Prepare the Constitution for the Cabinet
michalptacnik opened this issue · comments
The Constitution is being drafted in this document. Currently, various parties are adding their comments. These need to be put into the document.
Sources:
Worked in Pedro's recommendations. Answered questions.
Working in Prof. Petrovic's recommendations:
General Recommendations
1. State is not defined in its form:
"In the first place, there is no definition of the Liberland state, in terms of whether it is a social,
ecological, libertarian, national, non-national, or any other state. Somewhere in all the Constitutions it is one of the initial articles, but we can understand that you made a departure in
order to create something new."
Implementation: As allowed by the author of the recommendation, not implemented.
Reasoning: The authors themselves point out that, even though the form of the State is explicitly defined in many constitutions, this is not per se a necessity. The State is a libertarian polity. Therefore, the State is a tool (for the protection of ownership), and its sovereignty is likewise but a measure, not the end. This has been defined in book 1, and it is all the definition for Liberland's statehood that is required.
2. Prohibition of Discrimination in Book 1:
"If we look at the libertarian philosophy as the basis for the establishment of this state, it is
unclear why it was not singled out as a special principle "prohibition of discrimination" in the
basic principles."
Implementation: Adding the new Art. 10 (book 1):
Liberland shall in equal measure defend all property, treating all persons as equals. Liberland shall therefore not act in an arbitrary manner; rather, an orderly system shall be put in place governing all its actions and its structure.
Art. 39 (book 3) has been inserted to delimitate this right further, making it directly applicable in many facets.
Reasoning: Prohibition of discrimination has gained much "intellectual baggage" since last we saw classically liberal States, not all of these new interpretations being necessarily in harmony with libertarianism (as they may require more, rather than less, regulation). I, however, agree with the authors. Classically, the libertarian view is predicated on the idea that there are no fixed classes of people, particularly in reaction to the previous feudal-type of social organization (and slavery). Libertarianism presupposes a fluid society, where the individual is free to pursue commercial interests and, ultimately, their happiness without having to give concern to concepts like lineage, nobility, priestly privilege, race, nationality, sex etc.
The new Art. 10 is a great addition to Book 1, as it finally concludes it in a concise manner. It contains three normative statements:
- Liberland treats all property in an "equal" manner.
- likewise, all persons are treated "equally"; and
- Liberland shall not act arbitrarily, and an orderly system shall be put in place to prevent arbitrarily.
This system is, obviously, the rest of the Constitution. Book 1 here gives the mandate to set up a government, and we pick up on it in Book 2 and all subsequent books.
The third statement defines what "equal" means. It means "not to be treated in an arbitrary manner". This is why the word "therefore" is found in an "odd" position (a normal English sentence would begin with it), to signify the connection of the third statement with the previous two.
Art. 39 exists to explore these concepts and cement further what they are and are not. Equality is in rights and responsibilities, the singleness of personhood and the only personal statuses applicable are found in the Constitution. Please note that this equality is therefore not equity. Persons can be treated differently, for instance, based on what different property rights they possess, but not based on a special personal status such as nobility, wholly separate from their ownership rights. The closest to a "special personal status" is citizenship, and even it is a special case of property right (you own a citizenship token, you own/are due a number of rights such as the right to vote).
3. Environmental concerns
"You probably didn't pay much attention to it, but we are using the opportunity to introduce you
to this fact - Liberland is located in the very epicenter of the Mura-Drava-Danube Cross-Border
UNESCO Biosphere Reserve, and it is the first international biosphere reserve in the world. In
this sense, it would be good to give at least some indication of the relationship to this, from the
point of view of ecology, very important fact."
Implementation: New Article 21, that states:
1)The Administration shall identify and protect the natural and cultural heritage of Liberland, both on land and in its waters and waterways. It shall, when acting, take concern for the welfare of the soil, and the plant and animal life, both on land and in water, as well as for the overall ecosystem and each biome.
2) The Administration shall strive to harmonize economic development with the need to preserve its natural and cultural heritage and the rich ecosystems of Liberland for posterity.
Reasoning: This is a great point and one worthy of a constitutional policy. The wording of this new policy is taken in part from the UNESCO Convention (i.e. identify and protect), but goes beyond that. UNESCO concerns itself with cultural and natural heritage; the Danube as a waterway is a piece of cultural and natural heritage (cultural = used historically by people, being connected to their identity). The preserve around Liberland is a point of natural heritage (i.e. a Natural Site).
Specifically for ecology, I intended to go beyond the world of Natural Sites, Geological Formations and Natural Features (the scope of UNESCO) - therefore, a second sentence is added to first alinea, enumerating specifically the soil, plant and animal life, ecosystems, and biomes. The Administration is mandated to take heed of those, even where a non-UNESCO worthy situation would be considered.
Lastly, we enshrine the commitment to sustainable development in the Constitution; the overall goal is to preserve the heritage for posterity, not to consume it in one or few generations, but to live in harmony alongside it.
4. Features of State's Identity
Also, it is unclear why the Constitution does not contain, at least in indications, the features of
the state's identity. It could have been done with two simple sentences: "Liberland has a coat of
arms, an anthem and a flag as markers of identity. The appearance of the coat of arms and the
flag, the text and sheet music of the national anthem are regulated by a special law."
Implementation: Adding a new paragraph 3 to Article 13, Actions of the Administration (Book 2):
The Administration shall act in ways which are easy to understand and not to confound the people. It shall strive to prevent confusion by clearly displaying certain symbols and using certain phrases and other means to signify that given persons are acting on behalf of it and in which capacity and that given sites are dedicated to pursuing its objectives.
Reasoning: It is the intention of Liberland, as a minimal State, not to flaunt nearly as loudly and proudly its Statehood. This country serves its people's liberty by ensuring that those who can't defend themselves or their things have a recourse. For this, pomp and circumstance seem redundant, perhaps even counterproductive.
That being said, we nonetheless heed and implement this recommendation, though perhaps in an unusual way. It is a trend in modern administration that the acts of the State apparatus must be transparent, clear and bereft of confusion. We enshrine this in the Constitution. What has this to do with the Features of State's Identity? These features serve (at least originally served) the purpose of clearly identifying the State, to show the citizen that the given person or object is of the State and performs its function. The pomp and circumstance came naturally as the State became glorified. So do we focus on the original, functional approach and let the rest appear as it may, as Liberland earns it by its actions and impartiality and its upholding of libertarianism, not based on any constitution or law, but on spontaneous feelings of the citizens' patriotism.
So, in fact, the recommendation is accepted fully (i.e. the Administration will make a law about State symbols, and it is mandated to do so in the Constitution), though with a Liberland "flavour" to it.
5. Administration not defined clearly
Book number 2 does not clearly define the concept of Administration, and through further
articles it cannot be determined with certainty whether Administration is a generic term for all
types of government or the same term refers only to the executive power.
Implementation: Into Art. 11 (Book 2), the Liberland Administration, we add the sentence at the end "The Administration shall be Liberland's government, taking care of all its affairs." Into Art. 12 (Book 2), the Purpose of the Administration, we add the words: "on behalf of Liberland and the people".
Reasoning: In our opinion, the Art. 16 Division of Power (Book 2) clearly determines with certainty that the Administration is a generic term for all types of government. As stated earlier, however, the Administration should strive to act in ways not to confound the people, and so the Constitution should take the extra mile to prevent confusion. More clarity is always desirable. Hence, I implement this recommendation by Stating explicitly at the very beginning of Book 2 that the Administration is a generic term for all types of government, and we further clearly define the concept of Administration that it "takes care of all (Liberland's) affairs". Also, we add that the Administration acts "on behalf of Liberland and its people", further expressing what this government will be like.
6. Who sets up the Administration? - and other concerns regarding Art. 11 (former Art. 10)
Even Article 10 introduces additional confusion, as it defines that the people of Liberland
establish the state administration of Liberland, which is quite a stretch of logic. It would be more
reasonable for the state administration to be constituted on the basis of the Constitution, because
in the end that is what it serves for - to be the basis for the constitution of state institutions. This
part of the text should definitely be further considered.
Implementation: Article 11, Liberland Administration (Book 2), has been reworked and reads now as follows: To ensure that an orderly system is put in place governing the actions and the structure of Liberland, whereby the Right to life, liberty and Property shall be respected and efficiently protected under all circumstances, the State Administration of Liberland, henceforth “the Administration”, shall be established. The Administration shall be Liberland’s government, taking care of all its affairs.
Reasoning: The Constitution must be precise, and we acknowledge that "the people" establishing the Administration would, given strict (if somewhat absurd) reading lead to confusing results: is this a constitutional obligation of the people to establish an Administration? Is the current Administration the Administration? Has the current Administration been established by the people or the Provisional Government? And if the latter, can it even be legitimate?
To dispel the confusion, the People establishing the administration have been given up for "shall be established". After all, the people establish Liberland in the previous book, and from that follows that they likewise set up its government - it was redundant to list them there twice. Adopting the wording based on the previous recommendation (and Article) regarding equality and the need to govern Liberland in an orderly and predictable way, we answer the plea of this Book 1 article here. The Administration provides an orderly system governing the actions and the structure of Liberland. So the constitution follows its previous statements and establishes a more clearly defined government for Liberland.
7. Protecting the Independence of the Judiciary
Regarding Book number 4, insufficient autonomy and independence was given to the judiciary.
Article 47 should definitely be amended, so that it reads: "Courts are established and abolished in
accordance with the law." As it is currently set up, the Administration (which we still don't know
which branch of government is) is given too many arbitrary powers. The jurisdiction of the
Supreme Court is too narrow. It is unclear why a separate section was not created, with only one article that would read: "Investigative actions and prosecution of perpetrators of criminal
offenses are entrusted to the General Prosecutor's Office of Liberland. A special law is passed on
the Chief Prosecutor's Office."
Implementation:
- Article 49 (former Article 47) has been amended to include the words (in paragraph 3): "The Administration shall establish and abolish Courts in accordance with the Law and by means of Law"
- Section 2 of the Book 4 has been given several new provisions and has been reworked to make the jurisdiction of the Supreme Court less narrow. Namely, it has been explicitly given (like virtually any Supreme Court) the ability to attract cases for review. The Constitutional Review of upcoming Regulations has been stated explicitly, and the Supreme Court is now more closely tied to Congress. The unusual construction of the Chief Justice nominating the other Justices has been abolished in favour of all the Justices being nominated by Congress and appointed by the President. There is the option of having Special Courts, like "extra instances" of the Supreme Court, where the agenda would be too time-consuming for the three Justices. Special Courts will have their own Justices, senior professionals likewise nominated by Congress and appointed by the President.
- Added Section 4 to Book 4, which sets certain minimal Constitutional standards for criminal justice, including and not limited to the establishment of the office of the General Prosecutor as requested by this recommendation.
Reasoning: I very much appreciate this recommendation, as the Judiciary is at once the most important power and perhaps the one which has gotten the least attention in the Constitution. I have ensured that a (State) Court is established and abolished by Law only, hence not allowing for an interpretation that the Administration may establish or abolish them at will.
There will still be the possibility of private Courts existing by measures other than Law, but they shall not be State Courts. Most notably, they will be unable to resolve matters of criminal justice.
The Supreme Court has been given a review in its powers; the power to attract cases (which is what defines a Supreme Court as opposed to a cessation or appellation court) has been given its own article. So has the core power to review legislature a priori, before it is given legal force. Lastly, we have added the possibility to include Special Courts when Liberland grows, and there is perhaps too much agenda on the "plate" of the Supreme Court. Liberland requires that the Supreme Court works speedily; of all the institutions, this one is perhaps the most important and may not be thwarted by overcrowding, lest all of Liberland's democracy is in peril.
Lastly, I have added the General Prosecutor as requested. As this officer is a part of criminal justice, a special type of justice, I have accompanied him with a couple of paragraphs providing for minimal standards regarding criminal justice in Liberland. As Liberland is a libertarian state, the primary purpose of criminal justice shall be the need to obtain restitution for the victims. This is unusual, radical, perhaps unique. I understand that it is dangerous to be unique in criminal justice, but Liberland sets out to be an unusual State. The State is otherwise named as the singular subject capable to pursue crimes for the public good in Liberland, which is not unusual and, as current criminal law theory suggests, is desirable, if not outright necessary.
Further, I am making the rather un-European choice of giving the Judiciary the control over the investigation and prosecution of crimes; the executive will, of course, act in practice but will do so while aiding the Judiciary and not on its own. The Executive shall require warrants from Judges to investigate or arrest. There will not be only the General Prosecutor, but other Prosecutors where needed. They shall be limited in their term but otherwise shall be constitutional Judiciary offices somewhat similar to Judges; they are even given an oath of office.
Continuing working on Prof. Petrović's recommendations:
Specific Recommendations
8. Article 4 (Book 1), paragraph 1, the Absolute Nature of the Right to Transfer Property:
We suggest that you make certain changes in Article 4, paragraph 1, since it provides that "A
person shall not be limited in any way in his freedom to transfer the ownership of things from his
property, in whole or in part, to the benefit of another person." Our a simple question is: - Does
this mean that the banks in Liberland will not have the possibility to prohibit the debtor from
alienating real estate as a guarantee for the granted loan? Therefore, interpreting this article, we
come to the possibility that someone in Liberland takes out a loan, buys real estate with that
money, sells it, and during all that time the bank does not have the possibility to secure its claim
with a simple mortgage on that real estate, since the Constitution prohibits limiting the freedom
to transfer ownership.
Implementation: removed "in no way" and recreated the construction to be: "a Person shall not be limited without their consent ... (in the freedom to transfer property)".
Reasoning: This is to dispel the confusion of whether this right is truly absolute, i.e. one can call upon it at any time, under any circumstance and against any counterparty, or not. It would be an interesting philosophical exercise, and perhaps a matter for a future Liberland-like project, to try to construe a State where what the author has described is the case. Such a State would, I argue, be a very intriguing and free place to live, and in that State, one could do that which the author describes regarding the loan, i.e. this type of mortgage would likely be impossible there. It would also entail other non-intuitive, radical and thoroughly interesting institutions.
Liberland is, however, a classically liberal State. In Liberland, all rights regarding private property are conditional upon "consent" given by the owner. Hence, they apply absolutely against everyone but also include the right of the owner to limit themselves in their future application by, i.e. signing a contract where they stipulate such limitations. This is consistent with the absolute nature of property rights, as the counterparty sets up rules under which the user (the one who has taken the mortgage, for instance) may access their property (i.e. the loan). Without such an ability to self-limit, the property right wouldn't be absolute; human will, as expressed at the given moment, would be.
My implementation of this recommendation respects this and clarifies this philosophical and legal position of Liberland's Constitution.
9. Art. 4 (Book 1), paragraph 2, Co-ownership, Condominium:
In paragraph 2 of the same article, point 2 provides the possibility of acquiring co-ownership. In
the manner described in this article, joint ownership (not the same as co-ownership),
condominium ownership, building rights can be acquired. Therefore, different forms of property
in terms of quality and content can be acquired in the same or similar way. This should be taken
care of.
Implementation: At the end of Art. 4 paragraph 2, added the sentence: "More than one Person may likewise agree to share ownership in one Property to the same Object."
Reasoning: This sentence enables condominiums to exist in Liberland. I would argue that it would have been possible even without it by owners "stacking" their properties together, but truth be told, there is no good reason to limit property to one user only. It is up to the owners to determine whether they prefer joint property where the ownership is calculated based on each owner holding a percentage-property in the Object, or condominia, where the owners hold the property jointly, either also in percentages (where the difference is academical) or as spouses, do when this type of matrimonial condominium is entered, i.e. jointly and without having percentages (both have full ownership, both have full control). It remains to be said that the last type of condominium tends to be marginalized in Europe, typically delegated only to matrimony. But there is no reason to do the same in Liberland.
10. Art. 5 (Book 1), Usucapio, Adverse Possession:
Article 5 is directly opposed to preservation (usucapio), a legal institute more than two thousand
years old, and as such introduces legal uncertainty into substantive legal relations.
Implementation: Art. 5 added the word "alone" at the end.
Reasoning: The unperishable nature of private property is a "must have" institute in libertarianism. The original owner acquires property by mixing their labour with nature, and property transfers from owner to owner in non-violent commerce. To allow the property to perish and the object to become a res nuillius by the passage of time would introduce Georgian-like notions of "the soil belongs to those who work it".
This in no wise precludes Adverse Possession/usucapio, but it makes it work using different means than what we are used to: The usucapio in a libertarian State doesn't concern the question of whether a property right persists by the passage of time (they do), but whether the owner intends to continue holding and/or using them. Please note that there is no assumption in this Constitution (or in most libertarian theory) that the owner always wants to keep being an owner. The Law can, therefore, easily create a set of assumptions under which the silence or unclear action of the owner signifies an intention to relinquish property or to transfer it to the peaceful possessor.
The implementation adds the word "alone", as in "by the passage of time alone" (property shall not diminish). Though not per se necessary, it serves to clarify that laws such as the one I described above, hence, usucapio, is indeed possible and Constitutional in Liberland, as long as it works with assumptions of intent rather than "pure" passage of time.
11. Article 6 and 8 (Book 1):
Article 6 excludes the possibility of any other property except the individual property of one
person. It is discriminatory.
Article 8 unnecessarily excludes extreme necessity as a basis for excluding criminal
responsibility.
We suggest that you replace these articles with only one article that reads: "The right to property
is the immanent right of every human being, and as such it is inalienable. Property may be
limited or confiscated only in exceptional cases, for reasons based on the law, and in compliance
with legal procedures, which must include an immediate appeal procedure. Property rights are
regulated by a separate law."
Implementation:
In article 6, the sentence "At any given time, a specific Property to one distinct Object shall only be owned by one Person" is removed.
In Article 9, the first paragraph now states:
"Where the Non-Aggression Principle is not observed, by some actor or by all, in full or in part, or where Informed Consent cannot be obtained in a situation of necessity and property can be damaged or destroyed, an intervention needs to happen, accompanied by a possible derogation from these rights or the limiting of their enjoyment. This is to prevent situations where might would make right and to prevent unnecessary damage. The sole subject empowered to intervene in this way shall be the State of Liberland, henceforth, “Liberland”. "
In Article 9, the paragraph 3 now states:
"Liberland shall act where it is apparent that the owner is unable to effectively protect their property or where specifically called to action by the owner or by concerned third parties. Liberland shall be able, where necessity requires this and only to the extent as required by circumstance, to infringe on the property rights of others by limiting them in the minimal fashion necessary to resolve the given situation."
Reasoning: Although I wouldn't call the limiting construction of one property to one object owned by one person discriminatory, it is unusual in that it precludes the standard construction of a jointly owned condominium like in some types of matrimony. As it should be a person's free choice to enter any condominium they want, the sentence preventing this has been removed as per the recommendation.
As to the extreme necessity, the treatment suggested by the authors is to place this in the hands of a public authority (based on law, due process etc.). This is addressed in article 9. Before we speak of limiting or confiscating based on the law, we must first have a legislator. We have him in Liberland.
In paragraph 1 of Article 9, we extend the ability of Liberland to act not only to man-made situations of infringement but also to vis maior situations where due to circumstance, the Informed Consent of the owners of all property concerned can't be obtained.
In paragraph 3 of Article 9, we specify this ability by postulating Liberland's unique ability to infringe on the property of others without their Informed Consent. This can only happen where necessity requires it and only to the extent the situation truly calls for it and in a minimal fashion necessary to resolve the given situation.
The limiting clauses of due process etc., appear in later stages (books) of this constitution, and they are introduced by the new Article 10, where the actions of Liberland must be systematic and orderly.
12. Article 19, paragraph 2, Conflict between Internal and International Law:
In Article 19, paragraph 2, when talking about the conflict between legal norms of internal and
international law, it is possible to apply the norm of internal law as a priority. That attitude
should be deleted; simply, it is unsustainable for any serious interpretation and defence.
Implementation: The words "or with the Bill of Rights" replaced with the words "and this conflict proves irreconcilable by interpretation or negotiation."
Reasoning: I agree that resolving a conflict between an international and internal norm by preferring the internal norm is downright dangerous. This is, in fact, a statement erga omnes of "we refuse to be compliant with the rules of the international game". It is, however, worth noting that such statements do happen, even in the most reputable States. Take Germany. Its constitutional court has stated (towards the EU) that ""as long as" (solange) the EU law doesn't infringe human dignity, it shall be applied. Where it should be detrimental to human dignity as stipulated in the German Constitution, it (the EU law) shall be discarded." A willing situation of an international non-compliance will hence occur (as EU law is a species of international law, EU = international organization).
I am proposing the same for Liberland. I have now, based on the recommendation, restricted this only to the coincidence of the following two cases (a rather extreme and unusual situation):
- the international norm conflicts with Book 1. It is worth noting that these basic principles are very difficult to infringe upon unless what is asked for is, in one way or another, either expropriation or murder or negation of human dignity and personal integrity. Please note that given the previous recommendation, we do allow for i.e. expropriation based on extreme need. So the only possible conflict with Book 1 is where the situation is not an extreme need, yet the international community demands i.e. expropriation of someone's property; and
- interpretation or international negotiation can't resolve the conflict - meaning, we will always try to negotiate and attempt at such interpretation as to allow for compliance.
Liberland should retain the in extremis right to protect its citizens (even at the costs of facing sanctions or other forms of international ire) from measures which are impossible to interpret or negotiate in other ways than that someone must be expropriated, infringed upon in their health or personal dignity and integrity, or in extremis even murdered; and that without there being an extreme need situation. I hope this satisfies the spirit of the recommendation.
13. Article 20 and limiting property use, possession etc. by Court:
Article 23 states that the only way to limit the ownership, use or possession of individual
property is a court decision. We ask: - Will contractual mortgages (an old institution of European
law) as well as manual pledges (pignus), which have their roots in ancient Rome, be disabled in
Liberland, based on this article of the Constitution? Article 23 in paragraph 3 should be adapted.
Implementation: The Art. 26 (Book 3), erstwhile Art. 23, has been changed so that paragraph 3 states:
- Any Property shall be assumed to have been obtained lawfully and used lawfully unless proven otherwise. The final arbiter in disputes regarding this matter shall be a court of law.
- No Person shall have their private property confiscated without their Informed Consent as long as it has been acquired lawfully and used lawfully.
Reasoning: This is again based on a misunderstanding of what it means for a property to be confiscated. An expropriation can't be called a confiscation where there is informed consent. In a libertarian society, the person is not truly free but bound by their previous informed consent-based decisions. Hence, the mortgages and the pignus would have held, even in the previous version of the article. That being said, the Constitution must be as clearly written as possible. Having knowledgeable people, lawyers, discerning from the plain text something contrary to the intended meaning certainly calls for a rewrite.
And rewritten, I have. In the current version, the final arbiter in case of disputes is the court of law. This was originally written to allow for administrative proceedings where property rights are infringed (an official stopping an illegal construction or a likewise illegal car rallye) rather than mortgages. In so doing, we also enable an easier interpretation in favour of the private law institutes called upon by the authors.
Secondly, we have explicitly added the words "without their Informed Consent" in the second paragraph to further and completely cement that this paragraph doesn't protect one from their previously expressed and valid Informed Consent as enshrined in, i.e. a Contract.
14. Article 46 gives the Administration the Power Over Courts:
Article 46 gives the Administration power over the courts. We have already stated that the courts
should be given a greater degree of independence and self-determination.
Implementation: In the current Art. 49, we had previously added a provision compelling the Administration to establish courts only based on a Law and within the framework of a Law. We have also now added the disestablishing clause whereby Abolishment is not done arbitrarily but under constitutional conditions.
Reasoning: By limiting the arbitrariness of the decision-making of the Administration, we achieve the apparently desired effect communicated under recommendation 7, to make the establishment and abolishment of courts subject to the law. Although it looks like giving power, the provision in the first paragraph actually puts the duty on the head of the administration (a joke), that is must establish courts. This is necessary, as otherwise, there would be nothing forcing it to do so.
15. Deleting Article 47:
Article 47 should be deleted. We don't think it really belongs here.
Implementation: Article 50, former Article 47, has been deleted.
Reasoning: By moving provisions from it to the previous article, this article has become redundant. Recommendation sustained in full.
16. Natural Justice
Article 49 should be amended. In the middle of the 21st century, there is no need to refer to the
rules of natural justice, especially not in court proceedings.
Implementation: Article has been amended, the natural justice formulation has been replaced for: "whilst upholding commonly held principles of what is understood to be just"
Reasoning: Natural law is a vague term which may lead to interpretation wars regarding which parts of nature (or, eventually, supernature) are the "valid" inspiration for grasping what constitutes natural legal norms. Replaced with "commonly understood principles of justice", which is something that is done quite frequently in other areas (trade customs, public morality, common legal principles accepted by civilized nations).
17. Senate in the Legislative Process
In Article 69 (legislative process), the Senate suddenly appears. Its function is unclear here. Is it
the upper house of parliament? And isn't it a bit unusual that the Senate protects constitutionality
and legality from the Supreme Court?
Implementation: Removed.
Reasoning: The Legislative Process has been reworked, and this mention has been removed. The Senate can still veto upcoming legislature but is empowered to do so in its own section of the Constitution. The recommendation was about the unusual formulation and the mention of the Senate without previously defining what the Senate is; therefore, I am sustaining it fully.
18. The Executive and the Judiciary
Article 75 states that the Ministry of Justice regulates the judiciary. We ask: - What about the
autonomy and independence of the courts? Who needs courts under the authority of the state
executive? This should definitely be reformulated.
Implementation: Article 97 (former 75) letter a) reworked into: Ministry of Justice, which shall maintain and develop the legal system to uphold individual liberty and property rights and to safeguard the fundamental rights; it shall assist the Judicial Power to be ever more independent, just, professional, and efficient.
Reasoning: This is a good point; the Ministry should not "regulate" Judicial power, especially in light of the newly inserted criminal justice provision (where the Judiciary is the leading power, and the executive helps it). Rewritten according to commonly understood definitions of what a Ministry of Justice should do. The relationship with the Judiciary is cemented into one of "assisting".
19. The Senate is Too Powerful (I)
Article 79 gives so much power to the Senate that Congress is effectively meaningless. The same
as the Supreme Court. We fear that this is a prelude to a ************.
Implementation:
- As to the Supreme Court, the powers have been adjusted to make it more powerful, as per Recommendation 7. The Legislative System has been reworked to become Referendum-centric (direct democracy).
- As to the Senate, we have bound it in both of it's "cancellation" powers by the duty to accompany a cancellation/veto with "binding" recommendations. As long as the issuer of the regulation/referendum accepts these recommendations, there shall be no more cancellation/veto.
Reasoning: Liberland is "the freest country in the world, the mix between Swiss democracy and the best corporate governance". The Senate is the premier organ of the latter. The Senate is an unusual organ, a radical departure from the current models of representative democracy. The Senate is composed of the biggest investors in Liberland and their heirs. The office of a Senator is bound to the investment share, so where sold, the new Senator also becomes a major investor in Liberland. There shall be a vetting process, and the Senators will decide who may become a Senator and who may not.
The intended result is a body of citizens who have given up immense resources to make Liberland happen. From the game theory perspective, those people have the biggest incentive to see Liberland succeed. They were given the following powers:
- to strike out regulations they deem unfit for the future of Liberland; and
- to decide on spending; please note, they can't decide on budgets, just on whether or not individual spending will be executed or not.
These functions allow them to safeguard their investment and protect the city's future from political malpractice. To cut away their powers would make this organ which, let me restate, is the most incentivized to play fair, relatively impotent. In Libertarian theory, some people consider monarchy-like arrangements desirable compared to democracies because they are based on "sound, long-term individual ownership". We don't go quite as far, but we can't deny the notion that an "owner" has a natural incentive towards long-term, careful planning a "hireling" (e.g. politician, especially with 3 - 5 months long elections terms) just may not.
While keeping the above in mind, I implemented the recommendations (or attempted to do so) concerning the Senate by making it draft, whenever a Regulation or a Referendum is cancelled, a set of "binding recommendations". Should those be respected next time around, the Senate is constitutionally prohibited from Cancelling the same motion. If it does so, it is liable to be dragged before the Supreme Court by the issuer of the motion, perhaps even by a Minister, the Congress or by an individual Citizen who had proposed the Referendum.
20. The Senate is Too Powerful (II)
Article 80 is already in the domain of George Orwell. Please reword these articles.
Implementation: As per the above.
Reasoning: Please see the above. Please note that this power doesn't allow the generation of Orwellian regulations. Rather, it is solely aimed at removing regulatory clutter. We live in an era where legislatures and executives fill the legal space with endless motions and rules. One of the hallmarks of an Orwellian system is that one can't know when they violate some legal provision (it is physically impossible given how much regulation there is) and will consequently be punished. This results, on the one hand, in a lack of initiative on the part of the citizen out of fear and, on the other, in resignation and the creation of a "grey" economy (we can't keep the law in its fullness, it's too much - so let's break it and make the best of it!). The prevention of this encroachment of regulations is the purpose of these broad Senate powers. The legislative and the political system is always very "reasonable" - they find very good reasoning as to why they can't de-regulate "at this time". De-regulation requires a maverick, a powerful "outside" entity that can storm in, take out what is harmful, and leave unharmed and unattached to the system.
21. The Saddam Hussein Clause - Limit the President's Terms
Article 84 does not specify how many times someone can be elected president. If there is no such
provision, then the institute of lifetime presidency is introduced. It's not exactly libertarian, it's
more of a Saddam Hussein practice.
Implementation: Added the following formulation to Article 106 (Book 7): One person may only be selected as a president for two consecutive terms and for four terms over their lifetime. A person can only be re-selected for their third term after at least forty consecutive Election Terms spent out of the office of the President.
Reasoning: Sustained in full, limiting high officials' office terms is a common practice.
Drafting based on discussions during the Floating Man Festival:
- Temporary rewriting of the Land Fee (newly: Land Tax) in preparation for the wider Land Tax discussion;
- Administration -> Government;
- Where possible, assign rights and restrictions to the Legislative, Judiciary or Executive (significant number of changes in the entire document;)
- Be stricter towards Cruel and Unusual Punishment;
- Give time limit to the Constitutional Examination Supreme Court power; when that passes, it is as if no examination took place;
- Make technical changes to powers of the Supreme Court;
- Resolve conflict of functions between Judge and Procurators;
- Make clearer setup regarding the powers of the Congress;
- Dedicate the Congress as the organ to propose International Treaty bills;
- Technical changes in the powers of the Executive to reflect earlier changes and technical changes in the systematics;
- Taking steps that the Senate and the President are truly a "Control Power", as per the ideas of Prof. Petrovic, fully independent of the regular government and with powers solely or mainly aimed at keeping the former in check.
- Requiring Senators to be citizens - important
- Enabling the Supreme Court to review Senate policies and actions.
Made a markdown version of the Constitution, updated Readme.
Meeting with Advisors:
in art. 13 we changed the first part of the sentence for "To fulfill the purpose of the Government in a regulated and orderly manner and to fulfil Liberland’s international obligations within the limits of this Constitution,"
Prepared revision of the first four articles of Book 1 based on the feedback of my advisors, Prof. Petrović and other people attending the Floating Man Festival. Given to the advisors for review before submitting.
In Art. 1, alinea 1, replace the word "A" with the words "We affirm that"; and the words "ownership of" with the words "sovereignity over"
Replace the Art. 1 alinea 2 with the following paragraph: "2) This is evident by each human being’s unique dependence on their body and mind for survival and thriving. We further affirm that this right is the basis of all liberty, as depriving one of this sovereignty would rob them of their ability to live free."
At the end of Art. 1 add a new alinea 3, which states: "3) We hold survival, thriving and liberty worthwhile; hence, each person shall have their self-sovereignty or Property in their own being, and their Right to Life, fully respected by everyone and protected against all infringement. "
In Art. 2, replace the word "A" in the beginning for the words "We affirm that"; the word "and" with the word "hence"; and the word "are" with the word "shall be".
In Art. 3 alinea 1 replace the word "A" in the beginning with the words "Where a"; the words "acts and mixes their labour with" for the words "acts and adds value to"; and at the end add the words "that object shall become a part of the sovereign domain of that Person, analogical to their sovereignty over their own being and actions".
In Art 3 alinea 2, replace the "p" in the second use of the word "person" with a "P; and remove the sentence "As such, the Person shall be acknowledged as the owner of the Object, and the Object becomes their property".
In Art. 4 paragraph 1 alinea 1, replace the words "not limited without their content in their freedom" for "be free".
In Art. 4 paragraph 2 replace the word "may" with the word "shall"; and before the word "relinquish" place the words "be free to".
Continuing revision of the Constitution based on Floating Man & Profesor Petrovič.
Added Source: Urza: https://docs.google.com/document/d/1iKwU4NIEZW_6VHTaDXjoF7EVQk7iQBntjRdJRP_BL1s/edit
In Art. 6, add after the second instance of the word "Property" the words "except when necessary to remedy a situation in which that owner has infringed Property rights of other people or violated a promise binding in property"; and remove the sentence: "In order to be valid, such... henceforth "Informed Consent."".
In Art 7 alinea 1, add at the end of the alinea the words "in breach of the Non-Aggression Principle.".
In Art. 7 alinea 2, remove the words "and Informed Consent"; after the words "as to the nature" add the words "and extent".
In Art. 7, remove the entire paragraph 2 and remove the paragraph sign above paragraph 1.
In Art. 8 paragraph 1, replace the words "Informed Consent" with the words "permission given based upon a clear appreciation and understanding of the facts, implications and consequences of the action, henceforth "Informed Consent"", before the words "obtained in" add the word "timely" and replace the word "these" with the word "Property".
In Art. 8 paragraph 3 divide the paragraph into two alineas, where alinea 1 begins with the first instance of the word Liberland in the beginning, and alinea 2 begins with the words "Liberland shall be able, where".
In Art 94 paragraph 2 before the words "publish genuine" add the words "without delay".
In Art 95 paragraph 2 before the words "shall be made public" add the words "The reasoned opinion" and before the words "publish genuine" add the words "sent to the organ".
In Art 96 alinea 1 add new sentence at the end stating: "They shall cite their reasons for this rejection. The Senate shall not stop the payment again where their binding recommendations are fully satisfied.".
In Art. 96 alinea 2 replace the first instance of the word "It" by the word "The Senate".
Review of the Constitution on own initiative, inspired by Prof. Block: shortening, cutting redundancies. This is a wide ranging process which would be too long to document here. I instead document it in this version of the constitution.
Upgraded the Constitution according to the change.
Received recommendations from Paul Rosenberg here.
Reformed the drafting so that we no longer make use of GDocs, as a result, closing the issue, continuing drafting in the repo itself.