This is a reference note, not a record of proceedings. It concerns no pending matter. No determination under §2.16 has been made, sought, or contemplated, and the Clerk is aware of none in prospect.
The Office publishes procedural references so that the constitutional machinery is legible before it is needed rather than during. A reader who requires this note during an incapacity has been failed by the Office that should have published it beforehand.
§2.16(1) recognises exactly two routes, and both require publication to this System:
(a) a declaration of incapacity by the Consul; or
(b) a determination of incapacity by the Council of Ministers under §2.16(2).
There is no third route. No court, chamber, officer, physician, or body of any kind may place a Consul under an incapacity by any other means. A Consul who has neither declared nor been determined is exercising the authority of the office, whatever else may be said of them.
The Council may determine incapacity by majority of members then in office, provided no fewer than five are in office. The threshold moves with the Council's actual composition; vacancies do not lower the bar in the manner of an absolute-majority rule, and the five-member floor prevents a depleted Council from acting at all.
The Clerk directs readers to §2.16(2)(a), final sentence: this function is a constitutional function of the Council and is not an exercise of executive authority.
The sentence is not decorative and its effect is worth stating plainly. The Council acquires nothing by a determination. Acting authority does not vest in the Council, in its members, or in any person of the Council's choosing. It vests in accordance with the applicable succession provision — §2.5(6) for the Civic Consul, §2.9(6) for the Legat Consul — which is to say, where the Constitution had already placed it before any Minister formed a view.
The determination is published to this System. Acting authority vests upon publication.
A person upon whom acting executive authority would fall may decline, by publishing a declination to this System within 48 hours of the incapacity publication.
The Office notes four features of §2.16(4) which are commonly misunderstood:
(a) The window is short and it is real. Forty-eight hours from publication, not from notice, not from receipt.
(b) Silence is acceptance. A person who does not publish a declination within 48 hours is deemed to have accepted. The office cannot fall vacant through inattention.
(c) A declination is irrevocable, and costs nothing. §2.16(4)(c) provides that it does not prejudice the person's eligibility for any future succession event. A person who declines today is not thereby disqualified tomorrow. The Constitution declines to punish the refusal.
(d) The person last in the order of succession may not decline. The chain terminates in an obligation. There is no configuration of declinations under which acting authority has nowhere to go.
An incapacity under §2.16 ends when the Consul publishes a restoration declaration to this System.
The Clerk is asked about this provision more than any other in the section, and the question is always some form of who approves it. The answer is that no one approves it. Restoration is the act of the Consul. It requires no vote, no finding, no petition, no medical opinion, and no leave of any body.
The Consul transmits the declaration to the Speaker of each chamber, to the other Consul, and to the officer then holding acting authority. Full authority returns 24 hours after publication.
The Office observes, without comment on its wisdom, that the twenty-four hours are the only interval in the section, and that the persons to whom transmission is required are precisely the persons in a position to act within it.
Where the Council determines incapacity on the same or substantially similar grounds within 90 days of a restoration declaration, §2.16(3)(b) applies and the Consul may not end that incapacity by restoration declaration alone.
Such an incapacity ends only when the Consul's accountability chamber so resolves — the Assembly for the Civic Consul, the Senate for the Legat Consul — by absolute majority of its full seated membership.
The Clerk notes that the threshold is of full seated membership and not of members voting or present (§3.7 refers). Abstention and absence tell against restoration. A chamber that does not act has not thereby declined to decide; it has decided.
An incapacity that has continued for 90 days ends by constitutional operation, without vote, resolution, or declaration, unless before expiry a removal process under §2.6 or §2.13 has been initiated against the Consul — in which case the incapacity continues until that process concludes.
The Office states the consequence without recommendation, as it is a consequence readers frequently do not anticipate: an incapacity that is neither ended nor followed by an initiated removal expires on the ninetieth day and the Consul resumes full authority. No body is required to permit this and no body is able to prevent it. The Constitution does not provide for an executive to remain indefinitely suspended, and the Office is unaware of any construction of §2.16(5) under which it could.
Every act named in §2.16 is a publication to this System and is therefore permanent and freely accessible under §10.1. This includes, without limitation: the Council's determination and its recorded grounds; each declination filed; the expiry of any 48-hour window without declination; each restoration declaration, whether or not it takes effect; any resolution of an accountability chamber under §2.16(3)(b); and the expiry of any incapacity under §2.16(5).
The Office notes that a restoration declaration filed under a §2.16(3)(b) limitation remains a permanent record notwithstanding that it does not end the incapacity. Nothing in this Constitution provides for the removal of a filed record on the ground that it was ineffective.
This note describes procedure. It does not construe §2.16, does not bind any body, and creates no obligation. Where this note and the constitutional text differ, the text governs and this note is in error.
Filed on the Clerk's own authority. No request preceded it.