Zesclaraziun da votă sür 58RZ3

[Üc R. Tärfă]

Estimat Túischac'h, me alçéu à deliverar va zesclaraziun da votă sür 58RZ3.

þon. Membreux dal Cosă,

although I can understand the reasons behind this bill and I engaged with its proponent, my honourable friend the Distain, in el Funal, I still have some issues with its final form as clarked and that's why I'd like to explain to all of you the reasoning behind my vote.

I do consider the Preamble to be not just a part of the law, but rather the act through which the new Legeu Orgänic is perfected and promulgated as the supreme law of the Regipäts. And, as I commented elsewhere, I do strongly believe the Preamble, in its capacity as the promulgating instrument, to be the terminus a quo of a new Legeu Orgänic that is distinct from the previous one originally promulgated in 1997 and many times amended through the years.

In its capacity as the promulgating instrument of the Legeu Orgänic I do believe we should restrain to amend it ordinarily as it has a peculiar and quite distinct juridical nature from any other part of the Legeu Orgänic itself. The promulgating instrument has an ephemeral nature that starts and ends with the proclamation of the LegOrg If I can make a comparison, it is like a law which only amends el Lextatx (or the LegOrg): as soon as it is perfected it has no longer any juridical power in itself because its only function was to amend another law - el Lextatx - which is the one which is in force. If another law repeals the amending law, el Lextatx is not amended as well (resuscitating the old text) as the amending law has already exausted its function the moment it became en force: it is just a relic.
Can we amend a relic, a legal document with an ephemeral nature that no longer emanates power - i.e. juridical consequences - from it? And if we do, aren't we de facto and de jure creating "a new proclamation" which requires itself to be promulgated in 2023?

Keeping this in mind, I believe that if we might collectively decide to endeavour to amend the Preamble - but I'm not sure, as I stated above, that we actually can or should without creating a new proclamation - we should at least limit ourselves to correct blatant mistakes or scribal errors for the sake of posterity and not alter it for any other motivation.

In this particular situation, I think that the "2017" reference in the Preamble is just a scribal error originated in copy-and-pasting the original draft (which was made in 2017) in the final form of the bill, and although it has became customarily to refer to it as the "2017 Organic Law", the Preamble should have had the date of the coming into force of the Legeu Orgänic at the end of the legislative process, which is the date when it was promulgated. Only the promulgation date has a legal meaning worth to be used as a reference and to be included in the Preamble while the drafting date has only an archivist interest.

To conclude, this amendment doesn't satisfy what my conscience believes to be the right course of action in this matter.

Per această raziun, eu vot contră.

Méirci à toct, smestéu el tarleu.

[Baron Alexandreu Davinescu]

Can we amend a relic, a legal document with an ephemeral nature that no longer emanates power - i.e. juridical consequences - from it?

Yes. The bill would do that, successfully.  It's the equivalent of a label or a sign.

And if we do, aren't we de facto and de jure creating "a new proclamation" which requires itself to be promulgated in 2023?

No.  The Organic Law was promulgated in 1997, and has been amended many times since.  While it was changed in many places in the 2017 revisions, the vast majority of the text remained the same, the structures remained the same, and our system remained the same.  It was partially amended through the process detailed within itself.  In neither detail nor function nor legal reality is it a new document.

It's the 1997 Organic Law. It's pretty neat that we have a constitution that dates back to 1997.  That's a rare thing among nations like our own. It has a majesty to it. We should accurately refer to it by the date when it first became effective, since there's not really any good reason to pretend it's something a lot newer.

[Üc R. Tärfă]

Estimat Túischac'h,
I'll thank my honourable friend the Distain for his reply to my zesclaraziun da votă. I'd like to offer a brief response.

Can we amend a relic, a legal document with an ephemeral nature that no longer emanates power - i.e. juridical consequences - from it?

Yes. The bill would do that, successfully.  It's the equivalent of a label or a sign.

Clearly that was a rethorical question, but it gives me the opportunity to further delve into the matter. The question that we should ask ourselves is not whether we can tangibly alter the text of a law approved by the Ziu, but rather what are the legal consequences of an alteration and the legal status of that piece of legislation we are altering.

The Preamble, as I argued before, the proclaiming instrument of the Legeu Orgänic. In a nutshell it can be simplified to:

WE, JOHN I, by the grace of God, King of Talossa, etc., etc., etc., [...] do ordain and establish, by and through the consent of the Talossan People, as the supreme law of our Realm, this 2017 Organic Law.

It's only - but powerful - function is to promulgate the following text approved by the Ziu and confirmed by the People. It's the written version of the real act of our King thorugh which he "ordain and establish" the Legeu Orgänic and in the exact moment it acquired legal force, it infused legal force and authority to the following articles as the supreme law of the Regipäts. In that precise moment the Preamble exhausted its function. It no longer propagates consequences, as it has an ephemeral nature: the perpetual legal consequences are emanated from the Articles, which have an immanent nature.

The Ziu can approve a bill to amend the text of, for example, 57RZ1 - The Poor, Unfortunate Souls Citizenship Act, but what are the legal consequences of such a bill? None. Because in the exact moment 57RZ1 acquired legal force it amended the Lexhatx, and exhausted its function. The legal consequences of that act are now propagated by the Lexhatx.

It would be pointless to alter a text with an ephemeral nature, unless we would do that to correct scribal errors for the sake of posterity and accuracy. That's why I made reference to the 2019 date. The current version of the the Legeu Orgänic was adopted by the Ziu with 53RZ18 in July 2019 and approved by the People in a referendüm held in November 2019. In my personal opinion that's the date the text should be refered as. And no, the date of drafting and the date of approval of a text have not equal standing: the former is only of academic concern while the latter is the date when - from a legal point of view - the text came to be.

No.  The Organic Law was promulgated in 1997, and has been amended many times since.  While it was changed in many places in the 2017 revisions, the vast majority of the text remained the same, the structures remained the same, and our system remained the same.  It was partially amended through the process detailed within itself.  In neither detail nor function nor legal reality is it a new document.

It's the 1997 Organic Law. It's pretty neat that we have a constitution that dates back to 1997. That's a rare thing among nations like our own. It has a majesty to it. We should accurately refer to it by the date when it first became effective, since there's not really any good reason to pretend it's something a lot newer.

Shall we pretend that King John was the King of Talossa in 1997? Our Monarch has many powers and qualities, but I'm pretty sure that time travelling is not one of them.

How can we pretend that a Preamble that starts with WE, JOHN I, by the grace of God, King of Talossa, etc., etc., etc., was promulgated in 1997? Until July 2019 we repeatedly amended a text that started with WE, ROBERT I, by the grace of God, King of Talossa, etc., etc., etc.,, and that was clearly still the 1997 Legeu Orgänic, amended, but the same.

But with 53RZ18 we unconsciously did something different, something new.
We changed eveything, even the Preamble.

In the sacred virtual scroll that contained the text of the Legeu Orgänic every word, every punctuations was erased and a new text, certainly in a beautiful and pompous handwriting, was written. The scroll is the same, it derives it's authority from the 1997 proclamation WE, ROBERT I [...] do ordain and establish but now says WE, JOHN I [...] do ordain and establish. A new act of proclamation, a new proclaming instrument was born in that moment. Rooted on the 1997 one, the "scroll" is the same, but radically different.

I cannot say if it is a new Legeu Orgänic or a new version of the previous Legeu Orgänic but certainly it something different from any other amendment ever approved because of that new Preamble. It has a new/different nature because now it's King John that ordain(ed) and establish(ed).

This is why I suggested the formula

this XXXX revision of the 1997 Organic Law

because it is neutral: it recognises that something extraordinary happened, that something different came to be without stating the exact nature of what came to be. But we can be sure of something: we cannot pretend that a text that starts with

WE, JOHN I, by the grace of God, King of Talossa, etc., etc., etc., [...] do ordain and establish, by and through the consent of the Talossan People, as the supreme law of our Realm, this 2017 Organic Law.

is a text proclaimed in 1997.

To conclude, I can only consider to support a text that amends a part of our legal system that has an ephemeral nature only, and only if, it has the purpose to put right (2019) something that is not (2017), otherwise I consider it pointless and dangerous. That's the reason why I voted contră on that bill, and I encourage all  the Membreux dal Cosă to vote contră as well.

Estimat Túischac'h, Talossa must be fun but it should and must be a damn serious fun reality.

Méirci à toct, smestéu el tarleu.

[Baron Alexandreu Davinescu]

The question that we should ask ourselves is not whether we can tangibly alter the text of a law approved by the Ziu, but rather what are the legal consequences of an alteration and the legal status of that piece of legislation we are altering.

Effectively, there will be no significant legal consequences or change in legal status.  We're changing some signage.

It would be pointless to alter a text with an ephemeral nature, unless we would do that to correct scribal errors for the sake of posterity and accuracy.

The point is that it's pretty neat that we have a constitution that dates back to 1997.  That's a rare thing among nations like our own. It has a majesty to it. We should accurately refer to it by the date when it first became effective, since there's not really any good reason to pretend it's something a lot newer.

This is why I suggested the formula

this XXXX revision of the 1997 Organic Law

because it is neutral: it recognises that something extraordinary happened, that something different came to be without stating the exact nature of what came to be. But we can be sure of something: we cannot pretend that a text that starts with

WE, JOHN I, by the grace of God, King of Talossa, etc., etc., etc., [...] do ordain and establish, by and through the consent of the Talossan People, as the supreme law of our Realm, this 2017 Organic Law.

is a text proclaimed in 1997.

The OrgLaw as amended by this bill would indeed read, "as the supreme law of our Realm, this 2017 revision of the 1997 Organic Law."   Your phrasing here makes it seem like you are unaware of that.  And that's certainly possible, since there have been some changes to the bill since originally introduced, and a lot has happened.  But if you recall, we had a discussion about this.  We agreed upon a compromise phrasing, and you said, "I'm fine with this" once we had reached a compromise.

I'm actually surprised to see you so vigorously opposing this bill when it seemed like you were signaling your support after I worked to accommodate your concerns, and after you appeared to agree to a compromise that would address the issue.

[Üc R. Tärfă]

Estimat Túischac'h,
I raise once more to reassure my honourable friend the Distain that I'm aware of the changes to the bill since originally introduced and of the discussion we had. And if he is worried that I might vote on a bill without actually reading it, I want to reassure him and all Membreux dal Cosă that it's not my habit.

Even if I don't fully agree with him that

The point is that it's pretty neat that we have a constitution that dates back to 1997.  That's a rare thing among nations like our own. It has a majesty to it. We should accurately refer to it by the date when it first became effective, since there's not really any good reason to pretend it's something a lot newer.

and I do believe that we should consider things as they are and not as we would like them to be, I suggested that reading, as I said before

because it is neutral: it recognises that something extraordinary happened, that something different came to be without stating the exact nature of what came to be

My honourable friend is right that during the discussion in the Hopper I said "I'm fine with this", but after that the Senator for Maritiimi-Maxhestic reminded us that 53RZ18 was approved in 2019. I had and have no problem admitting that I made a mistake: I had forgotten about the fact that the Amendamaintsch was approved in 2019 until then. After that, I signalled in the Funal not once, but twice that I consider the date of approval diriment.

Consistent with the above, I have clearly stated in my zesclaraziun da votă:

In this particular situation, I think that the "2017" reference in the Preamble is just a scribal error originated in copy-and-pasting the original draft (which was made in 2017) in the final form of the bill, and although it has became customarily to refer to it as the "2017 Organic Law", the Preamble should have had the date of the coming into force of the Legeu Orgänic at the end of the legislative process, which is the date when it was promulgated. Only the promulgation date has a legal meaning worth to be used as a reference and to be included in the Preamble while the drafting date has only an archivist interest.

and in the follow-up:

To conclude, I can only consider to support a text that amends a part of our legal system that has an ephemeral nature only, and only if, it has the purpose to put right (2019) something that is not (2017), otherwise I consider it pointless and dangerous. That's the reason why I voted contră on that bill, and I encourage all  the Membreux dal Cosă to vote contră as well.

I'm actually surprised myself to see that my honourable friend is surprised that I acted accordingly whith what I said.

To conclude S.reu Túischac'h, I must add that I consider my duty to the Regipäts as Membreux dal Cosă to partecipate in the Funal and to contribute to make our laws better in both text and legal theory regardless of whether I agree with them ot not.

Méirci à toct, smestéu el tarleu.

[Baron Alexandreu Davinescu]

My honourable friend is right that during the discussion in the Hopper I said "I'm fine with this", but after that the Senator for Maritiimi-Maxhestic reminded us that 53RZ18 was approved in 2019. I had and have no problem admitting that I made a mistake: I had forgotten about the fact that the Amendamaintsch was approved in 2019 until then. After that, I signalled in the Funal not once, but twice that I consider the date of approval diriment.

Reading over the exchange even now, it certainly doesn't appear as though you're saying that the issue of "2017" versus "2019" was sufficient to make you vote against the bill.  I guess I'm confused, despite your helpful quoting.  You expressed concerns, I found a compromise that you said worked for you, and you said, "I'm fine with this."  Even if you felt that the label should really be "2019 version" instead of "2017 version," it's very surprising to read your elegant speeches against the very principle of a bill that you were "fine with."

Anyway, our constitution dates back to 1997.  It's been amended a lot since then, but the structure and a majority of the phrasing are the same.  Legally, it's also the same document.  There hasn't been a new constitution proclaimed at any point; the changes to the Organic Law have exclusively occurred using the mechanisms within the Organic Law.

So since it is legally the same, and practically mostly the same, then it should be labeled the same.

Beyond that, it's also a pretty good thing for our image.  We're a small nation of a couple of hundred people; we have somewhat incomplete control over our sovereign territory and we mostly communicate using the Internet.  That's all very ephemeral.  It's very helpful to have some heft to our body politic; for that purpose, a constitution of 26 years' standing is useful.  We shouldn't discard that advantage.