Request for Review: Election Commissioner Vacancy

[Darcania]

1. What law, government policy, or action (taken by a government official) do you request that the Court review?

The Election Commission for the March 2017 Judicial Election have failed to post their oaths of office. As well, the office of the Election Commission is now vacant, as the appointed commissioners have failed to post within seven days of their appointment. Nevertheless, the election is ongoing, with the appointed election commissioners commissioning the election.

2. What portions of the Constitution, Bill of Rights, Legal Code, or other legal document do you believe has been violated by the above? How so?

1. All government officials will take the Oath of Office below before assuming their role within the government of The North Pacific.
2. All government officials will be required to take the Oath of Office within one week of their election, as certified by the Election Commissioner; appointment, as publicly announced; or confirmation, as verified by a member of the Speaker's Office. The taking of the Oath constitutes assumption of the office. Failure to post the oath within the allotted time will result in the office being considered vacant, to be filled in accordance with all laws governing elections, appointments, or confirmations, as is appropriate for the office in question.

As the appointed election commissioners never took their oath, they never assumed their role as election commissioners, and yet they ran the election nevertheless, violating clause 1 above. As well, as the office is now vacant, they have no power to run the election, as they are not election commissioners, according to clause 2 above.

3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?

No

4. Please establish your standing by detailing how you, personally, have been adversely affected. If you are requesting a review of a governmental action, you must include how any rights or freedoms of yours have been violated. If you are submitting this request in your capacity as the Attorney General or their designee, please note that here instead.

I am the Attorney General.

5. Do you have any further information you wish to submit to the Court with your request?

As this could potentially affect the election, I request that current Justices who are running for re-election recuse themselves, and that any appointed THOs are not also running for election for AG or Justice.

As well, while I see no real harm that has occurred as a result of this, I would like to set precedent for situations such as this, where appointed election commissioners forget to post their respective Oaths of Office, as I currently see no precedent or procedure established in the current Court Rulings for this situation.

 

[Abbey]

Of course, I recuse myself.

 

[Crushing Our Enemies]

I will recuse myself as well.

However, for the record, I would like to note that failing to recuse myself would probably result in so much damage to my electoral chances that staying on the panel would likely not result in a net gain in my interests. Hmph.

 

[SillyString]

This request for review is accepted. I will serve as Moderating Justice. I have named Bootsie as one of the THOs for this request, and am searching for a second. Interested parties should post in the relevant thread. Nobody running in the current election will be eligible for selection as a THO.

Edit: Anybody interested in submitting a brief may do so starting now. Once we have a full court, I will post a formal deadline. Given the immediacy of the topic of this review, the deadline will likely be shortened from the default 5-day period, so I suggest not delaying if you intend to make a submission.

 

[Darcania]

I apologize for the wait, but I would like to quickly note that I have finished a draft for a brief and will be posting it later tonight, after work and after checking it for any necessary revisions. (edit: and after some sleep)

 

[SillyString]

Noted, thank you Darcania.

Gracius Maximus will serve as the other THO on this matter.

 

[Darcania]

Thank you, Your Honor. My apologies again for the wait.

Before I begin, I would like to cite once more the clauses of the Legal Code at the center of this Request for Review for convenience.

1. All government officials will take the Oath of Office below before assuming their role within the government of The North Pacific.

I, [forum username], do hereby solemnly swear that during my term as [government position], I will uphold the ideals of Democracy, Freedom, and Justice of The Region of The North Pacific. I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner. I will act only in the best interests of The North Pacific, not influenced by personal gain or any outside force, and within the restraints of my legally granted power. As such, I hereby take up the office of [government position], with all the powers, rights, and responsibilities held therein.

2. All government officials will be required to take the Oath of Office within one week of their election, as certified by the Election Commissioner; appointment, as publicly announced; or confirmation, as verified by a member of the Speaker's Office. The taking of the Oath constitutes assumption of the office. Failure to post the oath within the allotted time will result in the office being considered vacant, to be filled in accordance with all laws governing elections, appointments, or confirmations, as is appropriate for the office in question.

To begin with, a question has been raised by a concerned citizen, and may be raised in the course of this Request for Review, on whether or not Election Commissioners are legally considered government officials. A request for overruling any previous rulings on the subject may also accompany any such brief. I therefore would like to quickly establish that Election Commissioners are legally considered government officials before moving on to the main body of this brief. I offer the following arguments that Election Commissioners are, in fact, legally considered government officials.

My apologies for the long-winded argument; I wish to end this line of reasoning as thoroughly and quickly as possible, due to the ongoing election. For the sake of convenience, I have placed my argument that Election Commissioners are legally considered government officials in spoiler tags, and kept the main body of this brief outside of the spoiler tags.

Spoiler: Argument that Election Commissioners are legally considered Government Officials

I will begin with the Constitution's definition of government officials.

2. Government officials are the constitutionally-mandated elected officials, any officials appointed by them as permitted by law, and members of the Security Council.

It thus needs to be established that the Election Commissioners are appointed by constitutionally-mandated elected officials, as permitted by the Legal Code. The Constitution and Legal Code establish these in these two clauses.

1. Constitutionally-mandated elected officials are the Delegate, Vice Delegate, Speaker, Justices, and Attorney General.

18. A minimum of two Election Commissioners will be appointed by the Delegate . . . If an appointment of Election Commissioners has not been made by that time, the Vice Delegate shall promptly make the appointment. . . .

Therefore, if Election Commissioners are officials in the first place, they are government officials. As it turns out, though, I have no need to establish this; the preceding clauses, combined with following clauses from the Constitution and the Legal Code, imply directly that Election Commissioners are government officials.

10. No person may simultaneously serve in government official positions in more than one of the executive, legislative, or judicial categories. Exceptions to this provision may be established by law.

As it stands, there is in fact an exception to this provision established in the Legal Code for election commissioners.

18. A minimum of two Election Commissioners will be appointed by the Delegate . . . citizens serving as government officials are not excluded from appointments under this clause.

As an exception was specifically established by the Legal Code, surely, then, it is reasonable to infer that Election Commissioners are legally considered government officials.

Just in case the strong implication is not enough to prove this, however, the Court has previously ruled on the matter of whether Election Commissioners constitute a "governmental authority" in a ruling in regards to the Judicial Inquiry filed by Mall on the restarting of the Vice Delegate election.

The Court believes that the Electoral Commission constitutes a "governmental authority" for the purposes of Article 9 of the Bill of Rights, thus its actions are subject to the sufficient prior notice standard required by that Article.

For reference, here is the full text of Article 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.

Now, for the sake of argument, let us say that Election Commissioners are not government officials, and thus do not need to post their oath of office. For this, I cite the following clause from the Legal Code.

23. "Gross Misconduct" is defined as the violation of an individual's legally mandated sworn oath, either willfully or through negligence.

By ruling that Election Commissioners are not government officials, and thus do not have the associated legally mandated sworn oath, the ridiculous result would be that an Election Commissioner cannot be charged with Gross Misconduct for misfeasance, malfeasance, or nonfeasance, as (s)he would not be in violation of his/her legally mandated sworn oath.

Such a ruling would also remove the requirement that Election Commissioners be Citizens, which would mean that, potentially, they would essentially be immune to Gross Misconduct entirely, as they could become Election Commissioners without taking any legally mandated sworn oath whatsoever.

I therefore argue that the above would be in violation of Article 9 of the Bill of Rights, quoted just above, which by a ruling of the Court the Election Commissioners are covered by.

This would violate that Article by removing a key part of accountability for governmental authorities, namely the ability to indict Election Commissioners for misfeasance, whereby they fail to execute their duties due to their personal opinions; malfeasance, whereby they fail to execute their duties in accordance with the law; or nonfeasance, whereby they fail to execute their duties to the fullest of their abilities; all as defined in an advisory opinion of the Court of the North Pacific. Due to the fact that Election Commissioners run elections, a vital part of The North Pacific's democracy, it would also remove a key part of ensuring that the Election Commissioners operate on the fundamental principle of democracy.

I would also like to point out the following. I cite the following from the Request for Review Template:

1. What law, government policy, or action (taken by a government official) do you request that the Court review?

(Emphasis added.)

I argue, then, that by accepting this Request for Review for an action, specifically, running the Election without an Oath of Office, taken by the Election Commissioners, the Court has already implicitly ruled that Election Commissioners are government officials.

Finally, there is a smoking gun in all this, namely the Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by Abstain on the definition of Government Officials. In this ruling is the following quote.

With respect to Election Commissioners, the Court opines that members thereof are government officials and charges all future appointees to take the oath of office taken by all government officials

At this point it should be plainly obvious that Election Commissioners are, in fact, government officials, and are thus, under the Legal Code Section 4.2, clause 1, quoted above, and the ruling in regards to Abstain's inquiry, also quoted above, required to post an Oath of Office before assuming their role as Election Commissioner.

Now that I have, in my view, established the requirement for an Oath of Office, I therefore move on to the main body of this brief.

There are two separate, yet similar, situations that I request the Court review:

1. The appointed Election Commissioners run the election despite having taken no Oaths of Office, but have not yet vacated the office under the Legal Code Section 4.1, clause 2.
2. The appointed Election Commissioners run the election despite having taken no Oaths of Office and having vacated the office under the Legal Code Section 4.1, clause 2.

As there has been no harm caused by the lack of an Oath of Office during the course of this election, and as the current Election Commissioners have been re-appointed and taken their Oaths of Office, I request that the Court allow the running election to run its course as it is, and instead simply set a precedent / procedure for future elections where the appointed Election Commissioners fail to post their Oaths of Office.

To begin with, I'd like to start with a look a look at the Legal Code Section 4.4.

18. A minimum of two Election Commissioners will be appointed by the Delegate to oversee the candidacy declaration and election processes at least one week before the beginning of the month in which the election is to be held. If an appointment of Election Commissioners has not been made by that time, the Vice Delegate shall promptly make the appointment. . . .

For this election, the Election Commissioners were appointed by the Delegate at (time=1488221442), two days before the beginning of the election cycle.

I ask that the Court take into consideration the above when formulating a ruling, as a full week or more to notice the mistake on the part of the Election Commissioners would provide either A) time for the Election Commissioners to notice their mistake, or B) time for the appointment to lapse, rendering the office vacant and allowing for another appointment, with a strong implicit reminder to post their Oaths of Office immediately.

As a side note, I notice that the law declares that the Delegate will appoint the Election Commissioners at least one week before the beginning of the election cycle, and that the Vice Delegate will promptly appoint Election Commissioners otherwise. I therefore ask the Court to also rule, for future elections, whether the Delegate appointing Election Commissioners after this point, including when the election cycle is already underway, is legally valid or not. Again, though, I urge the Court to leave this current election as-is and render a ruling for future elections instead.

Something else to keep in mind when formulating a ruling is whether there are potential alternatives, besides the Legal Code Section 1.8 clause 23, to oversee the Election Commissioners in case they commit misfeasance, malfeasance, or nonfeasance.

In this case, the following clauses may be such alternatives.

5. The Regional Assembly may remove a government official from office by a two-thirds majority vote.

In this case, there remains some amount of oversight, though not as much, in instances where the Election Commissioners commit misfeasance, malfeasance, or nonfeasance. Specifically, as they are legally considered government officials even before taking their Oaths of Office, the Regional Assembly may recall the Election Commissioners.

The Bill of Rights Article 9, quoted above, may also be used against Election Commissioners in criminal proceedings in the case that the Election Commissioners commit misfeasance, malfeasance, or nonfeasance, as they are still considered governmental authorities according to a previous ruling of the Court, and as a consequence of them being government officials.

As well, the following quote from the Request for Review template would also still be applicable.

1. What law, government policy, or action (taken by a government official) do you request that the Court review?

(Emphasis added)

In this case, this was the action taken by myself as a result of the lack of any Oaths of Office. The Request for Review is an action that anyone with standing may take to retain some measure of oversight over Election Commissioners that fail to take their Oaths of Office.

The specific issue with the above clauses, however, is that the appointed Election Commissioners lose their status as government officials due to abandoning their office under the Legal Code Section 4.1, clause 2, should they fail to post their Oaths of Office within seven days of their appointment. Nevertheless, I believe the above, along with the below clauses that remain enforceable even after the Election Commissioners vacate their office, should allow the Election Commissioners to quickly take their oaths and continue their election unabated without losing enough oversight so as to violate Article 9, though I encourage the Court to specify that Election Commissioners who refuse to take their Oaths of Office are not covered by such a ruling and must either take their Oaths of Office before resuming their duties or face either criminal charges or an invalidation of the election they are running. I will outline and ask for clarification on the specific criminal charges that they may be charged with below.

Again, I would like to reiterate that I urge the court to leave the current election running as-is, as no harm has been done due to the current Election Commissioners failing to post their Oaths of Office. However, for setting precedent and procedure, should the Election Commissioners vacate the office under the Legal Code Section 4.1, clause 2, then the above clauses from the Constitution and the Bill of Rights no longer applies to them, as they are no longer governmental authorities. The below clauses from the Legal Code, however, do.

11. "Election fraud" is defined as the willful deception of residents with regards to the candidates running, the time and venue of the elections, or the requirements and methods by which one may be eligible to vote or run for office.

While this clause is much more specific than the Legal Code Section 1.8, clause 23, it still may be used to establish guilt for Election Commissioners that grossly violate the duties of their office, whether they took their Oaths of Office or not and whether they remain government officials or not.

I therefore ask the Court that, if the election is ruled to still be valid in either situation, or both, whether it be for while the Election Commissioners are still government officials or not, to establish guidance for future Attorneys General on how Election Commissioners may be charged in the case of misfeasance, malfeasance, or nonfeasance during the course of their duties if they have not taken their Oaths of Office. The above may be useful to the Court in rendering such a ruling.

I also ask the Court to clarify whether Election Commissioners that are considered to have vacated their office yet run the election are still valid targets for Requests for Review or not, even if they had taken no official action during the seven days that they were legally considered government officials.

Thank you for your time, Your Honor. Please feel free to ask me any questions you may have, and I will do my best to answer them fully and in a timely manner.

 

[Guy]

Your honours, I intend to submit a legal brief that is complete, but I require some time to go over it. It should be posted within 24 hours.

 

[Guy]

Your honours,

What we have here from the learned Attorney-General is a scared argument. It is the type of argument ran by a person who has stepped on the landmine, and is trying to run away as fast as possible.

On the one hand, the Attorney-General has the chutzpah to argue that Election Commissioners not taking their oath of office is such a serious case of lawlessness that the entire election can be set aside for invalidity, and the Electoral Commissioners charged with a crime, a serious crime, of election fraud. On the other hand, the Attorney posits that the very same transgression is completely harmless, and does not merit the Court's intervention at all.

This makes no sense: What had just occurred is almost the worst transgression that could occur given the argument advanced by the Attorney. The two Electoral Commissioners had failed to take their oaths for well over a week, requiring a re-appointment. Several critical decisions were made during the week the Electoral Commissioners had to post their oaths. Their only saving grace, if we accept the Attorney's arguments, is that they had taken no official acts after the office had been vacated.

I say this without meaning any disrespect to the Attorney-General. He has stumbled upon a novel case, meriting interesting arguments. He has run excitedly to the Court, hoping to establish a precedent to deal with such cases in the future. But his hesitance, even fear, of asking the Court to intervene in this case shows why the Court should not accept his arguments. What is not right for this case is not right at all.


This brief first asks the Court to rule that an election is not affected by any invalidity as a result of the Electoral Commissioners failing to post their oaths. It also later addresses why no crimes are committed by Electoral Commissioners who fail to post their oaths.

Your honours, the democratic rights of the citizens of this region is possibly its most fundamental. Ask any outsider to name the most striking feature of The North Pacific, and they would doubtlessly name our robust democratic institutions.

We do not need to look too hard in our laws to find affirmation of this. Our Constitution has the explicit objective "to guide The North Pacific in its practice of democratic governance". It guarantees "all citizens", through their membership of the Regional Assembly, the right to elect the Delegate, Vice-Delegate, Attorney-General and Justices. This right is also of course protected through the Bill of Rights, particularly in Sections 9-10.

In this context, the invalidation of an election is an extreme step. It casts away all declarations of candidacy, all campaigning, all votes cast as though they had never happened. It undoes what the Constitution requires.

If the Attorney's argument is accepted, the paramount right of all citizens to participate in their democracy by electing our officials may be completely undone by a single player's error. The mere possibility that this could occur, which would follow from the Court agreeing with the learned Attorney, would cast a serious cloud over our elections past, present and future.

Should the Court agree with the Attorney, it will be opening a huge pandora's box. It has been intimated to this citizen that in several previous elections the Commissioners forget to take the oath. It is likely that this will happen again sometime in the future. The Court would be giving the Election Commissioners a unique ability, which they would (hopefully) never intentionally exercise, to invalidate any election.

Your honours, the legal argument here is simple. Our elections are a Constitutional requirement of the highest degree. They are regulated, in detail, in Chapter 4 of the Legal Code. Nowhere does it mention that a failure to post an oath invalidates an election, or any other action taken by an oathless official.

Deciding otherwise could have implications that reach far further than elections. Would all actions taken by a (purported) Minister who had neglected to post their oath be invalidated? For example, would a Foreign Minister appointed under Section 7.6 of the Code have all the ambassadors they had appointed recalled?

In the absence of an explicit provision requiring invalidation, it is submitted that the Court should be extremely hesitant to find such a requirement. The law is often described as a blunt instrument. Perhaps more accurately, the law is an assortment of instruments. But invalidation may be the bluntest of them all. An invalidation of an election would be to take that instrument and aim it at our democracy.

A point of agreement between the Attorney and myself is that a person who does not lawfully hold office is acting outside power when purporting to exercise the powers of that office.

Does an office-holder validly hold office between appointment and posted the oath of office within a week validly hold office between the time of appointment and taking the oath? The Legal Code is somewhat ambiguous. On one hand, it states that officials will take the oath “before assuming their role”, and that “the taking of the Oath constitutes assumption of the office”. On the other hand, the vacation of the office only occurs after a week, as “all government officials will be required to take the Oath of Office within one week of their election”. While it is contested that the interpretation leading to the answer “no” should be adopted, it is a matter of statutory construction that the Court would need to address in its decision.

Even if the Court finds that any actions taken before taking the oath are outside of power, it is still submitted that invalidation of the entire election is not the correct response, when there have otherwise been no defects. Your honours, I suspect that you are all familiar with this decision without me citing it:

What bewilders us is quite why the courts were asked to get involved. ...

There was no harm; there was no foul.

Your honours, let me just quote the applicant again: "There has been no harm". This lack of harm is exactly why invalidation is not an appropriate remedy in this case.

A side-issue, your honours, is whether Constitutionally-prescribed offices, where the elected official draws their power from the Constitution, can be required to take an oath by the Legal Code prior to taking up their office. I will not present arguments on this issue, as it is not directly related, but your Honours may wish to pick it up depending on how you rule.


Your honours, I will now deal with the Attorney-General's two arguments regarding to the possible criminality by an official who does not take their oath.

The Attorney submits that an Election Commissioner who does not post the oath may be found guilty of two crimes. The first being gross misconduct in violation of their oath. Let us assume, without conceding this, that not posting the oath is 'nonfeasance' for the purpose of the oath. This explains the contradiction in this argument, though: A person cannot be found guilty of violating an oath that they didn't take. They certainly cannot be found guilty of not taking an oath in violation of the oath.

The Attorney's second argument is that the Electoral Commissioner may be found guilty of Election Fraud. The crucial element of this crime, as explained in In regards to the Judicial Inquiry filed by Kiwi on the crime of Fraud is missing: No one had "provided false information to, or deliberately withheld true information from, any non-zero number of citizens about certain subjects relating to elections." The only such possible false information may be that the Election Commissioners are acting within power. Certainly, then, this is not "wilful deception", as defined in the same case, as it is an honest mistake. There is no suggestion that the Commissioners knew they were not acting lawfully.

Finally, your honours, I would like to note that this brief emphasises the most critical aspects of the Attorney's brief to the healthy functioning of our democracy. It does not signify agreement with the rest of it. If the Court so requests, I am willing to provide a fuller response, but that would require more time, which is one thing I understand we don't have.

May it please the Court.

 

[Darcania]

As a note to the Court, for the sake of expediency, I believe my brief speaks well enough for itself, and will not be using up more of the Court's time drafting a counter to the brief above. I do, however, note to the Court to take my brief for what it is, and not for what others misrepresent it as. Thank you.

 

[SillyString]

I apologize for the delay in posting this. I had hoped to get it out on Saturday, but was unable to do so due to not having a complete court.

The brief submission period will end (time=1489500000).

Guy and Tomb are instructed to immediately halt the election and close the voting thread, pending a ruling on this request. No election results may be posted until our ruling is issued.

No matter what our decision is, given the confusion of this case and the above order, our ruling will contain instructions to affected parties as to how to proceed.

edit: fixing timestamp

 

[Guy]

With the greatest respect, I would ask your honour to reconsider. There is less than a day (indeed, fewer than 21 hours) left in the vote. Should the Court uphold the validity of this election, we would be left with an 80%+ conducted vote. The disruption should we keep the vote open yet it is held invalid is far lesser.

 

[falapatorius]

Your honors, I will add this brief for consideration.

The Election Commissioners have been identified as government officials by a previous Court in this ruling. For the sake of convenience, I will quote the relevant section of the ruling:

Opinion Part 3 - With respect to Election Commissioners, the Court opines that members thereof are government officials and charges all future appointees to take the oath of office taken by all government officials

The Constitution is clear on the oath issue as well:

All government officials will swear an oath of office. The content of these oaths will be determined by law and be legally binding.

Having established that Election Commissioners are indeed government officials required to take an oath of office, have the current commissioners acted without the authority to do so? I believe this is the crux of the matter.

The very acts of updating candidacy declaration threads is exercising one of the duties of an election commissioner. It has been stated that the EC's did take the oath after being re-appointed, but the proper course of action at that point would have been to void any previous election threads (ie: candidacy declaration) and start over. This was not done. Voting was conducted in continuation of this error.

In regard to the opinion there was no harm, no foul, I strongly urge the Court to disavow such a dangerous precedent.

There is also the possibility the ECs may have violated their oath of citizenship and committed Gross Misconduct. Namely:

I, the leader of The North Pacific nation of [INSERT YOUR TNP NATION], pledge loyalty to The North Pacific, obedience to her laws, and responsible action as a member of her society. I pledge to only register one nation to vote in The North Pacific. I pledge that no nation under my control will wage war against the North Pacific. I understand that if I break this oath I may permanently lose my voting privileges. In this manner, I petition the Speaker for citizenship in The North Pacific.

However, that is likely beyond the scope of this proceeding and a matter for the AG to consider.

To summarize, it appears the ECs did act without the authority to do so at the beginning of the election. Granted, the oversight was corrected but the steps forward taken from that point only compounded the original error. I believe the election should be voided and restarted.

(all bolding mine)

 

[SillyString]

The majority view of the court holds otherwise, and the order was issued with that majority support. It is indeed the short amount of time left in the voting cycle that causes us such grave concern and prompted our action.

In my own legal evaluation, the potential harm from the election concluding, new officials taking their oaths, and former officials stepping down and possibly accepting other roles, and the election only then being declared invalid far outweighs the potential harm from a temporary halt in voting.

Additionally, should any actual harm result out of the pools of potential harm, the latter is also more easily redressed than the former.

The former order stands and must be implemented.

Edit: This was in reply to guy's post, as falapatorius had not posted when I began typing.

 

[Darcania]

Gracius Maximus will serve as the other THO on this matter.

If the court doesn't mind, for the sake of record-keeping I'd like to note that this decision was withdrawn and replaced with the decision to appoint The Grim Reaper as THO in his place here: http://forum.thenorthpacific.org/single/?p=10046919&t=9022189

 

[Guy]

The majority view of the court holds otherwise, and the order was issued with that majority support. It is indeed the short amount of time left in the voting cycle that causes us such grave concern and prompted our action.

In my own legal evaluation, the potential harm from the election concluding, new officials taking their oaths, and former officials stepping down and possibly accepting other roles, and the election only then being declared invalid far outweighs the potential harm from a temporary halt in voting.

Additionally, should any actual harm result out of the pools of potential harm, the latter is also more easily redressed than the former.

The former order stands and must be implemented.

Edit: This was in reply to guy's post, as falapatorius had not posted when I began typing.

I would suggest keeping the thread open to collect votes, but not declaring the result. I think that would minimise the "potential harm" in both cases. I haven't spoken to Tomb, but I would submit to such an order.

EDIT: To clarify I would implement the Court's decision but I am in no position to do so right now due to my RL predicament.

 

[Zyvetskistaahn]

If it pleases Your Honours, I submit this brief:

The questions before the Court are multiple: first, is whether Election Commissioners are bound to take the oath prescribed, I shall argue that they are; second, is whether the powers of an office can be lawfully exercised before taking the oath, I shall argue that they cannot; third, is whether the Delegate has a power to appoint Commissioners for an election once is it less than one week before that election is due to commence, I shall argue that they do not; and, fourth, is what orders the Court should make in view of its conclusions, I shall argue that the Court ought to make a declaration that the present Judicial Election is invalid and that the Vice Delegate must appoint Commissioners to begin the process of the present election anew. I will also briefly address the questions of criminal law which have been brought up, together with other matters.

Addressing the first question, I will begin with a matter raised in the brief submitted by Guy, Commissioner for the present election, namely:

whether Constitutionally-prescribed offices, where the elected official draws their power from the Constitution, can be required to take an oath by the Legal Code prior to taking up their office

I submit, simply, that they can be so required and, in fact, are constitutionally required by Art 7, cl 8:

8. All government officials will swear an oath of office. The content of these oaths will be determined by law and be legally binding.

It then must be considered whether Election Commissioners are, in fact, government officials, the answer to which can be found in Art 7:

1. Constitutionally-mandated elected officials are the Delegate, Vice Delegate, Speaker, Justices, and Attorney General.
2. Government officials are the constitutionally-mandated elected officials, any officials appointed by them as permitted by law, and members of the Security Council.

taken with s4.4 of the Codified Law:

18. A minimum of two Election Commissioners will be appointed by the Delegate to oversee the candidacy declaration and election processes at least one week before the beginning of the month in which the election is to be held. If an appointment of Election Commissioners has not been made by that time, the Vice Delegate shall promptly make the appointment. citizens serving as government officials are not excluded from appointments under this clause.

Government Officials are those, other than CMEOs and Security Council members, who are officials appointed by the CMEOs. The Delegate, a CMEO, or the Vice Delegate, also a CMEO, appoints Election Commissioners. It follows then that so long as Commissioners are officials, they must be Government Officials. The question of precisely what constitutes an official is not dealt with in law, however, I do not think it can seriously be disputed that Election Commissioners, who wield significant autonomous power to regulate our elections and who are expressly provided for by law, are officials; going beyond that, to a general definition of an official, is, in my submission, unnecessary.

Being Government Officials, then, Election Commissioners are required by the Constitution to take the oath prescribed by law.

Moving to the second question, the provision at issue is thus:

1. All government officials will take the Oath of Office below before assuming their role within the government of The North Pacific.

I, [forum username], do hereby solemnly swear that during my term as [government position], I will uphold the ideals of Democracy, Freedom, and Justice of The Region of The North Pacific. I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner. I will act only in the best interests of The North Pacific, not influenced by personal gain or any outside force, and within the restraints of my legally granted power. As such, I hereby take up the office of [government position], with all the powers, rights, and responsibilities held therein.

2. All government officials will be required to take the Oath of Office within one week of their election, as certified by the Election Commissioner; appointment, as publicly announced; or confirmation, as verified by a member of the Speaker's Office. The taking of the Oath constitutes assumption of the office. Failure to post the oath within the allotted time will result in the office being considered vacant, to be filled in accordance with all laws governing elections, appointments, or confirmations, as is appropriate for the office in question.

This provision requires a little unpacking: first, it reiterates the Constitutional requirement that Government Officials must take the oath, with the addition that they must do so "before assuming their role"; second, it prescribes the form of the oath, as it is Constitutionally mandated to do (it is perhaps worth noting that the oath itself implies that the oath itself is performative of taking up office, "As such, I hereby take up the office of [government position], with all the powers, rights, and responsibilities held therein. "); third, it places a time limit of one week on the taking of the oath; fourth, it states "The taking of the Oath constitutes assumption of the office", lending further weight to the implication from the oath that it is performative; and, fifth, it states that once the time limit is elapsed the office is to be considered vacant.

The first and fourth of these, requiring the taking of the oath before a person takes office and making the taking of the oath performative of taking up office, are clearly necessary for multiple reasons. First, as the Constitution requires all government officials take the oath, the most effective way to do so is to require it be taken before and as the act of taking office, thus preventing there from being a official who does not take the oath. Second, it is necessary to ensure consent to taking up office, in order to guarantee the right provided in s3 of the Bill of Rights:

3. Participation in the governmental authorities of the region is voluntary. Participation in the World Assembly shall not be a condition of participation in the governmental authorities of the region.

If it is the case that something other than taking the oath constitutes taking up office then what is it, for merely being publicly appointed surely cannot be enough to satisfy the requirement of s3, as appointments may be announced without agreement of the appointee(however ill advised would be to do so). Third, presuming that it were the case that something other than taking the oath constituted taking up office, it would be open for the appointing authority to keep reappointing the official in question, allowing them to exercise the powers of their office, for a potentially indefinite time without ever having to take the oath, in violation of the Constitutional requirement.

The second and fifth, the time limit and the consequences of it elapsing, are clearly also necessary. Again, if there were no time limit, and appointees were able to exercise their power without taking the oath, then it naturally follows that it would be open for them to never take the oath, in violation of the Constitutional requirement; further, in relation to the deemed vacancy, such is wholly necessary in cases where someone elected does not take their oath, in order to ensure that the work of government can continue and not be impeded by a single person's forgetfulness.

Taking these reasons together one must conclude that the powers of an office may not be exercised unless and until the person appointed, elected or confirmed to it has taken the oath for until that point they have not taken up the office. To say otherwise is to risk the evasion of Constitutional requirements (indeed, in this case, to accept the proposition would enable the election to be conducted start to finish with no oath having been taken, provided that the Commissioners were continually reappointed) and, potentially, to risk violating the right against enforced government participation.

Now, to the third issue, that of whether the Delegate has the power to make appointments of Commissioners when there is less than a week before the election is due to commence (or, in this instance, when the time for its commencement has passed). I submit that this is a necessary matter to consider for two reasons, first, it is necessary in order to determine whether the conduct of the election since the passage of time triggered the deemed vacancy and the Delegate's subsequent reappointment of the Commissioners (and their actual taking of the oath) has been lawful but for the fact that the earlier portion of it was not, and second because it will be necessary for the Court to consider which of the Delegate or the Vice Delegate to order to make new appointments, should the Court conclude that the election must be began anew.

This third issue turns on a single clause of the Codified Law:

18. A minimum of two Election Commissioners will be appointed by the Delegate to oversee the candidacy declaration and election processes at least one week before the beginning of the month in which the election is to be held. If an appointment of Election Commissioners has not been made by that time, the Vice Delegate shall promptly make the appointment. citizens serving as government officials are not excluded from appointments under this clause.

The clause provides two distinct powers, first, a power of the Delegate to appoint Commissioners, and, second, a power of the Vice Delegate to appoint Commissioners. The conditions for the exercise of these powers are also distinct, the power of the Delegate exists at all times, subject to the limit that the Commissioners be appointed at least one week before the scheduled beginning of an election. The power of the Vice Delegate, however, exists only once it is less than one week before the scheduled beginning of an election (and I submit this includes during the scheduled period of the election and after it) and if there are not at least two Commissioners. I submit that, from this, it follows that the Delegate's reappointment of the Commissioners during the election was invalid, as they enjoyed no power to make such appointments at that time in relation to that election, and that any fresh appointment of Commissioners must be made by the Vice Delegate.

Moving on now to the various other matters that have arisen. I suggest to the Court that the question of criminality is not one which it is appropriate for the Court to address in these proceedings, as it risks prejudicing the rights of the Commissioners to a fair trial (as well as their rights to counsel, to due process, and their right against being held to answer for a crime in a manner not prescribed by law); and I urge that the Court ought to reject the suggestions of the Attorney General and Guy that, in essence, the requirements of law ought to be dispensed with in this instance as it will be inconvenient to meet all the rigours required by the Constitution, particularly when past Courts have on numerous occasions required that elections be reran.

Finally, on the matter of what course the Court ought to take. I submit that the Court must declare the present election to be invalid, due to its being conducted unlawfully, in that the appointed Commissioners, by not taking their oaths, did not take up office and so did not have power to conduct the election; and that the Court must order the Vice Delegate to appoint a number of Commissioners to conduct the election again.

Thank you, Your Honours.

EDIT: 2=/=3

 

[Barbarossistan]

Your honors,

I offer the folowing brief for your consideration.

It appears to me that the court must rule on two, related, matters:

1.The position of the oath of office and the consequences of a failure to take it;

2.How to proceed with the current election;


On the first matter it appears to me that the crucial question is wether the oath of office is a constituent element of an offical’s taking office. If it is, then the official has only taken office once the oath has been properly taken. Without the oath the appointment is not complete and there is legally no official.

One might hold that the oath is not a constituent element and that an official takes office on appointment by the appointing elected official, in that case the official enters office immediately upon ppointment and the oath has no effect either way. This does beg the question why the law requires that the oath be taken.

I would hold that the oath is indeed a constituent element and that an official has only taken up his office by taking the oath. If this were otherwise the oath would be mere decoration as taking it or not has no effect whatsoever and this seems incompatible with the structure of TNP law which considers the oath essential. It would also mean that officials can act validly without taking the oath and would thus be free to act against the oath, but perfectly legally, by just not taking the oath. This seems contrary to the intent of TNP law which seeks to bind officials to their oaths.

If the oath is a consituent element of taking ofice then an official who has taken no oath has not completed his appointment and is no official at all. This non-official then cannot take any formal action validly. With no valid election commissioner in office no valid steps were taken in the election and the electoral activity up to this point is void.

I hold that there were no election commissioners before the oaths of office were taken and all electoral activity before the oaths is legally void.

Given the aforementioned I see two ways forward for the current elections.

1.Since the elections are void, they must be held anew, the court can instruct the government to schedule fresh elections, this time with properly appointed eclection commissioners who have taken their oaths.
2.The court can find that since there is no evidence of material wrongdoing by the election commissioners the elections will resume in the state where they were before the freeze ordered by the court and the result shall stand. The court would retroactively validate the commissioners appointmnts, replacing the missing oaths with its ruling.

I think both options preserve the voting rights of the TNP citizenry as under both options the judicial officials will be determinded by vote. The first option is cleaner and is more consistent with the law but involves more hassle for the government and voters. The second option is easier for the government but requires that the court substitute the oaths that the law requires which is perhaps a stretch for the powers of the court. If this option is chosen I woud recommend that the voting period is extended to compensate for the period of the freeze. I would also recommend that the court clarify that in future the court will not substitute the oaths and that, with the clarity rom this ruling, in future any officals who have failed to take their oaths will be considered to not be appointed and any actions of theirs will be held invalid. Overall I prefer the first solution as it is more consistent with the law and the extra burden of rescheduling the election does not seem excessive.

Thank you for your attention.

 

[Guy]

Quickly, your honours, on the matter of the briefings in reply:

The above briefs largely assume that invalidation of an election is the natural consequence of any legal defect in its running.

This is seriously contested.

It is submitted that the law does not permit, let alone require, invalidation in this case. This is as invalidation would seriously derogate from the democratic rights of citizens.

I am not about to attempt to circumscribe the cases in which invalidation would be allowed. However, I would submit that at the very least, a material difference in results would have to be shown, had the error not occurred.

In this case, no matter who ran the elections, the results are not affected. The ability of citizens to elect their officials is the highest priority here.

Invalidation is not to be avoided as it's inconvenient, but as it's not allowed.

There is also the danger that minor legal errors will be searched for in order to invalidate elections past, present and future. As mentioned above, I do believe that several past ECs have forgotten to take their oaths.

Zyvet has also raised in response that the Constitution requires oaths of office. There is a subtle difference between requiring an official to subscribe an oath and the subscription being precedent upon assumption of power. I am not making any submissions either way here, but I do think it's an important distinction.

 

[Zyvetskistaahn]

If Your Honours would permit, I would make further, short submissions in reply to the points raised by Guy, above:

I suggest that the invalidation of the election must result where there is such a significant defect as it being ran without any of the powers to run it. To allow the election to be deemed valid despite its appointed Commissioners having failed to abide by the Constitutionally required oath and, thereby, to have lacked power to commission the election would be a dangerous decision on the part of the Court; it would be giving officials a license to disregard, contrary to s11 of the Bill of Rights "11. No governmental authority of the region has the power to suspend or disregard the Constitution or the Legal Code.", the requirements of the Constitution and the Legal Code as to the oath and would, itself, be a disregard of them by the Court. It would permit any requirement of law that, on breach, produces no immediately noticeable harm, to go without remedy and would subject The North Pacific to officials taking risks in breaching the law in the hope that there would be no resultant harm, rather than ensuring that they diligently carry out their duties as the law requires.

The matter of the distinction between being required to take the oath and taking up of office being consequent on taking up the oath is addressed in substance in my main brief. In short, I submit that it is permissible for the Codified Law to make taking up office consequent on taking the oath as a means of enforcing the Constitutional requirement to take the oath and, further, that it is in fact desirable for it to do so, in order to minimise the risk of evasion of the oath requirement and as a convenient means of guaranteeing the right against mandatory government participation.

 

[Barbarossistan]

In reply to Guy I wish to make the following brief remarks:

1. I hold that there is nothing for the court to invalidate as the election is legally void;
2. the demand that an officials actions must stand despite grave defects in his appointment such as failing to take the oath sets a very dangerous precedent that would open the door to severe abuses by officials who would be free to disregard the law and then demand their actions stand nonetheless.

 

[SillyString]

As a note, here is how I will be handling posts in this thread:

1) Official briefs will be considered by the full court, and should stand alone. Even if your brief responds to something raised in another brief, quote that section and develop your argument as fully as possible.

2) Responses back and forth may be considered by members of the court. I myself will be reading them and may be persuaded or not, but I cannot speak for the other two.

 

[Tomb]

The voting thread has been closed as requested by the honorable court, Your Honor.

 

[Funkadelia]

Your honors, and may it please the court, I would like to submit the following brief for your consideration:

It is important for appointed and elected officials to make their oaths public in a timely manner in a way that is easily accessible for all citizens. Many would say that it is a rite of passage, for want of a better term, for Election Commissioners and other public officers alike to post their oaths and commit themselves to the laws and regulations of the land. However, in some cases I believe leniency is also necessary in the case of a mistake, especially when the Commissioners have made a general good-faith effort to conduct the elections in a timely and reasonable manner.

The most important piece of the legal code relevant to this situation, LC Section 4.1, § 2 reads as follows and is included for reference:

2. All government officials will be required to take the Oath of Office within one week of their election, as certified by the Election Commissioner; appointment, as publicly announced; or confirmation, as verified by a member of the Speaker's Office. The taking of the Oath constitutes assumption of the office. Failure to post the oath within the allotted time will result in the office being considered vacant, to be filled in accordance with all laws governing elections, appointments, or confirmations, as is appropriate for the office in question.

The law, through its allotment of seven days to post an Oath of Office, communicates that offices of both election and appointment shall be considered filled by the official-designate until the seven days have passed and, as the law states, it shall be considered vacant. Considering this, and considering the fact that the election was commenced, and (mostly) carried out under the authority of the valid Election Commissioners at the time -- Guy and Tomb. The key is that the nobody is claiming that the elections have been otherwise mishandled by the Commissioners outside of a relatively minor formality that confirms their ascension to the office. While I believe that certainly all appointed and elected officials should strive to make a swift declaration of their Oath of Office, the entire democratic process of The North Pacific should not be forced to pay for the functional equivalent of filing paperwork on an out of date form, or misspelling a name or address on a legal document. The same general rule should be applied as one would reasonably do with that sort of situation, consider the good-faith efforts that the current Election Commissioners have made to conduct the election in a timely and professional manner with the exception of a technicality that was essentially out of sight and out of mind. To that end, the situation does not require a restart of the election cycle, but should reprimand the current Commissioners for their tardiness and provide legal precedent for future elections.

I thank the court for their consideration of this brief as well as all other briefs in this pressing matter.

 

[Guy]

Quickly, your honours, on the matter of the briefings in reply:

The above briefs largely assume that invalidation of an election is the natural consequence of any legal defect in its running.

This is seriously contested.

It is submitted that the law does not permit, let alone require, invalidation in this case. This is as invalidation would seriously derogate from the democratic rights of citizens.

I am not about to attempt to circumscribe the cases in which invalidation would be allowed. However, I would submit that at the very least, a material difference in results would have to be shown, had the error not occurred.

In this case, no matter who ran the elections, the results are not affected. The ability of citizens to elect their officials is the highest priority here.

Invalidation is not to be avoided as it's inconvenient, but as it's not allowed.

There is also the danger that minor legal errors will be searched for in order to invalidate elections past, present and future. As mentioned above, I do believe that several past ECs have forgotten to take their oaths.

Zyvet has also raised in response that the Constitution requires oaths of office. There is a subtle difference between requiring an official to subscribe an oath and the subscription being precedent upon assumption of power. I am not making any submissions either way here, but I do think it's an important distinction.

I adopt the above as my brief in response.

Further, it is submitted that should the Court hold that an Election Commissioner who has not taken their oath is acting in contravention of the Legal Code, the correct response is a suit against that person in order to compel them to take the oath.

It is the person that is acting unlawfully. However, this does not mean that the election they are conducting is automatically void. It would only be voidable by the Court in case there is material impact on the results.

Otherwise, the right of citizens to elect officials is the more important consideration, and the election should not be set aside by the Court.

 

[SillyString]

The court is deliberating on this case. We will render our decision as soon as possible.

 

[SillyString]

In the interest of ensuring as quick a resolution as possible to this situation, the Court is issuing the following order. It reflects the Court's unanimous opinion, and we imbue it with the force of law. Although the language of the full ruling is still being finalized, including decisions on a number of ancillary issues, there is no question as to our ultimate ruling on this issue. Therefore:

1) The Vice Delegate is ordered to appoint at least two Election Commissioners.

2) Once the Election Commissioners take their oaths, they are ordered to open nominations for the March 2017 Judicial Election, and proceed through the entire election cycle.

A full decision on all the issues raised that includes our legal reasoning will follow within a few days.

 

[Guy]

Your honours, as much as I think that the Court's intent is clear, I believe that a formal order regarding the two previous sets of appointments of ECs, as well as the halted election, is required.

Assuming that the Court has reached the conclusion that both appointments had no legal effect, and the election itself is invalid and of no effect, I would ask that the Court order as much. EDIT: The order can be in the form of a declaration, which may be most appropriate.

 

[SillyString]

Ruling of the Court of The North Pacific​

In regards to the judicial inquiry filed by Darcania on Election Commissioners Failing to Take Their Oaths
Opinion drafted by SillyString, joined by Bootsie and The Grim Reaper​

The Court took into consideration the inquiry filed here by Darcania.

The Court took into consideration the legal brief filed here by Darcania.

The Court took into consideration the legal brief filed here by Guy.

The Court took into consideration the legal brief filed here by falapatorius.

The Court took into consideration the legal brief filed here by Zyvetskistaahn.

The Court took into consideration the legal brief filed here by Barbarossistan.

The Court took into consideration the relevant portions of the Constitution of The North Pacific:

8. All government officials will swear an oath of office. The content of these oaths will be determined by law and be legally binding.

The Court took into consideration the relevant portions of the Bill of Rights of The North Pacific:

3. Participation in the governmental authorities of the region is voluntary. Participation in the World Assembly shall not be a condition of participation in the governmental authorities of the region.

The Court took into consideration the relevant portions of the Legal Code of The North Pacific:

Section 4.1: Oath of Office
1. All government officials will take the Oath of Office below before assuming their role within the government of The North Pacific.

I, [forum username], do hereby solemnly swear that during my term as [government position], I will uphold the ideals of Democracy, Freedom, and Justice of The Region of The North Pacific. I will use the powers and rights granted to me through The North Pacific Constitution and Legal Code in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner. I will act only in the best interests of The North Pacific, not influenced by personal gain or any outside force, and within the restraints of my legally granted power. As such, I hereby take up the office of [government position], with all the powers, rights, and responsibilities held therein.

2. All government officials will be required to take the Oath of Office within one week of their election, as certified by the Election Commissioner; appointment, as publicly announced; or confirmation, as verified by a member of the Speaker's Office. The taking of the Oath constitutes assumption of the office. Failure to post the oath within the allotted time will result in the office being considered vacant, to be filled in accordance with all laws governing elections, appointments, or confirmations, as is appropriate for the office in question.

5. "Election Commissioner" is an individual designated to supervise a given election. No Election Commissioner may run in the election they are overseeing.
6. "Election Cycle" is defined as the period of time that begins on the first day on which candidacy declarations can be made and concludes with the final declaration of results for an election.
7. A "vacancy" in an office occurs when the holder of it resigns, is removed, or abandons it. An office is abandoned when its holder does not log onto the regional forums for two weeks without prior notice, or when an election winner or appointee fails to post the Oath of Office. Pending an election, a vacancy may be temporarily filled as provided by the Constitution, this Legal Code, or a rule adopted by the appropriate body.

9. Citizens shall be provided three days to declare their candidacy. Following the closure of candidacy declaration, four days shall be allowed for campaigning, during which no further candidate declarations shall be allowed.
10. Voting will begin immediately after the campaigning period has closed and last for five days.
11. If a run-off vote is required it will begin within one day of the first vote ending and it shall last for five days.
12. Private votes may be sent by private message to a forum account designated for that purpose by the Election Commissioners. In such an event, the Election Commissioners shall promptly announce that a vote has been cast privately and who that vote was cast for. The Election Commissioners may not announce any other details about the vote.

18. A minimum of two Election Commissioners will be appointed by the Delegate to oversee the candidacy declaration and election processes at least one week before the beginning of the month in which the election is to be held. If an appointment of Election Commissioners has not been made by that time, the Vice Delegate shall promptly make the appointment. citizens serving as government officials are not excluded from appointments under this clause.

The Court took into consideration the relevant portions of its decision on Leaving a Candidate's Name off the Ballot:

The Court believes that in such cases where a timetable for elections is present when a violation of the Bill of Rights or Constitution is found in order to keep the legitimacy of the election the timetable must be altered as not doing so would in itself be a violation of the Bill of Rights.

The Court took into consideration the relevant portions of its decision on Oath Violations by Former Members of the Regional Assembly:

The Court had determined that the matter is twofold. If the violation occurs after the time in which the nation is no longer a member of the Regional Assembly then they are not violating their oath as they are not bound to that oath at the current moment. Whereas if the violation occurs during the time in which the nation was a member of the Regional Assembly and was bound by that oath they may be tried for an Oath Violation.

The Court took into consideration the relevant portions of its decision on Restarting Voting Periods:

The Court recognizes the fact that restarting an election already in progress results in the discounting of legally cast votes. When this discounting happens without due justification, the Court believes that it constitutes a violation of the rights granted by Article 10 of the Bill of Rights. The question then becomes, what is due justification?

It is first determined that the omission of a valid candidate's name from the ballot is a violation of their rights under Article 9 of the Bill of Rights that can only be remedied by restarting the vote. Importantly, it is further determined that not restarting the vote---or not altering the timetable as otherwise required---would itself be a violation of the Bill of Rights.

The Court wishes to elaborate on these findings, and the second determination in particular. The violation of the Bill of Rights in the above set of circumstances is twofold. The omission of a valid candidate's name from the ballot, the Court found previously, is in violation of Article 9. The remedy for this violation is to render the vote void. Consequently, votes cast using the erroneous ballot are also invalidated. Their invalidity is not by fault of the voters, but of the Electoral Commission, which failed to provide those entitled to vote with an opportunity to exercise their right in a valid way. This failure is, by itself, a violation of Article 10. The remedy for the second violation is to discount the invalid votes and restart the vote. In the context of our original question, the discounting of the votes resulting by restarting a vote under these circumstances is justified: the mishandling of the original vote was egregious enough to invalidate those votes beyond repair, and thus making their discounting in favor of a new vote the only means available for safeguarding the rights guaranteed under Article 10.

The above argument points to an answer to the question the Court set to investigate. Restarting a vote, and the discounting of votes it implies, is justified and necessary when it is the only remedy appropriate for a transgression---be it with regards to the Constitution and Bill of Rights, electoral law and its interpretation by the Court, or rules set by the Electoral Commission itself---that occurred during the conduct of a vote by fault of the Electoral Commission overseeing it. This answer is not to be interpreted as an exhaustive enumeration of conditions for restarting a vote: the one condition presented is merely sufficient. Furthermore, care must be taken when determining the truth of the first part of the condition, the uniqueness of the remedy. As the petitioner presented, discounting previous votes by restarting a vote runs the danger of voters who already cast their ballot not realizing that they need to recast it, and therefore going against the very rights of Article 10 they set to protect. At the same time, not restarting the vote runs the danger of the same voters not realizing that there has been a change in the circumstances under which they originally cast their vote, again posing hazards for the Article 10 rights. Both risks are remedied to an extent by the requirement for sufficient prior notice for actions of the Electoral Commission placed by Article 9 of the Bill of Rights. All these factors must be taken into consideration, and be balanced against the severity of the effects of the transgression, when determining whether restarting a vote is the only available remedy. The fact that, as decided previously by the Court, the omission of a valid candidate's name from the ballot is one case justifying restarting a vote should provide a standard of comparison when making this determination.

The Court took into consideration the relevant portions of its decision on the Time at which Oaths Become Binding:

The Court has previously ruled that former Regional Assembly members are no longer bound by the Regional Assembly oath when their membership expires, and that they are bound by the oath while they are Regional Assembly members. It is heavily implied by that same ruling that the oath is only binding while a nation is a member of the Regional Assembly. The Court sees no compelling reason to overturn that precedent.

It is the opinion of the Court that the Regional Assembly membership oath found in Section 6 Clause 2 of the Codified Law of the North Pacific becomes legally binding on RA applicants if and when they become members of the Regional Assembly, and remains binding only so long as they remain members. Explicitly, the oath becomes binding when any of the following conditions are met:

• The Speaker admits the applicant and/or accepts their application;
• The applicant has neither been accepted nor rejected after 14 days pass from the date of their application;
• The applicant has been rejected by the Speaker for failing a security check by the Vice Delegate, and the RA has voted not to uphold that rejection.

Those conditions are the same conditions under which an applicant becomes a member of the RA.

Decision

The Regional Assembly oath becomes legally binding upon a nation when they become a member of the Regional Assembly.

The Court took into consideration the relevant portions of its decision on the Need for Further Clarification on Restarting Voting Periods:

The exclusion of a candidate's name on an election ballot infringes upon their rights as defined in Section 9 of the Bill of Rights, as seen in the Court ruling on the powers of Election Commissioners. When the option to "abstain" is excluded from the ballot, there is no such right to inclusion, or a violation of any other law of the North Pacific.

The Court opines the following:

The election cycle that began on March 1 is null and void in its entirety. At the time it began, Guy and Tomb were not Election Commissioners, and the candidacy declaration thread opened by them at that point was functionally equivalent to one opened by any citizen - it held no legal or electoral weight. The voting thread, opened after they swore oaths, was likewise invalid, as it did not follow a legal candidacy declaration period.

Furthermore, neither their initial appointment (which took place on 2/27) nor their reappointment (which took place on 3/8) by the delegate, plembobria, was valid. The Legal Code states that the delegate must make appointments of Election Commissioners at least one week prior to the scheduled start of an election, and that appointments after that point must be made by the Vice Delegate. The deadline for the delegate to make the initial appointments was 2/22, so it was only the Vice Delegate who had the authority to appoint Election Commissioners either time.

Accordingly, the Court ordered the following on March 17:

1) The Vice Delegate is ordered to appoint at least two Election Commissioners.

2) Once the Election Commissioners take their oaths, they are ordered to open nominations for the March 2017 Judicial Election, and proceed through the entire election cycle.

The Court now turns to additional, more specific questions raised during this review:

Are Election Commissioners government officials?

Yes. Election Commissioners are appointed by constitutionally-mandated elected officials, and thus they qualify as government officials under the law. Like all government officials, they are required to take the oath of office within seven days of their appointment, which constitutes assumption of that office. This holds true in the case of special elections as well, when another official is serving as an election commissioner - or, indeed, anytime a government official assumes a second office.

If the Delegate appoints Election Commissioners at least one week before the start of an election cycle, but they do not take their oaths within seven days, does that power still devolve to the Vice Delegate after the deadline?

Yes. Election Commissioner appointments remain valid for seven days. If the appointees have not sworn their oaths within the allowed seven day period, those appointments expire. At that point, the question of who holds the power to name new Election Commissioners is decided exactly as if no appointments were ever made.

Do actions taken by elected, appointed, or confirmed officials prior to their taking of the oath have legal force?

No. All government officials must take their oath prior to carrying out any actions in an official capacity. Any such actions taken prior to the swearing of the oath are invalid and hold no governmental authority. Depending on the nature of the actions, they could potentially also be illegal. For instance, if the individual banned a nation from the region before taking up an office that gave them the legal authority to do so, they could be subject to criminal charges.

Can an oath of office apply retroactively to actions taken after winning election, or being appointed?

Absolutely not. No oath under TNP law may apply retroactively. The oath of office becomes binding on an individual when they swear it and assume the position relating to that oath, just as it stops being binding when they cease to hold that position. The oath can neither criminalize misconduct, nor legitimize unofficial actions, from before it was sworn.

A government official cannot be found guilty of gross misconduct for violating the oath of office before they took it. And, by the same token, an election commissioner taking their oath after opening candidacy declarations cannot thereby give that thread legal standing.

 

[Crushing Our Enemies]

I applaud the Court's wisdom and sound judgment in issuing this well thought out ruling.