I. Introduction
I write this small essay in response to Aivintis’ article, “The Role of the Conclave”. As I’ve come to understand, Aivintis’ text is meant as an empirical study of the role of the Conclave in TEP. It concludes that, empirically, the (limited) output of the Conclave does not justify the (great, due to the power of the Conclave) risk. I do not write to counter that the Conclave does not have great power (it does), or to argue that its output, in number of decisions, is vastly more voluminous than Aivintis claims (it isn’t). Rather, I write to add the nuance that, however limited in number the Conclave’s output may be, the fact that it is there is essential to TEP’s current balance of power.
II. Power
First, I’d like to do away with some erroneous assumptions.
After some historical references to the US Supreme Court, Aivintis’ article concludes that the Conclave, in it’s role as a constitutional court, was “meant to have the power to legislate from the bench through broad interpretation”. That is not the case. The Concordat has given the Conclave the authority and duty to annul any law of the Magisterium or action of the Executive in contradiction to the Concordat. This is not legislating from the bench, but merely a reactionary check on abuses of power by another branch. Neither is an advisory question “legislating from the bench”, as any advice given holds no formal authority of any kind.
Next the article poses the question: why should the Conclave have such powerful role, comparable to SCOTUS, while in TEP constitutional amendments are not as difficult as in the US. The question misses the point. The reason for judicial reviews (of laws or executive actions) is to protect Citizens from the Magisterium or the Executive using their given powers too broadly. Not to facilitate the amendment process. The fact that the Magisterium often uses the result of a judicial review to change legislation, is a byproduct, but not the main purpose.
Within the framework of Aivintis’ essay, it is indeed not difficult to see how the Conclave might be classified as an overabundance, as an unnecessary detour in an otherwise uncomplicated amendment procedure. But that is not what it is for.
The Conclave is a counterbalance to the Magisterium and the Executive, specifically. The mere fact that it does not (have to) produce rulings and trials each week, simply proves that the Magisterium and Executive, for now, mostly have not abused their powers too much. Removing that safeguard for the future, however, it not a wise course of action.
The added value of the Conclave to TEP’s system does not rest in its empirical output. It rests in its power itself, and the deterrence and safeguards it provides.
III. Branches of government
Now I’d like to come back to TEP’s system of government, and its various branches. Rightly the essay describes this as a separation of powers, with an equal balance, in Montesquieuan fashion. However, the Praesidium as a fourth branch is a relatively recent addition to TEP’s constitutional make-up. As is the recognition of OOC-government in IC law, for that matter. Originally, TEP’s Concordat did mention the Viziers, only very briefly. But there was not a distinct “fourth branch”.
The Viziers original task was, plainly, to check the Delegate’s in-game power, and secure the rightful governments in-game power (by having a group of players maintain the highest endocount in the region).
It evolved to being the Praesidium due to (1) an enhanced role of the Viziers in Concordatial safeguards; (2) the addition of what once was the EPPS (East Pacific Police Service, a ministry of the Executive) to the Viziers. As such we came to have a “fourth” branch, and even a “fifth” branch (the OOC-administration).
The Viziers, and the Preasidium, have a completely different task within TEP. Neither of these however serves the same purpose and function of the Conclave. Nor are court-like duties a coherent addition to the tasks and duties of the Praesidium. Moreover, the Praesidium is already very powerful in its own right, given their crucial role in some procedures and their in-game power. Adding some court-like powers would make the Praesidium the rulers of TEP for all practical purposes.
And for obvious reasons, the tasks and powers of the Conclave could never be bestowed on the Magisterium or the Executive itself.
Lastly, if anything, it is safer for Citizens to have more exclusive, separated branches of government, rather than fewer (even if this would be more ‘efficient’).
IV. Trial(s) and error
A main theme in the essay is that the Conclave’s power entails ‘risk’, mostly referring to the (wrong) decision of the Conclave in August of 2022, to declare an amendment to the Concordat illegal. As I have stated multiple times since then, the Conclave never had the power or authority to review a constitutional amendment (it can only rule on laws of the Magisterium or actions of the Executive). Yet it did.
But that is not relevant, in that all branches could overstep the bounds of their powers, no matter how they are defined and regulated in the Concordat. Any other branch, or any new branch, could always overstep.
What happened here next is that (1) the Conclave came back on its ruling and (2) the Magisterium appointed other Arbiters after. Which proves that the balance of powers in TEP worked, as the Magisterium is in its turn meant to be a check on the Conclave.
V. The criminal and civil court
Next, the essay makes much of the rather limited role of the Conclave as a criminal and civil court.
But, as it states itself, there are few (IC) crimes to commit in Nationstates. And insofar such crime is committed, history in TEP has proven that the proof is easily provided. As such, the Conclave often confirms guild (as a matter of law), and imposes a sentence. That is how it is supposed to be. Luckily, we have few crimes in TEP of the nature that require a full trial. And yes, such crimes, certainly the most infamous one, have been easy to prove and prosecute. Nevertheless is it and remains an important point that an independent court of law decides on the charges and punishment, even if only so rarely. We should not confuse the outcome (or the number of cases) with due process itself.
Most of the same goes for civil trials and election complaints. There having been few of those, does not mean they should not be available when effectively needed. The suggestion of the essay that “a legislative amendment formalising and clarifying their stance as binding law” regarding two such civil complaints, misses the forest for the trees: it is not because the law can be changed (and not everybody wishes to do that), that such should be the only solution available to resolve a legal dispute.
Therefore I do not agree that the Conclave’s roles as a criminal and civil court are redundant. They serve due process, and serve as pathways to TEP citizens to have their complaints heard, even if the Magisterium and/or Executive do not act.
VI. Democracy
Lastly, the essay shoves in the notion that the Conclave is undemocratic (with the unwritten assumption that it actually should be more democratic). I reject the notion that it should be democratic, and I reject the notion that it isn’t at all.
As for the last point, the Arbiters are appointed by the Magisterium, upon nomination by the Delegate. Both the Delegate and the Magisterium represent the Citizens of TEP. And the Arbiters can be denied a further appointment by the same (as has happened before). So at least indirectly, the Conclave is democratically appointed (and controlled).
But additionally, TEP’s government is not a (direct) democracy at all. The Magisterium is not chosen by Citizens, but are Citizens who joined this branch out of their own free initiative. It functions meritocratically, but not representatively. The Delegate is elected for a fixed term, but determines his or hers’ own policy. The Praesidium is not elected, but similarly appointed. And the OOC-administration is not elected, nor appointed by any branch of IC government at all.
As such, the Conclave is not less democratic, nor more exclusive, as most branches of TEP’s government, save the Delegacy itself.
VII. Conclusion
Beyond empirical output and historical data points, the balance of power in TEP has proven itself over time as a solid system. We can not know what would happen with some branches without the existence of the others. The Conclave has an essential role as the constitutional court of TEP, and serves to safeguard due process and the rights of Citizens under the Concordat, criminally and civilly. It matters - and influences the powers within TEP - because it is there. And it is as important for the role it can play, as for the role it has played in the past.