IN THE MATTER FILED BEFORE THE COURT MARCH 7, 2006 -
Mr. Chief Justice and Associate Justices -
I would like to submit a judicial review request regarding the issue of admissibility of classified/secret/unknown intelligence coming from the NPIA, NPA, or other person(s) in matters brought before the Security Council.
To provide some historical background, these issues stemmed from the problems with Fulhead Land and others on s2 many months ago, and I apologize to the Court and to former Chief Justice Grosseschnauzer for not submitting this request in the previous term. As can be remembered, there was a fierce debate over whether the issues regarding FL and others that were brought before the SC at that time were in fact of an emergency nature. Evidence that it was of an emergency nature was currently under the gag rule imposed as the result of an impending trial (the Cathyy trial). This is a second issue that I would ask the Court to look at.
Can intelligence gathered by the NPIA or other body and/or evidence under a Court gag order be used as reasons for security issues to be brought before the SC? Can this be done even if the accused offending party has not yet done anything? Is the SC within its rights to ask to see this intelligence/evidence? If so, how much can the SC legally be shown?
I realize that the facts in the case may have faded to the point that the issue can no longer be properly decided, but these issues are of paramount Constitutional importance. That is, this deals with questions regarding not only secret evidence but also the ability of the SC to make decisions in matters where other governmental bodies may already be involved.
Please note that this is simply a judicial review; as such, no determination of fact will be involved or necessary.
We shall examine each question in turn.
Can intelligence gathered by the NPIA or other body and/or evidence under a Court gag order be used as reasons for security issues to be brought before the SC?
Article III Section 2 Paragraph 2 Clause C:
C - There is to be a North Pacific Intelligence Agency whose duties are to collect and analyze confidential intelligence information for the benefit of the Regional Government and the region as a whole. The Prime Minister shall appoint the leadership of the North Pacific Intelligence Agency after consultation with the personnel of that agency. Any matter concerning the Agency's activities and personnel, except in the case of a criminal prosecution, shall be discussed in confidence without reference in any public record; however, there may be disclosure of confidential information in connection with a criminal or impeachment proceeding. The Prime Minister shall be responsible to the Cabinet and the Regional Assembly for the ongoing oversight of the Agency.
Examination by the Court finds that an intepretation of this clause, specifically
. . . Any matter concerning the Agency's activities and personnel, except in the case of a criminal prosecution, shall be discussed in confidence without reference in any public record; however, there may be disclosure of confidential information in connection with a criminal or impeachment proceeding. . .
, that prevents public disclosure and examination of any evidence used by a government agency would be in plain violation of Article I Section 9 of the Constitution of the North Pacific as it pertains to due process.
Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard,nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of this Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.
Emphasis added by the Court
Therefore, there is no confidentiality protection for evidence that may be submitted for potential action by the Government. As such, the Court finds nothing that would preclude the use of evidence presented by the NPIA to the Security Council in its determinations.
The provisions regarding a gag order are set out in TNP Law 4, Section 1, Paragraph 2; to wit:
. . . Once a criminal charge is brought forth, neither the accuser, the defendant, or any party legally recognized as representing them, may reveal or discuss any details of the charge except in areas where specifically asked to do so by the presiding officer of the trial or a legal appointee of the Court. If discussion about the charge, or subjects related to the charge, is already ongoing at the time that the charge is made, the accuser, the defendant, and any party legally recognized as representing either of them, are forbidden to continue participating in the discussions. That ban shall continue until the case is resolved and closed by the proper legal official, as mandated by this Constitution, The North Pacific Legal Code, or other laws of the Region.
The gag order makes no provision concerning examination and discussion of the trial and its evidence by those parties not specifically mentioned within the passage at hand. The expectation is that, if any member of the Security Council were to find themselves in the role of accuser, defendant, or legal counsel in a case, they would recuse themselves from Security Council determinations on the matter, lest they find themselves in violation of the Legal Code. As such, there is no specific prohibition on the Security Council’s use of such evidence as a body, although there may be individual concerns for the members of the Council in some situations.
Can this be done even if the accused offending party has not yet done anything? Is the SC within its rights to ask to see this intelligence/evidence? If so, how much can the SC legally be shown?
As referenced above, there are no conditional prohibitions upon the Security Council’s use of evidence as a body. The Court does not recognize pure intent as a crime; as such, it would be very difficult to present formal charges against a nation in the absence of any committed or attempted act, and the gag order provisions would not be applicable. There is no limitation to what evidence may be presented to the Security Council; rather, it is the responsibility of the Council to make determinations on what evidence brought before it is germane and appropriate.
As referenced elsewhere, a guest jurist was invited to examine this issue due to potential concerns regarding conflict of interest, as the presiding jurist in this case is a member of the Security Council. His determination is presented here, excerpting only those portions not pertinent to the determination itself.
. . . Concerning NPIA information, the Constitution provides the possibility to disclose information in case of criminal proceedings. It is in the responsibility of the PM to lead the NPIA and therefore to decide when information can or even needs to be disclosed.
Concerning court gag orders those should be binding unless the person in Government Official / SC member and may get into conflict with his oath of office.
In addition, the SC is given extensive - nearly unlimited - authority to act in case of regional security issues and therefore may ask to disclose information. How much information can be disclosed should fall into the responsibility of the PM (for NPIA information) or the Court (for information under gag orders). Officials under oath should be able to judge about the right way. . .
The Court finds itself in broad agreement with the guest jurist*, and, as such, hereby files its findings in the requested matter.
Entered this Twenty-Sixth Day of May, Two Thousand Six;
Byardkuria
Chief Justice of the North Pacific
* mr.gaunt – Regional Assembly member
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