SillyString:
So... your solution to "disobeying the law is a crime because it is an oath violation" is to make disobeying the law not an oath violation and therefore not a crime at all?
And this is supposed to promote good behavior and not encourage people to flagrantly violate the Legal Code while remaining within the requirements of the Constitution?
Well, it's certainly a novel approach...
Let me think about your wording of those questions, just to make sure I actually am reading them correctly...
Thinking about your point concerning "
disobeying the law is crime because it is an oath violation" right now. That would probably depend upon the nature of the law being disobeyed. Disobedience to a given law is generally, in fact always a criminal act provided a conviction results from charges arising from such obedience.
For instance, taking Alunya's (for whom this bill is submitted for debate) point of view that since we have a State Religion everyone, by the current oath (obedience to the law), everyone is legally bound to recognise a given State Religion. Refusing to recognise said religion would be an act of disobedience to the law. As such, it is conceivable that one could be prosecuted for violating the law by simply stating that, "I refuse to recognise the official state religion".
Of course, it would be idiocy to prosecute someone for refusing to recognise the legitimacy of the State Religion because such a prosecution would violate the BOR (and the law concerning State Religion itself).
Violating one's oath could be construed as dereliction of duty, or in some instances, possibly Treason depending upon how one violated the oath and what specific action was committed.
And this is supposed to promote good behavior and not encourage people to flagrantly violate the Legal Code while remaining within the requirements of the Constitution?
What difference does it make? People flagrantly violate the legal code all the time. And, they get away with it, almost all the time.
The modified oath is not intended nor will have the effect of encouraging people to flagrantly violate the Legal Code. It will, in fact, encourage people to make sure that what is asked of them in legal terms is actually in agreement with the Constitution.
For example (and you should know this already): Suppose someone finds that a specific law is morally reprehensible to their sensibilities. Now suppose someone tried to file suit to prove that the law is in fact morally reprehensible, unconscionable and possibly a violation of the Constitution or BOR. Such a person would be SOL as they have no standing because the law hasn't forced them into a situation whereby they violate a law and get prosecuted for it.
In a constitutional system in which the Legal Code is subordinate to a Constitution, you simply cannot challenge a law without actually having violated that law.
So, let's look at a firm example of this. Say a law is passed by the RA as an act of "Democracy" and "The Will of The People", yet that law is clearly in violation of the Constitution and Bill of Rights. The RA is completely at liberty to pass entirely unconstitutional laws as an expression of "Democracy" and "The Will of The People"
Now, there are only three ways by which the law can be over-turned:
1. By legislative repeal. Of course anyone who proposes such a repeal would be tagged as "Going against the Will of The People" as expressed by the passage of the law by the RA.
2. Judicial Review - by actually violating the law, causing the violator to be prosecuted for the violation and then having the Court Decide upon the constitutionality of a given law. As such, no law is unconstitutional unless challenged by someone who has standing and the Court over-turns the law, and which means considering we have no civil code, all violations are criminal. Therefore, failing Legislative Repeal, the only way to challenge a law is to actually prosecute someone for violating that law.
3. Executive review - the AG, provided that the AG positions is properly placed as part of the Executive Branch in either a real or
de facto way, can refuse to prosecute a violation of said law thus nullifying the law altogether on a case-by-case consideration. This doesn't really over-turn the law but simply expresses the AG's desire not to prosecute in a particular instance.
Now, if an oath demands obedience to the law as an absolute, it implies that one is guilty until proven innocent and places the burden of proof on the defendant who is automatically guilty of one crime or another by simply violating the oath as it is now written.
Another example would be if a member of the NPA was given an unlawful order. If they obey the unlawful order of a superior they are guilty of a crime. If they refuse to obey an unlawful order then they are guilty of insubordination and a violation of their oath.
Again, returning to your contention that this new oath would
encourage people to flagrantly violate the legal code, you could not be any more incorrect. In the proposed oath is the following clause:
and I will do right to all manner of people after the principles stated in the Bill of Rights and Constitution of The North Pacific, without fear or favour, affection or illwill.
This is a positive law principle: one must obey and enforce the laws, and act in an impartial way ("I will do right to all manner of people, etc.,") that does not reflect personal affection or illwill. This prohibits individuals from either using the Law as a personal hammer or crafting laws to act to the same effect.
The oath I propose includes the unique quality of requiring people to act in terms of their RA actions in a fashion that is impartial and un-personal without bias for personal gain or revenge.
What could be a more just requirement for RA members, or, for that matter, any person holding a government position?
).