Legal Issues Not Directed at Anyone in Particular

[Baron Alexandreu Davinescu]

Just a thread to collect legal questions for my own interest.

[Baron Alexandreu Davinescu]

Org.VIII.4 says that, "Unless otherwise set by law, re-appointment shall be deemed automatic if no member of the Ziu has requested a re-appointment vote in the Cosa immediately preceding the expiration of the Judge's term; and re-appointment shall only require a simple majority of each house in the Ziu."

When is "immediately?"  There is no comparable example anywhere in the law that I can find.  In a time when four months or more might pass between legislation being passed, it seems as though "immediately" must at least embrace that minimum amount of time (since the interval isn't set in Cosa sessions, but years).  But this is one of those Zeno's provisions... if four months is immediate, then four months and a day?  Where do we draw the line?  Is six months immediate enough?  No idea.

[Baron Alexandreu Davinescu]

Org.VIII.5 seems to set out that a justice can be removed from their seat by simple majorities: "A Judge shall remain on the Cort pü Inalt for the duration of their term, until they choose to retire, or, as prescribed by law, until such time as the Ziu shall remove him or her from their seat or until he or she can no longer perform their duties on account of incapacitation."  (ie "A Judge shall remain on the Cort pü Inalt for the duration of their term, until ... as prescribed by law, until such time as the Ziu shall remove him or her from their seat ...")

This is curious, since the procedure for the warning written into the law has much higher requirements: "[A] Notice of Reprimand must receive, in addition to requirements of other legislation, two-thirds support in the Cosa and majority support in the Senate."  But unless I'm missing something, the Ziu could pass a law saying that they may remove justices at whim (or for whatever arbitrary standard they set) and then do it.  So it'd just take two Clarks.

[Baron Alexandreu Davinescu]

There are numerous provisions of el Lexhatx that exceed Org.VII.3's ennumerated powers on their face.  But would they be covered by Org.VII.3.18's power to regulate "relations between provinces" (AKA the Talossan Commerce Clause)?  One day we'll find out.

[Baron Alexandreu Davinescu]

Any party with a majority in the Ziu and any province can create themselves a friendly Senats seats whenever they please.  A simple act of the Ziu creates a new province from the existing one and assigns whatever specific citizens they want, however they please (as long as it includes one active person and nine other citizens).  Theoretically this could be done multiple times, in fact, if there are enough citizens available -- but I think only Benito could actually do it more than once right now (yielded two new ten-person provinces and one four-person province).  As far as I can tell, there is nothing to prevent this.  It's actually a significant danger, since any majority in the Ziu is going to command a majority in at least a couple of provinces, and two Senats votes would be a big deal.

[Baron Alexandreu Davinescu]

The changes to the Twelfth Covenant seem to permit the Ziu to expel any citizens it pleases based on their census responses.  It is clearly intended to refer to Org.X.5, but is only refers instead to "census law."  So a provision of el Lexhatx would qualify, and the Ziu could simply pass a special law to run a one-time census that's not anonymous, and then boot out of the country any group that they please.  You could ask whether or not someone had ever held seats for a certain party, for example, and then proscribe them for "intimidation."  This trick's a little rough and would need some fiddling, but there's a pretty big hole here for someone to exploit.

[Baron Alexandreu Davinescu]

Getting a little obvious I got side-tracked from writing my book, I think.  Better get back to it.  More to come as I notice.

[Eðo Grischun]

Any party with a majority in the Ziu and any province can create themselves a friendly Senats seats whenever they please.  A simple act of the Ziu creates a new province from the existing one and assigns whatever specific citizens they want, however they please (as long as it includes one active person and nine other citizens).  Theoretically this could be done multiple times, in fact, if there are enough citizens available -- but I think only Benito could actually do it more than once right now (yielded two new ten-person provinces and one four-person province).  As far as I can tell, there is nothing to prevent this.  It's actually a significant danger, since any majority in the Ziu is going to command a majority in at least a couple of provinces, and two Senats votes would be a big deal.

I'll bite on this one for academic debate.

Isn't everything you wrote in the quoted statement just democracy?

A party with a majority in parliament would have been democratically elected, so as long as it's actions are not inOrganic and also fall within the Organic powers vested in VII.3 then the governing party can pretty much do whatever it likes*.  That's just parliamentary democracy. 

If a government then chooses to carry out the actions you write about above, they could only do it following ratification from the original province.  The Ziu can only create new provinces, from OrgLaw, "such that the sovereignty and territory of any extant Province is not altered without the consent of that Province".  So, a referendum would need to be held.  Again, this is democracy.

For the events in your example to occur and reach conclusion, then a party would need to first convince the electorate to democratically elect them into majority to form a government, followed by the Ziu passing legislation in line with the Organic Law, followed by a democratic ratification from the original province, simultaneously with the democratic proclamation of the people forming the citizenry of the new province(s).  This is all just democracy.

The "friendly Senator" is just an incidental by-product, and it would probably be temporary as there would be no guarantee for the governing party that the Senate seat would remain in their control beyond the next election.


*Talossa's parliamentary system doesn't explicitly include the concept of imperative mandate.  In fact, it's not even an implied concept bound by protocol or tradition.  The concept just doesn't exist within our systems.  Sometimes, and only sometimes, we have seen members of the Ziu mention the term 'mandate', including myself, however, it holds no real legal basis in Talossa.  A government can legally do whatever it likes and pass all kinds of laws even if they never campaigned on that issue in the previous election.  This all may be an accidental result of Talossa's somewhat odd system where American influenced federal aspects, and concepts like elected bicameralism, smash together with concepts of parliamentarianism, and also that the parliamentary system in Talossa is actually pretty, pretty weak and has many major parliamentary concepts missing.  Some may argue this is by design.  Again, probably a result of American influences, such as the very strong desire for constitutional supremacy over parliamentary sovereignty (in a Talossan context, the OrgLaw being superior to the Ziu). 


***


This does make me think about another related point which has always had me feeling uneasy, by the way.  You are correct that it is somewhat easy not difficult not impossible for the Ziu to change the composition of the provinces.  However, at the same time, the provinces themselves are entirely disallowed to secede from the nation (or any territorial subdivision for that matter).  But, the provinces are also supposed to be Sovereign and autonomous at the same time.   This has never made a whole lot of sense to me; nor does it sit right with my personal ideological stances (anyone who knows my macro-national political views wouldn't be too surprised at this).

The provinces find themselves trapped within a quasi-federal union in which they are not allowed to leave.  It is inOrganic for them to even attempt to secede, while simultaneously having the Organic status of being "inherently Sovereign and autonomous". 

Org.IX.10 has similarities to Scotland's situation with requiring Westminster's permission to ask ourselves questions about our own self determination, and also with Catalonia's situation where they are constitutionally barred from same.  It also doesn't jibe well with Talossa's own spirit of self secession.

[Miestră Schivă, UrN-GC]

I'm frankly amazed. AD is giving a whole bunch of ammunition for the Attorney-General's long-standing ambition to rewrite the OrgLaw from top to bottom. Never thought I'd see the day I saw those two on the same page  :D

The main reason that I'm honestly iffy about the question is precisely that it would degenerate into Duelling Pedants, and no consensus would emerge.

[Baron Alexandreu Davinescu]

Any party with a majority in the Ziu and any province can create themselves a friendly Senats seats whenever they please.  A simple act of the Ziu creates a new province from the existing one and assigns whatever specific citizens they want, however they please (as long as it includes one active person and nine other citizens).  Theoretically this could be done multiple times, in fact, if there are enough citizens available -- but I think only Benito could actually do it more than once right now (yielded two new ten-person provinces and one four-person province).  As far as I can tell, there is nothing to prevent this.  It's actually a significant danger, since any majority in the Ziu is going to command a majority in at least a couple of provinces, and two Senats votes would be a big deal.

I'll bite on this one for academic debate.

Isn't everything you wrote in the quoted statement just democracy?

A party with a majority in parliament would have been democratically elected, so as long as it's actions are not inOrganic and also fall within the Organic powers vested in VII.3 then the governing party can pretty much do whatever it likes*.  That's just parliamentary democracy. 

If a government then chooses to carry out the actions you write about above, they could only do it following ratification from the original province.  The Ziu can only create new provinces, from OrgLaw, "such that the sovereignty and territory of any extant Province is not altered without the consent of that Province".  So, a referendum would need to be held.  Again, this is democracy.

For the events in your example to occur and reach conclusion, then a party would need to first convince the electorate to democratically elect them into majority to form a government, followed by the Ziu passing legislation in line with the Organic Law, followed by a democratic ratification from the original province, simultaneously with the democratic proclamation of the people forming the citizenry of the new province(s).  This is all just democracy.

The "friendly Senator" is just an incidental by-product, and it would probably be temporary as there would be no guarantee for the governing party that the Senate seat would remain in their control beyond the next election.

Sure, it's all democracy in the sense that a party must win a majority in the Ziu at least once to be able to do this, but it's clearly not an intended feature of the system.  It could be done in one Clark, and it's not clear to me that there's any requirement at all for provincial referenda.  You'd just need the government of a province, then you could carve out a new province from the old one and have the old one's government approve the deal.  One hiccup does occur to me -- this would alter the composition of the Senats, so it would maybe need to actually pass one high bar before this would work.  Hmm, so this one might actually not be a problem, thanks to that feature of the OrgLaw.

[Baron Alexandreu Davinescu]

I'm frankly amazed. AD is giving a whole bunch of ammunition for the Attorney-General's long-standing ambition to rewrite the OrgLaw from top to bottom. Never thought I'd see the day I saw those two on the same page  :D

The main reason that I'm honestly iffy about the question is precisely that it would degenerate into Duelling Pedants, and no consensus would emerge.

Obviously, I disagree with this take.  Most of these issues thus far come from the language of the amendment you guys just passed a few months ago.  If anything, it seems like that would be an argument against it, unless the process is improved.  Assign someone in the in-group to root through this term's huge revamp and try to find problems.  Unless someone is actively looking for them, you won't find them, and someone else will later.

Also and separately, it's been a year since you guys rewrote almost the whole of the OrgLaw, and then in the next term two entire articles were then redone again.  Now you want to rewrite the whole, again?  Maybe the pace of large revisions suggests that it might make sense to slow down?

[Eðo Grischun]

Any party with a majority in the Ziu and any province can create themselves a friendly Senats seats whenever they please.  A simple act of the Ziu creates a new province from the existing one and assigns whatever specific citizens they want, however they please (as long as it includes one active person and nine other citizens).  Theoretically this could be done multiple times, in fact, if there are enough citizens available -- but I think only Benito could actually do it more than once right now (yielded two new ten-person provinces and one four-person province).  As far as I can tell, there is nothing to prevent this.  It's actually a significant danger, since any majority in the Ziu is going to command a majority in at least a couple of provinces, and two Senats votes would be a big deal.

I'll bite on this one for academic debate.

Isn't everything you wrote in the quoted statement just democracy?

A party with a majority in parliament would have been democratically elected, so as long as it's actions are not inOrganic and also fall within the Organic powers vested in VII.3 then the governing party can pretty much do whatever it likes*.  That's just parliamentary democracy. 

If a government then chooses to carry out the actions you write about above, they could only do it following ratification from the original province.  The Ziu can only create new provinces, from OrgLaw, "such that the sovereignty and territory of any extant Province is not altered without the consent of that Province".  So, a referendum would need to be held.  Again, this is democracy.

For the events in your example to occur and reach conclusion, then a party would need to first convince the electorate to democratically elect them into majority to form a government, followed by the Ziu passing legislation in line with the Organic Law, followed by a democratic ratification from the original province, simultaneously with the democratic proclamation of the people forming the citizenry of the new province(s).  This is all just democracy.

The "friendly Senator" is just an incidental by-product, and it would probably be temporary as there would be no guarantee for the governing party that the Senate seat would remain in their control beyond the next election.

Sure, it's all democracy in the sense that a party must win a majority in the Ziu at least once to be able to do this, but it's clearly not an intended feature of the system.  It could be done in one Clark, and it's not clear to me that there's any requirement at all for provincial referenda.  You'd just need the government of a province, then you could carve out a new province from the old one and have the old one's government approve the deal.  One hiccup does occur to me -- this would alter the composition of the Senats, so it would maybe need to actually pass one high bar before this would work.  Hmm, so this one might actually not be a problem, thanks to that feature of the OrgLaw.

You're using words like 'problem'.  I'm asserting that it isn't a problem at all.  What I'm arguing is that the Ziu should be able to do all this and for it not to be an issue.  Again, this is the constitutional United States perspectives smashing up against Westminster parliamentary perspectives.  I am arguing that the actual "problem" is that the OrgLaw makes things difficult for the Ziu to do what it wants, but I say that from a point of view where parliamentary supremacy is more important to me than being tied to a rigid written constitution.

***

it's not clear to me that there's any requirement at all for provincial referenda.

The OrgLaw literally says "such that the sovereignty and territory of any extant Province is not altered without the consent of that Province".  Yes, it could be argued that that line can be interpreted to mean 'not altered without the consent of that province's executive assembly", but I think the nature of the provinces, the spirit of the OrgLaw and all prior convention pretty much makes a referendum necessary.  I would trust that the Court would also think the same.

[Marcel Eðo Pairescu Tafial, UrGP]

Honestly parliamentary supremacy is probably one of the worst concepts of the British political system. It basically means everything is ad hoc, and the only thing that prevents abuse on a massive scale is either precedent (which can always be disregarded since Parliament is supreme) or the good will of every actor involved. It's a recipe for disaster.

[Eðo Grischun]

Honestly parliamentary supremacy is probably one of the worst concepts of the British political system. It basically means everything is ad hoc, and the only thing that prevents abuse on a massive scale is either precedent (which can always be disregarded since Parliament is supreme) or the good will of every actor involved. It's a recipe for disaster.

The alternative being that you end up restricted by a document written a couple of hundred years ago in a different age with different needs and without foresight of what the future may bring.  I have a lot of problems with Westminster, but the ad hoc and pragmatic nature of British constitutional affairs is not one of them.

[Marcel Eðo Pairescu Tafial, UrGP]

The alternative being that you end up restricted by a document written a couple of hundred years ago in a different age with different needs and without foresight of what the future may bring.  I have a lot of problems with Westminster, but the ad hoc and pragmatic nature of British constitutional affairs is not one of them.

Constitutions can be (and are) regularly updated and patched. The American notion of treating their Constitution almost like a holy text is as alien to me as it is to you, I'm sure.

But I do believe that there must be barriers against abuse, and a written constitition seems to me like the best way of setting them up. The German constitution for example can be changed with a supermajority in both chambers of Parliament, no problem, except for its first and twentieth article, which deal with the inviolability of human dignity and the concepts of republicanism, democracy, federalism, popular sovereignty, rule of law and the right to resist against anyone planning to undermine or overthrow this liberal democratic basic order, respectively. Everything else is fair game. Of course, it helps that the German constitution isnt hundreds of years old, but you get the idea.