[LEGALITY CHALLENGE] Extrajudicial Punishment Ban

by **Thyerata** » Mon Apr 17, 2017 9:30 am

Resolution text here:

Extrajudicial Justice Ban
Category: Human Rights
Strength: Mild

The World Assembly,

Understanding that numerous circumstances result in the occurrence of extrajudicial activity in a member nation, such as the overworking or underfunding of the police, corruption of a nation’s legal system, or the base need for retributive justice innate within us all,

Believing, however, that the prejudiced punishment of unconvicted or untried suspects to be immoral due to it leading to the harming of innocent people, and that proper attention should be given to ensuring the fair trial of all persons incriminated of unsavory acts under the rule of law,

Hereby defines:

Extrajudicial punishment as punishment apart from a formal legal system, for those suspected of criminality or transgressions against society or persons.

Hereby mandates:

No member nation shall allow for the occurrence of extrajudicial punishment through refusing to enact proper legal punitive measures on those who enact extrajudicial punishments on suspected individuals.

All member nations must make extrajudicial punishment a criminal or civil offence subject to the sentencing of the differing jurisdictions of their respective legal systems.
Clarifies that nothing in this legislation criminalizes interference in criminal activity until the appropriate representatives of the law arrive to arrest the suspected individuals, as long as those individuals do call upon those representatives within a reasonable amount of time.

Clarifies further that this proposal does not apply to nations lacking a formal legal system.

Encourages further neutrality and objectivity in member nations courts and criminal procedures, along with measures to mend social ills that lead to prejudiced extrajudicial punishment against certain groups of people.

Thread: viewtopic.php?f=9&t=408117

I say that the draft resolution is illegal as a duplication of GAR37 (Fairness in criminal trials), in that this clause here

MANDATES that all persons charged with criminal offences in the jurisdictions of member nations shall be brought to trial with such reasonable speed as is consistent with both prosecution and defence properly assembling available relevant evidence;

effectively, by its requirement that all accused should face trial, prohibits vigilante justice. This draft also seeks to prohibit vigilante justice. Since GAR37 already does this, the new draft is duplicative and illegal

by **Bears Armed** » Mon Apr 17, 2017 9:43 am

My initial opinion on this is that the clause in GA Resolution #37 which you're citing refers to "all persons charged with criminal offences", but extrajudicial punishment doesn't involve [formal] charges so this wouldn't be illegal for duplication on that point.

However, possibly there's also the question of GA Resolution #9 to consider: Its clause '1' defines 'Torture', whose use that resolution prohibits, as

an act of intentionally inflicting pain, severe discomfort or suffering on a person for the purposes of intimidation, coercion, personal punishment or interrogation, or to extract information, confession or concession to demands from them or any other person, where committed with the approval or assistance of a government official or person acting in such capacity.

so any vigilante actions carried out with that "approval or assistance" are arguably banned already.

by **Bakhton** » Mon Apr 17, 2017 10:46 am

Bears Armed wrote:My initial opinion on this is that the clause in GA Resolution #37 which you're citing refers to "all persons charged with criminal offences", but extrajudicial punishment doesn't involve [formal] charges so this wouldn't be illegal for duplication on that point.

However, possibly there's also the question of GA Resolution #9 to consider: Its clause '1' defines 'Torture', whose use that resolution prohibits, as
an act of intentionally inflicting pain, severe discomfort or suffering on a person for the purposes of intimidation, coercion, personal punishment or interrogation, or to extract information, confession or concession to demands from them or any other person, where committed with the approval or assistance of a government official or person acting in such capacity.
so any vigilante actions carried out with that "approval or assistance" are arguably banned already.

However, there are many forms of extrajudicial punishment which may not fall under torture, such as the killing of a person. Personal punishment is a thoroughly vague term.

by **Araraukar** » Mon Apr 17, 2017 12:07 pm

Bakhton wrote:However, there are many forms of extrajudicial punishment which may not fall under torture, such as the killing of a person.

If you want to ban murder, write it up as banning murder, don't try to put it under the guise of vigilante justice.

by **Calladan** » Mon Apr 17, 2017 12:15 pm

Bears Armed wrote:My initial opinion on this is that the clause in GA Resolution #37 which you're citing refers to "all persons charged with criminal offences", but extrajudicial punishment doesn't involve [formal] charges so this wouldn't be illegal for duplication on that point.

However, possibly there's also the question of GA Resolution #9 to consider: Its clause '1' defines 'Torture', whose use that resolution prohibits, as
an act of intentionally inflicting pain, severe discomfort or suffering on a person for the purposes of intimidation, coercion, personal punishment or interrogation, or to extract information, confession or concession to demands from them or any other person, where committed with the approval or assistance of a government official or person acting in such capacity.
so any vigilante actions carried out with that "approval or assistance" are arguably banned already.

What if it's just a lunatic on the street? Someone who has no connection to the government in any way, shape or form? Wouldn't that render your objection totally and utterly pointless?

by **Aclion** » Mon Apr 17, 2017 3:28 pm

Araraukar wrote:
Bakhton wrote:However, there are many forms of extrajudicial punishment which may not fall under torture, such as the killing of a person.

If you want to ban murder, write it up as banning murder, don't try to put it under the guise of vigilante justice.

It's just an example. A vigilante could also subject a person to forced labor, public humiliation, destroy or seize the persons possessions or force them to read GA legality challenges.

by **Araraukar** » Mon Apr 17, 2017 3:51 pm

Aclion wrote:A vigilante could also subject a person to forced labor

Slavery's banned.

public humiliation

...not sure this needs to be banned at all. If something like undressing them is involved, that probably goes under whatever the resolution is that bans sexual violation.

destroy or seize the persons possessions

Isn't there already a resolution against this? Or was that just governments doing that? Also, I seriously doubt any reasonable nation wouldn't already have a law against theft. (Except possibly some weird ones like PPU...)

or force them to read GA legality challenges.

Pfft, try Araraukarian law books if you want torture.

Although, torture's banned too...

by **Bakhton** » Mon Apr 17, 2017 3:54 pm

Also not all extrajudicial punishments are personal. Sometimes mobs round people up together indiscriminately due to an attribute.

by **Araraukar** » Mon Apr 17, 2017 3:56 pm

Bakhton wrote:Sometimes mobs round people up together indiscriminately due to an attribute.

Such as, you know, discrimination?

by **Covenstone** » Mon Apr 17, 2017 4:30 pm

i still do not understand why this is being challenged.

I am clearly a government officer, being Crown Princess. But my sister - Enigma "Black Sheep" Winters - isn't. she has a small tattoo parlour on the outskirts of the town.

if she puts on a cape and tights and goes round beating the crap out of people at night because she thinks they did something bad then how does that contradict anything written here?

she is not acting as an agent of the government, because she does not work for the police, the secret service, the witch burners (who were disbanded six months ago anyway) or any other government agency.

she is not enacting personal punishment because she herself has not been injured - she is just doing what she does because she is (she thinks) helping bring a sense of closure for the victims when the police cannot.

because she is not an agent of the government, it doesn't really matter why she is doing it (coercion, interrogation and so on) so resolution nine doesn't apply.

and since it is not arbitrary (because they are black, witches, not witches or whatever) then it doesn't class as discrimination. She is picking her targets very specifically - they did something bad, so they get a visit from The Angel.

finally - what if you don't have laws against common assault in your country? the original challenge to this was that someone who was acting as a vigilante must be brought to justice so this propsoal was unecessary, but what if they aren't breaking the law and so do not need to be brought to justice in the first place? also what if they are not committing a crime when they are out vigilantying? (which I think is a perfectly cromulent word).

so I would suggest that this proposal doesn't contradict anything. or at least there are cases where it might not be.

(i guess I should point out that Enigma is not going out and doing this. she runs a turtle farm off the main road out of Covenstone and that takes up most of her time. Those creatures are HUGE and repairing the fences is a never ending and thankless task!)

by **Bakhton** » Mon Apr 17, 2017 4:49 pm

Araraukar wrote:
Bakhton wrote:Sometimes mobs round people up together indiscriminately due to an attribute.

Such as, you know, discrimination?

Not necessarily. There are circumstances where discrimination laws and torture protections don't apply. For instance, if a mob targets people at random to accomplish a goal in order to punish a society that would be extrajudicial punishment as well. Also, targeting criminals is not so much as discriminating but acting in the role of law enforcement, in a sense, attempting to subsume their purpose without authorization. That's what this proposal is about.

by **Bakhton** » Mon Apr 17, 2017 4:54 pm

Covenstone wrote:finally - what if you don't have laws against common assault in your country? the original challenge to this was that someone who was acting as a vigilante must be brought to justice so this propsoal was unecessary, but what if they aren't breaking the law and so do not need to be brought to justice in the first place? also what if they are not committing a crime when they are out vigilantying? (which I think is a perfectly cromulent word).

It would still apply the same way. The main goal of this proposal is not to ban people punching each other, but to ensure that all nations illegalize extrajudicial punishments as a means of gaining future peace and progress. As well, Vigilantes that help communities would not be affected. I include in in my proposal an exception for the interference in criminal activity given that the necessary authorities are notified to arrest them. Future questions not on the legality should best be transferred over to the main thread discussing the proposal, also.

by **Araraukar** » Mon Apr 17, 2017 10:55 pm

Bakhton wrote:For instance, if a mob targets people at random to accomplish a goal in order to punish a society

Also known as terrorism. (Or in real life, probably civil unrest/rioting.)

Also, targeting criminals is not so much as discriminating but acting in the role of law enforcement, in a sense, attempting to subsume their purpose without authorization. That's what this proposal is about.

So write up something requiring the nations to have police forces (if that's possible) and in that text make other instances (except maybe military, since military police can exist) acting as law enforcement illegal. You don't really need ~~Batman~~ vigilantes in the mix.

I might be against that since PPU doesn't have or need police forces, but I thought to point it out as a viable alternative.

Bakhton wrote:As well, Vigilantes that help communities would not be affected.

Except the ones that seek to lower crime by taking out/punishing criminals... What else would a vigilante do? Help find lost dogs and steer elderly ladies across the street?

by **Covenstone** » Tue Apr 18, 2017 12:26 am

Bakhton wrote:
Covenstone wrote:finally - what if you don't have laws against common assault in your country? the original challenge to this was that someone who was acting as a vigilante must be brought to justice so this propsoal was unecessary, but what if they aren't breaking the law and so do not need to be brought to justice in the first place? also what if they are not committing a crime when they are out vigilantying? (which I think is a perfectly cromulent word).

It would still apply the same way. The main goal of this proposal is not to ban people punching each other, but to ensure that all nations illegalize extrajudicial punishments as a means of gaining future peace and progress. As well, Vigilantes that help communities would not be affected. I include in in my proposal an exception for the interference in criminal activity given that the necessary authorities are notified to arrest them. Future questions not on the legality should best be transferred over to the main thread discussing the proposal, also.

sorry - i kind of got carried away in explaining why I thought the legality challenge was not entirely warranted.

by **Thyerata** » Tue Apr 18, 2017 1:28 pm

Sorry if I haven't been very active - university work got in the way

This proposal is being challenged because, in my view, the bit of GAR37 that I initially quoted imposes a positive duty to bring anyone accused of a crime to trial. The proposal imposes a positive duty to ensure that no one accused of a crime - or accused in general - is dealt with by vigilante justice - effectively, they do the same thing. This viiolates the duplication rule

by **Imperium Anglorum** » Tue Apr 18, 2017 3:51 pm

Thyerata wrote:This proposal is being challenged because, in my view, the bit of GAR37 that I initially quoted imposes a positive duty to bring anyone accused of a crime to trial. The proposal imposes a positive duty to ensure that no one accused of a crime - or accused in general - is dealt with by vigilante justice - effectively, they do the same thing. This viiolates the duplication rule

The burden for the duplication rule is not just that there exists an interpretation which could be construed as duplicatory, it is that all reasonable interpretations must be duplicatory. It is long-held precedent that in cases otherwise, the voters ought be permitted to decide for themselves, and then, the matter becomes a political matter rather than a legalistic one. There ought be such a high bar on legality challenges, lest the Assembly be drowned in delaying tactics.

by **Covenstone** » Tue Apr 18, 2017 4:10 pm

Thyerata wrote:Sorry if I haven't been very active - university work got in the way

This proposal is being challenged because, in my view, the bit of GAR37 that I initially quoted imposes a positive duty to bring anyone accused of a crime to trial. The proposal imposes a positive duty to ensure that no one accused of a crime - or accused in general - is dealt with by vigilante justice - effectively, they do the same thing. This viiolates the duplication rule

it only imposes a duty, not an absolute necessity. if I commit a crime, but before I am brought to trial someone (not connected with the state - some nutjob off the street) ties me to a stake and burns me (because they think the state won't give them justice) then the state may have failed in its duty but at least it attempted to bring me to trial and so while it failed in that duty it wasn't the fault of the state.

by **Thyerata** » Wed Apr 19, 2017 12:19 am

Covenstone wrote:
Thyerata wrote:Sorry if I haven't been very active - university work got in the way

This proposal is being challenged because, in my view, the bit of GAR37 that I initially quoted imposes a positive duty to bring anyone accused of a crime to trial. The proposal imposes a positive duty to ensure that no one accused of a crime - or accused in general - is dealt with by vigilante justice - effectively, they do the same thing. This viiolates the duplication rule

it only imposes a duty, not an absolute necessity. if I commit a crime, but before I am brought to trial someone (not connected with the state - some nutjob off the street) ties me to a stake and burns me (because they think the state won't give them justice) then the state may have failed in its duty but at least it attempted to bring me to trial and so while it failed in that duty it wasn't the fault of the state.

But that would be a misconstruction of the word "mandates". The Oxford English Dictionary tells us, in relevant part, that the transitive verb "mandate" means

To command

or

to make mandatory or compulsory

(emphasis mine). Thus, the word "mandates", as used in the quoted section of GAR 37 does impose a clear positive requirement to ensure that anyone charged with a crime is brought to trial. Thus, any vigilante justice is impliedly prohibited by the terms of GAR37

The burden for the duplication rule is not just that there exists an interpretation which could be construed as duplicatory, it is that all reasonable interpretations must be duplicatory. It is long-held precedent that in cases otherwise, the voters ought be permitted to decide for themselves, and then, the matter becomes a political matter rather than a legalistic one. There ought be such a high bar on legality challenges, lest the Assembly be drowned in delaying tactics

Well, GenSec hasn't ruled on this yet. In fact, unless I'm mistaken, this is the first time GenSec has been asked to consider a challenge under the Duplication rule.

by **Araraukar** » Wed Apr 19, 2017 1:20 am

Thyerata wrote:Well, GenSec hasn't ruled on this yet. In fact, unless I'm mistaken, this is the first time GenSec has been asked to consider a challenge under the Duplication rule.

No, it's been done before. But why it's not used more often might be because it's damn near fucking impossible to get anyone to rule anything as duplication anymore. People are willing to look the other way in the name of drumming up more interest on the forum, or whatever. Annoys me a lot.

So good luck with getting a ruling on it.

by **Sciongrad** » Wed Apr 19, 2017 11:30 am

Araraukar wrote:But why it's not used more often might be because it's damn near fucking impossible to get anyone to rule anything as duplication anymore. People are willing to look the other way in the name of drumming up more interest on the forum, or whatever. Annoys me a lot.

The reason that there are not as many duplication violations as you would like is because there is a disconnect between how you want the duplication rule enforced and what the duplication rule actually does. For a proposal to violate the duplication rule, it must overlap significantly on substance with another resolution. In other words, a proposal that bans slavery would be illegal because of duplication. A proposal that tries to combat human trafficking could possibly be legal, however, because it seeks to clarify an area that's covered by international law but could probably use clarification. The threshold for violating the duplication rule has not been elevated in recent years -- this understanding of the rule dates back to Ard's interpretation of CoCR.

With this in mind: I'll note that GenSec will always welcome questions made in good faith but banging the war drums over every instance of minor duplication is probably a waste of time. In other words, please don't report minor instances of duplication --
just those where the proposal is almost in its entirety covered by another.

This is not an official ruling but it is consistent with precedent.

by **Araraukar** » Wed Apr 19, 2017 11:33 am

Sciongrad wrote:this understanding of the rule dates back to Ard's interpretation of CoCR.

So does my disagreement with it.

At least I'm consistent. :lol2:

by **Sciongrad** » Wed Apr 19, 2017 11:35 am

Araraukar wrote:
Sciongrad wrote:this understanding of the rule dates back to Ard's interpretation of CoCR.

So does my disagreement with it.

At least I'm consistent.

Fair enough! :lol:

But just know that the current duplication rule jurisprudence is so entrenched in precedent that we're unlikely to change it. It's probably just best to limit the challenges filed to those instances where the duplication truly is significant.

by **Thyerata** » Wed Apr 19, 2017 11:46 am

Sciongrad wrote:
Araraukar wrote:So does my disagreement with it.

At least I'm consistent.

Fair enough! But just know that the current duplication rule jurisprudence is so entrenched in precedent that we're unlikely to change it. It's probably just best to limit the challenges filed to those instances where the duplication truly is significant.

And as you will see, Scion, from my argument which I have stated in slightly different forms on a couple of occasions, I'm challenging the entire proposal as duplicative of the one quoted clause from Fairness in Criminal Trials.

I would supplement this by saying that, in the archives for GenSec's debates on the WA Peacekeeprs challenge, Separatist Peoples did expressly state that it is a general rule of construction that where the terms of legislation expressly provides for something, it excludes the alternatives or contradictors. The requirement to bring someone to trial, as provided and expressed in "Fairness in Criminal Trials" excludes the contradictory position - namely, vigilante justice, or extrajudicial punishment. I would ask you to uphold that rule of statutory construction.

by **Aclion** » Mon Apr 24, 2017 8:44 pm

As it has been a full week since this challenge has been raised I am formally a statement on it's status so as to prevent GenSec procedure from being used as a filibuster.

by **Thyerata** » Mon Apr 24, 2017 11:14 pm

Aclion wrote:As it has been a full week since this challenge has been raised I am formally a statement on it's status so as to prevent GenSec procedure from being used as a filibuster.

You're not GenSec so you have no power to do so. Sciongrad has told me that three of them have finals IRL, so they are going to wait until after then

[LEGALITY CHALLENGE] Extrajudicial Punishment Ban

[LEGALITY CHALLENGE] Extrajudicial Punishment Ban

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