Thursday, December 17, 2009

My Constitution, Section 15

Section 15 - Officers and employees

15(1) An Officer of a government is an individual with a position in that government, whether regularly or for specific purposes, and whether paid or unpaid, that includes discretion to make and act upon decisions regarding how the principle of the just use of retaliatory force may be concretely enacted or direct influences thereupon, and thus is one who:
(i) is elected to that position by citizens with voting rights;
(ii) can only be appointed with the approval of that government’s Legislature;
iii) is responsible for preparation, maintenance or publication of official records;
(iv) researches and provides information to be used by another Officer;
(v) provides advice to another Officer on a matter of law, procedure or protocol;
(vi) organises the communications or schedule of another Officer;
(vii) may speak on behalf of another Officer;
(viii) has a warrant that grants proactive power of arrest and detention;
(ix) pursues prosecutions of offences; or
(x) is otherwise authorised by superior Officers to proactively employ force or to direct subordinates via a chain of command to proactively employ force;
and while all civilians authorised to proactively employ force in a law-enforcement capacity are Officers, a citizen enlisted in the military is an employee until promoted to achieve sufficient discretion to routinely make decisions and thus be titled a non-commissioned Officer.
This I hold as one of the contributions to constitutional thought that I think is my own: the definition of who is an Officer. The need for a distinction as to who is an Officer and who is not (ie is an employee or contractor or whatnot) stems from who is directly responsible for doing parts of what government as such should be doing as contrasted to those who are incidental to that purpose. The purpose of government is to wield retaliatory force under certain conditions, and hence an Officer is one who makes decisions as to how and when that force shall be wielded. In turn, that also means that Officers are those who need to be held to a higher standard than non-Officers.

Most of the identifications of specifics are obvious, but some need explaining.

The identification of records and information staff as Officers is valid because their skill and judgement at procuring and supplying records to other Officers requesting information directly affects the content of how those other Officers will act and decide how to wield force. Additionally, their provision of government records and information to the public will likewise affect how members of the public will act and make their own decisions about who their elected Officers may be and of instructions and tasks that these members may provide to their Officers (eg investigating a constituent’s complaint).

The people providing advice on law, procedure and protocol are Officers for a similar reason as the records and information staff: the words they speak will directly influence the content of the decision-making of another Officer. The same again applies to organisers and gatekeepers of communications.

The reason why non-NCO military personnel are excluded is because they are not yet in a position to exercise judgement in the wielding of force, at least not to a significant degree. Since the method underlying dividing government personnel into Officers and non-Officers revolves around decision making, it excludes those who are generally prohibited from making any significant decisions. In a sense, then a Private or Corporal doesn’t so much wield the force as BE the force that is wielded. Only when he gets to the level of an NCO does an enlisted man have sufficient authority to decide how to wield force does he become an Officer for constitutional purposes. It was my identification of this that helped me refine the definition of an Officer in the first place, btw.

15(2) For a given jurisdiction, all Offices that are filled by elections or by appointments that must be approved by its Legislature are high Offices and all other Offices are subsidiary Offices.
The need for this division relates to how various Officers are permitted to act when their judgement tells them that the orders they have been given might be illegal. This will be used in the next section.

15(3) A Command-Level Officer in the military is one with a rank commonly associated with routinely having near-autonomous field command of one or more military units or named vessels, this being one who has a military rank of:
(i) General Officer, Flag Officer or other comparable rank, in any branch of service; or
(ii) immediately below that rank.
This one is also a set-up for another section in regards to how someone may act in response to potentially illegal orders.

In practical terms, the dividing point translates to a Colonel and above on the army-style rank system, a Captain and above on the navy-style system, and Group Captain in the airforce-style system. In NATO ranks that's OF-5 and up.

The reason for the dividing point being chosen at that point is that the one in charge of a field unit is going to be the one given authority to represent the government in some negotiations in addition to being the top-most leader of that unit. That leader's own superiors are apt to be great distances away, and until dialogue between those superiors and the dignatories that the Officer in question is set up then this Officer is it, and will be expected to be by most foreign dignatories. As well as being senior enough to have sufficient context to make judgement about the Constitutionality of orders, how they act in relation to the Constitution itself will have a direct effect on how they respond to and also are responded to by the foreigners. To the extent they are the local voice of authority they are accordingly accountable to the source of that authority.

15(4) There shall not be an employee or a subsidiary Officer who is not ultimately answerable to a high Officer of the same jurisdiction, and there shall not be a high Officer who is not answerable to citizens of the same jurisdiction directly or via their Legislatures.
Rounding the section out is the principle of hierarchy and accountability through hierarchy. The top-most level is the citizens who are the principals of whom the government and its Officers are agents.


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