Oaths Amendment Bill

r3naissanc3r

r3naissanc3r

TNPer
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Oaths Amendment Bill

1. Chapter 1, Section 1.8, Clause 20 of the Codified Law of The North Pacific is hereby amended to read as follows,
20. "Gross Misconduct" is defined as the violation of an individual's legally mandated sworn oath, either willfully or through negligence.
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2. Chapter 4, Section 4.1, Clause 3 of the Codified Law of The North Pacific is hereby repealed.

3. Clauses 4 - 21 of Chapter 4 of the Codified Law of The North Pacific are hereby renumbered 3 - 20 respectively.
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I highlight below the changes effected by this bill:
Legal Code, Section 1.8:
20. "Gross Misconduct" is defined as the violation of an individual's sworn oath of office legally mandated sworn oath, either willfully or through negligence.
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Legal Code, Section 4.1, Clause 3:
3. This Oath will be binding and violations are grounds for a recall.
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The purpose of this simple bill is to fix an issue caused by this act. Said act made the change that criminal charges could only be brought for offenses specified under the Criminal Code section of the Legal Code.

In the past, violations of sworn oaths were penalized by means of criminal charges. With the change the above act made, this was no longer possible. For this reason, that act also added "gross negligence", making violations of oaths of office a criminal offense. However, for some reason, the membership oath was left out. The propose bill addresses this issue by re-defining gross negligence to include violations of all legally mandated sworn oaths.

This bill also repeals Section 4.1, Clause 3 of the Legal Code. That section says that the oath of office is legally binding and grounds for recall. The first part is not necessary, as the oath is already made legally binding under Article 6, Clause 2 of the Constitution. The second part is not necessary either: Grounds for recall can be anything and do not need to be specified. In fact, if we get down to including partial specifications of what is grounds for recall in our laws, we open the door to frivolous arguments. For example, one could argue that motions for recall may not be brought for anything not specified as grounds for recall in the law.
 
r3naissanc3r, there has been, historically. an issue over the enforceability of the legal and binding nature of the oath of office and the oath associated with membership in the Regional Assembly (and its predecessor bodies under earlier constitutional/legal systems in TNP.
The specificity of the current legal code concerning oaths is a direct consequence of that debate and the different ways that issue has been argued or viewed in TNP governmental authorities over that time.
I have grave reservations that your proposal as currently worded would merely revive the debate over the enforceability of oaths. I have no objection to making clear that the all oaths can be legal enforced through either the criminal code or by recall (or even add a civil enforcement provision since that is now possible again) but I do have a problem given the issue's history of leaving it unstated in very clear language that the oaths are enforceable and in what manner.
Take this from someone who has been in TNP for close to a decade; it has been a source of controversy and making the topic even more ambiguous is not a good idea.
 
Grosse, could you explain how this is more ambiguous? It looks to me like all it does is include RA membership oaths as well as ones for other government officials - the scope is wider, but not the ambiguity...
 
The idea that the provisions that would be repealed and thus, would make implicit and unstated as a remedy for the breach of an oath, is what would create the ambiguity.

It is not sufficient to argue that collective memory would serve as a substitute (which is what that part of the proposal would in fact depend on.) In fact the RA not too long ago banned the use of collective memory to support any action with legal consequences, so the threat that I see with this proposal is serious, indeed.

The option to use recall as an express remedy for breach of the oath of office should remain and be explicit. The ability to remove an appointed official as a remedy should be explicit and not implicit. And even the thought I mentioned. of a civil proceeding as another alternative remedy should be explicit as well.

I'm bothered by the tendency of the current penalty provisions in the criminal code to leave the scope and length of such penalties to the sole discretion of the court without any standards or means of independent review. That also comes into play with the way this bill would change things. But that is a different, although related questions to be addressed at another time.
 
Grosseschnauzer:
The idea that the provisions that would be repealed and thus, would make implicit and unstated as a remedy for the breach of an oath, is what would create the ambiguity.
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I'm sorry, I'm... really not sure what this means. :unsure:

The ability to remove an appointed official as a remedy should be explicit and not implicit.
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Eh. Recalling an appointed official is relatively worthless, since they can be immediately reappointed.
 
I have problems with certain parts of the bill, and I would like to see a bill that more constructively and clearly deals with making all oaths enforceable and the manner by which they can be enforced.
As I've explained above, the current bill does not do that.
 
Grosse, this makes all oaths explicitly enforceable by criminalizing the breaking of them, and explicitly allows them to be enforced through criminal charges of Gross Misconduct.

There is no need to explicitly allow officials who break their oath to be recalled. It is already clearly established in the constitution that government officials can be recalled for any reason, which includes breaking their oath of office.
 
SillyString:
The ability to remove an appointed official as a remedy should be explicit and not implicit.
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Eh. Recalling an appointed official is relatively worthless, since they can be immediately reappointed.
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I think the response from Regional Assembly members to my light hearted remark about reappointing Tim shows that it is not relatively worthless. I don't think it would be wise for an official to disrespect the will of the Regional Assembly. It could result in the elected official being the one that is recalled. :yes:
 
I agree, but assuming the person in the position of making that appointment does as well, it seems like you'd have as much luck simply convincing them to fire their appointee as you would in having a recall vote.
 
This is a bill where I'm saying to myself "the change appears relatively harmless but I know I'm missing something".
 
Perhaps a little history lesson is in order.

In the early days of TNP, there was no recall provision, just an impeachment provision that was a non-judicial proceeding.
That troubled many of us, and at first we moved to defining impeachment to the process of a recall but keeping the label of "impeachment," in part because the Bill of Rights contained that word in its original adopted form at the insistence, of Romanoffia. That provision applied to elected and appointed officials at all levels.
A further constitutional change changed the label of "impeachment" to that of "recall" and was the first instance of amending the Bill of Rights in a non-substantive way. (The second was to reflect the change in Nationstates from the "United Nations" to the "World Assembly" after the infamous cease-and-desist letter to Max Berry.)
So recall is in fact intended to be for both elected and appointed offices and positions, and that element has never changed from the earliest days of TNP democracy. So making sure that the violation of an oath could be enforced by recall is a very fair and sound alternative to a criminal proceeding and should not be disregarded as such. There could be circumstances where the violation of an oath is more a political issue than a criminal one, and in those cases, recall might just be the only option.
 
And this bill does *nothing* to infringe upon that option. The clause of the legal code that it strikes is completely redundant with this one from the constitution:
TNP Constitution:
3. The Regional Assembly may remove a government official from office by a two-thirds majority vote.
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I am not sure I understand what Grosseschnauzer's concerns are. In TNP, we can bring a motion to recall an official for reasons ranging from not liking their haircut, to banjecting 1000 nations, and anything we can interpolate or extrapolate to from there. This range of reasons includes oath violations, regardless of whether they are enumerated as a specific reason in the Legal Code. This status of things has been fundamental in TNP government, and has been perfectly clear and unambiguous ever since the current constitution was enacted.

The explicit listing of oath violations as "grounds for recall" is redundant, and repealing will not change anything regarding the reasons why recalls may be brought. People will still be able to bring recalls for oath violations, in the same way as they bring recalls for other reasons not mentioned in the Legal Code. On the other hand, keeping that clause in the books can be dangerous. Redundant legal clauses routinely become sources of issues, as they tend to be overlooked when applying or amending the law. Furthermore, singling out one specific reason for explicit enumeration can potentially be harmful in implementing recalls: one could argue that, if violations of oath are the only grounds for recall explicitly specified in law, then it was intended that they also be the only valid such grounds, and recalls may not be brought for anything else.

If anything, this proposed amendment makes the enforceability of oaths much clearer. It specifies that all oaths (and not just the officials' oath, as it is currently) can be enforced through criminal law, in addition to their enforceability by means of recall that is already provided for by the Constitution.

Grosseschnauzer's history lessons may be useful warnings for those drafting amendments, but they do not apply in this case. The issue of whether recalls may be brought for oath violations is adequately dealt with in the Constitution, and the repeal of this redundant Legal Code clause does not change this.
 
This bill is now in formal debate. Formal debate will end on 2013-10-24, although I will entertain motions by the sponsoring member to close it early.
 
The problem is that the way this bill is drafted it creates an implication that recalls cannot be used as a basis to deal with oath violations since those are listed as part of the criminal code.
 
Grosse, if you'll look at the recent voting history of this region, I think you'll find that everyone is keenly aware of their ability to use recalls for any reason they please, be it oath violations or just cause they feel like it. If there's a problem with the recall process, it certainly isn't that people don't know when they're allowed to use it.
 
C.O.E., I think it's dangerous to make an assumption that something like that would remain in the collective memory of the region once its significant current players have gone, or gone elsewhere. Especially since the R.A. voted to reject such as a basis for deciding anything.

It's much safer to have language to make clear that oaths can be enforced both by criminal proceedings or by a recall, or even a reprimand, if that gets adopted.
 
Grosse, we already have such language. It is the language of the recall clause, which permits recalls to be brought for any reason whatsoever.

I think also COE's is a very realistic assumption to make. The empirical evidence in its support is overwhelming.

Even if the fact that recalls can be brought for violations of the officials' oath is somehow erased from the regional collective memory, it can be brought back by a single-post reminder. The wording is already there, and it is crystal clear.

Also, as I said in my previous post, legislating specific reasons why a recall may be brought can have undesirable effects, in that it could be used to argue that any reasons not explicitly specified are not grounds for recall.
 
r3naissanc3r:
Grosse, we already have such language. It is the language of the recall clause, which permits recalls to be brought for any reason whatsoever.

I think also COE's is a very realistic assumption to make. The empirical evidence in its support is overwhelming.

Even if the fact that recalls can be brought for violations of the officials' oath is somehow erased from the regional collective memory, it can be brought back by a single-post reminder. The wording is already there, and it is crystal clear.

Also, as I said in my previous post, legislating specific reasons why a recall may be brought can have undesirable effects, in that it could be used to argue that any reasons not explicitly specified are not grounds for recall.
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Yoy misread what I said, and I stand by my previous statement.

You are making an assumption about how the langiage would be understood by others in the future and given the Court's behavior on the phrase "government officials" which got un into this mess, I think there is merit to my concern.

I think the root of the problem came in the drafting in the current legal code to use just the phrase "government officials" as opposed to using "offices and positions" as was the case under the previous legal code and constitution.
 
I have voted against the final version of this bill because of the repeal of Chapter 4, Section 4.1, Clause 3, as proposed in item 2 of the bill.
 
I have reached the same conclusion as Grosseschnauzer and cast my vote against the current bill.
 
Interesting - I have a similar reason for voting in favor. The inclusion of that clause in the legal code discourages bringing recalls for other acts of malfeasance, and its removal will do nothing to interfere with peoples' legal right to bring motions of recall.
 
For me it came down to necessity. Is it necessary to strike the clause in the interest of clarity? The answer in my mind was no.
 
I'm not sure I agree with you there in implementation - as I see it, only those things which are necessary should remain in the law, and everything extraneous, redundant, or circular should be removed. Law should be as small as possible, as big as necessary - and no bigger.
 
Ash:
For me it came down to necessity. Is it necessary to strike the clause in the interest of clarity? The answer in my mind was no.
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If we were to add a long list of clauses detailing the reasons for which one could be recalled from office, would you also be opposed to removing those? Given that the number of reasons for which someone may be removed from office is arbitrarily high (but perhaps not infinite), how many reasons would be too many to specify in the law, do you think?
 
I don't think the reductio ad absurdum of enumerating all possible transgressions is being posited by anyone here. Many of the laws we pass include compromises and concessions on the part of the author/supporters in order to satisfy a broader segment of the RA. Sometimes when that doesn't happen, the proposal will fail.
 
True, but the reductio is a decent thought experiment to determine if any redundant clauses regarding reasons for recall really ought to be in the legal code. I also think SillyString has a valid point that the inclusion of that clause may discourage recall for other reasons.
 
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SillyString:
I'm not sure I agree with you there in implementation - as I see it, only those things which are necessary should remain in the law, and everything extraneous, redundant, or circular should be removed. Law should be as small as possible, as big as necessary - and no bigger.
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I agree with you in principle, and we are a lot closer on this issue than it would seem at first. I am a big advocate for efficiency, especially in government. However, on this particular point I took into account the arguments made by nations that have been in TNP far longer than me. History is important to me, and repeating the same mistakes instead of learning from them is not my idea of efficiency.

Crushing Our Enemies:
Ash:
For me it came down to necessity. Is it necessary to strike the clause in the interest of clarity? The answer in my mind was no.
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If we were to add a long list of clauses detailing the reasons for which one could be recalled from office, would you also be opposed to removing those? Given that the number of reasons for which someone may be removed from office is arbitrarily high (but perhaps not infinite), how many reasons would be too many to specify in the law, do you think?
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While I may not be a lawyer by training, I'm surprised that you asked those questions of me. As Speaker of the RA, I'm sure you know that legislative sausage-making is a messy but necessary part of the process. We're not dealing with hypotheticals here.

Great Bights Mum:
I don't think the reductio ad absurdum of enumerating all possible transgressions is being posited by anyone here. Many of the laws we pass include compromises and concessions on the part of the author/supporters in order to satisfy a broader segment of the RA. Sometimes when that doesn't happen, the proposal will fail.
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Thank you for making that point, GBM.
 
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