While I concur in the judgement of the Court, I dissent in order to state my views on the underlying facts and issues I find exist in this matter. Apparently the parties do not appear to dispute the primary facts.
Tresville initially sought reinstatement on April 20 2008, at 03:31 PM GMT, but requested that he be treated as a citizen of The North Pacific without RA membership. He subsequently decided to seek reinstatement as a member of the Assembly on August 5 2008, at 06:00 AM GMT. Under Section 3 of Law 28, the suspension of his status as a member of the Assembly is lifted once the required oath is posted.
I note that while not filed as a submission to the Court, some have raised the question of what "suspension" means under Law 28. I believe the word connotes a status that restricts the individual from exercising any benefits or privileges of membership in the Assembly, but does not connote removal from membership in the Assembly.
Rhindon Blade applied for Assembly membership on August 26 2008, at12:05 AM GMT. The time of his acceptsnce into the Assembly is not shown, but there is a reference in the application thread to his acceptsnce no later than September 1 2008, at 05:54 AM GMT.
There is no provision of the Constitution or the Legal Code that sets the specific date for a nominations period in the designated months for elections under Law 26, and under Law 26, the elections cycle begins on the first day of the designated month(s). The only reference to nominations is in Article I, Section 3, Clause 7, which provices that “[c]andidates for these elected officials must be members of the Assembly for 30 days before nominations begin.”
The Speaker opened a nominations thread on September 1 2008, at 04:39 AM GMT.
I take judicial notice that The North Pacific has been in a state of war with a foreign region, a status which has constitutional implication in the matter before us.
While the actual facts are not in dispute, the application of those facts to the legal principles in place under the organic documents that govern The North Pacific is not as clear. (The "organic documents" is a shorthand way of rewferring to the Bill of Rights, the Constitution, and the Legal Code.)
Article I, Section 3, Clause 7, of the Constitution provides that “Candidates for these elected officials [Delegate, Vice Delegate, Speaker, Council of Lower Officials] must be members of the Assembly for 30 days before nominations begin. The only other provision, in the Legal Code, concerning the time frame of an election cycle is contained in Law 26, which sets the months during which an election cycle is to take place. Nowhere in our organic documents is anything stated about the time period when nominations take place, or how long nominations may be made, in the election cycle.
Under Article V, Section 2, we are obliged as a Court:
2. All matters of judicial review to examine the constitutionality of Government policies, actions, and laws are to be brought before the full three-member Judiciary.
3. The official opinions crafted as a result of judicial review are to be binding upon all agents, officers, agencies, and Government bodies of TNP. If a policy, action, or law is deemed unconstitutional, any evidence collected via these unconstitutional means is inadmissible in the Assembly or in any TNP court of law.
We are obliged to view all proceedings in this Court in the light of the provisions of the Bill of Rights; in this instance, Clauses 10 and 11:
10. Each Nation entitled to a vote in any manner under the fundamental laws of the region is entitled to the equal treatment and protection of that Nation's right to vote.
11. No governmental authority of the region has the power to suspend or disregard this Constitution or the Legal Code In the event of an actual emergency, the governmental authorities of the region, with the express consent of the Nations of the region or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of this Constitution.
While it is undisputed that as of the time nominations actually opened, neither Tresville nor Rhindon Blade had been members of the Assembly in good standing for 30 days, it is also undisputed that at the time Tresville posted his reinstatement oath on August 5, no election calendar had been established that contained a statement of the nominations period for the elections to be held in September of 2008. Thus, Tresville had no notice that his reinstatement as a member of the Assembly under Law 28 would take place within 30 days before nominations opened. In this respect, he was deprived of the protection afforded under portions of Clause 9 of the Bill of Rights, namely that:
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.
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In my view, the failure of the Assembly to enact clear rules for the conduct of elections, including a complete election calendar and the failure of the Delegate to timely designate Election Commissioners and charge their duties to conduct the election, is the primary cause of the inadvertent failure for Tresville to have been reinstated in the Assembly more than 30 days prior to nomination. (Reference Constitution, Article II, Section 3, Clause 6; and Article III, Section 1.) I have been unable to ascertain under what provisions of our organic law the Speaker had the legal authority to open the nominations thread when he did since that would be a function of executive function, which are the responsibility of the Delegate and his appointees.
Rhindon Blade, however, presents a different result. While his application to join the Assembly took place on 26 August, the earliest reference in the records of his acceptance into the Assembly is on 1 September, approximately one hour after the Speaker opened a nominations thread. No matter the other problems surrounding the election process, the failure of Rhindon Blade to meet the 30 day requirement is inescapable and conclusively established.
We now turn to the question of a remedy in general, and the particulae remedy sought by Joshua.
While the Court “is invested with the powers and obligation to investigate the constitutionality of Government policies, actions, and laws,” we are not vested with the power to creating a remedy. Further, the language of the Constitution does not give the Court the power to provide an advisory opinion as to whether a proposed action may be constitutional. The remedy to the questions currounding the eligibility of Tresville to stand as a candidate for Delegate, which were not determined until after the election results were announced, is a political question that must be determined by the Delegate or his appointees, the Assembly (including any action that may be initiated by the Council of Lower Officials), or both.
I am not convinced that Tresville’s election was unconstitutional or that he can be found ineligible in this election because of the denial of due process rendered to Tresville in not having prior notice of the election schedule so that he would have an opportunity to assure his eligibility under the 30-day provision, and the consequential inequity rendered to the right to vote held by all nations as protected under the Bill of Rights.
On the other hand, Rhindon Blade was not admitted to the Assembly until after nominations had actually opened. There are no concieveable set of facts that I can find that legitimates a candidacy under those circumstances. However, as with Tresville, the remedy for Rhindon Blade’s situation is a political question that must be determined by the Delegate or his appointees, or by the Assembly (including any action that may be initiated by the Council of Lower Officials), or both.
In both instances, once a remedy is formally determined by the Delegate, the Assembly, (including any action that may be initiated by the Council of Lower Officials) or both, then this Court can legitimately determine whether that action is specifically constitutional.
Accordingly, I would deny the petition, and return this matter to the Regional Assembly to resolve in such manner as it sees fits, or allow the Delegate or his designated Election Commissioners to address the matter.
