If it pleases the Court, I would offer my assistance in resolving this matter through the following brief:
I intend to make submissions focusing on two main points. Firstly, I will address the claim made by the Deputy Attorney General that the Court was reviewing something other than a law or government policy or action; this will itself be split into two areas, the first on policy and action, the second on law. Secondly, I will make submissions with respect to the amenability of the Court, in its judicial review capacity, to judicial review and, particularly, the need for deference when the Court is considering its own decisions. Before I begin my substantial submissions, however, I should note that I gratefully adopt, in the main, the submissions of the Deputy Attorney General in relation to Article 5 of the Constitution and that the review power relates to conflicts and ambiguity in the law, constitutionality of the law, and legality (inclusive of constitutionality) of policies.[note]Constitution of The North Pacific, Article 5, clause 1[/note]
I will start by addressing, together, government policies or actions. The Deputy Attorney General submits that the Court was not reviewing a government policy or action. In making this submission, reference is made to the ruling on Standing[note]
Ruling of the Court on Standing and the Definition of Affected Party[/note] noting that matters being debated in the Regional Assembly are not identified in the ruling, which I accept. However, if I may make some careful observations, bearing in mind that the author of the Ruling on Standing is a member of the Court, it is notable that the Ruling is not exhaustive in identifying the areas where judicial review can be engaged, for instance, it identifies policies of the executive and judicial branches of government, not the legislative, and presumably thereby excludes the Speaker's policies from the scope of judicial review, yet the Court has, in fact, reviewed the policies of the Speaker[note]
Ruling of the Court on the Speaker's Powers to Restrict the Format of Votes; "The Speaker by making these policies was within their powers as laid out by the Constitution and not in violation of the Bill of Rights"[/note]; and, further, I submit that the analysis that only policies of the executive and judicial organs of government can be reviewed cannot be exhaustive as it would serve to wholly exclude the policies of the Security Council from the scrutiny of the Court, as the Court has held the Security Council to be without the executive branch,[note]
Ruling of the Court on Content Ownership and Freedom of Information Requests against the Security Council; "Given that the Chair of the Security Council holds that power only in the absence of holding executive authority, the Court opines that the Security Council is not categorized under the Executive Branch."[/note] which cannot be in line with the guarantee to all nations that "[n]o governmental authority of the region has the power to suspend or disregard the Constitution or the Legal Code"[note]The Bill of Rights for all Nations of The North Pacific, clause 11[/note]. It is also to be noted that, in relation to action or inaction of governmental bodies, the Court did not claim to limit those bodies just to the executive or judicial, nor does the Constitution set any such limit (indeed, the strict words of the Constitution do not include actions at all). Additionally, if I may, I would suggest that, in respect of Section 9.1,[note]Legal Code of The North Pacific, Section 9.1[/note] the ruling of the Court on Standing cannot have been expected to cover policies made by the Assembly under it as Section 9.1 only entered into law in May of 2015[note]
Emergency Law Bill passed by the Assembly;
presented to the Delegate;
signed by the Delegate[/note]
Now, I submit that the motions in question would amount to policies made by the Regional Assembly. Further, I submit that the Regional Assembly is a government body and that, consequently, were it to adopt those policies, those policies would be government policies. I accept that the Assembly is a legislative body, not a judicial or executive one, however, I submit that this does not mean its policies are beyond the scope of judicial review; as I have noted, judicial review can extend to the policies of legislative officials, in the form of the Speaker, and I do suggest that the Court in its ruling on Standing was not exhaustive or else has barred judicial review of the Security Council's policies also. It is suggested by the Deputy Attorney General that the fact that the motion is proposed by someone other than a government official means that it is not government policy, with respect to the Deputy Attorney General, I must disagree, a policy adopted by a government body such as the Regional Assembly is a government policy and reviewable as such.
In the alternative, I would submit that the Regional Assembly, were it to exercise its power under Section 9.1, would be taking a government action. In respect of actions, I note again that there is no differentiation with respect to the nature of the body exercising the power in the Ruling on Standing, so even if the Court disagrees on the point of legislative policy being within scope, there is nothing in the ruling to say that legislative action is without judicial review. Consequently, as an action by a government body the motion is open to review.
I should note, in my submissions to this point I stated that "were" the Assembly to adopt the policies or take the action they would be open to review, this is not to say that because they have not yet been so adopted or taken that they are not reviewable. To accept that proposition would be to accept that the Court is incapable of restraining government bodies or officials from making illegal policies or taking illegal actions, which, I submit, would be an incorrect course for the Court to take. Were a citizen to submit to the Court evidence that the Delegate proposes to and will illegally eject them from the region, the Court ought not simply sit back and accept that such can be done, permitting a violation of the rights of the citizen; it is open to the Court to restrain government officials and bodies from making illegal policies or taking illegal actions in order to better secure the rights guaranteed to nations (particularly in cases where the violation cannot easily been done, in view of the lack of any possibility for restoration through some mechanism such as damages, in contrast to the position one might find RL).
Now, on this point, the Constitution is slightly unclear as to whether the policies which the Court is to review are to be extant policies only or whether they can include prospective policies and the Court in its ruling on Standing appears to have missed the possibility of the need to restrain future policies or action, however, again, I stress my submission that the ruling on Standing is not exhaustive of the scenarios in which judicial review exists and that there are strong policy reasons for holding that prospective policy or action is amenable to review; indeed, I would go further and submit that there is justification in the Bill of Rights for such action in order to vindicate the right of nations to be protected against the abuse of powers[note]The Bill of Rights for all Nations of The North Pacific, clause 5[/note]. I would submit to the Court that the proper holding is that request regarding prospective policies or actions are permissible and do not, necessarily, fail, but that the requirement identified in the Ruling on Standing that there must be a clear connection with the matter complained of and the affect on them must be stressed and that it must be recognised that prospective events are less certain and therefore less likely to demonstrate a clear connection.
Moving now to the issue of laws passed by the Regional Assembly. It is submitted by the Deputy Attorney General that the Court was not exercising its function in relation to laws in terms of reviewing their Constitutionality or conflicts or ambiguity in them, it is my submission that the Deputy Attorney General is incorrect in this. The request for review that the Court accepted clearly raised issues with respect to the constitutionality of Section 9.1, in relation to the propriety of the majority it requires, on the face of the request, in the portion dealing with prior rulings.[note]
Request for Review made by Lord Ravenclaw; "I would argue that in order for this proposal to legally able to force resident nations who happen to meet the specific criteria as stated, it would need to be treated by the Speaker as a law that requires equal standing to the Bill of Rights and would require a 3/4ths Majority of the Regional Assembly to enact (Article 9, Clause 2 of the Constitution). I would note that at the time of writing, this was being pushed as an Emergency Situation and requires a simple majority vote."[/note] Further, I would submit that the view stated by the Deputy Attorney General is overly simplistic in terms of how requests for review must be considered. The Deputy Attorney General submits that the request relates only to the motion and does not request any review of constitutionality or consideration of ambiguity in relation to Section 9.1 (though, as I have noted, the request does, in fact, raise the issue of constitutionality directly); it is my submission that in order to determine the validity of the motion it is absolutely necessary for the Court to consider ancillary questions relating to the constitutional scope of the Section 9.1 power, such as the meaning of "actual emergency" and the nature of what constitutes "express consent", for how else could the Court determine what would be a valid exercise of the power, and that where the Court is requested to answer a question which has, ancillary to it, such questions of constitutionality and interpretation, it is proper for the Court to regard the question put to it as encompassing those ancillary questions which need to be answered to resolve the main question. I would further submit, on this point, that the Court ought not, for practical reasons, follow the restrictive course of the Deputy Attorney General, as in TNP we cannot expect particular legal knowledge as to how a person ought correctly state their questons so as to encompass all they wish to encompass; knowledge of TNP's legal system is often lacking, particularly so in newer residents, and, unlike in other legal systems, we do not enjoy formal provision of legal advice or representation to make up for that lack of knowledge, and residents should not be punished for that, rather, the Court should be able to put its knowledge to use so as to support residents seeking to vindicate their rights.
In respect of answering questions as to the constitutionality and interpretation of the scope of a law, I would repeat my submissions in respect of prospective breach and put to the Court that, where there is a prospective breach capable of demonstrating a clear connection between it and the extant law, there is no principled reason why the Court should require a nation to have their rights injured, rather the Court should and can seek to restrain such breaches from occurring.
Now, for the second substantive portion of my submissions, I will address the question of how the Court should approach requests for review targeting the Court in its review capacity.
I will begin by noting that I accept, as the Court has previously held, that the Court is not immune to judicial review.[note]
Ruling of the Court on the Nature of Precedent and the Scope of the Court's Powers; "The Court believes COE's intent was such, and holds that, as specifically mandated by that Article, the Court is
obliged to review its own decisions should the need arise (and a proper request be made - arbitrary requests for review every time a new Court is elected are not permissible), as it is responsible for doing with all governmental policies." (emphasis in original)[/note] However, it is informative, I submit, to consider the comments that the Court made when it made that holding in respect of how the Court should proceed when it is considering the matter of a request for review of its own actions. First, it is to be noted that a request must be a "proper" one and not of an "arbitrary" nature, simply seeking to get a different answer through a differently composed Court; with respect to the Acting Attorney General, I must submit that this request appears to be straying dangerously close to engaging in an "arbitrary" request, having failed to get the answer sought from the original request's Court, an alternate Court of THOs has been sought to produce the desired result. Second, it is to be noted that the Court, in its ruling on Precedent, also stated that when engaged in a request for review in relation to the Court, that there must be a "heightened standard of review" and that it must be in response to "some factual evolution (not simply a request to look again)". I do accept that this was in relation to precedent and that the decision of a Court to accept a review and the final decision on the review are qualitatively different, however, I would suggest to the Court that in relation to each that there is the same interest in finality and in preventing litigants shopping for the Justices or THOs they want. It is not in the interests of the region to have all decisions of the Court in a review be open to challenge on the same basis as an ordinary request for review, it would severely impede the ability of the Court to function effectively and have a substantial negative impact on the rights of nations seeking vindication through the Court. It must be the case that the Court, in its conduct of a request for review, is accorded some deference, to hold otherwise would open the Court up to a potentially endless chain of requests for review, each seeking to overturn the decision as to whether the one before it was a proper matter for judicial review.
That is not to say, however, that the Court in its conduct of a request for review is wholly unimpeachable. I readily accept that there are circumstances in which it would be proper for a request for review against the Court in exercise of that function to be granted, however, I would submit that they are unusual and would require the court to be acting substantially outside of its proper jurisdiction or for there to be a real possibility of bias resulting from a conflict of interest (the latter being a point that has been ruled on, though not in particular detail).[note]
Ruling of the Court on Judicial Recusals[/note] Now, I say that the Court was, in fact, wholly and properly within its jurisdiction, so much of my submissions on this point are not strictly necessary to resolve this point. However, should the Court disagree with me and decide that there is some argument as to whether or not the matter in question is a proper one for judicial review, my submission is that, nonetheless, the Court ought to dismiss the objections made by the Acting Attorney General and accept that where there is reasonable argument in the question of the propriety of a matter for judicial review, the decision of the Court reviewing the matter ought to be upheld, lest the matter become one of simply asking the Court to look again to gain a different result by arbitrary variation in the membership of the panel; put simply, it is not sufficient that the panel of the Court in this review disagrees with the panel in the original review, the Court in the original review must be substantially outside of the range of proper decisions open to it for the interest in the finality of judicial decisions to be disturbed.
In view of my submissions, therefore, I would submit that the proper disposal for this request is to declare that the Court was acting properly and lawfully in reviewing the lawfully of what was either a prospective government policy or action and the ambiguity and constitutionality in the law dealing with emergencies; and that the Court, when conducting a request for review, must be accorded the benefit of deference as to whether a matter is proper for judicial review. Beyond that, I submit, no order is necessary.
I should also like to apologise to the Court that this brief has been entered so late in the day, I had been intending on entering a brief after the Deputy Attorney General, so as to more directly tailor my points to the matters that the Deputy Attorney General sought to argue, however, the Court does not yet have the benefit of a brief from the Deputy Attorney General and I do not think that I would be of much assistance if one is entered now and I seek to redraft this in a hurry, so I have entered my brief now.
roposals
