Narrative:
Separation of powers
In the past I
presented a petition for Judicial Review where I addressed, briefly, the principle of separation of powers and the Business Licensing Bureau charges. With that in mind, part of this amicus brief will be a direct quote of what was proposed in the petition.
Although the principle of Separation of Powers is not explicitly enshrined in our constitution, the structure of the constitution, and its necessary separation into distinct articles to establish the creation of the executive, legislative, and judicial branches, it allows for a clear conclusion that our state - like any modern state - finds this principle as a fundamental basis of its legal system. With this in mind, it is clear that said principle is binding and of necessary application by all of our courts, specially by our highest one - the Supreme Court.
The Business Licensing Bureau charges bill breaches the principle of separation of powers by granting an entity belonging to the Executive Branch -Business Licensing Bureau- the power to define the content and scope of a criminal law, thus creating a direct conflict with the constitution, which clearly separates our legislative, executive, and judicial branches of power.
In regards to the Business Licensing Bureau Charges, and also modifications inserted into the penal code without following legislative process
Said law allows the Business Licensing Bureau to define specific parts of the law that should have been done by the Law Review Committee, even though this entity does not have legislative powers or the ability to create criminal laws. The law creates citations, misdemeanors, and felonies but leaves it to the Business Licensing Bureau to define the specific conduct that constitutes each offense. This can be clearly noticed when, in repetitive occasions, the law states the following:
- "(...) as defined by the Business Licensing Bureau."
This is a clear violation of the principle of separation of powers as it allows an executive branch entity to perform a legislative function, therefore it is unconstitutional for breaching the Separation of Powers principle, and thus, must be struck down.
Addendum: Transferring this type of legislative competence is not permitted in any way by our Constitution. In fact, our Constitution only allows for ONE SITUATION (very different from the Bill subject of this Petition) in which this is a possibility, found in the second paragraph of Section 8 of Article 1 of our Constitution. This provision allows the Law Review Committee to grant provisional competence to the Board of Governors for a maximum of 2 days to "propose taxes, duties, imposts," among others.
The existence of Business Licensing Bureau charges challenges the separation of powers and violates the constitution
Violation of Article III - Section 6
The Prosecutor's Office, presided by our Attorney General, was given the power to
"(...) ex officio, or by means of complaints, to investigate the crimes and to accuse the alleged offenders before the competent courts and tribunals (...)". With this in mind, I find that the Bill subject of this Petition violates Section 6 when it limits the application of the fines, misdeamenors and felonies created by it in the following terms:
- SECTION 2. ADDITION OF A NEW CATEGORY FOR PENAL CODE
(...)
All charges within the aforementioned section shall ONLY be issued by authorized members of the Business Licensing Bureau, the Attorney General as directed by the Business Licensing Bureau, or by the head of the Executive Government.
When required or called upon to execute the authority of the laws in question, Law Enforcement agencies may interact with the charged individual only for the purposes of detainment (Including the procedures required for detainment) or legal questioning."
(Bolded text added by the author)
This section of the law not only limits the powers of the Attorney General, to the extent that it subjects his power to the orders of the Business Licensing Bureau, but also provides that an entity of the executive branch (head of the Executive Government) may apply criminal charges, which in addition to violating the Section that is the subject of this chapter of the Petition, also violates the principle of Separation of Powers.
Violation of the 5th amendment
The 5th amendment of the constitution states that, should the Penal Code be violated, a member of
any San Andreas Law Enforcement Agency may submit an individual for punishment to the Department of Corrections.
The bill subject of this Petition in its Sections 3b, 3c, 4b, 4c, 5b and 5c determines a list of behaviours that require the incarceration of those that commit them. However, as quoted in the previous chapter of this Petition, the Bill restricts the application of these felonies to
authorized members of the Business Licensing Bureau. This means that a legal disposition (H. R. 4) limits the powers vested to Law Enforcement Agencies in the 5th amendment, which is not reasonable at all, given that legal provisions can't and never will be able to abolish constitutional provisions.
The dissolution of the legislative branch
As it has been proposed, the separation of powers is a principle that heavily guides any modern State. With that in mind, it does not appear reasonable that a singular branch of power would have the ability to dissolve the legislative branch. Particularly, there are constitutional designs -which aren’t like the one adopted by San Andreas-, where the President is allowed to dissolve the parliament under specific circumstances, specially revolving the lack of trust when the head of the government -President- has been elected by a majority that is openly against the majority that elected the Parliament in the past. In such cases, the dissolution of the Parliament would be allowed under the basis that the President has obtained a high degree of trust from the public through popular vote, and said popular vote represents the will of the public at the current time.
These circumstances would not be a possibility with our constitutional design, given that unfortunately none of the members of the Executive branch are publicly elected. In other words, the Executive Branch would never obtain the democratic legitimacy required to even discuss the dissolution of the parliament. As such, the dissolution of our parliament constituted an illegitimate breach against the trust that the public deposited on the members of our parliament.
Particularly, it can also be concluded that the current structure of our parliament -which was designed by the Executive branch-, also breaches the separation of powers. It is unfathomable that the Speaker of the House -which in practice is NOT an administrative role- is a role within the Executive Branch. This is also aggravated by the fact that legislators are only allowed to have staff belonging to the executive branch, meaning that the executive branch is directly involved in drafting, modifying and in general in the complete legislative process.
It is my opinion that the law review committee members -those not publicly elected, but the ones employed by the Executive Government- should be moved away from the Executive Branch. Furthermore, the Speaker of the House can’t -constitutionally at least, in my opinion- be employed by the Board of Governors. In other words, the role of Speaker of the House must be moved to the Legislative branch.
In this regard, I will not be addressing the questions proposed in relation to the extraordinary circumstances that necessitated the adjournment of our Parliament. Simply, no circumstance existed for that to happen and ultimately, the Board of Governors does not have the popular or constitutional legitimacy to carry out the dissolution of our parliament.
The Executive Government, although acting against the popular will, did not carry out any efforts leading to filling any vacancies. In my particular case, I requested the Speaker of the House to invoke Article 1 of the Constitution in regards to filling vacancies on February 5th:
Antonio McFornell wrote: ↑06 Feb 2024, 00:32
Self-Nomination
HOUSE OF REPRESENTATIVES
|
- Dear Emily Whitehorse,
Pursuant to Article I - Section 2.2 of the Constitution, I would like to offer my name to the Executive Branch to fill one of the two positions that are currently unfilled in the House of Representatives.
Particularly, Section 2.2 states:
- Section 2.2: Absolute Absence of Representatives
When a vacancy occurs within the Public Representatives of the House of Representatives, the next currently eligible runner-up candidate from the previous election for the position shall be summoned by the speaker, and be asked to fill the vacancy for the remainder of the term. If no response is received within 7 days, that candidate is considered to have forfeited the offer and the next eligible runner-up candidate will be summoned. Should no viable runner-up candidate exist, the Executive Branch may choose to fill the position or issue writs of election to fill such Vacancies.
I believe this request is in order, given my expertise and knowledge of our legal and constitutional regime. Furthermore, and as you might be aware, I am not a sitting judge in any of the courts. While it is my desire to become a Judge, this would not imply a legal disability, given that my nature (Appointed Representative) would allow me to perform the duties of a Judge, should I become one during my term as a Representative.
Particularly, Section 2.1 states the following in its last paragraph:
- Section 2.1: Term & Eligibility
(...)
No judge of any Court, Secretary of State, Attorney General, Clerk of any Court of Record, or any person holding a lucrative office under the State of San Andreas, or any foreign government shall during the term for which they are elected or appointed, be eligible to sit as a representative in the legislature. Appointed members to the congress may be exempt from this clause.
I would like to respectfully request that you inform me whether this request is taken into consideration or otherwise denied. Needless to say, I am aware that this decision lies exclusively in the hands of the Executive and as such, I will comply with whatever is determined.
Best regards,
Co-Author of the Constitution of the State of San Andreas
(909) 553-8869 — [email protected]
This is not supposed to appeal to the fact that I was not considered, but rather to the fact that the Speaker of the House was aware of the constitutional methods that could be utilized to avoid any vacancies or the lack of operation of our Parliament.
It is also worth noting that, given that all of the staff and the direction of our parliament is (incorrectly) delegated on the Executive Government, they are one of the primary responsible parties for the malfunctioning of our Parliament at the current time.
Principle of Legality in Criminal Law - No Retroactive Application of Criminal Law
In criminal law, it is a foundational principle that no one can be judged for actions that are not classified as crimes. This means that if I commit actions that are not included in the Penal Code, I cannot be prosecuted for them. Moreover, this guarantee also means that if an action is classified as a crime, this law or punishment can only be applied in the future. In other words, people cannot be judged for actions that were legal and constitutional at the time they were committed, meaning they were not prohibited. It is openly unconstitutional and against all legal principles to attempt to create a law or regulation such as "Breach of Trust" to prosecute people for actions described within the new crime (Breach of Trust) before such actions were declared a crime.
In other words, the executive branch not only bypassed the constitution by integrating new crimes into the penal code, but it also violated the principle of legality. No one can be judged for actions they committed when these actions were not prohibited.
Breach of Trust vs. Freedom of Speech
The separation of powers exists particularly to guarantee a system of checks and balances. On some occasions, the power and coercion that administrative authorities can exert over the citizenry are so significant that it is necessary for the employees or members of the branches of power to report illegal, unethical, and generally norm-violating actions by their superiors. In this sense, prohibiting whistleblowers or censoring the media is simply unconstitutional and seeks to turn San Andreas into a police state.
Final Comments
Regarding the executive branch's response, judicial review is a power constitutionally recognized to the Supreme Court and can be initiated by the court itself or upon request. Therefore, the Chief Counsel of the Executive Branch is wrong in stating, “Neither a citizen of the state has created this petition, nor has the court provided any constitutional arguments for this review, this was created by the court with no petitioner.”
Furthermore, it is important to remind the Chief Counsel that many advances in human rights protection, respect for the rule of law, and the separation of powers have unfortunately been achieved through what he labels as "judicial activism." Likewise, it is absurd to suggest that this case involves "Nobody v. State of San Andreas," since judicial review is not a contentious process but an abstract control of constitutionality.
Needless to say, the proposition of "extra-constitutional solutions" is absurd and disrespectful of the will of the people of San Andreas. It is intolerable that the Executive Government is violating a constitution that they meddled with, modified to their liking, and intervened in drafting.
Judicial reviews are a matter of law, not of opinion or politics.
I,
Antonio McFornell, hereby affirm that all information provided above is true and correct to the best of my knowledge, and understand that knowingly providing false information could result in charges and/or fines.
(( I affirm that all information submitted has been obtained via In-Character means.
))
