Law of Packilvania

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The law of Packilvania (Packilvanian: (luKhanon aBakhilfaniya) consists of statute, judicial precedent, religious law and customary law. The Constitution is the highest law in the land and all other laws must conform to the Constitution. The Parliament of Packilvania and the Sultan of Packilvania have the power to pass and promulgate, respectively, statute in accordance with the legislative process of Packilvania. Through this process there can be delegated the power to pass binding laws through provincial laws and executive decrees to the Provincial Governments of Packilvania and the Council of Ministers of Packilvania, respectively. The judiciary of Packilvania consists of courts, the highest of which is the Supreme Court, that have the power to interpret and apply the law. The judicial precedents arising from their judgements form part of case law. The Magisterium of Paxism, at the apex of which is the Supreme Magister, has the power to pass and interpret the canon law of Paxism which forms the religious law of Packilvania. Other minority religions in Packilvania have the ability to develop religious law through courts approved by the government. Various rural tribal groups have customs and traditions that are recognised as legally binding customary law, to an extent, by the government.

The Sultan of Packilvania has the power to legislate over matters such as war and relations with foreign nations at his discretion by decree and as the font of justice, he has supreme and final judicial authority over the Princes of the Bedonite dynasty and the nobility of Packilvania. The Sultana of Packilvania has judicial and legal authority over the Imperial Court of Packilvania. The laws of Packilvania arose since time immemorial. They have been influenced by the Writings of Paxism, the laws and customs arising under the Iktanite dynasty, Zubraynite dynasty and Demirite dynasty, and the socialist-influenced legal system that arose under the Packilvanian Communist Party. The victory of the Carriers of Mercy in the Second Packilvanian Civil War and the rule of the Bedonite dynasty that has followed has revived monarchical and religious law that was abolished by Gideon Muktan.

The The Constitution is the highest law in the country. This means that no other law may contravene the Constitution. Furthermore, it states that the Constitution may only be amended by the consent of the Parliament and the Sultan. The Constitution also states that the Supreme Court shall have the final authority to interpret the application of the Constitution. It states that the Crown shall have the power to make law by statute which may supersede all other laws insofar as the Crown abides by the Constitution.

However, the Constitution divides different types of statutes that the Crown may create and how these types of statutes are brought into effect. Although all power of the Crown, including the power to create laws, resides with the Sultan, the Sultan's word is not immediately law at his utterance.

The first type of statute is a treaty. A treaty is defined as any agreement between Packilvania and another nation or nations which has legally binding effect within the country. The Crown is empowered to conclude and ratify treaties at its pleasure and requires no consultation or consent from any other body of the state.

The second type of law is appropriation law. The Constitution prescribes that the Crown may pass any appropriation of funds, but it limits the duration and scope of appropriation legislation. Furthermore, it explicitly requires that the appropriation of state funds must be done through a budget law. The consent of the Consultative Assembly and the Legislative Council is required for the Crown to appropriate state funds. Appropriation law is also required not only to delineate state expenditures but to raise, collect and forgive taxes, levees and customs or to delegate the power to do this to another entity.

The third type of law is ordinary law. This means that any law which does not fall into any other form of law. A majority of the members of the Legislative Council are required to approve the law. Furthermore, the Sultan can choose to veto such laws.

The fourth type of law is a decree. A decree is a law which is passed by the Crown and does not require its presentation before the Legislative Council. This includes matters of the appointment of senior state officials, commutation of sentences, deployment of military forces, declaration of war and nuclear second strikes, regulation and governance of colonies and other territories, the annexation of territories and delineation of external and internal boundaries, recognition of national sovereignty, nationality, immigration and citizenship, religious rights, internal migration and trade, and territorial waters.

The fifth type of law is delegated law. Delegated law is any law which has the force of law because the right to create such a law has been granted by the Crown through a law. A delegated law is also only valid insofar as the statute from which it emanates remains valid. A delegated law includes provincial laws. Provincial laws typically require the approval of Provincial Legislatures and Governors. Also included are regulations which are issued by government entities. Another type of law is religious edicts which are granted to the Magisterium of Paxism in Packilvania to issue legally binding laws in the name of the Sultan on religious matters.

Types of laws

Constitution

The Constitution is the highest source and form of law in the land. All other laws must conform to the Constitution. The Constitution contains provisions that outline how the government works and how it relates to its people.

It contains the following chapters:

  1. Preamble: Technically the Preamble is not a chapter nor is it legally binding. It simply explains the context behind and the values that underpin the rest of the Constitution. It explicitly disavows Communist ideology, calls for a benevolent absolute monarchy, religious plurality under Paxism and the Bedonite monarchy and respect of species diversity.
  2. Chapter 1: Provides the legal basis for the sovereignty and independence of Packilvania, internal unity and territorial composition. It establishes Paxism as the state religion and states that Packilvania shall be a monarchy under the Bedonite dynasty as the imperial family of Packilvania. It states the supremacy of the Constitution above all laws.
  3. Chapter 2: Provides for the fundamental rights of the citizens and their relations with the government including the boundaries of rights and when they can be circumscribed and for what purpose. For the most part the rights of the citizens are few and this section provides the legal basis for government coercive action such as surveillance and censorship.
  4. Chapter 3: Provides for the power and succession of the Sultan of Packilvania. It states that the Sultan is the head of state and commander-in-chief and that all sovereignty emanates from Noi to the Sultan through the Crown. It provides for succession by agnatic primogeniture of the descendants of Amhoud I as well as the criteria they must meet to be eligible. It also determines the powers and criteria of the Crown Prince of Packilvania and the Council of State.
  5. Chapter 4: This section describes the Parliament of Packilvania. It states that it shall consist of the Legislative Council and Consultative Assembly.
  6. Chapter 5: This section describes the executive branch. It states that it shall consist of the Council of Ministers of Packilvania and the Prime Minister of Packilvania as the head of government appointed by and accountable to the Sultan who is empowered with supreme direction of government authority.
  7. Chapter 6: This chapter describes the judiciary of Packilvania. It states that the highest court shall be the Supreme Court followed by the Religious Appeals and High Courts as well as the Magistrate, Military and Religious Courts. It describes how courts are to develop case law.
  8. Chapter 7: This chapter describes the role of the Magisterium of Paxism in the Packilvanian political system and the roe of the canon law of Paxism in the law of Packilvania.
  9. Chapter 8: This chapter describes the Packilvanian Armed Forces and its relationship to the civilian government.
  10. Chapter 9: This chapter delineates the duties and borders of the administrative divisions of Packilvania.
  11. Chapter 10: This chapter provides for the enforcement, interpretation and amendments of the Constitution.
  12. Appendix: Provides detailed descriptions of the flag, coat of arms, administrative borders etc.

Statute

Statute in Packilvania is passed by the Legislative Council of the Parliament of Packilvania and signed into law by the Sultan of Packilvania. The Council of Ministers of Packilvania has the power to propose laws. This can emanate from the internal processes of the executive branch or from the instruction of the Sultan. Statutes in Packilvania are called acts of Parliament. Proposals for statutes are known as bills. Statutes are numbered based on the order in which they received Royal assent and the year in which that assent was received. The national budget is a type of statute which requires the approval of the Consultative Assembly. Treaties in Packilvania are ratified by the Sultan however some statutes might need to be passed to bring effect to their provisions.

Decree

A decree is an order or formal instruction issued by the Sultan. Decrees can be issued for issues such as internal boundaries, the appointment of executive, judicial, legislative, ecclesiastical and military state officials and compositions of executive and bureaucratic agencies, territorial waters, and matters relating to the Imperial Court of Packilvania, issuing of passports, declaration of war, ratification of treaties, and imperial family, titles and ranks of the nobility of Packilvania etc.

Case law

Case law is created by the judiciary of Packilvania. When a court states its verdict on a case, it provides an explanation of what the law means and how it applies with respect to the facts of the case presented. This part of the verdict becomes part of the law. Specific matters relating to the case or opinions about the law in general inspired by but not exclusively or specifically restricted to the facts of the case are not binding. Case law can only be overturned by passing statute or decree or by the decision of a higher court.

Delegated law

Delegated law is any law that arises from statute or a decree. This arises when a higher structure gives a lower structure the power to pass laws over a small area of the government's work.

  • Regulations are issued by government agencies and executive departments.
  • Provincial laws are passed by the Legislatures of the provinces.

Law-making process

Law of personal status

Citizenship

Citizenship is passed automatically to a child if at least one of their parents is Packilvanian. Furthermore, the spouse of a Packilvanian shall gain citizenship automatically after the marriage has been ratified. A person may gain Packilvanian citizenship after living in the country for 10 years and renouncing the citizenship of their previous country. The Sultan may strip someone of their citizenship or confer on another officer of the state the right to do so. As such, the courts may strip someone of their citizenship for crimes such as treason. A child must be granted a birth certificate upon their birth with their mother and father's name (where either is known). A child born to Paxist parents is automatically Paxist. Dual citizenship is not allowed. The Sultan may grant or allow a state official to grant citizenship to someone who does not meet any specific criteria such as the Minister of Home Affairs.

Gender and sexuality

Gender is assigned to a child by a doctor or midwife on the registration of the child's birth certificate. Only the genders man or woman corresponding to and legally indistinguishable from male or female respectively are recognised by law. Gender reassignment is not allowed. Intersex individuals are assigned a gender based on the predominant physical characteristics that they display as decided by a medical professional.

Intimate relations between people of the same legal gender are forbidden by law and punishable by a variety of methods depending on the court but usually by execution.

Marriage

In Packilvania, marriage is restricted to a man and a woman. A man may marry more than one woman with the consent of his existing wives. A man may divorce one or more of his wives by proclamation. A man is required to pay spousal maintenance if he is able while women are not required to do the same. Although not statutory, men are expected to pay a bridal price for the woman they marry.

The payment of a bridal price and receipt of such a payment by a woman's father or closest male relative such as her eldest brother or uncle in the absence of a father constitutes a binding marital contract. Affirmation and recognition of such an act is granted via a marriage certificate issued by a tribal chief, government official or religious leader.

The assets of women accumulated prior to the marriage are not recognized as part of the marriage including pre-marital donations by the husband. Furthermore, assets which accumulate to a woman during marriage by way of donation or inheritance belong to her and are only inheritable by her children or by a valid will, or husband in absence of either. Assets women accumulate through work etc. are held in trust by the husband for the duration of the marriage.

Women above the age of 16 are allowed to get married. But not below that number. Marriage is permitted beyond first cousins. The Intimacy Morality Act has criminalised concubinage and prostitution. The Intimacy Morality Amendment Act has legalised interspecies marriage. A woman may seek divorce if her husband conducts criminality, is unable to provide, is infertile and commits illicit intimate relations. Non-filial and non-platonic intimate relations outside of marriage are considered Illicit. In the event of a legally valid divorce, a woman is entitled to the portion of the marital estate based on the number of valid dependents that the estate supports.

Inheritance

The husband's estate is divided on his death as follows: the settlement of taxes and debts, the maintenance of wives and underage children equally or by need, and then by his will. Alternatively, the husband may provide that his estate (after debts and taxes are settled) shall pass to his eldest son or another entrusted male heir in the absence of mentally sound sons and held in trust for the maintenance of his wives and children. If a man divorces a woman by proclamation, he is required to pay maintenance until she has found another husband or relinquishes the right to maintenance by proclamation. A husband's aristocratic titles shall be shared by his spouse(s) and passed to his eldest son.

Children

Any adult who meets the criteria set out by the state may adopt children. Illicit adoption of a child is punishable by imprisonment including forced labour. Children are recognized as such if they are below the age of 16. The consent of their parents or legally authorised guardian (the state can appoint a social worker as a guardian in an emergency where the parents are unknown and/or cannot be found) is required for any affair concerning the child.

Reproduction

Intimate relations between a man and a woman below the age of 18 are illegal and punishable by execution unless legally married. Abortion is not legal except in the case of saving the mother's life, incest (within the degree of first cousins) or defects/abnormalities in the fetus as approved by a doctor. A father or close male relative (as determined by the proximity of blood), or husband makes decisions about termination of gestation however the man may not deny termination of gestation if she elects to save herself in the event that her life is threatened. Illegal termination of gestation and aiding and abetting an illicit termination of gestation is punishable by imprisonment including forced labour.

Law of contract

A contract is an agreement between two or more legal persons, to act or withhold from acting. A contract may create or cede rights between the participants within the framework of the law. No contract to perform an illicit act is legally binding except as determined by a court of law. A person may enter into either a written or verbal contract. A person may implicitly enter into a contract if they act in a way that would bring the contract into effect.

The formation of a contract arises as follows:

  • luQataran luMalayka (Formal Proposal): This is a formal offer by one party to another to enter into a contractual agreement. This creates a formal obligation on the part of the proposer to enter the contract if the proposee accepts.
  • luYamil luTizmam (Required Action): What action is expected by virtue of the contract from or by the participants. This can include the duty not to act.
  • luKhavnan ameDush (Agreement of Two): The two parties must actually agree to luYamil leTizmam.
  • leFakir leNafas (Equality of minds): Both parties must have equal knowledge and understanding of luYamil leTizmam.
  • luRakhab aluKhavnan (Intention to Agree): Both parties must have the intention to agree. This means that they must freely and knowingly enter into the contract. They cannot be coerced or deceived into entering the contract.
  • luQabul luMalayka (Formal Acceptance): The second party must formally accept. This creates an obligation on the part of the proposee to carry out luYamil luTizmam. A version of this is known as luQabul yeluYamil (Accept by Acting). This is when the contract is deemed to have been accepted if the the proposee begins to fulfill luYamil luTizmam. For instance if one person sells to another and the other pays for the good without formally stating that they accepted. Another form of acceptance is luHadhar luKhatam whereby signing a written instrument of the contract indicates a formal acceptance of its provisions.

Law of legal personality

A natural person is a born living sentient person and has all rights granted by the Crown. A juristic person is any legal entity which can exercise the rights of a natural person as far as reasonably possible as defined by the Crown as follows:

  • Company (chubaal): A company in which the shareholders or the directors are not held liable for the debts of the company.
    • Public company: A company in which shares may be sold freely in the public market. All state-owned companies are automatically public companies.
    • Private company: A company in which shares may be sold with the consent of the other shareholders.
  • Trust (waqif): A juristic person which manages assets for the benefit of the beneficiaries.

Criminal law

Sorcery

Sorcery is the crime of performing magic or occult rituals. A person can be criminally liable for performing, conspiring to perform and inducing others to perform or participate in occulting rituals or disseminating propaganda that encourages or extols sorcery. Actions with are criminally punishable as sorcery include divination, the use of voodoo dolls, the proliferation and use of birth signs or star signs, and the use of potions, spells and incantations that can be construed as sorcery. Sorcery is punishable by corporal punishment or imprisonment.

Blasphemy

The act of insulting or publicly denying Noi and the destruction or desecration of sacred artefacts and places is considered blasphemy. Conspiring, administering or inducing others to participate in blasphemy is a criminal offence. Blasphemy is punishable by corporal punishment or imprisonment.

Apostasy

Apostasy is the act by which an adherent of Paxism disavows or renounces the religion. Apostasy is typically regarded as an overt act as opposed to criticism of religious authorities or some religious elements. There are sects that regard themselves as Paxist but if a sect is not regarded as Paxist by the Magisterium of Paxism, then as far as the law is concerned it is not Paxist. If someone can prove that an application for recognition of a sect by the Magisterium of Paxism is in the process of being compiled and/or is pending approval, then for a limited duration, that person cannot be tried with apostasy. A person can renounce their renunciation or they shall be punished by imprisonment or execution.

Crimes of the flesh

Crimes of the flesh refer to illicit intimate relations among sentient beings that are not considered appropriate by Paxist teaching. The crimes are punishable by corporal punishment, imprisonment or capital punishment.

Sedition

Sedition is the act of willfully obstructing and undermining the functioning of the government or one of its agencies. It is characterised by deliberate intent, planning, and attempted or actual execution by one or more people and is punishable by imprisonment or corporal punishment.

Treason

Treason is the crime of sharing state secrets or conspiring with a foreign power to undermine the sovereignty or territorial integrity of Packilvania. This crime is punishable by execution.

Insulting the Crown

Crimes against the royal family and the Sultan such as insulting, denouncing, disavowing, spreading falsehoods or revealing protected matters are crimes punishable by imprisonment and corporal punishment.

Property law

All property may be seized by the state as determined by the Crown.

Physical property law

The right to property is protected by law. This includes the right to alienate the property. The law concerns when property passes ownership from one person to another. For instance:

  • Real estate passes on registration at the Office of Title Deeds, but the exchange of money creates an obligation to register at the Office of Title Deeds
  • Most other goods pass when some contractual condition is met allowing for contracts such as:
    • Futures: Contracts where one party must sell and another must purchase from another at a future data
    • Option: A future where one party can choose to exercise a sale or purchases

Intellectual property law

Intellectual property law is as follows

  • Copyright law is the right to control a design or score.
  • Patent law is the right to benefit from and control an invention or novel creation
  • Trademark law is the right to control a symbol or brand and its related markings.

Intangible property law

Data is regarded as the property of the user unless forfeited by some other process such as agreeing to use an internet service. Illicit deletion, manipulation, and extraction of data is a breach of property law. There are some instances where a service cannot expect users to cede the right to their data such as biometric information and bank account details. As such negligence in handling their property is the equivalent of negligence in handling physical goods.

Law of delict

The law of delict is the law concerning intentional or negligent behaviour that gives rise to a civil wrong through the breach of a duty of care that begets a civil damage or creates a liability. This is distinct from the law of contract because the obligation does not arise out of luKhavnan ameDush (agreement of two) and therefore does not require leFakir leNafas (equality of minds). The obligation arises from public policy not contractual agreement. This is given by the following:

  • luYamil aluTizmam (Required Action): Required action or inaction which must be proven on the basis that there was a reasonable duty of care
  • neluKhanonishme (Unlawfulness): The action was unlawful and impermissible. This must be proven by whether there were laws or customs in place which the act violated.
  • luAsasi aluDhanab (Standard of Fault): The person who committed the action was at fault for what they did or failed to do. For instance, someone who was incapacitated, who lacked knowledge or qualification, in some cases a minor etc. cannot be held accountable to the standard of fault required by law. A doctor has a duty to help someone who is having a medical emergency but a normal person does not. If someone swerves into a pole to avoid hitting a child who runs into the middle of the road, the child does not have an obligation to not run into the middle of the road. In cases involving children, most of the time, the parents are responsible for ensuring whether or not the child is able to carry out the required action for a delict to arise.
  • luHaram (Harm): Was there a loss due to the conduct? luHaram aleSawlid refers to damage to goods or assets already owned by that person. luHaram aluGamalmustaf refers to the damage of the prospect for future gain or benefit or the loss of an opportunity. luHaram aluChakar refers to emotional or psychological harm.
  • luYuqad aluDhanab (Chain of Fault): This refers to the fact that the cause of the damage by the conduct of the person needs to have been direct not incidental.

Procedure

Criminal Procedure

Packilvania uses the inquisitorial system for criminal cases. This means that charges are levied and cases arising therefrom are investigated by the Imperial Procuratorate on behalf of the courts. The Supreme Council of the Imperial Procurator is responsible for overseeing the work of the Imperial Procuratorate. It is also responsible for overseeing the legal profession. The Imperial Procuratorate is based on the Supreme People's Procuratorate of the Packilvanian Communist Party and many procurators who worked for it kept their jobs after the Bedonite dynasty took over the country.

The Imperial Procuratorate determines whether are grounds to instigate a criminal prosecution except for violations under the Protection of State Secrets Act which are prosecuted by the Department of State Security. The Imperial Procurator is required to pursue an investigation if sufficient evidence exists to prosecute the case. The Procurator then determines which court to hold the trial in. Furthermore, it decides which witnesses to bring in and which evidence to admit before the court. It has little discretion to present evidence even if it is arguably prejudicial to the parties.

It is possible for a client to hire a private lawyer to intermediate between themselves and the Imperial Procurator as well as to seek out evidence and present it to the Imperial Procurator insofar as it does not overstep the investigation of the procurator. Procurators are appointed by the state but the state must determine whether the procurator has a vested interest or prejudice that might impede his functions in the case. A matter concerning whether the procurator is unfit can be brought by one of the parties before a judge.

Furthermore, in criminal cases, it is possible for a claimant to argue to the judge that the procurator has brought improper charges or arbitrarily or unfairly narrowed or widened the scope of the investigation or any other complaint that the party might have regarding the conduct of the procurator. There are rules to prevent parties from artificially stalling the investigative process. Nevertheless, the Imperial Procurators do have challenges.

Imperial Procurators can also instruct law enforcement officers to extract testimony using physical force in instances where the Procurator can prove that the interrogated person is both relevant and necessary to the information required as well as resistant to attempts by the procurator to extract it and that the procurator's line of questioning is congruent and suitable to the information seized and the state of the interrogated. As such torture is legally permissible but there are boundaries regarding how and when torture can be exercised.

Imperial Procurators can also instruct law enforcement to arrest potential suspects or people aiding and abetting or conspiring to aid and abet the derailment of an ongoing case to the expense of one of the parties. However, arrests exceeding a certain period require the approval of the judge.

The legal system provides for the following punishments to be administered for crimes:

  • Corporal punishment: This entails being lashed with a leather whip
  • Imprisonment: The Bedonite dynasty adopted the Communist party's principle of reeducation through labour whereby prisoners are sent to labour camps as imprisonment. Imprisonment can also include house arrest.
  • Capital punishment: Some crimes can be punished by hanging or decapitation with a sword.
  • Crucifixion: this is the process that happens after death whereby the body of the deceased is hung in public. It is used more as a punishment after death for the most egregious crimes because of the shame it brings. It secondarily serves as a deterrent.

In most jurisdictions, criminal charges must be proven beyond a shadow of a doubt. In Packilvania, there are some crimes such as unconsented physical relations which only need to be proven on a balance of probabilities. This was introduced because the government felt that there were crimes for which victims were not receiving justice because it was infeasible, especially in rural communities where access to DNA kits was limited or laboratory results are slow to reach law enforcement. And they felt that the pervasiveness of such crimes was abhorrent and an affront to the society they wanted to build. Thus, some crimes could be proven on a balance of probabilities.

Rights of defendants in criminal cases

The defendant has the following rights:

  • Right to be informed of their crime and the charges against them
  • Right to go to a trial before a judge
  • Right to be judged impartially and fairly
  • Right to have their cases investigated fairly and competently by the Imperial Procuratorate
  • Right to not be tried twice for the same crime unless
  • Right to appeal a case to a higher court in the event of material inconsistencies and deficiencies in the handling of their trial
  • Right to be given adequate time and advice by the Imperial Procuratorate of the relevant submissions they need to make to the court
  • Right their case tried in a similar way to other similar past cases under the law of the time
  • Right to be tried the same way as someone else who committed similar violations regardless of social status or rank (except for Princes)

Civil procedure

Packilvania uses an adversarial system for its civil procedure. This means that parties to a matter bring disputes against each other in a court of law. The matters presented before the court are regarded as disputes arising from the infringement of a civil right such as arising from a contract. Criminal law in contrast is regarded as a crime against the Crown as such it is subject to the inquisitorial system.

In a civil case, the person bringing the claim is known as the complainant while the person who is subjected to the claim is known as a respondent. The complainant and respondent are responsible for presenting evidence to the court. Furthermore, they may present and cross-examine witnesses. The judge uses a balance of probabilities to adjudicate the case. This means that the parties do not have to prove beyond a shadow of a doubt that the infringement occurred. They simply need to prove that the infringement most likely occurred.

Whereas criminal courts pass penalties, the civil courts grant remedies. These can include forcing the other party to act or withhold from acting or the payment of compensation of some sort. Failure to comply with a court order is a criminal offence as such this can give rise to a criminal case but it does not mean that the civil case becomes a criminal case. If a criminal matter is found by the court to have arisen, the court can instruct the Imperial Procuratorate to conduct a separate and parallel criminal case.