Brief
I apologise for the late filing and, if it pleases the Court, would submit the following brief:
This brief will first raise an issue of jurisdiction which it is submitted the Court ought to resolve before considering the substantive issues discussed. It will then go on to address the issues indicated by the Moderating Justice.
Jurisdiction
In any request for review, a preliminary issue is whether the matter is within the scope of the Court's review power. This is confirmed by the Court's decision
on Court Review of RA Proposals, which noted that where a request is outside of scope "the Court ought to find in their ruling that the object of the request is not within the scope of their review power, and decline to rule on it."
The fact of the Petitioner's inherent standing to make a request (Legal Code, Section 3.6, clause 34) does not mean that a request brought is within the scope of jurisdiction. The Court's jurisdiction is constitutionally defined as being to "review the constitutionality of laws or legality of government policies and actions" (Constitution, Article 4, clause 1) and that substantive jurisdiction cannot be expanded by a provision of the Legal Code which only goes to the issue of standing in relation to reviews brought, rather it is submitted that inherent standing must be limited to those reviews which are within the scope of the Court's power.
Here, the request does not clearly set out the manner in which the Court's prior opinion is said to be unconstitutional or unlawful. While it may be inferred that it is said that it in some way contravenes either Article 2, clause 1 of the Constitution or Chapter 1, clause 1 of the Legal Code, the way in which it is alleged to do so is not set out. Neither, it is submitted, does the brief submitted by the Petitioner set out the unconstitutionality or illegality of the opinion.
It is submitted that this is a matter of particular import given the status of official opinions of the Court. The Constitution mandates that "The official opinion of the Court in any trial or review will be binding on all Government bodies and officials" (Constitution, Article 4, clause 5). While permitting departure from precedent, the Court has held that the such opinions are also binding on the Court itself, as indicated by the decision
on the Nature of Precedent and the Scope of the Court's Powers "the binding effect prescribed by the Constitution applies to the Court to the extent that it does not bring the Court's precedent into conflict with the Constitution or with subsequent substantive law." Notably, that decision indicates a heightened standard of review is required and that particular efforts for transparency should be made before departing from precedent (though that was subsequently doubted by the Court's decision
on the Validity of a Previous Ruling).
In relation to this request, it is submitted that there is a serious question as to whether the request is within the Court's jurisdiction, due to the lack of an adequately specified claim of unconstitutionality or illegality. This is highlighted by the number of issues raised by the Moderating Justice. Many of these stem into the area of "resolving ambiguities" that could stem from a holding that the previous ruling was erroneous. However, a jurisdiction to resolve ambiguities no longer subsists and, while the Court clearly can still interpret the law, such can only be constitutionally done where necessary for the purpose of the Court's jurisdiction to review for unconstitutionality or illegality. If it be the case that the opinion at issue or the underlying law could simply be clearer or leaves areas that are open for interpretation, that is not sufficient to found jurisdiction.
For the reasons advanced above, it is submitted that this is not a case where jurisdiction is clear and that it ought therefore be expressly addressed and determined by the Court and that, should the Court find this request in truth to be a matter of being asked to resolve ambiguities in the law, the request should be dismissed on that basis.
The Issues Raised
This section will address the issues raised by the Moderating Justice, though it will be submitted that a number of them are not suitable for resolution in this review, even if the review is within jurisdiction. The issues will be addressed in a different order to that set out by the Moderating Justice, as the answers to some have bearing on others. For ease of reference, they are identified by number:
- What are the limits, if any, to the jurisdictional application of our laws?
- Can a person commit a crime and escape any legal ramifications by leaving the region prior to a criminal case being brought against them?
- Would we try such a person in absentia?
- What safeguards need be in place to avoid a miscarriage of justice if a person is not there to defend themself?
- Do we, as The North Pacific, claim jurisdiction in cases where non-residents have perpetrated a crime against us?
- Would we claim jurisdiction over a case where a resident has committed a crime against an allied region?
- When our Bill of Rights explicitly protects "Nations of The North Pacific" against an unfair and partial judiciary, can this be construed to limiting those protections to only residents of The North Pacific, or should the protections of our Constitution and Bill of Rights follow the same delineations as our jurisdictional claims?
3. and 4. It is submitted that these issues have already been resolved and are not within the scope of this review. The Court's decision
on the Nonparticipation of a Defendant in Civil and Criminal Trials states "In cases where the defendant is unable to participate in trial proceedings, or even select their defense attorney, it would be appropriate for the court to delay the trial until the defendant is able to appear. However, if it can be demonstrated to the court that the defendant is able to participate, but chooses not to do so, it would be appropriate for the court to appoint a defense attorney and continue the trial in their absence. There may be other legal and constitutional ways to handle an absentee defendant." This is a clear statement of the law on this issue and is permissive of trials in the absence of a Defendant. The Court Rules and Procedures, as highlighted by the Petitioner's brief, make provision for this eventuality. None of the prior decision of the Court on these issues nor the Court Rules and Procedures nor any particular trial that has been conducted in line with them are challenged by the Petitioner in this review. For those reasons, it is submitted that the Court should regard these issues as having been determined by its prior decision and should not seek to go behind it.
6. It is submitted this issue is not within the scope of this review. The Legal Code makes clear provision for crimes that are committed by a resident against an allied region. Notably, the crimes of treason and espionage cover nations that have treaties with The North Pacific (Legal Code, Section 1.1, clause 2 and Section 1.2, clause 8). Espionage in fact goes further to cover other regions that have treaties prohibiting espionage but falling short of alliances (Legal Code, Section 1.2, clause 9). Similarly, the off-site property offences are crimes that can be committed against any off-site property, as is apparent from the reference in the case of Crashing to "a forum" or in the case of Spamming to "any off-site property" (Legal Code, Section 1.6, clause 16 and Section 1.8, clause 19); this is in line with those crimes being a clear implementation of the Convention on Off-site Property Security, which aims to protect off-site property generally and to prohibit the acceptance of the destruction thereof, including through assertion of a universal jurisdiction (Convention on Off-site Property Security, Article II). These crimes are not challenged by the review and, it is submitted, they are not within its scope.
5. It is submitted that this issue is not within the scope of this review. The prior opinion of the Court was plainly answering the question "Can a nation be prosecuted for anything other than Treason if they are no longer residing in the region?", the Court's answer must clearly be seen in that context. It is not a statement that a non-resident nation may be tried for any matter, but a statement that formerly resident nations can still be tried for any prescribed crime. That point is particularly clear when regard is had to the fact that it was itself confirming a prior holding by the Court under the previous constitution (
On the Court's Jurisdiction). That previous decision stated "Non-citizens are liable for committing acts in breach of the North Pacific's Code of Laws and may be tried in these Courts if they can be determined a "resident" of this region" and did so in the context of the crime of Treason. The opinion challenged in this review is answering only whether that principle is applicable to crimes other than treason. Consequently, a challenge to it on the basis that it permits the criminalisation of acts or omissions by non-resident nations that were non-resident at the time of those acts is incorrect, as that was not the issue that the Court was concerned with. It may be the cases that if a criminal charge were brought against a non-resident for a matter that is not a specified crime, then the Court would need to decide that issue, however, that is not the holding of the Court being challenged here and is outside the scope of this review.
2. It is submitted that the resolution of this issue is straightforward. The relevant status for a nation that committed a crime while resident but which subsequently left the region is their status at the time the crime was committed. This is the holding of the Court in the decision at issue in this case. It is submitted that it accords logically with the definitions of crimes set out in the Criminal Code, none of which indicate a defence of ceasing to be a resident, nor is it inconsistent with clause 1, which merely prohibits the bringing of a criminal case against a resident for a crime not listed in the Code. The holding does not lead to the infringement of any provision of the Constitution or the Bill of Rights as, even if it were presumed that a non-resident nation does enjoy rights under the Bill of Rights, the most obviously relevant right would be the right not to "be held to answer for a crime in a manner not prescribed by the Constitution or the Legal Code" (Bill of Rights, Article 6), which is satisfied by the Criminal Code's listing of specific crimes and not infringed by the Court's holding that, for those crimes, formerly resident nations may still be tried. There is no unconstitutionality or illegality in that holding.
7. It is submitted that this is outside of the scope of this review. No aspect of the conduct of any particular trial is at issue so there cannot be said to be an act on the part of the Court which amounts to an unfair trial of a non-resident nation, presuming that such a nation does enjoy rights under the Bill of Rights, nor is it contended that there is or would be any policy on the part of the Court which would deny a fair trial to such a nation, again presuming they are entitled to the same. The only policy or act that could be at issue is the Court's holding that formerly resident nations may be tried for crimes while residents, however, that holding does not indicate in any sense that there would be a departure from the approach of the Court to the trial of a resident and, it is submitted, cannot be reviewed solely on the basis of the hypothetical that a Court could in future attempt to do so.
1. For the reasons set out above, it is submitted that the proper answer to this question, insofar as it is one which properly arises for the Court's decision, is that the Court's jurisdiction to try formerly resident nations for acts or omissions while resident is coterminous with the extent to which the Criminal Code defined those acts or omissions as crimes. This does not necessarily mark the outer edge of the Court's jurisdiction, however, as further issues beyond this are not within the scope of this review.
Conclusion
For the reasons set out above, it is submitted that this review should be dismissed because as presently framed it is outside of the scope of the Court's jurisdiction or because the opinion that is the subject of the review is lawful.
