Issues with the Pschent

[Datford-Zyvetskistaahn]

There are some issues in with the operation of the law, with regards to the Pschent, that I think it would be in our interest to address before they cause a serious problem. They are first, that there is no provision in law for conflicts of interest, and second, that the State Code requires that all decisions of the Pschent (except where the State Code provides otherwise) require a simple majority vote (of the Pschent).

The lack of provision in the law for the event of conflicts of interest creates two major problems. The first problem, of course, is that if all Elders have a conflict (unlikely, I will concede) then that trial becomes impossible without resignation and replacement, which is non-ideal, and a second is that, if two Elders have a conflict, the tried individual has no avenue for appeal without resignation and replacement.

The State Code requirement that "6. Unless otherwise noted by this Code, all decisions by the Pschent will be made by simple majority vote." creates a rather more prickly set of problems. Firstly it seems to suggest that the present system used for trials and appeals in the Rules is inconsistent with the Code. This, I say, is because all trials are decided by one Elder, and one out of three is not a simple majority (unless there is only one Elder on the Pschent); and further problem if, for example, there are only two Elders (as presently) or if there are only two without conflicts of interest, for it follows that the both the trial and the appeal would be decided by less than a simple majority of the Pschent; judicial reviews decided by only one Elder, due to the other two having conflicts of interest, could also be inconsistent, though are not so inherently inconsistent as the system for criminal trials.

I'd like to see if my concerns are shared and whether there is a belief that anything should be done about them. The first issue, of conflicts of interest and lack of provision for them in the State Code and law more widely (there is provision made in the Rules of the Pschent, but it is concerning what qualifies as a conflict and that Elders may not hear cases where they hold them, rather than a provision to deal with the possibility of there being no Elders to hear a case), can be resolved relatively painlessly, through an amendment to the State Code (allowing a temporary appointment of some kind, perhaps), before it becomes an issue.

There is, I think, a slight problem, however, in accepting the second concern as being well-founded, as it could then be said that we accept that cases decided so far have not been decided in a manner inconsistent with the Code (or, perhaps, not decided at all). I should, perhaps, note that I do not believe that the criminal trials that have been heard by the Pschent are necessarily voided in entirety by accepting so, due to the guilty pleas entered (with regards to the cases against Cormac Stark and Ridersyl), though the sentences issued may be.

[Ainocra]

I would think that a simple change of the procedure of the Pschent would suffice to address the concerns.
I suggest having it operate more like a circuit court three judge panel.



Have one judge hear a case on a rotating basis like now, and in the event of an appeal it goes to the a panel of all three judges.
Give the justices the leeway to recuse themselves in the event of conflicts of interest.
Perhaps add in something similar to what you had in mind for prosecutors, allow the Keeper to appoint a temp replacement should one be necessary and make it subject to the approval of the sitting justices.

Of course if you think an amendment is still necessary then I see no reason not to proceed.


just my thoughts

[Lord Ravenclaw]

I would note that I only handled previously outstanding cases because I was the only person available. Zeorus handled the request for review after much pleading from me given I had already been involved in the Deshret arguments and thus had a COI on the matter. I think I remember throwing out most of the Court Procedure on who handles cases temporarily when I had to handle Cormac and Syl's cases simply because of Juris being more dead than a dodo.

Of course if you want to void the sentences and welcome someone who committed treason and forum destruction respectively back into the community - be my guest. I used my discretion within the law when I passed those sentences and no appeals were filed - despite both defendants knowing they could appeal as they were informed of the right.

[Datford-Zyvetskistaahn]

To address the comments afore:

The issue with dealing with these matters through the Rules of the Pschent is that it seems, to myself at least, to be going somewhat beyond the Pschent's purview to create a mechanism for temporary appointments. The Rules are sufficient in terms of determining conflicts of interest and situations in which Elders should recuse themselves and in allowing for expedient management of cases (when there is a full Pschent), in my view, it is only in allowing for temporary appointments if the result is a court with too few Elders that the Rules are deficient for conflicts of interest.

I do not disagree that the mode of trial and appeal can be dealt with effectively by the Rules, indeed the current ones do so, I believe, the issue is the State Code provision that all decisions of the Pschent will be made by simple majority vote. Revising that provision, or actually entering exceptions to it into the State Code, would resolve it, but I do not believe that it is possible to get around it through the Rules of the Pschent.

With regards to Raven's comment, I do not contend that his actions were wrong either in the intent behind them or in their effects. I recognise that he acted to ensure that the Pschent was not rendered dysfunctional and that Osiris' criminal law was effective. I also recognise that the time for appeals in the criminal cases I noted has elapsed and that it is not possible for them to challenge their sentences now; I included mention of the possibility that the decisions could be considered inconsistent as I believe it possible that a future composition of the Pschent could entertain a judicial review of the Pschent's rulings and find them inconsistent (though I think it would be difficult to demonstrate standing to request such a review and, in any case, I would likely not involve myself in such judgment, due to my statements here).

I await further comment.

[Datford-Zyvetskistaahn]

I have drafted a bill to endeavour to rectify some of the issues mentioned, it places in law the basic structure of the courts (the procedures of them are largely left to the rules of the Pschent), creates a definition for conflicts of interest and a system for appointing "Elders ad hoc" to fill vacancies and absences in the Pschent and replace Elders with conflicts; enabling amendments to the State Code are made to allow for temporary Elders and to allow for making of decisions by fewer than a majority of the Pschent and to clarify an issue that could arise with making new rules once the majority clause is amended.

As it is a rather quick draft, I'd appreciate comments as to it as well as to the issues brought up generally.

Spoiler

Pschent Reform Bill

Section 1: Criminal Trials and Appeals

1. This Section shall apply for proceedings before the Pschent arising from valid charges of crimes contrary to the Criminal Codex of the Osiris Fraternal Order Act.

2. All valid charges that appear to one or more Elders of the Pschent to be supported by sufficient evidence as to require further investigation shall be tried before a Court of First Instance in accordance the rules of the Pschent.

3. Courts of First Instance shall consist of a single Elder, selected in such manner as the rules of the Pschent shall prescribe, who shall determine guilt or lack thereof and sentence.

4. After a verdict has been made by a Court of First Instance, there shall be a period of seven days during which the verdict or sentence may be appealed by the defendant or the Scribe of Justice or their deputy.

5. All appeals that appear to one or more Elders of the Pschent to require further investigation shall be tried before a Court of Appeal in accordance with the rules of the Pschent.

6. Courts of Appeal shall consist of three Elders, selected in such manner as the rules of the Pschent shall prescribe, who shall determine the appeal and may confirm, vary or overturn the decision being appealed.

7. The decisions of Courts of Appeal shall be made by a majority of their membership and shall not be liable to further appeal.

Section 2: Judicial Reviews

1. This Section shall apply for proceedings before the Pschent arising from applications for judicial review.

2. All applications for judicial review that appear to one or more Elders of the Pschent to be made by an affected citizen and to require further investigation shall be tried before a Court of Appeal in accordance with the rules of the Pschent.

3. Courts of Appeal shall consist of three Elders, selected in such manner as the rules of the Pschent shall prescribe, who shall determine the review and make such orders as are necessary to give effect to their determination.

4. The decisions of Courts of Appeal shall be made by a majority of their membership and shall not be liable to appeal.

Section 3: Conflicts of Interest and Temporary Appointments

1. Where an Elder of the Pschent holds an interest in a charge, appeal or application brought or made under the preceeding Sections of this Act, that Elder shall not participate in the making of any decision or determination in such proceedings and their office shall be considered vacant for such proceedings.

2. Where one or more Elders of the Pschent are absent or where there are one or more vacancies on the Pschent which would result in a Court of First Instance or a Court of Appeal lacking sufficient members, a citizen or citizens may be appointed as Elders ad hoc for the duration of a proceeding before the Court to which they are appointed.

3. Appointments by virtue of the preceeding Subsection shall be made by the Pharaoh, subject to the following:

(a) Where the vacancy or absence results in the lack of a single member of a Court of Appeal, the agreement of two Elders of the Pschent who are not absent shall be necessary for such appointment to be valid.

(b) Where the vacancy or absence results in the lack of two members of a Court of Appeal, the agreement of one Elder of the Pschent who is not absent, and of the Keeper of the Deshret shall be necessary for such appointments to be valid.

(c) Where the vacancy or absence results in the lack of all members of a Court of First Instance or Court of Appeal, the agreement of the Keeper of the Deshret, and of whichever Guardian of the Atef is first in the Pharaonic line of succession and who is not also Keeper of the Deshret shall be necessary for such appointments to be valid.

4. In relation to any case for which they are appointed, Elders ad hoc may exercise all powers of and shall hold responsibilities of Elders.

Section 4: Definitions

1. For the purpose of this Act, the following definitions shall apply:

(a) An "absence" shall mean any period of time during which a person has declared themselves absent or any period of time after a person does not log onto the regional forum for seven days and before the next time they log onto the regional forum.

(b) A "vacancy" shall mean any period of time during which an office has no holder, due to the holder having resigned or been removed, or is treated as having no holder for a time for any reason.

(c) An "interest" shall mean involvement in a charge, appeal or application, in the form of being a party in a case, counsel for any party in a case, a member of a Court that made the decision being appealed, or having some other substantial involvement in the matter or matters that have led to the charge, appeal or application.

(d) A "valid charge" shall mean a charge of any crime contrary to the Criminal Codex of the Osiris Fraternal Order Act that is not precluded by Section 8 of that Act.

(e) A "judicial review" shall mean a challenge to the lawfulness or constitutionality any act or omission of any official of the Osiris Fraternal Order or any law or rule made by any organ of the Osiris Fraternal Order.

Section 5: Consequential Ammendments to the State Code

1. In the State Code of the Osiris, after clause 4.1(b), a new clause is inserted that reads:

(c) Provision for temporary appointments may be made by law for absences of Elders, vacancies in the Pschent, or conflicts of interest.

2. Subsection 4.2 of the State Code of Osiris is amended to read:

2. The Pschent will have the power to make and revise its own procedural rules. This power may be exercised by any two Elders, if there are fewer than two Elders this power may be exercised by a single Elder.

3. Subsection 4.6 of the State Code of Osiris is amended to read:

6. Decisions of the Pschent shall be made in accordance with this Code, other laws and the rules of the Pschent.

Section 6: Enactment Provisions

1. No provision of this Act shall take effect unless all provisions of this Act take effect.

2. Should this Act take effect, Sections 5 and 6 of this Act shall be struck from the public record.

Spoiler

Section 4: Pschent of Osiris

1. The Pschent will be the judicial council of Osiris, comprised of three Elders of the Pschent appointed by the Pharaoh with the approval of the Deshret. Elders of the Pschent will not serve as Pharaoh, Vizier, Scribe of the Hedjet, Guardian of the Atef, or Keeper of the Deshret and will not serve as junior officials for any of these offices for the duration of their service on the Pschent.

(a) Only citizens of Osiris may be appointed to the Pschent.

(b) Elders may maintain active involvement in Priesthoods of the Hedjet and may serve as Councilors of the Deshret while serving as Elders.

(c) Provision for temporary appointments may be made by law for absences of Elders, vacancies in the Pschent, or conflicts of interest.

2. The Pschent will have the power to make and revise its own procedural rules. This power may be exercised by any two Elders, if there are fewer than two Elders this power may be exercised by a single Elder.

3. The Pschent will have the power to nullify any law or portion of law that contradicts this Code, and to order the cessation of any government action that violates this Code or the laws of Osiris. The Pschent may only exercise this power if petitioned to do so by an affected citizen of Osiris.

4. The Pschent will have the power to hear prosecution of alleged criminal offenses by the Scribe of Justice or their deputy, to decide guilt or the lack of it, and to determine penalties for guilty parties according to the standards established by law.

5. Decisions by the Pschent amount to interpretation of the law, and those decisions and interpretation are binding on the Pschent and all government bodies and officials.

6. Unless otherwise noted by this Code, all decisions by the Pschent will be made by simple majority vote.Decisions of the Pschent shall be made in accordance with this Code, other laws and the rules of the Pschent.

EDIT: To adjust slightly the wording of clause 3.3(c) to make it uniform with the other clauses in the subsection and to bring formatting of the bill in line with the State Code.

[Ainocra]

that looks good to me, seems to solve all the aforementioned issues quite nicely.

[Datford-Zyvetskistaahn]

There are a couple of areas of the draft that I find a bit unsatisfactory and haven't yet decided on a way to resolve.

First, with respect to the provisions used to determine whether charges, appeals or applications are heard (which each use variations on this "2. All valid charges that appear to one or more Elders of the Pschent to be supported by sufficient evidence as to require further investigation shall be tried before a Court of First Instance in accordance the rules of the Pschent."), there is a slight flaw in that it could fall to Elders who have interests in the case to make that determination and they are disqualified from doing so by virtue of Subsection 3.1 of the bill, so the charge, application or appeal would languish with no one able to accept it, as Elders ad hoc are only appointed once a court is lacking in members and the courts are only constituted once a case is accepted. So, to resolve this flaw I propose the following amendment to the bill:

1. Where an Elder of the Pschent holds an interest in a charge, appeal or application brought or made under the preceding Sections of this Act, that Elder shall not participate in the making of any decision or determination in such proceedings and their office shall be considered vacant for such proceedings.

2. Where the absences or vacancies of one or more Elders of the Pschent result in there being no Elder to accept a charge, appeal or application brought or made under the preceding Sections of this Act, a citizen shall be appointed as Elder ad hoc and shall determine whether the charge, appeal or application requires further investigation.

(a) Any charge that is not a valid charge shall be dismissed.

(b) Any application that is not made by an affected citizen shall be dismissed.

(c) Any Elder ad hoc appointed by virtue of this Subsection shall serve as an Elder ad hoc on the court constituted as a result of their determination, should their determination require the constitution of a court

2. Where one or more Elders of the Pschent are absent or where there are one or more vacancies on the Pschent which would result3. Where the absences or vacancies of one or more Elders of the Pschent results in a Court of First Instance or a Court of Appeal lacking sufficient members, a citizen or citizens may be appointed as Elders ad hoc for the duration of a proceeding before the Court to which they are appointed.

34. Appointments by virtue of the preceding Subsections shall be made by the Pharaoh, subject to the following:

(a) Where the vacancy or absence results in the lack of a single member of a Court of Appeal, the agreement of two Elders of the Pschent who are not absent shall be necessary for such appointment to be valid.

(b) Where the vacancy or absence results in the lack of two members of a Court of Appeal, the agreement of one Elder of the Pschent who is not absent, and of the Keeper of the Deshret shall be necessary for such appointments to be valid.

(c) Where the vacancy or absence results in the lack of all members of a Court of First Instance or Court of Appeal, or of any Elder capable of accepting a charge, appeal or application, the agreement of the Keeper of the Deshret, and of whichever Guardian of the Atef is first in the Pharaonic line of succession and who is not also Keeper of the Deshret shall be necessary for such appointments to be valid.

45. In relation to any case for which they are appointed, Elders ad hoc may exercise all powers of and shall hold responsibilities of Elders.

Another problem that could arise (though I think my drafting avoids it) is that Elders ad hoc could be interpreted as having the power to make and revise the rules of the Pschent. Personally, I think Subsection 3.4 (3.5 in the amended version above) avoid this as the powers of Elders ad hoc are "In relation to any case for which they are appointed", and the power to make and revise the rules is not, in my view, related to any one case but is a general power, so it is not possible for Elders ad hoc to exercise it. I would, however, welcome considerations of others on this matter.

The third (and I think final) issue, the grounds for appeal. Personally, I don't want to be overly prescriptive in this area, and so have left it for the Pschent to determine themselves, but I don't want it to be said that this is just to empower me, so I'm bringing it up now, fairly plainly, to say that if Councillors want to restrict appeals to specific circumstances they should use this bill to do so.

I should note, by the by, I have not included in the powers of the Court of Appeal the ability to remand a case back to a Court of First Instance. I am of the view that this is a slightly needlessly complex procedure for courts in nationstates, where the appeals courts generally have the ability to look at the exact facts on which the lower courts made their decisions, so I think, if a Court of Appeal is of the view that a Court of First Instance erred, then they should simply rectify it themselves rather than prolonging the process.

[Ainocra]

I honestly feel that you are overthinking this. your first draft would have dealt with the issues quite well.
most matters would have been resolvable after that by altering the procedure of the court.

Allowing the court to govern itself is preferable to having the Deshret do it in my view.

[War Wombat]

I also think that the first draft solves the problems in an efficient and succinct manner.

[Datford-Zyvetskistaahn]

I honestly feel that you are overthinking this. your first draft would have dealt with the issues quite well.
most matters would have been resolvable after that by altering the procedure of the court.

Allowing the court to govern itself is preferable to having the Deshret do it in my view.

Perhaps.

I think I shall make most of the amendment I proposed, however, as it is not within the gift of the Pschent to expand on the circumstances for appointing an Elder ad hoc, when the circumstances are prescribed and, thus, limited by statute. I'll leave out new clauses 3.2(a) and (b), though, and presume that Elders ad hoc will infer those requirements from the earlier clauses, I'll leave new clause 3.2(c) but rename it 3.2(a).

The bill, therefore, reads:

Section 1: Criminal Trials and Appeals

1. This Section shall apply for proceedings before the Pschent arising from valid charges of crimes contrary to the Criminal Codex of the Osiris Fraternal Order Act.

2. All valid charges that appear to one or more Elders of the Pschent to be supported by sufficient evidence as to require further investigation shall be tried before a Court of First Instance in accordance the rules of the Pschent.

3. Courts of First Instance shall consist of a single Elder, selected in such manner as the rules of the Pschent shall prescribe, who shall determine guilt or lack thereof and sentence.

4. After a verdict has been made by a Court of First Instance, there shall be a period of seven days during which the verdict or sentence may be appealed by the defendant or the Scribe of Justice or their deputy.

5. All appeals that appear to one or more Elders of the Pschent to require further investigation shall be tried before a Court of Appeal in accordance with the rules of the Pschent.

6. Courts of Appeal shall consist of three Elders, selected in such manner as the rules of the Pschent shall prescribe, who shall determine the appeal and may confirm, vary or overturn the decision being appealed.

7. The decisions of Courts of Appeal shall be made by a majority of their membership and shall not be liable to further appeal.

Section 2: Judicial Reviews

1. This Section shall apply for proceedings before the Pschent arising from applications for judicial review.

2. All applications for judicial review that appear to one or more Elders of the Pschent to be made by an affected citizen and to require further investigation shall be tried before a Court of Appeal in accordance with the rules of the Pschent.

3. Courts of Appeal shall consist of three Elders, selected in such manner as the rules of the Pschent shall prescribe, who shall determine the review and make such orders as are necessary to give effect to their determination.

4. The decisions of Courts of Appeal shall be made by a majority of their membership and shall not be liable to appeal.

Section 3: Conflicts of Interest and Temporary Appointments

1. Where an Elder of the Pschent holds an interest in a charge, appeal or application brought or made under the preceding Sections of this Act, that Elder shall not participate in the making of any decision or determination in such proceedings and their office shall be considered vacant for such proceedings.

2. Where the absences or vacancies of one or more Elders of the Pschent result in there being no Elder to accept a charge, appeal or application brought or made under the preceding Sections of this Act, a citizen shall be appointed as Elder ad hoc and shall determine whether the charge, appeal or application requires further investigation.

(a) Any Elder ad hoc appointed by virtue of this Subsection shall serve as an Elder ad hoc on the court constituted as a result of their determination, should their determination require the constitution of a court.

3. Where the absences or vacancies of one or more Elders of the Pschent results in a Court of First Instance or a Court of Appeal lacking sufficient members, a citizen or citizens may be appointed as Elders ad hoc for the duration of a proceeding before the Court to which they are appointed.

4. Appointments by virtue of the preceding Subsections shall be made by the Pharaoh, subject to the following:

(a) Where the vacancy or absence results in the lack of a single member of a Court of Appeal, the agreement of two Elders of the Pschent who are not absent shall be necessary for such appointment to be valid.

(b) Where the vacancy or absence results in the lack of two members of a Court of Appeal, the agreement of one Elder of the Pschent who is not absent, and of the Keeper of the Deshret shall be necessary for such appointments to be valid.

(c) Where the vacancy or absence results in the lack of all members of a Court of First Instance or Court of Appeal, or of any Elder capable of accepting a charge, appeal or application, the agreement of the Keeper of the Deshret, and of whichever Guardian of the Atef is first in the Pharaonic line of succession and who is not also Keeper of the Deshret shall be necessary for such appointments to be valid.

5. In relation to any case for which they are appointed, Elders ad hoc may exercise all powers of and shall hold responsibilities of Elders.

Section 4: Definitions

1. For the purpose of this Act, the following definitions shall apply:

(a) An "absence" shall mean any period of time during which a person has declared themselves absent or any period of time after a person does not log onto the regional forum for seven days and before the next time they log onto the regional forum.

(b) A "vacancy" shall mean any period of time during which an office has no holder, due to the holder having resigned or been removed, or is treated as having no holder for a time for any reason.

(c) An "interest" shall mean involvement in a charge, appeal or application, in the form of being a party in a case, counsel for any party in a case, a member of a Court that made the decision being appealed, or having some other substantial involvement in the matter or matters that have led to the charge, appeal or application.

(d) A "valid charge" shall mean a charge of any crime contrary to the Criminal Codex of the Osiris Fraternal Order Act that is not precluded by Section 8 of that Act.

(e) A "judicial review" shall mean a challenge to the lawfulness or constitutionality any act or omission of any official of the Osiris Fraternal Order or any law or rule made by any organ of the Osiris Fraternal Order.

Section 5: Consequential Ammendments to the State Code

1. In the State Code of the Osiris, after clause 4.1(b), a new clause is inserted that reads:

(c) Provision for temporary appointments may be made by law for absences of Elders, vacancies in the Pschent, or conflicts of interest.

2. Subsection 4.2 of the State Code of Osiris is amended to read:

2. The Pschent will have the power to make and revise its own procedural rules. This power may be exercised by any two Elders, if there are fewer than two Elders this power may be exercised by a single Elder.

3. Subsection 4.6 of the State Code of Osiris is amended to read:

6. Decisions of the Pschent shall be made in accordance with this Code, other laws and the rules of the Pschent.

Section 6: Enactment Provisions

1. No provision of this Act shall take effect unless all provisions of this Act take effect.

2. Should this Act take effect, Sections 5 and 6 of this Act shall be struck from the public record.

Spoiler

Section 4: Pschent of Osiris

1. The Pschent will be the judicial council of Osiris, comprised of three Elders of the Pschent appointed by the Pharaoh with the approval of the Deshret. Elders of the Pschent will not serve as Pharaoh, Vizier, Scribe of the Hedjet, Guardian of the Atef, or Keeper of the Deshret and will not serve as junior officials for any of these offices for the duration of their service on the Pschent.

(a) Only citizens of Osiris may be appointed to the Pschent.

(b) Elders may maintain active involvement in Priesthoods of the Hedjet and may serve as Councilors of the Deshret while serving as Elders.

(c) Provision for temporary appointments may be made by law for absences of Elders, vacancies in the Pschent, or conflicts of interest.

2. The Pschent will have the power to make and revise its own procedural rules. This power may be exercised by any two Elders, if there are fewer than two Elders this power may be exercised by a single Elder.

3. The Pschent will have the power to nullify any law or portion of law that contradicts this Code, and to order the cessation of any government action that violates this Code or the laws of Osiris. The Pschent may only exercise this power if petitioned to do so by an affected citizen of Osiris.

4. The Pschent will have the power to hear prosecution of alleged criminal offenses by the Scribe of Justice or their deputy, to decide guilt or the lack of it, and to determine penalties for guilty parties according to the standards established by law.

5. Decisions by the Pschent amount to interpretation of the law, and those decisions and interpretation are binding on the Pschent and all government bodies and officials.

6. Unless otherwise noted by this Code, all decisions by the Pschent will be made by simple majority vote.Decisions of the Pschent shall be made in accordance with this Code, other laws and the rules of the Pschent.

If there is no objection to the bill raised in the next three days, I'll move to vote. (Note: that is not, itself, a motion to vote, but is warning that I will make such motion in three days)