Retrospective law and punishment

meditraitor

Maybe this is not the right forum but politics is relevant to my query....

At present the laws of this country are not robust enough to protect the people from political misadventure, the lax regulatory system that has played a part in our economic woes can be directly attributed to a failure by our political classes to punish or self regulate bad governance.

After the next election when the opposition have a mandate to govern can(should) they implement laws that will change this policy? but more importantly is there a democratic threat by passing new laws retrospectively to punish said misadventure from previous governments.

What do you think? Is retrospective punishment (in what we think is a progressive governed society) democratic?

oppenheimer1

meditraitor wrote: »

Maybe this is not the right forum but politics is relevant to my query....

At present the laws of this country are not robust enough to protect the people from political misadventure, the lax regulatory system that has played a part in our economic woes can be directly attributed to a failure by our political classes to punish or self regulate bad governance.

After the next election when the opposition have a mandate to govern can(should) they implement laws that will change this policy? but more importantly is there a democratic threat by passing new laws retrospectively to punish said misadventure from previous governments.

What do you think? Is retrospective punishment (in what we think is a progressive governed society) democratic?

As far as I'm aware retrospective law is unconstitutional.

Scofflaw

oppenheimer1 wrote: »

As far as I'm aware retrospective law is unconstitutional.

True - in Bunreacht Article 15:

5. 1° The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

That said, I would favour an inquisition-after-office system with a broad legal remit entitled to punish 'reckless', 'profligate', or 'self-serving' behaviour in office under an ethics act.

cordially,
Scofflaw

Laminations

oppenheimer1 wrote: »

As far as I'm aware retrospective law is unconstitutional.

As far as I'm aware we can have a referendum to sort that out, where there's a will there's a way. Laws should be enacted to expand CAB to have the powers to seize transferred assets and pensions. Fingleton and Fitzpatrick to name just two of the more prominent mismanagers should be living in a shoebox, there are many more, Neary, Molloy, Bertie, Cowen, Drumm, Lynn who shouldve facing the courts and have harsh financial penalties for their fvck ups

oppenheimer1

Laminations wrote: »

As far as I'm aware we can have a referendum to sort that out, where there's a will there's a way. Laws should be enacted to expand CAB to have the powers to seize transferred assets and pensions. Fingleton and Fitzpatrick to name just two of the more prominent mismanagers should be living in a shoebox, there are many more, Neary, Molloy, Bertie, Cowen, Drumm, Lynn who shouldve facing the courts and have harsh financial penalties for their fvck ups

Such an amendment would have to be drafted very carefully as it was this constitutional protection that prevented the health minister from taking the pensions of old and disabled people in care and using them for paying for their care. We've seen too how the UK anti-terror laws are being used in very questionable circumstances. If there was to be an amendment in order to seize assets retrospectively the amendment would have to be specific so as to ensure future governments don't abuse this power.

I think there are enough laws in existence to pin down the people that caused the mess. There just has to be the will to find the evidence and continue through prosecutions.

meditraitor

oppenheimer1 wrote: »

I think there are enough laws in existence to pin down the people that caused the mess. There just has to be the will to find the evidence and continue through prosecutions.

Is there enough laws, and if so why are they being ignored?

oppenheimer1

meditraitor wrote: »

Is there enough laws, and if so why are they being ignored?

Maybe the will doesn't exist to exact those laws. Perhaps the cases are so complex that they are taking time to build. Only time will tell, however due to the seriousness of the mess we're in the will of the people to see those that were at the top table giving their pound of flesh won't go away. If there is a case to be made and its the current govt thats dragging their heels, there would be easy brownie points to be earned if the new govt decided to urge prosecutions.

However I fear that it wasn't just at the top table the "problems" existed but also at county council and town manager and planning levels, so the current opposition might not smell of roses closer to the grass either.

Einhard

It doesn't matter whether it's democratic or not, it's unjust. One can't punish people for actions which were legal when they carried them out. It's a horrible idea.

Manic Moran

As far as I'm aware we can have a referendum to sort that out, where there's a will there's a way.

Extremely dodgy idea. It's considered important enough to be in the Constitution for a reason. And not just the Irish one, it's in the American one too.

The amount of misery that could be caused by retroactive lawmaking is endless. Heck, they could drop the speed limit at your house by 25mph, and suddenly those speed camera records of you doing 1mph under at the time will land you a lovely big fine, all the better to help the budget.

NTM

Laminations

Manic Moran wrote: »

Extremely dodgy idea. It's considered important enough to be in the Constitution for a reason. And not just the Irish one, it's in the American one too.

The amount of misery that could be caused by retroactive lawmaking is endless. Heck, they could drop the speed limit at your house by 25mph, and suddenly those speed camera records of you doing 1mph under at the time will land you a lovely big fine, all the better to help the budget.

NTM

Well I'd agree with Oppenheimer that any such change would need to be carefully drafted but I think you miss the concept of 'where there's a will there's a way'. There is absolutely no will nor want to retrospectively enact traffic laws or most any other law. Oppenheimer is right in that we do have laws to deal with this but these laws have loopholes. The problem here is that members of the elite seem to be treated very differently when they owe billions/millions, they exploit every loophole in the laws. If they brought in that you'd forfeit a degree of your pension if it emerged you'd mismanaged or seriously misbehaved while employed, costing the tax payer X amount, then I doubt people would have a problem with that, because you got a pension that you really didn't earn and definitely don't deserve. Yes we can, going forward, tighten our laws, close off loopholes and prevent rulings of innocence through technicality but that won't punish the major players who behaved in a 'dodgy' unethical and self serving way but technically did nothing illegal.

Where there's a will there's a way and there's a will to get these people and I'd rather see it done this way than public lynchings, which if this was France would be happening already.

Laminations

The phrase 'closing the stable door after the horse has bolted' applies here. We need a lassoo introduced in our constitution to reign on these wayward horses but such a lassoo cannot be used on other things, people, tractors (in other words it needs to be quite specific as to what can retrospectively be pursued).

Do you think it's right that men like Molliy and Neary and Fingleton enjoy large pensions? Do you think it's right that men like NcNamara and Fitzpatrick can live off assets they transferred to their wives? It's not right but it is currently legal and changing the laws now will only change that for future cases, it will not rectify the justice in the current cases

SeanW

Manic Moran wrote: »

Extremely dodgy idea. It's considered important enough to be in the Constitution for a reason. And not just the Irish one, it's in the American one too.

The amount of misery that could be caused by retroactive lawmaking is endless. Heck, they could drop the speed limit at your house by 25mph, and suddenly those speed camera records of you doing 1mph under at the time will land you a lovely big fine, all the better to help the budget.

NTM

Retroactive law is also against the Universal Declaration of Human Rights. Article 11, Section 2.
http://www.un.org/en/documents/udhr/index.shtml

Manach

Whilst I'd not favour retrospective laws and it is definitelya too much of a stretch, there is the example of the Nuremberg Trials. Here the principle of retrospective law was used under the remit of the revised concept of Natural Law. This is actually is part of the constitution and was used in cases such as McGee v AG [1974].

Manic Moran

There is absolutely no will nor want to retrospectively enact traffic laws or most any other law.

So what's your dividing line? 60% of the population? 80% of the population? Full unanimity?

If something is not illegal, there should be no criminal punishment for it, period. If you still think an outcome or event is unfair, you can attempt a civil suit under the laws of equity to obtain redress.

NTM

mikemac

Horrible idea
And we have a constitution to protect against this

The OP wants punishment for those who caused our economic woes.

You'll have to use existing laws, as retrospective legislation is such a messy issue that even if you got a conviction it would be immediately appealed.

meditraitor

feelingstressed wrote: »

The OP wants punishment for those who caused our economic woes.
.

]

I do indeed, but its obvious that under current laws the politicians and civil servants that have caused this mess are protected against incompetance by arcane laws.

I would go so far as to say the constitution needs a massive overhaul to bring it up to date.

Incompetance should not be a defence, and punishing it will make the next generation of politicians and cs think very hard before entering into a contract with our nation. If they want the responsibilty(money and power) they better know what they are doing.

OhNoYouDidn't

meditraitor wrote: »

]

I do indeed, but its obvious that under current laws the politicians and civil servants that have caused this mess are protected against incompetance by arcane laws.

I would go so far as to say the constitution needs a massive overhaul to bring it up to date.

Incompetance should not be a defence, and punishing it will make the next generation of politicians and cs think very hard before entering into a contract with our nation. If they want the responsibilty(money and power) they better know what they are doing.

You can't change the law to increase PS competence. You can't really change the law to increase accountability.

I'm all for the above, and more prosecution of White Collar Crime, but backdating the law is a no-no.

meditraitor

OhNoYouDidn't wrote: »

I'm all for the above, and more prosecution of White Collar Crime, but backdating the law is a no-no.

I had a fair few erdingers in me when I posted the thread, in the cold light of day I know its a crazy notion except in the most extroardinary of circumstances (dictators and the likes).

The replies have been informative as usual though.

Sir Oxman

Laminations wrote: »

The phrase 'closing the stable door after the horse has bolted' applies here. We need a lassoo introduced in our constitution to reign on these wayward horses but such a lassoo cannot be used on other things, people, tractors (in other words it needs to be quite specific as to what can retrospectively be pursued).

Do you think it's right that men like Molliy and Neary and Fingleton enjoy large pensions? Do you think it's right that men like NcNamara and Fitzpatrick can live off assets they transferred to their wives? It's not right but it is currently legal and changing the laws now will only change that for future cases, it will not rectify the justice in the current cases

I've been reading this with interest as I had posted something similar in the 'In the news' sticky but it got lost a bit.

I understand where the bad points are in retrospective legislation but here's a question - does anyone know if our govt has enacted any legislation since the National Disaster to stop in their tracks the shysters and gangsters transferring their assets to spouses/siblings etc?
Or legislation to freeze agreements on golden handshakes, 'performance' bonuses and huge pension pots to those who are in any way involved in the Disaster?

sfakiaman

Retrospective legislation is wrong for all the reasons outlined above, but penal rates of taxation on over inflated pensions is just a budgetary matter.

Laminations

sfakiaman wrote: »

Retrospective legislation is wrong for all the reasons outlined above, but penal rates of taxation on over inflated pensions is just a budgetary matter.

Yeah I do recognise the pitfalls and dangers of retrospective legislation outway the benefits, I was more posting out of a frustration over the apparent lack of anything being done. For example, has fingleton even paid back the 1 million?

I like the taxing approach. I can't see why, when they can introduce a sectoral tax i.e. the PS levy, that they can't introduce a pensions tax in the public and financial sectors (only for financial institutions that have now been nationalised or bailed out by the state).

A committee assessing the long term consequences of the performance of individuals who were responsible for long term decision making - with regard to the health and long term survival of the economy, the banks and the regulatory system - could decide the levels of tax applied

I'd also like to know (as does the poster above) if any new legislation has been enacted to tighten up on White collar crime, and how individuals were allowed offload assets to family members to avoid debts. If I had a mortgage I wouldn't be allowed transfer the house to my wife and tell the bank to swing.