If it pleases the Court, I would again offer my assistance in resolving this matter through the following brief:
I intend to make submissions in relation to the full range of issues that the Court may grapple with in the course of this review and I apologise to the Court for that, as this brief will likely be quite lengthy.
I will begin with considering the question of whether the most recent review[note]
Ruling of the Court on the ability of the Court to review RA proposals[/note] departed from precedent and therefore had to meet the "heightened standard" called for in such a circumstance;[note]
Ruling of the Court on the Nature of Precedent and the Scope of the Court's Powers[/note] my submission is that it did not depart from precedent and consequently did not have to meet that standard. In the process of examining that issue I will also make submissions as to how it relates to the task of this Court. I will then move to the question of whether the decision of the Court was
sua sponte, contrary to the constitutional requirement for reviews to be on the request of an affected party[note]Constitution of The North Pacific, Article 5, Clause 1[/note] and to the Ruling on Precedent; I will submit that it was not
sua sponte. Then I will seek to address the claim that the decision is invalid for having only been joined by two members of the Court as constituted; I will submit that this is not so. After my submissions on those more technical attacks to the decision of the Court, I will move to the broader submission that the Court, simply, was wrong and, indeed, so wrong it must be put right; I will submit that the Court was correct in its holding and that, even if this Court does not think it was, this Court must be very careful in displacing that decision.
My submissions will then turn to the question of what to do if this Court should disagree with my submissions addressing the attacks on the decision of the Court; I will submit, first, that this Court should make no judgement on the issue of whether the original Court (that is to say, the Court dealing with the request made by Lord Ravenclaw) was correct in its decision but should either direct that a new Court of THOs be constituted to decide that matter or that it should be remanded to the Court which made the decision here under challenge with a direction to decide that matter, and second, that if this Court does not do so, that it should decide the original Court was correct in its decision.
I will then, finally, conclude with my submissions as to the proper orders and declarations needed to dispose of this matter.
Now, to my first submissions, on the question of the "heightened standard". The Court in its Ruling on Precedent made it clear that the Court was open to judicial review. It did not, however, accept that this was to be conducted on the same basis as when conducting any other request for review. The Court, in that Ruling, noted that such requests must be "proper" as opposed to "arbitrary", they must be "as a result of some factual evolution" as opposed to "simply a request to "look again"", and the Court must "wherever possible, to act in accordance with precedent" and only depart "after all legal alternatives have been examined"; if it does depart from its precedent, the Court must "explain itself fully".
However, it is my submission that these requirements did not need to be met by the Court in making the decision here challenged, because their decision was not departing from precedent. One must look at the decision reached, for, I am afraid, the petitioner rather seems to mischaracterise it. The petitioner submits that the decision held that the Court was without the scope of judicial review, this is plainly wrong. The decision states plainly that the "actions
in this case are not reviewable" (emphasis added), not that Court actions are wholly beyond review. It goes on to refer to the Ruling on Precedent expressly, notes that decision makes clear "the Court is reviewable" and that the challenged decision "does not change that", but, rather, "re-affirms the high standard for that review being possible". These words do not go against those of the Ruling on Precedent but seek to build on it and make clear that it is not acceptable to raise the kinds of "arbitrary" challenges in advance of a final decision so as to escape the "heightened standard" required. I would submit, therefore, that the challenge to the decision on the basis of not abiding by the requirements for overturning precedent is wholly misconceived and must fail, because there was no overturning of precedent.
Moving now to the application of the Ruling on Precedent to this Court's task. I must submit that this request seems to be the epitome of the kind of challenge that the Ruling sought to foreclose. That is to say, a challenge that seeks to succeed by virtue simply of a change in the panel, as the Court in making its ruling was plainly concerned could happen, stating "arbitrary requests for review every time a new Court is elected are not permissible". This request seems to have been lodged in the simple hope that a different panel of THOs would simply reach a different view; the petitioner and the Attorney General (I should say, references to the Attorney General in this brief should, where appropriate, be understood as inclusive of their Deputies) have not even waited for a new Court to be elected and, presumably, should this Court fail to reach the desired result the Attorney General will seek yet another crack of the whip, having already failed to get their way in the original Court and the Court whose decision is presently challenged. This request does not, in any way, "result from some factual evolution", having been filed a mere two days after the challenged decision was made, with no material facts having altered in that period; it could not be more plain that the petitioner and the Attorney General are simply asking the Court to "look again". Thus, I would submit, that this request, not being "proper" and not being the "result [of] some factual evolution" must (save the challenge as to validity) fail in its entirety; the Court cannot permit such a brazen attempt by the petitioner and the Attorney General to abuse the procedures of the Court to get the result they desire, to do so would be a gross departure from the requirements of the Ruling on Precedent which the petitioner and the Attorney General purport to set such stock by and would leave all future proceedings of the Court open to such arbitrary interference.
Further, I submit that the Court must be cognisant of the other requirements of the Ruling on Precedent, should it decide to accept this plainly arbitrary request to look again. The Court must be transparent and explain fully why it has decided it fit to overturn the Ruling on Precedent in order to uphold it; and must have examined all legal alternatives to overturning that Ruling.
Turning to my submissions on the point of
sua sponte decisions. I accept that making rulings on the Court's own motion are prohibited by the Constitution, they must be on the request of an affected party. This point is reiterated by the Ruling on Precedent. The petitioner does not make it wholly clear, to myself at least, as to how the challenged decision is on the Court's own motion, however, it seems to me that the petitioner seems to be driving at one of two possibilities. The first is that the Court decided to disregard the Ruling on Precedent and did so without being asked to do so; given my earlier submissions, I do not propose to say more than that the Court could not have disregarded the Ruling
sua sponte because it did not disregard it at all. The second is that the Court considered the Ruling on Precedent despite not being asked to do so by the petitioner in that request (the Attorney General) and concluded on the basis of that Ruling that there was no jurisdiction to review the decision in this case. This seems to have more behind it, (though it does not fit all too well with the petitioner's other submissions so may not have been what was meant) however, it too is a flawed analysis.
First, I must submit that, in the context of the Court Rules as they are presently, this analysis would mean that, even where the majority of the Court formed the view that there was no jurisdiction (and therefore without the power of the Court), a single Justice could require the Court to answer question put to it and would prevent the majority of the Court deciding that a matter was without jurisdiction. This is due to the fact that requests for review are open to acceptance by a single Justice[note]Court Rules and Procedures, Chapter 2, Clause 2[/note] (though perhaps the petitioner would have that changed). However, even in a situation where the Court Rules require a majority to accept a request, this analysis could have a similar effect if, in the course of hearing submissions, a majority of the Court were persuaded that it was mistaken to do so. Put simply, the argument made by the petitioner, the Attorney General, and SillyString would lead to the Court being mandated to answer questions which the Court has concluded it legally cannot answer. The Court has not, historically, taken the view that it was bound to provide an answer to all questions asked of it if it concluded that it would be legally incorrect to do so; take, as an example, the Ruling on Endorsement Count Requirements, in which the Court declined to answer a question of the Attorney General which was overbroad.[note]
Ruling of the Court on Endorsement Count Requirements and the Solicitation of Endorsements "Endorsing another nation cannot be a crime, as per the bill of rights. "Any thing" is too broad to answer."[/note]
To hold that the Court must answer a question when it has determined that there is no jurisdiction would bind the Court to make illegal decisions and I submit that such a holding must, therefore, be incorrect. The Court must, I submit, consider whether it has the jurisdiction to take an action in order to determine whether it can exercise legally its powers and, should it determine it cannot, it must not; the Court should not be encouraged to be blind to whether it has jurisdiction simply because it has not been expressly asked to do so. If I may go further, I would also note that, if it is the case that the Court is bound to answer the questions it accepts and cannot decide that they should go unanswered because they were mistakenly accepted when there in fact was not jurisdiction, it would seem to follow that the original Court would be barred from concluding, in its final decision, that the matter being reviewed (that is, proposals in the Regional Assembly) are beyond the scope of judicial review.
Second, I would submit that, when deciding any matter, the Court must direct itself to consider jurisdiction and that all requests implicitly include a question as to whether the Court has the power to decide the matter in question. If this is not the case, I must ask the Court as to how a question of jurisdiction would otherwise arise. It would seem that in denying a request for review, the Court makes no official decision on the matter and so cannot make binding determinations of jurisdiction and, in accepting a request, would be barred from considering the matter. Consequently, a binding decision on a matter of jurisdiction would have to result from a hypothetical question put by the Attorney General or from a decision to refuse a request for review being made, appealed and upheld, and then reviewed by a panel of THOs (with the THO panel, and not the elected Court, always being the panel to make the binding decision), neither of which seem the most satisfactory way for the law to develop. Thus, I would submit that the Court ought to find, on one basis or the other, or both, that the decision made was not
sua sponte but was properly made on the request put to it.
I shall now move to the issue of the whether the challenged decision was invalid, due to having been made by only two members of the panel (I will refer to members, meaning both Justices and THOs). In respect of this matter, I submit, it is open to the Court to review the decision for compliance on the ordinary basis and that this Court is not bound to follow the "heightened standard" for reviewing earlier decisions, as it is a challenge as to whether or not there is, in fact, a decision. If the Court concludes that the decision was invalidly made, it must be the case that it is set aside, not being a decision of the Court requiring deference.
There has not been much examining this question in the submissions made thus far, save for brief consideration by the petitioner. In short, the Court is composed of at least three members[note]Constitution of The North Pacific, Article 5, Clause 2[/note] (there is no upper limit in the Constitution, however, the Legal Code effectively creates a maximum of three also, by providing only for the election of three)[note]Legal Code of The North Pacific, Chapter 4, Clause 34[/note] and the petitioner's submission is that, as the final decision of the Court in this matter was rendered by two members rather than all three, it was legally invalid. This, I submit, would be a highly unfortunate proposition for the Court to adopt, given the difficulties it would place our judicial system in. To adopt this proposition would be to place all judicial decision making at the mercy of a one member minority, a member who could simply have reduced activity, as here, or who could be deliberately behaving obstinately. Further, it would bring into question a vast swath of our law, all Rulings made by only two members would be rendered of questionable validity as would any ruling which relied on their precedents, introducing significant legal uncertainty on a number of important questions.[note]Rulings made by two members include: On the Scope of Clause 9 of the Bill of Rights; On the Vice Delegate's Voting Rights within the Security Council; On the Jurisdiction of the Criminal Code; On the Speaker's Powers to Restrict the Format of Votes; On Leaving a Candidates Name off the Ballot; On the Duty to Disclose Exculpatory Evidence; On Oath Violations by Former Members of the Regional Assembly; On WA Nation Disclosure Requirements; On Right against Self Incrimination; On the Speaker's Power to End Debate; On Vice Delegate Succession to the Delegacy; On the Powers of Election Commissioners; and, On the Suppression of Posts on the Regional Message Board (though maybe this one we would be glad to lose)[/note] These are plainly undesirably outcomes and can be avoided by an alternative conclusion, that a Court must consist of three members but that a majority of them may act as the whole. If that interpretation is adopted then legal certainty will be preserved and the Court will not be at risk of being held to ransom by a single member. I submit that that alternate interpretation is the course that the Court ought to take and that, consequently, the challenged decision was a valid decision of the Court.
Now, should the Court determine that the challenged decision was valid and was not
sua sponte nor contrary to precedent and that this present challenge is not barred by the requirements for a request to overturn precedent to result from a factual evolution and not be arbitrary, the Court will need to turn to the question of whether the challenged decision was so wrong as to require displacement. Now, entering into this analysis, I must remind the Court of the "heightened standard" to which it must hold itself: it must "wherever possible [...] act in accordance with precedent"; depart only "after all legal alternatives have been examined"; and, if departing, "explain itself fully".
Turning again to the actual decision challenged, what do we find. We find that the Court is of the view that there was no challenge open "in this case". The reasons given for this are, I submit, powerful ones. There is evident concern for the need ensure that the system of justice in TNP functions properly and to avoid the risk of processes being abuses so as to impede it.
Firstly, it must be recognised that we have no true appellate structure in TNP (there are appeals of some single justice decisions to the full court, but they stem, in the main, from the Court Rules and remain internal to the Court, rather than being considered by a separate appellate tribunal), one Court in judicial review is the same as any other and cannot claim superiority or finality, so requests for review could continue effectively indefinitely. This leads to situations such as the present, where a decision of the original court was made, reconsidered and maintained, reviewed and upheld, and is now being reviewed again, all notionally at the same level. There is no compelling cut off point other than at the source and the alternative to such a cut off is for decisions to be endlessly reviewable; a particular concern where one has an Attorney General seeking a particular result and able to use their inherent standing to seek new panels of THOs until they get the result they think fit.
Secondly, the system for judicial recusals in TNP presents a linked problem in this context, there are, in the grand scheme of things, relatively few people in TNP who have such care for legal matters that they will serve as THOs. This will inevitably lead to practical difficulties if this sort of potentially endless sequence of reviews is permitted, as we will run out of THOs, leading to reviews which are, in essence, impossible to answer, due to a lack of a panel to answer them. The difficulty this presents to the effective administration of justice is obvious.
There are, I submit, further reasons to be considered also. The need for the speedy resolution of reviews must be considered also, for even if this sequence does not continue forever, it should not be forgot that in this present matter a notional actual emergency has went unaddressed for well over a month and in other cases the rights of residents could be left in a state of violation while sequences of ancillary reviews are dealt with. The need to uphold the main constitutional scheme that has been prescribed by the Assembly, of an elected Court as the primary arbiter of legal disputes with THOs only where absolutely necessary, not one of sequences of THOs being went through until a party gets the decision it wants. The need, put plainly, for the Court's processes not to be reduced to farce whenever a decision is made with which the Attorney General disagrees.
It is clear also, I would submit, that these concerns were in the minds of the Court in its Ruling on Precedent, when warning of the need to prevent arbitrary requests whenever a new Court came into being. While it is not strictly determinative of this point and the challenged decision does build on it, the concerns evident in this Ruling are instructive. I submit that the Court should not encourage parties to get around the "heightened standard" which exists for final decisions by providing a lower standard for challenging the preliminary decisions. To do so, I suggest, would risk opening the floodgates to meritless challenges made by parties subject to review in order to try and prevent a final resolution against them which would be more difficult to challenge.
For all those reasons, I submit, the challenged decision was correct and should not be displaced by this Court. Further, I suggest that the Court should be slow, in the face of such reasons, to conclude that it is possessed of higher wisdom than the panel in the challenged decision and must act, as the Ruling on Precedent implores, with respect and deference to the law as established and not overturn it simply due to a difference of opinions. Only if the Court is of the view that there is no alternative to overturning that decision can it set it aside and, in this case, it is clear that the challenged decision is a reasonable alternative to the course proposed by the petitioner and, therefore, it must be followed.
However, should the Court disagree with me and conclude that the technical attacks or the substantive attacks succeed, it will be necessary to consider the question of what to do in terms of the question put to the panel that made the challenged decision. There are three courses open to the Court: the Court could order that yet another Court of THOs be constituted to consider that matter; that the matter be remanded back the panel that made the challenged decision; or it could decide the matter itself.
The first of these has, I submit, some obvious difficulties. It would be the third panel of THOs convened on this matter and, depending on the view taken on COIs, a relatively large proportion of the population that would be interested in serving as a THO can already be counted out of taking part in such an exercise. It would waste yet more time and would add further to the ongoing farce that has been this litigation. For those reasons, I submit, this course is not ideal, however, I would suggest that it is a better one to take that of this Court deciding this issue as well, for reasons I will reach shortly.
The second has difficulties also. The Court will be aware that one of the members of the panel in the challenged decision became inactive and, presumably, may continue to be so. Further, some of the panel may not wish to return to this matter, given all that has went on. However, I would submit that this is the best of the three courses available, all the members of that panel have served as Justices and have demonstrated plainly that they will serve as THOs, they have also had the benefit of submissions on the actual question of whether the original Court was correct or not.
By contrast, in connection with the third option, this Court has heard submissions focused on the question of precedent and of
sua sponte decision making and will, I should imagine, spend much of its time on those questions. They should not be allowed to distract from the question of the correctness of the decision of the original Court or get less consideration due to all of these ancillary matters. For that reason, I submit, this Court should not take the task upon itself to have to manage all of these complex issues at once, but, more properly, ought to remand the matter to the panel that made the challenged decision or direct that a fresh hearing before a third panel is needed.
If, however, the Court should disagree with my on that point also, I will make submissions (or, rather, repeat my submissions from before the challenged panel) relating to the question of whether the original court was correct.
I will start by addressing, together, government policies or actions. The Attorney General submits that the Court was not reviewing a government policy or action. In making this submission, reference is made to the ruling on Standing[note]
Ruling of the Court on Standing and the Definition of Affected Party[/note] noting that matters being debated in the Regional Assembly are not identified in the ruling, which I accept. However, it is notable that the Ruling is not exhaustive in identifying the areas where judicial review can be engaged, for instance, it identifies policies of the executive and judicial branches of government, not the legislative, and presumably thereby excludes the Speaker's policies from the scope of judicial review, yet the Court has, in fact, reviewed the policies of the Speaker[note]
Ruling of the Court on the Speaker's Powers to Restrict the Format of Votes; "The Speaker by making these policies was within their powers as laid out by the Constitution and not in violation of the Bill of Rights"[/note]; and, further, I submit that the analysis that only policies of the executive and judicial organs of government can be reviewed cannot be exhaustive as it would serve to wholly exclude the policies of the Security Council from the scrutiny of the Court, as the Court has held the Security Council to be without the executive branch,[note]
Ruling of the Court on Content Ownership and Freedom of Information Requests against the Security Council; "Given that the Chair of the Security Council holds that power only in the absence of holding executive authority, the Court opines that the Security Council is not categorized under the Executive Branch."[/note] which cannot be in line with the guarantee to all nations that "[n]o governmental authority of the region has the power to suspend or disregard the Constitution or the Legal Code"[note]The Bill of Rights for all Nations of The North Pacific, clause 11[/note]. It is also to be noted that, in relation to action or inaction of governmental bodies, the Court did not claim to limit those bodies just to the executive or judicial, nor does the Constitution set any such limit (indeed, the strict words of the Constitution do not include actions at all). Additionally, if I may, I would suggest that, in respect of Section 9.1,[note]Legal Code of The North Pacific, Section 9.1[/note] the ruling of the Court on Standing cannot have been expected to cover policies made by the Assembly under it as Section 9.1 only entered into law in May of 2015[note]
Emergency Law Bill passed by the Assembly;
presented to the Delegate;
signed by the Delegate[/note]
Now, I submit that the motions in question would amount to policies made by the Regional Assembly. Further, I submit that the Regional Assembly is a government body and that, consequently, were it to adopt those policies, those policies would be government policies. I accept that the Assembly is a legislative body, not a judicial or executive one, however, I submit that this does not mean its policies are beyond the scope of judicial review; as I have noted, judicial review can extend to the policies of legislative officials, in the form of the Speaker, and I do suggest that the Court in its ruling on Standing was not exhaustive or else has barred judicial review of the Security Council's policies also. It is suggested by the Attorney General that the fact that the motion is proposed by someone other than a government official means that it is not government policy, with respect to the Attorney General, I must disagree, a policy adopted by a government body such as the Regional Assembly is a government policy and reviewable as such.
In the alternative, I would submit that the Regional Assembly, were it to exercise its power under Section 9.1, would be taking a government action. In respect of actions, I note again that there is no differentiation with respect to the nature of the body exercising the power in the Ruling on Standing, so even if the Court disagrees on the point of legislative policy being within scope, there is nothing in the ruling to say that legislative action is without judicial review. Consequently, as an action by a government body the motion is open to review.
I should note, in my submissions to this point I stated that "were" the Assembly to adopt the policies or take the action they would be open to review, this is not to say that because they have not yet been so adopted or taken that they are not reviewable. To accept that proposition would be to accept that the Court is incapable of restraining government bodies or officials from making illegal policies or taking illegal actions, which, I submit, would be an incorrect course for the Court to take. Were a citizen to submit to the Court evidence that the Delegate proposes to and will illegally eject them from the region, the Court ought not simply sit back and accept that such can be done, permitting a violation of the rights of the citizen; it is open to the Court to restrain government officials and bodies from making illegal policies or taking illegal actions in order to better secure the rights guaranteed to nations (particularly in cases where the violation cannot easily been done, in view of the lack of any possibility for restoration through some mechanism such as damages, in contrast to the position one might find RL).
Now, on this point, the Constitution is slightly unclear as to whether the policies which the Court is to review are to be extant policies only or whether they can include prospective policies and the Court in its ruling on Standing appears to have missed the possibility of the need to restrain future policies or action, however, again, I stress my submission that the ruling on Standing is not exhaustive of the scenarios in which judicial review exists and that there are strong policy reasons for holding that prospective policy or action is amenable to review; indeed, I would go further and submit that there is justification in the Bill of Rights for such action in order to vindicate the right of nations to be protected against the abuse of powers[note]The Bill of Rights for all Nations of The North Pacific, clause 5[/note]. I would submit to the Court that the proper holding is that request regarding prospective policies or actions are permissible and do not, necessarily, fail, but that the requirement identified in the Ruling on Standing that there must be a clear connection with the matter complained of and the affect on them must be stressed and that it must be recognised that prospective events are less certain and therefore less likely to demonstrate a clear connection.
Moving now to the issue of laws passed by the Regional Assembly. It is submitted by the Attorney General that the Court was not exercising its function in relation to laws in terms of reviewing their Constitutionality or conflicts or ambiguity in them, it is my submission that the Attorney General is incorrect in this. The request for review that the Court accepted clearly raised issues with respect to the constitutionality of Section 9.1, in relation to the propriety of the majority it requires, on the face of the request, in the portion dealing with prior rulings.[note]
Request for Review made by Lord Ravenclaw; "I would argue that in order for this proposal to legally able to force resident nations who happen to meet the specific criteria as stated, it would need to be treated by the Speaker as a law that requires equal standing to the Bill of Rights and would require a 3/4ths Majority of the Regional Assembly to enact (Article 9, Clause 2 of the Constitution). I would note that at the time of writing, this was being pushed as an Emergency Situation and requires a simple majority vote."[/note] Further, I would submit that the view stated by the Attorney General is overly simplistic in terms of how requests for review must be considered. The Attorney General submits that the request relates only to the motion and does not request any review of constitutionality or consideration of ambiguity in relation to Section 9.1 (though, as I have noted, the request does, in fact, raise the issue of constitutionality directly); it is my submission that in order to determine the validity of the motion it is absolutely necessary for the Court to consider ancillary questions relating to the constitutional scope of the Section 9.1 power, such as the meaning of "actual emergency" and the nature of what constitutes "express consent", for how else could the Court determine what would be a valid exercise of the power, and that where the Court is requested to answer a question which has, ancillary to it, such questions of constitutionality and interpretation, it is proper for the Court to regard the question put to it as encompassing those ancillary questions which need to be answered to resolve the main question. I would further submit, on this point, that the Court ought not, for practical reasons, follow the restrictive course of the Attorney General, as in TNP we cannot expect particular legal knowledge as to how a person ought correctly state their questions so as to encompass all they wish to encompass; knowledge of TNP's legal system is often lacking, particularly so in newer residents, and, unlike in other legal systems, we do not enjoy formal provision of legal advice or representation to make up for that lack of knowledge, and residents should not be punished for that, rather, the Court should be able to put its knowledge to use so as to support residents seeking to vindicate their rights.
In respect of answering questions as to the constitutionality and interpretation of the scope of a law, I would repeat my submissions in respect of prospective breach and put to the Court that, where there is a prospective breach capable of demonstrating a clear connection between it and the extant law, there is no principled reason why the Court should require a nation to have their rights injured, rather the Court should and can seek to restrain such breaches from occurring.
Now, in view of all my submissions, I make the following submissions in terms of declarations and orders which ought to be made by the Court. The Court ought to dismiss this request for review and declare that the challenged decision was a properly made decision of the Court which cannot be impugned for having been made by two members of the panel; and it ought to declare that the remaining challenges to the decision must fail as being arbitrary and not resulting from a factual evolution. In the alternative, should the Court disagree with me and determine that one or the other of the attacks succeed, I submit that the Court should declare fully the reasons for doing so (in accordance with the requirements of the Ruling on Precedent); and should either order the matter be remanded to the panel that made the challenged decision or to a third panel or declare that the decision of the original Court was correct.
