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:
- 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.