A draft constitution for the state in the third millennium

This is an excerpt from The State in the Third Millennium by Prince Hans Adam II of Liechtenstein laying out a new potential constitution for the development of a more modern state in the third millennium. An excellent summary of the book can be found published at the Swiss Mises Institute and Prince Hans-Adam II gave an excellent talk about the book in 2010 at the Hoover Institution which can be found here.

Article 1

  1. The kingdom X [the republic Y] is a state confederation on a democratic and parliamentary basis which shall serve the people within its borders so that they can live together in freedom, peace, and prosperity.
  2. The authority of the state is vested in and issues from the king [president] and the people. It shall be exercised by both in accordance with the provisions of this constitution.

Article 2

  1. It is the duty of the state to represent the interests of the people and the state in relations with other states, state confederations, and similar organizations.
  2. It is the duty of the state to issue laws and decrees which enable the people to live in freedom, peace, and prosperity, especially those regulations concerning education, social security, health, transportation, and. the environment and regulations concerning the autonomy and the duties of the local communities.
  3. It is the duty of the state to ensure that the constitution, the laws, and the decrees are observed. To serve this purpose the state will finance the courts, the state prosecution authorities, and the police.
  4. It is not the duty of the state to own or to administer institutions, which are active in education, social security, health, transportation, or any other area. These institutions are to be owned and administered by local communities, associations of local communities, private business, or private organizations.

Article 3

  1. To finance its activities, the state is entitled to all the revenues from indirect taxation such as value added tax, customs duties, or other duties where applicable. The local communities are entitled to tax sovereignty in respect of all direct taxation on individuals and legal entities, whereby the state has the authority to lay down the basic rules concerning direct taxation to avoid abuses and conflicts between the local communities.
  2. The state shall be sparing with its revenues and shall achieve each year surpluses which are to be distributed to the local communities in proportion to the number of their inhabitants. A portion of the surpluses may be distributed by the state according to the law in the form of educational vouchers to persons who are subject to compulsory school attendance.
  3. The state is not permitted to issue guarantees or to raise loans except in special situations, which are to be covered by law. Those laws are subject to referendum in accordance with Article 31. After ten years at the latest loans have to be repaid through surpluses of the state and guarantees cancelled.

Article 4

  1. Changes in the boundaries of the territory of the kingdom [republic] may be made only by virtue of law. The individual local communities have the right to leave the state confederation. The majority of the citizens with voting rights residing in the community shall decide about the initiation of the proceedings for a withdrawal of the community from the state. The procedure for withdrawal can be regulated either through law or by a state treaty on a case-by-case basis. In the case of a state treaty a second vote shall take place in the local community after the treaty negotiations have been concluded.
  2. Changes of boundaries between local communities, the creation of new local communities, and the merger of existing ones require a majority vote by the citizens with voting rights who reside in those local communities.

Article 5

The succession to the throne, hereditary in the Royal House, the coming of age of the king and of the crown prince, as well as any guardianship which may be required, are to be determined by the laws of the Royal House.

[The president shall be elected in a free and secret vote by the citizens with voting rights for a period of office of four years. Re-election is possible. The election of the president has to take place six weeks before the four-year period in office comes to an end or six weeks after the presidency has become prematurely vacant. If the presidency has become prematurely vacant due to the death or resignation of the president or through removal from office (Article 12), the president of the parliament shall take over the duties of the state president until a new president is elected.

Should more than two candidates apply for the presidency, each citizen with voting rights shall have two votes in the first round of the election. He shall cast those two votes for the two candidates whom he wished to take part in the second round of the election. Those two candidates who have received the most first and second votes shall take part in the second election. In the second election, which has to take place fourteen days after the first election, each citizen with voting rights shall have one vote. The candidate who has received the absolute majority of the votes is elected.]

Article 6

  1. The king [president] is the head of state and shall exercise his sovereign authority in conformity with the provisions of this constitution and of the other laws.
  2. The king [president] as a person is not subject to the judicial proceedings and is legally not responsible. The same applies to the member of the Royal House [president of the parliament], who exercises in accordance with Article II the functions of head of state for the king [president].

Article 7

  1. The king [president] shall represent the state in all its relations with foreign countries without prejudice to the necessary participation of the responsible government.
  2. Treaties by which national territories are ceded, national property is disposed of, rights of sovereignty or state prerogatives are disposed of, any new burden for the kingdom [republic] or its citizens is imposed, or any obligation to the detriment of the rights of the citizens is contracted shall not be valid, unless they have received the assent of the parliament.

Article 8

  1. Every law, the budget, loans, taxes, and other state duties (Article 3) hall require the sanction of the king [president] in order to be valid.
  2. In urgent cases the king [president] shall take the necessary measures by emergency decree for the security and welfare of the state. Emergency decrees cannot abolish the constitution as a whole or individual articles of the constitution, but can only restrict the application of certain articles of the constitution. Emergency decrees cannot restrict the right of each person to live, the prohibition of torture and inhuman treatment, the prohibition of slavery and forced labor, or the rule of no punishment without law. In addition, the provisions of this Article, of Articles 5, 12, and 47 as well as the law of the Royal House, cannot be restricted by emergency decrees. Emergency decrees shall cease to be in force at the latest six months after they have been issued.
  3. The king [president] shall appoint judges in accordance with the provisions of this constitution (Article 39).

Article 9

  1. The king [president] shall possess the prerogative of remitting, mitigating, or commuting sentences which have been legally pronounced and of terminating prosecutions which have been initiated.
  2. Only at the instigation of parliament shall the king [president] exercise his prerogative of remission or mitigation in favor of a member of the government sentenced on account of his official act.

Article 10

Every successor to the throne [president] shall before receiving the oath of allegiance [before taking office] declare in a written document that he will govern the kingdom [republic] according to the constitution and the other laws.

Article 11

The king may entrust the next heir apparent of his house who has attained majority with the exercise of the sovereign powers held by him as his representative should he be temporarily unable to perform his functions or in preparation for the succession.

[The president may entrust the president of the parliament with the exercise of the sovereign powers held by him as his representative should he be temporarily unable to perform his functions.]

Article 12

At least 5 percent of the citizens with voting rights may introduce, with the reason stated, a vote of no confidence in the king. The parliament must give a recommendation on this vote of no confidence at its meeting and must put the vote of no confidence to a popular vote (Article 30). If the motion of no confidence is accepted by the popular vote the king has to be notified, so that the case can be dealt with in accordance with the law of the Royal House. Within six months the king shall inform the parliament of the decision taken in accordance with the law of the Royal House.

[At least 5 percent of the citizens with voting rights may introduce, with the reason stated, a vote of no confidence in the president. The parliament must give a recommendation on this vote of no confidence at its meeting and must put the vote of no confidence to a popular vote (Article 30). If the motion of no confidence is accepted by the popular vote, the constitutional court (Article 43) shall decide within six months whether the president is to be removed from office.]

Article 13

  1. All citizens shall be equal before the law. The public offices shall be equally open to them, subject to observance of the legal regulations.
  2. There shall be equality of rights between the sexes.
  3. The law regulates the acquisition and loss of citizenship.
  4. The rights of aliens shall be determined in the first instance by treaties or in the absence of such on the basis of reciprocity.

Article 14

  1. Every citizen shall be freely entitled to reside in any locality within the territory of the state and acquire property of any description, provided that he observes the detailed legal regulations relating to such matters.
  2. Persons residing within the territory of the state shall be bound to observe its laws and shall be entitled to the protection afforded by the constitution and the other laws.

Article 15

  1. All citizens shall be entitled to civic rights in conformity with the provisions of this constitution.
  2. All citizens who have completed their eighteenth year, who have their normal residence in the state, and whose right to vote has not been revoked, may exercise all political rights in matters of the state and his local community.

Article 16

  1. Personal liberty, the immunity of the home, and the inviolability of the post are guaranteed.
  2. Except in the cases specified in law and in the manner thus prescribed, no person may be arrested or detained in custody, no houses, letters or written matter, or persons may be searched and no letters or written matter may be seized.
  3. Persons arrested unlawfully or demonstrably innocent and those proved innocent after conviction shall be entitled to full compensation from the state as determined by the courts. Whether and to what extent the state has a right of recourse against third parties is such cases shall be regulated by law.

Article 17

  1. Nobody may be deprived of his proper judge; special tribunals may not be instituted.
  2. Nobody may be threatened with or subjected to penalties other than those provided by the law.
  3. Accused persons shall have the right of defense in all penal proceedings.

Article 18

  1. The inviolability of private property is guaranteed.
  2. Where necessary in the public interest, property of any kind may be compulsorily assigned or subjected to an encumbrance, against appropriate compensation, the amount of which in cases of dispute shall be determined by the courts.
  3. The procedure for expropriation shall be regulated by law.

Article 19

Trade and industry shall be free within the limits prescribed by law; the extent to which exclusive commercial and industrial privileges may be admissible for specified periods of time shall be regulated by law.

Article 20

The freedom of belief and conscience is guaranteed for all persons. All religions are entitled to practice their creeds and to hold religious services to the extent consistent with morality and public order.

Article 21

  1. Every person shall be entitled freely to express his opinion and to communicated his ideas by word of mouth or in writing, print or pictures within the limits of the law and morality.
  2. The right of free association and assembly is guaranteed within the limits prescribed by law.

Article 22

The parliament represents the people in all those cases in which in accordance with the constitution the people do not decide themselves. The parliament has the following rights:

a) to participate in the work of legislation and in the conclusion of treaties;

b) to propose to the king [president] the members of the government and to withdraw its confidence from them;

c) to participate in the appointment of judges;

d) to approve the state budget and loans (Article 3), as well as taxes and duties (Article 3);

e) to control over the whole state administration. The parliament’s right of control does not extend either to the judgements of the courts or to the activities allocated to the king [president].

Article 23

  1. The parliament consists of twenty-five representatives, who shall be elected by the people by universal, equal, secret, and direct suffrage. The mandates shall be distributed among electoral groups, which have obtained at least 4 percent of the valid votes cast in the state as a whole.
  2. Each electoral group has the right to nominate for each of its representatives one substitute who shall deputize the representative in case he cannot take part in a meeting in the parliament. The representative who cannot participate must inform the president of the parliament in due time.
  3. Members of the government and the courts cannot be simultaneously members of parliament.
  4. Detailed regulations regarding the conduct of the election shall be laid down in a special law.

Article 24

Within four weeks after the election of the parliament the king [president] shall convene and open the parliament’s constituent assembly. At this constituent assembly the parliament shall elect its president and his deputy. Further meetings of the parliament shall be convened by the president of the parliament or his deputy. Apart from the king [president], the president of the parliament, and his deputy, the representatives have the right to convene parliament should at least eight of them require it.

Article 25

The representatives shall be elected for four years. The king [president] or the people respectively have the right to dissolve the parliament and to order new elections. These have to take place within two months after the parliament has been dissolved. Five percent of the citizens with voting rights have the right to put forward a proposal for a popular vote to dissolve the parliament.

Article 26

  1. No representative may be arrested while the parliament is in session without the assent of that body unless he is apprehended in flagrante delicto.
  2. In the latter case, the arrest and the grounds therefor must be notified forthwith to the parliament, which shall decide whether the arrest is to be sustained. All documentation relating to the case must be placed immediately at the disposal of the parliament, if it so requests.
  3. If a representative is arrested at a time when the parliament is not in session, the president of the parliament must be notified forthwith and informed at the same time of the grounds for the arrest.

Article 27

  1. All members of parliament shall swear the following oath to the kind [president] at the opening of the parliament (Article 24): “I hereby swear to observe the state constitution and the existing laws and to promote in the parliament the welfare of the state without and ulterior motives to the best of my ability and conscience.”
  2. The members of parliament shall vote solely in accordance with their oath and their convictions. They shall never be made to answer for their votes; for their utterances at sittings of the parliament or its committees, they shall be responsible to the parliament alone and can never be arraigned before a court of justice in respect thereof. The exercise of disciplinary powers shall be regulated by rules of procedure to be issued hereafter.
  3. The parliament shall adopt its rules of procedure by resolution and with due regard to the provisions of this constitution. These rules shall regulate, among other matters, the formation of the different commissions of the parliament, the elections and votes in the parliament, and the remuneration of the representatives.

Article 28

The parliament shall scrutinize the validity of the election of its members and of the election as such on the basis of the election records and, if applicable, of the decisions of the constitutional court. Complaints relating to elections shall be referred to the constitutional court.

Article 29

  1. The right of initiative with regard to legislation belongs to:

a) the king [president];

b) the parliament;

c) the government;

d) the citizens with voting rights when at least 5 percent of them present such an initiative.

2. If the initiative involves public expenditure, whether in a single sum or in payments extending over a longer period, such an initiative shall only be discussed by the parliament if it is accompanied by proposals for providing the necessary funds.

3. Initiatives which are in accordance with this constitution shall be debated, if possible, at the next session of the parliament, but at the latest after six weeks.

Article 30

  1. Laws, treaties (Article 7), loans, taxes, and duties (Article 3) passed by parliament shall be submitted to a popular vote if the parliament so decides, or if not less than 5 percent of the citizens with voting rights submit a proposal to that effect within six weeks of the official publication of the resolution of the parliament.
  2. Resolutions of the parliament subject to a referendum shall be submitted to the king [president] for sanction after the referendum has been held or after the statutory period of six weeks within which a petition for a referendum may be submitted has expired without any such action.
  3. If the parliament rejects a law which has been submitted to it through the procedure of the popular initiative (Article 29.Id) the said law shall be submitted to a referendum within six weeks. The parliament has the right to submit to the people a counter-proposal. The popular vote replaces the otherwise necessary resolution by the parliament. The acceptance or rejection of the resolution on the enactment of the law shall be decided by an absolute majority of the valid votes recorded in the whole state.
  4. Further detailed regulations regarding the initiative and the referendum shall be issued in the form of a law.

Article 31

  1. With regard to the state administration, the government shall submit to the parliament for examination and approval preliminary estimates of all expenditure and revenues for the coming administrative year, accompanied by proposals for the taxation which is to levied.
  2. In the first half of each administrative year the government shall submit to the parliament an exact statement relating to the preceding year showing the manner in which revenues approved and collected were applied for the purposes set out in the preliminary estimates, with the provision, however, that if the latter have been exceeded on justifiable grounds the parliament must give its approval and that in the absence of justification the government shall be answerable.
  3. The government shall be entitled to incur expenditure of an urgent character not provided for in the preliminary estimates, subject to the same conditions as above.
  4. Economies effected in the case of individual items of the preliminary estimates may not be used to cover excess expenditure on other items.

Article 32

  1. Unless it contains any other stipulation, a law shall come into force on the expiry of eight days after the date of its publication in the national legal gazette.
  2. The manner and extent of the publication of laws, finance resolutions, treaties, regulations, and resolutions of international organizations and of measures deriving from international treaties shall be regulated by law. For measures applicable in the kingdom [republic] by reason of international treaties, publication may be arranged in a simplified form, in particular as a reference publication to foreign law.

Article 33

  1. Subject to the provisions of this article, the whole of the state administration shall be conducted by the government responsible to the king [president] and the parliament in conformity with the provisions of this constitution and other laws.
  2. Specific functions may be transferred by law or by legally binding authorizations to individual officials, government offices, or special commissions for independent execution, subject to recourse to the government.

Article 34

  1. The government shall consist of the prime minister and four ministers.
  2. The prime minister and the ministers shall be appointed by the king [president] with the concurrence of the parliament and on the proposal of the latter. A substitute shall be appointed in like manner for the prime minister and for each minister to represent the member of government in question should he be unable to attend the meetings of the government.
  3. The prime minister and the other members of the government shall swear the following oath to the king [president]: “I hereby swear to observe the state constitution and the existing laws and to promote the welfare of the state without any ulterior motives to the best of my ability and conscience.”
  4. The period of office of the government shall be four years, subject to the provisions of Article 37.

Article 35

  1. The government is responsible for executing all the laws and for carrying out all the orders of the king [president] or of the parliament which are permitted by law.
  2. The government shall issue the decrees needed to implement the laws and treaties which are directly applicable, which can only be issues within the framework of the law and the treaties which are directly applicable.
  3. To realize other treaty obligations, the government can issue the necessary decrees as far as there is no need to issue a law.
  4. The whole state administration must act entirely within the framework of the constitution, the laws and the applicable treaties; in those matters where the law gives the administration the freedom to act on its own discretion, the framework stipulated by the law must also be strictly observed.

Article 36

The following matters in particular shall fall within the domain of the government:

a) the supervision of the state administration;

b) the appointment and dismissal of public servants with the exception of judges or public servants of the parliament;

c) the drawing up the yearly budget and of the report on its activities for the past year, to be submitted annually to the king [president] and parliament;

d) the drawing up on its rules of procedure, which are to be published.

Article 37

  1. If the government loses the confidence of the king [president] or of the parliament, their authority to carry out government duties expires. Until a new government assumes office, the king [president] shall appoint a caretaker government to take care of the whole state administration. The king [president] can also appoint members of the old government to the caretaker government. Within four months the caretaker government must receive a vote of confidence in the parliament insofar as the king [president] has not appointed a new government with the concurrence of the parliament and on the proposal of the latter (Article 34).
  2. If an individual member of the government loses the confidence of the king [president] or the parliament, the decision about his deprival of office will be taken in concurrence between the king [president] and the parliament. Until the appointment of a new member of government his deputy must take carry out his government duties.

Article 38

  1. The whole administration of justice shall be carried out in the name of the king [president] and the people by judges who are appointed by the king [president] (Article 8). Decisions and judgements by the judges are to be issued in the name of the king [president] and the people.
  2. The judges shall be independent when exercising their judicial office, within the limits of the law and when engaged in judicial proceedings. Their decisions and judgements shall be accompanied by a statement of reasons. Only where the constitution expressly foresees it (Article 9) may the administration of justice be influenced by another state institutions.
  3. Judges within the meaning of this article are the judges of all the normal courts (Articles 40 und 41), the judges of the administrative court (Article 42) as well as the judges of the constitutional court (Article 43).

Article 39

  1. For the selection of the judges the king [president] and the parliament shall institute a joint committee. The king [president] shall preside and in the event of a tied vote shall have the casting vote. He can nominate as many members for this committee as the parliament. The parliament delegates one representative for each electoral group represented in the parliament. The government Delegates the minister of justice. The deliberations of the committee are confidential. The committee can only recommend candidates to the parliament with the consent of the king [president]. If the parliament elects the recommended candidate he shall then be appointed as judge by the king [president].
  2. Should the parliament reject the candidate recommended by the committee and if there is no agreement on a new candidate within four weeks, then the parliament has to present an opposing candidate and order a popular vote. In the case of a popular vote the citizens with voting rights can also nominate a candidate according to the procedures for an initiative (Article 29). Should there be more than two candidates, the popular vote will take place in tow elections in accordance with Article 47. The candidate who has received the absolute majority of the votes shall be appointed as judge by the king [president].
  3. A judge appointed for a set term remains in office until his successor is sworn in. Further detailed provisions concerning the procedure, the right of abstention, emoluments, and the fees to be paid by the parties involved shall be stipulated in a special law.

Article 40

  1. Jurisdiction shall be exercised in the first instance by the district court, in the second instance by the high court of appeal, and in the third instance by the supreme court.
  2. By law certain types of cases of the first instance can be delegated to civil servants of the district court who are specially trained and subject to directives.

Article 41

The supreme court has disciplinary powers over the members of the normal courts and the civil servants of the courts.

Article 42

  1. The administrative court consists of five judges and five substitute judges, who are appointed by the king [president] (Article 39). The majority of the judges must be citizens of the country
  2. The term of office of the judges and the substitute judges of the administrative court is five years. The term of office is to be structured in a way that every year the term of one judge and one substitute judge comes to an end. At the first appointment the term of office of the five judges and the five substitute judges is decided by lot. Should a judge or a substitute judge retire prematurely from office, his successor is to be appointed for the remaining term of office of the retiring judge. Re-election is possible.
  3. The five judges elect every year one of their members as a chairman and another as a deputy chairman.
  4. If a judge is unable to attend a meeting, a substitute judge will represent him in this case. From case to case substitution has to take place by rotation.
  5. Insofar as the law does not otherwise provide, all decisions and decrees of the government and of the commissions set up by the government (Article 33) can be appealed at the administrative court.

Article 43

  1. The constitutional court serves to protect the rights accorded by the constitution and to decide in conflicts of competence between the courts and the state administration.
  2. The constitutional court also has the competence to determine whether laws and international treaties are in conformity with the constitution and whether the decrees of the government are in conformity with the laws; in cases where they are not in conformity it may declare their annulment. It shall also act as an electoral tribunal.
  3. Otherwise the regulations of Article 42 apply accordingly.

Article 44

Provisions concerning the organization and duties of the local communities in their own sphere of action and in tasks assigned to them shall be laid down by law.

In the law concerning the local communities the following principles shall be established:

a) the free election of the mayor and the council of the community by the citizens of the community;

b) the right of the community to grant citizenship and the freedom of residents to reside in any community;

c) the right of the community to raise taxes (Article 3) and to administer the assets of the community;

d) the administration of the local police under the supervision of the government.

Article 45

  1. The state, the local communities, and other corporations, establishments, and foundations of public law are liable for damage caused to third persons by individuals acting as their agents who act illegally in their official capacity.
  2. Individuals acting as agents are answerable to the state, to the local community, to the establishment, to the foundation, or to other corporations of public law which they serve for any damage directly caused to such bodies through the willful or grossly negligent breach of their official duties.
  3. Further detailed provisions, especially those relating to competence, shall be laid down in a separate law.

Article 46

Amendments or generally binding interpretations of the constitution can be proposed either by the king [president], the parliament, or the government, or can be made through the procedure of an initiative (Article 29). They require on the part of the parliament approval either by unanimous vote of the representatives present or by a majority of three-quarters of the representatives present at two successive sittings of the parliament and, if required, a popular vote (Article 30). In each case the approval of the king [president] is necessary, with the exception of the procedures for the abolition of the monarchy [republic] (Article 47).

Article 47

  1. At least 5 percent of the citizens with voting rights can introduce an initiative to abolish the monarchy [republic]. Should the initiative be accepted in a popular vote, the parliament has to formulate a new constitution for a republic [monarchy] and to order at the earliest after one year and at the latest after two years a popular vote. The king [president] has the right to propose a new constitution for the same popular vote. The procedure for changing the constitution in Article 46 is replaced in this case by the following procedure.
  2. If there is only one proposal, an absolute majority is sufficient for acceptance (Article 30). If there are two proposals, each citizen with voting rights has the option of choosing between the existing constitution and the two proposals. In this case the citizen with voting rights shall have two votes in the first round of voting. He shall give the two votes to the two variants of the constitution which he wishes to put to the second vote. Those two variants of the constitution which have received the most first and second votes shall be the subjects of the second round of voting. In the second vote, which must take place fourteen days after the first vote, each citizen with voting rights shall have one vote. The constitution which has received the absolute majority of the votes is accepted (Article 30).

Article 48

All laws, decrees, and statutory provisions which contradict any expressed provision of this constitution are hereby revoked and declared invalid; legal provisions which are inconsistent with the spirit of this fundamental law shall be revised to conform with the constitution.

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