Constitution of the Erish Federation

Constitution of the Erish Realm
Jurisdiction	Erishland
Date effective	3 January 1940
System	Parliamentary monarchy
Branches	3
Chambers	Semi-bicameral
Executive	Royal Cabinet
Judiciary	High Court, Court of Assizes, Court of Cassation, lesser courts
Federalism	No, but Lands enjoy self-government
Entrenchments	2
Location	Allthing Building
Author(s)	Constitutional Congress

The Constitution of the Erish Realm (Erish: Det Erischryk's Grondlaj) is the supreme law of Erishland. It establishes the human rights guaranteed in Erishland and the framework of the national government. It was drafted during 1938 and early 1939 by the Constitutional Congress, ratified later that year by a referendum, and came into effect on 3 January 1940. The date of that national referendum, 2 April, is celebrated every year as Constitution Day.

The constitution establishes the Erish Realm as a parliamentary monarchy. It declares the personal, political, civil, and social rights that bind the state, and divides power between the legislative Allthing, the courts which collectively comprise the judiciary, and the executive Office of the Kingdom. It also establishes that the state derives its authority from the popular will of all inhabitants of Erishland, not just the Erish people or citizens. In order to be amended, a proposed amendment must receive a two-thirds supermajority of the Folkthing in two consecutive terms and then the approval of the electorate in a national referendum.

The Erish constitution inherits some of its ideas, such as a form of rejection of fusion of powers, from the constitution of the historic Erish Republic. Nonetheless, the Constitutional Congress created the document with a desire to avoid its predecessor's flaws, which ultimately led to a dictatorship. Central principles of the constitution for this end include the absoluteness and universality of rights, the spirit of the constitution binding the state, protection of the state against anti-democratic parties, and the accountability and collegiality of the executive.

Background

Premodern era (1600s-1842)

Beginning as early as the reign of Queen Liexne I during the mid-1600s, the absolute power of the Erish monarch began to wane. The Landenrad, established by Queen Liexne I as an advisory council on the governance of the Lands of the realm, gradually began to exercise more and more power. Democratic movements accelerated this trend during the 1800s. The first elected members of the Landenrad taking their seats in 1809, and by 1821, only a quarter of the Landrad was still appointed by the monarch. In spite of this trend, the monarch vigorously maintained their authority over matters of government against the Landenrad. When the Landenrad attempted to remove the Royal Cabinet by a vote of no confidence in 1830, Queen Liexne II, declared that the Landenrad had exceeded its authority, warned that "if elected dissolved the body for a new election, and appointed half of the Landenrad.

This act began a period of conflict between the monarchy and the pro-democratic factions represented by the elected members of the Landenrad (and in things at the Land level) and liberal and republican movements. Demonstrations became increasingly frequent and violent, culminating in the 1841 Holtstad Massacre, when the Royal Guard opened fire to quell a riot. This incident was presented in papers as an unjustified slaughter, and mass riots soon followed. Fearing the emerging Ottonian Federation would exploit the unrest, the Royal Cabinet advised Queen Liexne II to abdicate in the hopes that her departure would ease tensions. She did so, leaving the throne to King Aleiv IV, who reigned for only 13 days before the Republican League, a mass movement which had risen to prominence over the past decade, stormed the palace with the aid of a breakaway faction of the Royal Guard, and successfully threatened the King pronouncing the end of the monarchy, and the establishment of an Erish Republic.

Republican era (1843-1867)

Following the end of the monarchy, the Republican League set about the establishment of the Erish Republic. After a six-month long provisional government, the new state was established by the Constitution of the Erish Republic as a federal presidential republic with a bicameral Parliament.

Within the framework of what was hailed as one of the most democratic systems of the age, the two major parties which emerged, the Liberal and Nationalist parties, initially cooperated during the "golden era" between 1843 and 1849, and the first President, the Nationalist Herstol Hwardson, abided by the constitution. Starting with the second President, the Nationalist Tursch Borlavson, the system began to break down. Gridlock during the third Parliament led to the President pursuing policy through directives, starting a trend of executive law making which rapidly expanded. The Nationalists took both chambers of Parliament in 1852, and passed a series of institutional "reforms" which granted the President broad powers, and engineered the electoral system to favor the party.

The situation continued to deteriorate during the rest of the 1850s as Nationalist Parliaments and presidencies increasingly cemented the dominance of the party. However, two events are traditionally viewed in Erish history as beginning the downfall of the Republic:

• The leader of the upper house Nationalists and de facto leader of Parliament, Senator Eirik Werolvson, and the Nationalist President, Eudolv Geustavson, began fighting for control. This ended in the 1858 Werolvson Resolution, where Werolvson attempted to exercise confidence over the Cabinet as the Landenrad had thirty years earlier. In response, Werolvson and members of his faction were declared by Geustavson to be 'subvertors of the Republic', and were rounded up and executed. His successor, Micheil Hongelson, would ultimately take on more power than Werolvson ever wielded, but was a staunch loyalist to the President.
• Allamunnic minorities in Eudland, who had been facing increasing discrimination by the Land government, rioted in 1859. Though few lives were lost, the incident created the sentiment amongst the Nationalist leadership that the Allamunnic were or could be used as a fifth column, viewed by the President as a platform establishing the complete dominance of the Nationalist party.

From the late 1850s until 1867, genuine Allamunnic riots alongside false-flag operations were used as the pretext for curbing civil liberties almost completely, suspending the 1860 election through an attached resolution to the national budget, and, ultimately, what has been viewed as an attempted ethnic cleansing of the Allamunns in Erishland. In the end, the Ottonian Federation invaded the country in 1867, dissolving the Republic.

Fundamental rights

All people have certain fundamental rights, and no laws, policies or judgments that restrict or deny these rights are constitutional.

— Article I of the Constitution of the Erish Realm

Fundamental rights (Erish: grondrejten) are a core component of the Erish constitution. Most are found in Article I, a bill of rights that guarantees a set of personal, political, civil, and social rights which bind all institutions of the state at the national, Land, and local levels. A right to habeas corpus is also acknowledged by Section 14a of Article III, which bars the Folkthing from creating laws which restrict it. The High Court acts as the primary body protecting these rights, being granted the power of judicial review to strike down laws or executive policies which violate them. A certain subset of rights, personal rights and (potentially) the right of Erish citizens to representative democratic government, have a constitutional complaint mechanism which allows citizens to appeal to the High Court if other avenues of recourse fail. Those rights are constitutionally entrenched, and any amendment that serves to restrict them can be struck down by the High Court.

Fundamental rights are framed as universal within the Erish constitution, applying to all people regardless of citizenship status; the sole exception is the prohibition of non-consensual revocation of citizenship. In all other cases where a right is limited to either Erish citizens or Erish citizens and legal residents, the right is framed as universal, but the language implicitly sets a limit. The language of universality was used in direct response to the abuses of rights during the Republican era. The Republican constitution's guarantees of rights nominally applied to citizens, but were supposed to apply to everyone. Under the Nationalist regime, they came to be interpreted as applying specifically to people of Erish ethnicity who held citizenship, a status which became increasingly restricted to fewer and fewer people. The constitutional (as well as legal) term describing Erish citizens, rykburger ("citizen of the realm"), is also consequently used instead of erisch burger ("Erish citizen") to avoid any implication that citizenship belongs to a specific ethnic group.

Within Erish constitutional doctrine, fundamental rights are also absolute. Except for where the constitution establishes an explicit limit to a right, or provides a mechanism by which it can be breached by the state, it cannot be restricted in any way. Although this tradition of absolute rights was present to some extent in the Republican constitution, the implicit understandings that many rights had limits - for example, that "freedom of assembly" did not protect violent assemblies, or that "freedom of speech" did not include defamation - helped to undermine the Republic. It is for this reason that rights, after great debate, were more specifically worded, so that there would be less room for a negative interpretation that implied some inherent restriction; returning to the previous examples, freedom of assembly became freedom of peaceful assembly, and freedom of speech became the right to "form, hold, express, and change one's opinions". In practice, though, there is some flexibility, specifically with the social rights that place some obligation upon the state.

Personal rights (Article I, Chapter 1)

Personal rights (Erish: personlik rejten) are the most fundamental rights under the Erish constitution, and include the tripartite rights, self-government, equality under the law, and due process. Potentially alongside a specific part of the right to participation in government, they are constitutionally entrenched, and have a mechanism by which citizens can directly appeal to the High Court if a violation of them has not been able to be redressed by any other court.

Personal rights include:

• Right to life, freedom, and dignity (Section 1): Declared to be "sovereign, inborn, and supremely inviolable rights of all people", these "tripartite" rights are viewed as the basis of all others. They are also the basis for the national motto of "Life, freedom and dignity" (Lyv, fryheid ond werdigheid).
• Right to self-government (Section 2): The name for the right to "self-government" (selvstandigheid) comes from later on in the constitution, and encompasses three parts:
  • Right to the development of oneself and one's personality - This right is limited to the extent that it impedes the rights of others. It is often framed as a right to "pursue one's conception of goodness."
  • Prohibition of slavery
  • Freedom from arbitrary arrest or imprisonment - detention requires a warrant based upon evidence for the violation of a law, except when "there is reasonable cause to believe an immediate threat exists to the well-being of the surrounding community." This standard informs the basis upon which most political rights can be breached by the state.
• Right to equality before the law (Section 3): Undue discrimination by the law upon the grounds of "sex, age, heritage, race, origin, nationality, residence, language, wealth, faith, or creed" is prohibited. What constitutes undue discrimination has been the subject of several cases, but some of the primary legal tests involves whether the discrimination in question constitute a substantive or "spiritual" abridgment of the other rights afforded by the constitution, and whether it serves to "negate otherwise extant discrimination".
• Right to due process (Sections 4-12): A person may only be deprived of their rights by a jury of their peers in accordance with the law, and which has been made according to certain constraints:
  • Presumption of innocence
  • No trial for a serious crime without indictment by a grand jury - "Serious crimes" are a specific category of Erish national criminal law, and involve acts such as corruption, terrorism, or treason.
  • Speedy and public trial by an impartial jury of one's peers
  • Informing the defendant of the accusations and witnesses against them
  • Right of the defendant to representation and witnesses
  • Protection from self-incrimination
  • Protection from double jeopardy - A person cannot be retried for the same crime twice, "unless new evidence comes to light."
  • Prohibition of culpability for the actions of one's ancestors- This arose in response to one of the most notorious abuses of the Republican era: so-called "father trials" (faderprocess). Most typically used for political enemies of the ruling Nationalist party, an elder member of the household would be tried and convicted for a crime, typically "subversive activities", and the rest of the household would be detained on the grounds that they "had been made prone to subversion".
  • Prohibition of ex post facto laws
  • Prohibition of cruel, torturous, or degrading treatment
  • Prioritization of rehabilitation - It is mandated that criminal sentencing should prioritize rehabilitation over retribution when possible.

Political rights (Article I, Chapter 2)

Although all rights bind and limit the state in some capacity, political rights (politikisch rejten) are particularly considered as the rights affording protections against state power. Most, in some way, can be abridged by the state in law enforcement contexts, so long as they follow the constraints against arbitrary use of state power. They include:

• Right to form a family (Section 1): Adults have this right; families have the primary right and duty of raising children, and are "entitled to the care and support of the community and the state". The state can only separate a family by order of a judge, in compliance with relevant laws and based upon evidence. The term "family" (familie), as opposed to "marriage" (echtschap), was used to distance the state from any potentially religious connotations of marriage.
• Privacy rights (Sections 2-4): The Erish constitution guarantees the following privacy rights:
  • Right to privacy of the home - The home of a person can only be searched according to a warrant or the reasonable cause standard.
  • Right to privacy of oneself and one's effects - A person or their effects can only be searched according to a warrant or the reasonable cause standard.
  • Right to privacy of correspondence - Oral, written, or postal correspondence can only be searched according to a warrant; the reasonable cause standard does not apply to correspondence. Supreme Court decisions have established over time that this right also applies to telecommunications and digital communications. Controversially, the Supreme Court has allowed the establishment of secret courts for warrants regarding national security, though these emerged after the courts began enforcing that the government could not monitor communications without a warrant, even if the evidence was not used in court.
• Freedom of movement (Section 5): The state may only restrict movement if there is an immediate threat to an area, or if the area is, in accordance with the law, one which requires secrecy.
• Right to seek asylum (Section 6)
• Right to private property (Section 7): People cannot be arbitrarily deprived of their property; if seized by the government for the public good, owners are compensated according to an independently-appraised market price.
• Prohibition of non-consensual revocation of citizenship (Section 8)

Civil rights (Article I, Chapter 3)

Civil rights (civil rejten) center around the rights involving participation in a pluralistic, liberal democratic state, and include:

• Freedom of expression and thought (Section 1): This is framed as the right to "form, hold, express, and change" one's opinion, and so is commonly known as the "right to an opinion" (rejt af meining). This particular language is informed by the constitution's absolutist stance upon rights, and the use of a more general term such as "speech" (spraik) would have been too broad. The language of this right has thusly been interpreted to mean that acts such as defamation, certain forms of hate speech, and incitement to violence can be restricted under the constitution.
• Freedom of the press (Section 2): This is framed as the right to "spread [one's] knowledge and opinions without [...] government interference". Somewhat inversely to the previous right, it was felt that enumerating a specific right for freedom of the press, as opposed to the underlying principle of it, would be too narrow of language. Some scholars interpret the right as having implications for whistleblowers, though no jurisprudence on the matter has yet been made.
• Right to petition (Section 3): Grievances, requests, and complaints can be addressed to appropriate authorities, and they have an obligation to respond.
• Freedom of peaceful assembly (Section 4)
• Right to participation in government (Section 5): This right recognizes the popular will as the sovereign, and declares that people have a right to "participate in the government of their nation of citizenship, [...] directly or through an elected representative". This right effectively is a right to vote and to stand for political office. Some scholars believe that this right, insofar as it applies to Erish citizens, is constitutionally entrenched, though this is debated within legal circles.
• Right to secret ballot (Section 6): Eligible voters have a right to a secret ballot in elections.
• Freedom of relationships and association (Section 7): People have a right to form relationships with others. This emerged in response to the laws under the Republican era wherein Erish people were forbidden from having interactions with Allamunnic minorities. Later jurisprudence has read an implicit right to freedom of association from this clause, though political parties are subject to constraints established elsewhere in the constitution.
• Freedom of religion (Section 8): People may hold and practice whatever religious beliefs they have, insofar as those practices do not impede others' rights, and religious tests for political office are banned. The state is established to be secular, though, by implications elsewhere in the constitution, the monarch is allowed to remain the High Priest of the Ardist Order.

Social rights (Article I, Chapter 4)

The final set of Erish fundamental rights are the social rights (social rejten), which focus upon participation within society. Whereas the personal, political, and civil rights can be conceived of as mostly restraining the state in some way, social rights delineate its most basic duties. The rights explicitly dealing with the provision of some social service establish that the state is obligated to provide them for citizen and legal residents. They include:

• Right to peace (Section 1): This restrains the government from actively attempting to undermine peaceful international relations.
• Right to personal safety and security (Section 2): Sometimes referred to as the "purposive right", this right is usually viewed as establishing the fundamental duties of the state (though the following explanation does not explicitly appear within the constitution): establishing safety from arbitrary violence exercised by private or public actors, and the secure conditions of life necessary for every person to make full use of their rights. Several rights not enumerated in the constitution, such as a right to informed consent or certain environmental rights, have been derived in jurisprudence from this right in particular.
• Right to healthcare (Section 3): The state must provide for a comprehensive single-payer healthcare system for citizens and legal residents, and private healthcare is subject to regulation by the state. Various attempts at establishing some form of fee that patients must pay have consistently been struck down due to being at odds with the wording of healthcare "wholly at the state's expense", leading several critics to argue for an amendment rephrasing the right.
• Freedom from want (Section 4): The state must provide for the basic needs of sustenance and shelter for citizens and legal residents. This has been accepted to imply a multi-faceted approach, including more state-oriented approaches like social safety nets as well as policies to promote access to food through the market.
• Right to education (Section 5): The state must provide a "complete, modern" education to citizens and legal residents "without restriction", and private education is subject to regulation by the state. The implications of "without restriction" have been accepted to mean that the state may impose certain fees, though they "cannot constitute a barrier". Though the state already provides public funding and institutions of higher education, there is, as of yet, no jurisprudence on whether it is necessarily constitutionally required. Beyond the basic social service implications, jurisprudence has found that this right also includes freedom of academia.
• Economic rights (Section 6): The constitution has a number of provisions with regards to economic rights:
  • Freedom of occupation
  • Authority of the national government to regulate business practices - In tandem with the previous provision's language of freely choosing one's occupation "without fear of coercion or discrimination", it has been interpreted that the state has an obligation to ensure that that addendum applies to private businesses as well as itself. This has, amongst other implications, been interpreted as applying the protections of equality before the law within business, as well as implying a right to unionize.
  • Prohibition of forced labor except as a criminal sentence
  • Right to rest and leisure time
  • Right to reasonable limits upon working hours
  • Right to periodic holidays

Constitutional institutions

Main article: Politics of Erishland

The popular will is the realm's highest authority. To better the public weal, parts of this authority are delegated to the state, whose nature is laid out in this constitution.

— Article II of the Constitution of the Erish Realm

The Constitution of the Erish Realm establishes from Article II to Article V as a parliamentary constitutional monarchy. In it, there is a separation of powers between the legislative Allthing, the judiciary comprised of the courts, and the executive Office of the Kingdom, which is comprised of the ceremonial monarch and the Royal Cabinet. The Lands are delegated their autonomy through acts of the Allthing, which can only be amended through the procedures established in them and a referendum in a Land.

The Allthing is the Erish legislature, and holds its meetings in the Allthing Building in Serdstad. Currently consisting of 250 Deputies, it is elected every four years, with half being elected by single-seat constituencies, and the other half by a national proportional vote; it can be dissolved early by the monarch upon the advice of the Royal Cabinet, but after this early election, the legislature serves out the remainder of the term. The locally elected Deputies are granted exclusive powers of supply and confidence. In order to be eligible to vote and stand in elections, an Erish citizen must be of-age, currently defined by law as 21. The Allthing is granted all legislative power, but it can delegate any area of law to a Land that is not reserved by the constitution to the national government.

The judiciary consists of the High Court, the Court of Assizes, the Court of Cassation, and other courts established by the Allthing. The High Court, composed of 15 justices appointed by the Folkthing, the national judiciary, and the Office of the Kingdom on a rotating basis every two years, has jurisdiction over questions of constitutionality, and is the trial court for impeachments that do not involve justices of the Court. The Court of Assizes, composed of four judges appointed for each case by the High Court, deals with cases involving serious crimes (which include corruption, terrorism, and treason) and cases involving international law or trials for crimes committed by citizens in other countries. The Court of Cassation, comprised of 8 magistrates appointed by the High Court on a rotating basis every year, deals with questions of law and is the trial court for impeachments of High Court justices.

Executive authority is vested in the Office of the Kingdom, which is comprised of the King or Queen of the Erish and the Royal Cabinet. The monarch is a ceremonial head of state who exercises most of their powers upon the advice of the Cabinet (in practice, the Realm Chancellor); they retain the ability to refuse the advice as well as certain exclusive powers as a safeguard, though they have never used it, and the Allthing could effectively override almost anything the monarch could do. The execution of the laws passed by the Allthing itself, however, is exclusively afforded to the Royal Cabinet, which is composed of the Realm Chancellor and other Chancellors. They all are appointed from the locally elected Deputies of the Allthing, and are subject to said Deputies' confidence.

Constitutional themes

Separation of powers

The Erish constitution separates power into the classical tripartite branches. The Allthing creates laws, which the Office of the Kingdom (in particular, the Royal Cabinet) executes and the courts interpret. This separation of powers, which is laid out in the constitution (though presented in the order legislative, judicial, and executive), was established to, as in many systems, deter a "hostile takeover" (Erish: fiendlik't overnemen) of the state. As a parliamentary system, the Erish state does not have as strong a separation of power between the legislative and executive as in a presidential or semi-presidential system, since the executive is drawn from and is accountable to the Allthing. However, the relegation of this membership and accountability to only a part of the Allthing (and in Landthings), along with certain other components of the system, is viewed in Erish constitutional theory as maintaining a degree of separation comparable to presidential systems.

One of the most important debates during the Constitutional Congress was over just how independent of the legislature the executive should be. Even though half a century had passed since the end of the Erish Republic by Ottonian annexation, and even longer since the Republic could still be called democratic, the sort of clear and distinct presidential separation of powers between the legislature and the executive was still viewed as desirable by many. In its ideal form, it promoted a more stable executive government, left the legislature to act more as an actual legislature than a body maintaining a government, and, most ideally, made it more difficult for any one group to take absolute control. However, the reality of the Republican presidential system's flaws was just as, if not more salient. All power of a branch of government had been vested in a single person, who had been able to use gridlock in another branch to consolidate even more power, had no barriers to attaining and keeping their office apart from that of a national election (impeachment being viewed as "ineffectual when needed"), and had divided their own party as they fought with its parliamentary leadership for control. Consequently, in the eyes of members of the Constitutional Congress, the new democratic system had to be able to retain the benefits of a presidential system, avoid the downfalls such a system had suffered under the Republic, and, in addition, work in the context of the multi-party system that was also highly desired.

The solution eventually devised was that of the "semi-bicameral" (Erish: halv-bikameral) system. The Erish political system operates along a basic parliamentary framework, but the Allthing is divided into two halves, one elected by single-seat constituencies and the other by a national proportional vote. The Royal Cabinet is exclusively drawn from and accountable to the former, transferring ultimate executive power from one person to the majority of this group of Deputies whilst still maintaining a distinct legislative "branch"; to avoid potential de facto accountability to the whole of the legislature, power over the budget is also exclusively held by these Deputies. The constitutionally-mandated plurality vote for each "local" seat has led to their domination by one of two parties, and the creation of stable one-party Cabinets led by the same leader in the Allthing, but the low electoral threshold of 2% in the proportional vote has engendered a diverse multi-party system, with no less than 8 parties holding seats as of 2020. Since the governing party (or, in the earlier years, coalition) has somewhat consequently never held a majority in the Allthing, lawmaking has involved working in issue-specific coalitions with other parties. Mechanisms also exist for resolving gridlock, such as the Cabinet being able to dissolve the Folkthing early once per legislative term and each half of the Allthing having the power to call a referendum on a law, but these are uncommonly used, with parties usually trying to work towards a consensus.