[private]R4R on Removal from Positions on the Basis of Criticism of Government Policy

SillyString

SillyString

TNPer
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ABC has filed and Bootsie has accepted, so I figured we should open a thread.

I think we should consider a longer than typical briefing period for this r4r - I suspect a number of people may want to weigh in, and may need some time to do so. I, for one, would like to hear from the delegate.

This is what I said in Discord:

[6:46 PM] King SillyString: soo.... I have some concerns about this r4r, but not specifically about accepting it.
[6:48 PM] King SillyString: Namely, I am somewhat concerned that if we were to rule that pallaith's actions did violate abc's freedom of speech, that we would be de facto convicting pallaith of grosse misconduct (or cleanly paving the way to a conviction), without a proper trial.
[6:49 PM] King SillyString: But this definitely seems like a case where the petitioner has standing and cause to bring the review.

So, I think we need to be extremely careful with our ruling.

I also think we will need to find the very fine line between ensuring the delegate can staff their branch as they deem appropriate and making sure that they cannot retaliate unfairly against TNPers who speak their minds.
 
I’ll be looking tonight to see if something similar has been ruled on before. You’re right though. We can’t deny the Delegate the right to remove his staff, but at what point does it turn from legal to illegal?
 

Judge JeluToday at 2:17 PM
https://forum.thenorthpacific.org/topic/9190212/
The North Pacific
Request for Review: Removal from Positions on the Basis of Critici...
1. What law, government policy, or action (taken by a government official) do you request that the Court review? Pallaith's removal of me from the...

I would rather not moderate this one
@bootsie @King SillyString interested in looking at this?
bootsieToday at 3:14 PM
I think we should accept it. There’s no reason I can see us not doing so.
And I’m up to moderating unless Asta would like to.
King SillyStringToday at 6:18 PM
Lemme look
King SillyStringToday at 6:46 PM
soo.... I have some concerns about this r4r, but not specifically about accepting it.
Namely, I am somewhat concerned that if we were to rule that pallaith's actions did violate abc's freedom of speech, that we would be de facto convicting pallaith of grosse misconduct (or cleanly paving the way to a conviction), without a proper trial.
But this definitely seems like a case where the petitioner has standing and cause to bring the review.
@bootsie I am fine with you moderating it
bootsieToday at 7:26 PM
Alright. I’ll accept the review forthwith.
King SillyStringToday at 7:38 PM
@bootsie I recommend giving a longer than normal period for briefs
I suspect this one is going to be tricky and quite a few might want to weigh in
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Judge JeluToday at 7:41 PM
I'm concerned that my comment on his post could cause concern that I'm partial
bootsieToday at 7:42 PM
Should I go ahead and say it’s extended?
King SillyStringToday at 7:43 PM
what comment, elu?
yeah, you can say something like "As a note, the briefing period will be <however long> for this review."
bootsieToday at 7:44 PM
10 days? Is that too long?
King SillyStringToday at 7:44 PM
that's what I was thinking so sounds good
https://forum.thenorthpacific.org/topic/9190215/ <--- discussion thread here
Judge JeluToday at 8:00 PM
This comment https://forum.thenorthpacific.org/topic/9190210/#post-10228377
I would ask that we make sure to keep in mind the TNP v Tomb precedent, and examine how it may or may not apply.
 
So, in TNP v. Tomb, the Court ended up ruling:

After deliberating on the case of The North Pacific v. The Democratic Republic of Tomb, the Court rules as follows:

The Democratic Republic of Tomb is found Guilty on the charge of Gross Misconduct.

Reasoning:

It is the Court's opinion that the Defendant's attempt to curtail the Complainant's criticisms of the NPA as a requirement to join constitutes a violation of the Bill of Rights, and is not justifiable. Having sworn an oath to uphold the Bill of Rights, the Defendant is guilty of violating that oath.
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The Court, intentionally or not, left the ruling very vague. I think this is important in making sure we don’t accidentally run into a case where we convict our own Delegate without a proper trial.
 
I think there may be two key distinctions between Tomb's case and this review.

1) Flem was a private citizen, seeking entrance into a body where applications are typically accepted pro forma. ABC, meanwhile, was a government official (gameside advocate), and made reference to his prior service as an official representative of the TNP government.

2) Flem was threatened with "if you do this we will block you from the NPA" before he said or did anything that might be problematic, which was a pretty clear attempt to stifle his speech. ABC, on the other hand, actually said something, and faced consequences as a result of what he said. TNP's bill of rights protects speech, but it cannot mandate there be no consequences for someone's choice of what to say - the whole game is speech, and consequences are inevitable.
 
That makes sense. So, to see where we stand, let’s say that ABC saw these actions in 10000 Islands, told Pallaith he was going to comment, and Pallaith said "don’t, or I’ll fire you." Would that be a Bill of Rights violation?
 
Hm. I think not.

This is clearest cut in the case of being part of the FA ministry. If the delegate tells you not to represent TNP in a particular way abroad, and you do it anyway, it's likely that that would have consequences for our foreign affairs. TITO would have been well within their rights to contact Pallaith and complain about an FA staffer using their role in TNP to push the agenda of another region. Such an action would indicate a lack of the critical judgement necessary to serve in that ministry, so the consequence of removal follows naturally from the offense.

It's less clear when it comes to Gameside Advocate. On the one hand, that's a role that doesn't relate to FA, so my first inclination was to think that that might be a step too far. I definitely would consider the delegate removing someone from ALL ministry staffs for something like this, or for contradicting them, to be a step too far. But Gameside Advocates are a privileged role, not one granted willy-nilly, and if someone takes an action unrelated to the role that, nevertheless, tells the delegate that they lake the judgement necessary for the role... it seems nonsensical to not be able to fire them over it. Plus, the action that ABC took was gameside and involved crossposting using his GA nation - one can argue that losing Regional Officer status is also a natural, if further removed, consequence to his action.

I think I would like to know how membership in the FA ministry is determined, and this would be a question for the minister or the delegate. Do they generally accept anybody who expresses interest, like the NPA and the culture ministry do? Or is it a bit more selective, with poor fits being declined? This might make a difference, if not in the legality of the firing then in how we lay out guidelines in the ruling. Bootsie, would you be willing to ask this question in the review thread?
 
Pallaith has responded to our inquiry:

Anyone may apply, the ministers retain the right to accept or deny applicants to executive staff as they see fit. Generally speaking the FA staff has had the strictest criteria for long term service and at times stricter criteria for joining staff (such as requiring citizenship rather than just accepting residency). In my experience staff turnover is higher in FA than any other ministry, and at least part of that is expecting a higher standard for diplomats compared to other kinds of staff.
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King SillyString:
2) Flem was threatened with "if you do this we will block you from the NPA" before he said or did anything that might be problematic, which was a pretty clear attempt to stifle his speech. ABC, on the other hand, actually said something, and faced consequences as a result of what he said. TNP's bill of rights protects speech, but it cannot mandate there be no consequences for someone's choice of what to say - the whole game is speech, and consequences are inevitable.
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Not quite accurate. Flemingovia had posted a hymn which satirized the NPA/NPA Doctrine on April 29th, applied to join the NPA on May 8th, and was rejected by Delegate instruction on May 10th. Whether that hymn was problematic or not is not a question the Court explicitly reached in ruling or deliberations over TNP v Tomb, rather it ruled that curtailing criticism (in general) was inappropriate. Nevertheless, there was action by flemingovia prior to the government action against him.
 
Earlier, on discord, abc had said he would post the telegrams of his conversations with the Delegate of 10000 Islands:

ABC03/22/2019
I will publish all the screenshots of my conversation with the Delegate of XKI later
Then you can come to your own conclusions
I'm sure the XKI Delegate came crying to Pallaith because she wanted revenge for me publicly humiliating them and twisted the facts about what actually happened in our many telegram exchange.(edited)
Siwale03/22/2019
She*
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More recently, they made this reference to those telegrams:

abc:
Closing down my region that is successful and actually makes me happy does not seem like a good thing to do.

For reference, I invoked two positions in one telegram as part of my signature. That was the extent of it.
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I think it may be advisable to ask for those telegrams to be shared with us (redacted for anything which is personal information or which it would harm the interests of The North Pacific to release, I suppose).

@bootsie is that something you would agree with? If so, would you ask such a question as Moderating Justice?
 
I’m not sure on doing that. Since this isn’t a criminal trial, I’m not really convinced that that really will sway the review one way or another.

@King SillyString What are your thoughts on this?
 
Hmm. I think it could matter, depending on the content - and depending on whether Pallaith was specifically aware of that content. For example, if the TGs show that ABC behaved badly, and Pallaith knew that, that's solid rationale for removing him from his positions. But if the TGs are friendly and respectful (something I'm a little skeptical of, given ABC's characterization that 10ki's delegate "came crying to Pallaith" and saying he "publicly humiliated" them), that could work against an argument that removing him as GA was a reasonable response.
 
A few additional thoughts:

1) I think the AG is right that we cannot rule on the specifics of this case - to declare that ABC's free speech was violated is tantamount to declaring Pallaith guilty of grosse misconduct, and I have no doubt that such a ruling would be used in a trial if that were to ensue. I think we do need to limit ourselves to ruling on the broader questions of the delegate's discretion over the makeup of the executive branch.

The Court DID rule on the specifics of a bill of rights violation in GM's inquiry regarding his citizenship denial, but I think the facts there were sufficiently different that that was okay. The rights violation occurred not because of a single individual, but due to inconsistent enforcement of a policy and perhaps changing policies by multiple speakers. That that resulted in a violation of GM's rights was not really attributable to any one speaker, and so declaring that it had occurred did not necessarily imply that someone had committed grosse misconduct. In this case, though, the action was taken by one person only, so if we were to explicitly hold that it was a violation of the BoR we would be overstepping.

2) I think we also need to look at the precedent set by the Ruling of the Court on the Suppression of Posts on the Regional Message Board:
Nationstates is a game with rules. Some of those are the game rules, some of them are the rules of the various hosting sites etc that we play the game on, and some of them are house rules that we invent ourselves to make the game more fun: kinda like receiving £400 instead of £200 when landing precisely on GO in Monopoly.

We call some of these house rules “laws” and have courts to arbitrate them. There are two reasons for this. The first is that this is a political/legal sim, and roleplaying Perry Mason is part of the fun of it all, and the other reason is because we are pretty sad individuals who have little actual power in real life, and the online fantasy of importance compensates slightly for our impotence in real life.

In this case, it is clear from testimony and reading the suppressed posts in context that technically Eluvatar abridged DD’s right to free speech. It is also clear that this was in the context of banter back and forth, playing the game, shooting the breeze etc.

What bewilders us is quite why the courts were asked to get involved. I mean, I know we are sad individuals living in our parents’ basement who badly need to get laid but instead play NS obsessively, but surely some things are just too trivial even for us?

There was no harm; there was no foul. Now excuse us, we have to go back and polish our medals. Y’all can carry on pontificating about this if you wish, but if you do so please detach a little bit of your mind to listen to yourself as you type, and despair.
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Amidst all the bizarre pontificating about the nature of NS, the court basically ruled that "the delegate violated free speech, but eh, it's just a game so who cares?". Unless we decide that we need to explicitly overturn that precedent, we are bound, to some extent, by what it says.

Personally, I would advocate for explicitly overturning that precedent - it's bad, it's poorly written and poorly logicked, and it makes a mockery of the court.
 
I think I've changed my mind on the screenshots, given #1 above. If we're ruling broadly on the delegate's ability to staff the executive, we don't need the details of who said or saw what and when. If ABC gets around to providing them that's fine, but I don't think we need to wait until he does so to rule.

So, here's the general outline of what I'm thinking:

1) The delegate has broad discretionary power over the makeup of the executive, including the ability to appoint and remove people at will.

2) Participation in any of the staffs is a privilege, not a right, and any staffer can be removed if, in the opinion of the Delegate or the appropriate Minister, their continued membership is not appropriate.

3) It is not a violation of free speech for consequences to result from what someone says. All of this game is speech and consequences - say the wrong things in a campaign and you won't get elected. Say the wrong words to another region and war were declared. Say the wrong things to the court and you get a guilty verdict. None of those violate your freedom to have said what you said.

4) The ability to realize consequences does not give the government the right to proactively try to squash speech it doesn't like, which is where Tomb went awry. Had Pallaith threatened to remove ABC from the FA ministry if he ever criticized an embassied region, that would be an illegal violation of his speech.

5) #4 notwithstanding, the delegate, as head of the executive, retains the right to control speech that is made on behalf of TNP. Just like only official government bodies can use the coat of arms, the delegate can absolutely forbid someone from speaking with the voice of TNP without their authorization. They can forbid an ambassador from officially negotiating a treaty - but can't forbid them from talking with another region about their personal hopes for good relations. They can forbid a random citizen from announcing an official TNP event - but can't forbid them from suggesting that it take place, or offering to plan it, or making it happen as a personal fun thing.

6) The question of whether Pallaith specifically violated ABC's freedom of speech is a question for a criminal court to decide, based on the above guidelines (and possibly others).

What do you two think?
 
King SillyString:
1) I think the AG is right that we cannot rule on the specifics of this case - to declare that ABC's free speech was violated is tantamount to declaring Pallaith guilty of grosse misconduct, and I have no doubt that such a ruling would be used in a trial if that were to ensue. I think we do need to limit ourselves to ruling on the broader questions of the delegate's discretion over the makeup of the executive branch.
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I disagree with this approach. Whether a violation of someone's rights is gross misconduct is a separate question, and I believe the text of the verdict in TNP v Tomb nods to this in saying it wasn't "justified."

If the only guidance we gave to the executive on what actions are out of bounds could be through verdicts in trials of Grosse Misconduct, officials would face unnecessary jeopardy that could be avoided through obedience to court orders before something gets that far.

Under this construction, gross misconduct would be if someone (A) ignores a court order or (B) otherwise acts in a manner that shows clear intent to disregard rights. For example in the case of TNP v Tomb, the prosecution highlighted that the Minister of Defense had told the Delegate their instructions could run afoul of Flemingovia's rights.

Regarding the RMB ruling, I would agree with explicitly ruling out applying that ruling, but I may be partial on that question having been ruled against (?). Would I be fine with abstaining on that part of the ruling, or would my finding it inappropriate to vote to overturn that mean we need a THO...
 
I’ve been recovering from a bad sinus infection, so I apologize for the delay. I agree with Asta, ruling on Gross Misconduct in this case would surely mean it would be used in a criminal court as evidence to convict Pallaith. I would also be in favor of overturning the court’s precedent on the suppression of posts, but I’m likewise curious on how Eluvatar would remain impartial to the ruling being overturned. I think at this point the Court has enough to put together a ruling on this request for review.
 
Hmm. We could note in the ruling that Eluvatar concurred in part and abstained in part, and you and I can make the call on how to handle the RMB ruling.

Or, we could write a ruling that elu hates and force him to dissent in full. :D
 
court_seal.png


Ruling of the Court of The North Pacific​
In regards to the judicial inquiry filed by abc on the Delegate's Power to Staff the Executive Branch
Opinion drafted by [[name]], joined by [[name(s)]], with [[name(s)]] [abstaining | dissenting]​

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

The Court took into consideration the legal brief filed here by Crushing our Enemies.

The Court took into consideration the answer to a question from the court filed here by Darcania.

The Court took into consideration the answer to a question from the court filed here by Pallaith.

The Court took into consideration the relevant portions of the Constitution of The North Pacific:
Article 3:
1. The Delegate will be the head of state and government of The North Pacific and hold the in-game position of delegate.
8. The Delegate may appoint executive officers to assist them and may dismiss these officers freely. Executive officers may be regulated by law.
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Article 7:
2. Government officials are the constitutionally-mandated elected officials, any officials appointed by them as permitted by law, and members of the Security Council.
3. The executive category consists of the Delegate, Vice Delegate, Attorney General, and government officials appointed by government officials in the executive category.
8. All government officials will swear an oath of office. The content of these oaths will be determined by law and be legally binding.
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The Court took into consideration the relevant portions of the Bill of Rights of The North Pacific:
2. Each Nation's rights to free speech, free press, and the free expression of religion shall not be infringed, and shall be encouraged, by the governmental authorities of the region. Each Nation has the right to assemble, and to petition the governmental authorities of the region, including the WA Delegate, for the redress of grievances. The governmental authorities of the region shall act only in the best interests of the Region, as permitted and limited under the Constitution.
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The Court took into consideration the relevant portions of the Legal Code of The North Pacific:
Chapter 4 Section 4.1:
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.
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The Court took into consideration the relevant portions of its ruling on the Suppression of Posts on the Regional Message Board:
In this case, it is clear from testimony and reading the suppressed posts in context that technically Eluvatar abridged DD’s right to free speech. It is also clear that this was in the context of banter back and forth, playing the game, shooting the breeze etc.

What bewilders us is quite why the courts were asked to get involved. I mean, I know we are sad individuals living in our parents’ basement who badly need to get laid but instead play NS obsessively, but surely some things are just too trivial even for us?

There was no harm; there was no foul.
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The Court took into consideration its verdict in the case of The North Pacific v. The Democratic Republic of Tomb:
It is the Court's opinion that the Defendant's attempt to curtail the Complainant's criticisms of the NPA as a requirement to join constitutes a violation of the Bill of Rights, and is not justifiable. Having sworn an oath to uphold the Bill of Rights, the Defendant is guilty of violating that oath.
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The Court opines the following:

[[Whatever it is we opine]]
 
I believe the above is the list of things we might reference in our ruling.

Eluvatar:
We wouldn't be ruling on gross misconduct, we'd be ruling on whether a policy was constitutional.
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An action, not a policy. There's a big difference - a delegate can have the legal authority to issue a policy and have that policy turn out to be illegal without necessarily committing gross misconduct, such as if they reasonably thought the policy was legal, were given guidance it was legal, or rescinded it as soon as they became aware it was not. It's a lot harder to argue that a delegate can legally do an illegal action (though god knows the prior court managed to find a way to rule that way...).

As for the standing portion of our ruling, here's what I've got as a draft:
On Standing in this Inquiry

The Court has determined that abc does have the standing to bring this request for review, with some restrictions. As someone who believes that their right to free speech was violated by a government official, abc unquestionably has the standing to bring the matter before the Court. Any nation of TNP who believes their right to free speech was violated by a government official or government policy would have the standing to bring that question in a similar fashion.

On the Scope of this Inquiry

Although abc has the standing to bring this request for review, the Court is nevertheless unable to provide an answer on the exact question that was asked - namely, whether Pallaith's actions specifically constitute a violation of abc's freedom of speech. As the Attorney General has pointed out, to do so would be its own violation of Pallaith's rights to a fair and impartial trial before conviction of a crime.

This differs from the Court's prior ruling in Gracius Maximus' request for review of his citizenship denial, as the rights violation in that case was a result of changing policies with inconsistent enforcement from several Speakers, not just the one currently holding the office. In that case, a finding that the change in policies resulted in unequal treatment was not an implicit conviction of any current or former government official.

Therefore, in this case, the Court has determined that it can provide a ruling of modified scope. Namely, we will rule on the extent of the delegate's power to staff the executive branch, and provide some general guidelines for when the use of such power could constitute a freedom of speech violation. Any specific allegations would then need to be settled via a criminal trial.
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Obv feel free to critique the above.
 
I vehemently disagree with the notion that doing anything which is illegal is automatically gross misconduct. There's a reason we call it gross misconduct.
 
It's not that doing anything illegal is necessarily grosse misconduct. It's that the court finding that someone did something illegal is going to be used against them in a criminal trial, and that's likely to destroy the impartiality of the trial - or the public perception thereof.

Plus, we can't control what future courts would make of such a ruling.
 
I disagree that it destroys the impartiality of the trial, and we can never control the future application of any ruling we make.

Our rulings from the last term could be referenced in prosecutions of the Delegate or Speaker for Gross Misconduct, but it would be inappropriate for us to refuse to make them for that reason.

Furthermore, even if we rule that the Delegate's actions are illegal, our ruling to that effect can still be questioned in a hypothetical trial by the Defense. (Also, the Delegate and their cabinet had every opportunity to file a brief during the 10 day window we provided).
 
I take your point that we can't control the future.

Regardless, I think this case differs significantly from the previous one, and in ways that mean we cannot actually rule on the legality.

With GM, nobody's motivation or knowledge about the other party was in question. We did not need to interrogate GM's actions, or Artemis' knowledge of those actions, or ask for statements from either party regarding their rationale for behaving the way they did. It was inconsistency in policy that caused the rights violation, and individual motivations were irrelevant - I'm sure Artemis acted with the best of intentions, but that didn't make the treatment of citizenship applications suddenly non-disparate.

In this case, though, all of those would be needed to truly determine if Pallaith violated ABC's free speech. It matters what the content of ABC's telegrams with 10ki were, and it matters if Pallaith was aware of that content, and it matters what Pallaith's rationale was for removing him from foreign affairs over it, and it matters whether the GA removal was based just on the 10ki conversation or whether there were additional performance issues, and so on. All of that is information that would need to be ascertained by questioning, ideally by deposition, and that tells me that a request for review is not the appropriate venue to adjudicate the question.

Edit: I joked on Discord about the possibility that abc committed grosse misconduct due to his actions being influenced by an outside force, but like, that would also have a bearing on the illegality of Pallaith's actions, and is yet another factor we can't actually determine for this review. I think the Delegate is fully empowered to fire someone from the executive branch for malfeasance and that there's no way that that's a speech violation.
 
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Having reviewed our constitutional history I find that we made a potentially significant change when we adopted the current constitution on August 22, 2012.

after:
1. The Court will try all criminal and civil cases, resolve conflicts or ambiguities in the law, and review the constitutionality of laws or government policies.
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before:
The Judicial Branch is invested with the powers and obligation to investigate the constitutionality of Government policies, actions, and laws. It is also tasked to provide an impartial platform by which suspects of crimes against the region or against others are tried.
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In addition to reducing the Court's power to be reactive, not proactive, the new constitution removed the word "actions" from the list of reviewable things.

This suggests to me that one could indeed question the Court's capacity to review particular actions of the government that aren't policy as such.

I will consider this further...
 
Hm.

There are some other court rulings that are germane:

The Court rejects COE's assertion, and maintains that, subject to the request of an affected party, it may review and offer its legal opinion on any action, policy, law, rule, or decision made by any government official.
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The Court has found in its previous decision Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by Mall on the restarting of the Vice Delegate election that "the Electoral Commission constitutes a "governmental authority" for the purposes of Article 9 of the Bill of Rights." Thus, its actions are indeed subject to review for violations of the requirement for observance of due process of law laid down by that Article, as the petitioner has requested.
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The Court finds that Justice Scorch's action in accepting the request for review filed by Lord Ravenclaw on November 28, 2017 violates Article 5, Clause 1 of the Constitution, because the object of the request (namely, a proposal before the Regional Assembly) is neither a law, a goverment policy, nor a government action.
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More broadly, the Court finds that justices are prohibited by the Constitution from accepting a request for review of anything that is not a law, government policy, or government action. When a justice does so, the Court ought to find in their ruling that the object of the request is not within the scope of their review power, and decline to rule on it.
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There are some others but I'm tired of quoting. To summarize, though, the Court has long believed that it has the power to review the actions of government officials and has taken several reviews on such questions and made determinations. We could overturn that officially, but... I am not sure if we want to do that.

And we previously had in the Legal Code:
7. The Attorney General may request expedited judicial review of any executive action by any official.
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Oh, also - the court template for requests for review allows for the review of actions by government officials. That could still be in error but we'd be changing a pretty long-held view of what the court can do.

Elu, was there any discussion about an intent to alter the Court's power with that change, or was it seen as cleaning up language without major implications?
 
I could find no discussion of that change whatsoever, so it may be most easily seen as cleanup not intended to have substantive effect. I haven't done a search of IRC logs, however.

Given the understanding that we need to include actions in the scope of reviewable things, I would include language such as this in any ruling:



The court considered whether answering the question of whether Pallaith violated abc's freedom of speech rights or not would constitute answering the unasked question of whether someone committed Gross Misconduct or not, and whether such a question could therefore only be answered through the due process of a criminal trial.

The court finds that ruling on questions of law and fact that could be applicable to questions of guilt or innocence does not preclude further information or argument leading to a separate finding of guilt or innocence in a trial. Therefore, the Court is not prevented from discharging its obligation to review the legality of government policy. Therefore, the Court must answer the question as posed, on the basis of the available information.
 
Sorry, but I can't agree with that. I do not believe we are able to answer the question as posed - namely, whether pallaith's actions, specifically, were legal. There's too much information we would need to make that determination, and it's information best suited to discovery in a criminal trial, not us asking a bunch of questions.

I believe we can answer the underlying question of the delegate's ability to remove people from the executive, and when such acts can constitute a violation of free speech, but no more.
 
To add, after reviewing prior rulings, I also do not think we can reasonably overturn precedent about reviewing court actions.

The Court rejects COE's assertion, and maintains that, subject to the request of an affected party, it may review and offer its legal opinion on any action, policy, law, rule, or decision made by any government official.
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The Court does not believe, however, that precedent may be overturned sua sponte (unilaterally, at the Court's discretion, without an action being brought), nor do we believe that precedent may be disregarded unless it is conclusively overturned. We furthermore believe that a heightened standard of review must be followed when reviewing the decisions of a previous Court, out of respect and deference to the law as established by our predecessors. Should it come to pass that precedent must be overturned, this Court believes that that decision must only be made after all legal alternatives have been examined, and must be done in as transparent and explanatory a fashion as possible.

In other words, the Court must explain itself fully when overturning precedent. The Court must try, wherever possible, to act in accordance with precedent, so long as that precedent does not conflict with new law, or the fundamental principles of justice established by the Constitution and Bill of Rights.

To specifically answer r3n's questions, the binding effect prescribed by the Constitution applies to the Court to the extent that it does not bring the Court's precedent into conflict with the Constitution or with subsequent substantive law. The Court may overturn its prior rulings, but must do so in response to a new request as a result of some factual evolution (not simply a request to "look again"), and must do so concurrent with the publication of its reasoning in doing so. The Court must avoid disregarding precedent wherever possible, but cannot, in the interests of justice and fairness, be irrefutably bound by precedent regardless of the consequences.
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As nobody has asked that we review this ruling, and as the constitutional section it draws upon has not changed, I believe we are obligated to accept it as given unless we have a really compelling reason to do otherwise. I don't think this presents such a reason.
 

King SillyString04/12/2019
@Court can we have like... a chat session or something? I really think we need to hammer out what this ruling is going to say. And figure out if we can come to a unanimous agreement somehow or if this is going to be a ruling with dissent
I don't mind drafting the actual language I just... don't really know where we stand on what to include
bootsie04/12/2019
Yeah. I’m up for a chat session.
King SillyString04/12/2019
where do you stand on what elu and I have been arguing about in the court thread, bootsie?
bootsie04/12/2019
I still don’t think we should be answering if Pallaith is guilty of misconduct. If I’m reading Eluvatar’s posts right, which may not be what he’s implying.
King SillyString04/12/2019
That's what it reads like to me as well
My thinking for the ruling is that we a) lay out abc's standing, b) explain the change of scope, c) pontificate wildly about the nature of executive power, free speech, and compulsion and pressure, d) lay out some guidelines around the extent of the delegate's power to staff the executive branch, and e) posit some situations where the delegate's power would be limited
bootsie04/12/2019
If ABC wanted to accuse Pallaith of Gross Misconduct, he could’ve taken Pallaith to criminal court.
King SillyString04/12/2019
yeah
bootsie04/12/2019
And we have one brief that was posted.
Just one.
King SillyString04/12/2019
yeah. >_>
granted we don't have to agree with brieds
briefs even
but it'd've been nice if we had a little more to draw on
does that outline sound good to you?
boooooooots pay tenshun to me
bootsie04/12/2019
My bad.
That sounds great.
Now we need Elu.
King SillyString04/12/2019
good luck there he's off turtlin :D
ok so boots give me some pontificating
when do you think the delegate is justified in firing someone, and when are they not?
or rather
when do you think them firing someone would be illegal
(vs just an overreaction or w/e)
bootsie04/12/2019
When the Delegate is going out of their way, either knowingly or accidentally to infringe on the rights of a member of the executive.
King SillyString04/12/2019
well ok but I meant more like
what sort of circumstances would make you think that that might be happening
Eluvatar04/12/2019
I'm in a car
King SillyString04/12/2019
That's definitely criminal
Eluvatar04/12/2019
And will continue to be in a car for at least another hour
King SillyString04/12/2019
wowza so crime
boots: for example, I think it would probably be a violation for the delegate to retaliate against someone who reported something unethical going on by removing them from all executive branches. Or to kick someone out of the executive because the delegate suspects they're going to run in the next election and they don't want them to gain more experience.
Eluvatar04/12/2019
I'm definitely not arguing we should use the word misconduct to describe what question we're answering
But I don't think it's appropriate to decline to say how our ruling applies to the actual question asked
King SillyString04/12/2019
you have not really responded to my point that we don't have enough information to determine that
Eluvatar04/12/2019
No, I hadn't
King SillyString04/12/2019
or that I don't think we can sanely get that information
Eluvatar04/12/2019
If we decline to rule on the question, anything else we say is dicta
King SillyString04/12/2019
not sure what you mean by dicta
but the other option would be to say "sorry we shouldn't have accepted it after all"
except without clarifying why we shouldn't have accepted it we'll be laughed at
Eluvatar04/12/2019
The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.
King SillyString04/12/2019
Ah. We don't really have that concept in TNP.
all of the court's ruling is binding
Eluvatar04/12/2019
We can explain why we're not ruling on the question without that being dicta
King SillyString04/12/2019
So what is it you want us to do?
Eluvatar04/12/2019
It's unconstitutional for the court to issue oh by the way drive by rulings
I want us to answer the question
King SillyString04/12/2019
no it isn't
ok well bootsie and I aren't on board with ruling on whether pallaith violated ABC's rights.
Eluvatar04/12/2019
But failing that I don't want us to refuse to answer it but then pontificate on hypotheticals
King SillyString04/12/2019
it's not pontificating on hypotheticals!!
Eluvatar04/12/2019
That, in my opinion, is out of order
King SillyString04/12/2019
I want us to lay out guidelines for proper behavior that could, potentially, be used in a future criminal trial
that's not hypothetical.
Eluvatar04/12/2019
I'm confused
I thought you wanted to steer clear of criminal matters
<_<
King SillyString04/12/2019
we can't rule on a case but we can say "xyz would be instances where the delegate would NOT be able to unilaterally staff the executive"
and then if ABC wants to charge pallaith with a crime, the court handling that (and the attorneys) can draw on those guidelines
Eluvatar04/12/2019
I think it would be inappropriate to make such determinations that aren't necessary to complete the review
King SillyString04/12/2019
I think we are at an impasse.
Eluvatar04/12/2019
I'd be at home with such determinations that led to an answer
King SillyString04/12/2019
We can't get to an answer!
We CANNOT answer the question.
Eluvatar04/12/2019
But we must not legislate from the bench
King SillyString04/12/2019
It's not goddamn legislation
The BEST we can do is to clarify freedom of speech and the delegate's discretion in hiring and firing, in hopes of being some help for a future criminal case.
But we cannot rule on whether a crime occurred or if rights were violated.
Eluvatar04/12/2019
I have at no point suggested that we should rule on whether a crime occurred
King SillyString04/12/2019
You think we should answer the question and the question is if ABC's rights were violated. We cannot rule on that.
Eluvatar04/12/2019
But in my opinion we absolutely should rule on the rights question
King SillyString04/12/2019
We can't
We ethically can't, we constitutionally can't, and we informationally can't.
Eluvatar04/12/2019
Then we can't review the legality of government policies in many if not most cases
King SillyString04/12/2019
You are wrong.
Eluvatar04/12/2019
That we disagree is known to me
King SillyString04/12/2019
Actions are not the same as policies and the specifics of a situation matter when it comes to what we can determine.
Eluvatar04/12/2019
If actions aren't policies, we can't review actions full stop
King SillyString04/12/2019
Wrong.
Precedent states we can review actions
we can overturn precedent but that's what we'd be doing
Eluvatar04/12/2019
Therefore precedent says actions are policy
King SillyString04/12/2019
No, it doesn't.
Precedent says that the court can review actions, not that actions are policy.
Eluvatar04/12/2019
Precedent must be understood in the context of the law
King SillyString04/12/2019
But also, that's irrelevant and tangential to what we can determine about any particular situation.
Eluvatar04/12/2019
We have precedent that if law disagrees with precedent, law wins.
King SillyString04/12/2019
We have court ruling that says we're bound by precedent unless requested to review it.
which we were not.
Eluvatar04/12/2019
Therefore, to apply this precedent we must interpret it consistently with the law
King SillyString04/12/2019
It would be a massive violation of protocol for us to overturn years of precedent and probably half of all prior rulings.
The law hasn't changed. The court has previously determined that actions are reviewable and the law has not changed since then.
Eluvatar04/12/2019
Yes, it would
King SillyString04/12/2019
We have no cause to revisit the court's ruling.
Eluvatar04/12/2019
Therefore actions count as policy
King SillyString04/12/2019
jesus christ
no.
Therefore actions are within scope of our power
Eluvatar04/12/2019
But your argument descopes them from review
King SillyString04/12/2019
The court does not rule that actions are policy and you cannot categorically state that it is so.
No it fucking doesn't
Eluvatar04/12/2019
You've made the argument for why we can't rule on the question that actions are different from policies
King SillyString04/12/2019
headache
We cannot responsibly issue a ruling in this r4r that states that the court cannot review the actions of government officials.
Eluvatar04/12/2019
If illegal actions can't be ruled on because that'd mess with gross misconduct charges, that's where we are
King SillyString04/12/2019
That is not the same as saying that we cannot differentiate between any action and any policy.
this action we cannot determine the legality of.
Eluvatar04/12/2019
I have not suggested that we rule actions can't be reviewed
King SillyString04/12/2019
That is not the same as saying that we categorically cannot determine the legality of any action.
Eluvatar04/12/2019
I'm arguing that your approach amounts to that
King SillyString04/12/2019
Because, as I have been saying, context matters
it does not, and I am telling you it does not!
Eluvatar04/12/2019
So when can we review the legality of an action?
King SillyString04/12/2019
when it is appropriate to do so. When a determination of the status of the action would not put an official at risk for gross misconduct charges. for example, we can review the decision of election commissioners to, say, not restart a voting period. We can determine that not restarting the voting period was incorrect and order it be done as a remedy - such a determination would not strongly, strongly imply that the ECs were guilty of a crime because ECs broadly have some discretion in when to restart voting periods or when not to, and making a mistake is not criminal.
Eluvatar04/12/2019
So can we rule on the legality of an ejection?
King SillyString04/12/2019
that's a very broad question and I am trying to be extremely clear with you that all the context matters
Eluvatar04/12/2019
And why doesn't the delegate have discretion?
King SillyString04/12/2019
.... Because the constitution and bill of rights and legal code don't give the delegate discretionary ban power????
Eluvatar04/12/2019
I'm afraid of a precedent we create that nation X can't get their ban undone without getting the ejector convicted of Gross Misconduct
King SillyString04/12/2019
I believe I can assuage your concerns
11. Violators of NationStates rules may be subject to summary ejection or banning.
12. Nations recruiting for other regions may be subject to summary ejection or banning.
13. Nations for which the Court has issued an indictment permitting it may be ejected or banned.
14. Nations that have been so sentenced by the Court will be ejected or banned.
15. The official performing an ejection or ban will promptly inform the region and Government.
16. The Serving Delegate may regulate the Regional Message Board as they see fit.
17. Such regulations may not prohibit speech which is in the context of TNP politics.
18. All actions of the WA Delegate, the Serving Delegate, or of their appointed Regional Officers related to this section will be subject to judicial review.
Eluvatar04/12/2019
Similarly we could hypothetically order that abc be returned to one role or another
We definitely can't do that in a Gross Misconduct trial
King SillyString04/12/2019
(iow, the right to review of a ban is explicitly enshrined)
Eluvatar04/12/2019
But you agree actions are reviewable, but say they aren't reviewable when that might show misconduct by an official
I don't see how the statute is better than the clause of the Constitution that gives us review power in the first place, here
King SillyString04/12/2019
but also, to expand on context, I think it would be reasonable for the court to look at whether a ban followed proper procedure and could therefore be upheld or not. It would, in general, be a hard sell that "not following procedure by mistake" counts as grosse misconduct. But I do not think that the court could rule that someone's freedom of speech was violated due to being improperly banned - a finding of that sort of rights violation presents a much stronger case for misconduct.
To put it another way, if pallaith had also banned abc, I think we could say that the ban did not follow procedures permitted under the legal code and must therefore be overturned. But we could not rule on whether it was a free speech violation
that this case involves free speech really matters I think
Eluvatar04/12/2019
But violating freedom of speech is the only way RMB-regulating bans can really be illegal
King SillyString04/12/2019
because the court would need so much information to determine if free speech was violated that we cannot responsibly do so
no it's not
The delegate only gets to ban in certain circumstances laid out in the law. If none of those circumstances were met, the ban is not permitted
(separately, even if those circumstances are met, the ban could still constitute grosse misconduct if it violated someone's free speech)
(maybe)
(I haven't really thought that through yet)
For me, the fact that this involves an alleged rights violation is hugely important in what we can figure out. It's one thing to "just" not follow the law exactly right. We all do that sometimes, mostly accidentally, and it's not a big deal. But it's another thing to not follow the law to the extent that you violate someone's freedom of speech.
Eluvatar04/12/2019
I don't think freedom of speech is of a different color than the other rights
King SillyString04/12/2019
Plus, the fact that I feel the need to expound upon and qualify when the delegate can and cannot fire people without breaking the law or violating their rights, and that there are a LOT of specifics I feel the need to hash out, tell me that we cannot satisfactorily determine if a rights violation occurred in the context of a request for review.
Eluvatar04/12/2019
Protection of the right to vote, etc, are also in the bill of rights
The real question is whether the removal was legal
King SillyString04/12/2019
IMO, we would have to know, beyond a shadow of a doubt, what pallaith knew about what ABC said to 10ki, and what pallaith said to others about it, and whether pallaith thought ABC committed misconduct, and maybe whether ABC did commit misconduct, and whether ABC actually did criticize the TNP government before being fired as he alleges he was fired for, and a whole bunch of other things.
To determine if the removal was really legal.
I think the most we can say without knowing all of the facts of the situation is that a) the delegate generally can staff the executive as they wish, and also b) there are times where exercising that power can constitute a violation of someone's rights.
But we are not the inquisition and we are not able to determine all of the facts of the case. We cannot compel people to answer. We would be grossly violating our neutrality to try to come up with the complete list of everything we would need to know, even.
That is why that is best determined in a criminal trial - we simply do not have the capacity to determine everything we would need to rule on the question that was asked.
Eluvatar04/12/2019
I don't think we can say (a) or (b) here without giving some kind of answer regarding abc
King SillyString04/12/2019
I disagree.
Can I show you?
Eluvatar04/12/2019
I don't mean that it's impossible to write such language without implying
I mean I don't think it's in order for the court to do that
King SillyString04/12/2019
then the only remaining option is to back out of the case
Eluvatar04/12/2019
Yes
King SillyString04/12/2019
I don't think that's a great option either.
Eluvatar04/12/2019
We didn't have the brief arguing this before we agreed to take it
King SillyString04/12/2019
I mean, that's almost exactly what abbey et al did that I complained so hard about with the mall/raven/xmas fiasco
granted, they didn't unaccept it, they kept it accepted and tried to say "nah no ruling"
We also didn't need this brief
I presented the same concern before the review was even accepted
I did not see that as a stopper because I do think we can rule around it, while declining to answer the original question.
Eluvatar04/12/2019
I don't think we can substitute a new question
King SillyString04/12/2019
This review is a HUGE opportunity for us to provide some clarity about the freedom of speech and to strike down a shitty former ruling that mocks everything we do.
Once we've accepted the request, I think we owe a ruling.
Eluvatar04/12/2019
Yes but we can't have our cake and eat it too
King SillyString04/12/2019
But I think part of our ruling can be that we can't answer the question that was asked
Eluvatar04/12/2019
If we want to make a ruling on the merits, we have to make a ruling on the merits
King SillyString04/12/2019
I don't think we're obligated to do that
Eluvatar04/12/2019
I think if we make such a ruling we have to stop there
King SillyString04/12/2019
I think our obligation is to rule something, but that we have to use our best judgement about what it is we rule.
and I believe that we are allowed to change the scope of our ruling if that is necessary after due consideration
Eluvatar04/12/2019
Maybe I can draft the actual core of how I'd want to rule, and we can see where the exact difference lies
King SillyString04/12/2019
sure
Eluvatar04/12/2019
We're allowed to "review the constitutionality of laws or legality of government policies by request of an affected party."
I don't think we can rule on policies we decline to say whether they affected the applicant
April 13, 2019
King SillyString04/13/2019
ABC was unquestionably affected by being removed, but that's not the same as having his rights violated
Eluvatar04/13/2019
But the policies we'd be ruling on, we'd be separating them from ABC(edited)
King SillyString04/13/2019
Since you're the only one talking about policies, can you clarify what you mean?
bootsie04/13/2019
Man, y’all really went at it last night while I was away.
King SillyString04/13/2019
Yeah sorry about that
(not rly sorry :P)
 
So, after more time spent arguing, it looks like we are at something of an impasse. Correct me if I am wrong:

Eluvatar believes we have to either answer whether Pallaith violated ABC's rights, or turn around and reject the r4r outright. He believe we cannot legitimately answer the other issues raised in this review without doing the former.

Bootsie and I believe that we cannot answer whether Pallaith violated ABC's rights, and that we can still legitimately answer the other constitutional and legal issues. I am not sure where Bootsie falls on the question of whether we should reject the r4r with no answer, but I personally do not feel that that is necessary. I am not convinced by Elu's stance that unless we answer the original question, the validity of our ruling could be suspect.

Accordingly, I am going to draft a ruling based on what Bootsie and I agree with, presuming that Elu will dissent. However, Elu, I still welcome your suggestions for how to improve any of the sections - even if you disagree with the ultimate conclusion, a more robust ruling is still better.

I reworked the intro a bit and am guessing at what sections we want to include. This is still pretty rough draft, pls don't hate me. :)

On Standing and Scope in this Inquiry

When it granted this request for review, the Court had made a preliminary determination that abc did have the standing to bring the review. As someone who believes that their right to free speech was violated, abc was unquestionably directly personally affected by the matter. Any nation of TNP who believes their right to free speech was violated would be similarly directly personally affected, and should have the opportunity to seek restoration from the Court.

However, as the Court examined the specific nature of the request for review, we determined that we are unable to answer the specific question that abc posed - namely, whether Pallaith specifically violated abc's freedom of speech. There are two reasons why this is the case.

First, the Court is concerned that a finding that the delegate had violated a nation's right to free speech would unfairly prejudice any potential future criminal trial for misconduct. Such a ruling would presume the delegate's guilt, and limit the valid avenues for the defense to pursue when countering the criminal charge. They would not be able to present evidence or make the case that free speech was not restricted, as that determination had already been set in stone. As the Attorney General quite rightly pointed out, this would be a serious violation of Pallaith's rights to a fair and impartial trial before being convicted of a crime.

Second, the Court has realized that the information it would need in order to make any determination about whether abc's freedom of speech was violated is not of a nature easily obtained during the course of a request for review. For example, he presented screenshots of his conversation with the delegate of 10000 Islands - but there are no procedures for establishing the validity of such submissions in a request for review, nor in determining whether their contents were known to the delegate or played any part in their actions to remove abc from the foreign affairs ministry and as a Gameside Advocate. There are many more examples we could provide, but the ultimate conclusion is that the Court, as a body, is not equipped or empowered to interrogate people or seek out evidence for or against a particular side. Rather, that is the job of the prosecution and the defense in a criminal trial, in which the Court's role is to consider the evidence submitted and come to a determination about whether it is sufficient proof of a crime to convict.

The Court did look at previous requests for review where a violation of rights was found, such as its ruling that the right to fair and equal treatment under the law was violated for Gracius Maximus (and others) when his citizenship application was denied. However, there are some key differences in the situation under review that allowed such a determination to be made in that case. The rights violation in question was determined to be a result of changing policies that were inconsistently enforced over the course of several Speakers' terms, and the Court additionally held that none of the policies themselves were legally problematic - just the end result. Because the rights violation was institutional instead of individual, any attempt to prove criminal misconduct would still have had to establish that the specific Speaker or Deputy Speaker being prosecuted actually violated someone's rights.

Therefore, in this case, the Court has determined that it can provide a ruling of modified scope. Namely, we will rule on the delegate's power to staff the executive branch and provide some general guidelines for when the use of such power could constitute a freedom of speech violation. Any specific allegations that the delegate violated someone's rights through exercising this power can, if necessary, be settled via a criminal trial.
Click to expand...

On the Power to Staff the Executive Branch
The Constitution grants extremely broad power to the delegate when it comes to staffing the executive branch. There are no limits placed on the number or types of executive officers, so long as their role is to assist the delegate in the execution of their duties, and it additionally states that the delegate may dismiss such executive officers "freely".

Neither the Constitution nor the Legal Code make any mention of restricting such dismissals to justified instances. At no point is the delegate required to prove incompetence, or inactivity, or irreconcilable differences, in order to remove an official who, in the delegate's opinion, should no longer continue to serve. Accordingly, it would be inappropriate for the Court to undermine the intent of the Constitution and restrict the delegate's power to appoint or dismiss executive officers, or to require that cause for any dismissal be presented.

The only restriction, implicit in the law, is that the delegate may not exercise this (or any) power in a way which violates the Bill of Rights, the Constitution, or the Legal Code. For example, because the Bill of Rights protects a nation's right to self-determination in membership in the World Assembly, it would not be a legal exercise of their power to dismiss an executive officer simply for not being a member of the WA.

While the law gives broad authority to the Delegate when it comes to appointing and dismissing executive officers, it makes no mention of the executive staff - private individuals who serve in various capacities in the executive ministries, but who do not hold government positions or wield government power. Most often, membership in the executive staff for a particular ministry has been determined by its minister, without specific input from the delegate on a regular basis. However, because the law specifies that the ministers assist the delegate in their duties, the logical conclusion is that the delegate does have the legal authority to make decisions about who can serve in each ministry's executive staff.

Unlike executive officers, the executive staff are not government officials. This is an important distinction: They take no oath of office, and their existence is not based on assisting the delegate with the execution of their duties. Additionally, the executive staff serves as a key pathway for new residents and citizens to become involved in the region, to gain experience, and to rise to prominence. It is, in sum, a vital pipeline for regional and personal growth. It is therefore undeniable that, if someone were barred from participating in any part of the executive staff, their ability to participate fully in the region and to make use of the rights and freedoms they are afforded would be curtailed.

As such, the Court determines that the delegate's power - and, accordingly, the power of their ministers - to determine who may be a member of the executive staff is somewhat more limited than the power to determine who may be an executive officer.To be clear, the delegate can decide that an individual may not be part of any executive staff. However, such sweeping determinations should be based on some sort of misconduct by the barred individual, and not on personal disagreements, prior inactivity, or other more mundane issues.

**still drafting**
Click to expand...

On the Abuse of Power to Quell Speech
**still drafting**
Click to expand...
 
The review looks good so far. In regards to rejecting the review outright, I would have to agree that’s unnecessary.
 
If, in addition to reviewing the language I disagree with, I come up with a dissenting opinion: should I follow the precedent that I swear I remember @Belschaft introducing of posting a dissenting opinion separately in the review thread, or should we include it as a clearly marked section of the official ruling document?
 
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