The Final Draft of the 2019 Amendment to the Organic Law

[Glüc da Dhi]

Fwiw, I wouldn't object to the SoS no longer being able to propose legislation. Legislating is not the chancery's responsibility.

Has this change been announced or discussed anywhere? It probably should have been, but I cannot immediately find it. Maybe I missed it though.

[Glüc da Dhi]

Also, I only just noticed two posts ago that referring to the different chapters/articles/sections/parts of the new orglaw is more complicated than for the current one. Will take some time to get used to it.

[Miestrâ Schivâ, UrN]

Feb 3, 2019 8:52:46 GMT -6 Glüc da Dhi said:

Ok, so do these countries adopt the law of other countries without the legislative branch having a say in it?

You misunderstand the process. It is not a matter of adopting the law of another country. The common law is already the law of several different countries. Judges, in theory, do not "make" common law, they just elucidate it. To give you an example: NZ is a pure "common law" country, and therefore a higher court's decision on a common law matter in Britain or Australia will be considered more-or-less binding precedent. (The US is only partly a common-law system, so a US court's decision will be important, but not binding.)

If you don't want to be a Common Law country, then that's another issue. I would much rather Talossa be a European style "civil law" country, where the legislature is the only source of law, and if a judge doesn't have a point of statute law to guide them, they must refuse to hear a case. But Talossa has been a common law country at least since 1997 and you don't seem to have objected. A lot of people are complaining about stuff in the New OrgLaw which is in the old OrgLaw in different words... they just never noticed it.

[Miestrâ Schivâ, UrN]

.... actually, this bears repeating. While AD complains that there are all kinds of dangerous novelties in the new OrgLaw, Glüc is concerned by aspects which were already in the old OrgLaw, just in different words, or in some cases the same words but previously ignored. It seems we can't win for losing.

[Glüc da Dhi]

Where in the current OrgLaw does it say that any part of Talossan law is partly composed of that of other countries (Or even mention the term Common Law)?

The only thing I can find is that "Any judge or justice may issue court orders or injunctions according to the generally accepted principles of Anglo-American law. These injunctions may order a party to perform his legal duty, or may prevent the enforcement of a law which may be Inorganic (unconstitutional). Violation of an injunction is treated as contempt of court. The final arbiter of the organicity of injunctions is the Uppermost Cort of Talossa." but that seems much less broad and much more restrictive. Also, I always thought these principles had more to do with the procedures and the way precedent is applied than with the content itself, but I could be wrong about that. Clearly I'm not an expert.

Also wouldn't it be possible to have a common law that is purely based on Talossan precedent and not that of other countries?

Btw, I would agree with you that civil law is preferable and I never liked common law, but that may simply be because I don't understand it.

I should probably read back some of my discussion with V on this and the discussion Lüc had with him earlier (in which I was tagged, but I think I didn't really read it at the time), because that may provide some answers for me.

It's just that on the face of it precedent set by country X becomes Talossan law looks like a step beyond saying Talossas legal system functions like that of country X and the proposed OrgLaw seems to suggest the former whereas I always thought the current situation was more like the latter.

[Glüc da Dhi]

Feb 3, 2019 19:25:22 GMT -6 Miestrâ Schivâ, UrN said:

.... actually, this bears repeating. While AD complains that there are all kinds of dangerous novelties in the new OrgLaw, Glüc is concerned by aspects which were already in the old OrgLaw, just in different words, or in some cases the same words but previously ignored. It seems we can't win for losing.

This may or may not be true for the common law thing, though this is absolutely not a case of the same words being ignored. The wording actually seems so different that I would be surprised if it meant the same thing (again though, no expert). I'm pretty sure it's not true for any of the other 4 points I raised so far. You seem to be saying that I have multiple concerns about aspects that were already in the current OrgLaw. Which aspects are these?

[Sir Alexandreu Davinescu]

It's worth nothing that the SoS is right: this is a significant change. We're currently a common-law country, but the corts only have the powers of trying alleged criminals, judicial review, interpretation of the law as written, and issuing injunctions to fulfill the other three powers. The injunction power is also specifically limited. The new language would permit the corts to import common-law decisions and bind the nation with them. It's a new thing.

[Miestrâ Schivâ, UrN]

If people's problem is that a Talossan court might consider the decisions of a court in another common-law country to be binding precedent, and they don't want that, then for heaven's sake you need an amendment to the current OrgLaw, because the concept of binding precedent (XVI:5) is a common law idea, which exists in no other legal system. If previous CpIs haven't done that, that's a bug, not a feature; a violation of the OrgLaw itself. Don't confuse Talossa's customs and usage with Organic stipulations.

[Miestrâ Schivâ, UrN]

For those playing along at home, the reason that the USA is only partly a common-law country is that the Bill of Rights, a feature unique to the US, overrides the common law.

[Sir Alexandreu Davinescu]

Feb 3, 2019 23:09:34 GMT -6 Miestrâ Schivâ, UrN said:

If people's problem is that a Talossan court might consider the decisions of a court in another common-law country to be binding precedent, and they don't want that, then for heaven's sake you need an amendment to the current OrgLaw, because the concept of binding precedent (XVI:5) is a common law idea, which exists in no other common law system. If previous CpIs haven't done that, that's a bug, not a feature; a violation of the OrgLaw itself. Don't confuse Talossa's customs and usage with Organic stipulations.

Hmm.

Section 5
Where there is an exact precedent, a court shall rule according to law. Where there is no exact precedent, a court will make a rule to fit the case, either by reinterpreting an old rule (statutory or otherwise) or by applying what it considers principles of justice, consistent with the Covenants of Rights and Freedoms. The courts shall render their decisions with due regard to the original intent of any law being clarified, as defined by the law's author(s). In the event of a difference in interpretation as to the meaning of a law, the court shall render an official interpretation with full respect to the Covenants of Rights and Freedoms. If one of the judges wrote the law, he does not have to step down and designate a temporary replacement.

So let's see. The first sentence is a command to stare decisis. The third, fourth, and fifth are modifications on the second, clarifying the terms under which it occurs. So we're looking at the second.

Where there is no exact precedent, a court will make a rule to fit the case, either by reinterpreting an old rule (statutory or otherwise) or by applying what it considers principles of justice, consistent with the Covenants of Rights and Freedoms.

A court shall make a rule. Hmm. I guess it would ultimately come down to how you interpret that. For me, it's a clear reference to the American practice in jurisprudence of devising tests and rules by which the principles of a law can be interpreted. But I can also see how you could interpret it to suggest that the court should devise new laws entirely?

No, I just don't see it. A small bit of research would be necessary to bear this out, but it's impossible to imagine that the high court has always had the secret power to make laws whenever it pleased by design.

It definitely doesn't seem to be about importing other country's decisions, since the only reference to other climes is in another section's appeal to principles of Anglo-American law.

That said, it's an interesting argument, and I hadn't thought of it. I was too dismissive before, sorry.

[Sir Alexandreu Davinescu]

Went through the archives, and that text appears to be unchanged from the original OrgLaw. I don't think Ben Madison will return my emails on this one, so then we look to case precedent. Fortunately, there is extremely clear precedent from 2004's Talossa v. Furxhéir. Citing explicitly the passage in question, the court proceeded to put it into action. In interpreting the relationship between the Secretary of State and the Deputy Secretary of State, the ruling discussed generally accepted principles of American employment law to determine whether or not the SoS could fire the DSoS without cause. The argument from the Crown was that this would be a violation of due process (a dumb argument, by the way).

1. Dismissal of the Deputy Secretary of State

The Crown has argued that, while the Secretary of State does have the ability to appoint and dismiss a Deputy Secretary of State on a whim (OL, Article IX, Section 1), this provision is trumped by the 7th Covenant, which says all persons accused of a crime are innocent until proven guilty.

The Cort finds the legal argument intriguing indeed. In order to answer this question, we first turn to the Org Law, which tells us in Article XVI, Section 5 that, “Where there is an exact precedent, a court shall rule according to law. Where there is no exact precedent, a court will make a rule to fit the case, either by reinterpreting an old rule (statutory or otherwise) or by applying what it considers principles of justice, consistent with the Covenants of Rights and Freedoms.” There is no exact precedent in this case, so consistent with the Covenants of Rights and Freedoms, we must utilize generally accepted principles of Anglo-American law.

In the United States, many of the states have employment laws which have been called, “at will.” The term refers to laws which say that both the employee and the employer have an “at will” agreement for the employment. If either party chooses to end the relationship, for any reason, they may do so. If the boss doesn’t like the fact that an employee is wearing the color green, they can fire them on the spot, and there is no recourse.

Discrimination laws trump this “at will” system, however. An employee can be fired for wearing green, but they cannot be fired for any federally or state protected class (i.e., race, color, gender, national origin, physical disability, sexual preference, etc.). If an employee can prove they were fired for one of these reasons, the employer is liable.

While the DSoS position is not an employment situation, and the SoS is a political appointee, we believe that the same basic rules apply. The SoS can hire and fire a DSoS on a whim (or at will), except in the case of discrimination or some other legally binding reason, especially as outlined in the 4th Covenant.

Now that we have interpreted the law to say that there are restrictions on the ability of the SoS to hire and fire the DSoS, the question is, was the law broken.

The Crown argues that the DSoS was fired because of allegations of voter fraud. Because there was never a case brought on this basis, and because the DSoS never admitted to any fraudulent activity, the Crown believes that the SoS was fired in violation of the 7th Covenant, that a person is innocent until proven guilty.

After reviewing the evidence presented to the Cort, and the response from the defendant, the Cort finds that while the Crown has created the grounds for declaring the firing inorganic, the Crown has failed to prove its case that the firing was based on the accusations of voter fraud.

While it appears from clipped e-mail that the SoS felt concerns over voter fraud were a good reason for not having a DSoS, there was nothing saying that he would get rid of the current DSoS over accusations of voter fraud. Without specific evidence to this effect, the Cort has no recourse but the find for the defendant on this issue.

The key bit seems to be:

While the DSoS position is not an employment situation, and the SoS is a political appointee, we believe that the same basic rules apply. The SoS can hire and fire a DSoS on a whim (or at will), except in the case of discrimination or some other legally binding reason, especially as outlined in the 4th Covenant.

Now that we have interpreted the law to say that there are restrictions on the ability of the SoS to hire and fire the DSoS, the question is, was the law broken.

Given that the court made a reference to a principle to interpret existing law, I would say that I do end up being right about this one. The court didn't invoke at-will employment and declare that all employment in Talossa should be considered at-will; instead, they simply said that the relationship between boss and employee isn't explicitly defined, so here's the way that makes the most sense given the law in question (eg the DSoS is employed at will, subject to the 4th Covenant).

But that was a twisty one! Wow!

[Miestrâ Schivâ, UrN]

Feb 3, 2019 23:59:16 GMT -6 Sir Alexandreu Davinescu said:

So let's see. The first sentence is a command to stare decisis.

Yeah. Stare decisis is a common-law tradition; not a civil-law tradition. Here is what Wikipedia says about civil-law analogies:

Stare decisis is not usually a doctrine used in civil law systems, because it violates the legislative positivist principle that only the legislature may make law. Instead, the civil law system relies on the doctrine of jurisprudence constante, according to which if a court has adjudicated a consistent line of cases that arrive at the same holdings using sound reasoning, then the previous decisions are highly persuasive but not controlling on issues of law. This doctrine is similar to stare decisis insofar as it dictates that a court's decision must condone a cohesive and predictable result. In theory, lower courts are generally not bound by the precedents of higher courts. In practice, the need for predictability means that lower courts generally defer to the precedent of higher courts. As a result, the precedent of courts of last resort, such as the French Cassation Court and the Council of State, is recognized as being de facto binding on lower courts.

I appreciate your willingness to admit you might have been wrong on this one. As I repeat, I would rather move to a civil law system precisely because we don't have to worry about the precedence of US, British or other common law decisions.

[Gödafrïeu Válcadác’h]

Feb 4, 2019 0:13:06 GMT -6 Sir Alexandreu Davinescu said:

Went through the archives, and that text appears to be unchanged from the original OrgLaw. I don't think Ben Madison will return my emails on this one, so then we look to case precedent. Fortunately, there is extremely clear precedent from 2004's Talossa v. Furxhéir. Citing explicitly the passage in question, the court proceeded to put it into action. In interpreting the relationship between the Secretary of State and the Deputy Secretary of State, the ruling discussed generally accepted principles of American employment law to determine whether or not the SoS could fire the DSoS without cause. The argument from the Crown was that this would be a violation of due process (a dumb argument, by the way).

Have you somehow gotten ahold of the original of the 1997 Organic Law? I've located the first amendment ever made to same, btw.

[Ian Plätschisch]

Feb 3, 2019 8:49:48 GMT -6 Glüc da Dhi said:

Many thanks to the Seneschal for answering some of my questions, despite me being late and not an MZ. It is much appreciated.

Feb 2, 2019 13:57:42 GMT -6 Ian Plätschisch said:

A separate vote will be held, but concurrently with the election of the Seneschal.

Why is this not specified in the proposal?

So if I understand correctly this means we have a vote on all proposed ministers by all proposed Seneschal candidates. What happens if a minister is approved but the Seneschal who proposed that minister is not elected.

Also, don't you think that there is a real possibility of a Seneschal being elected but none of their ministers being approved? (Especially since in the case no candidate has the support of a majority, a Seneschal is still likely to be elected, because the no Seneschal option is likely to be eliminated in the first round, even if it would get a majority against all candidates.)

I do not think that either would be a likely outcome, given that it will probably be pretty clear to everyone how the outcome of the Seneschal vote would turn out, so everyone will vote on all of the other Ministers appropriately. In the event one of them did happen, it would not be that big of a deal IMO; there could just be another vote.

[Glüc da Dhi]

I'm not sure that the outcome being predictable is in itself enough to prevent this from happening. Again, the Seneschal under this proposal does not need majority support to be elected, whereas ministers do, so what incentive does a party that does not support the proposed seneschal to vote in favour of the ministers proposed by that seneschal?

Either way, where does it even say that ministers will be voted on simultaneously to the Seneschal? I can only find that

a) The Seneschal may recommend the appointment of various Ministers to the cabinet.
(Recommend to whom? Who actually appoints these ministers? The Ziu? The King? I can't seem to find an explicit mention of this. Also, is this exclusive to the Seneschal or can other recommend Ministers as well?) ,

b) Each Minister must receive a simple majority vote of the Cosa, and

c) The Seneschal shall immediately seek Royal Assent for each Minister, excluding the Seneschal. If the Crown is silent for a period of two weeks, assent shall be deemed automatic, and if Royal Assent is withheld for a specific Minister, the Cosa may reconfirm the Minister by a simple majority.
(Does this mean Royal assent is required? This does not seem to be explicitly mentioned either. Does the Seneschal need to seek assent but is it irrelevant to the appointment? Again, who actually appoints Ministers? Also, immediately upon what? I'm assuming upon approval of that minister being given by the Cosa? )

If the recommendation of ministers is exlusive to the Seneschal, then surely what you're saying earlier isn't true. Ministers cant be voted on at the same time as the Seneschal, because the new Seneschal is not the Seneschal yet, so I'm guessing instead anyone can recommend a Minister? If that's the case then why include a) in the first place?

I'm assuming from your answers that the intention/expectation is that the government formation is supposed to work as before, only formally mediated by the Ziu rather than the King. In other words, a majority agrees on a government first and the Cosa votes in accordance with what has been agreed. Is that correct? If that is the intention, then why allow the Cosa to elect a Seneschal who does not have a majority?

Also, if the government has majority support anyway, why is cosa assent for ministers required anyway? What is the purpose? We know if happens quite often that Ministers need to be replaced. Now, if this is the case at any time between the first day of the last clark and the first opportunity for a new minister to approve (a period of 3 months and 21 days!) there is no way to appoint a replacement in that time. Essentially during nearly 4 out of every 9 months we cannot have ministers going awol. Why? In addition every new appointment will need between 21 and 52 days depending on when it is needed! Why?