2015 In re Petition for Declarative Relief re: Application of 47RZ28 (UC)

  

Din el Cort Pü Inalt
In the matter of
PETITION FOR DECLARATIVE RELIEF re: Application of 47RZ28
Petitioner Senator L. da Schir Seneschal C. C. Xheráltescù Avocat-Xheneral M. Schivâ
Decided
25 November 2015/XXXVI
Brief of the ruling
Petition dismissed. The Cort upheld the right of the King to refuse to proclaim amendments to the Organic Law.
Opinion of the Court delivered by
Justice dal Nordselvă
joined by Justice Cjantscheir
Dissenting opinion delivered by Justice Edwards

Complaint

May it please the Cort:

1. The Organic Law of the Kingdom, Article XV, "Amendments to the Organic Law", Section 1, reads as follows:

An amendment to the Organic Law may be made by proclamation by the King where so authorized by:

•A vote of two-thirds in both chambers of the Ziu, and

•Approval of the majority of voters participating in a referendum on the question of the amendment no later than during the next scheduled general election following the approval of the Ziu.

•Proposed changes to this Organic Law that affect the representation of a province in the Senäts, or of the territory or equal sovereignty of a province, shall only be passed with the approval of a majority of participating voters in that province.

2. Bill 47RZ28, "THE ORGANIC LAW AMENDMENT (Provincial Government) BILL #1 OF 2015", was passed by the Ziu with the required two thirds majority in both Houses, and given Royal Assent.

3. The aforementioned bill was submitted to the population as a referendum and was approved by a majority of voters.

4. His Majesty King John I explicitly refused to proclaim the amendment, proclaiming instead all the other amendments that have been approved in the most recent General Elections.

LEGAL ARGUMENT: PRECEDENT

5. Whilst the Organic Law seems to require an explicit proclamation for every amendment in order for them to have force of law, this particular clause has never been enforced as in fact every successful amendment has been applied with no proclamation issued.

6. If we assume that no explicit proclamation is required for an amendment to take effect, then 47RZ28 should be enforced. In fact, King John did not veto the amendment, he merely refused to issue an explicit proclamation for it. Which brings my argument to point seven.

7. If none of the past amendments have been proclaimed by the King before they took effect, and if 47RZ28 is not enforceable because it has not been proclaimed, then all the other non-proclamated amendments have in fact been enforced illegally and inOrganically.

8. The argument then seems to be if the King's proclamation of an amendment is necessary or merely symbolic in order for an amendment to take effect. Looking at past cases where amendments have been enforced without an explicit proclamation, I would argue that under well-affirmed precedent 47RZ28 should be enforced regardless of the King's refusal to issue an explicit proclamation for it.

Opinion

At issue is the interpretation of Organic Law Article XV Section 1 as it applies solely to 47RZ28. The petitioner/plaintiff has not proven to the satisfaction of the Cort that the Organic Law places any obligation upon the King to proclaim every amendment which passes the Ziu and the people, nor has the petitioner demonstrated that the King does not have the discretion to refuse any amendment as he sees fit. The Organic Law clearly and deliberately uses the word "may", not "shall" or "must" or "without refusal." Simply put the Organic Law puts no obligation on the King to proclaim the amendment, he has the discretion to do so or not to do so.

The Organic Law in Article XV Section 1 deliberately excludes the King from the amendment process right up to the final point, the proclamation, meaning the King May pass an amendment into law (passively or actively) or may refuse to do so. In this case, by excluding Royal Assent up to this point, the Organic Law empowers the King to refuse to proclaim an amendment, even if is has met all other requirements. To say at this point that the King's opinion doesn't matter, it becomes law anyway, is removing the King from the process, a concept which we hold to be incompatible with the Organic Law nor is in the spirit of the Organic Law.

Again, amendments that were "proclaimed" are not on trial here, the issue is can the King refuse to proclaim an amendment that has passed all other stages. Given the word "may" and the lack of Royal input in the process up to this point, we hold that nothing in the arguments made or in law convinces us that there is an override on Royal Assent or an obligation placed upon the King to issue such a proclamation.

Dissenting Opinion

The dissenting opinion holds that the weight of tradition is entirely with the petitioner, and tradition is, in lieu of known intention, the chief constitutional interpretive framework of any civilized society. Tradition is, as they say, a fence around the Torah - it is the unwritten but enacted law for the interpretation of the law.

The word "may", cited by the majority opinion, has been the apparent basis of the King's decision over the years not to proclaim amendments; he has understood that they become law without his proclamation. The King's own 9-year-long praxis is what renders his behaviour in this case inOrganic. The dissenting opinion sympathizes with the King's former praxis, as "may" indicates an optional action; "must" indicates a requisite, and we would expect that if Organic amendments required proclamation from the King, the language of the Organic Law would make it clear how that proclamation (and any associated veto) worked.

Equally, where the majority opinion references the "spirit" of the Organic Law as necessarily tending to offering the King a veto (as the monarch is an integral part of the constitution), this very argument seems to the dissenting opinion to tend in the opposite direction. OrgLaw III.2 clearly states that the material powers of the monarch are democratically granted, and find their font of power within the people; the majority opinion seems to think that the framers of the OrgLaw intended for the monarch to be able to entirely and permanently defy democratic power thereafter. Perhaps they did, though I find it hard to believe that Dan Laurier or Eif/Art Verbotten intended such.

Finally, the dissenting opinion also holds that the Cort's decision endangers the entire body of this nation's law over the last 9 years. The dissenting opinion holds that the King has acted Organically when he has chosen to either proclaim laws actively or permit them to pass into law actively, up until the event dealt with in this case; the majority opinion, despite its claims to the opposite, implies that the King's "passive" proclamations over the years have been inOrganic. If this is in fact the case, then many matters of legal importance - including the way the Uppermost Cort itself functions and is constituted - are deeply clouded by this Cort's decision.

Ruling

The actions of the King are organically sound. The petition is dismissed in its entirety.