Osiris Fraternal Order

Following the acceptance of an application for judicial review made by Councillor Cormac Montresor-Stark, a Court of Appeal of the Pschent has been convened to consider said application.

The applicant seeks resolution to the following two questions:

1. Are the honors granted under the Osiran Holidays and Honors Act and previously stripped by the Pschent -- the Violet Jewel of Atum and the Crown of Osiris -- automatically reinstated by full pardon, or must they still be reinstated by the Deshret?

2. Are the Pharaonic honors previously stripped by the Pschent -- the Nomarchy of Karnak and the Seal of Vigilance -- automatically reinstated by full pardon, or are these honors only to be reinstated by the Pharaoh as they are Pharaonic honors, or must they still be reinstated by the Deshret?

The State Code of Osiris (particularly, Subsection 2.8) and the Osiran Holidays and Honors Act (particularly, Section 2) are especially relevant statutes to this review. The judgment and sentence of the Trial Court in OFO v Cormac Stark and assorted material relating to the pardon of Councillor Cormac are also relevant (Proposal and Debate, Vote, Pharaoh's Statement).

The applicant, Councillor Cormac Montresor-Stark, and, until such time as a Scribe of Seshat is appointed, the Pharaoh, or a deputy nominated by Him may make submissions as a matter of course. Amici curiae may be appointed as considerations progress.

This thread shall remain open to allow for the announcement of the appointment of an Elder ad hoc by the Pharaoh and the agreement to such appointments by myself and the Chief Elder. However, submissions ought not be made yet, as the full membership of the Court has not been determined.

I'll be appointing Severisen as Elder ad hoc for this matter, if it pleases the Court.

I agree to the above appointment.

Thank you Elder. For submissions, Scribe of Justice Rogamark will be preparing and submitting any potential briefs from the Double-Crown.

I hereby agree to Severisen's appointment as an ad hoc Elder.

Wonderful, now that the Court has a full membership, we will hear submissions from Councillor Cormac and Scribe Rogamark.

Submissions should be directed at answering the questions before the Court, there is no need to rebut arguments made in the submissions of others (a chance for rebuttal will be given later, if there is disagreement between submissions). After submissions have been made there will be an opportunity for the Court to ask questions to clarify submissions and examine issues further.

Once the Court is satisfied that it has no pressing questions, there will be an opportunity for final submissions, followed by deliberation by the Court and judgment. Due to the Chief Elder having limited access to the internet and these proceedings not being particularly urgent, I will not place a time limit on matters yet.

Thank you, Elder. Scribe Rogamark for the Double-Crown, may it please the court.

In this case, petitioner Pharaoh Emeritus Cormac Montresor-Stark seeks a binding interpretation as to the question of whether or not a full pardon reinstates personal honors that have been automatically revoked as a result of a criminal conviction.[note]Osiran Holidays and Honors Act, section 2.6[/note]

In the absence of both clear precedent in this jurisdiction, and binding definitions of what exactly constitutes a "full pardon", we initially assume that a pardon is what most RL jurisdictions have defined as a pardon: an act of the government that removes the criminal sanctions inflicted upon an individual as a result of a conviction in a court of law. Which raises the question, is the revocation of honors a criminal sanction? While the petitioner is quite correct that it was expressly mentioned in the judgment against him[note]OFO vs. Cormac Stark, judgment[/note], then-Elder Joshua Ravenclaw correctly cited section 2.6 of the Osiran Holidays and Honors Act as the legal basis for the automatic revocation, which would have applied in any event, mentioned in the judgment or not. (On which legal basis he ruled that the petitioner would be allowed to petition the Deshret for reinstatement escapes the Double-Crown, seeing as there are no reinstatement provisions in the law, and this right is clearly a privilege rather than a penalty, and therefore not covered under the State Code.[note]State Code of Osiris, section 4.4[/note])

We therefore respectfully submit to the court that the revocation is not part of the criminal sanctions against the petitioner, but rather an automatic civil consequence of his felony/high crime conviction. There is ample RL precedent for this interpretation, e.g. the loss of voting or gun rights in numerous countries, which apply even though judges do not expressly adjudicate it in their written judgment. Following this logic, the answer to both questions would be no, a pardon does not reinstate any honors. All it does is to remove the criminal sanctions of a conviction, not the conviction itself with all its ramifications.

Of course we are free to define "pardon" any way we wish. An equally tenable interpretation, also based on RL precedent, would be that a pardon, as understood in the Osiris Fraternal Order, is meant to allow the recipient to start over with a clean slate. Nothing in the law would prevent the court from ruling that a pardon does actually remove the criminal conviction itself, or at least all its consequences. The question is which interpretation is more consistent with the spirit and intention of Osiran law as a whole.

With that in mind, the Double-Crown favors the second interpretation.

Under the law[note]Osiran Holidays and Honors Act, section 2.6, II[/note], an individual convicted of a felony or high crime is not only stripped of all the honors they might have received in the past, but also prevented from ever earning them again. While that may be justified in cases where defendants simply serve out their criminal judgment, we have an entirely different situation with recipients of a pardon. Pardons do not just fall from heaven. The Pharaoh needs to declare it, the Deshret needs to approve of it[note]State Code of Osiris, section 2.8[/note]. That means prior to a pardon, a lot of people - both the executive and legislative branches of the government - need to be convinced the recipient deserves a second chance to fully participate in the region and community of the Osiris Fraternal Order.

And this is what a pardon, in our opinion, is about. To allow the recipient back into full participation in all aspects of the region. We submit that keeping them excluded from the system of honors is inconsistent with this objective, as well as with the general philosophy with regard to second chances in Osiris, which has served the region well in the past. Personally, I would prefer to keep revoked honors revoked permanently, but allow pardon recipients - or even regular convicted people, after a while - to earn them back. Unfortunately, even with the most generous of interpretations, neither the law in general nor the judgment in the petitioner's case permit that, it's all or nothing. We should go for "all" here. [note]And probably think about a few amendments to the Holidays and Honors Act, but that discussion is to be held in another venue[/note]

Therefore, the Double-Crown respectfully requests that the Pschent answers both questions in the first alternative and finds that a pardon does reinstate revoked honors.

If it pleases the Pschent, I have no lengthy submission as I am just seeking clarification for the purpose of setting future precedent, and have no strong legal opinion on this matter.

I will note that I concur that the conclusion the Double-Crown has reached is a reasonable one, particularly in light of the fact that the State Code permits the Pharaoh, with Deshret approval, to either pardon or commute the sentence of a convicted individual. This strongly implies that a pardon is distinct from a commutation of sentence, as a full commutation could be made without a pardon. Thus, I concur with Scribe Rogamark that a pardon could reasonably be interpreted not merely as a full commutation of sentence, but as expunging the conviction itself -- and all of the consequences derived from that conviction, including the automatic consequences mandated by the Osiran Holidays and Honors Act.

Thank you to the Elders of the Pschent for your consideration.

Thank you for your submissions. There will now be an opportunity for myself and my fellow Elders to ask any questions we may have, in order to clarify submissions and further explore this matter.

I will begin with a question directed towards a portion of the submission of Scribe Rogamark (though you may respond also, Councillor Cormac). Reference is made, in your first substantive paragraph, to the ruling of the Trial Court with respect to the reinstatement of honours, the portion of the ruling being thus: "You [Councillor Cormac] may appeal to the Deshret of Osiris in 15 months time to ask for [the revoked honours] to be restored to you. Honoured Citizen Status will not apply until you successfully re-apply for citizenship". While it is somewhat academic if the Court accepts your submission that the pardon removes both conviction and sentence, you state that there does not seem to be legal authority for that portion of the ruling, would you suggest that this Court should, regardless of whether it accepts the proposition with respect to pardons, clarify that such reinstatement is not available for future such cases?

Secondly, with respect to what is alluded to by the fact that this Court is considering two distinct, albeit related, questions, are there distinctions between the honours specified under the Osiran Holidays and Honors Act and honours created through the Pharaoh's discretionary power under said Act, beyond that the non-specified honours do not grant honoured citizen status? Specifically what I am driving at here, is whether, presuming there is a difference, it could be said that the revocation of the non-specified honours (for a minimum of 15 months with reinstatement dependent on the Deshret) was not required by the said Act and was, in fact, an exercise of the authority to determine penalties under Subsection 4.4 of the State Code and part of the sentence?

Thirdly and more generally, though aimed at determining whether any guidance of the kind I have alluded to in my first question can be given, does this Court have the authority to overrule earlier decisions?

Thank you, Elder. Our position is that the revocation of honors in this particular case was not, in fact, part of the criminal sentence. We think the presiding Elder noticed the same problem as we did, that the Osiran Holidays and Honors Act (hereinafter HHA) is extremely harsh on people who have served out their criminal sentence, in that it not only strips them of all honors, but also prevents them from ever getting them back, even from receiving any awards whatsoever ever again, and found that this would be excessive in the case of the petitioner. And yes, the State Code gave him broad discretion in sentencing. He was, however, aware that the revocation is an automatic, civil consequence - we know that because in the judgment he expressly refers to the relevant section of the HHA - and therefore not subject to the trial court's discretion, especially not by adjudicating additional provisions that directly contradict the plain language of the law.

However, we are also mindful that the presiding Elder's ruling with respect to awards was just and fair in this specific case, and what's more important, the judgment formally stands. The only way to alter a criminal judgment would have been an appeal pursuant to section 2.15 of the rules of this court. And while I absolutely would have appealed this portion of the sentence had I been Scribe of Justice at that time, the Double-Crown considers the matter res judicata. Not only does the court lack jurisdiction to overrule the provision because a) it is not sitting as Court of Appeals on the issue, and b) the seven days for filing an appeal have long expired, the Double-Crown would also be acting in bad faith if it sought a reformatio in peius at that late stage. We do concede that the judgment transforms an excessive consequence for the petitioner into an extremely lenient one, but we will just have to live with that.

In any event, we do agree that the issue is somewhat academic, given that there are only two choices here: Either the court finds that a pardon removes only the criminal consequences of a conviction, in which case the petitioner would have to petition the Deshret for reinstatement. Or it decides that a pardon essentially expunges a conviction, or at least removes all consequences that stem from the conviction for which it was granted. In any event, I will be seeking an amendment to the HHA as soon as this proceeding is over, to avoid precisely this situation in the future, and possibly to relax the automatic double revocation/ban provision a bit, which we consider to be extremely harsh.

As for the difference between HHA-created and Pharaonic honors, Pharaoh's authority to create and award them stems from the HHA as well, so both are awarded on the same legal basis and are governed by the same provisions regarding revocation. The fact that the ones confer honored citizen status while the others don't has, in our opinion, no bearing on the questions currently before the court.

Edit: Replaced "civil" with "criminal" in the third paragraph, I must have been a bit confused when I wrote that.