[JUDICIAL REVIEW] Constitutionality of the Conclave Orders Act

[Merlo]

Public Thread for the Judicial Review
“Constitutionality of the Conclave Orders Act”

The Conclave acknowledges and has approved the request for Judicial Review as submitted by @A_mean_old_man. The end date for this judicial review will be 2025-06-09T06:00:00Z

This thread shall serve as a public discussion thread, open to all who wish to give their thoughts and opinions. Please keep it civil and orderly. Arbiters will discuss and come to a verdict in a separate thread in closed chambers.

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@The Request Summary

The laws in question are the following:

The Conclave Orders Act

SECTION I. CITATION

…1.1. This Act shall be known and cited as “The Conclave Orders Act”.

SECTION II. DEFINITIONS

…2.2. An Order shall be defined as any binding statement by the Conclave to compel any individual or institution to complete an action with an explicitly stated indictable penalty for failing to execute said action.

…2.3. A verdict shall be defined as any binding and final ruling by the Conclave on a matter of trial or legislation interpretation. Verdicts shall not be considered Orders.

…2.4. A Trial Order shall be defined as an Order to conduct, suspend, or reverse a select action in order to preserve the status quo or security of the East Pacific or rights of a Resident during a trial. Trial Orders cease to hold effect when a trial concludes.

SECTION III. ORDERS

…3.1. The Conclave may only enact these kinds of Orders:
…3.1.1. Order an individual to preform a duty required of them by law when said individual is failing to preform said duty at the proper time,
…3.1.2. Order an individual to appear before the Conclave as a witness during a trial,
…3.1.3. Order an individual who is currently on trial but has not appeared for trial to appear for said trial,
…3.1.4. Order an individual to cease behaviors that are disrupting the Conclave’s function,
…3.1.5. For the duration of a trial, Order a suspension on a government action/process if the trial concerns said action/process, for the sake of maintaining the status quo during a trial,
…3.1.6. For the duration of a trial, Order a ban or ejection on any nation of an individual on trial if said individual represents an in-game security risk to the East Pacific.

…3.2. If the Conclave believes it necessary to enact an Order that does not fit under Section 3.1 but is still required for the Conclave to preform its duties properly, it may enact such an Order following its regular processes.
…3.2.1. However, upon enactment of such an Order, the Magisterium shall hold a majority confirmation vote on said Order. Failure of the confirmation vote shall result in an immediate repeal of that Order, nullify/reverse any indictable penalty generated by said Order, and end any trial wherein the Defense is charged with an indictable penalty from said Order.
…3.2.2. The Order shall stand during the confirmation vote.
…3.2.3. The Conclave shall publicly notify the Magisterium of the enactment of such an Order within 24 hours of its enactment. Failure to give notification within that timeframe shall lead to the immediate repeal of that Order once the 24 hours expires.

…3.3. For Orders temporarily banning an individual during a trial, such a ban shall not constitute as evidence against the individual and may not factor into the Conclave’s decision making.
…3.3.1. As an exemption to the Citizenship Act, such individuals shall also be allowed to maintain Citizenship for the duration of said Order if they were a Citizen when the Order was enacted. If the Conclave does not ban the individual following a guilty verdict for the relevant trial, said individual shall be given 48 hours to become compliant with the Citizenship Act once the Order expires.

…3.4. Abuse of Orders by the Conclave, wherein the Conclave utilizes Orders in a manner that is unreasonable and/or unjust, shall be considered abuse of power and grounds for removal by the Magisterium following Concordat procedures.

SECTION IV. ADDENDUM

…4.1. The Conclave reserves the power to remove a Vizier or Magister as granted by Concordat.

…4.2. The relevant government authorities must execute a Conclave verdict even though Conclave verdicts are not considered Orders.]

The legal questions given are the following:

Legal Question(s)

Much like its ill-fated predecessor, The Conclave Act, The Conclave Orders Act appears to establish Magisterial jurisdiction over the Conclave in a way not explicitly defined by the Concordat. Nowhere in the Concordat is the legislature given the authority to establish definitions for court “Orders”, “verdicts”, “Trial Orders”, the authority to dictate that the court “may only enact these kinds of Orders”, or the authority to demand any of the other restrictions or expectations established by the Act. These things appear to be more appropriately expressed in the SOC, over which the Magisterium has no power, or via constitutional amendment(s), if the Magisterium insists on making enforceable changes to court actions or procedure. I kindly request that the Conclave review the constitutional validity of this law.

The following procedures will be followed. The Conclave shall, according to its standing orders, convene to determine whether to confirm or deny this request. If accepted, the Conclave will follow the appropriate procedures of Judicial Reviews as follows:

JUDICIAL REVIEW

2.3. Judicial Review shall take place following a request by a resident with a confirmation vote by the Conclave or at an Arbiter’s request within a week of a change to regional law being passed (with the Arbiter’s request concerning said change).

2.4. Upon receipt of request, the Viceroy shall initiate public and private threads which outline the bill in its entirety, along with the end-date for the deliberation of the law.

a. The public thread shall be available for citizens to refer precedent or applicable laws to the Conclave, but the Viceroy may delete posts that are disruptive and do not contribute to the matter at hand.

b. The private thread shall contain the deliberations of the Conclave and be used to draft verdicts and debate the law.

c. The Conclave may reverse its decision to hold a Review with a vote at any time during this time period. In such cases, the Conclave shall provide a reasoning as to why in the public thread.

d. The Viceroy shall post updates every week in the public thread on the general on-goings of the Review in Closed Chambers, such as if a draft verdict has been written or other general conduct.

e. If no discussion occurs within Closed Chambers on a Review for more than 60 days, the Review shall automatically be closed and stated as such in the public thread.

2.5. The Review shall rule on the interpretation or constitutional validity of a law (or interpretation of the Concordat itself), factoring the Concordat, all applicable statutory laws, precedent of the court, and traditional values of The East Pacific for their deliberations.

2.6. Draft verdicts are prepared by Arbiters, listing reasoning and legal references to be voted upon.

a. For the first vote, a draft verdict may only pass by unanimity.

b. If the vote fails, consequent votes shall be held until a draft verdict receives majority support.

c. The dissenting minority of Arbiters may choose to file a minority report of their verdict to be appended to the majority verdict.

2.7. The majority verdict of a Judicial Review shall take full force of law and shall form precedence for that and similar laws. The verdict may rule on including, but not limited to: constitutionality, applicability, meaning, or validity of a law or applicability or meaning of the Concordat. Laws that violate the Concordat shall be repealed in full.

[Zukchiva]

As the author of this Act I intend to submit a brief within the next few days sharing my thoughts.

[Zukchiva]

Previous JR

In 2023, the Conclave ruled on the Conclave Orders Act’s predeccessor. It should be noted that the key issue being presented then is what is being presented now, in that the Magisterium is overreaching its constitutional bounds by establishing statutory law that defines certain aspects of Conclave procedure. The petitioner argues this should be only done via Concordat amendment if the Magisterium is to do it, similar as to their previous petition.

All that being said, the Conclave of the time ruled to establish the following binding precedent:

For these reasons, the Conclave rules:
(a) statutory law can compel the Conclave to engage in, or abstain from, certain actions, insofar not contradictory to the Concordat;
(b) statutory law can define trial proceedings, insofar not contradictory to the Concordat;

While the Conclave can reverse the aforementioned Judicial Review if it deems the precedent is no longer appropriate, I do not personally believe there has been a change in our legal system’s fundamental principles in the following two years to justify a reversal of these principles.

Constitutionality of statutory law defining/limiting Orders

While I won’t review the constitutionality of every part of the Act (since something could very well be unconstitutional while I tried my best not for it to be), I will say that as far as orders go the Concordat states:

1. Orders can be limited in any way by statutory law.

Which means the Magisterium can define what orders are (as a definition is a form of a limitation) and/or limit them any way the Magisterium wants so far as they don’t contradict the Concordat. So as far as Orders go at least, the Magisterium should be able to regulate on that (unlike this Act’s predecessor!)

Argument against unconstitutionality

Finally, I wish to argue on the broader principles in support of both the Act & the Conclave’s previous JR.

AMOM strongly implies that because the Concordat does not give the Magisterium explicit authority to legislate in judicial matters, this Act is unconstitutional. He states the opinion that if the Magisterium wants to legislate on the judiciary (i.e. by placing restrictions on its procedures or expectations thereof), it can only do so either by the Concordat directly or (as implied) by statutory law AFTER the Concordat has been amended to give the Magisterium the explicit power it needs.

This is a opinion that, while well-intentioned, overturns a strong-standing principle of TEP law: that the Magisterium CAN legislate in the affairs of other branches WITHOUT explicit authority by the Concordat to do so.

Examples of this are the following:

• The Delegate Elections Act
  • It is explicitly the Viceroy’s, on behalf of the Conclave’s, duty to run elections.
  • The Concordat states the Viceroy must submit election regulation changes to the Magisterium.
  • If the Magisterium cannot legislate on elections (since the Concordat does not explicitly say it can), then any amendments to this Act that are not submitted by a Viceroy or delegated designee thereof are unconstitutional, since the Magisterium can only APPROVE such amendments, NOT create them.
• The Eastern Pacific Sovereign Army Act
  • While the Concordat does not specify anything about a military, the establishment of an army in most NS & IRL democracies is understood to fall under the Executive Branch’s authority.
  • It therefore could be said the Magisterium is enroaching on the Executive’s implied power to manage the military as it sees fit, and thus this act would be unconstitutional if the Concordat must explicitly state in what areas of other branches’ authority the Magisterium can legislate in.
• The Punishment Justification Act
  • It is the job of the Executive to ban individuals as per the Concordat.
  • Therefore, if the Magisterium cannot legislate on the procedures of banning individuals (which includes record of such) without explicit Concordat statement of such, then this Act would also be unconstitutional.
• The Criminal Liability Act
  • This act establishes some judicial procedure.
  • Thus, following AMOM’s reasoning, this should, in theory, also be unconstitutional.
• The Executive Act
  • Basically similar arguments as to EPSA; it is an implied constitutional power for the Executive to be able to organize itself, which the Magisterium is clearly violating following AMOM’s stance that it would need explicit Concordat permission to legislate in executive authority.

While these laws aren’t all 1:1 with the situation the Conclave Orders Act represent, they all hinge on the idea that the Magisterium CAN legislate in the domain of other branches (since it’s the legislative branch - that’s part of its main job) even if the Concordat does not give the Magisterium such authority explicitly.

The reason this is important is because since the Concordat does not specify well on this matter, it then falls to judicial precedent (which does specify on this matter), and then to legal precedent (what do our laws and the Concordat imply).

I would be behooved to not note that some parts of the Concordat do seem to follow AMOM’s thought process by trying to state that the Magisterium can legislate in other branches’ affairs when allowed explicitly by the Concordat. However, one could argue this could just be a redundant legal measure that, if removed, would not change a single thing. More realistically, AMOM’s view prevailed in TEP law pre-2019, but since 2019 there has been a legal shift in thought to assume the Magisterium has legislative authority within the domain of other branches as evidenced by the Acts I’ve cited. However, I will note that the now repealed Criminal Code (2014 - 2023) also legislated on how some judicial proceedings went, so AMOM’s legal viewpoint was not homogenous in pre-2019 TEP law.

In short, there are two conflicting views within TEP law itself on whether the Magisterium can legislate in the domain of other branches. But, based on how some modern statutory Acts seem to hinge on the “newer” viewpoint (the Magisterium CAN do such legislating), and given that judicial precedent supports this, I firmly believe the Conclave Orders Act IS constitutional.

[A_mean_old_man]

To respond to Zuk: the principal issue with calling the executive and judicial into play in response to a JR about legislating functions of the Conclave is that the former has no recourse besides vetoes, and it has long been established and expected that the legislature fill in the blanks on the Concordat where it concerns things like executive ban authority, elections, cabinet, military, et cetera.

Personally, I think the Criminal Liability Act is junk and currently have a proposal to repeal it incubating in the Magisterium.

The problem with trying to codify processes and limitations of the court is that the Conclave, “which shall be the interpreter of this Concordat”, derives its power from the Concordat and “may nullify any law passed by the Magisterium that is contrary to this Concordat.”; I was going to have more to say about codifying processes for the court that it can simply nullify based on an old-school understanding of the Concordat, however…

I’m noticing with more review that Article C. Section 4.2 may provide an avenue for the Act to exist, constitutionally, as Zuk indicated (quoting the entire section):

Section 4: Orders

The Conclave is empowered to compel an action, reversal, or suspension of action by Order with an indictable penalty for if the Order is not met.

Orders can be limited in any way by statutory law.

Orders can never conflict with the Concordat.

Orders may supersede statutory law, but only when a compelled action or reversal/suspension of such is necessary to maintain the status quo until an on-going trial concludes (upon which the relevant Order shall no longer be enforced).

Any remaining issues may be with the definition of a verdict, which doesn’t exist as far as I can tell in the Concordat and may overlap with SOC, but remains minor, and with the exemption to the Citizenship Act, which constitutes a circular reference and something which one could argue puts the two laws in conflict with each other, but isn’t a point that requires JR.

The convolution of process established in the Concordat, statute, and SOC remains irksome to me, but I’m questioning the constitutionality of this law less after additional review. Discussing these may be yet another of almost a dozen items to add to the Magisterium’s to-do list. Regardless, the JR is open, and I’m still curious to hear the feedback of the court.