Reform of the Cosă/Ziu. These might include: the Cosă's size, electoral system and ways of assigning seats; the possibility of a unicameral Ziu; moving responsibility for the Clark from the Chancery to the Mençéi and the Tuíschac'h.
Accordingly, I am opening the roll and asking if there are any "volunteers". Specifically, do the @Seneschal and @Leader of the Opposition have anyone which they would like to include or see included in this endeavor?
Thank you kindly.
If this is happening than I might as well be included, even if only to constantly say "no"
Quote from: Ian Plätschisch on January 10, 2021, 08:34:15 PM
If this is happening than I might as well be included, even if only to constantly say "no"
You beat me to the draw here, lol. Please see the edited first post. Even if you say "no" to every possible OrgLaw change, you may have interest in the legal reforms.
With regard to developing our own law code to replace Wisconsin's, I am not sure what benefit we would get by doing so. If someone wants to work on that, I am unlikely to object, but I probably won't help unless I hear a very compelling case about why it's important.
My big issue is the one the Regent keeps bringing up: Talossan law should be accessible to ALL Talossans. At the moment, being well-versed in Talossan law means also being well-versed in Wisconsin law. That means that trained lawyers in the US judicial system will always have an advantage over other Talossans - i.e. they'll be able to pull out precedents and statutes from Wisconsin to win cases (I believe Sir Cresti has done this a few times). And UC justices will have to learn Wisconsin law to be prepared for many of our cases.
I can't see how anyone would defend this. That said: what to replace it with? I suggest "judge-made Talossan common law, based on universally accepted judicial principles among Talossans, until such time as the Ziu replaces it." Another option is to go full Napoleonic Code, but that seems like too much work.
Perhaps I misunderstood the scope of the task. I was under the impression the Government sought to replace all of the Wisconsin law we currently use (49 chapters in all if I counted correctly) with our own version, despite most of it being (presumably) irrelevant to us given that Talossa regulates hardly any economic activity and prosecutes only a narrow range of crimes. If the goal is instead to only replace what Talossa actually needs, and get rid of the rest entirely, that seems much more reasonable.
MZs:
Obviously I have a lot of sympathy to this idea of removing the Wisconsin provisions from our law. The main impediment has been a purely practical one. For a long time now, we have trying to operate under the knowledge that we lack the resources to investigate and involuntarily punish (in most ways) criminals outside of our usual scope, but with the desire to have the ability to act to preserve the nature of our community. If we discover that a citizen has been convicted of some sort of serious crime in their other jurisdiction, then the general idea has been to preserve some freedom to act on that knowledge. It hasn't really worked out this way, though, and in practice we mostly ignore that part of the law.
I would love to see you guys come up with a solution that preserves our ability to maintain our garden walls, yet which is also more realistic. One thought had been, after the Iusti incident (when a citizen was sent to jail in the US for horrible crimes) to adopt extratalossan verdicts dynamically. In other words, if you're convicted of something in your other jurisdiction, we consider you convicted here and assess appropriate penalties. But cooler heads prevailed and pointed out that not everyone in our country lives in a place with a fair justice system.
I think it would be foolish to try to write our own whole legal code. It would end up being unfair or incomplete, and would also spawn a huge number of arguments over things that don't actually trend to divide us in practical terms, like access to abortion.
My suggestion would instead be to eliminate the Wisconsin provisions from our statutes, but also -- very carefully! -- create a review process where our courts can appoint a special counsel to investigate convictions in other jurisdictions, and where the court then issues ruling based on carefully specified principles that incorporates the special counsel's findings.
My two bence.
Quote from: Sir Alexandreu Davinescu on January 11, 2021, 06:48:31 PM
My suggestion would instead be to eliminate the Wisconsin provisions from our statutes, but also -- very carefully! -- create a review process where our courts can appoint a special counsel to investigate convictions in other jurisdictions, and where the court then issues ruling based on carefully specified principles that incorporates the special counsel's findings.
That is a good idea!
A different issue, however, that was raised with regard to Wisconsin law was that it could act as a fallback where Talossan law is silent. Please refresh my memory, someone - I believe that in the ESB affair (or was it another election fraud case?) we found that there wasn't a Talossan statute to cover the obvious crime, but there was a Wisconsin one. I can understand that, but for the reasons previously stated, I don't like it. While I'm at it, it seems that the reference "Anglo-American common law" which
used to be in the OrgLaw has fallen out of the new version. The OrgLaw is now silent on the basic principles of our jurisprudence - all we have to rely on is the way "the Cort has always done things".
So: some principles rooted in both Talossan tradition, universal human ethics, and "common sense" that would enable judges to rule effectively in cases where Talossan statute law is silent, and replacing the "importing" of Wisconsin law. In addition to the current Covenant of Rights and Freedoms, of course. What do we think?
To debate the Regent's point a bit further, there are instances of law that cause automatic conflict.
I don't know if we use this particular bit of Wisconsin law, so this is just for example (and not very well thought out, so forgive me please): Wisconsin's legal drinking age is 21. This might match up to the legal drinking age of the resident places that Talossan's live in, but in a lot of cases it wont. I think we should always try and be careful with what we legislate and how it impacts our citizens based on where they live in the world. At present, is it technically illegal for a Talossan to drink alcohol at the age of 18 even if the place they live in has a legal drinking age of 16? I know an obvious answer there is 'no, it isn't illegal because the laws of the place the person is in are in effect'... but, if that is true then none of Talossan law can ever be considered enforceable.
Maybe we should be deciding what bits of law Talossa actually needs to concern itself with and instead of using Wisconsin as the catch-all for everything else, have a clause stating that everything else is dependant on the resident State/country of the citizen. ?
As far as I know - and. of course, things may have changed since I last looked - Talossan Law refers back to Wisconsin law only in a very few places, and is NOT (in general) dependant upon that law. Wisconsin law is *not* (explicity) the background for Talossan Law, except in those few cases. I did point out that two 18-year old same-gender Talossan intimate friends having a glass of wine on the island of Cezembre were breaking lots of Wisconsin laws - but no French laws. I would *strongly* suggest that *all* references to the laws of all non-Talossan states be removed from our Talossan Laws. And, moreover, I would suggest that Talossan Law should concern itself only with (a) matters concerning personal freedom and rights, and (b) matters relating to internationally and universally recognised aspects of morality, and (c ) matters concerning Talossa directly.
This suggestion would mean that, for example, Talossa should *not* concern itself with who can marry whom, or the voltage and frequency of electricity supply, or way in which voting must be performed in any non-Talossa state. But it *would* be concerned with, for example, (Talossan) theft, and (all) murder, and (all) actions of impinging upon liberty or right-to-respond, and (Talossan) dishonesty and improper behaviour.
Except for the International Declaration of Human Rights, Talossa need not, and *must not* depend upon the laws of any other state.
Quote from: Miestră Schivă, UrN on January 11, 2021, 08:26:48 PM
So: some principles rooted in both Talossan tradition, universal human ethics, and "common sense" that would enable judges to rule effectively in cases where Talossan statute law is silent, and replacing the "importing" of Wisconsin law. In addition to the current Covenant of Rights and Freedoms, of course. What do we think?
I want to be clear that we should be
unbelievably careful about this, and we should make sure we set up such a system to strictly limit judicial power. I'd suggest such a system involve a special counsel to do fact-finding, then some sort of adversarial process. It's hard to emphasize just how open to abuse this system could be, if it became a backdoor for imposing ad-hoc consequences for ad-hoc crimes. I hesitate to even suggest such a big change, since I'm generally inclined to conservatism about such things, but I've thought about this point for years, and our current system falls short in terms of equity.
Quote from: Eðo Grischun on January 12, 2021, 08:19:26 AM
Maybe we should be deciding what bits of law Talossa actually needs to concern itself with and instead of using Wisconsin as the catch-all for everything else, have a clause stating that everything else is dependant on the resident State/country of the citizen. ?
This has been suggested, but it poses serious problems:
Quote from: Sir Alexandreu Davinescu on January 11, 2021, 06:48:31 PM
cooler heads prevailed and pointed out that not everyone in our country lives in a place with a fair justice system.
It's illegal for women to sign contracts in Saudia Arabia unless countersigned by a male guardian, for example. We wouldn't want anyone able to impose Talossan consequences at will for the same crime. We can't incorporate every country's legal principles or laws into our own dynamically
at all without some form of review, I think.
Quote from: Ián Tamorán S.H. on January 12, 2021, 09:06:07 AM
As far as I know - and. of course, things may have changed since I last looked - Talossan Law refers back to Wisconsin law only in a very few places, and is NOT (in general) dependant upon that law.
For many years, Wisconsin criminal and civil codes have been incorporated into our law. It's actually been the first provision of el Lexhatx for its entire existence: http://wiki.talossa.com/Law:El_Lexhatx#A._General_Crime That's what prompts this specific discussion.
Are the citizenry in general really not allowed to reply to discussions here? For goodness sake, change that so people like the justices can participate!
V says:
Quote from: Viteu on January 12, 2021, 09:38:32 AM
My apologies to the Ziu, I realized after the fact that the Committee of Legal Reforms thread is in the Lobby and not in Wittenberg. I posted based on the "new posts" feed. Having realized my mistake, the post has been removed. But I do think there is a conversation that should be open to Talossa-at-large. So I'm reproducing my commentary here. The original thread can be found here (https://wittenberg.talossa.com/index.php?topic=664.0).
______
I want to chime in regarding the alcohol analogy. Although there is a shared minimum alcohol consumption/purchasing age of 21 among the States, it is not the same law across the Country. In Wisconsin, someone under the age of 21 can certainly be served an alcoholic beverage in a public establishment by their parent or guardian, while in North Carolina they cannot. Even assuming Wisconsin did have an outright ban on underage alcohol consumption, it only applies to committing the offense if present in Wisconsin, an 18-year-old who consumes alcohol in Cezembre would not have broken a Wisconsin law because they did not consume alcohol in Wisconsin. By way of example, my first trip to Europe at age 20, I purchased and consumed a beer in Schwedenplatz (public place) in Vienna. Did I break New York law? No. New York has a similar law to Wisconsin, but even so, I purchased and consumed alcohol publicly in another country where the conduct was permissible. So I did not have to worry about facing criminal charges when I returned home.
The US, federal and State, rarely imposes criminal liability for conduct that occurs outside of a jurisdiction. Where it does, it's very limited circumstance--think sex tourism. So this is not the best analogy.
Regarding the merit of the Regent's thoughts, I generally find them agreeable. I see the value is removing Wisconsin law from our criminal law, but we cannot possibly address every instance of criminal conduct that may present itself given our resources and needs. I like the idea of a carefully regulated special counsel, but I would add that a tenant of criminal law is that a person must be able to know what they're doing is illegal. There must be a benchmark. Also, Talossa is unique in that we're seeking to hold someone criminally liable for conduct outside of Talossa for general crime. I'd say further narrowing--only those crimes of such magnitude as to impact the wellness and health of Talossa, should be permissible for consideration of judicial incorporation (I'm thinking of murder or statutory rape as opposed to a speeding ticket).
Quote from: Sir Alexandreu Davinescu on January 12, 2021, 09:57:14 AM
Are the citizenry in general really not allowed to reply to discussions here? For goodness sake, change that so people like the justices can participate!
I'm not the author of this thread, but since it is in the lobby of the Ziu, anyone can come and go in the lobby...
Quote from: Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM on January 12, 2021, 12:57:09 PM
Quote from: Sir Alexandreu Davinescu on January 12, 2021, 09:57:14 AM
Are the citizenry in general really not allowed to reply to discussions here? For goodness sake, change that so people like the justices can participate!
I'm not the author of this thread, but since it is in the lobby of the Ziu, anyone can come and go in the lobby...
If that's the case. My apologies for the confusion. I'm actually unsure exactly which legislative forums are restricted to the Ziu.
Quote from: Sir Alexandreu Davinescu on January 12, 2021, 09:17:33 AM
I want to be clear that we should be unbelievably careful about this, and we should make sure we set up such a system to strictly limit judicial power.
If your priority is to "strictly limit judicial power", then certainly we should cease to operate our judiciary on a "quasi common law approach", with principles of
stare decisis etc., which gives the judiciary massive power compared to a Civil Law system like France, where judges simply cannot rule unless a statute explicitly references the matter. In contrast, even disregarding the Wisconsin statutes, the Court currently has wide powers to rule based on judicial precedent, even where there is no statute.
I repeat that, with the deletion of the term "Anglo-American judicial principles" (or whatever it was), this "quasi common law approach" no longer has any backing in the Organic or Statute law - it's sheerly kept in place by inertia/the desires of the CpI justices at the moment. Choose between "limiting judicial power" and "allowing judges to rule on something which isn't specifically mentioned in Talossan law", because you can't have both. "
All right, time for some archeology. Wisconsin law was written into our law (at the proposal of KR1) by 31RZ14 (http://wiki.talossa.com/Law:The_Talossan_Civil_and_Criminal_Codes_Act), which reads in part:
QuoteWHEREAS under Talossan law, there are no actual, legal prohibitions against murder, rape, robbery, or any other crimes...
So clearly KR1 was thinking of the kind of crimes of gross moral turpitude that I. Canún is currently doing time for. This was further amended (at Sir Cresti's proposal) by 35RZ21 (https://wiki.talossa.com/Law:The_What_the_Heck_is_the_Civil_Code_of_the_State_of_Wisconsin_Act). The list of those sections of the Wisconsin Code "dynamically included" in our law are:
QuoteChapters 240-243 Fraudulent Conveyances and Contracts
Chapters 401-411 Uniform Commercial Code
Chapters 421-429 Wisconsin Consumer Act
Chapters 700-710 Property
Chapters 938-951 Criminal Code
Chapter 961 Controlled Substances
I suppose we could go through Old Witt's debates to find out exactly why Sir Cresti thought these sections should apply to Talossa. But I maintain the following:
- putting Wisconsin law into Talossan law means that Talossan judges and lawyers have to be familiar with Wisconsin case and statute law to really know our law, which is ridiculous and puts the Talossan law out of reach for any but US-trained lawyers (like Cresti, lol)
- no case of "murder, rape or robbery" has ever been tried under these law in Talossan court
- I believe that the only time these sections were invoked was when Cresti relied on Wisconsin court decisions as precedent in Talossan court - see above
These sections need to be repealed. Talossan law should be indigenous. But what will they be replaced with? That's what we're discussing.
A point I've made which seems to have been ignored is that
Talossa's current common law system already allows courts a lot of discretion to hear cases on matters not referred to by statute. So if we adopted a set of "Principles of the Common Law of Talossa", Courts could base their decisions on those rather than on the "Anglo-American" precedent enshrined by the previous OrgLaw. But if the idea of judges ruling on matters not specifically referred to by statute is a problem, then we should switch to a Civil Law code post haste, which removes judicial discretion over matters not in statute. The Regent seems upset by something which is the status quo.
Quote from: Miestră Schivă, UrN on January 12, 2021, 01:43:01 PM
All right, time for some archeology. Wisconsin law was written into our law (at the proposal of KR1) by 31RZ14 (http://wiki.talossa.com/Law:The_Talossan_Civil_and_Criminal_Codes_Act), which reads in part:
QuoteWHEREAS under Talossan law, there are no actual, legal prohibitions against murder, rape, robbery, or any other crimes...
So clearly KR1 was thinking of the kind of crimes of gross moral turpitude that I. Canún is currently doing time for. This was further amended (at Sir Cresti's proposal) by 35RZ21 (https://wiki.talossa.com/Law:The_What_the_Heck_is_the_Civil_Code_of_the_State_of_Wisconsin_Act). The list of those sections of the Wisconsin Code "dynamically included" in our law are:
QuoteChapters 240-243 Fraudulent Conveyances and Contracts
Chapters 401-411 Uniform Commercial Code
Chapters 421-429 Wisconsin Consumer Act
Chapters 700-710 Property
Chapters 938-951 Criminal Code
Chapter 961 Controlled Substances
I suppose we could go through Old Witt's debates to find out exactly why Sir Cresti thought these sections should apply to Talossa. But I maintain the following:
- putting Wisconsin law into Talossan law means that Talossan judges and lawyers have to be familiar with Wisconsin case and statute law to really know our law, which is ridiculous and puts the Talossan law out of reach for any but US-trained lawyers (like Cresti, lol)
- no case of "murder, rape or robbery" has ever been tried under these law in Talossan court
- I believe that the only time these sections were invoked was when Cresti relied on Wisconsin court decisions as precedent in Talossan court - see above
These sections need to be repealed. Talossan law should be indigenous. But what will they be replaced with? That's what we're discussing.
A point I've made which seems to have been ignored is that Talossa's current common law system already allows courts a lot of discretion to hear cases on matters not referred to by statute. So if we adopted a set of "Principles of the Common Law of Talossa", Courts could base their decisions on those rather than on the "Anglo-American" precedent enshrined by the previous OrgLaw. But if the idea of judges ruling on matters not specifically referred to by statute is a problem, then we should switch to a Civil Law code post haste, which removes judicial discretion over matters not in statute. The Regent seems upset by something which is the status quo.
I'm not upset, but I also would note that you are mistaken about a few things. Multiple times, people have been charged or nearly charged with crimes under those legal codes. It hasn't happened a lot, but it has happened. It just isn't very equitable.
Yes, the modern court system has been bent inexorably towards the court system with which most of the judges in office have been familiar. It's not quite as open-season as you think, though!
Let's focus on the point here. What shall we replace El Lex A:1-4 with?
- a full replacement Talossan legal code? Far too much work.
- would the Regent's special prosecutor system work fully to replace these sections? And how? Can we have a hypothetical example, eg: what would a "special prosecutor" have done in the I. Canún case?
- do we need extra "principles" to guide the Courts in these "special prosecutor" cases outwith those currently in the Covenants?
There is a much broader question I've raised of whether our current "quasi common law system" is adequate for our purposes - and indeed what is the statutory basis for it since the reference to Anglo-American principles was taken out of the OrgLaw. (Are we to assume that Talossa inherited the common law on 26/12/79?) The alternative would be to resort to Civil Law, i.e. precedent no longer has value and where there's no statute the Court can't rule.
Quote from: Miestră Schivă, UrN on January 12, 2021, 02:12:46 PM
Let's focus on the point here. What shall we replace El Lex A:1-4 with?
- a full replacement Talossan legal code? Far too much work.
- would the Regent's special prosecutor system work fully to replace these sections? And how? Can we have a hypothetical example, eg: what would a "special prosecutor" have done in the I. Canún case?
- do we need extra "principles" to guide the Courts in these "special prosecutor" cases outwith those currently in the Covenants?
There is a much broader question I've raised of whether our current "quasi common law system" is adequate for our purposes - and indeed what is the statutory basis for it since the reference to Anglo-American principles was taken out of the OrgLaw. (Are we to assume that Talossa inherited the common law on 26/12/79?) The alternative would be to resort to Civil Law, i.e. precedent no longer has value and where there's no statute the Court can't rule.
I agree, the discussion should stay focused on the actual question at hand about how and if we incorporate other countries legalities into our own.
I will pose a couple of hypotheticals to assist.
A. A person is convicted of a minor crime like petty theft in their local jurisdiction, but is also widely disliked by people in power. Who and how do we decide whether or not to apply consequences here, by whatever mechanism the Ziu designs?
B. A person is convicted of a very serious crime like large-scale embezzlement, but not a crime that is immediately inflammatory to a lot of folks. Do they suffer consequences here?
C. A person is convicted of a very serious crime that is abhorrent to everyone, like spousal abuse. Do they suffer consequences here?
D. A person is accused of a very serious crime that is abbhorent to everyone, like spousal abuse. Do they suffer consequences here?
E. A person is convicted of a crime that is controversially illegal in some places but not others, such as obtaining an abortion. Who and how do we decide whether or not they suffer consequences here?
Any reform made by the Ziu must be able to handle each of these situations without endangering the liberties of our people.
My answer is that the Talossan state should be empowered to intervene
only when someone has, to the satisfaction of the prosecuting authority, committed a crime repugnant to Talossan principles of law and justice, as represented chiefly in the Covenant of Rights and Freedoms.
Let's take the Sixth Covenant:
QuoteLiberty consists of any action which is not detrimental to others, and no right herein enumerated, or elsewhere recognised by the Cosa, shall extend to anyone engaged in activities which injure, endanger, risk or compromise the physical health, privacy, or tranquility of other persons through the pretended exercise of said right.
In addition, the Fourth Covenant enshrines a right to personal property. I would prefer language that would enable the State to investigate "behaviour outside of Talossa which contradicts the Covenants
and which would tend to bring Talossa into disrepute in the eyes of non-Talossans who share our values as expressed in the Covenants";
and that specifies the difference between felony and misdemeanour crimes under this law. You would have to convince the Court (a) that you did the deed "on the balance of probabilities"; and (b) that the deed was something that people of similar values to Talossa would be repulsed and thus Talossa doesn't want to be associated with.
To deal with your examples:
PETTY THEFT: violation of the Fourth Covenant right to property. Should be liable for a misdemeanour charge, only if the Cort is satisfied that it's of the kind that brings Talossa into disrepute.
EMBEZZLEMENT: felony violation of the Fourth Covenant
and brings Talossa into disrepute. More chance of a conviction and a serious punishment.
DOMESTIC VIOLENCE: felony violation of the Sixth Covenant
and brings Talossa into disrepute. More chance of a conviction and a serious punishment.
ACCUSATION OF DOMESTIC VIOLENCE: Let's specify that conviction by a macronational court should be only considered
prima facie evidence of bad behaviour; a State prosecutor (or the Cort) could look at the sentencing authority and go "kangaroo court under a dictatorship, not touching that". Or, alternatively, if someone gets off a rape/spousal abuse case because of a misogynist judge or jury, the Court would still be enabled to use the "balance of probabilities based on the evidence" test. The "bringing Talossa into disrepute" test would also come into action, for example, if it were a famous trial and a lot of people saw a rapist getting off because the courts are misogynist.
ABORTION: guaranteed right under the Eight Covenant. No crime.
OTHER CRIME THAT'S A PROBLEM IN SOME JURISDICTIONS AND NOT OTHERS (eg. drug offences / a woman not covering her hair in Iran / agitating against oppressive regimes): None of these are behaviours contradicted by the Covenants, and some are actually supported by them. No crime.
The "bringing Talossa into disrepute" test might be very important for discussing any penalties under law. A larger punishment (banishment) might be necessary if someone did a foul deed and they're unrepentant; if they fess up and convince the Court that they're going to do whatever macronational time they have to and otherwise pay their debt to society, they might just get a civil disability. If Talossa can deal with its own "trash" with both mercy and justice, people doing crimes are less likely to bring us into disrepute.
Do we want to bring in a
grand jury system, i.e. a jury of Talossans would have to look at the State's evidence for prosecution under this law before it can be accepted by the Cort? We must also ask: are there any crimes
not covered by the Covenants that we would want our State to be able to prosecute?
I'm thinking of a historical case, KR1 attempting to frame Sir Tamorán dàl Nava for domestic violence. If we adopted my schema, KR1 would have to have proved that Sir Tamorán had both:
a) on the balance of probabilities, "injured, endangered, risked or compromised the physical health, privacy, or tranquility of another person" (Sixth Covenant);
b) that this behaviour would tend to bring Talossa into disrepute.
Based on the evidence that KR1 could have brought up (a restraining order brought by his ex, if I remember right), there's no way Sir Tamorán could have been convicted. That said, would we have needed a further safeguard against malicious prosecution? I mentioned a grand jury before, but - say - imagine 7 Talossan citizens were picked at random and KR1 had to convince 4 of them to let him take the case to the Cort. Would that be sufficient safeguard? Or - as tends to happen in cults and fascist movements - would 4 Talossans be prepared to swear that black was white if KR1 told them to? Open question.
Quote from: Miestră Schivă, UrN on January 12, 2021, 04:59:51 PM
PETTY THEFT: violation of the Fourth Covenant right to property. Should be liable for a misdemeanour charge, only if the Cort is satisfied that it's of the kind that brings Talossa into disrepute.
EMBEZZLEMENT: felony violation of the Fourth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.
DOMESTIC VIOLENCE: felony violation of the Sixth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.
ACCUSATION OF DOMESTIC VIOLENCE: Let's specify that conviction by a macronational court should be only considered prima facie evidence of bad behaviour; a State prosecutor (or the Cort) could look at the sentencing authority and go "kangaroo court under a dictatorship, not touching that". Or, alternatively, if someone gets off a rape/spousal abuse case because of a misogynist judge or jury, the Court would still be enabled to use the "balance of probabilities based on the evidence" test. The "bringing Talossa into disrepute" test would also come into action, for example, if it were a famous trial and a lot of people saw a rapist getting off because the courts are misogynist.
Here's where the rubber hits the road, though, doesn't it? Under this proposal, the scope of Talossan prosecution seems as though it would -- in your view -- encompass all potential convictions or accusations or even exonerations, serious or no, as a basis for potential prosecution. So if we were to end up someplace in this neighborhood -- which I'm not opposing -- there would need to be a whole trial and things really get messy. If we're trying someone on the basis of an accusation of spousal abuse, for example, the Talossan in question would have due process rights that a Talossan court probably couldn't exercise in any real way.
Because of those things, I'd suggest the most practical way forward is to view and treat the matter as a question of accepting another country's judicial proceedings as acceptable in the eyes of our own Organic requirements. In other words, I don't think it's feasible to really fairly design any process that can act on the basis of another country's accusations: only convictions should be an acceptable basis for review by our courts.
Quote from: Sir Alexandreu Davinescu on January 12, 2021, 10:35:24 PM
I don't think it's feasible to really fairly design any process that can act on the basis of another country's accusations: only convictions should be an acceptable basis for review by our courts.
I can understand the logic of this position, though I'm not 100% convinced. Is there no act outside Talossa that a Talossan could do which would be, not illegal, but (a) repugnant to the Covenants, and (b) brings Talossa into disrepute, and that we might want to impose sanctions on? We couldn't decide to censure a Talossan who - oh, let's say - spread legal but repulsive hate speech outside Talossa?
Quote from: Miestră Schivă, UrN on January 13, 2021, 01:17:47 AM
Quote from: Sir Alexandreu Davinescu on January 12, 2021, 10:35:24 PM
I don't think it's feasible to really fairly design any process that can act on the basis of another country's accusations: only convictions should be an acceptable basis for review by our courts.
I can understand the logic of this position, though I'm not 100% convinced. Is there no act outside Talossa that a Talossan could do which would be, not illegal, but (a) repugnant to the Covenants, and (b) brings Talossa into disrepute, and that we might want to impose sanctions on? We couldn't decide to censure a Talossan who - oh, let's say - spread legal but repulsive hate speech outside Talossa?
I'm sure there are all sorts of things that fall into those categories, either justly or unjustly! But that's the danger, isn't it? We can't punish people without due process, including a trial. Plus, the covenants are mostly guarantees against the power of the government, not specific crimes or even principles around which you could construct the basis for a criminal charge. If I told my daughter that she couldn't get an abortion, I couldn't be prosecuted for that, I don't think. Instead, it would just be a mechanism by which she could sue to get an abortion anyway, without my consent.
It might be possible to come up with a process that will ensure due process while also allowing for the prosecution of things that aren't crimes under our laws but which we don't like, but I can't even begin to imagine such a thing.
Okay. If we accept the formulation that "the State can prosecute if someone is criminally convicted in a macronational court for a crime repugnant to our Covenant of Rights and Freedoms, and which would bring Talossa into disrepute in the eyes of those who share those values"; and also that a conviction is necessary but not sufficient (the Court has to decide that the verdict was "safe", i.e. the given court was credible and not a kangaroo court of a dictatorship)...
... is that enough that we can remove El Lex A.1-4?
I don't know whether this committee is inoperative or not, but I am minded to Hopper the below as a stand-alone reform.
Quote from: Miestră Schivă, UrN on January 13, 2021, 02:51:30 PM
Okay. If we accept the formulation that "the State can prosecute if someone is criminally convicted in a macronational court for a crime repugnant to our Covenant of Rights and Freedoms, and which would bring Talossa into disrepute in the eyes of those who share those values"; and also that a conviction is necessary but not sufficient (the Court has to decide that the verdict was "safe", i.e. the given court was credible and not a kangaroo court of a dictatorship)...
... is that enough that we can remove El Lex A.1-4?
I've read that a couple of times, and maybe I'm just tired, but I don't understand. I would suspect there's general agreement on those principles you lay out: a conviction in another court, not just a prosecution, can be reviewed by our system somehow and possibly lead to a Talossan sentence, as well. But aren't we still missing the main tricky bit -- that review process? I think there still has to be some sort of adversarial trial for the sake of the Covenants, for example. I wonder if there's a simple solution here, actually... could we just declare that being convicted of a crime in another court of law is itself a Talossan crime, subject to the Covenants? I'd have to think more on whether or not that would be itself Organic.
Quote from: Sir Alexandreu Davinescu on January 31, 2021, 10:10:06 PM
could we just declare that being convicted of a crime in another court of law is itself a Talossan crime, subject to the Covenants?
Well, that's basically what I'm going for. But only a crime which in itself violates the covenants; which brings Talossa into disrepute; and a conviction that the judges consider "safe" (i.e. not a kangaroo court).
Could you give me an example of some crimes that violate the Covenants? Maybe I'm not understanding what you mean by that.
Reprinted from above:
QuotePETTY THEFT: violation of the Fourth Covenant right to property. Should be liable for a misdemeanour charge, only if the Cort is satisfied that it's of the kind that brings Talossa into disrepute.
EMBEZZLEMENT: felony violation of the Fourth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.
DOMESTIC VIOLENCE: felony violation of the Sixth Covenant and brings Talossa into disrepute. More chance of a conviction and a serious punishment.
Ah, I missed that before. But I don't quite see this, still. What in the Fourth Covenant provides a "right to property" or criminalizes embezzlement? What in the Sixth Covenant criminalizes domestic violence?
Generally speaking, the Covenants are understood as a list of rights that citizens enjoy and upon which the Government cannot infringe. The Ziu couldn't pass a law which would allow the A-X to read someone's correspondence, for example, unless that law required a warrant first. But the Fourth Covenant protection against searches without a warrant doesn't extend to anyone else. If I ran a mail service and told everyone I would be reading their mail if they used it, no one could sue me under the Fourth Covenant.
Quote from: Sir Alexandreu Davinescu on February 01, 2021, 01:35:42 PM
What in the Fourth Covenant provides a "right to property" or criminalizes embezzlement?
"
the right of the people to privacy and
security in their persons, homes, papers, correspondence, and
property, against unreasonable searches and seizures, shall not be violated"
QuoteWhat in the Sixth Covenant criminalizes domestic violence?
"no right herein enumerated, or elsewhere recognised by the Cosa, shall extend to anyone engaged in
activities which injure, endanger, risk or compromise the physical health, privacy, or tranquility of other persons"
QuoteGenerally speaking, the Covenants are understood as a list of rights that citizens enjoy and upon which the Government cannot infringe.
No, that's just how you understand them, presumably on the analogy of the US Bill of Rights. But the Preamble states that "The Covenant of Rights and Freedoms
guarantees the rights and freedoms set out in them to all Talossan citizens". It positively grants rights rather than negatively prevents infringements upon them.
Quote from: Miestră Schivă, UrN on February 01, 2021, 04:07:59 PMQuoteGenerally speaking, the Covenants are understood as a list of rights that citizens enjoy and upon which the Government cannot infringe.
No, that's just how you understand them, presumably on the analogy of the US Bill of Rights. But the Preamble states that "The Covenant of Rights and Freedoms guarantees the rights and freedoms set out in them to all Talossan citizens". It positively grants rights rather than negatively prevents infringements upon them.
The U.S. Bill of Rights was explicitly the model for the Covenants, and a great deal of the language is identical, and the Covenants have been generally understood as a guarantee against action against your rights. This is clear when we look at the Tenth Covenant, which says that "[a]nyone whose rights and freedoms, as guaranteed by these Covenants, have been infringed or denied may appeal to a court of competent jurisdiction to obtain such redress of grievances as the court considers appropriate and just in the circumstances." Neither here nor anywhere else are there provisions for the criminalization of such infringements. If the Ziu passes a law restricting someone's religious liberty, then no one can prosecute the people who voted in favor in the Ziu imprisoned for their "crime" of passing a law that violated the Covenants, for example.
Apparently I had not logged into Witt since January 12, 2021. My god.
Can I make this "the thread" for discussion of reform? I guess I don't care if this thread falls on deaf ears a second time, but maybe I just want someone to scream "put up or shut up" at me so that I have a good excuse to do it anyways.
Quote from: Açafat del Val on March 18, 2022, 12:57:15 PM
Apparently I had not logged into Witt since January 12, 2021. My god.
Can I make this "the thread" for discussion of reform? I guess I don't care if this thread falls on deaf ears a second time, but maybe I just want someone to scream "put up or shut up" at me so that I have a good excuse to do it anyways.
Please don't derail threads from their intended purposes. Thanks.
Quote from: Dr. Txec Róibeard dal Nordselvă, Esq., O.SPM, SMM on March 18, 2022, 01:25:49 PM
Quote from: Açafat del Val on March 18, 2022, 12:57:15 PM
Apparently I had not logged into Witt since January 12, 2021. My god.
Can I make this "the thread" for discussion of reform? I guess I don't care if this thread falls on deaf ears a second time, but maybe I just want someone to scream "put up or shut up" at me so that I have a good excuse to do it anyways.
Please don't derail threads from their intended purposes. Thanks.
As the one who started this thread, it feels reasonable on my part that I should widen its scope and restart efforts of a committee of legal reforms.