[CHALLENGE] Repeal P. Innocents

[Bananaistan]

Challenge thread here: viewtopic.php?f=9&t=454061

Time limited to remaining voting time: two days and 19 hours at time of this post.

Given that CD is still absent, we're not expecting to see Sciongrad for another few weeks, and SL has recused in the public thread, there's only three of us for this.

I move that we here the challenge. In the middle of the irrelevant discussion on US constitutional law and the meandering morass of references to the dictionary and past rulings, I feel that, at least, the certification argument appears reasonable.

[Bananaistan]

Re: criminals. The repeal does not claim that the target prohibits the extradition of all criminals. Perhaps this will fall out differently during debate, but my first, second and third reading of this clause all suggest to me that there's more than a grain of truth in clause i. This is tailor made for the allowable embellishments and exaggerations part of the honest mistake rule.

However, I think the certification argument holds water and I note that Auralia, author of the challenged proposal, accepts this. The defendant can avoid capital punishment by not exhausting all available appeals but this is because of the requirement in clause 8 of the target that the defendant must have exhausted all available appeals. There is nothing in the target which states that the defendant must have exhausted all appeals in order for the Division to certify.

[Bears Armed]

here's a copy of my latest post in the main GA forum's thread about this challenge:

Honest Mistake
*<snip>*
I identified two.

(1) Criticising(i) "arbitrarily prohibiting member states from extraditing criminals to nations with capital punishment, even those who agree to abide by the protections of the target resolution".

The target resolution says:

Member nations shall not extradite, except to World Assembly judicial institutions or jurisdictions without capital punishment, any person charged or likely to be charged with a capital offence.

Two arguments. First, criminals are persons who have been found guilty of a crime, not those who have been charged of such a crime (some astute observers will note that such an interpretation would mean the guilty can be extradited, but that is not the case, due to Banning Extrajudicial Transfer). To say that criminals are the persons affected is factually incorrect, for the target resolution only deals with persons charged or likely to be charged with capital offences.

Second, even if criminals includes persons who are accused of a crime (which it doesn't), then there still has to be dealt with the claim that criminals are barred from being extradited to nations with capital punishment. This is false. A convicted burglar who is wanted on extradition to another nation that has capital punishment will not be barred by my resolution, since that person is not likely to be charged with a capital offence.

Criminals are not barred from being extradited to nations with capital punishment. They are barred from being extradited to nations where they could suffer capital punishment. The former is a significantly more broad claim, since most offences and extraditions are not for capital offences. To claim that is the case is both factually inaccurate and a massive overstatement of the scope of section 7.

Disagreed on the first argument, because as the repeal doesn't actually say "all criminals" -- which would be inaccurate -- it can just as easily be read as "some criminals" which is okay. There's admittedly a bit of exaggeration involved in that wording, even under the latter interpretation, but it's no worse than some of the exaggeration that I've seen in some of your proposals (such as the current attempt at repealing 'On Universal Jurisdiction', for example).
Agreed on the second point.

(2) Criticising(j) "seemingly permitting a defendant to avoid capital punishment by simply not "exhaust[ing] all available appeals" because then the Division cannot certify the case"

The Division can certify the case if all available appeals are not exhausted.

After having re-read both pieces of legislation: Agreed.

Two discards needed in a row...
"<sigh...>*
Honestly, sometimes nowadays it feels like the GA's getting close to the point where Max needs to replace GenSec with an actual lawyer...

[Separatist Peoples]

Hey, GenSec is gonna have three lawyers in a few years.

I also think this should be discarded. I think we needn't touch the issue of preemption at all. The second argument carries it to my mind. The repeal argues a condition of extradition that the target does not impose, in part or in whole.

[Bears Armed]

3-0 for Discard... 2 probable absentees.. How long do we leave in case either Scion or CD comes along and wants to give an opinion too, before placing the 'Discard' request?

And should we start re-considering how much absence is reasonable before replacement is sought? More members active at a time would hopefully reduce the chance of illegal proposals getting this far...

[Bananaistan]

Given that the 3-0 vote could not be overturned even if CD and Scion now voted legal, there’s no point in hanging around. I’ll flare accordingly.

[Bananaistan]

Draft:

*** General Assembly Secretariat Decision ***
Challenged Proposal: Repeal "Preventing The Execution Of Innocents"
Date of Decision: 21 November 2018
Decision: Proposal is illegal, 3-0
Rules Applied: Honest mistake

We find the challenged repeal legal in respect of the honest mistake rule. Bananaistan wrote the majority opinion, joined by .... . Sierra Lyricalia recused due to having a competing repeal in drafting.

The repeal was challenged on two points under the honest mistake rule.

The first point was that subsection (i) in the "criticising" section of the repeal which maintains that the target "arbitrarily [prohibits] member states from extraditing criminals to nations with capital punishment" is an honest mistake because:

a) the target uses the formula "any person charged or likely to be charged with a capital offence" which is not synonymous with criminals, and
b) criminals not charged with capital offences could still be extradited.

Despite lengthy discussion in the public challenge thread, GenSec did not reach a consensus on this point of the challenge.

The second point of challenge was the claim in the repeal that the target would "seemingly [permit] a defendant to avoid capital punishment by simply not "exhaust[ing] all available appeals" because then the Division cannot certify the case" was an honest mistake because the Capital Cases Division is not empowered to withhold certification for the reason that not all repeal avenues have been exhausted.

We agree that the target does not establish that the defendant must have exhausted all appeals in order for the Division to certify. We note that the repeal author accepted this claim. We find that this point of the challenge is an honest mistake.

@ BA and Sep.

[Separatist Peoples]

Looks good

[Bears Armed]

Looks good

Okay.