Dissent from the Ruling of the Court of The North Pacific
In regards to the Judicial Inquiry filed by TlomzKrano on Counting Forum Posts
Opinion drafted by Chief Justice Pallaith
I dissent as follows:
This Court was asked to decide an ambiguous part of our legal code, coming down on one side of what is a binary question. There is another binary question this Court ruled on twice that is particularly instructive when considering this case, considered in our prior rulings
On the Vice Delegate’s Voting Rights within the Security Council and
On Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies, which was whether the Vice Delegate, the constitutional chair of the Security Council, had a vote in Security Council matters. We initially determined that the Vice Delegate did have a vote, and later that in fact, the Vice Delegate did not have a vote, at least a constitutional one. Both interpretations were equally valid, because a legitimate ambiguity existed in the law and the Court was asked to resolve it. The problem was in how it was resolved, as the Court asserted a constitutional right that did not exist, and had no legal basis for its decision except to rule by fiat that the Vice Delegate had a vote, because it was plainly obvious to them that that was the case. This formed the basis of the overturning of that case. Like that question, there are two equally valid answers in this case. Unlike that question, the Court has connected its reasoning to constitutional principles. Where we disagree is on how they are applied, and whether there were other circumstances that should lead us to one conclusion over the other. In my view, the Court did not give enough weight to factors that align with the opposite conclusion.
The majority opinion rests on two fundamental conclusions: that the understanding of what the regional forum is means that profile posts must be counted for the purposes of maintaining citizenship; and that the Speaker’s handling of these posts is consistent with the requirements of the Bill of Rights. In order to come to this conclusion, the Court explores the historical context of the original citizenship law, parses the word “post,” and considers the Speaker’s process for verifying posts at length. This analysis, especially regarding the Speaker’s role in the process, did not go far enough. The majority asserts that it could find no compelling reason to deviate from its interpretation or to conclude that the Speaker’s office fell short. Perhaps my conclusions are not compelling, but these considerations are important and should be given voice, particularly in the event they ever apply to a subsequent case. For these reasons, I must dissent.
On the Nature of Forum Posts
This forum has two types of posts, what are commonly referred to as forum posts and profile posts. These types of posts do not work the same, and these differences are not insignificant. In one case there is the traditional forum post, the kind that existed when this law was first written, with any forum user being able to post a thread or on an existing thread in any part of the forum in which they are given access to post. In the other case there is a new area of this forum that was not part of the forum we used to use, a Facebook-style affair where users can post entirely apart from and largely unseen by most casual observers unless they sought out new profile posts or viewed a profile. The first kind increments a user’s post count, and is tracked by the Speaker’s spreadsheet for checking and maintaining citizenship. The second kind leaves no record at all, is not tracked by that spreadsheet, and must be sought out by the Speaker’s office. And if one wants to consider the significance of the meaning of words, profile posts are in their very name a particular kind of post identified differently from a standard forum post. Why is this a distinction if, as the Court asserts, they’re all forum posts?
On the Regional Forum
The majority relies on the fact that the Constitution defines the Regional Forum as the particular website in which it resides. This entire site, they argue, is the Regional Forum. If one were to go to the website on our Constitution,
https://forum.thenorthpacific.org/, there are links to subforums and specific recent posts, laid out in their organization order, places any user would naturally go to in order to engage in the forum’s business. One place that it not prominent, however, are the individual user profiles. Indeed, a casual observer, one not logged into the forum, would not even be able to see these posts when looking. After all, profile posts are impossible to make without a profile, and therefore profiles cannot be seen either. The mistake made by the Speaker’s office that prompted this review was a result of the Speaker not being logged onto his profile, meaning he could not see Fregerson’s profile post that would have spared him the brief loss of citizenship. Just as profile posts are counted differently, profiles themselves are a kind of separate dimension on this forum. They require more work to find, completely separate themselves from the rest of the forum, function differently, and do not as easily promote engagement for the public and citizens alike that the rest of the forum does. This desire to prompt some kind of activity was clear in the Voting Rights Act debate, and is the closest thing to intent that we have for it and why the single post principle was where the Regional Assembly ultimately landed. Profile posts are not fit for this purpose and are clearly an entire class of their own.
The majority is quite concerned that distinguishing zones of the region’s forum in this way would introduce greater uncertainty to the law, and that such a distinction departs from the constitutional definition of what the forum is. This is silly. The forum is clearly identified by the Constitution, and just as we can all understand that a post comes in more than one form, we can all see that a forum can be both a website and an actual physical forum, and that the website can host multiple types of pages, including profile pages, that no one would make the mistake of referring to as a forum. I believe these distinctions matter and are relevant to how officials should handle matters, and the law ought to be clear, as the majority seems to want it to be, in how it addresses these things. I do not believe that forcing these distinctions to be treated in a “one size fits all” matter is the appropriate way to handle such questions, and while such simplicity may be innocent in this case, it does not take much imagination to see where neglecting nuance can quickly go wrong. One only need look at this Court’s checkered past with the law as it pertains to the North Pacific Army to see that.
On the Original Law
The Voting Rights Act proposed by former Delegate r3naissanc3r in 2014 is where the current standard for a single post a month “on the regional forum” was first established. There would have been no discussion of profile posts at this time as they did not exist. When this law was amended in former Delegate Siwale’s 2018 Citizenship Bill, it was amended to add the allowance for posts on the Regional Message Board. This rightfully received the focus of the ensuing debate, even though the bill was proposed on this current forum, and profile posts were now a possibility. Perhaps because the move was fresh and the question had not cropped up, or perhaps because no one thought of this application for the law, the notion of contemplating such posts in the law was not considered. As the majority says, we cannot consider assumed intent, and we cannot know whether either of these authors meant to include or leave out such posts (though we can be reasonably sure in the first instance that such a thing would not have been considered). These debates are not instructive in deciding how to apply intent anyway, as this question was not considered. But intent is not really the point either way this question is answered. In the first instance, this question simply could not exist, and we know the law could not have dealt with this scenario one way or the other, because profile posts were not a thing. In the second instance, the Regional Assembly painstakingly considered expanding the posting requirement to allow Regional Message Board posts, but spent not a single second on forum profiles. The majority does not consider the intent of the Regional Assembly any more than I do in answering this question, because in their view the Regional Assembly wrote a provision that is broad enough to encompass this form of posting as well, and leaves it up to them to tighten it up. My approach is the opposite: the Regional Assembly never contemplated, or was able to contemplate, this question, and so the law that exists cannot include such posting. This is where the ambiguity sits, and why there is a question to resolve, one that for going on 8 years the Regional Assembly has never bothered to tackle, preferring to rely on the Speaker’s office procedure for it.
On the Speaker’s Process
The Speaker’s office was naturally the first place to be confronted with this question, as it is relevant to their daily performance of their duty. A call had to be made, because this was a genuine point of ambiguity. A Speaker made a call a long time ago and subsequent Speakers have followed suit ever since. Since no one bothered to take the matter to the Regional Assembly, and since the only other time it was taken to this Court, it could not be considered, status quo has been maintained ever since. I do not fault the Speaker for making this call, as it was a valid dilemma that had to be resolved in short order. But properly speaking, this was not a call for the Speaker to make in the long term, and it is not a policy that the Speaker can dictate, because, of course, the Speaker cannot dictate policy of this sort. We have repeatedly affirmed that the Speaker’s duties are explicitly performative and that they do not have discretion in carrying them out. There are conditions that must be met, and the Speaker performs their duties according to the parameters of those conditions. When first presented with this question, the Speaker had to decide which of two potential actions, maintaining or removing an affected person’s citizenship, was the appropriate one. Inaction on the part of actors who could properly resolve this ambiguity led to the Speaker adopting this solution as part of its procedure going forward, in effect adopting its own form of citizenship policy.
It is true that the Court strives to give great deference to the Speaker in how it conducts the affairs under its purview, but this should not have been one of them. Such a decision goes beyond the normal or intended scope of the Speaker’s powers. In my view, this is an unfortunate side effect of this question being left unresolved for so long, and while the majority’s opinion renders it moot as it grants legal cover to this interpretation, the question of just how far the Speaker’s discretion can extend when that discretion effectively rewrites policy should have been explored at some sort of length. Instead, the majority asserts that the Speaker did not exercise any discretion with this choice, as they assumed they were applying the law as written and had no other choice. We know that is not true, however, as a deputy speaker attempted to file a request for review posing the very question we have been answering in this case. The majority agrees with me that the Regional Assembly or even this Court must clearly identify the appropriate response, and make this call, but go on to insinuate that administrative action coming down on one side will be an inevitable result if an unambiguous answer is not determined. Even if it wasn’t already obvious that the Speaker affirmatively chose one side over the other when it was not their decision to make, the fact that the Speaker is unknowingly making a choice that is not theirs to make does not make that choice legally permissible. The limits of the law are what they are, and if an accidental overstepping of boundaries is found, it must be properly addressed.
On the Application of the Bill of Rights
The majority relies as well on what the Bill of Rights requires of government officials when executing policy. They assert that profile posts being considered or not considered in a consistent way is sufficient for these purposes. The problem here, of course, is that such a standard is impossible. Every Speaker and deputy are trained in the use of the citizenship spreadsheet, running regular checks and performing their duty of removing citizens who do not meet the requirements based on operating that spreadsheet. Outside of technical errors, the process is the same for every person, and they can go about performing the task in the same way. Due to this ambiguity being confronted many years ago, the Speaker’s office has maintained a process for incorporating profile post checks into the evaluation as well. It is not part of the straightforward spreadsheet process, but requires manual checks by the Speaker or deputies. As has been previously established, profile posts cannot even be seen when logged out of the forum, a factor that is irrelevant in the case of the spreadsheet as logging into the forum is unnecessary for that process.
The fact that the Speaker was unaware of this until the events covered by this review indicate that for the duration of this hybrid checking scheme, many individuals who did not post on the forum proper but had made profile posts may have had their citizenship removed. Anyone who meets the standard forum posting requirement would not need profiles checked, whereas those who do not would need this additional, and fallible, check conducted. The public record is full of instances where ordinary human error enters into the picture, and that is just for those who have the benefit of the spreadsheet when their citizenship is checked. It may be the case that catching those whose profile posts save their citizenship may increase participation and benefit those who would otherwise have lost it on the margins, but it is a lot easier for them to accidentally lose their status despite the Speaker’s process. The two processes are not equal, with one being more prone to error and by its nature harder to track. A more robust spreadsheet or mechanism for counting all posts would likely alleviate this issue, and the fact that this inconsistency exists creates room for some citizens to be in a riskier boat than the rest. It should not be enough that the Speaker always (or always means to) check manually for profile posts, if the act of checking is itself inconsistent across the citizenry.
The majority asserts that the matter of being logged out is not worthy of such consideration, as the Speaker must eventually be logged in to post removals of citizenship. That is certainly true. But if until recently the office was unaware of the invisibility of profile posts when logged out, no member of that office would have been likely to second-guess themselves when making the removal posts and look for profile posts again. And the fact this is now known by the current Speaker does not mean it will always be known. We can assume better training and guides and an attempt to maintain education in the office, but these are not guaranteed nor may they necessarily last. We have to consider the fundamentals of the forum and the basics of the process, and they create a scenario where potentially inconsistent methods of verifying citizenship eligibility may lead to disparate outcomes. The majority also suggests that not being able to see certain subforums when logged out is the same as not being able to see profile posts, as if to suggest that the lack of access is no big deal and even unobjectionable. But it is relevant to whether a less capable or attentive member of the Speaker’s office may overlook something important and treat some citizens differently from others. Seeing certain subforums is not important in confirming whether a citizen’s status is to continue or end, but not seeing profile areas when they are required to be considered by Speaker policy is a blind spot. The majority glosses over this.
Status of Citizenship
Given all of this, I can only insist that profile posts not be considered valid posting for the purposes of the existing citizenship law. This would, of course, mean that any citizen whose status was maintained on this basis would have been improperly allowed to retain their citizenship. It is impossible to know how many only retain their citizenship today because of this policy, nor would it be fair given the Speaker’s office has relied on a long-held practice that all citizens have been made to count on. As the Court has handled this sort of situation previously, there would need to be an allowance for prior practice and an effort to change the practice moving forward. All citizens, including Fregerson, should retain their citizenship maintained on the basis of the old policy. There is no reason to open the door to chaos just because a long-standing practice is found to be in error and in need of correction, when it is simpler to draw this line.
Conclusion
I would have held that posting on forum profiles would not count as posting on the forum under the current legal code, and that the Speaker must cease counting such posts for the purposes of confirming continued citizenship. Furthermore, following our existing precedent regarding applying such orders to practices that stretch back many years and impact an unknowable number of citizens, I would have held that Fregerson’s citizenship would continue to be maintained along with all other citizens who may have improperly retained their citizenship by virtue of having made profile posts, with the Speaker applying these orders to all future citizenship checks.
