Judicial Review: Appointment of Interim Vice Delgate

Govindia

Govindia

TNPer
This is the Judicial Review, requested by Attorney General Eluvatar, on whether the Delegate has the legal authority to appoint an interim Vice Delegate prior to holding a special election.

The only relevant parties that shall be allowed to post here are the Attorney General and the Delegate, as well as any witnesses or other counsel they wish to bring. Other posts will be dealt with in accordance with Forum Administration law and TNP law.

Mr. Eluvatar, you may make your case here. Please also clarify if you are going to be pressing charges against anyone as well.
 
The Attorney General's office does not intend to press charges against any person, be they Delegate, Pasargad, or forum administrator, at this time.

The case is simple. Does the North Pacific Constitution, or legal code for that matter, grant any power to appoint an interim or acting Vice Delegate to the Delegate?

The answer is no. One can do a simple search for each of these terms and find no mention of such a power. Indeed, the only related power is the power of the Security Council, with the consent of the Assembly, to establish a line of succession beyond the Vice Delegate.

What purpose, I ask, of such a line of succession might there be?

Firstly, and most clearly, it specifies that should the Delegate and Vice Delegate both disappear, the first available nation from this line of succession is permitted to take the reins and seize the Delegacy, pending a special election. But the Constitution needs a Vice Delegate, if only to chair the Security Council, so clearly the next available nation after that would have to step up and chair it. It is clear then, that the way to temporarily select a Vice Delegate, pending election, is to draw from a list established by the Security Council of Security Council members.

Currently, it is my understanding that the Security Council consists of Pasargad, Great Bights Mum, Grosseschnauzer, and Moany Old Gits. This attorney also happens to be an applicant to rejoin the Security Council. The Constitution gives some instruction to the Security Council on the subject of how they are to decide this ranking. I look forward to seeing it followed.
 
The Constitution requires that any request for judicial review be heard from the full three judge panel of the Court. See Article IV, Section 2, Clause 2. ("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.")

Other than Associate Justice Govindia, it is not clear that the other members of the Court who will constitute the three-judge panel are yet present for participation in this judicial review proceeding. (Since the possibility that a temporary judicial officer might have to replace one of the Justices for this proceeding under existing Court rules, the Delegate is entitled to know the composition of the panel before this proceeding continues.)

Second, It is unfortunately necessary for me to challenge the authority of attorney Eluvatar to act as Attorney General in this proceeding. His right to the office of Attorney General lapsed when he allowed himself to be removed from the Regional Assembly (see Law 31, Section 1, Clause 1) and it is not clear that the Court ever appointed any successor to the office of Attorney General at the time of that vacancy being created by law, or that a special election was ever held to fill the office of Attorney General once Eluvatar became ineligible under Law 31. (See Law 31, Section 3, Clause 1. "Should the position for the Attorney General become vacant for any reason, the Chief Justice shall name a replacement for the interim until a special election is held under Section Three of Law 26, or until the next regular judicial election."). The fact that he was recently readmitted to the Regional Assembly does not change the fact that he became ineligible to remain as acting Attorney General before his readmission to the Regional Assembly, that no subsequent temporary appointment of an Attorney General was ever made by the Court, nor was a special election ever held after Eluvatar lost his RA membership, and his right to hold the office of Attorney General on a temporary basis.

Third, there are clear Constitutional provisions supporting the Delegate's authority to make a temporary appointment pending a special election that are a clear analog to the Court's power to appoint a temporary Attorney General pending a special election.

The Delegate will be pleased to prepare a more complete response to a request for judicial review once the Court is properly constituted, there is a properly appointed acting Attorney General, and once there is a judicial review proceeding that has been properly filed by an entitled officer or group of RA members before a constituted three-judge panel of the Court.
 
sorry for this you guys seem to have a lot of spare time .gross said he will arrange for election for VD ASAP .Pls be patient if needed we will vote on this in Security Council .
 
It is certain that the North Pacific Constitution requires a matter of Judicial Review to be heard before the full 3-justice court panel. However, I don't see any reason why the honorable Delegate would need to withhold legal arguments in favor of his position. What parts of the Constitution are these that grant such a power?

Secondly, whether or not I happen to be the Attorney General is irrelevant to this proceeding. The only rule for who can request review is:

Constitution:
3. No sitting justice shall fire a request for judicial review.
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Thirdly, there is no law that states that the Attorney General must maintain membership in the Assembly. The constitution does state this for executive officers appointed by the Delegate:

Constitution:
3. The Delegate is responsible to ensure the good governance of the Executive Branch of TNP and may appoint and remove at will executive officers from the Assembly to serve at his pleasure.. Executive officers must maintain membership in the Assembly.
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The Attorney General, however, is not an executive officer.

TNP Law 31:
To better serve the region as Chief Prosecutor to prosecute any abuse of power to the fullest extent, the Regional Assembly declares the office of Attorney General be an elected office, to be elected at the same time as the Justices of the Court of The North Pacific in the manner provided by Section Two of Law 26.

Section 1:
1) To serve as Attorney General, one must be a member of the Regional Assembly for thirty consecutive days prior to candidacy.
2) One must not have been convicted of any prior charge.

Section 2:
1) The Attorney General is to serve as Chief Prosecutor to all cases brought before the Court of the North Pacific.
2) The Attorney General is to work within the rules adopted by the Court.
3) The Attorney General shall serve for six months.

Section 3:
1) Should the position for the Attorney General become vacant for any reason, the Chief Justice shall name a replacement for the interim until a special election is held under Section Three of Law 26, or until the next regular judicial election.
2) It is the duty of the Attorney General to see to completion any proceeding they are prosecuting. If for any reason, should the original Attorney General be unable to complete a pending case, then the interim or elected successor Attorney General shall take over as prosecutor and complete the pending proceedings.
3) Consistent with paragraph 4 of Section 2 of Article IV of the Constitution, the Attorney General may request a presiding judicial officer to issue an emergency order enjoining an actual or intended Executive action pending prompt further proceedings before the Court. A majority of the three-member panel of the Court may thereafter temporarily enjoin an actual or intended Executive action pending final disposition of the matter either by the Court, or otherwise by an expedited vote of the Regional Assembly within parameters proposed in the request by the Attorney General as set by a Court order under such terms as deemed appropriate under Clause 11 of the Bill of Rights.
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The Attorney General is specified as as having candidacy eligibility requirements, but it is not stated that he must "maintain" RA membership.

I will note that I did not attempt to use Clause 3, although I could have, perhaps because I did not think this was worth emergency action. Thankfully, my decision also makes the question of whether I am Attorney General or merely prosecutor of JAL moot. This is not a request for emergency judicial action, but for normal review by the full court.

Finally, an Attorney General is not necessary for judicial review to take place.
 
The only reason I was offering to hear this review was to make things quicker.

ANd it's not up to me to set up a special election. That's up to the Election Commissioner and the Delegate.
 
The Delegate of TNP hereby submits his response to the acting Attorney General's request for judicial review.

Relevant provisions of the Governing Documents of The North Pacific concerning the Delegate’s powers as to the circumstance where there has been a failure by the RA to elect a Vice Delegate.

Constitution of The North Pacific
Article III
Section 1
1. The Delegate shall serve as TNP WA Delegate and as Head of State.
2. The Delegate is authorized to style his own title.
3. The Delegate is responsible to ensure the good governance of the Executive Branch of TNP and may appoint and remove at will executive officers from the Assembly to serve at his pleasure. Executive officers must maintain membership in the Assembly.
5. The Delegate is responsible for the security of the region, and is charged with the use of regional controls to eject and ban nations from the region in accordance with the laws of TNP.
8. In any instance where the Delegate is absent, incapacitated, unwilling or unable to carry out his duties the Vice Delegate shall exercise the powers of the Delegate.
9. The duty of the Vice Delegate is to have the second highest endorsement count. The Delegate shall exercise discretion in banning nations whose endorsement count exceeds that of the Vice-Delegate.
Article IV
Section 2
[/b]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. [/b]

The Bill of Rights
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.

The primary, if not the overriding responsibility of the Delegate is to protect The North Pacific. Under the current security defense scheme the Vice Delegate is the chair of the Security Council./ In that role, the Vice Delegate is not only charged with maintaining the second highest number of endorsements, he is also charges with the oversight responsibility to make sure that the elected members of the Security Council maintain both a sufficient level of influence and be within a range of endorsements as prescribed under Law 30.

When there is a vacancy in the office of Vice Delegate, even temporarily, these security functions are not in place, and the system defined in TNP law cannot properly operate. Neither the Constitution, nor the Legal Code has provided a method to fill that position during a vacancy even on a temporary basis. (On the other hand, both the Court of The North Pacific and the Regional Assembly have adopted rules to provide for the appointment of temporary judicial officers (for the Court) and both a Speaker Pro Tempore, and even an Acting Speaker for the Regional Assembly.

Leaving the office vacant for weeks until a special election is held (or even multiple special election cycles) is detrimental to regional security. It provides no means to administer and enforce the endorsement and influence requirements for the members of the Council, (and thereby showing a range of demarcation as to other nations in the region collecting endorsements. It creates a awkward security structure that might compel the Delegate to use up his influence to remove players who achieve too many endorsements vis-a-vis the Delegate, the Vice Delegate, and those nations sitting on the Security Council in accordance with Law 30. Such circumstances threaten the region, and as a consequence under Clause 11 of the Bill of Rights, presents a security emergency where the prudent course is to assure that the Security Council has a chair in place while a special election is conducted and an elected Vice Delegate is chosen. Thus, an appointment by the Delegate of an acting Vice Delegate for the interim pending a special election that chooses a new Vice Delegate, provides a limited carefully designed remedy consistent with the language of Clause 11 of the Bill of Rights, as well as the obligation of the Delegate to insure the security of The North Pacific.

Even prior to my appointment of Pasargad as an acting Vice Delegate until an elected Vice Delegate is chosen by the Regional Assembly as provided in Law 26, this same scenario took place when Blackshear, then an elected Vice Delegate succeeded to the Delegate’s office due to a vacancy by resignation. A special election was called to elect a new Delegate. At the same time, I was asked to serve, in the interim, as an acting Vice Delegate; I was an elected member of the Security Council and an elected Chief Justice. I took a leave of absence from the Court. Once Blackshear was elected Delegate, an special election was called for the election of a Vice Delegate, and my tenure as an acting Vice Delegate continued until that special election resulted in a new elected Vice Delegate. All told I had to serve for about a month as an Acting Vice Delegate before a new elected Vice Delegate could take office.

In the current situation, hopefully, there will be no need for the acting Vice Delegate to remain in that position for more than one special election cycle. The nation serving as acting Vice Delegate is a member of the Security Council. While that is not a requirement to be Vice Delegate, choosing a sitting active member of the Security Council does facilitate having a temporary Vice Delegate who can more easily maintain the required endorsement levels for the office vis-a-vis the Delegate. This then is more conductive to the maintenance of regional security and such an temporary appointment by the Delegate is consistent with the Delegate’s constitutional responsibility to maintain regional security.

Accordingly, like Blackshear at the beginning of his tenure as Delegate early this year, I believe that such an appointment is not only constitutionally valid , it is sanctioned by Clause 11 of the Bill of Rights.
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The Vice Delegate is not an executive officer.

The Security Council is explicitly empowered to establish a line of succession. Why reach to clause eleven when there's a perfectly constitutional path?

The election of the Vice Delegate was explicitly established by the Regional Assembly during the Crimson Civil War to make clear that the Vice Delegate is independent of the Delegate.

Allowing the Delegate to appoint a Vice Delegate under any circumstances undermines the intent of the Vice Delegate position as a focus for resistance against any hypothetical coup!
 
It is not intended to create a line of succession. Neither Blackshear nor I were dealing with that as the SC itself has to do it.

Keep in mind that while I served as an acting interim VD until there was a special election, there was a special election, and I was duly elected to the office at that time.

The risk of having it vacant for a short period is a greater security risk. It would be amiss for any Delegate to not take action at all on an interim temporary basis because of the duty to keep the region secure. The RA is still free to promptly elect a Vice Delegate in the special election; the election law is very clear on directing the organization of a special election on a prompt basis. If and when the RA decides to provide for a statutory method for such circumstances, or the SC adopts a rule under its constitutionally granted rule making power to provide for a acting chair or chair pro tempore (as the RA has already adopted), there doesn't seem to be any other mechanism in the short term to assure that someone is in that chair at all times. (That is not something new, I said as much some weeks ago before the election cycle last month.
Finally, as I mentioned before I am following precedent in the temporary appointment. Let's just get a V.D. elected in the special election, and then the SC or the RA can fashion a less ad hoc solution to the problem. Having a line of succession wouldn't address the problem of an absent but not vacant chair, so the need to provide for a temporary chair, whether there is or is not a vacancy still exists.
 
The Constitution requires a three judge panel, my wishes are irrelevant on that issue. But I'm not the one who filed the judicial review request.
 
Reviews issued by single justices can, have been, and will be disregarded. Just as FALCONKATS cannot unilaterally repeal the 15 day law, you, Govindia, cannot review the Delegate's actions alone.
 
In view of the election and installation of Felasia as Vice Delegate in the just concluded special election under Law 26, I suggest to the Court that this proceeding is moot, and should be dismissed.
 
As there has been no decision regarding this from the previous Court, the incoming Court will issue a judicial review by the end of the week. Thank you for your patience.
 
It has come to my attention that the two newly elected associate justices having previously been appointed and installed as Assistant Delegates in the current executive administration, have a conflict of interst and under the Court's rules of Judicial Administratio, require the appointment of temporary judicial officers as replacements in this matter.
 
Dalimbar:
As there has been no decision regarding this from the previous Court, the incoming Court will issue a judicial review by the end of the week. Thank you for your patience.
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Out of curiosity, whatever happened to this?
 
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