Osiris Fraternal Order

Thank you for your answers. A brief further question and then I believe that I will be satisfied, though my fellow Elders may wish to ask questions of their own.

Is there any significant difference between the Court finding that a pardon expunges conviction and it finding that a pardon removes all effects, including automatic effects such as the revocation of honours, of a conviction but not the conviction itself, and is there any particular benefit to one over the other?

If there are no questions pending answers on Thursday then closing statements may be made then, after which the Court will deliberate before rendering judgment.

Datford-Zyvetskistaahn wrote:Sun Feb 07, 2016 7:38 pmIs there any significant difference between the Court finding that a pardon expunges conviction and it finding that a pardon removes all effects, including automatic effects such as the revocation of honours, of a conviction but not the conviction itself, and is there any particular benefit to one over the other?

Not in practice, it's more a question of legal philosophy. In RL there is a significant difference, for an expungement results in the sealing of all court records and the affected person is no longer considered a convict, it's like the criminal conviction just never happened. It is, however, still visible to law enforcement officers. A removal of all effects, on the other hand, has the same effect only that the conviction is still on the record, and the affected person is still considered a convicted felon, it just doesn't have any consequences anymore. (Rather than being sealed, records are usually annoted with something to the effect of "delivered in the furtherance of justice")

We simply think that a pardon resulting in removing all consequences is more practical for NS purposes than expungement, given that the important thing about expungement in RL - making sure other people except for law enforcement officers won't hear of the old conviction - is not a concern here. Our community is rather small, and it's the pool from which we draw both Elders of the Pschent and Priests of Seshat. We all do know the conviction happened, and an expungement wouldn't make any difference. The only practical difference I could envision are potential future criminal charges against the petitioner. An expungement would obviously make it impossible for the Double-Crown to bring up the old conviction as potential pattern evidence at trial.

As both the petitioner and the Scribe of Seshat have notified me that they do not intend to make closing submissions, the Court will begin its deliberations. Judgment will be issued once the Court has reached its conclusions.

Judicial Review, on the application of Cormac Montrestor-Stark
In relation to the Restoration of Honours following a Pardon Opinion delivered by Elder Datford-Zyvetskistaahn, joined by the Chief Elder Blaine Zeorus Montresor and Elder ad hoc Severisen Montresor.

On 21^st February 2014 the petitioner, Councillor Cormac Montresor-Stark, was found guilty by the Trial Court of the high crime of treason.[note]OFO v Cormac Stark[/note] A number of honours awarded to him were, as is noted in the judgment, consequently revoked, as is required under Osiran Holidays and Honours Act[note]Osiran Holidays and Honours Act s 2.6[/note] (the Honours Act). On 12^th January 2016 the Pharaoh, Tim Stark, proposed to the Deshret that a number of declarations of persona non grata be rescinded and a number of pardons issued, a pardon of the petitioner was included in those proposed. On 24^th January the proposed rescissions and pardons were passed by the Deshret.

The questions before the Court are whether the pardon removes the requirement of the Trial Court's judgment that the petitioner appeal to the Deshret to have the revoked honours restored to him,[note]OFO v Cormac Stark Chief Elder Lord Ravenclaw: "You may appeal to the Deshret of Osiris in 15 months time to ask for them to be restored to you. Honoured Citizen Status will not apply until you successfully re-apply for citizenship."[/note] and, instead, restores them automatically to him in respect of: a) the honours specified under the Honours Act;[note]Osiran Holidays and Honours Act s 2.1[/note] and b) the honours created through the Pharaoh's discretionary power, now codified in that Act[note]Osiran Holidays and Honours Act s 2.7[/note].

The Court was much assisted in its examination of these questions by the submissions of the Scribe of Seshat, Rogamark.

The primary issue in each of the questions is whether pardons issued by the Pharaoh, in exercise of His powers under the State Code,[note]State Code of Osiris s 2.8[/note] extends to expunging convictions (or, at least, all the effects of them) or simply to revoking sentences.

In many jurisdictions, in Real Life, a pardon is taken to mean a pardon from sentence that does not expunge conviction. This is not, as was noted before the Court by the Scribe of Seshat, conclusive to the meaning in Osiris, however, it can be properly taken into account to assist in determining what meaning it might have been expected to hold when the State Code was passed by the Deshret. There is also to be considered the issue that honours may also not be granted to anyone convicted of a high crime or felony,[note]See [2][/note] the Deshret, in including that provision in the Honours Act, presumably meant for it to be the case that removal of honours was permanent.

However, it cannot be said that it is certain that a pardon does not expunge conviction on the above basis, there is not precedent on the matter in Osiris and there are also Real Life jurisdictions in which pardon does expunge conviction. The Trial Court's decision, though this Court is unsure as to the legal basis of it, clearly limited the effect of the permanency of the prohibition on those convicted of high crimes and felonies from holding honours, as it permitted the petitioner to request for his honours to be reinstated where it could be said that he ought to have been permanently deprived of them.[note]See [3][/note] Further, as the power of pardon is one created by the State Code, the intent of the Honours Act is secondary and the crucial matter to be considered is what purpose that power is to serve: the Scribe of Seshat submitted to the Court that its purpose is to allow the pardoned individual to start over with "a clean slate"; the petitioner, though choosing not to make a lengthy submission, agreed with that of the Scribe of Seshat and, additionally, submitted that the wording "to pardon or commute"[note]See [6][/note] contemplates the possibility of a full commutation of sentence without pardon, necessarily implying that a pardon goes further.

The Court has given particular regard to the submissions of the Scribe of Seshat in determining what is the proper public policy, in relation to pardons, and agrees with him and the petitioner that pardons do extend further than full commutation and that it is proper that they should allow full reintegration of the pardoned individual into Osiris, including the ability to be granted honours, and that this is consistent with the Pharaoh's proposal and statement in relation to these matters and the Deshret's passage of not only the pardon of the petitioner but also the revocation of the persona non grata declarations that had been made against individuals who have, in the past, severely wronged the region. The Court, however, also takes the practical view that expunging a person's record of a conviction is not truly possible in communities as small as those that exist in NationStates. For these reasons, the Court holds that pardons remove all penalties of conviction, whether in the form of civil penalties such as the automatic revocation of honours and the privilege of receiving them here or criminal penalties resultant from sentence, but that the conviction will remain a matter of record.

A notable secondary issue that arose was whether there is a distinction to be made between the specified honours[note]See [4][/note] and the discretionary honours.[note]See [5][/note] It was submitted to the Court by the Scribe of Seshat that, aside from the former not granting honoured citizen status, there was no such distinction to be made and submitted that, in any event, it did not have bearing on the questions before the Court. The Court agrees, in view of its conclusion on the primary issue above, that it is not relevant to the questions before the Court whether there is a distinction, though the Court does not share the surety of the Scribe of Seshat in respect of there being no distinction.

Declarations of the Court

In view of the reasons afore the Court:

• Declares, in answer to the first question, that the specified honours, the Violet Jewel of Atum and the Crown of Osiris, granted to the petitioner under the Osiran Holidays and Honours Act are restored automatically to him by virtue of the pardon granted to him;
• Declares, in answer to the second question, that the Pharaonic honours, the Nomarchy of Karnak and the Seal of Vigilance, granted to the petioner by the Pharaoh under the said Act are restored automatically to him by virtue of the pardon granted to him.

I grant leave for this judgment and proceedings related to it to be disclosed.

Thank you to the esteemed Elders of the Pschent for this well reasoned and swiftly considered decision.

Thank you for that - remarkably well-written - ruling, we're very satisfied. Also to Elder Datford-Zyvetskistaahn for keeping the parties well-informed at all times, if every NS judge did that, it would make trials a lot easier.