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:
The Bill of Rights for all Nations 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.
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
