Eluvatar

[Sanctaria]

Due to the recent Court Ruling saying that Security Council members are government officials, and considering Article 6.1 (7.1 once the AG Bill is put into it) of the Constitution which tells us that government officials must maintain membership in the Regional Assembly, it is with great regret that I must inform the Regional Assembly that I have removed Eluvatar from the Security Council.

Thank you.

 

[punk d]

[redacted]

 

[Chasmanthe]

Thank you, the notification is appreciated.

I wondered about this now as maintaining RA membership was not previously considered necessary to maintain SC membership, only to join. However, there is another law that overturns that,

Section 5.3: Enforcement
11. Whenever any Council member fails to meet any requirements to maintain their position, the Vice Delegate must warn them, and if the Council member does not come into compliance within eight days of the warning, the Vice Delegate must suspend them.

but, if you're using chapter 6.1 please could you point out the clause as I can't seem to locate it

 

[Sanctaria]

I am aware of what was previously the case however it was brought to my attention that, because of the Court ruling which said the Security Council members were government officials, Eluvatar's lack of RA membership meant he could no longer be on the Security Council.

This is due to Article 6.1 of the Constitution, which trumps the Legal Code:

All government officials must maintain membership in the Regional Assembly.

 

[punk d]

I reread that ruling. The ruling states SC members are voted in to 'office' by the RA. I do not believe that it explicitly states that SC members must also be RA members.

I could be wrong (even though I wrote that opinion) but I don't think that ruling implied that SC members must also be RA members, just that the RA approves SC members and so SC members are subject to recall.

 

[Sanctaria]

The ruling stated that Security Council members are government officials.

The Constitution says all government officials must be members of the Regional Assembly.

I'm confused as to what the problem is.

 

[Grosseschnauzer]

Please quote in context the passages of the court opinion that purports to required ongoing RA membership; I have a feeling that the issue may require the Court to take another look at what it said; and in any event, I have not seen anything that shows that Elu was given notice to come into compliance with the alleged requirement; if that is the case, then removal is premature since the prerequisite steps have to be taken first.

 

[SillyString]

As per the constitution:

All government officials must maintain membership in the Regional Assembly.

As per the court's utterly idiotic which I stated at the time ruling:

Opinion Part 2 - With respect to Security Council members, the court opines that members thereof are government officials as defined by TNP law and also subject to recall

Article 5-4 charges the Security Council with "monitor[ing] the region’s security and report on it to the public". Additionally, members of the Security Council are approved by the entire Regional Assembly (Article 5-2) which signifies that the office of Security Council is not merely a designation resulting from length of service, having a nation within TNP, or the like but a position that must be approved by the RA with specific duties performed therein. Therefore, the Court finds that Security Council members are government officials because they are approved by the Regional Assembly, are tasked with monitoring the region's security, and also form a line of succession in an event the delegate and Vice-Delegate positions are vacated.

I thank the vice delegate for his timely notification to the RA.

 

[punk d]

The ruling stated that Security Council members are government officials.

The Constitution says all government officials must be members of the Regional Assembly.

I'm confused as to what the problem is.

The SC have an 'out' though specified in the constitution from an RA requirement.

2. The Regional Assembly may exempt a person from Regional Assembly membership or any requirements by a two-thirds majority vote, and may terminate an exemption by a two-thirds majority vote.

So this means people who are not part of the RA can be exempted from clause 1 of this section which says RA membership is required. This clause doesn't state when the exemption can be issued, most likely it would occur before one entered the SC, but it seems like an exemption could be made after as well.

 

[Sanctaria]

Please quote in context the passages of the court opinion that purports to required ongoing RA membership; I have a feeling that the issue may require the Court to take another look at what it said; and in any event, I have not seen anything that shows that Elu was given notice to come into compliance with the alleged requirement; if that is the case, then removal is premature since the prerequisite steps have to be taken first.

The Court ruling said nothing about RA membership - the court ruling said that Security Council members were government officials.

The Constitution says that "all government officials must maintain membership in the Regional Assembly". Precedence is that government officials are removed from their office immediately following the lapse in their RA membership. Elu never was removed and when I was doing updating following my election to office, I found that I had to do this.

This is the Court ruling and I've bolded the relevant part:

In Opinion Part 1, the Court found that government officials are subject to the recall provisions described within the Bill of Rights and having concluded that Security Council members are also government officials, the Court finds that Security Council members are also subject to the recall process and upholds any prior, present, or future recall votes administered in accordance with relevant recall guidelines and laws.

I really do not see the problem here (other than the ruling which I really don't like).

 

[Sanctaria]

2. The Regional Assembly may exempt a person from Regional Assembly membership or any requirements by a two-thirds majority vote, and may terminate an exemption by a two-thirds majority vote.

So this means people who are not part of the RA can be exempted from clause 1 of this section which says RA membership is required. This clause doesn't state when the exemption can be issued, most likely it would occur before one entered the SC, but it seems like an exemption could be made after as well.

This was considered, yes, but as you said it would most likely occur before one entered the Security Council, which was my (and some other SC members) reading of it.

 

[SillyString]

2. The Regional Assembly may exempt a person from Regional Assembly membership or any requirements by a two-thirds majority vote, and may terminate an exemption by a two-thirds majority vote.

So this means people who are not part of the RA can be exempted from clause 1 of this section which says RA membership is required. This clause doesn't state when the exemption can be issued, most likely it would occur before one entered the SC, but it seems like an exemption could be made after as well.

Yes, and shouldn't that be a damn good indication that SC members are not government officials, and should not have been declared as such?

Unfortunately for us, the court chose not to make a logical ruling, which has necessitated Sanc's action.

 

[punk d]

This is interesting. When I made wrote the ruling on the SC, in one draft I included the exemption clause and explained it. I didn't include it because I didn't feel it necessary to include the exemption since it's already in the Constitution.

The RA requirement for government officials is in direct opposition to the exemption also part of the Constitution. If that clause was within the Legal code it would be considered unconstitutional.

Relying upon the clause of the Constitution which states that government officials must be RA members ignores the section that exempts some SC members. That's faulty, imo, and certainly not the intention of the ruling I issued. The ruling stated SC members are gov officials. Clause 1 of the SC section of the Constitution says they must be RA members. However, Clause 2 says they can be exempted. It's logical that the exemption would occur when the application was made. However, logic doesn't necessarily mean it would be illegal to exempt an SC member after the fact. So I think it's possible that we (the RA) could do it, but to me it should be initiated by the SC member. Seeing as Elu is not around, doesn't seem like a good idea to exempt Elu.

But, the Constitution is clear that the SC can be exempted from being a part of the RA.

EDIT: And because the RA can exempt SC members from being members of the RA doesn't mean that the SC aren't government officials. Instead, it means that the meaning of 'government officials' can be expanded beyond RA members if the RA allows it to be for certain SC members.

 

[Sanctaria]

Punk, Elu never applied for an exemption, if he did and got it, I wouldn't have removed him.

 

[SillyString]

No, Punk, that doesn't make any sense.

The constitution states that all government officials must be RA members.

The constitution states that the RA may exempt SC applicants from being RA members.

The only possible logical conclusion is that SC members are not government officials. And yet the court ruled that they are, thereby forcing Sanc to take this action.

 

[punk d]

Punk, Elu never applied for an exemption, if he did and got it, I wouldn't have removed him.

Sanc, we agree.


Silly - I think you're losing the logic in that an exemption that requires 2/3rds of the RA just to enact makes SC members non-government officials.

Clause 1 requires SC members to be RA members.

1. Any person who is a member of the Regional Assembly and meets any endorsement and influence requirements determined by law may apply to become a member of the Security Council.

If there was no clause 2, you are probably not arguing that the SC members are not government officials. But there is a clause 2. That clause enables the RA to exempt any requirement to enter the SC which must includes the RA membership.

If we use your argument then, only the SC members who are currently RA members are government officials, but the SC members who are not (none at the moment I believe) who would have had to have passed an exemption and presumably a normal application vote, are not 'government officials'. I believe that doesn't take the context of the law in complete consideration.

 

[SillyString]

You are quite incorrect. I disagree strenuously now, as I did then, with the ruling that SC members are GOs. This is irrelevant of that particular clause, which merely illustrates one of the many differences between SC members and GOs.

The bit you cited is a requirement for SC applicants and not members; the clause following it allows for an exemption to that membership requirement.

Strictly speaking, in the context of the court's ruling, the RA may exempt SC applicants from the RA membership requirement up until they join the SC, at which point they become GOs and may no longer be exempted.

By making the ruling it did, the court has rendered one of the clauses of the constitution inoperable. Sadly, I do not have standing to challenge that ruling.

 

[punk d]

If you wish to challenge that ruling and wish to write a brief on it, I'll submit it, since I do have standing.

 

[Great Bights Mum]

While you're doing that, maybe we should look at the bit that says government officials can only hold one office. If we make SC members GOs then they can't be on the court, in the delegate's seat, in the cabinet etc. Do we really want that? I know that it was never the intention.

 

[punk d]

GBM - The ruling that has been quoted in this thread included this note on the question you're asking:

NOTE: The court also discussed whether to include a ruling on whether or not Security Council members can run for office if they are government officials. In this ruling, the Court did not make a determination on that point since it was not specifically asked to address that point. However, the Court does recommend that someone put forth a request for review so that the Court can resolve that issue based upon the ruling issued today.
It should be noted that this court believes that Security Council members, while government officials, are able to hold office within one of the three other branches. Again, this court did not rule on this matter but does believe a ruling on this matter should be made and strongly urges a citizen, RA member or, other affected party to put forth a review request to resolve this matter.

 

[Grosseschnauzer]

In looking at Clause 2 of Article 5 of the Constitution in context:

2. The Regional Assembly may exempt a person from Regional Assembly membership or any requirements by a two-thirds majority vote, and may terminate an exemption by a two-thirds majority vote.

there is noting in that language that limits the timing of the exemption vote to before a person is admitted to the Security Council. The original intent, and this is clear from the wording, was that a Security Council member may request to be exempted from the R.A. membership requirement at any time after admission to the S.C. And an exemption could be withdrawn by a vote of the R.A. at any time after it is granted.

Inasmuch as I am considering seeking such an exemption in the context of my return from the extended leave of absence, this is a relevant point to me, since it is necessary that I prioritize any ongoing involvement with NS, and I have already stated that I intend to prioritize in favor of my duties as admin and on the S.C.

Second issue as to Eluvatar is that from my reading of Chapter 5 of the Legal Code, section 5.3, clause 11, the Vice Delegate is required to:

11. Whenever any Council member fails to meet any requirements to maintain their position, the Vice Delegate must warn them, and if the Council member does not come into compliance within eight days of the warning, the Vice Delegate must suspend them.

As far as I can tell, no warning has been made to Eluvater, and such a warning and the associated grace period is a pre-requisite to a removal of an S.C. member from Council membership. Based on the directive in Section 5.4 Clause 20:

20. The Security Council Law is to be applied in a reasonable manner.

I don't see any other reasonable interpretation other than providing Eluvatar with notice and an opportunity to be heard (as required by Clause 9 of the Bill of Rights):

9. 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 the 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.

Given the limitations imposed by the provision of the Bill of Rights, and the change effected by the court decision without prior notice to Eluvatar, I believe the Vice Delegate acted in violation of Eluvatar's protected rights in removing him without notice and opportunity to respond as required by the above-quoted provision of the Legal Code.

 

[Crushing Our Enemies]

It would appear to me that if SC members are government officials under the constitution, and if the constitution says that all government officials have to maintain RA membership, then anything in the legal code that provides for SC members not being in the RA is unconstitutional (including the sanity clause, which is the clearest sign to me that that court decision is awful).

 

[Sanctaria]

A few things:

1. If Eluvatar had applied for an exemption, and received it, I wouldn't have removed him. He didn't, so I don't see the relevance of that.

2. His RA membership lapsed quite a long time ago - indeed, well over 8 days ago, which was during the time of Kiwi's stewardship of the Security Council. Perhaps Kiwi warned him, I do not know, but...

3. ...even if he did not, that clause in the Legal Code comes right after an entire section devoted to "Requirements". If they applied to Eluvatar, I would have warned him based on them. I'm also removing him because he's not in the RA, not suspending him because of the requirements listed in the Legal Code, so I'm not sure that can apply.

4. It has long been the practice that when a government official lost RA status while still in office, they were immediately removed from that office. Funk being the latest one. I was following precedence.

Eluvatar has popped in now and then, the latest being the 17th, so if he feels unfairly treated I can only apologise and ask his forgiveness, but I was following the law as best I could. I'm hope he understands.

 

[punk d]

It would appear to me that if SC members are government officials under the constitution, and if the constitution says that all government officials have to maintain RA membership, then anything in the legal code that provides for SC members not being in the RA is unconstitutional (including the sanity clause, which is the clearest sign to me that that court decision is awful).

The Constitution allows for an SC member not to be a member of the RA. The Legal Code simply follows this exemption.


EDIT: And my assumption was that some notice was sent to Elu.

 

[Crushing Our Enemies]

The Constitution allows for an SC member not to be a member of the RA.

It also prohibits them from not being members of the RA, simultaneously, because it says that all government officials must be RA members. This is a contradiction that your ruling created, and did not resolve.

 

[punk d]

The Constitution allows for an SC member not to be a member of the RA.

It also prohibits them from not being members of the RA, simultaneously, because it says that all government officials must be RA members. This is a contradiction that your ruling created, and did not resolve.

It's not a contradiction to say - Everyone needs to wear socks except some of the cool kids.

Because the cool kids don't wear socks doesn't mean they aren't part of 'everyone'. It means they get a pass. And our Constitution allows for a 'pass' for some members of the government, namely some Security Council members.

And that is what the Constitution says. If anyone believes it is saying anything else, please submit a request for review and settle the matter. I'm not a justice so you won't be able to blame me for the ruling but don't be so sure the justices will not read the law as it is written.

 

[Crushing Our Enemies]

No, but it is a contradiction to say "All the cool kids need to wear socks AND some of the cool kids don't need to wear socks." I'll explicate the metaphor. The constitution says that all government officials have to be RA members, and it goes on to say that some government officials (SC members with RA-granted exemptions) don't have to be RA members. All clauses of the constitution are equally binding - that is to say, no portion of the constitution is subordinate to another portion. So essentially what your decision has created is this: "All X are Y. Some X are not Y." This is a logical contradiction that cannot be resolved without another court decision.

 

[punk d]

No, but it is a contradiction to say "All the cool kids need to wear socks AND some of the cool kids don't need to wear socks." I'll explicate the metaphor. The constitution says that all government officials have to be RA members, and it goes on to say that some government officials (SC members with RA-granted exemptions) don't have to be RA members. All clauses of the constitution are equally binding - that is to say, no portion of the constitution is subordinate to another portion. So essentially what your decision has created is this: "All X are Y. Some X are not Y." This is a logical contradiction that cannot be resolved without another court decision.

You are basically saying that the constitution CANNOT say

1. All citizens must have a nation in The North Pacific
2. An exception to the preceding clause would be for nations who are part of The North Pacific Army.

If you look at the constitution in a vacuum, 2 contradicts 1, but if you look at it in context it seems pretty easy that 1 is the blanket statement and 2 is the exception to the blanket statement. Heck, if the voters of this particular clause didn't want the exemption it wouldn't have been included.

Leave aside the 'government official' ruling for a moment. The text of the constitution says something you believe it cannot say when you say "All clauses of the constitution are equally binding - that is to say, no portion of the constitution is subordinate to another portion."

1. Any person who is a member of the Regional Assembly and meets any endorsement and influence requirements determined by law may apply to become a member of the Security Council.
2. The Regional Assembly may exempt a person from Regional Assembly membership or any requirements by a two-thirds majority vote, and may terminate an exemption by a two-thirds majority vote.

Is 1 subordinate to 2...is 2 subordinate to one 1? 1 says a person needs to be a RA member to be a member of the SC? 2 says a person can be exempted from this, but wait 1 says a person has to be in the RA!?!!?!? Which clause wins?

I find it a bit silly that we can't read 1 and 2 and see that 1 creates the statute and 2 provides an exemption to the statute which does not invalidate the statute contained in 1. Simply, clause 2 allows SC members to not be RA members, no more no less.

 

[Grosseschnauzer]

CoE, there is a well known principle of interpreting legal documents or contracts that the documents have to be construed as a whole. and that all of the provisions of the document have to be given meaning. Where there is a general rule, and a provision that could be read as an exception, then each provision has to be read that way. They're not in contradiction, they can be harmonized and can be applied that way.

I think the ruling that is under discussion has some very unfortunate problematic elements that create more problems than they solved, and ignore other things that shouldn't have been ignored.

In the instant case concerning Eluvatar, it is not enough to assume that his right to notice and opportunity to be heard under Clause 9 of the Bill of Rights was complied with; anyone in TNP should be insisting that there be proof that it was complied with. This is reinforced by the constitutional and legal code provisions that deal with notice to an SC member before having their good standing on the SC withdrawn. The current language does not preclude that process being used for removal founded up the R.A. membership issue, and in fact, I personally believe the Bill of Rights require it. And I am bothered by the action taken without regard to the independently binding requirements of the Bill of Rights.

 

[Crushing Our Enemies]

Ok, yeah, forget that line of argument. I wasn't thinking that one through.

What *is* true is that several provisions of the legal code regarding SC members appear to be unconstitutional. Like the 8 day grace period for SC members who leave the RA, and the sanity clause, which would, on its face, allow SC members to be treated like they are not government officials...cause that's the only sane way to treat them.

 

[mcmasterdonia]

Eluvatar himself was surprised that he was still on the Security Council. I don't think he would have any problems rejoining the SC should he return to being involved in our forum community. I would be glad to have him back.

I have no doubt that if his services were required he would return to the game at an instant. There are other high influential nations that are not members of the Security Council who will also assist when required.

 

[SillyString]

I think the ruling that is under discussion has some very unfortunate problematic elements that create more problems than they solved, and ignore other things that shouldn't have been ignored.

You don't say.

If not for this ruling, there wouldn't be an issue - SC members would not be government officials, and would therefore not be subject to the requirement that government officials maintain membership in the RA.

However, given that the court ruled that they are government officials, Sanc did not have an option in removing Eluvatar.

 

[Iro]

If you'll excuse me, why doesn't someone simply appeal to the Court about Elu's removal and then they can issue an uncontradictory ruling?... oh, wait! I totally forgot! You have to be involved in the case to do that! Well, why don't we just have elu do it?

 

[Democratic Donkeys]

Yes, do we know which assumed identity he is here under right now?

 

[SillyString]

If I had to guess, Zyvetlongname is suspiciously similar to Zemnaya Svoboda, in that they both start with a Z...

Iro, I feel quite certain that Eluvatar has zero interest in petitioning the court over his removal.

 

[punk d]

Just as those who complain about the 'government officials' ruling have zero interest in pursuing a legal remedy to their continual whining about the ruling.

But I suspect that what has been true for the last 100+ days will continue to be the case for then next how-many-ever days...these same people will whine and complain and do nothing.

I will again say that just because Clause A requires ALL to be X, if Clause B makes an exception to this, it does not mean that the entire system has fallen upon itself.

Grosse makes a very good point and I apologize for the my assumption about the notice to Eluvatar. From Sanc's notice above it appears that this notice was not sent. It also appears that Sanc was following the law as best he could. However,

11. Whenever any Council member fails to meet any requirements to maintain their position, the Vice Delegate must warn them, and if the Council member does not come into compliance within eight days of the warning, the Vice Delegate must suspend them.

I would like to request our Vice Delegate unsuspend SC member, Eluvatar, and follow the protocol contained within this clause. If not, I'd like to hear some very valid reasons why this is not being followed. And citing a ruling that stated SC members are 'government officials' is not going to cut it. That ruling did not invalidate the exemption for SC members nor did it invalidate any other section of the Legal Code where notice was required given to an SC member out of compliance.

I want to stress a few things:
1 - The government cannot assume one ruling which did not discuss or talk about particular sections of the Constitution or Legal Code has any effect on another part of the Constitution or Legal Code.
2 - If a requirement notice is in the law, and nothing in the law exempts the government from such a requirement, I believe that not performing this duty is opposite of how government should go about its business and opposite the expectation RA members and citizens have of their government officials.
3 - Again - for anyone wishing to challenge the ruling made by myself, Gracius Maximus, and Hileville I will submit the review myself should you fear it will be rejected because you have no standing.

 

[SillyString]

Just as those who complain about the 'government officials' ruling have zero interest in pursuing a legal remedy to their continual whining about the ruling.

But I suspect that what has been true for the last 100+ days will continue to be the case for then next how-many-ever days...these same people will whine and complain and do nothing.

There is a legal remedy in the works. Sadly, it will not help us here.

I will again say that just because Clause A requires ALL to be X, if Clause B makes an exception to this, it does not mean that the entire system has fallen upon itself.

Correct. But this is not that situation. The exemption from RA membership follows immediately after the clause indicating that is a requirement; it is clearly a modification of the former (and as a note, it is a modification of the requirement to be an RA member at the time of application). It does not follow immediately after the clause requiring all government officials to be members of the RA, and is not even in the same section - to say that it exists to modify that requirement has no basis in truth.

It is one thing to say, "X must be Y, unless exempted." It is quite another thing to say "All X must be Y", and then several clauses later, "At the time when A wishes to become B, A must be Y, unless exempted from being Y", and then toss in a court opinion saying "All B are X". The latter is the situation we are dealing with, and it is wholly inaccurate to say that B are exempted from being Y.

11. Whenever any Council member fails to meet any requirements to maintain their position, the Vice Delegate must warn them, and if the Council member does not come into compliance within eight days of the warning, the Vice Delegate must suspend them.

I would like to request our Vice Delegate unsuspend SC member, Eluvatar, and follow the protocol contained within this clause. If not, I'd like to hear some very valid reasons why this is not being followed. And citing a ruling that stated SC members are 'government officials' is not going to cut it. That ruling did not invalidate the exemption for SC members nor did it invalidate any other section of the Legal Code where notice was required given to an SC member out of compliance.

Sanc did not suspend Eluvatar, he removed him. The clause handling suspension procedure is not operative.

I want to stress a few things:
1 - The government cannot assume one ruling which did not discuss or talk about particular sections of the Constitution or Legal Code has any effect on another part of the Constitution or Legal Code.

Um... Yes, yes it can. You ruled that SC members are government officials; they are therefore subject to all of the clauses dealing with government officials. If it was not your intention that SC members should be treated as government officials, you should not have ruled that they are government officials.

 

[Sanctaria]

I have not suspended Eluvatar using that clause. I have removed him using another clause, one in the Constitution which is superior to the Legal Code.

 

[punk d]

It does not follow immediately after the clause requiring all government officials to be members of the RA, and is not even in the same section - to say that it exists to modify that requirement has no basis in truth.

This is a straw man, because I didn't say this. Take a look at what I quoted. I did not quote the section of the Constitution that states all gov officials must be RA members. I quoted the section that requires SC members to be members of the RA and then I quoted the exemption. So you're arguing against an argument I didn't make.

The intent of the ruling was clear, Silly. SC members are government officials, but these particular government officials can be exempted from RA membership. To me, it is not that complicated. My fellow justices at the time also agreed.

It is one thing to say, "X must be Y, unless exempted." It is quite another thing to say "All X must be Y", and then several clauses later, "At the time when A wishes to become B, A must be Y, unless exempted from being Y", and then toss in a court opinion saying "All B are X". The latter is the situation we are dealing with, and it is wholly inaccurate to say that B are exempted from being Y.

The Constitution says B 'can' (technically 'may') be exempted from being 'Y'. Would you like to argue that it doesn't? I'm all ears.

Lastly, if you say there are legal remedies being pursued by those who have qualms with the particular ruling that has come up within this thread, good; I won't hold my breath for them, but I hope they appear reasonably soon.

 

[Flemingovia]

If it would help, I could create a forum group called "cool kids" so that we know who can wear socks and who cannot...