Request for Clarification

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Request for Clarification; To resolve an ambiguity in the Mandate
Tweet Topic Started: Jun 8 2015, 02:30 AM (403 Views)
Amerion	Jun 8 2015, 02:30 AM Post #1
Star Destroyer Posts: 6,524 Group: Accused Member #29 Joined: Apr 9, 2015 Alignment Lawful Good Military Stance Neutral Political Views Independent Nation in Lazarus Amerion Discord Amerion#9702	If it may please the Court, I would like to request clarification of the Delegate's powers. Noted here, the Honourable Delegate Funkadelia has dismissed Minister of Foreign Affairs Church of Satan. The Delegate has expressed the following as a legal basis for doing so: Quote: as delegate I am permitted to decide my own cabinet. Article IV states: Quote: Article IV - On the Executive 1. The Delegate shall serve as the chief executive officer of the region. 2. The Delegate shall control the on-site delegacy of the region, and shall exercise its powers only as required or permitted by law. 3. No person may serve more than two consecutive terms as Delegate. 4. The Delegate shall have a Cabinet of ministers to aid them in their duties. 5. The Delegate shall nominate ministers and the Legislature may confirm such nominees by a majority vote. 6. The cabinet shall consist of the General the Army, the Minister of Internal Affairs and the Minister of Foreign Affairs. Additional ministries may be established by law. 7. The Legislature may pass laws regulating the business of the ministries. 8. The Delegate may veto a proposals of the Legislature to enact, amend or repeal a law within a week of its passage. The Legislature may overturn such a veto by a two-thirds majority vote. As there is ambiguity as to whether it is within the Delegate's powers to dismiss his Ministers, I respectfully request that the Court interpret the Mandate to clarify this uncertainty. I thank you for your time.



Powthran	Jun 8 2015, 03:00 PM Post #2
Lazarene Posts: 523 Group: Members Member #103 Joined: Apr 22, 2015 Alignment Lawful Neutral Military Stance Uninterested Political Views Conservative Nation in Lazarus Powthran	We appreciate you posing this question. We don't currently have codified rules for this process, but it is under our purview in the constitution and a very pertinent question. We definitely review it and make a ruling soon. Anyine can post the arguments either way here. We will take them into consideration.



Amerion	Jun 8 2015, 03:15 PM Post #3
Star Destroyer Posts: 6,524 Group: Accused Member #29 Joined: Apr 9, 2015 Alignment Lawful Good Military Stance Neutral Political Views Independent Nation in Lazarus Amerion Discord Amerion#9702	Thank you your Honour for accepting this request. I cede the floor.



Harmoneia	Jun 8 2015, 04:53 PM Post #4
Mhysa Posts: 657 Group: Accused Member #42 Joined: Apr 11, 2015 Alignment Lawful Good Military Stance Neutral Political Views Independent Nation in Lazarus Harmoneia	If there is really nothing there then I don't think it will be right to, nor can we, invent a law for this. What I think we can do for now, since it's obviously a loophole we hadn't seen coming, is to consider the confirmation of Deadeye Jack to confirm the dismissal of CoS as well, so that if the confirmation of Deadeye Jack doesn't go through., then CoS stays. (My 2 cents) We should definitely pass a law regarding this later on, however.



DinosFM1994	Jun 8 2015, 06:48 PM Post #5
Blessed of the Vale Posts: 1,626 Group: Members Member #163 Joined: May 29, 2015	Vice Delegate, I think that since there is a loophole , judges should make a Judicial interpretation.



Guy	Jun 9 2015, 08:36 AM Post #6
Lazarene Posts: 43 Group: Members Member #40 Joined: Apr 10, 2015	Honourable Justices, Lazarene citizens, I hope you will indulge this post here. The question asked is one of 'mere' statutory construction. It is also, on its face, not a particularly difficult case. On the other hand, it concerns Lazarus' foundational document, and as the first case this Lazrene judicature considers, has the chance to set-out the path for it for a long time to come. For that reason, this is also not a case that's easy to comment on. As some of you may no doubt be aware, there are a multitude of different ways that courts approach the question of statutoy construction. This complicates the task: Even if the result is the same using most methodologies, the Court may find it difficult to come up with a coherent reasoned decision without going through the steps of at least one of them. I'm not so certain that this case is an ideal vehicle to decide this important question, of how statutes (and/or the Constitution) are to be interpreted. Every case of statutory interpretation turns on its own facts, and regardless of the methodology utilised by this Court, the most appropriate place to start is the text of the statute itself. Quote: 4. The Sovereign shall have a Cabinet of ministers to aid them in their duties. 5. The Sovereign shall nominate ministers and the Grand Assembly may confirm such nominees by a majority vote. 6. The cabinet shall consist of the The Grand Commandant of the Army, the Minister Steward and the Minister Herald. Additional ministries may be established by law. 7. The Grand Assembly may pass laws regulating the business of the ministries. The statute clearly sets out that the Delegate is to nominate the Ministers, whom are to be confirmed by the Legislature. Article IV is silent on the question of when the commission of Ministers is to cease. However, another provision in the Constitution does deal with it: Quote: 5. The Grand Assembly shall have the power to recall any official of the government with a simply majority vote, or with a 2/3 majority vote for elected officials or those approved by the Grand Assembly. For reasons that will become clear soon, perhaps it is worthwhile to deal with a question of what the defining characteristic of a law is. In relevant part, the answer to this question is: Laws set out persons' legal rights and obligations. When the law is silent on a matter, it in fact still has an affect on those rights and liabilities. The reason this is important is that, should the Court take a literalist approach, viewing this as a 'loophole' simply because there is no explicit provision for the termination of Ministers, it will have an effect on the legal rights of persons. It will mean that once a person is confirmed by the Legislature, they in effect have a life commission in their Ministerial office. They can only be removed via a recall vote of the Legislature. It may be possible to rein this in via a reading of Article IV in context, so that the Ministers do not serve longer than the Executive himself, as the Sovereign 'shall have' a Cabinet - clearly suggesting that it is linked to the Delegate. This literal suggestion, in fact, starts suggesting that even on a literal reading, once the words are given context, it is impossible to reject the conclusion that the Delegate can terminate the commission of Ministers at will. It is 'his' Cabinet, after all. And in reading it in context of a Presidential system, the wording itself clearly evokes the idea of a US-like cabinet. However, undoubtedly, the Court may be unable to reject the conclusion that the words import ambiguity, or in fact on a literal reading have the opposite meaning. Given this, the Court may accept one of a few different approaches, If the Court concludes that the ordinary meaning of the words does not permit the Delegate to terminate Ministers, it can pay attention to the well-known rule in Grey v Pearson. It states that "In construing ... statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modifies, so as to avoid that absurdity and inconsistency, but no farther." I have personally never been a great proponent of the so-called 'Golden Rule'. In many cases, it has been overtaken by clearly preferable modern approaches, such that the ordinary words of the statute in any case have to be given a meaning in its entire context. However, in this case, avoiding an absurdity is a sufficient ground, and the only way to remedy it is allow the Delegate to remove Ministers. An alternative position the Court may take is that, once it accepts a statute is ambiguous (which may be due to the introduction of evidence extraneous to the statute, such as the intent of the legislature) the proper construction of the statute will be the one that best advances its purpose or the intent of the legislature. Those two phrases have slightly different meanings, but on the whole, it does not make a great deal of difference here: The only reasonable conclusion is that giving the Delegate this authority is what the legislature would have intended, and is consistent with the purpose of the Mandate in setting out a workable, Presidential-style government. [EDIT: Or, if the Court accepts that the purposive inquiry is the one it prefers, it can simply resolve that the intent was to create a Cabinet answerable to the Delegate, able to be nominated and fired by him. That'd be sufficient. Given the context, it's the interpretation that makes the most sense, and would best advance the purposes of the Mandate. You may want to take a look at the debates at the time to confirm this, though.] What is important to realise is that while a statute may not explicitly set something out, on its proper construction, it may in fact say it. You don't have to find a particular provision that 'says' it. All that has to be found is that, when considering it (in this case, the Constitution) as a whole, it creates or modifies that right or obligation. This may be seen as a case where the Constitutional Convention simply forgot to address a point, but no doubt would have spoken this way. In this case, it did not address her Ministers can be removed ordinarily. This case fits all the usual criteria for reading words into a statute: The Court can ascertain the overall purpose of the legislation, the Court can be satisfied that the silence was an oversight, and it can state what language it would have used. Ultimately, all that it takes in this case is to reject the clearly-outdated view that a statute says only what its words mean on a literal reading, read in isolation, devoid of context and purpose. Once this is accepted, it is impossible to reject the conclusion advanced here. Sorry if rambling on a bit, this is what I do when I'm too tired to be productive. Edited by Guy, Jun 9 2015, 06:25 PM.



Guy	Jun 11 2015, 09:09 AM Post #7
Lazarene Posts: 43 Group: Members Member #40 Joined: Apr 10, 2015	Seeing that CoS has resigned his citizenship, the Court should consider whether this case should be dismissed due to a lack of jurisdiction. The only substantive grant of power to the Court seems to be: Quote: 5. The Grand Court shall try all civil and criminal cases and determine the constitutionality of laws, treaties, and government policies. I do not read this as allowing the Court to adjudicate outside of an adversarial proceeding ('cases'), as well as 'constitutionality reviews' of existing laws, treaties and policies, something not present here. Edited by Guy, Jun 11 2015, 09:10 AM.



RPI	Jun 13 2015, 09:09 PM Post #8
Lazarene Posts: 37 Group: Members Member #39 Joined: Apr 10, 2015	The Court has decided not to dismiss this request, and plans to issue a ruling hopefully rather soon. We do have a draft written. Edited by RPI, Jun 13 2015, 09:10 PM.



Guy	Jun 14 2015, 09:54 AM Post #9
Lazarene Posts: 43 Group: Members Member #40 Joined: Apr 10, 2015	I hope you have a reasoned decision as to that, I hope. I think the argument that you have jurisdiction is plausible, but far, far from certain.



Belschaft	Jun 14 2015, 05:21 PM Post #10
Supreme Executive Chief Justice for Life Posts: 338 Group: Members Member #50 Joined: Apr 12, 2015	I'm off the opinion that the court is well within it's jurisdiction here, as we've been asked to rule on whether or not the Delegate has the constitutional power to dismiss ministers.



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