The Talossan Law Repatriation (Crimes Repugnant to Talossanity) Bill

[C. M. Siervicül]

Am I right or wrong in my recollection that it was your idea to write the Wisconsin Code into our own laws in the first place?

Not quite right. The law that adopted the “civil and criminal code of the State of Wisconsin” (or “criminal and civil,” I can’t recall the precise formulation off the top of my head) as Talossan law predated me. The immediate problem I saw, and tried to address with my bill, is that it was unclear which portions of the Wisconsin statutes these words were intended to comprehend. So my bill identified specific titles of the Wisconsin statutes that would apply to Talossa, with the intent of making things clearer and more definite than they were before.

And am I right or wrong that the Wisconsin Code has never been used to punish a crime in Talossa, but on the other hand that you personally have relied on Wisconsin legal briefs in your representations before the Corts?

You’re wrong on the first point, as Sir Alexandreu pointed out. I certainly have cited to Wisconsin case law, as I would encourage anyone to do. I’ve never used any resources that aren’t available to anyone—particularly Google Scholar and Google Books.

We could do a lot to point people to relevant resources and provide research tips. At least the status quo provides guideposts to relevant sources of authority. I think you’re mistaken in believing the situation would be improved by trading the status quo for a free-for-all where all the rules are made up as we go. When there are no clear standards set forth in the law, a clever lawyer can argue that any standard ought to apply.

I think there are some arguments for retaining Wisconsin-based criminal laws, but those are probably better discussed in the other thread (which I regret not having seen before now). But like I said before, I don’t feel too strongly about that. What’s critical, in my opinion, is that criminal offenses and their penalties be clearly set forth in the law. This 1) makes it possible for citizens to know what conduct is prohibited and 2) circumscribes the discretion of government prosecutors. Consider Sir Thomas More’s advice to William Roper.

 

[Baron Alexandreu Davinescu]

I see that the Seneschal has Clarked this without change, which is unfortunate.  I believe that section three remains irredeemably flawed.

3. A Talossan citizen who is convicted in another jurisdiction, by a credible judicial authority, of an offence incurring penal servitude which is repugnant to the values expressed in the Covenant of Rights and Freedoms, shall be guilty of the crime of "repugnant behaviour bringing Talossa into disrepute", and be liable to a punishment of severity in strict proportion to the severity of the said offence.

The proposed law is inorganic.  Talossan citizens are afforded rights of due process, but little actual process is afforded by this provision.  If charged under this provision, a citizen found guilty by a foreign court is automatically deemed guilty of a Talossan crime.  While they might contest the fact of their conviction, or might contest the "repugnancy" of the crime in question, they have no opportunity to challenge the actual conviction itself.  That's a serious problem for those Talossans who live in places with judicial systems that are questionable or flawed.  Further, the law as written could possibly make things such as euthanasia illegal, in direct contravention of the Covenants.

The proposed law is unethical.  It would leave it entirely unclear what would sort of behavior would be illegal under Talossan law.  Any conviction for any crime could hypothetically be subject to prosecution under Talossan law.  The Government is unlikely to seize upon flimsy crimes such as jaywalking, but what about more serious crimes such as tax evasion?  Is that illegal under Talossan law?  No one could say for sure if this bill were to pass, since it would depend on the whims of the Government and judge to decide what they thought was particularly "repugnant."   The Covenant's theoretical prohibition of "activities which injure, endanger, risk or compromise the physical health, privacy, or tranquility of other persons" is very broad if considered as a crime.

The proposed law is impractical.  Is abortion a crime under this law?  Unclear!  The Eighth Covenant guarantees it, but the Sixth Covenant overrides the Eighth!  We've never considered the Covenant of Rights and Freedoms to be a list of crimes, and it doesn't make sense when you read it that way.  In some places, for example, affirmative action is illegal.  Is that a Talossan crime?  Maybe!  Is it illegal to have a scholarship fund for LGBT youth?  It sure is in Iran, and maybe in Talossa!  If you're a politician, is it a crime not to announce a dirty secret from your past "which reasonable voters might find helpful, profitable, or informative?"  Maybe!

I will address the Ziu to this effect very soon, in much the same words, and will refer further comment there.

[owenedwards]

This seems like a good one to seek advice on from Government legal officers.

[Miestră Schivă, UrN]

The Attorney-General is on leave at the moment, but I've had no disagreement on the principle from the Talossans with legal experience I've talked to. The Leader of the Opposition expresses himself cautiously neutral.

[Ian Plätschisch]

The Leader of the Opposition expresses himself cautiously neutral.

I haven't commented up to now because I don't particularly care one way or the other. I think the Regent's concerns would be quite valid if Talossa were a country with a multitude of citizens that actually threw people in prison. Given we are really just a few dozen citizens who all pretty much know each other, with no enforcement capability, the possibility of a serious abuse of this law seems too remote for me to spend too long caring about.

I am abstaining.

[C. M. Siervicül]

I understand the patriotic impulse to “domesticate” Talossan law, but scrapping the criminal code in favour of an indigenous common law (that does not yet exist) is not the way to do it. While a mature system of common law has much to commend itself, starting a new system of common law from scratch is a recipe for chaos. English common law arose more or less out of necessity, in a time when Parliament met rarely and mostly for the purpose of granting funds to the crown. There is a reason most common law jurisdictions (US federal courts, most US states, the UK, Canada, Australia, New Zealand, South Africa, etc.) have come to reject the judicial creation of new common law crimes. Crimes and penalties should be defined by the representatives of the people, and the people should be able to know in advance what actions are subject to criminal penalty. I would have thought these would be generally accepted as basic principles of justice these days.

Pace my colleague the Opposition Leader, it is true that Talossan authorities cannot throw us in prison, but they can throw us out of Talossa, and just being prosecuted in a Talossan court (even unsuccessfully) can be burdensome and traumatic. As a (rather disgraceful) saying among some American police goes, “you can beat the rap, but you can’t beat the ride.” That is, arrest/indictment/prosecution can be forms of punishment, or at least harassment, in themselves. And we must keep in mind that Talossa is a uniquely voluntary society, dependent on people freely choosing to do things they find enjoyable in their spare time, but the court system is one of the few ways we attempt to involuntarily impose potentially significant burdens on people as the price of being Talossan. For these reasons, it is imperative that criminal offenses be narrowly and clearly defined. Citizens should be able to know how they can avoid being hauled into court (at least if they don’t want to be), and the ability of government prosecutors to creatively multiply the number of prosecutions should be constrained as much as possible.

If we want to domesticate the areas of law that we currently borrow from Wisconsin, I would start by trimming the list of the chapters of Wisconsin statutes that is included in Lexh. A.1. Maybe cut it down to chapters 939-951 (Criminal Code), exclusive of chapters 949 and 950. That would leave non-criminal law (e.g. commercial and contract law) to the courts to develop a body of common law (less dangerous than criminal law), and then we could go through the remaining 10 chapters one (or a few) at a time to determine to what extent we should selectively retain, replace, or repeal them. Whatever we do retain from those remaining chapters could be incorporated verbatim in el Lexhatx rather than by reference.

Regarding the proposed A.3, I think the Regent raises legitimate objections, but I’m frankly less concerned about that because if someone has committed a serious crime outside of Talossa, the other jurisdiction’s courts will be far more competent to try the issues than any Talossan court could, and the consequences in the citizen’s jurisdiction of residence will be far more significant than any consequences in Talossa. The potential consequences of a repeal of the Talossan criminal code are much more significant for the rest of us. That being said, my preference would be an administrative process that would denaturalise Talossans who have dual nationality and are incarcerated for a significant term in their state of residence, but that would probably require an OrgLaw amendment.

[Miestră Schivă, UrN]

This is a reasoned argument (more so than the Regent's sophistries, anyway), but I'm amazed that you think giving the State the administrative ability to take away citizenship is less oppressive than giving the CpI the discretion to decide - upon a formal complaint - whether someone has violated the Covenants and to evoke a discretionary punishment which may be far less than banishment. Conversely, if your fear is rogue prosecutions, not rogue convictions, might I suggest that limits on prosecutorial power would be the answer? I suggested elsewhere a "grand jury", but no-one bit on that one.

Let's go back to why we are doing this. It is not just because it is unseemly to have written another jurisdiction's laws wholesale into our own. It is because one of our own citizens is doing time for statutory rape, and that section of the law did not give Talossa's State or courts any options to disassociate ourselves from this charater and his crimes. I don't see how your suggested amendments (reasonable on the surface) would do so; mine would.

[Miestră Schivă, UrN]

Something my compatriots who are only familiar with US law might be interested in is the debate in this country over the "principles of the Treaty of Waitangi" to which State actions must conform. The point is that - due to colonial-era skullduggery - the English and Māori versions of this nation's founding document say different and contradictory things, to the point that the English text authorises mass confiscations of indigenous land, while the Māori version suggests a level of indigenous autonomy which would render the current State illegitimate. So it has been up to the courts (and the sub-judicial Waitangi Tribunal) to work out, in light of community mores, just what those principles are. I suggest that Talossan common law should do just that with our Covenants of Rights and Freedoms. (Notwithstanding that, should we go with this measure, I would like to propose certain amendments to those Covenants to improve them as the basis for our common law.)

[C. M. Siervicül]

I'm amazed that you think giving the State the administrative ability to take away citizenship is less oppressive than giving the CpI the discretion to decide - upon a formal complaint - whether someone has violated the Covenants and to evoke a discretionary punishment which may be far less than banishment.

It seems that you’re focused on situations where a citizen who has already been through a full-fledged criminal prosecution and is literally sitting in an actual brick-and-mortar prison for a term of many years, and is facing potential loss of Talossan citizenship on top of that, and the question is whether they should go through a simple administrative process or a criminal trial (where guilt is essentially presumed anyways) before losing Talossan citizenship. I’m focused on situations where a citizen thinks he or she is abiding by the law to the best of his or her ability and the question is whether they should be put through a trial and risk losing their citizenship at all. For your citizen, the additional process and consequence they’re facing from Talossa is a drop in the ocean compared to the process and consequences that they have already faced and that we can’t do anything about. For my citizen, the threat of prosecution and loss of citizenship in Talossa is everything.

So no, I don’t think an administrative process that results in loss of Talossan citizenship is much of an incremental burden for the citizen who is already sitting in prison for 25 years after a trial with due process (and if they didn’t get due process, loss of Talossan citizenship is the least of their problems, and we can add safeguards to the process mitigate that risk) and conviction of a crime that was defined in advance by law (because they hopefully live in a jurisdiction that—unlike Talossa if this bill passes—believes in the principle of legality). On the other hand, I think putting a citizen in jeopardy of loss of Talossan citizenship for a “crime” that is not defined by any law and of which the citizen had no prior notice is kind of a big deal. And yes, the actual punishment may well be less than banishment, but that’s still on top of the prosecution itself, and starting from a baseline of zero (whereas with your citizen we’re talking about starting from a baseline of a macronational prosecution and several years of incarceration). 

So when it comes to A.3 we’re talking about cases where the choice is between a lengthy prison term and loss of Talossan citizenship or just a lengthy prison term, whereas when it comes to the repeal of the criminal code we’re talking about cases where the choice is between prosecution and no prosecution. That can mean prosecution where there ought to be no prosecution (because prosecutors are encouraged to prosecute offenses that would not have been enacted by the legislature) or no prosecution where there ought to be prosecution (if the Cort declines the invitation to create a criminal common law under the 7th Covenant). So you’ll really be rolling the dice between anarchy and arbitrary prosecution. And it’s unnecessary if you’re really concerned primarily about non-Talossan crimes. You could enact something like A.3 without repealing the existing criminal code for Talossan crimes, so I think this bill is throwing the baby out with the bath water.

Conversely, if your fear is rogue prosecutions, not rogue convictions, might I suggest that limits on prosecutorial power would be the answer? I suggested elsewhere a "grand jury", but no-one bit on that one.

Yes, I think the principle of legality is a great limit on prosecutorial power: have crimes and their elements defined up front, so if prosecutors try to charge someone with something that isn’t even a crime there can be a procedure to have the charges quickly dismissed as legally insufficient. And that also makes it easier to identify cases of malicious prosecution and sanction prosecutors who bring frivolous charges. A grand jury is a fine idea in principle, but it would be a lot more practical if we had a much larger active population. Any solution that requires multiple additional bodies means taking away from anything else we would like to see get done in Talossa (legal reform projects, language stuff, other cultural endeavours, etc.).

Let's go back to why we are doing this. It is not just because it is unseemly to have written another jurisdiction's laws wholesale into our own. It is because one of our own citizens is doing time for statutory rape, and that section of the law did not give Talossa's State or courts any options to disassociate ourselves from this charater and his crimes. I don't see how your suggested amendments (reasonable on the surface) would do so; mine would.

Why we’re doing what, specifically? How does a general repeal of the criminal code achieve the purpose you’re talking about? Why not leave the criminal code in place for Talossan crimes and separately enact a mechanism (whether a new crime or something else) to deal with the issue of non-Talossan crimes that you’re talking about? I don’t see how one is necessary, or even helpful, for accomplishing the other.

I think we’ve been talking past each other to an extent. I think the primary purpose of Talossan criminal law should be to address Talossan crimes: crimes committed in Talossa, or against Talossans, or against the Talossan state. If a Talossan citizen is also a Texan and assaults someone in Texas, Texas will deal with it (and is best suited to). If a Talossan counterfeits Talossan coins or stamps, or commits perjury in a Talossan forum, or tries to bribe a Talossan official, or engages in online harassment of another citizen (which we had a prosecution for back in ‘06), only Talossa is likely to care (or at least to care nearly as much as we do). Why repeal our existing laws criminalizing forgery, perjury, bribery, and online harassment in order to deal with that Texan crime that can be handled with a separate law? My suggestions are aimed at making better Talossan law for Talossan crimes. How to respond to non-Talossan crimes committed by Talossans should be a separate issue.

[Miestră Schivă, UrN]

It seems that you’re focused on situations where a citizen who has already been through a full-fledged criminal prosecution and is literally sitting in an actual brick-and-mortar prison for a term of many years

Yes, because those are the only situations in which Section A3 applies.

convicted in another jurisdiction, by a credible judicial authority, of an offence incurring penal servitude which is repugnant to the values expressed in the Covenant of Rights and Freedoms

.

... oh, I get it. You think that the sections A1-2 will entitle prosecutors to just "make up" crimes to take people to Court for. That's a very novel interpretation which I would never have thought of. My intention was to codify (there's that word the Regent loves) the principle of stare decisis and the basis of Talossan common law - not to invent any new crimes apart from "repugnant behaviour bringing Talossa into disrepute".

Sections A1-2 are meant only to clarify that Talossa is a common law jurisdiction and that the Covenants are at the base of our jurisprudence - which is the status quo. If you want those removed, please answer quickly: should Talossa be a civil law jurisidiction, where the courts cannot rule at all where statute law is silent? If not, what should be the basis of our common law?

I think we've wasted a lot of time due to mutual misunderstanding.

[Miestră Schivă, UrN]

If a Talossan counterfeits Talossan coins or stamps, or commits perjury in a Talossan forum, or tries to bribe a Talossan official, or engages in online harassment of another citizen (which we had a prosecution for back in ‘06), only Talossa is likely to care (or at least to care nearly as much as we do). Why repeal our existing laws criminalizing forgery, perjury, bribery, and online harassment in order to deal with that Texan crime that can be handled with a separate law? My suggestions are aimed at making better Talossan law for Talossan crimes. How to respond to non-Talossan crimes committed by Talossans should be a separate issue.

Because I had no idea - until you told me - that these sections of the Wisconsin Code had anything to do with "harassment, perjury, bribery or counterfeiting" - and no way of knowing apart from making a guess and doing a Google search. This is hilarious, because the Regent is complaining about "people not knowing what's against the law", where the status quo is you have to look up the laws of a completely different country right now to know what's against the law in Talossa, and you don't mind that, because you're used to finding out such information. I'm not. No-one else is (except perhaps other lawyers).

But you never would have budged if I were not forcing the issue right now, so there you go. Please, write your recodifications of all those things you think are necessary to Talossa, that only you and perhaps a small minority of others knew what was in there, because ordinary people can't look them up. Hopper them and I'll co-sponsor them into the next Cosa.

[Baron Alexandreu Davinescu]

...you didn't look up what you were repealing?  Or ask someone?

[C. M. Siervicül]

Yes, because those are the only situations in which Section A3 applies.

Right, so why does the rest of the bill say what it does?

... oh, I get it. You think that the sections A1-2 will entitle prosecutors to just "make up" crimes to take people to Court for. That's a very novel interpretation which I would never have thought of.

Well, that’s what I’ve been saying all along. In my initial comment on the bill I tried to set aside A.3 and focus on the problems created by repealing the existing criminal code (which seems unnecessary to the purpose of A.3).

If you want those removed, please answer quickly: should Talossa be a civil law jurisidiction, where the courts cannot rule at all where statute law is silent? If not, what should be the basis of our common law?

Really, what we see today are mostly hybrid systems to one degree or another. Sir Alexandreu mentioned “interstitial common law” in a previous post, and that’s where I think the common law is strongest. Filling in the gaps, addressing procedural issues, providing precedent about how codified law should be interpreted. But I think the basic elements of crimes and their penalties should be codified in statute. As I mentioned earlier, most common law jurisdictions have either abrogated common law crimes or “frozen” them so that new ones cannot be created by the courts.

[C. M. Siervicül]

Because I had no idea - until you told me - that these sections of the Wisconsin Code had anything to do with "harassment, perjury, bribery or counterfeiting" - and no way of knowing apart from making a guess and doing a Google search. This is hilarious, because the Regent is complaining about "people not knowing what's against the law", where the status quo is you have to look up the laws of a completely different country right now to know what's against the law in Talossa, and you don't mind that, because you're used to finding out such information. I'm not. No-one else is (except perhaps other lawyers).

At least there is something to look up, which is explicitly identified in the law. It can be improved (and I’ve made specific suggestions how to do do), but it’s still better than not even have anything to look up for those who are motivated to do so.

[Miestră Schivă, UrN]

Really, what we see today are mostly hybrid systems to one degree or another. Sir Alexandreu mentioned “interstitial common law” in a previous post, and that’s where I think the common law is strongest. Filling in the gaps, addressing procedural issues, providing precedent about how codified law should be interpreted. But I think the basic elements of crimes and their penalties should be codified in statute. As I mentioned earlier, most common law jurisdictions have either abrogated common law crimes or “frozen” them so that new ones cannot be created by the courts.

Okay. 1) No-one at all is suggesting inventing new common law Talossan crimes, only introducing one new statutory one, described in A3.

2) On what basis is our common law to be? We used to say Anglo-American precedent; we repealed that bit. We could bring it back if you wanted, but honestly I think lessening our reliance on The Big Neighbour's legal system is more patriotic. And I think our Covenant of Rights and Freedoms should play the role in our jurisprudence that the Bill of Rights does in the Big Neighbour's. This is ALL that A1-2 are designed to achieve.

I repeat again that you guys had two months to wake up and suggest amendments here. Our current system, where a Bill is Clarked with 5 days before voting and its opponents go "miéida sant, we didn't think you were serious! Please stop!" is ludicrous and leads to bad law.

...you didn't look up what you were repealing?  Or ask someone?

I never thought for a second there was "secret law" in Talossa that you had to "ask someone" to look up, so I suppose I had a failure of imagination, yes!  This kind of petty, condescending rudeness is exactly why people don't take your critiques seriously.