[Shelved] Empowering Proactive Officeholding

[Cretox]

Currently, the constitution bars people from simultaneously serving as a government official in multiple branches of government, but allows for exceptions to that provision to be established in the legal code (such exceptions exist for election commissioners, prosecutors, and advisors to the delegate). This restriction serves a valid purpose: it primarily helps to prevent conflicts of interest while also helping to stop a same few people from holding numerous positions and thereby blocking others from serving in the government.

However, there are times when this restriction doesn't make much sense, and only serves to deny opportunities to active members of the region, especially newer members, and force people to weigh whether the tradeoff of being locked out of other positions is worth it when considering pursuing positions such as justice (a justice may hear few or no cases in a term, yet still be locked out of serving as deputy speaker, for example).

The original version of this bill added justices to the list of positions excepted from the constitutional branch restriction. I didn't like that approach, partly because it's messy (at that point, why have restrictions at all?) and partly because there are situations where that exception would be unwise to have (should a justice also potentially be a minister?). The version that went to vote (and failed) was a constitutional amendment that eliminated the restriction altogether. I can understand people's concerns that eliminating the restriction altogether could cause problems and lead to people being denied positions due to others already holding multiple concurrent ones.

My original intention was to go back to the legal code exception version of this bill, but after giving it some thought, I think a better solution would be to implement a waiver system similar to the Boston Amendment's process for allowing residents to serve as government officials in certain situations. This way, the RA would have a way in whether we think a certain arrangement is acceptable, and how many people serve across branches at one time can naturally adjust based on the region's available talent pool and activity level. "Serving in multiple branches" can mean vastly different things based on the specific context, and the RA should have some flexibility in deciding what context is acceptable and what isn't.

The current version of this bill would amend the legal code with a process by which the RA could allow someone to bypass the branch restriction for a specific government official by majority vote. These exemptions are only valid for continuous service in that one position, and the RA may revoke them by majority vote. The language is also in line with the constitution's recently added provisions allowing residents to serve as government officials under certain conditions.

1. A new Section 4.8 titled "Special Circumstances and Exceptions" will be added to the Legal Code:

Section 4.8: Special Circumstances and Exceptions
40. The following offices are exempt from the constitutional restriction on simultaneously holding government official positions in more than one of the executive, legislative, or judicial categories:

• Prosecutors;
• Election Commissioners; and
• Advisors to the Delegate.

41. The Regional Assembly may, by majority vote, exempt any resident from the constitutional restriction on simultaneously holding government official positions in more than one of the executive, legislative, or judicial categories for the purposes of their appointment or election to a given office. These exemptions do not apply to subsequent appointment or election to that same office, and may be revoked by majority vote of the Regional Assembly.

2. Clauses 3.3.13, 4.3.12, and 7.1.3 will be removed from the Legal Code.

No markup for this version, since nothing is being edited, only added or removed.

Spoiler: Expanded Legal Code Exceptions Version (1)

1. Clause 10 of Section 3.2 "Appointment of Hearing Officers" of the Legal Code will be amended as follows:

10. The Court must hold a vote on whether to recuse a Justice or Hearing Officer when publicly requested by the prosecution, defense, or petitioner in any matter before the Court. Should the vote fail, the Regional Assembly may recuse the Justice or Hearing Officer by majority vote.

2. A new Section 4.8 titled "Special Circumstances and Exceptions" will be added to the Legal Code:

Section 4.8: Special Circumstances and Exceptions
40. The following offices are exempt from constitutional restrictions on simultaneously serving in government official provisions in more than one of the executive, legislative, or judicial categories:

• Court Justices, any officials appointed by them, Hearing Officers, and prosecutors,
• Election Commissioners, and
• Advisors to the Delegate.

3. Clauses 3.3.13, 4.3.12, and 7.1.3 will be removed from the Legal Code.

4. All parts of the Legal Code will be renumbered appropriately.

Spoiler: Removing branch restrictions altogether constitutional amendment version (2)

1. Clause 6.13 will be removed from the Constitution of The North Pacific.

2. Clause 10 of Section 3.2 "Appointment of Hearing Officers" of the Legal Code of The North Pacific will be amended as follows:

10. The Court must hold a vote on whether to recuse a Justice or Hearing Officer when publicly requested by the prosecution, defense, or petitioner in any matter before the Court. Should the vote fail, the Regional Assembly may recuse the Justice or Hearing Officer by majority vote.

3. Clause 3.3.13 of the Legal Code will be amended as follows:

13. Any citizen may be appointed as a prosecutor.

4. Clause 4.3.12 of the Legal Code will be amended as follows:

12. Any citizen may be appointed to the Election Commission.

5. Clause 7.1.3 of the Legal Code will be amended as follows:

3. Advisors to the Delegate are government officials appointed by the Delegate who serve only to advise the Delegate.

6. All parts of the Constitution and Legal Code will be renumbered appropriately.

7. No portion of this bill will take effect unless all portions take effect.

 

[Dreadton]

The provision you are talking about is 6.13 which is different then the prohibition under 6.12.

6:13 No person may simultaneously serve in government official positions in more than one of the executive, legislative, or judicial categories. Exceptions to this provision may be established by law.

6.12 12. No person may simultaneously serve in more than one constitutionally-mandated elected office. (1. Constitutionally-mandated elected officials are the Delegate, Vice Delegate, Speaker, and Justices.)


Justices are not only Government officials, its a position that is Constitutionally mandated elected office. what you are doing here will require you to remove the Justices from section 6.1 in order for them to be able to use the exemption in 6.13

 

[Just a Lore]

Interesting idea honestly I could be convinced either way with a good enough argument but I lean for it.

I would suggest this might be a thing you would package with a minor reform to the recusal mechanism though since it would be actively introducing people with more active conflicts of interests into the court.

Currently a justice can only be forcefully recused by an agreement of the other two justices, but say 2 Cabinet ministers get on the court and refuse to recuse themselves, they are sitting in front of a case regarding the delegate. There is no current way to force a recusal short of going to the RA and making a case for recalling them. Because even in the case of an appeal there is no mechanism that could force them to recuse themselves from that either.

Could bake in an expedited recusal vote to the RA in the same manor as a rejected citizenship application. Defendant/Affected Party in an R4R requests recusal on xyz, Justice refuses for abc reason and it gets kicked to the RA.

 

[Just a Lore]

The provision you are talking about is 6.13 which is different then the prohibition under 6.12.

6:13 No person may simultaneously serve in government official positions in more than one of the executive, legislative, or judicial categories. Exceptions to this provision may be established by law.

6.12 12. No person may simultaneously serve in more than one constitutionally-mandated elected office. (1. Constitutionally-mandated elected officials are the Delegate, Vice Delegate, Speaker, and Justices.)


Justices are not only Government officials, its a position that is Constitutionally mandated elected office. what you are doing here will require you to remove the Justices from section 6.1 in order for them to be able to use the exemption in 6.13

Sorry for the double post but this was posted while I was writing. 6.12 is strict and narrow you would not need to remove them from it's effect, it only effects constitutional mandated offices. What is being proposed would effect only Government Officials like Minister, Deputy Speakers and etc. Changing it so far to allow Delegates and Speakers on the court is something I don't think anyone wants.

 

[Cretox]

I would suggest this might be a thing you would package with a minor reform to the recusal mechanism though since it would be actively introducing people with more active conflicts of interests into the court.

Currently a justice can only be forcefully recused by an agreement of the other two justices, but say 2 Cabinet ministers get on the court and refuse to recuse themselves, they are sitting in front of a case regarding the delegate. There is no current way to force a recusal short of going to the RA and making a case for recalling them. Because even in the case of an appeal there is no mechanism that could force them to recuse themselves from that either.

Could bake in an expedited recusal vote to the RA in the same manor as a rejected citizenship application. Defendant/Affected Party in an R4R requests recusal on xyz, Justice refuses for abc reason and it gets kicked to the RA.

This is a good idea. I added such a provision to clause 3.2.10- it says Regional Assembly in general, not the requesting party specifically, because I don't see why it has to be limited to the requesting party. A concern could be that the court gets bogged down with frivolous recusal motions hitting the RA, but we don't really get frivolous recalls either and the speaker can just shut them down if they do happen.

Another position unnecessarily affected by the branch restrictions is the Gameside Advocates (why should helping out with the RMB bar someone from being a deputy speaker or on the court), but the GAs aren't technically a position in the legal code. So... would it make any sense to just turn this into a constitutional amendment and get rid of branch restrictions altogether? We still wouldn't have delegates on the court or anything silly like that because of the elected office limit, but deputy speakers would be able to also be ministers and a lead GA could be a temporary hearing officer. I think it's a question worth asking. What are people's thoughts on that? I mean, deputy ministers already aren't subject to restrictions by virtue of being appointed by ministers- they're not even in the law at all. And we already have numerous important positions exempted from the branch restrictions to the point where it's questionable what their impact is anyway.

 

[Fregerson]

Agreed with LL's argument above about the need for strengthening the recusal vote system. Though while we are at it, I forsee that this might make the use of recusals and appointment of THOs more frequent, so how would we try to speed up that entire process? I was thinking along the lines of electing a bench of Justices but only requiring 3 to preside over a case, but I don't know if that is asking too much & how a proper wording may look like

 

[Cretox]

Version 2: this would now simply get rid of the restriction on holding non-elected offices in multiple branches. Honestly, with how many exceptions we currently have to that clause, it's arguable how much this would actually do except open up more opportunities to people and make the law cleaner.

Agreed with LL's argument above about the need for strengthening the recusal vote system. Though while we are at it, I forsee that this might make the use of recusals and appointment of THOs more frequent, so how would we try to speed up that entire process? I was thinking along the lines of electing a bench of Justices but only requiring 3 to preside over a case, but I don't know if that is asking too much & how a proper wording may look like

Agreed regarding the recusal system. Does the current version work in that respect? As for the judicial change... I think that something like reforming the court system is really best left for another bill.

I'm not entirely sure why the legal code specifies that "any citizen" may be appointed as a prosecutor or EC when they're government officials and therefore must be citizens by default. Is it a criminal sentencing thing?

 

[Hulldom]

I think this definitely helps with clarity here. I do question one thing though, and perhaps it's just "am missing it", what's the mechanism whereby a failure to recuse could be challenged by the RA? Would there need to be an in-built system for a citizen to appeal (like in the legislation) or would it just be automatic upon failure without any presumption of "someone needs to say they're uncomfortable with a failure to recuse by [X justice]"?

Edit 1: Grammar, first sentence should have been a question and was not.
Edit 2: Clarification in the second sentence to be a bit more clear as to what I'm asking.

 

[Cretox]

I think this definitely helps with clarity here. I do question one thing though, and perhaps it's just "am missing it", what's the mechanism whereby a failure to recuse could be challenged by the RA? Would there need to be an in-built system for a citizen to appeal (like in the legislation) or would it just be automatic upon failure without any presumption of "someone needs to say they're uncomfortable with a failure to recuse by [X justice]"?

If a court recusal vote fails, any citizen may bring a motion for the RA to recuse, but it's not mandatory. It's the same system used elsewhere in the legal code ("the Council may, by majority vote, request that the Regional Assembly vote on removing that Council member" and "The Regional Assembly may overturn a previous decision to uphold the rejection of an applicant by majority vote," for example). The court vote failing is simply the condition for the RA recusal vote to be possible.

 

[Cretox]

I think I'm not going to mess with the "any citizen" stuff unless there's a good reason to remove it, especially since I don't understand why it's in the law in the first place. It would just be a superficial change anyway.

Does anyone have any more comments on this?

 

[Cretox]

I move this for a vote. Given that about a week has passed since last comment on this, I request that formal debate be shortened- not by too much, maybe just by a day or two in case anyone has any eleventh-hour comments.

 

[Fregerson]

I move this for a vote. Given that about a week has passed since last comment on this, I request that formal debate be shortened- not by too much, maybe just by a day or two in case anyone has any eleventh-hour comments.

The motion for a vote is noted. Formal Debate has begun and will end in 3 days, ending at (time=1649662560) (your forum time). Voting will then begin for another 5 days.

 

[Cretox]

This is now at vote for the next 5 days. Voting will end at (time=1650157800). This thread may still be used for discussion.

 

[Pallaith]

Folks who are voting against this - is it a conviction that people shouldn’t serve in multiple branches? Is it concern with the new language for the recusing of justices? I’m just curious since as seems to be the new norm, no one voting against really bothered to engage during the debate to indicate their feelings about this on the merits.

I will admit that when I said out loud “the Speaker can be a minister” it did seem kind of odd, mostly because that’s never been how it is. But…could it be? Why not?

I actually struggled a bit more with the justice recusal thing, but I imagine in practice that RA option won’t really be a big thing. I’m generally inclined to support this but I would like to hear from those opposed.

 

[Sil Dorsett]

Folks who are voting against this - is it a conviction that people shouldn’t serve in multiple branches?

For me, this is the reason. I didn't really have a debate-worthy reason why, which is why I didn't address it here.

I suppose it's just the concept of separation of powers, and how the three branches are supposed to be serving to check and balance each other, to keep the government from being a unitary power. I don't see that being as effective by allowing people to cross over.

 

[Comfed]

It’s not like there’s a problem with finding people to take positions. I worry that excessive crossover could cause some people to hold onto many positions at once and create a lack of openings for other people.

I might suggest an amended prohibiting elected officials from holding multiple (elected or unelected) government official positions at once.

 

[Cretox]

I actually struggled a bit more with the justice recusal thing, but I imagine in practice that RA option won’t really be a big thing. I’m generally inclined to support this but I would like to hear from those opposed.

I figured the same. It's not like we have frivolous (or really any) recalls either despite any citizen theoretically being able to start one. That's what a recusal effectively is anyway- a temporary recall.

For me, this is the reason. I didn't really have a debate-worthy reason why, which is why I didn't address it here.

That's definitely a debate-worthy reason!

I suppose it's just the concept of separation of powers, and how the three branches are supposed to be serving to check and balance each other, to keep the government from being a unitary power. I don't see that being as effective by allowing people to cross over.

My counterarguments are that the ability of each branch to serve as a check on the others won't be compromised so long as the elected officials in charge of each branch cannot be in charge of others (which won't change) and so long as there are solid accountability measures in place to prevent abuse of power (which we have plenty of, with this amendment adding another), and that there's already so much crossing over without the government being compromised that this amendment largely serves to formalize what we already have. The people running the region's elections can be in any branch and are appointed by the delegate. The region's security apparatus can serve in any other position. Deputy Ministers can serve in any other (elected or unelected) position with no restrictions despite being roughly equivalent to Deputy Speakers, who can't. Deputy Ministers may have some authority over executive policy, much like ministers do, but the buck always stops with the delegate and the RA. If we don't have rampant abuse or corruption now, we have measures in place to prevent such things, and the people actually setting policy in each branch can't also set policy in other branches, what's the harm in giving people more opportunities to serve the region?

I might suggest an amended prohibiting elected officials from holding multiple (elected or unelected) government official positions at once.

The original purpose of this amendment was to allow justices to serve in other positions. If we have ways to prevent corruption and hold people accountable (which we do, and which this amendment expands in the case of justices), and if decisions in each branch are ultimately made by people who cannot make ultimate decisions in other branches (which this amendment doesn't change), then why should individuals be denied opportunities to serve the region? Why should someone be punished for say running for justice, especially if they're a newer member of the region and might not have anything to do all term in a fundamentally reactive position? What's the harm in allowing them to also be a deputy speaker (who's accountable to the elected speaker and the RA) or a minister (who's accountable to the delegate and the RA, and who can be forcibly recused from cases by the latter should this amendment pass)? Why should we unnecessarily limit our talent pool?

Edit: I guess what I'm trying to say with this textwall is it may help me understand people's concerns if there's a specific bad situation this amendment would allow that our system won't be able to handle.

 

[Cretox]

This motion has failed to achieve the requisite 2/3rds majority support to pass. A voting breakdown can be found here.

 

[Cretox]

After giving a bit of thought, I decided not to go back to the previous version of this bill, which only amended the legal code to expand the number of excepted positions (it felt messy and a little slimy to revert to a version that did essentially the same thing but with more words and a lower pass threshold).

Instead, this new version would allow the RA to grant specific exemptions to the constitutional branch restriction by majority vote. These exemptions would only be valid for one period of service in one specific office, and would be revocable by a majority RA vote. This would allow for the RA to actively allow promising members of the government to serve the region in more ways and account for potential conflicts of interest depending on each individual situation. A justice wishing to also be a deputy speaker is obviously a bit different from a speaker or justice wishing to also be a minister, after all.

I also removed the expanded justice recusal provision. It doesn't really fit the scope of this version of the bill anymore and would be best served by standalone legislation.

 

[Zyvetskistaahn]

A question on how you envisage this working.

Suppose someone is a Justice and they want to be Deputy Speaker too, so they get an exemption in these words “The Regional Assembly exempts Xyvetskistaahn from the requirement constitutional restriction on simultaneously holding government official positions in more than one of the executive, legislative, or judicial categories for the purpose of their election as Justice”. This person, later in their term as Justice, is offered a position as Minister for Foreign Affairs, so they resign as Deputy Speaker and join the executive.

My sense is that this works on the proposal as you have it at the moment but it doesn’t seem to me like how it ought to work. If the approval is ad hoc, then it should be for each time someone wants to have an office in a different branch. In the example I give in particular, it may well be that the Assembly would readily approve being a Deputy Speaker but not being a Minister (looking at the earlier discussion) but the person has gotten around that by getting the exemption in relation to being a Justice rather than being Deputy Speaker.

Would you be inclined to try to “solve” this (if you see it as something to be solved) or just leave it to the Assembly being vigilant about that sort of thing in future?

 

[Tinhampton]

Why do you believe that your proposed Article 4.8.41 of the Legal Code is legal when the Legal Code may not overwrite the Constitution?

 

[Comfed]

Why do you believe that your proposed Article 4.8.41 of the Legal Code is legal when the Legal Code may not overwrite the Constitution?

The Constitution allows for that specific provision to be overturned by law:

Article 6
[...]
13. No person may simultaneously serve in government official positions in more than one of the executive, legislative, or judicial categories. Exceptions to this provision may be established by law.

Edit: all of the positions exempted in Cretox's draft except for Advisors to the Delegate are already exempted by the Legal Code.