NationStates

So with Habeas Corpus looking like it'll be defeated, I've thrown together something rather quickly in the hopes of submitting it soon. That being said, if the original author decides to amend her proposal to allay Ambassador's concerns, I'll defer to her.

I'm hoping Mousebumples' repeal passes. If so, I'll be submitting this in the hope of finally ending this, strangely unexpected, habeas corpus debacle.

Comments, concerns etc., are welcome.

GENERAL ASSEMBLY

Habeas Corpus
A resolution to improve worldwide human and civil rights.

Category: Human Rights | Strength: Significant | Proposed by: Sanctaria

Description: The General Assembly,

BELIEVING that being detained unlawfully is a serious affront to an individual's liberty and right to freedom,

CONCERNED that some nations may not have the pathway of habeas corpus to rectify such illegal detentions,

CONVINCED that habeas corpus is a legal remedy that must be available to those who are detained,

Hereby

MANDATES that any individual detained by the state, or a state actor, shall have the right to appeal the legality of that detention before an impartial judicial body, or its equivalent, by oneself or through proxy;

DEMANDS that detention shall neither be arbitrary nor shall continue if deemed illegal;

REQUIRES that nations employ the usage of time limits on detention so as to avoid the unnecessary breach of an individual's liberty and right to freedom.

Sanctaria wrote:So with Habeas Corpus looking like it'll be defeated, I've thrown together something rather quickly in the hopes of submitting it soon. That being said, if the original author decides to amend her proposal to allay Ambassador's concerns, I'll defer to her.

Comments, concerns etc., are welcome.

GENERAL ASSEMBLY

Habeas Corpus
A resolution to improve worldwide human and civil rights.

Category: Human Rights | Strength: Significant | Proposed by: Sanctaria

Description: The General Assembly,

BELIEVING that an individual should never be subjected to undue detention against their will,

CONCERNED that such a detention violates an individual’s liberty and undermines the due-process of a legal system,

Hereby

MANDATES the following:

• Member states may not detain against their will an individual not suspected of and/or charged with a crime, offence, or infraction, for a period longer than two hours in a one week period;
  
• Member states may have an extension in time to a period not longer than three times the two hours outlined provided that this is for the individual’s physical safety;
  
• Member states may not detain an individual suspected of a crime, offence, or infraction for a period longer than thirty-six hours without charging the individual of the same crime, offence, or infraction;
  
• Member states may have an extension in the period of time to charge an individual provided that the authorities responsible for such an act are not available to do so, to a maximum of double the thirty-six hours;
  
• Member states may not employ the use of multiple separate detentions on the same charges to circumvent the terms of this resolution;
  
• Member states may not detain an individual charged with a crime, offence, or infraction, for a period longer than necessary to establish a full, fair, and speedy trial;
  
• Member states may not continue to detain on the same charges an individual subsequently freed from those charges;
  
• Member states must release with all reasonable haste individuals found to be detained contrary to the terms of this resolution.

I very much like this resolution and am inclined to support it. However, I do have some reservations about the clauses allowing detention of persons not suspected of or charged with a crime for 2 hours (with a possible extension to 6). In what scenario would this be necessary?

Quadrimmina wrote:I very much like this resolution and am inclined to support it. However, I do have some reservations about the clauses allowing detention of persons not suspected of or charged with a crime for 2 hours (with a possible extension to 6). In what scenario would this be necessary?

Well not only would the original two hour period be more than enough time for a period of questioning, without necessarily suspecting and/or charging someone of a crime, offence, or infraction (for example, questioning a witness, or someone for an alibi or something), it'd also be used for post-release administration where the police would need to the individual to hang around.

The additional extension was added in the event it is not safe for someone released without charge to actually leave; for example, if someone is incredibly intoxicated and it would be better for their safety if they were kept in a cell overnight, or for a number of hours, to sleep it off/detox.

Sanctaria wrote:

Quadrimmina wrote:I very much like this resolution and am inclined to support it. However, I do have some reservations about the clauses allowing detention of persons not suspected of or charged with a crime for 2 hours (with a possible extension to 6). In what scenario would this be necessary?

Well not only would the original two hour period be more than enough time for a period of questioning, without necessarily suspecting and/or charging someone of a crime, offence, or infraction (for example, questioning a witness, or someone for an alibi or something), it'd also be used for post-release administration where the police would need to the individual to hang around.

The additional extension was added in the event it is not safe for someone released without charge to actually leave; for example, if someone is incredibly intoxicated and it would be better for their safety if they were kept in a cell overnight, or for a number of hours, to sleep it off/detox.

In the case you describe, I am concerned about the notion of questioning a person against their will without some sort of judicial oversight (a subpoena, etc.) This simply says that you can take anyone aside for 2 hours for any reason, no questions asked. I'm not sure I'm comfortable with that. Although, in the case of intoxication, I can understand there being a compelling practical purpose for the detention of the individual when they could be a danger to themselves or others, but would that not be better done with an outright assertion rather than via such an open-ended mandate? I would argue that those first two clauses be replaced with ones that require a subpoena or judicial warrant for the questioning of an individual without suspicion or charging, and allow subpoenas to override the 36 hour suspicion requirement (make it longer if there is a need to). In turn, I would also suggest that detention be allowed if a person is a harm to himself/herself or others, until such time as the harm is considered mitigated, again judicially determined.

Quadrimmina wrote:

Sanctaria wrote:
Well not only would the original two hour period be more than enough time for a period of questioning, without necessarily suspecting and/or charging someone of a crime, offence, or infraction (for example, questioning a witness, or someone for an alibi or something), it'd also be used for post-release administration where the police would need to the individual to hang around.

The additional extension was added in the event it is not safe for someone released without charge to actually leave; for example, if someone is incredibly intoxicated and it would be better for their safety if they were kept in a cell overnight, or for a number of hours, to sleep it off/detox.

In the case you describe, I am concerned about the notion of questioning a person against their will without some sort of judicial oversight (a subpoena, etc.) This simply says that you can take anyone aside for 2 hours for any reason, no questions asked. I'm not sure I'm comfortable with that. Although, in the case of intoxication, I can understand there being a compelling practical purpose for the detention of the individual when they could be a danger to themselves or others, but would that not be better done with an outright assertion rather than via such an open-ended mandate? I would argue that those first two clauses be replaced with ones that require a subpoena or judicial warrant for the questioning of an individual without suspicion or charging, and allow subpoenas to override the 36 hour suspicion requirement (make it longer if there is a need to). In turn, I would also suggest that detention be allowed if a person is a harm to himself/herself or others, until such time as the harm is considered mitigated, again judicially determined.

I think requiring a subpoena or judicial warrant to invoke the first clause would be, not only a serious waste of time of the judicial process, but also of my time inserting it. To overcome such a laborious task, the officers need only suspect or charge the person of a crime to invoke the third clause; obstruction of justice immediately jumps to mind.

The first and second clauses are merely fail safes to ensure that vital processes, such as administration or on-the-spot questioning, are not deemed illegal under this resolution.

My primary concern, at the moment, is regarding the wording of the following clause:

Member states may not detain against their will an individual not suspected of and/or charged with a crime, offence, or infraction, for a period longer than two hours in a one week period;
Member states may have an extension in time to a period not longer than three times the two hours outlined provided that this is for the individual’s physical safety;

There are occasions within our nation where individuals who are brought in for questioning are drunk or otherwise under the influence and unable to cooperate or effectively communicate with police forces. (Part of the problem, I suppose, in having fairly liberal and libertarian drug laws.) Under current law, we are able to "detain them" until they sober up - but this is generally done in an area clinic, hospital, etc., with a guard on duty. This is not necessarily done for the individual's physical safety but more to ensure that we are able to interview and question those who may have essential information with regards to an on-going investigation.

I'm also concerned that 6 hours may not be a long enough period of time for such "sobering up" to occur, depending on what they ingested and when. We may be able to come up with a workaround, but that's not preferable.

Further, I'm really disappointed that Your Excellency has more or less appropriated all the same time constraints as the current proposal at vote contains. I feel that they are overreaching and too limited and that such details would perhaps be better left to individual member nations to make. Now, I certainly understand that there are some nations that would take a lack of detail in such text and exploit it for their own benefit; however, I am reluctant to vote IN FAVOR of any proposal that would require us to change the details of our own criminal justice system. (We currently have a 72 hour window in which individuals may be detailed prior to being officially charged. They are, of course, allowed food, drink, sleep, etc., during that time period.)

While I will fully admit that this proposal draft is better than the one presently at vote, that's not necessarily enough to get me to support it.

Yours,
Nikolas Eberhart
Ambassador from the Doctoral Monkey Feet of Mousebumples
WA Delegate for Monkey Island

Should we have an impartial arbiter to determine whether detentions are valid, as in Quelesh's proposal?

Auralia wrote:Should we have an impartial arbiter to determine whether detentions are valid, as in Quelesh's proposal?

How is that necessary? The proposal provides for detentions that run contrary to the resolution be cancelled. And since the Gnomes ensure compliance then ... one isn't needed.

Mousebumples wrote:There are occasions within our nation where individuals who are brought in for questioning are drunk or otherwise under the influence and unable to cooperate or effectively communicate with police forces.

We know the feeling, trust me.

Mousebumples wrote:This is not necessarily done for the individual's physical safety but more to ensure that we are able to interview and question those who may have essential information with regards to an on-going investigation.

I'm also concerned that 6 hours may not be a long enough period of time for such "sobering up" to occur, depending on what they ingested and when. We may be able to come up with a workaround, but that's not preferable.

Further, I'm really disappointed that Your Excellency has more or less appropriated all the same time constraints as the current proposal at vote contains. I feel that they are overreaching and too limited and that such details would perhaps be better left to individual member nations to make. Now, I certainly understand that there are some nations that would take a lack of detail in such text and exploit it for their own benefit; however, I am reluctant to vote IN FAVOR of any proposal that would require us to change the details of our own criminal justice system. (We currently have a 72 hour window in which individuals may be detailed prior to being officially charged. They are, of course, allowed food, drink, sleep, etc., during that time period.)

Well firstly, I've adopted the time constraints more or less set out in the original resolution, but I'm more than happy to revisit them, provided of course that nations are unable to be exploitative. As I said, the proposal was written in haste, but I've a few days to play around with before I need submit it.

That being said, surely the Ambassador recognises that at least some change, however minor, to his nation's criminal justice system is likely?

Sanctaria wrote:

Auralia wrote:Should we have an impartial arbiter to determine whether detentions are valid, as in Quelesh's proposal?

How is that necessary? The proposal provides for detentions that run contrary to the resolution be cancelled. And since the Gnomes ensure compliance then ... one isn't needed.

I suppose.

Auralia wrote:

Sanctaria wrote:
How is that necessary? The proposal provides for detentions that run contrary to the resolution be cancelled. And since the Gnomes ensure compliance then ... one isn't needed.

I suppose.

Yes, I'm not a fan of putting in such clauses because it opens the possibility for unforeseen loopholes and exploitations.

Medical quarantine?

PoWs?

Internment of civilian 'enemy' nationals -- or even of belligerents' military personnel by neutral nations -- during wartime?

Bears Armed wrote:Medical quarantine?

PoWs?

Internment of civilian 'enemy' nationals -- or even of belligerents' military personnel by neutral nations -- during wartime?

Lord Raekevik grinned devilishly. "Given the following Secretariat ruling that diplomats are not entitled to habeas corpus, the Queendom would logically be extending that ridiculous exception to include PoWs and similar categories of prisoners during wartime, in the event that that there should be a habeas corpus resolution on the books that would otherwise prevent us from detaining them."

NERVUN wrote:It is the legal opinion of the Secretariat's Office that no conflict exists. Diplomatic immunity is something that only a small handful of people under very special circumstances holds at any given point in time. It is our ruling that such a thing actually acts as an exception to the normal functions of a member state's legal system, which this proposal is attempting to address. In terms of this issue, the proposal is valid. That said, should the Ambassador wish to insert the "subject to any limitations existing in international law", it would completely remove any confusion on the issue.

Alqania wrote:

Bears Armed wrote:Medical quarantine?

PoWs?

Internment of civilian 'enemy' nationals -- or even of belligerents' military personnel by neutral nations -- during wartime?

Lord Raekevik grinned devilishly. "Given the following Secretariat ruling that diplomats are not entitled to habeas corpus, the Queendom would logically be extending that ridiculous exception to include PoWs and similar categories of prisoners during wartime, in the event that that there should be a habeas corpus resolution on the books that would otherwise prevent us from detaining them."

NERVUN wrote:It is the legal opinion of the Secretariat's Office that no conflict exists. Diplomatic immunity is something that only a small handful of people under very special circumstances holds at any given point in time. It is our ruling that such a thing actually acts as an exception to the normal functions of a member state's legal system, which this proposal is attempting to address. In terms of this issue, the proposal is valid. That said, should the Ambassador wish to insert the "subject to any limitations existing in international law", it would completely remove any confusion on the issue.

Indeed, that ridiculous ruling was on my mind during the writing of my draft.

Mousebumples wrote:I'm also concerned that 6 hours may not be a long enough period of time for such "sobering up" to occur, depending on what they ingested and when. We may be able to come up with a workaround, but that's not preferable.

I don't want to sound like a parrot, but we ought not set any hard time limits on the length of detention. Wouldn't some sort of "no longer than reasonably necessary" standard work better? Perhaps with a provision allowing for the "reasonableness" of the detention to be challenged before a neutral arbitrator? That's what "Habeas Corpus" really means - "bring the body" so that the person can challenge the lawfulness of their detention.

I know that the flip side is some crazy nations will claim it is "reasonably necessary" to detain a person for 2 years for jay-walking (or something equally unreasonable but less silly), and I know this is what people are resisting when they set hard time limits. But the appropriateness of any time limit is very subjective and will change based on the facts of the individual case. There may be times where it's gonna take a week or more to get all the evidence gathered for a grand jury proceeding against a mass murderer. Nations shouldn't have to release that person just because it's gonna take a bit longer to issue the charging instrument. On the flip side, 36 hours is forever if you're a kid being cited for stealing a piece of gum. That's the other extreme.

In keeping with the true spirit of "Habeas Corpus," I'd very much like to see the hard time limits go away in favor of a "reasonableness" standard and a right to appeal to a neutral arbitrator.

Cowardly Pacifists wrote:

Mousebumples wrote:I'm also concerned that 6 hours may not be a long enough period of time for such "sobering up" to occur, depending on what they ingested and when. We may be able to come up with a workaround, but that's not preferable.

I don't want to sound like a parrot, but we ought not set any hard time limits on the length of detention. Wouldn't some sort of "no longer than reasonably necessary" standard work better? Perhaps with a provision allowing for the "reasonableness" of the detention to be challenged before a neutral arbitrator? That's what "Habeas Corpus" really means - "bring the body" so that the person can challenge the lawfulness of their detention.

Approaching it with a "no longer than reasonably necessary" would not be appropriate in an organisation that boasts psychotics dictatorships among its membership. *looks over at members of AO*

That sort of approach would leave it wide open to abuse, something which I'm not that keen on in international resolutions. What is "reasonable"? Who decides what "reasonable" is? An "impartial arbitrator"? How does one ensure that they are impartial? Do the Gnomes interview them? Further, would one be locked up which their arbitration is ongoing? And if so, how would we then regulate the length of the trial of arbitration to ensure the detained isn't locked up for longer than necessary i.e. if a kid caught stealing gum is detained for the entire 36 hours, and wishes to appeal to an independent tribunal, would the kid not end up detained for longer than 36 hours in the long run?

Ambassadors may think that hard time limits are more micromanaging in nature, and it should be left up to each state to determine a reasonable time length, provided it is reasonable. Normally I'd agree. However, in writing to ensure that the reasonableness is actually reasonably, I would end up micromanaging far more than I may do currently.

While I applaud the Ambassador for being able to read a legal dictionary, I would caution him in applying the blanket definition to a organisation as far reaching, and as diverse, as this one.

Sanctaria wrote:While I applaud the Ambassador for being able to read a legal dictionary, I would caution him in applying the blanket definition to a organisation as far reaching, and as diverse, as this one.

I really don't know why you feel the need to be insulting - I'm just trying to help. Although I do find it ironic that the Ambassador proposing a one-size-fits-all 36 hour time limit for detentions would caution me in applying blanket provisions. You may want to take that advice yourself.

I've tried to explain that setting hard time limits without considering the context of the case is the definition of unreasonable conduct in this area of law. I get that there are two evils at play here, and that you're choosing the evil of low-flexibility to the evil of unfettered interpretation. That's your prerogative as the proposal's author. But you have to at least cop to the fact that by setting hard and fast time limits, cases will fall through the cracks. Sometimes, folks that ought not be released will be released. And some times, folks will be detained far longer than they should without any legal recourse.

Incidentally, it's worth mentioning that setting hard time limits for detention is not what Habeas Corpus is about. Habeas Corpus is about a right to challenge the lawfulness of one's dentition. Your proposal deals with something more akin to a Speedy Trial right. So to the extent that your proposal is not about empowering folks to challenge the lawfulness of their detention, I think calling it a "Habeas Corpus" proposal is a bit misleading. Don't you think.

Cowardly Pacifists wrote:Incidentally, it's worth mentioning that setting hard time limits for detention is not what Habeas Corpus is about. Habeas Corpus is about a right to challenge the lawfulness of one's dentition. Your proposal deals with something more akin to a Speedy Trial right. So to the extent that your proposal is not about empowering folks to challenge the lawfulness of their detention, I think calling it a "Habeas Corpus" proposal is a bit misleading. Don't you think.

Habeas Corpus is simply a writ one applies for when they feel they are being detained unlawfully. Now I could write a resolution where they are simply empowered to challenge such, or, in a world when compliance is mandatory and enforced, I could ensure that their application for a writ is unnecessary because their right to liberty is immediately upheld. When someone is being detained unlawfully, they are immediately released.

I'm sure those unlawfully detained would prefer immediate release to sitting around, still detained, waiting for the judgement, which could take god knows how long.

Cowardly Pacifists wrote:I've tried to explain that setting hard time limits without considering the context of the case is the definition of unreasonable conduct in this area of law. I get that there are two evils at play here, and that you're choosing the evil of low-flexibility to the evil of unfettered interpretation. That's your prerogative as the proposal's author. But you have to at least cop to the fact that by setting hard and fast time limits, cases will fall through the cracks. Sometimes, folks that ought not be released will be released. And some times, folks will be detained far longer than they should without any legal recourse.

The exact same arguments could be put forward if I approached this from the other angle, Ambassador. Regardless of the approach I take, there will always be instances where the detained is released when in fact the detained may actually be guilty. That's the harshness of the legal system; contrary to popular belief, it's not designed to be helpful for those prosecuting, but to ensure the rights of those in the defence are protected.

Cowardly Pacifists wrote:

Sanctaria wrote:While I applaud the Ambassador for being able to read a legal dictionary, I would caution him in applying the blanket definition to a organisation as far reaching, and as diverse, as this one.

I really don't know why you feel the need to be insulting - I'm just trying to help.

Department of nit-picking. Amendments proposed are in red and strikes.

Sanctaria wrote:[list][*]Member states may not detain against their will an individual not suspected of and/or charged with a crime, offence, or infraction, for a period longer than two hours in a one week period, against their will;

Other than that, two points: first, why does proposal permit detention of individuals not suspected of a crime; and second, why does it only give the authorities thirty six hours before they must charge a person? Surely they should be allowed further time, if they reasonably suspect a person of being dangerous, but aren't sure of how to charge a person?

Ok, I've done a complete redraft.

Yes, it is short. Why is it short? Because what I've detailed therein is all Habeas Corpus actually is. All superfluous clauses that previously existed, or currently exist in the Queleshian proposal-at-vote, are more related to time-limits on detention rather than on the legality of the detention itself.

I think a re-focus as to what HC really is, is necessary.

Sanctaria wrote:Ok, I've done a complete redraft.

Yes, it is short. Why is it short? Because what I've detailed therein is all Habeas Corpus actually is. All superfluous clauses that previously existed, or currently exist in the Queleshian proposal-at-vote, are more related to time-limits on detention rather than on the legality of the detention itself.

I think a re-focus as to what HC really is, is necessary.

Might I suggest a general clause along the lines of "RECOMMENDS that WA Member Nations set reasonable limits, appropriate for their own population, with regards to the maximum length of detainment for criminal offenses." That's general enough that it isn't micromanaging and should maybe help to gain the votes of some of the fluffies.

Otherwise, yes, I think this is something I would be able to support. But, again, more fluffy preamble may not be a bad thing for those that are now going to be confused and think that Habeas Corpus is everything that is in the current draft, rather than the rather straightforward protections that you are offering in this draft.

Yours,
Nikolas Eberhart
Ambassador from the Doctoral Monkey Feet of Mousebumples
WA Delegate for Monkey Island

Mousebumples wrote:

Sanctaria wrote:Ok, I've done a complete redraft.

Yes, it is short. Why is it short? Because what I've detailed therein is all Habeas Corpus actually is. All superfluous clauses that previously existed, or currently exist in the Queleshian proposal-at-vote, are more related to time-limits on detention rather than on the legality of the detention itself.

I think a re-focus as to what HC really is, is necessary.

Might I suggest a general clause along the lines of "RECOMMENDS that WA Member Nations set reasonable limits, appropriate for their own population, with regards to the maximum length of detainment for criminal offenses." That's general enough that it isn't micromanaging and should maybe help to gain the votes of some of the fluffies.

Otherwise, yes, I think this is something I would be able to support. But, again, more fluffy preamble may not be a bad thing for those that are now going to be confused and think that Habeas Corpus is everything that is in the current draft, rather than the rather straightforward protections that you are offering in this draft.

Yours,
Nikolas Eberhart
Ambassador from the Doctoral Monkey Feet of Mousebumples
WA Delegate for Monkey Island

I guess I could throw in a recommendation clause but, again, it's not really habeas corpus. As for a re-focusing of the preamble, that may not be such a bad idea.

I'll see what other suggestions I receive regarding the inclusion of a recommendation clause. I'm not entirely averse to it.

We completely agree with the new approach, although would prefer the addition of a clause stating:
"Such detention must not be arbitrary or for its own sake."

The Noble Republic disagrees wholeheartedly with the very intent of this legislation. A Lord's power of local arrest is one of the most sacred feudal privileges allowed our noble families. A Lord must justify his intent to God above and so is not required to justify it to small-folk. A noble, on the other hand, must have the right of habeas corpus for it violates the Noble Conventions of 1375 to detain members of another noble house without good reason. Our local lords will retain the power of local arrest for that is the only way to maintain the precarious balance in which our Most Noble Republic exists.

Long live the Noble Republic, Long live the Prince-Elect, and Long Live the Lord-Speaker of the Lansraad
Jacob of House Tarbold, the seventh of his name, and legate to the World Assembly

Libraria and Ausitoria wrote:We completely agree with the new approach, although would prefer the addition of a clause stating:
"Such detention must not be arbitrary or for its own sake."

Hmm. I may include something along those lines. While I was hoping to keep this a short and sweet proposal, I think an addition similar to that which you've suggested would strengthen the proposal. Thank you for the suggestion, Ambassador.

The Blue Plains wrote:The Noble Republic disagrees wholeheartedly with the very intent of this legislation. A Lord's power of local arrest is one of the most sacred feudal privileges allowed our noble families. A Lord must justify his intent to God above and so is not required to justify it to small-folk. A noble, on the other hand, must have the right of habeas corpus for it violates the Noble Conventions of 1375 to detain members of another noble house without good reason. Our local lords will retain the power of local arrest for that is the only way to maintain the precarious balance in which our Most Noble Republic exists.

This resolution mandates that those who are detained may question the validity/legality of their detention before an impartial arbitrator. This doesn't affect your nation's power of arrest.