Regent's Address to the Ziu

[Baron Alexandreu Davinescu]

El Rexhaint sè Aireçù àl Ziu

Þonoreschti Membreux dal Cosa es Senators:

A bill has been proposed and presented for your consideration in the upcoming Clark entitled "The Talossan Law Repatriation (Crimes Repugnant to Talossanity) Bill," sponsored by our Most Honourable Seneschal, Dama Miestră Schivă.  I am here to object to this bill with my most strident opposition.  It addresses an important issue, establishing an entirely indigenous Talossan law.  But I urge you to reject the bill, and return to work on the problem with more thoughtful consideration.  This proposal is deeply flawed.

Much of the proposal is unobjectionable.  My concerns are centered on its third provision:

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.

My objections are manifold and serious.

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 be grateful for any questions that this body might have, or for the assistance of those who can find ways in which my reasoning is in error.  I repeat that I favor the overall goal being sought; my concerns are only with this particular approach, which is fatally flawed.  I urge you to reject it.  Discussion of the bill as it has evolved can be seen in this initial thread here and then in the Hopper here.

              —  Sir Alexandreu, Rexhaint d'Ian Regeu

[Miestră Schivă, UrN]

Hahahahaha, this is exactly the opposite of what your offsider Cresti said, which was that we needed something like that section, but he objected strenuously to the first two sections  ;D

[Baron Alexandreu Davinescu]

Hahahahaha, this is exactly the opposite of what your offsider Cresti said, which was that we needed something like that section, but he objected strenuously to the first two sections  ;D

Respectfully, I think you are confused, D:na Seneschal.  When I say that I object to the "third provision," I refer to the new A.3 being proposed in the second part of this law.  Maybe I should have been more clear with my phrasing, but I thought context made my meaning apparent. When Sir Cresti said that he thought "section 3 of this bill is sorely needed," I think he was referring to the fairly unobjectionable third part of the bill, which states, "3. The sections of Title A of El Lexhatx shall be subsequently renumbered consecutively."  I believe this is clear if you read past his first sentence in that post.

Sir Cresti indeed aptly raises many of my same concerns:

If the idea is to replace the entirety of our current criminal code with prosecutions based directly on the Covenant of Rights and Freedoms, I don't see how that's a viable solution. I'm not aware of any other country that allows direct criminal prosecutions for violating similarly broad statements of constitutional principles as are contained in, say, the Sixth Covenant.  If such a broad criminal law were to be enacted in the United States, it would be struck down as a violation of due process, as the US Constitution's due process protections have been held to require that criminal offenses must be defined with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

I appreciate you taking the time to engage, but I believe you are mistaken.  Even if you were not, though, I don't think it would be a mark in the bill's favor if there were another set of serious problems.

[C. M. Siervicül]

Hahahahaha, this is exactly the opposite of what your offsider Cresti said, which was that we needed something like that section, but he objected strenuously to the first two sections  ;D

Well, we are different people with independent thoughts. :)

Respectfully, I think you are confused, D:na Seneschal.  When I say that I object to the "third provision," I refer to the new A.3 being proposed in the second part of this law.

Actually, Dame Miestra was correct, at least with respect to the part of the Bill I was talking about. Of course, when I said "something along the lines of section 3," I didn't mean "section 3 exactly." What I see as the essential point of the proposed new A.3 is a way to address people who commit heinous crimes outside of Talossa that are not prosecutable within Talossa, an issue for which our current laws make no provision. That's an entirely different focus from the rest of the bill, which throws out our current criminal code and effectively replaces it with nothing. I do think we need a way to respond to problems like former citizen Canun.

If we have a citizen who turns out to be a child molester or human trafficker or mass shooter or something, we should have a way to keep them from dragging the whole country down if word of their association with Talossa were to get out. I do think any such provision should be more narrowly targeted and have more safeguards than the proposed A.3, and may very well require an OrgLaw amendment (and possibly even an amendment to the Covenants).

[Baron Alexandreu Davinescu]

Hahahahaha, this is exactly the opposite of what your offsider Cresti said, which was that we needed something like that section, but he objected strenuously to the first two sections  ;D

Well, we are different people with independent thoughts. :)

Respectfully, I think you are confused, D:na Seneschal.  When I say that I object to the "third provision," I refer to the new A.3 being proposed in the second part of this law.

Actually, Dame Miestra was correct, at least with respect to the part of the Bill I was talking about. Of course, when I said "something along the lines of section 3," I didn't mean "section 3 exactly." What I see as the essential point of the proposed new A.3 is a way to address people who commit heinous crimes outside of Talossa that are not prosecutable within Talossa, an issue for which our current laws make no provision. That's an entirely different focus from the rest of the bill, which throws out our current criminal code and effectively replaces it with nothing. I do think we need a way to respond to problems like former citizen Canun.

If we have a citizen who turns out to be a child molester or human trafficker or mass shooter or something, we should have a way to keep them from dragging the whole country down if word of their association with Talossa were to get out. I do think any such provision should be more narrowly targeted and have more safeguards than the proposed A.3, and may very well require an OrgLaw amendment (and possibly even an amendment to the Covenants).

As far as I can tell, you don't like eliminating the current criminal code stuff and replacing it with vague and contradictory principles left to the whim of the legal system, and I have the same concerns.  I guess our objections are different in the sense that you focused on the elimination and I focused on the replacement, but I have to admit I don't understand this particular semantic focus.

[C. M. Siervicül]

As far as I can tell, you don't like eliminating the current criminal code stuff and replacing it with vague and contradictory principles left to the whim of the legal system, and I have the same concerns.  I guess our objections are different in the sense that you focused on the elimination and I focused on the replacement, but I have to admit I don't understand this particular semantic focus.

I'm just trying to explain what I meant when I said we need "something along the lines of" the proposed A.3. Our criminal code only addresses crimes over which Talossa has jurisdiction. This bill does what I see as two very different things: it scraps the laws that define Talossan crimes, and also makes provision for dealing with citizens who have committed non-Talossan crimes. I agree that the second objective is a legitimate issue that we should address in some way, though I do take exception to the specifics of the proposal.

[Miestră Schivă, UrN]

I agree that the second objective is a legitimate issue that we should address in some way, though I do take exception to the specifics of the proposal.

If the esteemed MC (or any other MZ) were to provide an alternative text that would do the same job while not offending his jurisprudential sensitivities, I would happily substitute that text in the interests of Cosa unanimity; splitting up the bill between its 2 objectives might also be an option. Of course, the right time to do this would have been months ago when I first proposed this measure; but better late than never.  Failing that, we're Clarking this and seeing where the votes lie.

Parenthetically, the reason we get so much bad law is that there is no incentive to offer timely, constructive counter-proposals to things we don't like; given how Talossa runs, saying things like "we need more debate" and other delaying tactics in the hope that the proponent just gives up/forgets about it is strikingly effective, if you support the status quo, and if your opponent doesn't have the political will just to build a majority despite you.  I'm reminded of the removal of hereditary monarchy - we would have NEVER got anywhere if we'd had to decide what the alternative was in advance.

[Baron Alexandreu Davinescu]

D:na Seneschal, a question: would this bill make euthanasia illegal for some Talossans?

[Eðo Grischun]

No, because euthanasia is protected under Cov.8 therefore is not "repugnant to the values expressed in the Covenant of Rights and Freedoms".

[Baron Alexandreu Davinescu]

No, because euthanasia is protected under Cov.8 therefore is not "repugnant to the values expressed in the Covenant of Rights and Freedoms".

I'd really hoped for the Seneschal's thoughts on her intentions here with her bill, but thank you. I also appreciate and am grateful for your perspective.

The Sixth Covenant does say, however, that "no right herein enumerated ... shall extend to anyone engaged in activities which injure, endanger, risk or compromise the physical health, privacy, or tranquility of other persons."  This seems to pretty clearly state that it supersedes all the other Covenants.  And since euthanasia is literally compromising the physical health of someone else, it would seem like it would be illegal.  But maybe it's just unclear and we don't really know the answer?  I don't even know how you'd begin to decide this one if it wound up in cort.

I wonder whether or not tax evasion would be against the law, should this bill pass?  That also seems unclear to me.

[Miestră Schivă, UrN]

So now the argument comes from the Regent that the Covenants of Rights and Freedoms themselves are contradictory, and he thinks he could make a good case that the rights in the Eighth Covenant are abrogated by the Sixth Covenant (by his argument, the 6th Covenant would also ban abortion). And yet, this is a fundamental document of Talossan law which is actually harder to amend than the rest of the OrgLaw. And the Regent didn't care if parts of it contradicted the other parts before now, because... it was just for show, so it didn't matter? A highly unpatriotic position.

The thing is I answered all these sophistries ages ago, but the final answer is: we have an Uppermost Cort for a reason. The tradition of common law, of which Talossa is a part, states that courts make law where statute law is silent. We have 4 perfectly qualified UC justices and we put them through an arduous confirmation for a reason, and that reason is to make sure they can be trusted with that power.

To be precise, if a Talossan is busted for tax evasion, and someone makes a complaint under this law suggesting they should also be punished for Talossan law for it, I trust Dame Litz and her colleagues, cxhns. Marcianüs, Perþonest and Edwards to make a good decision. And let's face it, those guys are strenously underemployed. I remember an argument made that a figurehead monarchy would never work in Talossa because who would want a boring do-nothing job. And yet some people seem so terrified of judicial activism that they want to make the CpI exactly that.

Sir Cresti is correct that even being prosecuted would be a bad thing; which is why I amended my previous bill which would have allowed prosecutions even without a conviction in another jurisdiction's court. (That really would have been going too far.) But - as the A-Xh is currently absent - I'd like to ask a ranking lawyer from the Government. @Cresti, if you were A-Xh and a Talossan was put in jail for Al Capone-ing the US Feds, would you think that was a crime that needed to be punished in Talossa too?

OH BUT WHAT IF THE ZIU AND THE MONARCHY GO MAD AND APPOINT EVIL HANGING JUDGES TO THE UC, etc. The only answer to that is: what if camels learn to fly and drop miéidă down our chimneys. The purpose of such terrifying hypotheticals is always to make sure nothing happens, and Talossa is about activity.

[Baron Alexandreu Davinescu]

So now the argument comes from the Regent that the Covenants of Rights and Freedoms themselves are contradictory, and he thinks he could make a good case that the rights in the Eighth Covenant are abrogated by the Sixth Covenant (by his argument, the 6th Covenant would also ban abortion). And yet, this is a fundamental document of Talossan law which is actually harder to amend than the rest of the OrgLaw. And the Regent didn't care if parts of it contradicted the other parts before now, because... it was just for show, so it didn't matter? A highly unpatriotic position.

The conflict arises when you attempt to declare that the Covenants contain all necessary principles by which we can declare crimes.  No institution in Talossa can is capable of criminalizing or unduly taxing something like euthanasia.  That prohibition can exist perfectly well alongside the Sixth Covenant.

To put it another way, imagine that there's two rules in a workplace:
1. Supervisors may not hurt employees.
2. Employees must be vaccinated in a timely fashion to keep their jobs.

There's no contradiction, obviously, even though it's painful to get a vaccination.  But if a supervisor declared that they insisted that they would be administering the vaccines from now on, then there's an immediate conflict!

The problem, in other words, comes from trying to awkwardly misinterpret existing rules in an unintended way because it seems like an attractive shortcut.

The thing is I answered all these sophistries ages ago, but the final answer is: we have an Uppermost Cort for a reason. The tradition of common law, of which Talossa is a part, states that courts make law where statute law is silent. We have 4 perfectly qualified UC justices and we put them through an arduous confirmation for a reason, and that reason is to make sure they can be trusted with that power.

To be precise, if a Talossan is busted for tax evasion, and someone makes a complaint under this law suggesting they should also be punished for Talossan law for it, I trust Dame Litz and her colleagues, cxhns. Marcianüs, Perþonest and Edwards to make a good decision. And let's face it, those guys are strenously underemployed. I remember an argument made that a figurehead monarchy would never work in Talossa because who would want a boring do-nothing job. And yet some people seem so terrified of judicial activism that they want to make the CpI exactly that.

Thank you!  You are exactly right!  Is tax evasion a crime?  Well, that depends on what the judges decide!  I appreciate your forthrightness.

This is one of my central issues with the bill. I am glad that it is not under dispute at all any more, and we can continue this discussion discussing that central principle under dispute rather than whether or not it's true about the bill.

So then, this bill would establish that any action for which you are convicted in any court anywhere could be a crime under Talossan law, depending on whether or not the legal system decides it is a crime for you that day. To me, this is one of the fatal flaws of the bill. Citizens should know what is a crime and what is not a crime in their country ahead of time; they shouldn't have to wait until later to find out.

[Miestră Schivă, UrN]

I honestly think that - if we are to have a CpI which is excluded from many roles of administrative, executive or legislative significance in our State - we should at least make their judicial role slightly more significant and interesting. Otherwise we're encouraging people to get bored and drift away. A "rebalancing" of the branches of government, if you will. (Given that any overstep may be corrected via statute - I certainly don't want to revise the very old English decision that common law cannot override statute law!)

I think it necessary to emphasise also that I envisage "Talossan common law" to reflect the mores of our community, which it would be burdensome and otiose to codify. We have precedent as to what happens when a judge makes a decision very at odds with community standards - the "Guy Incognito" case, where it led to a judge resigning. What we don't have predecent for is the kind of "rogue prosecutions" which the Regent and Sir Cresti both fear. Not even KR1 tried to do that (although he tried a Bill of Attainder, which would have been worse).

I must repeat: an indigenous codified law such as Sir Cresti suggests would also be a good suggestion, as would, frankly, deleting the whole mess since no-one really expects the Talossan State to punish murderers and rapists (we couldn't even punish a child molester). All I can say about my solution is that it's been pretty thoroughly discussed, with input from legal experts, and is now ready for a vote. And I must stress that it requires, at the bare minimum, a sentence of incarceration in a credible outside court, which is a pretty significant threshold.

[Baron Alexandreu Davinescu]

I honestly think that - if we are to have a CpI which is excluded from many roles of administrative, executive or legislative significance in our State - we should at least make their judicial role slightly more significant and interesting. Otherwise we're encouraging people to get bored and drift away. A "rebalancing" of the branches of government, if you will. (Given that any overstep may be corrected via statute - I certainly don't want to revise the very old English decision that common law cannot override statute law!)

I concur.  I think they should start with writing and administering a bar exam, for one.  If you want to spur this on, I'd be supportive of a bill which required them to do so or else face expulsion from the cort.  That's a different objective, though, and maybe a tangential aspect to this?

I think it necessary to emphasise also that I envisage "Talossan common law" to reflect the mores of our community, which it would be burdensome and otiose to codify. We have precedent as to what happens when a judge makes a decision very at odds with community standards - the "Guy Incognito" case, where it led to a judge resigning. What we don't have predecent for is the kind of "rogue prosecutions" which the Regent and Sir Cresti both fear. Not even KR1 tried to do that (although he tried a Bill of Attainder, which would have been worse).

Correct, the current law codifies what is a crime and what is not.  It does so very imperfectly, since it relies mostly on the laws of a foreign state in matters not directly affecting us, but it's been a useful kludge.  I support eliminating it and replacing it with something that gets the job done, just not this approach.  I have some ideas, which I have already stated, but I'm also open to anything else that might work.

I must repeat: an indigenous codified law such as Sir Cresti suggests would also be a good suggestion, as would, frankly, deleting the whole mess since no-one really expects the Talossan State to punish murderers and rapists (we couldn't even punish a child molester). All I can say about my solution is that it's been pretty thoroughly discussed, with input from legal experts, and is now ready for a vote. And I must stress that it requires, at the bare minimum, a sentence of incarceration in a credible outside court, which is a pretty significant threshold.

I think we still agree that we need to be able to boot murderers, so to speak.  But your solution here just presents serious problems.  I know Sir Cresti has his own primary concerns, but the idea of a democratic state where citizens have to wonder what might be a crime is deeply problematic!

You have previously stated you intend to just try to push this through, and you might well succeed since your name is on it.  But at this point, it also seems like you're rethinking the matter and the implicit dangers.  Can we table this bill for the moment, and return to discussing what needs to be accomplished and what principles are important here?

I think we can agree on some of them:
- Citizens need the protection of due process, so nothing automatic (after all, not every justice system is fair or free).
- Citizens need to know what is a crime and what is not.
- Talossan law should be Talossan whenever possible.
- Writing a comprehensive criminal code is probably way too much work considering how rarely we'd use it.
- We need some way to kick out murderers.

Is all of that fair enough?

[Miestră Schivă, UrN]

Sir, the bill has already been Clarked. I've been discussing this in the Hopper for a couple of months, you and others have given significant and useful input already which led to amendments, and this is the very last chance to Clark a bill in this Cosa. My party has had "remove and replace Wisconsin law from El Lex" on our platform for years now.

I've explained in the past my annoyance at the way in which you repeatedly call for "more discussion" just to stop a decision altogether until you, personally, are happy with it (re: the question of whether Dr Nordselva should have become a Community Jurist). Others also seem to think that if they express displeasure with a law, that should be enough to take it off the table. But right now we make law by a majority with checks and balances, and not a consensus.