Constitution of the Republic of Libertania
or The Libertarian Peacenik's Manifesto
© Naphtali Rishe, 1993, 2000
We, the people of this Republic of Libertania, expressing our will
to be free, our will to be served by a popularly elected government
charged with care for our well-being but with minimal powers to
repress us or to waste our resources, our will to protect the
individuals and minorities against the whim of the majority, and our
aspiration for peace, do hereby stipulate that the following
provisions of this constitution shall control the Law of this
country and acts of its government forever or until this
constitution is amended by a referendum in which eighty percent of
voting persons approve the amendment.
{note:
The footnote remarks explain the motivation of certain statements.
}
{note:
The pronouns he and his are generic and not specifically
masculine.
}
1. PEACE
The Government may use military
force, subject to the Law, only in defense of aggression by another
nation, in preemption of imminent aggression, in prevention of and
dealing with a major catastrophe, and in containing a massive
violent insurrection. All military activities must cease unless
approved as prescribed in the Chapter "Government" of this
Constitution.
During military actions the Government
shall exercise care in reducing the loss of life of both the
citizens of this nation and the citizens of the opponent, especially
their civilians and involuntary draftees. The government shall
invest in research of defensive means that can incapacitate the
agressor's military machine with minimal loss of life.
{note:
As pacifist, the author of this document does not condone any war, even
defensive. However a reasonable constitution should not prohibit the
government from engaging in a defensive war while exercising maximum
care to prevent loss of life.
}
The Government shall make no permanent claims on any inhabited
territory which is not a part of this nation at the time of
acceptance of this Constitution, unless said other territory, by a
decision of its government approved by a free referendum of its
population, wishes to be annexed.
{note:
Thus, even territories captured in a defensive war, must be returned
once the threat is eliminated.
}
2. RIGHTS OF PERSONS AND GROUPS
1. There shall be no restriction on the right of a person to
perform any action unless such action may cause substantial damage
to a non-consenting or incompetent person or to an animal or to the
environment.
2. No person shall be subjected to a penalty for committing a
crime, unless the severity of the penalty is in correlation to the
damage which the crime has caused, or may have caused, to other
non-consenting or incompetent persons, animals, and environment.
{note:
The doctrine of correlation between crime severity and punishment is at the
core of this document. It is further elaborated in Section 4.
}
3. Every person has the right of free speech and expression,
except:
a.
Law may criminally penalize: (i) the divulgence of national security
secrets, provided it has resulted in substantial irreversible damage
to the nation's security; (ii) agitation for violence that has
resulted in death or injury; and (iii) malicious false statements
that have caused death or injury due to panic or other change in
public behavior.
b. Civil liability to persons affected may exist for: (i)
malicious false statements;
(ii) acts on private property prohibited by owners thereof.
This freedom will extend to mass communication, including the press,
public performances, radio, television, Internet, and all other means that are
unobtrusive to unwilling persons. There shall be no prior restraint
of the freedom of expression.
{note:
Whereas other acts may be prohibited simply because they may cause
damage, the freedom of expression has exceptions only if the damage
has actually occurred (and only under the circumstances listed).
}
4. There shall be no prohibition unless it is enforceable and
is enforced without unjust
{note:
The concepts just and fair are purposefully vague and are subject
to the discretion of the Supreme Court.
}
discrimination.
{note:
A prohibition on the books which is not enforced de-facto or is
enforced selectively against some people while the police ignores
its violations by other people, is unconstitutional.
}
5. No person shall be denied liberty except as provided by the
chapter on Crime and Punishment herein. There shall be no capital,
cruel, or unusual punishment.
{note:
The measure of cruelty is determined by contemporary standards:
incarceration is presently acceptable, future generations may find
more effective and humane forms of rehabilitation. Unusual
punishments are those not broadly accepted as appropriate forms of
punishment.
}
6. Every group of persons accounting for at least 1 percent of
the population that share common interests or desires has the right
to be represented in the Legislature in proportion to the group's
size.
7. No person shall be denied the enjoyment of his legally
acquired property, except as allowed by the Chapter on Crime and
Punishment, as well as levying of fair taxes, enforcement of
judgments of civil liability for damages or debts, lawful
nationalization or condemnation of property in exchange for fair
compensation, and Local Governments' zoning regulations controlling
external factors of properties to the extent these factors affect
the quality of life of neighbors.
8. Persons incapable of providing for their food, shelter, or
health care have the right to obtain them from the Government.
{note:
The government may provide this in exchange for reasonable service
that these persons are able to render. This social duty is purely
on the government: no social duty is imposed on private business;
e.g. a law of minimal wage would be a violation of the
constitutional right of entering into contracts (as well as increase
unemployment and the welfare burden).
}
9. Every citizen has the right to move freely on public roads,
in public waters, the country's airspace, and leave the country.
However, the Law may regulate the modes of movement in order to
alleviate danger and nuisance to other persons.
{note:
E.g. the Law may not mandate the use of seat belts but may mandate
stopping at the red light. A person's right to drive on a public
road can be denied only if he is unwilling or unable to drive
without endangering other people or property.
}
10. The citizens have the right to create and join
associations. The associations shall be deemed legal persons with
respect to their civil liability and liability to them, as well as
taxation and the right to do business. There shall be no
discrimination in taxation between non-profit associations and
business associations. Dividends paid by an association to its
members shall be considered a business expense reducing the
association's taxable profit.
{note:
That is, no double taxation.
}
The Government shall not subsidize any associations; however, the
Government may adequately reimburse associations for provision of
certain services to the public. Members of associations shall not
bear collective responsibility for their acts, except that they may
irreversibly choose in the articles of incorporation to personally
guarantee the association's fiscal liabilities. However: the
association's assets and future pre-dividend profits may be seized
in enforcement of judgment for civil or criminal liability;
association's members or employees engaging in or ordering illegal
acts may be held personally accountable.
11. All persons have the right to engage in business of
manufacturing and trade and enter into contracts, subject only to
the following limitations:
a. Law may reduce liabilities stipulated in contracts for
provision of personal services and contracts waiving personal
freedoms guaranteed by this constitution, so that persons thusly
affected will have a reasonable way to abandon their contractual
obligations.
b. Law may void liability for contracts for commission of
crimes.
c. The Government may regulate provision of services or goods
to or by the minors younger than 16 years, including their
employment. This provision shall not be construed as superseding
the guarantee of freedom of press and expression.
{note:
The government may allow the minor to abandon his contractual
obligations of certain types. The Government may not prevent
distribution of child pornography (which is an exercise of freedom
of press), but may prosecute the producer if physical (or very
substantial psychological) harm has been done to the child who is
not old enough to give competent consent, as described in the
chapter on Crime and Punishment.
}
d. Law may regulate safety of employees.
e. Law may impose reasonable procedures for verification of
informed consent of parties entering into contracts.
f. Law may regulate environmental impact of businesses.
g. Law may regulate and limit the manufacturing of and trade in
weapons.
h. Law may create standards of quality, safety, and healthiness
of products and services; however the standards shall not be
enforcible when the purchaser explicitly waives them, being fully
informed of the consequences.
i. Law may protect intellectual property rights.
j. Law may regulate the use of public property for private gain.
a. Law may regulate monopolies existing due an exclusionary act
of the government, whether the act is restraining or advisory. A
business or a cartel of businesses shall be deemed a monopoly if it
has more than seventy percent of the market in a type of product or
service ultimately consumed by at least twenty percent of the
population in a locale.
{note:
A more general constitutional permission to regulate monopolies
would be against the spirit of freedom to engage in business. A
moral justification for regulating does exist when a monopoly is
caused by an exclusionary action of the government (e.g.: permitting
a phone company to dig public roads; declaring that only a firm X
produces a safe drug for a disease Y; granting a title to an
intellectual property -- a patent, etc.), and, therefore, the
government can require some fairness in exchange.
}
12. The people have the right of privacy in their communications
and in their bodies and possessions, real and intangible, whether they
own such possessions or rent them; the only exceptions to this right
are enumerated in the chapter on law enforcement infra.
13. The people have the right to assemble peacefully. Law shall
prescribe procedures to make public roads, squares, and lands
available to peaceful assemblies and demonstrations without
discrimination as to their message. However, the Law may
discriminate against demonstrations advocating violence that are
held on public roads in neighborhoods where such demonstrations may
cause public distress.
{note:
E.g. the authorities may restrict the location and route choice of
KKK or neo-Nazi demonstrations advocating violence, however some
places must be allocated for such demonstrations.
}
14. The Government shall not discriminate for or against any
citizens on account of their race, ethnicity, faith, political
affiliation, marital status, gender, sexuality, life-style or
behavior pattern; with the following permitted exceptions:
a. Gender discrimination in the provision of gender-specific
health services;
b. Discrimination for the needy in provision of services;
c. Discrimination in taxation against the wealthy and capable,
however wealthy persons shall not be required to pay a higher
percentage of their wealth and income than the percentages paid by
the majority of the population;
d. Discrimination in taxation against persons whose behavior or
use of public facilities creates greater expense for the government
than that of other persons, but only to the extent of estimated or
typical additional expense;
{note:
E.g. the government may tax the sales of heroin and tobacco to cover
the extra cost incurred by the government for the medical care.
This provision also allows the government to tax vehicle owners for
maintenance of roads.
}
e. Reverse discrimination in favor of persons who were found by
the Supreme Court to have been discriminated against contrary to the
provisions of this Constitution. The Supreme Court may extend the
reverse discrimination to the offspring of the persons of groups
previously illegally discriminated against, but not beyond the
second generation.
{note:
This permits affirmative actions for two generations of previously
discriminated races and ethnic groups. Thus, a Black person who has
not suffered from discrimination in his lifetime but whose parents
have, can be a beneficiary of affirmative action. This is because
the discrimination against his parents may have deprived them of
wealth, education and culture, and has decreased their ability to
pass it to their offspring. On the other hand, women may be
beneficiaries of affirmative action only as remedy for past
discrimination that they suffered in their lifetime.
}
f. When there is a widespread non-governmental discrimination
of a group, the government may offset it by affirmative action in a
way prescribed by Law.
{note:
The prohibition of discrimination applies to actions of the
government, not to actions of individuals or non-monopolistic
private enterprise. If a non-monopolistic enterprise discriminates
against a group, this may be highly immoral and persons of
conscience might choose to boycott it; however the right of the
owner to be free from control would be inconsistent with a legal
prohibition of such an immoral behavior. (Also there is no way to
clearly define what private discrimination is immoral and what is
not, e.g. preferring Whites over Blacks in employment is immoral,
but requiring that a rabbi be Jewish is not immoral. Also, if there
were a law making it hard to fire a woman, for example, this would
actually boomerang against women by making employers reluctant to
hire them in the first place.)
}
When a monopoly exists due to an exclusionary action of the
government, said exclusionary action shall be conditioned on the
absence of herein prohibited discrimination.
15. When a majority of citizens enjoy a right, including a
privilege or a service provided by the government or monopolies,
every adult citizen has a right to enjoy it under similar conditions
and charges as those of the majority, with the following exception:
this right may be revoked by a due process of law as a punishment
for commitment of a crime or when the enjoyment of this right by
this person creates uncommonly greater menace or danger to the
society than when it is enjoyed by other citizens.
{note:
E.g. the government or monopoly may not stop mail delivery,
telephone service, etc., as long as the person is paying the
customary fees.
}
In case certain skills are required for enjoyment of the right
without harming others, the government may institute objective
testing of the person's skill as a precondition for the enjoyment of
the right.
{note:
E.g. a driver's test. However, the government may not withhold
permission to drive from a capable person as a punishment without
due process, i.e. driving is a right.
}
16.
The government shall not restrict or promote any religion, nor
promote any religious or moral dogmas that are not proven as
beneficial to the people, the animals, or the environment.
{note:
The commandment ``Though shall not steal'' should be enforced.
``Though shall not commit adultery'' may not be advocated by the
government. The Biblical commandment ``Honor thy Father and thy
Mother'' may not be enforced but may be advocated in children's
films funded by the government.
}
17.
And everybody may fuck and/or jerk off as much as their dick or
pussy so desire.
{note:
It is a joke here because this right is already covered by the other
provisions. These provisions leave no possibility for prohibiting
sex, including pornography, prostitution, exhibitionism, ``deviant''
sex, etc. Rape can be prosecuted only as regular assault (not a
``sex crime'') taking into account the health and psychological
damage to the victim. (This is further elaborated in the section on
Crime and Punishment.) Other rights implicitly guaranteed are taking
and selling drugs (but not driving under influence), gambling, usury
(but not violent enforcement of payment), the right to work for any
agreed compensation (no minimum wages), the right to practice
non-conventional medicine, and, in general, the right to do whatever
one pleases as long as there is no harm to non-consenting persons.
When a small harm to non-consenting persons does exist (as in the
case of a nonviolent rape), the provision of correlation between
crime severity and punishment precludes the government from blowing the
incident out of proportion and imposing stiff sentences based on
religious or feudalistic morality or on a public hysteria.
Doctrine of morality and legality. Actions or defaults that
unjustly harm people (or, perhaps, animals) may be immoral. An
action that is not immoral should not be illegal. An immoral action
may be illegal provided it is not protected by any of the basic
rights (the people have the right, in some cases, to act immorally),
and provided there is substantial harm to a victim who is not
competently consenting, a statute defines the illegality of the
action (or, in rare cases enumerated in Chapter 3, a default), the
fault is provable, and the statute is indiscriminately enforcible.
However, the government should refrain from performing or endorsing
immoral acts. There is a hope that eventually people will
voluntarily refrain from all immoral actions. Examples:
Pornography and prostitution are not immoral. Violent movies are
immoral but not illegal (protected by the freedom of expression as
well as absence of direct victims). Demanding sexual favors from an
employee by an employer is immoral (if it offends the employee) but
not illegal (there is a collision with the freedom to enter into
contracts). Offensive sexual harassment by a stranger is immoral
and may be illegal if it is persistently annoying and provable
(however, since it is very hard to prove, the Law might best leave
it to private conscience). Permanently displaying pornography near
a church may be immoral if it greatly offends the parishioners; it
is not criminal but may be removed in enforcement of a local zoning
regulation. Racial discrimination by a private employer is highly immoral
but not illegal; the government, on the other hand, may not
discriminate, and, further, in some cases may counter private
discrimination with an affirmative action. Racial supremacy
propaganda is highly immoral but not illegal, unless it calls for
and results in violence (there is a collision with the freedom of
speech). Pushing tobacco or heroin to first-time buyers is immoral
but not illegal. Smoking in a public place may be illegal if it
harms non-consenting parties. Abortion is probably immoral but not
illegal (there is a collision between the rights of the fetus and
the right of the woman not to be compelled to carry the fetus).
Using animals for food is possibly immoral; if it is, this practice
is better to be abandoned voluntarily rather than through Law.
Using animals in medical research to save human life probably is not
immoral (provided unnecessary killing and pain are avoided) and,
thus, such research may be sponsored by the government.
}
3. GOVERNMENT
The branches of the Government and the limits of their powers are
listed herein.
{note:
In this Constitution, the fully independent branches are the
Legislature, the Judiciary, and Local Governments. The Executive is
a subordinate branch.
}
3.1. Legislature
A 100-member legislature shall be elected once in four years in
direct proportional elections by secret ballot. Every citizen at
least 16 years old has a right to vote. Every list of 1 to 100
persons that declare themselves to be a political bloc and obtain
signatures of support from one hundredth of one percent (0.01%) of
the eligible voters shall be put on the ballot during said
elections.
Legislative seats shall be assigned to blocs in proportion to the
number of voters for the bloc and according to the order of the
candidates determined by the bloc's list. Seat fractions resulting
from the proportional division shall be consolidated into whole
seats and assigned to blocs pursuant to sharing agreements between
the blocs; the seats remaining thereafter shall be assigned to the
blocs in the order of the sizes of their remaining fractions of
seats.
By a positive vote of at least 51 members the Legislature may enact
laws, provided said laws comply with this constitution and promote
the well-being of the nation or the world.
{note:
The purpose of these restrictions is to limit excessive law-making.
}
Said laws may determine the levy of taxes imposed without unjust
discrimination.
The only other powers of the Legislature are stated in the other
sections of this chapter.
3.2. Executive
The executive powers, as determined by Law, shall be in the hands of
the Cabinet of 10 to 30 ministers. By vote of a majority of the
legislators present in a duly convened session, the Legislature may
fire and appoint the Executive Cabinet, may veto any action thereof,
and may determine the types of executive actions to be presented to
the legislature for prior approval.
{note:
Thus, the Executive is not an independent branch of government but
subordinate to the Legislature. In practice, after elections to the
Legislature various parties will attempt to form a coalition and to
install their Cabinet.
}
If less than 51 legislators casted an affirmative vote, this
decision shall be suspended until a second vote is taken in five
days.
{note:
To allow the absent legislators to participate in the second vote.
}
Each minister shall exercise executive powers determined by his
assignment to a particular portfolio in the legislative appointment
of the Cabinet. Such ministerial powers may be seized by the
Cabinet as a whole. One of the ministers shall be assigned in the
legislative appointment to the portfolio of Prime-minister. The
prime-minister shall preside over the meetings of the Cabinet and
exercise other duties determined in the Legislature's description of
his portfolio. Each minister shall have equal voting rights on the
executive actions that according to the Law or the Cabinet's desire
must be determined at the Cabinet level. Every legislator may query
any minister regarding any executive action.
3.2.1. Military
The Cabinet shall be the joint commander-in-chief of the armed
forces and the central law-enforcement agencies. However, the
Cabinet may delegate to any group of ministers the power to take
actions in cases of emergency.
Within 48 hours of the beginning of any military
activities the Legislature shall convene a special session to
consider the unavoidability and legality of the use of military force. If the
military action fails to be approved by three fourths of the
legislators present by the expiration of 48 hours, all military
activities shall cease 3 hours thereafter. Independently, the
Supreme Court may suspend or disallow military activities if it
decides they are avoidable.
3.3. Judiciary
3.3.1. Judiciary appointing council
Upon acceptance of this constitution, a council of fifty prominent
legal scholars shall be established by the Constitutional Assembly.
This Council shall be self-perpetuating: when a member dies or
resigns, a new member shall be elected by the Council. The Council
shall appoint judges at all levels. The Council may impeach a judge
for incompetence or misconduct by a vote of seventy percent of its
members. The criteria for appointment of judges shall be the
candidate's professional caliber, devotion to the constitution,
independence from political pressures, and fairness. A member of
the Council may not be appointed a judge until two years have
elapsed after the member's resignation from the Council. The
judges, during their tenure, shall not hold any elected office or
perform any other service remunerated by the government. A judicial
appointment by the Council may be conditioned on the candidate's
resignation from and non-acceptance of other positions and
non-engagement in private business. The Council shall also
legislate a procedure by which judges pro-tempore are appointed.
3.3.2. Supreme constitutional court
The Supreme Constitutional Court, composed of eleven judges, shall
examine the constitutionality of the laws. On a motion of any of
its members,
{note:
The members can act as independent watchdogs of the Constitution or
consider complaints of citizens.
}
or on a motion of any other court,
{note:
When a district court deems a statute unconstitutional it will
suspend its current proceedings until the Supreme Court determines
the constitutionality of the statute.
}
it shall conduct a hearing wherein parties approved by any member of
the Court or by any branch of the Government may present their
argument. The Court may strike a law or a regulation in two cases:
if its unconstitutionality or unfairness have been proved or
if no satisfactory proof of the law's benefit to the nation
or the world has been presented
3.3.3. Supreme court of grievances
The Supreme Court of Grievances, composed of five judges, shall
receive grievances of citizens against the Government. The Court
shall establish a procedure by which the grievances shall be
considered. The Court may grant temporary injunctions against the
government pending a hearing, whereupon it may grant a permanent
injunction based on a proof that the Government is damaging the
complainant by violating the Constitution, the Law, or its own
regulation. The Court shall exercise the right of habeas corpus
concurrently with other courts.
3.3.4. Supreme court of appeals
The Supreme Court of Appeals, composed of nine judges, shall
consider appeals from the decisions of any appellate court if:
any of the members so moves,
{note:
That is when at least one justice sees merit in a second appeal of
the case.
}
or
upon the defendant's petition when the appellate court's
verdict involves incarceration of more than twenty years
{note:
The defendants have the right of two appeals of severe sentences.
}
3.3.5. Appellate courts
The number, size, and jurisdiction of the appellate courts shall be
determined by the Judiciary Appointing Council; so that every
decision of a lower court can be appealed and be decided on appeal
by a panel of at least three appellate judges.
3.3.6. District courts
The number, size, and jurisdiction of the district courts shall be
determined by the Judiciary Appointing Council. Panels of judges of
the District Court shall conduct civil and criminal trial pursuant
to the section on Law Enforcement of this Constitution. The size of
the panel shall be established by Law and shall be in correlation to
the maximum damage the decision may bear on the defendant. The
Court's judges may also issue search and arrest warrants as
specified in the section on Law Enforcement; may issue habeas corpus
warrants; and may issue temporary injunctions pending trials.
3.3.7. Tax courts
The number, size, and jurisdiction of the courts adjudicating tax
disputes shall be determined by the Judiciary Appointing Council.
3.3.8. Budgets and staffs of judicial entities
The remuneration of judges and other employees of the Judicial
Branch shall depend only on the title of their position.
{note:
That is, the salaries of all the members of the Judiciary Appointing
Council shall be identical (this is a part-time job); the salaries
of all the district court judges throughout the nation shall be
identical. This is necessary to prevent the authorities from
financially influencing judges. (Non-judicial employees of the
branch have a variety of titles, such as District Court
Administrator, Secretary II, etc.)
}
The Central Legislature shall provide the Judiciary Appointing
Council with adequate budget, which the Council shall distribute to
various judicial entities. Adequate salaries of the members of the
Council shall be determined by the Central Legislature.
3.4. The Ceremonial Presidency and the Comptroller
The President shall be appointed once in six years by a vote of a
relative majority of the Legislature. The President may be
dismissed prior to the expiration of his term by a vote of 70
legislators who determine that the President has violated the
duties of his office.
The President shall be the Ceremonial Head State for the purpose of
receiving respect from other nations and from the citizens of this
nation and personification of the State for the purpose of honor and
respect. The President shall refrain from clear political
identification. The President shall not publicly express his
opinion on matters for which there is no consensus. The President
may question any act of the Legislature, suspend its effect for up
to one week and require that a second vote on the act be taken
before the act goes into effect; he may further suspend any act
pending a judiciary hearing of its constitutionality; but otherwise
he shall sign the Legislature's acts into Law within one week.
The Comptroller shall by appointed by the President with advice and
consent of the Legislature that he/she is a duly qualified and
politically impartial person. The tenure of the Comptroller shall
expire seven years after his appointment or if he is fired by a vote
of at least 51 legislators who believe he is unfair, incompetent, or
ineffective.
The Comptroller shall audit the expenditure of finances, the
enforcement of Law, the provision of services by the Government to
the public, the fairness of elections, and the administration of
justice, and shall investigate complaints of citizens against the
Government. The Comptroller shall convey his findings to the
relevant Government agencies; the citizens involved; the general
public when he deems this appropriate; and will submit an annual
report to the Legislature and the Public. The Comptroller shall
have the right of access to all the information possessed by any
branch of Government and may interrogate under oath any employee of
the Executive branch.
3.5. Officers Pro-tempore
The Law shall establish a procedure for temporary filling of
vacancies in the positions of of the Cabinet, the President and the
Comptroller, until such time that the necessary majority of the
Legislature is attained to fill the vacancies on a regular basis.
{note:
For example, it is reasonable that once the Cabinet is fired it
becomes the Cabinet Pro-tempore until a new coalition is formed.
The procedure should also provide for a chain of temporary
succession in case of death or incapacitation of officers.
}
3.6. Local Government
The local government shall consist of the Local Legislature, Local
Executive, and Local Ceremonial Presidency and Comptroller. The
Local Legislature shall be elected by the citizens residing in the
local territory, in the same manner and at the same time as the
elections to the central Legislature. The Local Executive, and
Local Ceremonial President and Comptroller shall be appointed and
empowered by the Local Legislature in the same manner as it shall be
done in the central government.
The powers of the local government are limited as follows:
It may levy additional taxes from persons and businesses
present in the local territory at any time; however the taxation
shall be without unjust discrimination as may be determined by the
central Judiciary.
It may enact and enforce zoning regulations controlling
external factors of properties to the extent these factors affect
the quality of life of neighbors. Violation of a zoning regulation
is not a crime; but it may be subject to a civil suit brought by the
government or neighbors.
It may provide services to the population of the local
territory.
It may organize the enforcement of central laws in the local
territory.
It may obtain from the central government reimbursement for
services the local government provides to its population, which
services would otherwise be provided by the central government. The
amount of reimbursement shall be negotiated between the local and
the central governments. If the central government fails to provide
fair reimbursement, the local government may require that the
central Judiciary determine the fair amount. Further, the local
government may require intervention of the central Judiciary if it
deems that the Central Government levies excessive central taxes on
the population of the territory.
Locally governed territories may be nested, that is, local
territories may be organized within other larger local
territories.
{note:
E.g., a borough within a city within a county.
}
In this case, a territory contained in a larger territory shall be
reimbursed by the containing territory for local services, and be
protected from excessive taxation of its population subject to
review of the central Judiciary.
Any contiguous or water-connected territory may obtain or abandon
the status of a locally governed territory by a referendum of the
residents thereof if a majority of voting persons, but not less than
one thousand, cast an affirmative vote. The territory does not have
a right to secede from the country or from a containing territory in
which it is nested, except in two cases:
a. by a referendum of its citizens approved by a vote of the
Central Legislature
{note:
That is, in principle, there is no right of secession without
consent of the central authority. This constitution is for a
country which is not a federation of ethnically different lands. If
this were such a federation, the lands might want to reserve a right
of secession in their federal constitution. Another difference in a
federal constitution would be greater powers of the local
governments (beyond those permitted in this Constitution).
}
b. when this Constitution has been amended by a referendum
while the number of votes against the amendment exceeded in this
local territory the number of votes approving the amendment, then an
independence referendum may be conducted in the territory at the
option of its Legislature: if a majority of voting persons in said
referendum is for independence -- the territory shall become an
independent country one year thereafter, unless the a new
national referendum reverses the constitutional amendment by then.
{note:
This constitution is a contract uniting the territories into a
nation. When this contract is amended without consent of one of the
parties thereto, in this case only that party has an inherent right
to secede.
}
4. CRIME AND PUNISHMENT
4.1. Definitions
1. Accusee is a person accused of committing a crime.
2. Victim is a legal person or a group of persons who
sustained damage from an alleged crime.
3. Damage of an action is a measure of detriment of the health
or the wealth.
- Psychological damage is classified as a health damage.
Psychological damage is rebuttably presumed to be a mild
health damage. Damage to a person's morality or reputation is
irrebuttably at most mild health damage plus possibly wealth
detriment to the degree it can affect the person's present or future
wealth.
4. Potential damage of an action means the sum of the
possible damages, each multiplied by its probability.
- `A-priori potential' refers to the probabilities of outcomes reasonable
to be assumed before the action commenced; `a-posteriori
potential' refers to the damages and probabilities of damages
known at the time of the trial, taking into account the actual
consequences of the action.
{note:
An attempted murder has a high a-priori potential but low
a-posteriori potential. An intentional traffic violation that
resulted in an accident has a low a-priori potential but a high
a-posteriori potential.
}
- Health and wealth damages are measured separately: an action that
damages both health and wealth may be regarded as two actions for
the purpose of the evaluation of its damage.
5. Competent consent
An adult sane conscious not threatened person willfully
participating in an action whose potential damage is widely known,
or known to the person, is irrebuttably presumed to competently
consent to the action.
When a child is an alleged victim of an action mildly
damaging his health
a. a child under the age of 10 is irrebuttably presumed to be
incapable of competent consent;
b. a child between the ages of 10 and 12 inclusive is
rebuttably presumed to be incapable of competent consent;
c. a child between the ages of 13 and 15 inclusive is
rebuttably presumed to be competent to consent;
d. from the age of 16, the person is adult with respect to the
competence to consent to such a physical action.
Implied consent
is presumed for the following actions:
a. in the case the Victim was incompetent at the time the
action was committed, the Accusee has obtained a competent consent
of Victim's guardian for an action whose potential of benefit to
Victim is comparable to, or exceeds, the action's potential of
damage to Victim
b. in case the Victim was incompetent@ least temporarily),
and due to an emergency situation, out of concern for the wellbeing
of Victim, Accusee did not have time to obtain a competent consent
of Victim's guardian, and the action's potential of benefit to
Victim significantly exceeded the action's potential of damage to
Victim.
A willful participation in an action without giving competent
or implied consent as defined supra, that resulted only in
psychological damage to the victim, is supporting evidence that the
damage is small.
{note:
It is normally illogical to claim that a major psychological damage
resulted from an action in which an incompetent person participated
willingly and no physical harm was done.
}
6. `Penalty in correlation to the damage' establishes a
scale of comparison of various crimes. No crime may have statutory
penalty more severe than that of another crime whose a-priori and
a-posteriori potentials for damages are both smaller than those of
the former crime.
{note:
Mathematically speaking, there are four incomparable parameters of
crimes: a-priori health damage potential (h1), a-posteriori health
damage (h2), and the same for wealth: w1 and w2. There is a
partial order of crimes: if a crime x is no more damaging than
y in each of the four parameters then it cannot bear a higher
penalty. Thus, the constitution leaves it up to the Law to
determine whether an attempted murder is more severe than an
intentional and successful infliction of injury, or whether battery
is more severe than a grand theft, but the constitution does
determine that sexual molestation is not more severe than battery
(non-sexual), that an attempted murder is not more severe than
murder, that a petty theft is not more severe than grand theft.
}
7. Multiple victim actions
When an action has more than one victim, each with
significant potential of damage, the action may be regarded as a set
of actions, each with one victim.
When an action has numerous potential victims, each with only
a very small probability of damage, the action may be prosecuted by
consolidation of all the possible victims into one hypothetical
victim with a cumulative potential of damage.
The environment is regarded as a joint property of the
present and future mankind and the country as a joint property of
its citizenry.
{note:
Thus, an action damaging the environment, e.g. a willful
destruction of the ozone layer, can be prosecuted as a crime
against a hypothetical cumulative victim. Similarly, an action
against the property of a government can be regarded as an action
against its subjects.
}
4.2. Crimes
A statute may provide for denial or abridgment of liberty of persons
duly convicted of committing a statutory crime of one of the
following categories.
4.2.1. Criminal acts against persons
It may be a crime for a competent person Accusee to perform an
action for which all the following conditions are met:
a. Accusee or anything under his control came in contact with a
Victim or Victim's property (a contact can be established by a
touch or by transferral of a material thing or money); and
b. the action had a potential to damage the health or the
wealth of the Victim or affect the Victim's freedom; and
c. the Victim did not competently consent to the action nor
gave implied consent; and
d. a statute defines the action as criminal.
Exception: It is not a crime (but may be a civil liability)
to commit an action against Victim, provided the potential of damage
to Victim is small, while the action has a significant potential to
save the life of, or prevent a major injury to, another person.
{note:
For example, a starving person steeling food to save his own life
(or his friend's life) is not a criminal (but has a civil liability
to repay the damage when he can afford).
}
4.2.2. Other crimes
In addition to the aforementioned acts against Person, a statute
may
{note:
May is a permission to criminalize certain actions. It does not
imply that the government should criminalize them.
}
criminalize the following:
1. A major cruelty to an animal, causing a physical pain to an
animal, except for those actions which a significant part of the
contemporary society at the time of the statute's enforcement finds
acceptable.
{note:
E.g., actions performed in the process of production of food or
medical research while the contemporary society accepts this. (It
is quite possible that in a future generation a consensus will be
reached that animals should not be used as food. Until then the
government may not enforce vegetarianism.)
}
2. A willful or negligent failure to perform a statutory duty,
provided that this failure has caused damage to a person. The only
duties that may be imposed by a statute are the following:
a. duties accepted by the obligee as a condition of holding a
government post;
{note:
E.g., a government employed fire fighter must respond to fires.
}
b. duties accepted by the obligee as a condition for receiving
of a government subsidy for obtaining a rare professional skill
necessary to perform the duties;
{note:
E.g., a physician whose education was subsidized may be required to
help accident victims.
}
c. duty of parents to preserve life and health of their
children;
d. voluntary contractual obligation to perform an action,
provided the failure to perform that action may cause death or
severe injury to a person;
{note:
E.g., a babysitter contracted to look after a child may be
criminally negligent in certain rare circumstances.
}
e. duty to say truth under oath during judicial proceedings,
provided one is not required to incriminate oneself or substantially
harm oneself;
f. duty to perform military or civil service in times of war,
provided there are no sufficient qualified volunteers to perform
such service in exchange for reasonable fees or salary, and provided
reasonable alternatives are given to the draftees that are
compatible with their medical and moral status;
{note:
E.g., a conscientious objector.
}
g. duty to pay tax assessed in a constitutionally permissible
manner; however the penalty for this crime shall be limited to fines
and disposession;
3. Removal, or attempt of removal, of a person from his lawful
custody.
{note:
Escaping from a prison, resisting lawful arrest, abduction of a
child, etc.
}
4.3. Penalties
The penalty for a statutory crime shall be in correlation to a
weighted sum of the a-priori and the a-posteriori
potentials of the criminal action to damage Victim.
No penalty shall involve taking away life or infliction of pain or
permanent injury. A penalty may involve detention or abridgment of
wealth. With the convict's consent, the penalty of detention may be
substituted for uncompensated performance of a service, provided
such a service would not be dangerous to the Convict's health and
would not be harder to perform than a reasonable type of regular
employment.
Notwithstanding the right of each person to life and health, in
emergency situations, an imminent act of violence by an assailant
may be prevented by incapacitating the assailant, while exercising a
minimal degree of violence sufficient under the circumstances. The
government shall invest in development of efficient temporary
incapacitation devices, which, once available, shall eventually
replace the herein permitted use of weapons.
4.4. Non-punitive Abridgment of Liberty
In addition to the constitutionally-permissible denial of liberty of
an offender who was found guilty of a crime by a due process of law
beyond any reasonable doubt, a person's liberty may be denied or
abridged in the following cases:
1. In extraordinary circumstances, a person accused of
committing a crime may be detained pending his trial, provided there
is a strong preliminary evidence that the Accused has committed a
major crime, and there is a high probability that the accused
may escape the trial or commit another crime before the conviction,
and there are no reasonable means to prevent him from doing so
without temporarily denying his freedom. If after such a detention
the accused is acquitted of the alleged crime, the Government shall
compensate him for his economic damages caused by the detention.
2. The freedom can also denied from a person who, by a due
process, was found insane and highly likely to commit an action
which would be a crime if committed by a sane person.
Except when guilty of committing a crime, the denial of freedom
shall be for the shortest period reasonably possible, and the
conditions of the detention shall be as convenient and not punitive
as reasonably possible. Such a non-punitive detention may be made
only in accordance with a specific statute defining the required
circumstances, the procedures, and conditions of such a detention.
A detention for more than 24 hours shall require an emergency court
hearing and a unanimous decision of two judges.
4.5. Law Enforcement and Administration of Justice
4.5.1. Searches
Law enforcement agents may enter private premises without explicit
permission of the resident in the following cases:
When there is a reasonable suspicion that a violent crime is
about to take place therein, the agents may enter to prevent said
crime.
When there is a strong evidence that a violent crime has
taken place therein, the agents may enter to investigate said crime
pursuant to procedures that must be established by Law.
When there is a strong evidence that there is stolen property
therein, then three judges, at an ex-parte hearing, may unanimously
issue a search warrant of the premises for the allegedly stolen
property, pursuant to procedures that must be established by Law.
The same rule shall apply in searches for weapons strongly suspected
to have been used or intended to be used to commit a crime.
If law enforcement agents enter private premises not pursuant to the
above, or when they cause unnecessary damage to the premises even if
the entry is lawful, the agents shall be personally liable to the
resident, they shall be criminally liable to the State, and the
State shall be liable to the resident, whether or not the resident
is guilty of the crime and whether or not incriminating evidence has
been found on the premises.
4.5.2. Due process
No person shall be convicted of a crime unless his guilt was proven
beyond any reasonable doubt in an open court. No person will be
required to testify against himself or to admit guilt; if he does --
his admission shall not be acceptable as contributory to the proof
of guilt.
{note:
This discourages coercion of the accused into admitting guilt,
including plea bargaining, which is coercion with threat of
prosecution for a more severe crime or imposition of a greater
sentence. In principle, without coercion there is no reason why a
guilty party would admit, while with coercion the innocent is as
likely to ``admit'' as the guilty.
}
Testimony of those prosecution witnesses who can benefit from their
testimony shall be regarded as not fully reliable.
{note:
In particular, criminals who were promised leniency in exchange for
their testimony. Also: alleged crime victims who reserve the right
to sue for damages (especially when the points to be proved are not
only who committed the crime but whether the crime has been
committed at all, as is often the question in cases of rape).
}
For crimes where the penalty is imprisonment, the testimony of only
one reliable witness without any corroborating evidence shall not be
considered a sufficient proof.
The accusee shall have the right of compulsory appearance of
witnesses in his favor. The accusee shall have a right to an
attorney of his choice. The government shall subsidize his attorney
according to a scale of reasonable costs of defense for the types of
crime.
{note:
Most attorneys will accept this subsidy as payment in full.
Expensive attorney will charge their clients more.
}
However, the government may recoup this subsidy from a convicted
accusee if the sentence includes a fine and the accusee is able to
pay.
Before a case that may result in imprisonment of more than three
months goes to trial, the government shall present its case in an
indictment hearing before a judge, who shall not be a member of the
trial panel. The defendant need not present a case in said
hearing. The judge shall not issue an indictment unless he is
convinced of the high likelihood of conviction.
The verdict at the trial shall be based solely on the evidence
presented at the trial, the Code of Law, and this Constitution.
{note:
The Court should not be biased by the press, public opinion,
indictment hearing, etc. Nor may the judgment be based on precedent
(as in the Common Law) -- the Code of Law must be sufficiently
elaborate and precise. If the Court deems a statute
unconstitutionally vague it may petition the Supreme Court to strike
it (see the section on the Supreme Constitutional Court).
}
The defendant has a right of appeal in all cases. The State may
appeal only if the verdict of the trial panel is not unanimous.
The
Code of Law shall establish exact penalties, or formulas for their
calculation, for various crimes, in accordance with this
Constitution. If the accusee is found guilty of a crime, his
penalty will be precisely determined by the Law, with the
following exceptions:
when the actual crime's a-priori and/or a-posteriori
potentials of damage to the victim a substantially less than the
typical ones on which the penalties prescribed by Law are based, the
judges shall reduce the penalty prescribed by Law;
in extraordinary unique circumstances the judges may reduce or commute
the penalties for humanitarian reasons or for compelling public interest.
{note:
Thus the judges' primary job is determining the guilt, not sentencing. The sentence
must be predictable. The verification of proof of guilt requires
proficiency in the application of Law and Logic; this high skill
task cannot be given to a lay jury.
}
5. WELFARE
This chapter may be amended by a simple majority of voters in a
referendum with concurrence of more than 50% of members of the
Central Legislature.
{note:
Since the provisions of this chapter relate to contemporary problems
and means, it should be easier to amend it than the more fundamental
chapters.
}
5.1. Child Welfare
{note:
The initial goals of the child welfare system are:
Improving quality of life of the inner cities and providing a
better opportunity for children growing there
Improving the welfare system while eliminating its
bureaucracy, humiliation, and injustice
Compensating the poor for non-progressive taxation if the
latter is established to facilitate the economy
Disassociating family planning from economic concerns
Alleviating the negative aspects of teen pregnancy
Facilitating the rights of children and parents in divorced
families
Reducing the number of abortions
Reducing physical abuse of children
Eliminating poverty of children
Stimulating people to work by disassoiating child welfare
allowance from parents' income
Improving education by allowing schools to compete between
themselves and with private schools
Eliminating financial discrimination against families whose
children study in religious or other private schools
Reducing crime by giving better opportunities to poor
children
}
1. A reasonable amount for maintenance of a child shall be
determined by Law.
{note:
Under present-day standards, this amount should cover public
education, medical care, reasonable clothing, reasonable food, and
1/3 rent of an average 1-bedroom apartment.
}
This allowance shall be standard across the country.
{note:
Although the cost of living differs in different areas, the area to
live in is the family's choice. Area-dependent allowance would be
deepening of the gap between rich and poor areas, would be
encouraging migration into richer areas, and would be inequitable to
poor areas.
}
Exceptions will be made for children with special needs by
authorities empowered by Law.
{note:
In order to limit the bureaucracy of welfare, such exceptions should
be extremely rare.
}
2. Parents or guardians shall be paid said allowance for each
child.
3. Parents failing to acquire necessary services for their
children where such services are covered by said allowance, breach
a fiduciary duty.
4. Public schools and other services shall not be directly
subsidized. Parents can select schools and pay their charges.
5. Parents unwilling to care for their children may assign the
custody and allowance to a public institution established by Law.
The parents or the institution can also assign the above custody and
allowance to adopting or foster parents provided an authorized
official determines that this would not be contrary to the child's
interest.
6. When one of the parents is not willing or able to share the
child's custody with the other parent, the other parent may consent
or may require a government-sponsored arbitration to determine joint
or sole custody and the rights of the non-custodial parent.
Non-custodial parents shall not be liable for child support.
{note:
The standard allowance is paid by the government to the custodial
parent. Support beyond standard is in parents' discretion. A
divorced father has the same right to exercise discretion as a
married one and to have leverage thereby to be involved in decisions
regarding the child's upbringing.
}
5.2. Health
Law shall establish a system whereby every citizen can afford medically
required care at a reasonable minimum standard of quality.
5.3. Standard of Living
Law shall establish a system whereby every citizen who for reasons of
health or age is unable to sufficiently provide for oneself shall be
helped in attainment of a minimum standard of living defined by Law.
Law shall also provide for temporary relief for unemployed persons while
stimulating them to return to work; said relief shall be given in
exchange for services to the public to the extent of the person's
ability.
5.4. Financing Welfare
The welfare system shall be financed by a uniform value added tax (VAT) on
all revenue-generating transactions, including salaries.
{note:
Based on the original plan by Jerry Brown, but with no deductions for rent or mortgage.
}
The
Central Government shall not collect taxes other than VAT and reasonable
fees for governmental services and use of public facilities
resources.
{note:
The
welfare system (children, retirees, disabled, unemployed, minimal
health care coverage for all citizens) will consume almost the
entire tax revenue. The other expenditures will be:
infrastructure; advancement of science; very small military, law
enforcement, judiciary, and crime-prevention and
criminal-rehabilitation programs; foreign policy; government. The
regressiveness of this taxation is amply compensated for by the
progressiveness of the child allowance.
}