Application for interpretation of the Charter

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Application for interpretation of the Charter

Post by Continuator »

(a) Thorgils Tarjeisson, Elector for Alalehzamin and Utasia;
(b) Fjǫrleif Hallbjörnsdóttir, Prætor;
(c) In 6271 ASC a Bill for the Regulation of the Shirewiki was put before the Landsraad by the petitioner, and on 6272 ASC the respondent opened the period of debate for this. A period of debate continued until 6276 ASC when the petitioner addressed the respondent with a motion to vote, which was seconded. On 6277 ASC the King of Elwynn addressed a request to the respondent asking that the bill be downgraded to a 'non-binding non-resolution' "because it infringes upon the exclusive constitutional right of the Imperial States to legislate upon matters of culture and education" and in 6278 ASC the respondent, following the lead of the King of Elwynn declared the matter of the Bill to be beyond the purview of the Landsraad.

I feel this sets a dangerous precedent by planting the suggestion that the Shirewiki, a means of documentation supported and sustained by the Imperial Government for the whole community, must be broken up and balkanised in the same manner of the Imperial States themselves who then become the sole arbiters of content, effectively undermining the MinInts own position as the final authority responsible for the Shirewiki.

It is my contention that the respondent has, regretfully in light of her diligent public service thus far, acted in this matter contrary to her duties, denied the Landsraad the opportunity to give its decision on a matter pertinent to the entire Imperial Republic and acted beyond her powers in interpreting the Charter, a prerogative reserved to the Imperial Judex.

I respectfully therefore ask the Arbiter to determine the legality or otherwise of such actions;
(d) The Charter (IV.B.2.: The Imperial Judex interprets the Charter);
(e)/(f) The Bill wherein the said instance related above occurred

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Re: Application for interpretation of the Charter

Post by Noor bint Daniyal »

Honourable Arbiter

May it please the Court to accept the Brief of Amicus Curiae of the Royal Government of Goldshire in Cabbagefall.

The Royal Government of Goldshire makes the following observations:

The Shirewiki was founded by Imperial Proclamation in ASC2199 by Kaiser Los III.

On ASC2223, the Landsraad adopted the Wiki Restriction Act, which was the Imperial Legislature’s first regulatory act on the Wiki.

Since then the Wiki has been the possession of the Imperial Government. The Lawbook, Chapter 4, Section C, subsection 6 explicitly mentions the Wiki as part of the Imperial Government: “MiniInt shall have ultimate responsibility for the curation and adjucation of the content of Shireroth's national wiki. In accordance with this duty, the Minister of the Interior shall have sysop access to the wiki.”

Shireroth’s national wiki is therefore the property of the Imperial Government. It was set up by the Imperial Government, regulated by the Imperial Government, and Imperial Law administers it.

It is therefore the Landsraad’s right and duty to make rules for the Minister’s “curation and adjucation” (sic) of the Wiki. No other authority is vested with that power. Not a foreign power, nor any of the States. The Charter

The Prætor’s ruling is therefore without merit.

Further, the Charter (Article IV) holds that “The judicial power of the Imperial government is vested in the Imperial Judex” (A, 1), and “Any administrative action by the Imperial government or by an Imperial State, may be appealed to the Imperial Judex if it is believed that the action violates this Charter or any other applicable law”.

The Prætor’s ruling is an administrative decision pertaining to her office. However, it is the Judex that decides on whether something is constitutional during a judicial review, not the Prætor. She lacks the legal competence to rule on the constitutionality of bills. Even if the bill were unconstitutional, it would not be her role to stop it from adoption. Rather, judicial review to the Judex would be the correct recourse in the case that the bill had been adopted (and not vetoed by the Kaiser).

The legislative traditions of the Imperial Republic has several checks on the soundness of a law. At first the Electors at the Landsraad make each an informed decision. If a majority of them adopt a law, it becomes law unless the Kaiser, as guardian of the Imperial Republic, gives it a veto.

The legislative traditions demand debate, scrutiny and vote; they do not empower the prætor to stop a bill to go forward because they disagree with her conviction. She should have encouraged proper debate on the matter, and be bound by the majority’s decision.

Should the bill have passed, then any individuals that the bill (now an act) was illegal, they would make their presents to the Judex, where constitutionality is decided.

In summary, honourable Arbiter, this brief of amicus curiae, for the Royal Government of Goldshire, holds that:

1. The Shirewiki is the property of the Imperial Government
2. The Prætor’s ruling was wrong.
3. The Prætor lacks legal capacity to make rulings on the admissibility of bills.
Noor as-Salaam
NOOR AS-SALAAM BINT DANIYAL UMRA SULEIMAN AYREON-KALIRION IBN AL-MAJEED AL-OSMAN BIN SATHRATI AF ETTLINGUM FREYU UMM ZAHIR AL-DIN OF WAFFEL-PAINE
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Re: Application for interpretation of the Charter

Post by Malliki Nur Pinito »

I accept jurisdiction in this matter, from now referred to as Re: The Constitutional Status of the Shirewiki. I have heard the brief by the petitioner Thorgils Tarjeisson and the amicus curiae submitted by the government of Goldshire. I will now hear the position of the respondent Fjǫrleif Hallbjörnsdóttir as well as any other amicus curiae briefs that may be submitted.

Initial deadline in 48 hours.
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Re: Application for interpretation of the Charter

Post by Fjorleif »

Malliki Nur Pinito wrote:Initial deadline in 48 hours.
Lord Arbiter,

Could the deadline be extended by 24 hours?
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Re: Application for interpretation of the Charter

Post by Malliki Nur Pinito »

Of course, consider it so extended.
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Re: Application for interpretation of the Charter

Post by Fjorleif »

Lord Arbiter,

Could the deadline be extended by 48 hours? It is the final extensio I will be asking for.
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Re: Application for interpretation of the Charter

Post by Malliki Nur Pinito »

I am at a bit of a loss here, Lady Praetor. During the time since I posted the first deadline, you have made time to make six posts, of which one was an amendment to the Procedures, instead of replying to the proceedings in the Judex. Now you ask for another extension. I cannot decide for you how to prioritize your time, but I can warn you against treating this institution with anything else than the respect it requires.

Final deadline set to Tuesday Oct 18 12.00 pm forum time.
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Re: Application for interpretation of the Charter

Post by King Noah »

Lord Arbiter,

May it please the Imperial Judex to accept the Brief of Amicus Curiae of the Minister of the Interior.

As I as Minister of the Interior attend to the adjucation and curation of the contents of ShireWiki I’m bound to apply the law of the relevant jurisdiction for it is them who by their good graces allow their cultural content to be displayed there and they can withdraw it at will. An Imperial State can do so by exercising its exclusive power over its culture, which includes the power to determine where and how its culture is displayed.

At present there are four of such jurisdictions: the Imperial Government, the Elwynnese Union, the Kingdom of Goldshire and the Kingdom of Lichbrook. The only way to establish a single wikiwide regime for ShiriWiki again would be a treaty between the aforesaid four jurisdictions similar to the interstate agreements between the German Länder on that imaginary planet called Earth which govern the German public broadcasters ARD and ZDF.

The present situation came into being when the previous Charter came into force under Kaiseress Mira Raynora Minor in December 2012 which turned the Duchies into Imperial States and severely curtailed the powers and the scope of authority of the Imperial Government. Upon the coming into force of the aforesaid Charter all other Imperial Level legislation was repealed, which, among others, caused the legal dissolution of ShireWiki.

Upon the re-establishment of ShireWiki in 2014 no provisions regulating the content of ShireWiki where put into the Lawbook, aside from designating a Minister responsible for the adjucation and curation of the content, because at the time the Imperial Government was so weak and limited in its scope of authority that it was obvious that the laws of the Imperial States would have to be applied to most of content of the wiki and it wouldn't be worth the effort to regulate the tiny part which was within the purview of the Imperial Government.

Until very recently the present situation wasn't an issue at all because only very few really cared about prior to my Lord Father spearheading the revival of ShireWiki with his award winning wiki spree and for most of the time after that there was more a more or less a live-and-let-live attitude.

Since governing is thinking ahead, and it is deep in Shireroth’s DNA that the Imperial Government must be all-powerful, those Imperial States which guard their autonomy jealously were already expecting that one day when the day would arrive that attempts would be made to regain control of the cultural content on ShireWiki appertaining to their Imperial States, either by legislation or by legal action, and have made their preparations. I for that matter know that one of them already has an entire shadow wiki with the cultural content belonging to it at the ready as well as some draconic legislation which would cause the removal of a bit more from ShireWiki than a couple of images.

As Minister of the Interior I would, of course, rue the day that such a thing would happen.

Thank you for time!

With Respect and Esteem,

Thorstein Noah Hallbjörns- og Esthersson of the Houses of Ayreon-Kalirion and of the Descendants of Freyja
Minister of the Interior

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Re: Application for interpretation of the Charter

Post by Fjorleif »

Lord Arbiter,

May it please you to be submitted with the position of the Prætor of the Landsraad concerning the matter brought before the Imperial Judex.

On Non-Binding Non-Resolutions

When I declared a certain item before the Landsraad a Non-Binding Non-Resolution, I was acting within my rights and under my duty as Prætor under Landsraad Parliamentary Precedent.

Under Landsraad Parliamentary Precedent an item before the Landsraad which is void cannot pass. An item is void if it is either unconstitutional or does not meet the requirements imposed upon items by the Procedures of the Landsraad or the Lawbook, and the Prætor is as presiding officer of the Landsraad ultimately responsible for determining whether an item is void or not.

In the event that an item is determined to be void the author is given the opportunity to amend zir item to unvoid it so that it can pass the Landsraad.

Should the author of the item refuse to amend it, the void item will be voted upon and subsequently, irrespective of the outcome of the vote, be stored in the Landsraad Archive.

The term Non-Binding Non-Resolution is basically a fancy way of saying that an item is void.

On ShireWiki

The infrastructure of ShireWiki is the exclusive domain of the Imperial Government, the control of the content is, however, a matter appertaining to four different jurisdictions.

ShireWiki is a collection of cultural items - mainly writings and images – which are nowadays divided between, and governed by, four different jurisdictions, to wit: the Federal Government, the Elwynnese Union, the Kingdom of Goldshire, and the Kingdom of Lichbrook.

Each of those jurisdictions has the exclusive power to legislate upon any and all matters concerning the cultural items in ShireWiki which are within its purview and that power belongs to the Imperial States insomuch it touches upon the matters relating to their culture over which they have the supreme authority.

So if the Landsraad would pass a law banning from ShireWiki images of Liches, which are considered disgusting abominations by certain individuals in Shireroth, the Queen of Lichbrook could issue a Royal Decree declaring that Imperial Decree non-applicable to wiki pages related to Lichbrookian culture and compel the Minister of the Interior to restore any removed images.

Likewise that in the event that a hypothetical Kaiser, who is of the mind that the current coat of arms of Goldshire is undesired Babkhanization of that Imperial State, would issue an Imperial Decree ordering the removal of that coat of arms from ShireWiki the Queen of Goldshire may respond by reversing that Imperial action by Royal Decree.

A recent actual example of how well ShireWiki content relating to the culture of an Imperial State is protected, occurred in the reign of Kaiser Hjalmar who, when the Third State Arborist of the Empire of Minarboria came to voice certain concerns about a certain Elwnet TV series called "Tuuler and Björka in the 25th Century", which is part of the ShireWiki category called "Elwynn", he needed the permission of the King of Elwynn to officially discuss the issue with the Minarborian Government. Likewise the Kaiser required the permission of the King of Elwynn to decree the TV series called "Alice in Lichesland" and the "H-Team" into the Elwynnese Commons.

The present situation regarding content regulation also keeps ShireWiki together because those of the Imperial States which are very protective of their autonomy, Lichbrook and Elwynn, could decide that ShireWiki is no longer a good place for the display of their cultures if their cultural items are subject to regulation by the Imperial Government, which they would view as an avenue to encroach upon their autonomy. They would likely pull out, taking their cultural items elsewhere which would tear ShireWiki apart.

Respectfully submitted,


Fjǫrleif Llængjarla of the Houses of Ayreon-Kalirion and of the Descendants of Freyja
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Fjǫrleif Llængjarla of the Houses of Ayreon-Kalirion and of the Descendants of Freyja
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Re: Application for interpretation of the Charter

Post by Ryker »

Lady Praetor,

To clarify: You believe that the only people who should be able to edit or create a page relating to a particular state or organization are those presently holding citizenship/membership in that state or organization. Am I mistaken?
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Re: Application for interpretation of the Charter

Post by Malliki Nur Pinito »

The discussion here seems to be to a large part regarding the possible status of the Shirewiki, which I probably inadvertedly contributed to when naming this the way I did. This matter is therefore renamed Re: Unconstitutionality of Landsraad Items. To help me to reach an opinion on this matter, I ask the following:

1. Does the Praetor have the authority to declare an item before the Landsraad unconstitutional and void?

2. Does the Landsraad have the authority to declare an item unconstitutional and void?

3. If the answer to 1 and/or 2 is yes, what is the legal basis for such a power?

I ask for the opinion of the petitioner, the respondent, and any other interested parties. You may also decide to rest. I will not set an initial deadline, but I hope to have this wrapped up by Sunday.
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Re: Application for interpretation of the Charter

Post by Continuator »

Lord Arbiter,

My answer to both of those questions is to the negative. Both the Kaiser and the Landsraad may overturn the acts of the other, but interpreting the Charter and the legality of subsidiary legislation as well as administrative acts whose authority derive thereof is the sole preserve of the Imperial Judex.

What constitutes a valid bill? Under Section 4 of the Procedures of the Landsraad it is stated that a Bill must be codified so as to amend the Imperial Code of Law. This is the sole criterion. Nowhere in the Charter, the Lawbook or the Landsraad Procedures is it said that a bill cannot be presented if it contradicts the Charter. Of course Section B of Article I of the Imperial Charter makes plain that 'any law or measure that contradicts the Charter shall be held to be void'.

The question then becomes that of identifying which agency of the Imperial Government has responsibility for intrepreting the compatability of any given law or measure with the Charter. I would make representation that the Charter is pretty clear on that point, that interpretation of the Charter and the striking down of unlawful measures falls within the purview of the Imperial Judex exclusively.
  • 'The Imperial Judex may overturn any law, decree or measure of the Imperial government or of the Imperial states that is contrary to this Charter.' (Clause 1, Section B, Article IV of the Charter)
    'The Imperial Judex interprets the Charter.' (Clause 2, ibid)
What are the rights of the Landsraad in this matter then? It may make legislate on any of the matters listed as an Imperial Government competence under Article VI, Section A of the Charter, these being:
  • a) War and peace,
    b) Foreign policy,
    c) International borders,
    d) National defence,
    e) National security,
    f) Currency,
    g) Interstate commerce, trade and infrastructure,
    h) Enforcement of Imperial law,
    i) Contracts,
    j) Citizenship, and
    k) The Imperial Dominions.
Now, incidentally, in addition to the Shirewiki being an official document maintained by the Imperial Government for the benefit of its users, might it not also be considered a piece of interstate infrastructure since it is open to the citizens of all Imperial States and records the contributions of the same similarly? In any event, the Shirewiki is cited under the lawbook, as noted previously, as being under the authority of the MinInt, does that not perforce make it an Imperial institution and subject to Imperial and or Federal Commonwealth Law?

What then of the Prætor? The Prætor under Article III, Section C of the Charter is elected from amongst the Imperial Electorate of the Landsraad to 'lead and preside' over its sessions. I would observe that 'lead and preside' does not, or ought not, as a matter of democratic legitimacy, to equate with defeating the intention of a proponent of a law or to deny the Imperial Electorate the opportunity to vote on a properly formatted Bill. We will recall that the sole criterion for a Bill to be put forward to the vote is that it be codified so as to amend the Imperial Code of Law. Where this is the case, the Prætor has no discretion to deny the Electors the fulfilment of their duties to deliberate, debate and vote. That does not mean that the Prætor is obliged to serve as a mute witness; indeed the purpose of leading and presiding would be to warn where a measure might come into conflict with the Charter and to advise Electors to think carefully on the matter. But ultimately faith must be placed on the Imperial Electorate to vote wisely, in accordance with their consciences and the best interests of the Imperial Republic.

On the matter of Precedent, I would note that I cannot identify the basis in the Charter, the Procedures nor anywhere else in Federal Commonwealth Law for there being such a thing as 'Landsraad Parliamentary Precedent' with a standing in its own right, and therefore I would contend that Precedent, the custom of being bound by past decisions of an ostensibly similar character, does not exist in any meaningful manner sufficient to warrant constraining the Landsraad by downgrading a Bill drafted in a manner that fulfils the requirement of the Procedures of the Landsraad.

What constraint does exist then, beyond recourse to the Imperial Judex, to prevent the bringing of bad laws into being? The Charter provides that Imperial Law derives from the Decrees of the Kaiser while Federal Commonwealth Law is brought into being by the passing of Acts by the Landsraad. These two sources of law act as a check and a balance upon each other. The Kaiser may:
  • a) Veto legislation passed by the Landsraad.
    b) Submit an act of the Landsraad to the Imperial Judex for judicial review.
Whilst at the same time the Landsraad may:
  • b) Overrides a Kaiseral veto by a vote of two-thirds' majority

and also:
  • 2. The Landsraad may veto or repeal Imperial Decrees issued under Article II, Section B, sub-section 4, by two thirds' majority.
Should an Imperial State feel threatened by the acts or decrees of an Imperial Government that is in danger of becoming an 'over-mighty' executive, then it should be noted that any person or personality of standing under the Charter may bring a question before the Imperial Judex and that the Judex has 'original jurisdiction in all disputes on agreements, treaties, etc, between governments of the Imperial States, between the government of an Imperial State and the government of the Imperial Republic' (Chapter 3, Section A, Clause 3, Lawbook).

It is therefore my ultimate contention that since sufficient safeguards exist to protect the Charter and to uphold the Rule of Law, the Prætor - regrettably - acted beyond her powers, preemptively and in an unnecessary manner.

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Re: Application for interpretation of the Charter

Post by Fjorleif »

Lord Arbiter,

I hereby inform you that I will deliver my opinion before Sunday 23 October 2016 2 AM C.E.T..
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Re: Application for interpretation of the Charter

Post by Malliki Nur Pinito »

Sounds good.
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Re: Application for interpretation of the Charter

Post by Fjorleif »

Malliki Nur Pinito wrote:1. Does the Praetor have the authority to declare an item before the Landsraad unconstitutional and void?

2. Does the Landsraad have the authority to declare an item unconstitutional and void?

3. If the answer to 1 and/or 2 is yes, what is the legal basis for such a power?

I ask for the opinion of the petitioner, the respondent, and any other interested parties. You may also decide to rest. I will not set an initial deadline, but I hope to have this wrapped up by Sunday.
Lord Arbiter,

My answer to the first two questions is to the affirmative.

It is inherent to a legislature that there are matters in its parliamentary process which are dealt with by or under the body of precedent established by decisions of the legislative body as a whole or of its presiding officers on matters which arose that the standing rules (Procedures of the Landsraad) or applicable legislation did not provide for.

There are various such matters under Landsraad Parliamentary Precedent, including the:
  • process regarding friendly and unfriendly amendments on items put before the Landsraad;
  • withdrawal of items put before the Landsraad;
  • opening of votes on items put before the Landsraad subsequent to the elapse of the debating period on motion by an Elector seconded by another Elector.
The matter of the validity of items put before the Landsraad is largely governed by Landsraad Parliamentary Precedent.

It is within the authority of the Landsraad to determine which items are valid as regards its parliamentary process, whether - in whole or in part - by or under standing rules, legislation or precedent. As Landsraad Parliamentary Precedent stipulates that unconstitutional items cannot pass its parliamentary process, the Prætor can as presiding officer of the Landsraad be asked - as a question of parliamentary process - by any Elector whether an item put before is unconstitutional. The Prætor is required to rule upon such a question.
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Re: Application for interpretation of the Charter

Post by Malliki Nur Pinito »

Thank you.

These proceedings are closed. I will deliver an opinion today hopefully.
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Re: Application for interpretation of the Charter

Post by Malliki Nur Pinito »

OPINION OF THE IMPERIAL JUDEX
Malliki Nur Pinito, Arbiter, presiding

In Re: Unconstitutionality of Landsraad Items

This opinion will be limited in scope to the question of the powers and prerogatives of the Praetor and Landsraad when it comes to possibly unconstitutional bills or resolutions.

Standing
The Judex recognises the standing of the petitioner as an Elector of the Landsraad.

I. The Charter
The Charter vests the legislative authority in Shireroth in the Landsraad. It also grants the Landsraad the power to make its own procedures. (III.A.1-2) It vests the authority to "lead and preside" over the sessions of the Landsraad in the office of the Praetor. (III.C.2) The Charter furthermore vests the power to overturn unconstitutional measures in the Imperial Judex, as well as the power to interpret the Charter. (IV.B.1-3) A standing principle of Shirerithian constitutional law is that an enumerated power is exclusive, meaning that if an institution or constitutional officer is vested with a power, that power rests solely with that institution or officer, unless otherwise prescribed in the Charter. This principle is self evident if one considers the opposite. If this principle is not held, the Charter must specify each institution and officer that does not hold a certain power as well.

It is therefore held that the power to interpret the Charter in any legal or final capacity is limited to the Imperial Judex.

II. Procedures of the Landsraad
The Procedures of the Landsraad specify the only criteria for bills found anywhere in Shirerithian law. A bill must be codified to amend the Imperial Code of Law. (Section 4) The Procedures also imply that each Elector has one vote. It also does not grant any additional powers to the Praetor, except the power to make by-laws and to interpret the Procedures. By-laws are used to clarify the Procedures. (Section 8)

III. Parliamentary Precedent
All parliamentary bodies operate with both written and unwritten rules. The unwritten rules can be referred to as precedent. However, precedent is by definition subordinate to written rules, regulations and laws.

IV. Unconstitutionality of Landsraad items
It is the finding of the Imperial Judex that the sole authority to rule on the constitutionality of Landsraad items is vested in the Imperial Judex. Nowhere in the Charter is such a power vested in the Praetor or any other institution or officer.

V. Non-binding non-resolutions
It is the finding of the Imperial Judex that the practice of classifying Landsraad items as non-binding non-resolutions is illegal. Parliamentary precedent cannot add or subtract powers to the office of the Praetor, merely clarify already existing ones. The Procedures pose only one requirement for the validity of a bill, and no requirements for the validity of a resolution. The practice of essentially classifying items as non-items are in violation of the Procedures of the Landsraad, denies the right of each Elector to exercise zir rights and is potentially harmful both to the majority and the minority. If an item is suspected of being unconstitutional, that should be addressed in open debate.

VI. Orders
1. The Landsraad and Praetor are instructed to immediately cease the practice of classifying Landsraad items as non-items.
2. The Landsraad and Praetor are specifically instructed to not invalidate Landsraad items based on their perceived unconstitutionality.

SO ORDERED
Malliki Nur Pinito

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