Pre-Trial Ejections

[SillyString]

While going through old court records recently, I came across this ruling. While it was issued prior to the 2012 constitutional rework, the text of at least two of the related documents has not changed and I am concerned by the continuing presence in the Legal Code of clauses previously declared unconstitutional.

These are clauses that have always been troublesome, as their wording is unclear and muddled. So I would like to propose the following changes:

Section 3.3: Criminal Trial Procedure
8. A standard procedure for all criminal trials will be established by majority agreement of the Court.
9. The Delegate may eject and/or ban a nation from the region pending criminal charges, or prior to the conclusion of a criminal trial, when that nation poses a clear threat and their removal is necessary for the protection of the region.
10. The Delegate must seek the approval of the Court for any such ejection or ban. Where possible, this approval must be sought prior to the nation's removal from the region. Otherwise, it must be sought within one day of the action.
11. If the ejection or ban is performed during a criminal trial against that nation, approval will be at the discretion of the justice moderating the trial. Otherwise, any single justice may approve or deny the Delegate's request.
12. Any nation ejected or banned under this section may file an appeal of the decision. These appeals may not be denied, and must be decided by the full court.
13. The Delegate must immediately provide any nation ejected or banned under this section with a link to the Courtroom and inform them of their right to file an appeal.

I believe that these changes better protect the rights of individual nations, clarify procedure, and helpfully stay away from rigidly dictating Court timelines.

Thoughts or suggestions?

Spoiler: Original version

Section 3.3: Criminal Trial Procedure
8. When seeking an indictment to eject or ban, or expel from the RA due to oath violation, pending a trial, the Government must inform all the Justices.
9. Any Justice may approve or deny an indictment, and their decision will be final.
10. Once an ejection is performed, the Government must notify the ejected nation of their rights within one hour, and publicly submit a criminal proceeding to the court within six hours.
11. Once a criminal proceeding is presented, the defendant will have 48 hours to enter a plea, or a plea of "Not Guilty" may be entered for them.
12. Once a plea is entered, a period of time set by the Court for the discovery of evidence and witness testimony will begin. This period is normally 7 days.
13. Once discovery ends a period of time for arguments on the evidence and law will begin, its duration set by the Court. This period is normally 5 days.
14. During discovery and arguments, either side may make objections or requests publicly on the forum.
15. Once arguments end, the Court will have 72 hours to decide on a verdict and, if necessary, sentence.

 

[PaulWallLibertarian42]

When I first read this it reminded me of the secret NSA courts IRL. Where the President feels someone is a security risk and the courts say "ok" and then they are drone striked without due process or being charged with a crime and having a trial. My avatar is Rand Paul and he famously fillabustered against these extra judical drone strikes....so I guess its fitting I draw this parallel to extra judical drone strikes and extra judical banjections.

I don't know how this would translate to game play. Certainly on the forum if someone poses a risk to the forum A. Admins can take action and B. There could be a mask made to restrict their forum activity in essence remanding them to govt custody for remainder of a trial.

Obv on the GCR side there is no way for a delegate to restrict someones gameside regional activty out side of rmb supression or eject/bannings. So this is probably a moot point. I understand if someone poses a risk to the region. I think this is worth discussing. But I am leary of the delegate and court getting together and agreeing someone to be banjected without offered due process or to stand trial for their crimes first. *shrug*

 

[SillyString]

But I am leary of the delegate and court getting together and agreeing someone to be banjected without offered due process or to stand trial for their crimes first. *shrug*

There are a few things in this draft that mitigate that concern.

Firstly, this law would apply only in cases of a direct threat - for example, if the Vice Delegate were to begin endoswapping in an attempt to take the delegacy, or if a nation were to begin sending telegrams purporting to be from the government of TNP and lying to residents that the delegate had gone rogue, or if a nation in TNP were to begin sending recruitment telegrams through regions allied with TNP. In these types of cases, ejection is necessary - for the first, a ban through the next update removes the endorsement threat; for the second, alarming and agitating residents threatens to destabilize the delegate's endorsement count; for the third, allowing the nation to continue to reside in the region would greatly inflame our allies and risk mass retaliation.

Secondly, this law only applies pending a criminal trial, or prior to the conclusion of an existing one. That is, a ban under this section can only be sought if there are already charges against a nation or if the charges are imminent. So this is not divorced from a trial proceeding, and cannot be used generically to remove someone the delegate simply doesn't like.

Thirdly, this new draft provides much greater protections for nations who have been removed. The existing version explicitly removes the right of nations to appeal their pre-trial bans - it says that the decision of the single justice is "final". I believe this to be a blatant violation of the Bill of Rights, which states that any nation banned from the region may appeal that action to the full court.

It is inaccurate to call these bans extrajudicial, which implies that they are not a valid part of the legal process or are carried out with no judicial supervision. This is absolutely not the case here.

While I think it would be ideal to prohibit pre-trial ejections and bans entirely, to do so would be to ignore the very real security risk nations can pose while a trial drags on for days or weeks. Sometimes, it is imperative to act - this bill seeks to preserve that option, while restricting its ability to be abused and ensuring that nations affected have a chance to appeal.

 

[PaulWallLibertarian42]

I will have to look thru this when I have more time to hopefully present a coherent response. But from just skimming I dont know if I could disagree with your points but like I said ill have to read more carefully when time allows.

 

[Romanoffia]

Bad idea, especially since the proposed changes would tend to infringe on the function and purpose of the Security Council.

Ejecting a nation due to a pending criminal trial is a violation of the BOR in terms of the Right to Due Process. It is like passing sentence first and then repealing if a not-guilty verdict is reached. This would damage a nation's influence unjustly if such a nation was found not guilty.

Also, your bill is likely to be abused as a political tool whereby a nation could simply be charged with a crime, a trial date set, and that nation ejected from the region without any conviction having occurred first. That's like executing someone before the verdict and then trying to re-animate them after the fact. No, there is too much opportunity for abuse of such a law for political purposes.

Be aware, that if a nation is truly a security thread, trial pending or not, it is the Security Council that makes such decisions.

Therefore, your bill in unnecessary in the first place.

Constitutionally, and you should know this, the only time a nation can be ejected/banned is if they have been convicted of a crime worthy of that penalty, or the repeatedly violate endorsement gathering rules/levels.

In your proposed bill:

10. The Delegate must seek the approval of the Court for any such ejection or ban. Where possible, this approval must be sought prior to the nation's removal from the region. Otherwise, it must be sought within one day of the action.

This is clearly a usurpation of the the Authority of The Security Council, and an act of pre-emption which would be a violation of the BOR in terms Due Process. A nation can be repelled as an invader, or as a security threat in terms of deliberate endo-tarting violations as per the Security Council's authority. No nation can be ejected or banned under a presumption of being a 'security threat' when no actual threat exists. Such an action would be a summary trial and a drumhead trial at best in which a defendant must prove innocence rather than the prosecution prove guilt. You cannot deliver a verdict and then say, "Sorry, my bad!"

Other than legitimate actions by the Security Council in terms of a nation being a 'security threat' and clearly trying to violate endorsement levels, or as an act of invasion/war in which the nation is participating against this region, you cannot issue the sentence prior to a conviction under TNP Constitution. Hence, you bill, however well intended, is clearly a violation of the Constitution and too prone to be used as a political weapon.

 

[falapatorius]

This would damage a nation's influence unjustly if such a nation was found not guilty.

Perhaps that is the point. That gosh darned influence thingy just gets in the way.

Be aware, that if a nation is truly a security threat, trial pending or not, it is the Security Council that makes such decisions.
Therefore, your bill in unnecessary in the first place.

Agreed. I'm an advocate of change, but this proposal is an overstep imo.

 

[PaulWallLibertarian42]

Okay. I have another question. This would allow the delegate and the court to asses someones security riskiness? Where is the Security Councils involvement in this? Since ya know Security Risks I thought was their job and all?

 

[PaulWallLibertarian42]

Okay I have read this in detail. On the surface they appeared to be reasonable arguments however after futher study.

Firstly, this law would apply only in cases of a direct threat - for example, if the Vice Delegate were to begin endoswapping in an attempt to take the delegacy, or if a nation were to begin sending telegrams purporting to be from the government of TNP and lying to residents that the delegate had gone rogue, or if a nation in TNP were to begin sending recruitment telegrams through regions allied with TNP. In these types of cases, ejection is necessary - for the first, a ban through the next update removes the endorsement threat; for the second, alarming and agitating residents threatens to destabilize the delegate's endorsement count; for the third, allowing the nation to continue to reside in the region would greatly inflame our allies and risk mass retaliation.

...I agree any of those situations would not be desirable. However, instead of the Delegate and court agreeing to banject someone...isnt these scenerios the Security Councils responsibility? To seek out threats in the region. To stop a VD who is going rogue and tarting up - even if that means using the NPA and TNP allies to come in and support the legitiment delegate and the VD be impeached/recalled by the RA and be tried and convicted in court first?

All of these scenerios sound plausable -- but isnt there aready procedures in place to deal with them and allow for any accused to retain their fundamental right to due process to not be banjected until the court found them guilty and sentenced them to banjection. And even then does the accused not have an appeal process?

If this were to go thru then the Del and Court decides a banjection is in order and the Del does it without giving the accused the right to appeal first? Then what?

Secondly, this law only applies pending a criminal trial

This sounds an awful lot like shoot first; ask questions later.

Thirdly, this new draft provides much greater protections for nations who have been removed. The existing version explicitly removes the right of nations to appeal their pre-trial bans - it says that the decision of the single justice is "final". I believe this to be a blatant violation of the Bill of Rights, which states that any nation banned from the region may appeal that action to the full court.

I do like this part an appeals process is benefical to safeguard civil rights.

It is inaccurate to call these bans extrajudicial, which implies that they are not a valid part of the legal process or are carried out with no judicial supervision. This is absolutely not the case here.

Eh...tomatos(toe-matos)...tomatos(tah-mat-os).

It sounds extrajudical to me. And outside the scope of the court and the Delegate....didn't McM get into some hot water and legal briefs were filed when he ejected H&H without being tried first? And that trial didnt happen til mere months ago under AG Chasmanthe?

Also, if the Security Council monitors threats..I am sure they also monitor those closely who are standing trial through the court procedings to monitor and asses their riskiness?

Also after reading Romanoffia's rebuttal he does seem to raise some interresting points.

Due Process of law is a sacred thing. RL and I would assume the same in our Political Simulation It is an unalienable Flemingovian given right and we should be hesitant before giving away our due process lightly.

I would like to see someone not be banjected unless convicted at the conclusion of a trial by the court.

If exigent circumstances exist such as the H&H situation ...I am sure the Security Council would be equipped to deal with it.

 

[SillyString]

Ejecting a nation due to a pending criminal trial is a violation of the BOR in terms of the Right to Due Process. It is like passing sentence first and then repealing if a not-guilty verdict is reached. This would damage a nation's influence unjustly if such a nation was found not guilty.

I believe you have miscategorized both the existing law and my proposal. No nation can or will be ejected due to a pending trial.

Nations currently can be ejected prior to an indictment if the AG/Delegate wish to do so (for any reason!) as long as they can get the approval of a single justice. The Legal Code says that this decision is "final", thereby attempting to revoke any right to appeal such an ejection.

My proposal restricts this power to cases where the nation in question poses a clear security threat to the region, and explicitly requires the court to promptly hear appeals of the ejection or ban - such appeals are independent of the ongoing trial process. This is an expansion of the protections afforded to nations, and these protections do not currently exist.

Also, your bill is likely to be abused as a political tool whereby a nation could simply be charged with a crime, a trial date set, and that nation ejected from the region without any conviction having occurred first. That's like executing someone before the verdict and then trying to re-animate them after the fact. No, there is too much opportunity for abuse of such a law for political purposes.

What you have described is the current state of the law, not my draft.

Constitutionally, and you should know this, the only time a nation can be ejected/banned is if they have been convicted of a crime worthy of that penalty, or the repeatedly violate endorsement gathering rules/levels.

This is incorrect. If you read the current law - which I have spoilered in my original post - the Executive branch already has the power to seek the pre-trial banjection of any nation. I am seeking to limit that power and ensure nations are guaranteed their rights to appeal such actions.

This is clearly a usurpation of the the Authority of The Security Council, and an act of pre-emption which would be a violation of the BOR in terms Due Process. A nation can be repelled as an invader, or as a security threat in terms of deliberate endo-tarting violations as per the Security Council's authority. No nation can be ejected or banned under a presumption of being a 'security threat' when no actual threat exists. Such an action would be a summary trial and a drumhead trial at best in which a defendant must prove innocence rather than the prosecution prove guilt. You cannot deliver a verdict and then say, "Sorry, my bad!"

It is not a verdict or a sentence, it is a precaution, and one which exists under the current law. No guilt has been assumed - the Delegate could seek to ban the Vice Delegate from the region pending criminal charges for endoswapping, with the reasoning that the Vice Delegate has come too close to the Delegate's endorsement count, but that is not a determination of guilt in any way. Regardless of whether the VD is swapping or being maliciously endorsed by an outside party, the threat of a delegacy change exists. Current SC law allows for a ban for one update to remove the offender's endorsement count, but it is critical for the Delegate to be able to seek a ban of a longer duration in cases where they and the SC believe that a one-update removal is insufficient to clear the threat. This is allowed for under current law, and my draft emphasizes the security aspect while ensuring that the nation banned can appeal that decision.

Agreed. I'm an advocate of change, but this proposal is an overstep imo.

Can you elaborate how this bill, in contrast with the law as it currently stands, is an overstep?

This bill limits the power of the executive to remove nations from the region without a trial and a guilty verdict, and it protects those nations' rights to appeal. It is a reduction in power, not an increase.

Okay. I have another question. This would allow the delegate and the court to asses someones security riskiness? Where is the Security Councils involvement in this? Since ya know Security Risks I thought was their job and all?

This procedure is entirely independent of anything having to do with the Security Council - it is not the business of the Court how the Delegate comes to a determination of security risks, but it is expected that they will consult with the SC for recommendations and insights. When seeking an ejection or ban on any nation under this clause, the Delegate is naturally free to present as part of their argument for the ban's necessity any recommendation issued by the Security Council, and the Court is free to solicit the SC's input if it has any questions or needs clarification on any matter. This does not infringe on the SC's role as guardians of security - it seeks only to limit the power of the executive to remove nations from the region prior to the conclusion of a trial.

 

[SillyString]

However, instead of the Delegate and court agreeing to banject someone...isnt these scenerios the Security Councils responsibility? To seek out threats in the region. To stop a VD who is going rogue and tarting up - even if that means using the NPA and TNP allies to come in and support the legitiment delegate and the VD be impeached/recalled by the RA and be tried and convicted in court first?

Yes, it is the SC's responsibility to discover threats and consult with the delegate about how best to manage those threats. This proposal does not touch on that process, but seeks to limit the removal of nations from the region prior to the conclusion of a trial. It is because I recognize that there are legitimate security reasons for removal to sometimes be necessary that I am not banning the practice outright - I would very much like to. Instead, I am seeking to impose safeguards and limitations on what is already in existing law.

All of these scenerios sound plausable -- but isnt there aready procedures in place to deal with them and allow for any accused to retain their fundamental right to due process to not be banjected until the court found them guilty and sentenced them to banjection. And even then does the accused not have an appeal process?

Yes, there are procedures in place - the current procedure allows the executive to ask for a ban and a single justice to rule, and attempts to disallow any appeals ("this ruling is final" is a clear rejection of a nation's guaranteed right to judicial review of any ban).

Any reference to due process is a red herring - there is a process in place already, and there will be a process in place under my bill. Nations ejected under the current law or under my changes will not be denied access to that process, and my changes explicitly protect their right to file an appeal whereas the current law attempts to quash those rights.

If this were to go thru then the Del and Court decides a banjection is in order and the Del does it without giving the accused the right to appeal first? Then what?

Well, that would be the logical state of affairs - appeals can only be filed after the thing that is being appealed...

If you mean "What if charges are never brought against the nation", then the Court would have no difficulty overturning a previous ban - and charges could possibly be brought against the delegate for fraud.

If you mean "What if the nation is not informed of their right to appeal", then I am happy to add in a clause requiring that the Delegate inform the nation of that right - and if they fail to do so, again, they may be subject to criminal charges and the Court would overturn the applied ban.

This sounds an awful lot like shoot first; ask questions later.

It is more accurate to think of it as detention without bail. Yes, that is time an individual cannot get back, and yes, if they are found not guilty they have spent the last however long imprisoned for no ultimate reason - but there are absolutely legitimate reasons to hold people without bail pending the conclusion of their trial, just as there are absolutely legitimate reasons to remove somebody from the region pending that conclusion. And just as somebody cannot be indefinitely detained in the absence charges being filed against them, so too can no nation be banned or ejected without forthcoming criminal charges.

I do like this part an appeals process is benefical to safeguard civil rights.

It is not just beneficial, it is essential - and it is guaranteed by the Bill of Rights. This is my biggest complaint with the existing law, and the reason I proposed this draft. The current law rejects the right of a nation to appeal its ban. I therefore believe that the current version is blatantly unconstitutional and I would like to rectify that.

Eh...tomatos(toe-matos)...tomatos(tah-mat-os).

It's not tomato tomato, actually - it's quite important. "Extrajudicial" can mean two things: one, something which is outside the scope of the law, and two, something which is done without judicial oversight. Neither of these is true in this case. Pretrial bans are within the scope of the law (this law!), and fall under some level of judicial oversight. I am seeking to increase the level of oversight that is available.

And outside the scope of the court and the Delegate....didn't McM get into some hot water and legal briefs were filed when he ejected H&H without being tried first? And that trial didnt happen til mere months ago under AG Chasmanthe?

There are two issues with McM's actions - firstly, the ban was applied prior to seeking permission from the court, so it was not valid under this section. Secondly, because it was not a valid ban under this section, it fell under SC law - and H&H did not meet the legal requirements for a ban under that law either, as he was not sufficiently close to the delegate's endorsement count. The timeline for a trial under this section was also not followed; the criminal charges were posted long after six hours had passed, for example.

The problem with that action was not specifically the laws, but the fact that they were not followed.

Also, if the Security Council monitors threats..I am sure they also monitor those closely who are standing trial through the court procedings to monitor and asses their riskiness?

Yes, I am sure they do. But SC law is restrictive in who can be banned and for what reasons - it does not allow for the removal of a nation from the region "just because we think they're a threat". If the SC determines that somebody on trial is a pressing threat but they do not qualify as reckless endorsement gatherers, under my bill they will be able to encourage the delegate to seek approval for a ban while the trial plods along.

Due Process of law is a sacred thing. RL and I would assume the same in our Political Simulation It is an unalienable Flemingovian given right and we should be hesitant before giving away our due process lightly.

Again, due process is a red herring. The current law attempts to violate it - mine attempts to fix that.

I would like to see someone not be banjected unless convicted at the conclusion of a trial by the court.

Yes, that would be nice. I would like that too. But we cannot always get what we want, and there already exist plenty of situations where someone can be banjected outside of that situation. I am seeking to limit this one.

If exigent circumstances exist such as the H&H situation ...I am sure the Security Council would be equipped to deal with it.

H&H did not qualify for a ban under the laws governing the SC.

 

[falapatorius]

But SC law is restrictive in who can be banned and for what reasons - it does not allow for the removal of a nation from the region "just because we think they're a threat".

As it should be. The potential for abuse is sufficient reason to err on the side of caution.

Yes, it is the SC's responsibility to discover threats and consult with the delegate about how best to manage those threats. This proposal does not touch on that process, but seeks to limit the removal of nations from the region prior to the conclusion of a trial.

I think it does touch on the process. If I'm reading it correctly, limiting the removal of nations encroaches Delegate territory. While that isn't necessarily a bad thing, separation of powers should be maintained.

 

[SillyString]

But SC law is restrictive in who can be banned and for what reasons - it does not allow for the removal of a nation from the region "just because we think they're a threat".

As it should be. The potential for abuse is sufficient reason to err on the side of caution.

I agree. This does not change that - instead, it takes a separate issue (the delegate seeking to ban for any reason prior to a trial) and narrows its applicability (the delegate seeking to ban for legitimate regional security reasons prior to a trial).

This cannot be construed as a blanket widening of the power to remove nations from the region because it cannot be applied independent of a criminal trial. The SC cannot say "We think XYZ is a threat just because, get them out of here" and have that have any legitimacy. There must be criminal evidence and a case either forthcoming or ongoing, and the delegate must make their case to the court that the individual in question presents a genuine threat and it would be damaging to the region to not remove them immediately.

Again, the delegate already has this power. But the current version requires no justification be given for the removal, which allows for a much more biased and/or political application of the law.

I think it does touch on the process. If I'm reading it correctly, limiting the removal of nations encroaches Delegate territory. While that isn't necessarily a bad thing, separation of powers should be maintained.

It doesn't encroach on anything, actually. The current law already places the removal of nations prior to a trial (again, not independently of a trial) under the jurisdiction of the Court, by requiring its approval on requests to do so. This bill maintains that relationship, but clarifies that the reasoning for seeking a ban cannot be "They annoyed me" or "They voted for someone else in the last election" or "They disagreed with me about some policy". There must be a reason for seeking the ban, and that reason must be related to TNP's security.

I find this to be a rather similar piece of legislation to PWL's change to the VD's RA check - whereas previously there was no guidance given as to the nature of that check and the justifications for denials, the current law says that checks must be conducted with respect to regional security. So just like the VD cannot reject someone for petty reasons (or if they try, that rejection won't be upheld), the Delegate should not be able to ban a defendant for petty reasons.

 

[SillyString]

Note: I have tweaked the draft slightly for grammatical flow, and I have added the following clause:

13. The Delegate must immediately provide any nation ejected or banned under this section with a link to the Courtroom and inform them of their right to file an appeal.

 

[Elegarth]

As I mentioned somewhere else, I am not an expert on TNP laws, heh...

The proposal would allow for a nation to be expelled from the region if it is considered a threat to regional security, was long as there are imminent or already existing charges, in the spirit of ensuring the security of the region, while also allowing the accused nation to defend its cause on the court and have most of its rights intact (as he has already been forced to relocate). We are preemptively banning a person who may then be declared Not-Guilty and be allowed to come back... Am I getting this right?

Also, if I am reading this correctly, which I may not, we went from a writing that required the Justices to be aware and approve the ban, to one where the ban can occur prior to this...

10. The Delegate must seek the approval of the Court for any such ejection or ban. Where possible, this approval must be sought prior to the nation's removal from the region. Otherwise, it must be sought within one day of the action.

While I understand that none of the options prevent a ban from occurring prior to the trial, I do see some advantage to speeding up the banning... But it may clash with the desire to a fair treatment of the accused, as a Delegate may ban someone out of spite and THEN has a full day to seek for a working crime to charge the person with (not to say this WOULD happen, but it COULD happen)...

I am not certain about how this would translate into gameplay and actual scenarios, SS... Could you please expand a bit on it?

 

[SillyString]

The proposal would allow for a nation to be expelled from the region if it is considered a threat to regional security, was long as there are imminent or already existing charges, in the spirit of ensuring the security of the region, while also allowing the accused nation to defend its cause on the court and have most of its rights intact (as he has already been forced to relocate). We are preemptively banning a person who may then be declared Not-Guilty and be allowed to come back... Am I getting this right?

Essentially. It is already permitted under law to pre-emptively ban someone who may end up being found Not Guilty, so my goal is to restrict the circumstances where that can occur. I'm also taking out the option to remove someone from the RA prior to conviction, as that is needlessly punitive with no security benefits.

Also, if I am reading this correctly, which I may not, we went from a writing that required the Justices to be aware and approve the ban, to one where the ban can occur prior to this...

Sort of - the current version requires a single justice to be aware and approve, even if the other two justices disagree strongly. The new version will similarly leave the decision in the hands of one justice, but protects and promotes the right to appeal that decision - thus cutting out potential issues with a biased justice leaping in and circumventing the nation from getting a fair shake.

But you are correct, I am also building in some wiggle room in terms of timing. I believe this to be necessary given that severely time-sensitive issues can and do arise, and it is preferable that we have room in the law to accommodate them than that we allow the Delegate to break the law and simply look the other way.

While I understand that none of the options prevent a ban from occurring prior to the trial, I do see some advantage to speeding up the banning... But it may clash with the desire to a fair treatment of the accused, as a Delegate may ban someone out of spite and THEN has a full day to seek for a working crime to charge the person with (not to say this WOULD happen, but it COULD happen)...

Yes, it definitely could. But I think we generally elect good people as delegates, who by and large are not prone to abuse of power. If we were to elect someone who did try to act abusively, I believe that that would not be allowed to stand by either the court or the RA.

I am not certain about how this would translate into gameplay and actual scenarios, SS... Could you please expand a bit on it?[/quote]
Sure.

1) Suppose the Vice Delegate's endorsement count suddenly begins increasing. They protest their innocence and say they're working to reduce the count, but an anonymous WA nation approaches the Delegate with a telegram from the VD which shows that they're actively swapping. Under SC law, the VD is exempt from the reckless gathering law and cannot be banned for that reason. If there is an active justice around, the Delegate may be able to get approval prior to the ban, but if the count is close and update is imminent, or the Delegate won't be able to be online to protect the region when update strikes, their only recourse may be to ban immediately and then post an explanation/request in the Court.

That the VD may indeed be innocent - that the supposed campaign telegram may be fabricated by a group working to destabilize the region by using the VD unwittingly - doesn't negate the genuine security threat to the region. If the VD is innocent then them taking the delegacy is likely to be ultimately harmless and can be reversed easily, but if they are in fact guilty then them taking the delegacy is devastating. In this case, based on the legitimate basis of concern and the potential risks if the allegations are true mean that removal from the region is critical.

This is similar to what happened with H&H, where at the time he was banned he did not meet the numerical value for the SC's recklessness law (though he met all the other criteria), but the delegate was needing to get offline and was concerned that while offline, that count would increase dangerously. Current law makes no allowance for this kind of necessity.

2) Suppose we receive angry diplomatic communiques from representatives of Balder, TSP, TEP, Equilism, Europeia, Taijitu, IDU, and Stargate, demanding to know why we have mass-telegrammed their residents with recruitment messages and threatening to terminate treaties. Poor r3n proclaims his innocence, and receives the name of the nation responsible for the telegrams. It is a TNP resident, but not known to belong to any TNPer.

In this case, there is probably no immediacy that requires the delegate to ban before seeking approval. Recruitment TGs are limited to 1 per region per 30 days, so there is no risk that the person can continue to spam our allies (this would be different, though, if we received a different angry message a day and it became apparent that the person was slowly working their way through our allies - in this case, an immediate ban would directly mitigate the amount of harm they could do). However, a pre-trial ban (probably for fraud) is still important, as TNP would be seriously damaged by the loss of our allies and/or their goodwill. If we did not ban the nation responsible, it's entirely possible they would choose to recruit-bomb us in response. So this is a case where the delegate could go to the court and lay out the issue and the security concerns, and receive permission (or not receive it, potentially) before applying the ban, while the nation would be put on trial for fraud and potentially treason.

3) Suppose some RA member commits good, old-fashioned espionage. They leak NPA secrets to a foreign military organization. The delegate goes to the court, asking permission to ban pre-trial, because of this heinous thing the person did. The nation they want to ban is non-WA, not posting on the RMB, not sending unendo telegrams about the delegate, mostly just existing. In this case, the Court would likely reject the request, pointing out that there is no legitimate security concern that the ban would solve. If the deciding justice allowed it, the banned nation would be able to file an appeal to the full court, who would again likely overturn the ban on the grounds that it was nothing but petty.

As of now, the law tries to prevent the court from overturning any pre-trial ban, and provides no guidelines on when such a ban should be used. However, we have not seen it abused before - it was sought (after the fact) in the H&H case, but I do not believe it was sought in, for example, the Ravania case. Our government officials seem to have a good grasp of when it is appropriate to use and when it isn't, and I think they will be further aided by adding specific clarification in law.

 

[PaulWallLibertarian42]

Sort of - the current version requires a single justice to be aware and approve,

Would it be better to have the whole bench sign off on this?

Also would an AG get to have any say in this process especially since it addressed nations with impending criminal procedings against them. As the AG is the chief prosecutor in criminal procedings. I feel it would make since if the AG were also allowed to make a recomendation to the Court and Delegate and have their opinion weighted. So in theory if a Delegate, an AG, and the bench agreed a pre-trial ejection was warranted then having such a unified front would go a long way in securing public support for the action in the court of Public-TNP Opinion.

 

[SillyString]

I don't anticipate TNP opinion being an issue. People don't generally have a problem with the delegate banning security threats, even when that banning is technically illegal.

I don't think it would be better for the whole bench to sign off on the initial ban - speaking from my two terms as justice, it is frequently the case that at least one justice is busy with RL or otherwise unavailable/not checking in. Needing input from all three before coming to a decision would place an overly restrictive delay.

The AG is an official in the Executive branch, and while I anticipate the AG and Delegate communicating about any trial proceedings, their role is not one of a security nature and, unlike the delegate, they have no power to enforce any decision on those grounds.

Additionally, given that the AG's office has right of refusal with cases, it's not the case that the AG stating "I will not file any charges against this person" would be an impediment to a trial actually happening. If they did that, the Delegate would be free to find another person to act as prosecutor in that case. So them saying that they wouldn't press charges might weigh on the Court's decision about whether to approve the ban, it's not a blocker. And there's again nothing stopping the Delegate from consulting them first, and presenting their take to the Court, nor anything stopping the Court from requesting their input.

 

[Blue Wolf II]

Currently, the law allows for the Delegate to ban any nation who spams the RMB without a pending trial. The banned nation has the right to appeal, of course, but the initiation of the appeal is all on them.

I myself have used that law many times as Delegate/Acting Delegate/Vice Delegate. Would these changes conflict?

 

[SillyString]

Nope! Adspam is specifically regulated by delegate decree, and the punishment for it is summary ejection and/or banning - that is, it is the only crime which does not require a trial in order to be punished. So you're not doing that independent of a trial, but rather sidestepping one outright.

 

[falapatorius]

If you want to establish checks on the Delegate's ability to banject nations, then more power to you. But after reading this:

People don't generally have a problem with the delegate banning security threats, even when that banning is technically illegal.

I can't help but wonder if it's really necessary.. but meh. Lay on, McDuff.

But I think we generally elect good people as delegates, who by and large are not prone to abuse of power. If we were to elect someone who did try to act abusively, I believe that that would not be allowed to stand by either the court or the RA.

Rogue Delegacies and coups do happen though. They can ban indiscriminately until they are overthrown (recall isn't an option since that is a function of the offsite forums, not gameplay mechanics), or expend their influence. NS Gameplay allows the Delegate complete discretion with regard to banjections. Legislating against that may seem like a good idea, but doesn't apply to a Delegate that refuses to recognize and respect that Law. So while checks and balances are probably a good idea, they can be ignored. Say a certain well known raider were to coup TNP. Do you think he/she would give even a passing thought to what the Court thinks? Not bloody likely. But I digress. My point is that any Delegate can go on a banning spree, consequences be damned (particularly if their vested interest lies somewhere other than TNP). No amount of legislation here can override gameplay (none that I'm aware of).

Anyway.. I think it might be helpful if anyone who has been Delegate would chime in here (unless they've got something to hide ). There may be grey areas this proposal doesn't address.

Oh btw, just so I don't misunderstand your intentions.. you're wearing your RA hat atm, right?

 

[Romanoffia]

Ejecting a nation due to a pending criminal trial is a violation of the BOR in terms of the Right to Due Process. It is like passing sentence first and then repealing if a not-guilty verdict is reached. This would damage a nation's influence unjustly if such a nation was found not guilty.

I believe you have miscategorized both the existing law and my proposal. No nation can or will be ejected due to a pending trial.

Nations currently can be ejected prior to an indictment if the AG/Delegate wish to do so (for any reason!) as long as they can get the approval of a single justice. The Legal Code says that this decision is "final", thereby attempting to revoke any right to appeal such an ejection.

My proposal restricts this power to cases where the nation in question poses a clear security threat to the region, and explicitly requires the court to promptly hear appeals of the ejection or ban - such appeals are independent of the ongoing trial process. This is an expansion of the protections afforded to nations, and these protections do not currently exist.

Also, your bill is likely to be abused as a political tool whereby a nation could simply be charged with a crime, a trial date set, and that nation ejected from the region without any conviction having occurred first. That's like executing someone before the verdict and then trying to re-animate them after the fact. No, there is too much opportunity for abuse of such a law for political purposes.

What you have described is the current state of the law, not my draft.

Constitutionally, and you should know this, the only time a nation can be ejected/banned is if they have been convicted of a crime worthy of that penalty, or the repeatedly violate endorsement gathering rules/levels.

This is incorrect. If you read the current law - which I have spoilered in my original post - the Executive branch already has the power to seek the pre-trial banjection of any nation. I am seeking to limit that power and ensure nations are guaranteed their rights to appeal such actions.

This is clearly a usurpation of the the Authority of The Security Council, and an act of pre-emption which would be a violation of the BOR in terms Due Process. A nation can be repelled as an invader, or as a security threat in terms of deliberate endo-tarting violations as per the Security Council's authority. No nation can be ejected or banned under a presumption of being a 'security threat' when no actual threat exists. Such an action would be a summary trial and a drumhead trial at best in which a defendant must prove innocence rather than the prosecution prove guilt. You cannot deliver a verdict and then say, "Sorry, my bad!"

It is not a verdict or a sentence, it is a precaution, and one which exists under the current law. No guilt has been assumed - the Delegate could seek to ban the Vice Delegate from the region pending criminal charges for endoswapping, with the reasoning that the Vice Delegate has come too close to the Delegate's endorsement count, but that is not a determination of guilt in any way. Regardless of whether the VD is swapping or being maliciously endorsed by an outside party, the threat of a delegacy change exists. Current SC law allows for a ban for one update to remove the offender's endorsement count, but it is critical for the Delegate to be able to seek a ban of a longer duration in cases where they and the SC believe that a one-update removal is insufficient to clear the threat. This is allowed for under current law, and my draft emphasizes the security aspect while ensuring that the nation banned can appeal that decision.

Agreed. I'm an advocate of change, but this proposal is an overstep imo.

Can you elaborate how this bill, in contrast with the law as it currently stands, is an overstep?

This bill limits the power of the executive to remove nations from the region without a trial and a guilty verdict, and it protects those nations' rights to appeal. It is a reduction in power, not an increase.

Okay. I have another question. This would allow the delegate and the court to asses someones security riskiness? Where is the Security Councils involvement in this? Since ya know Security Risks I thought was their job and all?

This procedure is entirely independent of anything having to do with the Security Council - it is not the business of the Court how the Delegate comes to a determination of security risks, but it is expected that they will consult with the SC for recommendations and insights. When seeking an ejection or ban on any nation under this clause, the Delegate is naturally free to present as part of their argument for the ban's necessity any recommendation issued by the Security Council, and the Court is free to solicit the SC's input if it has any questions or needs clarification on any matter. This does not infringe on the SC's role as guardians of security - it seeks only to limit the power of the executive to remove nations from the region prior to the conclusion of a trial.

The only thing I can say to your response is that the hardest thing to explain is the glaringly evident which someone has decided not to see.

The problem that I have with ejecting someone as a result of a pending criminal trial is that it is too similar to the old expression you will have a fair trial after which you will be shot. It takes that to a whole new level of you will be shot before you have a fair trial and we shoot you again even if you are not guilty.

Your proposed law is pre-emtive and stinks of prior-restraint. Your proposed law presumes guilt by applying the ultimate penalty of ejection/banning simply because there is a pending criminal trial.

Again, if a nation is a true security thread, it is the role of the Security Council to handle it promptly. The Court adjudicates and is not permitted to nor designed for the actual application of an executive authority or Security Council authority.

And I am not misrepresenting the very real unintended consequences of the proposed law.

For instance, under your bill, someone could file a criminal charge against someone because they criticised the government or some government official. The AG could file an indictment if the AG doesn't like the political nature of the accused. A Justice who is also of the mind that they don't like any kind of dissent could not only set a trial date but also declare the defendant a 'Security Risk' and thus have the Delegate, who may also not like criticism or dissent concerning the government eject and ban that nation "pending" a trial.

What you are proposing is nothing short of a Star Chamber due to the potential abuse of that law. And again, the proposed law steps on the Authority of the Security Council which is equipped to function in that exact capacity under very strict guidelines, conditions and laws.

(Addendum on edit)

Also, the law you propose is a violation of the Bill of Rights.

You would be inflicting upon someone a penalty (ejection and possible banning) as the result of a pending criminal charge. We usually, with rare instances of endo tarters trying to take the Delegacy, do not eject or ban nations unless they are violating tarting rules or they are part of an enemy or insurgent force.

Hence, you law would violate provisions of the Bill of Rights:

7. When charged with criminal acts, Nations of The North Pacific shall have a fair, impartial, and public trial before a neutral and impartial judicial officer. In any criminal proceeding, a Nation is presumed innocent unless guilt is proven to the fact finder by reasonably certain evidence. A Nation may be represented by any counsel of the Nation's choosing. No Nation convicted of a crime shall be subject to a punishment disproportionate to that crime.

8. No Nation shall be ejected from the region, or banned from any forum, except as expressly authorized by the Constitution or the Legal Code. Should any official of a government authority of the region with authority to act, declare that the immediate ejection or banning of a Nation is an urgent matter of regional security they may order the ejection or banning of the nation. Any ejected or banned nation shall have prompt and immediate recourse to judicial review of the matter. The WA Delegate shall not exercise the power of ejection or banning unless expressly authorized by a specific action of a government authority of the region pursuant to the Constitution or to the Legal Code.

Please not the bolded, italicised and underlined clause "with authority to act", which would mean the Security Council which is generally the sole arbiter of whether or not a nation, not convicted of a crime, is actually a security threat.

9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

This is the biggie that your proposed law would violate:

Ejecting or banning a nation as a result of legislation permitting the Court to order such an ejection or banning is imposing punishment on such nation, without benefit of trial, which is, by technical definition, a blanket Bill of Attainder.

11. No governmental authority of the region has the power to suspend or disregard the Constitution or the Legal Code. In the event of an actual emergency, the governmental authorities of the region, with the express consent of the Nations of the region or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of the Constitution.

Fairly self explanatory. Pre-emptive actions (meeting out punishment as the result of a pending criminal trial is a violation of due process, the Bill of Rights. We only eject nations that are a security risk for actual transgressions such as actually posing a threat such as tarting in violation of tarting regulations, not because someone thinks they are a security threat pending a trial.

Also, such ejection or banning as the result of a 'pending' criminal trial would be a clear act of Bias on the part of the entire Court or specific Justices as such an ejection or banning when a nation is not actually trying to endorse pass the Delegate or Vice Delegate indication a pre-juridical indication of Guilt of a defendant prior to the trial.

Essentially, any Justice who caused the ejection of a nation under your law who has not already been convicted of a crime, would be an act of Bias that would send a message that the defendant is already guilty of the charges before the trial was to occur and would at least require any and all Justices to recuse themselves as they have clearly indicated the guilt of a defendant before the trial even started by imposing an ejection of banning. And it would also be a violation of Due Process by any means or tests.

 

[SillyString]

Roman, can you please explain how you envision the current law, which holds legal force, to work? I will quote it for you, and bold the important parts:

8. When seeking an indictment to eject or ban, or expel from the RA due to oath violation, pending a trial, the Government must inform all the Justices.
9. Any Justice may approve or deny an indictment, and their decision will be final.

By my reading, the law already allows the Delegate and a single Justice to remove a nation from the region prior to their trial. It also allows them to remove someone from the RA prior to their trial. You clearly seem to be reading that it does not allow either of these things, so I am wondering how you have logically come to that conclusion. I am happy to be proven wrong, but I simply do not see any grammatical reading of those clauses which result in the meaning, "The Delegate may not ban a nation which has not been proven guilty."

Falapatorius: The scenario of a rogue delegate is entirely irrelevant. A rogue delegate isn't concerned with banjection rules, or RA voting rules, or election timetables, or running the executive ministries, but with maintaining their power and possibly with causing mayhem. So it doesn't matter how they'll interact with this. They won't abuse the provisions of this law because they'll be ignoring it. My comment about abuse is clearly describing non-rogue delegates, who may seek to use underhanded tactics to damage those they don't like. We're fortunate to have had very few of those, and if we ever were to run into that problem I do not believe the region would tolerate it or go along with their desired bannings.

 

[falapatorius]

Falapatorius: The scenario of a rogue delegate is entirely irrelevant. A rogue delegate isn't concerned with banjection rules, or RA voting rules, or election timetables, or running the executive ministries, but with maintaining their power and possibly with causing mayhem. So it doesn't matter how they'll interact with this. They won't abuse the provisions of this law because they'll be ignoring it. My comment about abuse is clearly describing non-rogue delegates, who may seek to use underhanded tactics to damage those they don't like. We're fortunate to have had very few of those, and if we ever were to run into that problem I do not believe the region would tolerate it or go along with their desired bannings.

I realize that. Went off on a tangent. If you want to limit Delegate powers then, by all means, have at it. It's not my toes you're stepping on. If the current/former Delegates don't care, then I see no reason for me to worry about it. But since I'm not convinced it's necessary, I'll abstain.

 

[Elegarth]

BIG POST DIRECTED AT ME

Thanks for your clarifications, SS. It all makes sense to me now, and I would support this.

Roman,

8. When seeking an indictment to eject or ban, or expel from the RA due to oath violation, pending a trial, the Government must inform all the Justices.
9. Any Justice may approve or deny an indictment, and their decision will be final.

By my reading, the law already allows the Delegate and a single Justice to remove a nation from the region prior to their trial. It also allows them to remove someone from the RA prior to their trial. You clearly seem to be reading that it does not allow either of these things, so I am wondering how you have logically come to that conclusion. I am happy to be proven wrong, but I simply do not see any grammatical reading of those clauses which result in the meaning, "The Delegate may not ban a nation which has not been proven guilty."

By all means, if what you say is correct and the current writing of this proposal does violates the Bill of Rights, according to your interpretation of it, then it is quite transparent that the current existing law also does it, since from what I see, this proposal is just regulating somehow differently an ability that the Delegate ALREADY has. This is, the proposal is not changing what the Delegate can legally do but how he can do it, without having a direct influence in the rights of the person. Should we, then, somehow declare the existing law illegal?

 

[Severisen]

Agree with SillyString. This legislation attempts to fix a glaringly obvious loophole already in play. I think the delegate and authorities need to have some ability to act in a timely manner when matters of regional security can depend on seconds, rather than at the pace of a trial. That's the unfortunate nature of this beast. A police officer may temporarily detain someone under the reasonable suspicion that the person has, is, or is intending to commit a crime. This is not so different from that.

 

[Romanoffia]

Roman, can you please explain how you envision the current law, which holds legal force, to work? I will quote it for you, and bold the important parts:

8. When seeking an indictment to eject or ban, or expel from the RA due to oath violation, pending a trial, the Government must inform all the Justices.
9. Any Justice may approve or deny an indictment, and their decision will be final.

By my reading, the law already allows the Delegate and a single Justice to remove a nation from the region prior to their trial. It also allows them to remove someone from the RA prior to their trial. You clearly seem to be reading that it does not allow either of these things, so I am wondering how you have logically come to that conclusion. I am happy to be proven wrong, but I simply do not see any grammatical reading of those clauses which result in the meaning, "The Delegate may not ban a nation which has not been proven guilty."

Falapatorius: The scenario of a rogue delegate is entirely irrelevant. A rogue delegate isn't concerned with banjection rules, or RA voting rules, or election timetables, or running the executive ministries, but with maintaining their power and possibly with causing mayhem. So it doesn't matter how they'll interact with this. They won't abuse the provisions of this law because they'll be ignoring it. My comment about abuse is clearly describing non-rogue delegates, who may seek to use underhanded tactics to damage those they don't like. We're fortunate to have had very few of those, and if we ever were to run into that problem I do not believe the region would tolerate it or go along with their desired bannings.

BIG POST DIRECTED AT ME

Thanks for your clarifications, SS. It all makes sense to me now, and I would support this.

Roman,

8. When seeking an indictment to eject or ban, or expel from the RA due to oath violation, pending a trial, the Government must inform all the Justices.
9. Any Justice may approve or deny an indictment, and their decision will be final.

By my reading, the law already allows the Delegate and a single Justice to remove a nation from the region prior to their trial. It also allows them to remove someone from the RA prior to their trial. You clearly seem to be reading that it does not allow either of these things, so I am wondering how you have logically come to that conclusion. I am happy to be proven wrong, but I simply do not see any grammatical reading of those clauses which result in the meaning, "The Delegate may not ban a nation which has not been proven guilty."

By all means, if what you say is correct and the current writing of this proposal does violates the Bill of Rights, according to your interpretation of it, then it is quite transparent that the current existing law also does it, since from what I see, this proposal is just regulating somehow differently an ability that the Delegate ALREADY has. This is, the proposal is not changing what the Delegate can legally do but how he can do it, without having a direct influence in the rights of the person. Should we, then, somehow declare the existing law illegal?

OK, to Silly String:

That explanation would be irrelevant to the whole issue.

You are missing the point. We already have a procedure for ejecting nations that are a security threat for very specific, logical and rational reasons. This is entirely independent of Judicial Actions if a nation violates very specific parameters.

Ejecting a nation for simply having a pending trial under the arbitrary determination that they are a 'security threat' if they are not violating the parameters by which the Security Council would request an ejection/banning, it would be an act of meeting out punishment first, then having a trial afterwards to determine if the punishment should stand. That is an instance of 'guilty until proved innocent' by definition, and a violation of Due Process guaranteed by the BOR (provided the ejected hasn't surpassed the endorsement restriction, in which case the Security Council would have already acted).

Your proposed bill falls under the head of a Bill of Attainder in fact and practice. I think that is abundantly clear. Simply being charged with a crime under any circumstance in and of itself does not constitute a "Security Threat"

Again, the law you propose is so broadly written that anything and everything could be used to declare a nation a 'security threat' and thus prone to political abuse.

Under the existing statutes (as it were) anyone who poses a legitimate security threat to the region (i.e.: endotarting in a fashion that exceeds the legal limit on endorsements) would have already been ejected from the region upon request of the Security Council).




To Elegarth:

I hadn't thought about it that way, but, you are most likely correct in the assumption that the existing law may also be unconstitutional.

Here's the logic I am using:

You cannot meet out punishment before a person is convicted of a crime. This is abundantly clear in the Bill of Rights, particularly Due Process and Bill of Attainder provisions.

However - if someone poses a threat to regional security by their endo-tarting activities, or certain activities such as engaging in an 'unendorsement campaign' of the Delegate, Vice Delegate or other endorsement dependent positions like the Security Council, it is a direct threat to regional security for obvious reasons and worthy of a pre-emptive ejection. This is legitimate because it is a clear and present danger - someone has engaged in an Act of War by their belligerent actions that are tantamount to an Act of War. Invading the region with the intent of mechanically over-throwing the Delegate, government, et al, is an act of war in the sense of a military attack and requires no judicial action to deal with.

This also brings up the glaring deficiency in out entire Legal Code and Constitution - the very definition of what constitutes a "Security Threat" to the region.

Said term "Security Threat" when not directly the result of endorsement challenges against the Delegate or Vice Delegate by a nation, is like the definition of "Obscenity" - it becomes a matter of "you know when it's obscene" which doesn't work logically.

For instance, let me engage in the hypothetical.

Suppose a nation posted items on the forum or the RMB to the effect that, "The Delegate is a putz and I think he should be removed!" While I might say that such a statement falls under "Free Speech" another person could say that such a statement is an 'incitement' to Treason, Insurrection, Sedition, etc. Now suppose the Delegate and a Justice agreed that any criticism of a sitting Delegate was a "Security Threat" to the region - under the existing law this could technically be done and the nation gets ejected.

Then suppose that a sitting Delegate running for reelection and a Justice of the Court decides that someone who is 'unpopular' and who is challenging a Delegate in an election for Delegate decide that such person or any person likely to unseat a Delegate in an election is a "Security Threat" by undefined parameters? See where this might lead?

Again, the proposed law by the OP in this thread is too open ended as the term "Security Threat" is to ill-defined, nebulous and potentially arbitrary and capricious. And this is possibly true of the existing relevant Laws were it not for existing precedent either executive or judicial.

Our existing laws concerning this matter have served us well in the sense that no one to date under the current Constitution has ever been unjustly ejected/banned without violating RMB recruiting spamming rules (set by the Delegate) or without violating specific endorsement regulations. Our existing laws have never been successfully challenged. If the propose law in this thread were to be passed, it would be challenged and successfully so for so many reasons and would be especially ugly if the author of this law was sitting on the Court at that time (in which a recusal would be mandatory for obvious reasons of authorship). It would be legal and constitutional chaos even at a much later date.

As for the current law pertaining to and covering this issue, it has never been challenged and therefore its constitutionality cannot yet be questioned.

As for the proposed law, it is a bad law. A really bad law. A law, which if placed in the wrong hands, would result in some seriously offensive and unconstitutional applications.


@ Sev: That is what the Security Council is there for. The Security Council already has this ability and acts instantaneously if such a threat arises. The Delegate is already empowered with the ability to remove anyone trying to unseat the Delegate via endo-tarting, which is the only real reason to declare a nation a 'security threat'.

 

[mcmasterdonia]

I think we do need for the Delegate to have more discretion over the ejection of nations. Obviously with the court as an additional protection.

The Adspam section is a bit more restrictive than BW suggests, however given that it is subject to an appeal by the nation in most cases it can be used however the Delegate wishes to apply it. For example it has been used in the past for regional happenings spam and for generally being annoying on the RMB.

In short, I think I can support this change proposed by SillyString. I will consider it further before I commit to it though.

 

[SillyString]

Roman, I think the mistake you're making is interpreting the changes as requiring that a nation be banned prior to their trial. They do not do this. They take the existing state of affairs - where the delegate can decide they want someone banned prior to their trial for any reason whatsoever - and say that there must be a genuine reason for doing this, and the reason must be time-sensitive. The notion that "You can only do X in Y situation" is more prone to politicization and/or abuse than "You can do X anytime you want" is, frankly, ludicrous.

As you have said, being charged with a crime does not inherently render someone a security risk. I agree. That's why the law does not and will not mandate that the delegate ban someone charged with a crime.

 

[Romanoffia]

Roman, I think the mistake you're making is interpreting the changes as requiring that a nation be banned prior to their trial. They do not do this. They take the existing state of affairs - where the delegate can decide they want someone banned prior to their trial for any reason whatsoever - and say that there must be a genuine reason for doing this, and the reason must be time-sensitive. The notion that "You can only do X in Y situation" is more prone to politicization and/or abuse than "You can do X anytime you want" is, frankly, ludicrous.

As you have said, being charged with a crime does not inherently render someone a security risk. I agree. That's why the law does not and will not mandate that the delegate ban someone charged with a crime.

Yes, but we already have laws that accomplish that end and therefore this proposed law is not needed. I see not reason to give any authority that is clearly the sole purvey of the Security Council and deliver into the hands of the Court and thus bypass the Security Council in authority and function.

What worries me is that this law usurps the authority and function of the Security Council. What worries me is the law you propose permits the Court to simply declare someone a 'security threat' which is purely the function of the Security Council. It is a usurpation of a specific power and then handing it to the Court, thus making the Court an enforcer and not an arbiter.


Let me ask you the following questions about this law:


What benefit to the region is there in passing this law?

How does it do something better that the laws already provide for in detail?

What purpose beyond the existing laws of this proposed law?



McM:

I think we do need for the Delegate to have more discretion over the ejection of nations. Obviously with the court as an additional protection.

The Adspam section is a bit more restrictive than BW suggests, however given that it is subject to an appeal by the nation in most cases it can be used however the Delegate wishes to apply it. For example it has been used in the past for regional happenings spam and for generally being annoying on the RMB.

In short, I think I can support this change proposed by SillyString. I will consider it further before I commit to it though.

The current laws already permit the Delegate very wide discretion over the ejection of nations posing an immediate threat to the Delegacy even without SC authorisation. The Delegate needs no protection from the Court.

Please explain to me why a Delegate would need the 'additional protection' of the Court?

How does giving the Court the power to declare someone a "Security Threat" support any authority of the Delegate to eject or ban a nation that the Delegate already does not have?

The proposed law gives the Court the authority to declare someone a Security Threat and gives no additional authority to the Delegate for doing so. Again, this law violates the BOR on several points, and usurps authority from the Security Council. It is not to be presumed that the Court has any constitutional or legal competence in making such a determination at all. That is why we have the Security Council.

I do not like laws that simply allow the Court, or any other authority of government to simply say, "oh, and yeah, so-and-so is a security threat! BanJect them pending a trial!" when there are on certain ways a nation can be an actual security threat and that involves endo-tarting and unendorsement campaigns.

This law reeks of the old paranoia that this region suffered from, much to the detriment of the region, in the past. It is too authoritarian and potentially arbitrary in its results.

That said, if you wish to give the Delegate more latitude in ejecting or banning nations for legitimate reasons rather than nebulous determinations proposed by this law, it would be more efficient and more legitimate to clearly define what a "Security Threat" to the region is and then pass appropriate legislation to that effect.

If Silly String wants a law that permits the ejection of nations from the region for something like Sedition along with a detailed definition of Sedition, then I would be happy to help draught a law to that effect. What we really need are specific laws to deal with Sedition and Espionage. We do not need laws that are a mugging of the BOR, the authority and function of the Security Council or which give the Court actual Star Chamber powers whether intended or not.

 

[falapatorius]

They take the existing state of affairs - where the delegate can decide they want someone banned prior to their trial for any reason whatsoever - and say that there must be a genuine reason for doing this, and the reason must be time-sensitive.

Ok, could you clarify for me.. so the Delegate just has to inform the Court he/she is going to eject a nation on whatever grounds? The Court will make no determinations as to what constitutes a security threat? Is it akin to a 'legal consult' (to alert the Delegate to possible Constibillicode violations), or similar to a RL judge approving a warrant? Does the Delegate retain the right to proceed with an ejection (risking sanctions that apply), or will the Court be able to injunct against it?

 

[SillyString]

They take the existing state of affairs - where the delegate can decide they want someone banned prior to their trial for any reason whatsoever - and say that there must be a genuine reason for doing this, and the reason must be time-sensitive.

Ok, could you clarify for me.. so the Delegate just has to inform the Court he/she is going to eject a nation on whatever grounds? The Court will make no determinations as to what constitutes a security threat? Is it akin to a 'legal consult' (to alert the Delegate to possible Constibillicode violations), or similar to a RL judge approving a warrant? Does the Delegate retain the right to proceed with an ejection (risking sanctions that apply), or will the Court be able to injunct against it?

I think both the existing law and the changes I'm proposing would be closer analogized to a warrant rather than a consult, but it's not an exact match.

The Legal Code is relatively specific in when the Delegate is allowed to ban - it is a flat sanctioned action against adspammers and violaters of NS rules, it is (currently) permitted for whatever reason pending a trial so long as a single justice consents (note to self: Section 6.5, Clause 30, also needs amended), it is permitted against people who qualify as committing "reckless endorsement gathering", and it is permitted as part of punishment for a guilty verdict, if ordered by the Court.

The combination of a lack of any rationale for requesting such a ban along with the allowance, in this clause, for a nation's RA membership to be stripped "for oath violation" before their trial (presumably on the same) has concluded strikes me as needlessly punitive, and (as Roman is saying about my bill) very close to presumptive guilt. I don't think there's ever a case where RA membership should be yanked away without guilt established, and I think there should have to be an actual reason for somebody to be banned pre-trial. The only legitimate reason I can think of that makes such a ban non-guilt based would be a tangible security reason.

But I don't think it's sufficient for the Delegate to be able to say, "Yo, I banned X for Security Reason" or "I banned X for A, B, C" and for those to necessarily be rubberstamped by the Court - a lack of scrutiny on reasons is no better than requiring no reasons at all. This is particularly the case because the rest of the law is so restrictive - Roman is incorrect that SC law gives the delegate wide discretion. It really doesn't, and it avoids this on purpose. We don't want our delegate ejecting willy-nilly.

It's impossible to lay out a definitive list of what can possibly be a security threat, so while I think the Delegate does need some leeway to act in an emergency, I also think it's important for there to be oversight and the ability to block these actions. My opinion would likely be different if we were discussing things outside of a trial setting, and I'm not against reforming some of the SC law to give it more flexibility, but any law/action affecting the rights of defendants really ought to be under the discretion of the court.

As a final note - sorry for such a long answer - this would not have an impact on existing laws. Nations who qualify for a ban under any of the other permissions provided (adspam, reckless endorsement gathering, NS rules violations, other future laws) could be ejected and/or banned at the delegate's discretion as they already can be.

What benefit to the region is there in passing this law?

How does it do something better that the laws already provide for in detail?

What purpose beyond the existing laws of this proposed law?

The answers to these are all basically the same.

The benefit to the region is removing the executive's ability to strip someone of their RA membership without them having received a guilty verdict from the Court, and restrict the executive's ability to remove someone from the region without them having received a guilty verdict from the Court. It also removes an unconstitutional clause in the existing law, which attempts to prevent nations banned at the beginning of their trial from appealing their ban.

It does this better than the law that it is replacing because the law it is replacing allows all of those things, and contains the relevant unconstitutional clause.

The purpose of this proposed law is to do this, as well as to clean up a section of law which is generally poorly written, confusing, and open to multiple competing interpretations.

As an additional note, Sedition is unconstitutional and we already have a specific law to deal with Espionage.

 

[falapatorius]

The combination of a lack of any rationale for requesting such a ban along with the allowance, in this clause, for a nation's RA membership to be stripped "for oath violation" before their trial (presumably on the same) has concluded strikes me as needlessly punitive

It does seem needlessly punitive, but I believe loss of RA membership would still result from:

13. The Speaker will promptly remove any Regional Assembly members whose removal is ordered by the Court, or whose nation in The North Pacific leaves or ceases to exist.

So, unless the Speaker were to hold off til post-trial (I'm not sure if he can), RA membership would be removed anyway. But yes, adding an oath violation (gross misconduct) to a ban premised on a threat to regional security does seem excessive (pre-trial anyway).

It's impossible to lay out a definitive list of what can possibly be a security threat, so while I think the Delegate does need some leeway to act in an emergency, I also think it's important for there to be oversight and the ability to block these actions.

While I somewhat agree, I'm just not sure it should be the Court that provides oversight. Just as the VD has to consult with the SC when conducting security assessments of RA applicants:

The Vice Delegate will have 3 days to perform a security assessment of the applicant. All security assessments will be performed in consultation with the Security Council, and in accordance with all laws of The North Pacific.

I think it would be easier to draft legislation that would have a similar effect on the Delegates ability to ban nations. Obviously, 3 days is too much time with threats that are a 'clear and present danger'. One could say that all this consulting (with whomever) could actually allow more damage to be done to the Region. I think regional security trumps oversight in some instances (my opinion). However, that shouldn't give the Delegate carte blanche to ban on the basis of what he/she alone perceives as a threat. Conversely, I wouldn't want the Delegate to be unable to act because of the time required for Judicial/SC oversight. A fine line indeed.

Further to the Court providing oversight (if this passes) on Delegate bannings concerning security threats:

If a Delegate were to bring evidence of a security threat before the Court when seeking an ok to banject said threat, wouldn't that be foreknowledge of the details (yet unproven by a fact finder) of the case? Since the offending nation takes no part in the discussion, doesn't that impact due process? By granting a request for banjection (pre-trial) based upon the Delegate's rationale for doing so, hasn't the Court essentially rendered a guilty verdict? I agree the Court should protect a nations Constibillicode rights, but I want to make sure they aren't violated in the process of doing so.

 

[Romanoffia]

They take the existing state of affairs - where the delegate can decide they want someone banned prior to their trial for any reason whatsoever - and say that there must be a genuine reason for doing this, and the reason must be time-sensitive.

Ok, could you clarify for me.. so the Delegate just has to inform the Court he/she is going to eject a nation on whatever grounds? The Court will make no determinations as to what constitutes a security threat? Is it akin to a 'legal consult' (to alert the Delegate to possible Constibillicode violations), or similar to a RL judge approving a warrant? Does the Delegate retain the right to proceed with an ejection (risking sanctions that apply), or will the Court be able to injunct against it?

I think both the existing law and the changes I'm proposing would be closer analogized to a warrant rather than a consult, but it's not an exact match.

The Legal Code is relatively specific in when the Delegate is allowed to ban - it is a flat sanctioned action against adspammers and violaters of NS rules, it is (currently) permitted for whatever reason pending a trial so long as a single justice consents (note to self: Section 6.5, Clause 30, also needs amended), it is permitted against people who qualify as committing "reckless endorsement gathering", and it is permitted as part of punishment for a guilty verdict, if ordered by the Court.

The combination of a lack of any rationale for requesting such a ban along with the allowance, in this clause, for a nation's RA membership to be stripped "for oath violation" before their trial (presumably on the same) has concluded strikes me as needlessly punitive, and (as Roman is saying about my bill) very close to presumptive guilt. I don't think there's ever a case where RA membership should be yanked away without guilt established, and I think there should have to be an actual reason for somebody to be banned pre-trial. The only legitimate reason I can think of that makes such a ban non-guilt based would be a tangible security reason.

But I don't think it's sufficient for the Delegate to be able to say, "Yo, I banned X for Security Reason" or "I banned X for A, B, C" and for those to necessarily be rubberstamped by the Court - a lack of scrutiny on reasons is no better than requiring no reasons at all. This is particularly the case because the rest of the law is so restrictive - Roman is incorrect that SC law gives the delegate wide discretion. It really doesn't, and it avoids this on purpose. We don't want our delegate ejecting willy-nilly.

It's impossible to lay out a definitive list of what can possibly be a security threat, so while I think the Delegate does need some leeway to act in an emergency, I also think it's important for there to be oversight and the ability to block these actions. My opinion would likely be different if we were discussing things outside of a trial setting, and I'm not against reforming some of the SC law to give it more flexibility, but any law/action affecting the rights of defendants really ought to be under the discretion of the court.

As a final note - sorry for such a long answer - this would not have an impact on existing laws. Nations who qualify for a ban under any of the other permissions provided (adspam, reckless endorsement gathering, NS rules violations, other future laws) could be ejected and/or banned at the delegate's discretion as they already can be.

What benefit to the region is there in passing this law?

How does it do something better that the laws already provide for in detail?

What purpose beyond the existing laws of this proposed law?

The answers to these are all basically the same.

The benefit to the region is removing the executive's ability to strip someone of their RA membership without them having received a guilty verdict from the Court, and restrict the executive's ability to remove someone from the region without them having received a guilty verdict from the Court. It also removes an unconstitutional clause in the existing law, which attempts to prevent nations banned at the beginning of their trial from appealing their ban.

It does this better than the law that it is replacing because the law it is replacing allows all of those things, and contains the relevant unconstitutional clause.

The purpose of this proposed law is to do this, as well as to clean up a section of law which is generally poorly written, confusing, and open to multiple competing interpretations.

As an additional note, Sedition is unconstitutional and we already have a specific law to deal with Espionage.

OK, I see what you mean

The benefit to the region is removing the executive's ability to strip someone of their RA membership without them having received a guilty verdict from the Court, and restrict the executive's ability to remove someone from the region without them having received a guilty verdict from the Court. It also removes an unconstitutional clause in the existing law, which attempts to prevent nations banned at the beginning of their trial from appealing their ban.

The intent which you speak of would not be accomplished by your proposed law. Your wording in the proposed legislation indicates something else other than your above stated objectives.

There are two specific problems with your proposed legislation in relation to intent. That disparity could be removed by adding a clause to the law to replace erroneous language to the effect:

"In matters arising from criminal actions, no nation shall be removed from The North Pacific prior to that Nation being convicted of a crime warranting such removal by the Court of The North Pacific unless that nation is deemed an immediate threat to the Delegate according to endorsement level regulations, recommendation of the Security Council according to the Laws and Constitution or imminent danger resulting in unlawful change of Delegates, or other acts of War, Treason or Sedition."

Or something to that effect.

I have a nasty, yet very useful habit of de-constructing proposed legislation to suss out all the potential loop-holes, voids and points of nebulosity that can be exploited by persons with nefarious intentions. I always look at the possible unintended consequences and I am usually spot-on about how people will twist laws to suit their needs if given the opportunity.

I agree with the principles of the intend you stated and which I have quoted, but we have to be careful that the same law doesn't infringe upon the privileges and function of the Security Council, especially when dealing with endo-tarters trying to unseat a Delegate, or individuals delaying removal while trying to do the same, or potential abuse for political or personal purposes.

All of these concerns are very real and best described by the old adage, trust everyone but cut the cards yourself.

 

[SillyString]

If a Delegate were to bring evidence of a security threat before the Court when seeking an ok to banject said threat, wouldn't that be foreknowledge of the details (yet unproven by a fact finder) of the case? Since the offending nation takes no part in the discussion, doesn't that impact due process? By granting a request for banjection (pre-trial) based upon the Delegate's rationale for doing so, hasn't the Court essentially rendered a guilty verdict? I agree the Court should protect a nations Constibillicode rights, but I want to make sure they aren't violated in the process of doing so.

Not necessarily - it's possible for someone to be a very dangerous potential security threat while simultaneously being innocent of actually posing any danger, or could be a danger while being ultimately innocent of any crime, or could be a danger and guilty (in unknowable omniscient fact) but the prosecution could disappear or otherwise fail to make their case (a sadly common occurrence ).

To continue to use the poor, overburdened H&H example, the injunction-to-ban was belatedly granted, but the defendant was ultimately found not guilty of the alleged crime. So while it is possible that consenting to a ban early on could prejudice the results, I don't think prior instances support that happening.

 

[r3naissanc3r]

I am generally in agreement with this bill, having discussed it with Asta privately. The bill does not severely restrict ejections that can be made by the delegate, and provides a better framework for emergency ejections than the previous law.

The removal of the criminal trial procedure clauses is a no-brainer. It has been a long-standing oversight in the legal code that I was also planning to repeal as part of another bill.

Here are a couple of comments:

9. The Delegate may eject and/or ban a nation from the region pending criminal charges, or prior to the conclusion of a criminal trial, when that nation poses a clear threat and their removal is necessary for the protection of the region.

I would replace "threat" with "security threat to the region". Clear "threat" could be a threat against my political career (though this is somewhat mitigated by the latter part of that sentence).

12. Any nation ejected or banned under this section may file an appeal of the decision. These appeals may not be denied, and must be decided by the full court.

As a note for when the law is enacted, the court rules about accepting or denying requests will need to be amended to cover this.

Finally, Section 6.5 of the Legal Code includes the following:

30. The Delegate may eject or ban nations for which the Court has issued an indictment permitting it.

The indictments described in this clause are to an extent made somewhat redundant by the proposed amendment, though they are wider in scope than those prescribed by the amendment. I would rather not allow the Court to arbitrarily and without security reasons grant indictments for the ejection of nations, as this clause permits. So, I would suggest including a repeal of this clause in the bill.

 

[Gracius Maximus]

I support anything that grants the Delegate nation more power outside of the offsite forum government.

 

[falapatorius]

Not necessarily - it's possible for someone to be a very dangerous potential security threat while simultaneously being innocent of actually posing any danger, or could be a danger while being ultimately innocent of any crime, or could be a danger and guilty (in unknowable omniscient fact) but the prosecution could disappear or otherwise fail to make their case (a sadly common occurrence ).

Hmm.. yeah. A lot of what ifs and could bes. I think some situations speak to intent, which is difficult to prove. I suppose a nation's reputation and history plays a part in that as well, although that should have limited weight from a legal standpoint. A mitigating factor maybe, but not a deciding one.

So while it is possible that consenting to a ban early on could prejudice the results, I don't think prior instances support that happening.

Let's hope that continues to be the case. But at least you agree it could happen.

 

[Elegarth]

Roman, I understand your point, but remains then true that the currently existing laws allow for the same kind of issues you determine, plus stripping the person of RA membership immediately.... I think the overall results of the proposed bill is more clarity and a straighter set of articles...

 

[Romanoffia]

Finally, Section 6.5 of the Legal Code includes the following:

30. The Delegate may eject or ban nations for which the Court has issued an indictment permitting it.

The indictments described in this clause are to an extent made somewhat redundant by the proposed amendment, though they are wider in scope than those prescribed by the amendment. I would rather not allow the Court to arbitrarily and without security reasons grant indictments for the ejection of nations, as this clause permits. So, I would suggest including a repeal of this clause in the bill.

One of my concerns also. Usually indictments are presented by the AG, not the Court, so the Court issuing an indictment is technically impossible. The AG issues indictments, not the Court.

Also, technically speaking, the Court itself, meaning the Justices, cannot increase or add to an indictment because that would display bias on the part of the Court in a given case, and also it would be usurping the AG's authority and function. It would combine the Court's function with the AG's function thus bypassing the AG in the indictment process. It would also constitute a prima fascia conflict of interests on the Court's part to issue anything resembling an indictment.

My major concern about this Bill is that the text of the Bill is not consistent with the intent as stated by the author and quoted by me in a previous post in this thread.

My secondary concern is that the term 'Security Threat' is rather nebulous and overly flexible. This point should be refined in the Bill to make it a good Bill consistent with the stated intent of the author.

IMHO, Security Threat should be defined as:

1. Engaging in endo-tarting practices which clearly intend to threaten the Delegate or Vice Delegate, or may inadvertently threaten the same.

2. Engaging in Undendorsement campaigns against the Delegate, Vice Delegate or Security Council.

3. Engaging in Espionage or Infiltration against the Government.

4. Aiding and giving comfort to enemies of the region who are trying to disrupt the region.

5. Trashing the RMB.

6. Hacking or otherwise circumventing permissions on the Regional Forum.

If such situations are reasonably evident, it should be noted in the Indictment presented by the AG and accordingly modified with approval of the Court in light of possible developments, and with advise and consent of the Security Council. Other than that, the Delegate should be and is already clearly permitted to boot nations that fall into the above categories almost without prejudice, almost being the key word.

Unless it is a pressing matter that requires immediate attention (like tarters getting too near the Delegate's count in violation of standing regulations, etc.) I would rather see (in addition to to the elimination of Clause 30 as R3n suggests) a clause that requires the Delegate to consult the SC (as is the standing process) before a nation is booted, of course with the standing caveats being considered.

Roman, I understand your point, but remains then true that the currently existing laws allow for the same kind of issues you determine, plus stripping the person of RA membership immediately.... I think the overall results of the proposed bill is more clarity and a straighter set of articles...

I agree completely.

I would rather see a suspension pending appeal, especially when it is time critical (such as legislation and elections) which permit the suspended RA member to cast a 'provisional' vote that can be counted later should a not guilty verdict be attained.

 

[SillyString]

Usually indictments are presented by the AG, not the Court, so the Court issuing an indictment is technically impossible. The AG issues indictments, not the Court.

Yes, this is one of my major complaints with the current law, which talks about a nonsensical "indictment to ban".

I am not sure what the intent of the original author(s) was - perhaps they meant an injunction to ban? In any case, the use of the wrong word has resulted in a very muddled law where the "Government" seeks an "indictment to ban" and then, separately, presents "criminal charges", and it's unclear if the Court can grant the "indictment to ban" and reject the "charges", or whether granting the "indictment" inherently grants the charges against a nation unseen, and it isn't clear if "Government" refers to the Delegate as head of the executive, or the AG as filer of charges - and even less clear since the AG was under the Judicial branch, not the Executive, when this was written and passed.

So basically the current law is terrible. But that's normal for TNP.