The Talossan Law Repatriation (Crimes Repugnant to Talossanity) Bill

[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-GC]

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-GC]

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-GC]

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-GC]

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-GC]

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!  ;D This kind of petty, condescending rudeness is exactly why people don't take your critiques seriously.

[Baron Alexandreu Davinescu]

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 posted a first draft of this bill on February 10th.  I pointed out huge problems on February 13th, and you said nothing for a very long time.  Then more than a month later, on March 17th -- again, that's only two weeks ago! -- you posted the new draft.  Within the week, you received detailed feedback on these specific problems.  That discussion continued in good faith and in detail right up until March 24th, at which point you Clarked the bill.

Perhaps you are thinking of some other bill?  Since you're not describing what you did with this one.  There was no way for anyone to know that you'd just abandoned your first draft after the February exchange -- you never said, "I do see the problem here, so let's fix it."  You just stopped replying and said nothing for a month.  I am not a mind reader.

I also had no way to know that you never looked up the laws you were repealing.  It never would have occurred to me to ask if you'd done that, since such a question would seem very insulting for me to ask.  I certainly would have helped you find them if I had known.  I usually just google "Wisconsin statutes," which is an easy way to get there for me.

I hope that the Ziu sees these manifold problems and more time can be taken to fix this.  You have Clarked numerous bills this term and I'm not sure a single one has lost even one vote from your party, however, so that seems unlikely.

[Miestră Schivă, UrN-GC]

Well, quite often with you the best way to end a discussion that's going nowhere is just to cease replying, because you always have to have the last word, lol

[Þon Txoteu É. Davinescu, O.SPM]

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 posted a first draft of this bill on February 10th.  I pointed out huge problems on February 13th, and you said nothing for a very long time.  Then more than a month later, on March 17th -- again, that's only two weeks ago! -- you posted the new draft.  Within the week, you received detailed feedback on these specific problems.  That discussion continued in good faith and in detail right up until March 24th, at which point you Clarked the bill.

Perhaps you are thinking of some other bill?  Since you're not describing what you did with this one.  There was no way for anyone to know that you'd just abandoned your first draft after the February exchange -- you never said, "I do see the problem here, so let's fix it."  You just stopped replying and said nothing for a month.  I am not a mind reader.

I also had no way to know that you never looked up the laws you were repealing.  It never would have occurred to me to ask if you'd done that, since such a question would seem very insulting for me to ask.  I certainly would have helped you find them if I had known.  I usually just google "Wisconsin statutes," which is an easy way to get there for me.

I hope that the Ziu sees these manifold problems and more time can be taken to fix this.  You have Clarked numerous bills this term and I'm not sure a single one has lost even one vote from your party, however, so that seems unlikely.

You do understand that the Ziu seeks counsel, not because we have to... but because we chose to. The legislative body of this Kingdom is a separate entity... not part of the Sovereign's day to day. We heard your input... and while we do appreciate the Regent's desire to be a bit more involved (WAY more than John has in a while)... you also need to learn to stay in the lane of the office you hold. We as a legislative body spend far too much time arguing with the Sovereign/Regent over freaking nonsense. The duties of the Government are handled by the Ziu... not by you... and we will be a better nation when that is clearly understood.

[Tierçéu Rôibeardescù]

I would say that I think the clerking of this bill without the improvements that were pointed out when originally posted is not in the spirit of what the hopper is for. Its intended for legislation to be discussed and improved for the betterment of our nation. If that improvement does happen I believe that my fellow members are within their right to be angry about it.

[Miestră Schivă, UrN-GC]

On the question of codified vs. statute law. I was talking the other day with various Talossans about our legal definition of treason - never mind why - and my legal search came to the shocking conclusion that, while the Organic Law makes provision for treason, it is nowhere defined in our law except El Lexhatx A.20.5, which applies that term to... bogus "official Talossan websites".  There is nothing in codified Talossan law which criminalises attempting to overthrow the State.

The point of this observation is that you'd have to work a long long time to create Talossan statute law which perfectly covers all our needs. I support the "common law" approach of giving discretion to judges to cover the gaps, although statute law should replace it at our earliest convenience.

I should also point out that the last time Patrick Woolley spoke to me, it was to express his enthusiasm about... bringing back the common-law felonies. So, yeah.

[Baron Alexandreu Davinescu]

Directing judges to invent crimes as needed is easier than legislating, but it seems unwise and unethical.  A citizen of a country should be able to know what is a crime and what is not.

[Ián Tamorán S.H.]

Treason is an offence against the state itself ("high treason") and not internal violent dissent ("petty treason").  Most nations have dropped the concept of "petty treason" and use "treason" to mean "high treason" - which is what, I presume, we do (and shall do) here in Talossa. For that particular Crime Repugnant to Talossanity I think we have no need for the Justices to be involved in contentious deliberation: the answers to "Is this person trying to kill the monarch?" and "Is this person supporting external war against Talossa?" make the question "Is this (potentially) treason?" a clear one.

[Miestră Schivă, UrN-GC]

It is my intention to resubmit this bill to the First (real) Clark of the 56th Cosa. Note that under Organic Law VII.11, it will not be subject to royal veto.

However, I will happily withdraw it before then in favour of any other bill which accomplishes both of the below:

(a) removes Wisconsin law from El Lexhatx;
(b) takes into account the objections made by the King in his veto decision, and Sir Cresti and everyone's favourite Baron in the thread above;

and is able to get a majority and avoid another Royal veto. Removing Wisconsin law is that much of a priority for me. I will also note that I will totally support any bill which makes "harassment, perjury, bribery or counterfeiting" crimes under indigenous Talossan law as a companion to this.

[Glüc]

So basically, judges will now have full discretion to declare anything they dislike enough a crime as long as they can find some justification in the sixth amendment (which should be easy enough for most things)?

OH NO!

Edit: Ok, this was based on the bill at the top of thread. Apologies

[Glüc]

And then of course, the blame of any future negative consquences rests not on people voting for a bad bill but on the people warning for these consquences not putting in hours of work to write a better one.

Yay, politics...