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. }