[private]R4R on Removal from Positions on the Basis of Criticism of Government Policy
- Thread starter SillyString
- Start date
- Pronouns
- he/him/his
- TNP Nation
- Zemnaya Svoboda
- Discord
- Eluvatar#8517
I find nothing technically wrong with the drafts.
TO BE CONTINUED ASAPDraft Dissent:
Dissent from 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
Dissent drafted by Eluvatar
The Author took into consideration the inquiry filed here by abc.
The Author took into consideration the legal brief filed here by Crushing our Enemies.
The Author took into consideration the answer to a question from the court filed here by Darcania.
The Author took into consideration the answer to a question from the court filed here by Pallaith.
The Author took into consideration the relevant portions of the Constitution of The North Pacific:
Article 3:Article 5:The Author took into consideration the relevant portions of the Bill of Rights of The North Pacific:Article 7:
The Author took into consideration the relevant portions of the Legal Code of The North Pacific:
The Author took into consideration the relevant portions of the Court's ruling on the Suppression of Posts on the Regional Message Board:Chapter 4 Section 1:
The Author took into consideration the Court's verdict in the case of The North Pacific v. The Democratic Republic of Tomb:
The Author dissents as follows:
On Standing and Scope in this Inquiry
In granting this request for review, the Court made a preliminary determination that abc was an affected party and had standing. As someone who lost positions of responsibility and authority under the government of The North Pacific, abc was indeed an affected party.
The court is therefore obliged to answer whether the government policy, abc's removal from the Diplomatic Corps and the role of Gameside Advocate, is constitutional or legal.
Answering this question in the negative would not implicitly find the Delegate responsible, Pallaith, guilty of Gross Misconduct, for several reasons:
Furthermore, the appropriate answer to the question as given, with the available information presented, is that the Delegate's actions are constitutional. Therefore the question of Pallaith's rights to a fair trial need not surface.
- Gross Misconduct is defined as breaking a legally sworn oath "either willfully or through negligence". This means either intentionally breaking the oath or taking an action that a reasonable person would expect to break the oath. Answering whether an policy is legal does not make any comment on intent or reasonable expectations.
- The Delegate's oath of office specifies they will act officially "in a legal, responsible, and unbiased manner, not abusing my power, committing misfeasance, malfeasance, or nonfeasance in office, in any gross or excessive manner ... and within the restraints of [their] legally granted power." Answering simply that a policy is unconstitutional or illegal would not necessarily imply that it is "grossly" or "excessively" so.
- Under the Court's ruling on the nature of precedent and the scope of the Court's powers, the Court would be obliged to review this ruling should new evidence be presented, particularly in a criminal trial, which would put it under question. Thus the rights of Pallaith to a hypothetical fair trial would remain intact.
On Dicta
The Court is tasked with reviewing the constitutionality or legality of laws or policy by request of affected party. No part of that is optional. Nothing the Court opines in a review which is not in answer to the request for review is constitutional.
Therefore, when the Court opines that it cannot answer the question posed, that should be the end of the review.
On the Power to Staff the Executive Branch
In realizing the promise of our Bill of Right's protection and promotion of free speech, context matters. Freedom of speech is at its highest when a member of the region publishes their opinion on the regional offsite forum. It's not at its highest in diplomatic communications. It's even lower in military communications. Lowest still when speech is destructive toward other rights, such as deception which would disenfranchise recipients.
In this review, abc asks if it was permissible for the Delegate to expel them from the Diplomatic corps (the executive staff of the Ministry of Foreign Affairs) and dismiss them as Gameside Advocate in response to a message abc posted on another region's message board and telegrams exchanged by abc and that region, 10000 Islands', delegate.
If the Delegate were not able to dismiss members of the Foreign Affairs ministry who contradicted the Delegate's will in Foreign Affairs, the Delegate would be unable to fulfill their duties.
Last edited:
- Pronouns
- he/him/his
- TNP Nation
- Zemnaya Svoboda
- Discord
- Eluvatar#8517
What is your change???
Also, I think it's weird for you to copy the official ruling format in your dissent, and to invent a seal. I don't mind you posting dissenting thoughts but it should be as a straightforward post, not "I personally reviewed XYZ documents and found ABC."
I think you should stick with "I dissent from the above ruling on the following grounds:
1) I do not believe answering the question would violate pallaiths rights explanation explanation
2) I do not believe the court should rule on tangential questions if it has chosen not to answer the original question because reason reason
3)Etc"
This sort of format strikes me as significantly less confusing for readers than what you have proposed.
Also, I think it's weird for you to copy the official ruling format in your dissent, and to invent a seal. I don't mind you posting dissenting thoughts but it should be as a straightforward post, not "I personally reviewed XYZ documents and found ABC."
I think you should stick with "I dissent from the above ruling on the following grounds:
1) I do not believe answering the question would violate pallaiths rights explanation explanation
2) I do not believe the court should rule on tangential questions if it has chosen not to answer the original question because reason reason
3)Etc"
This sort of format strikes me as significantly less confusing for readers than what you have proposed.
Last edited:
OK so, putting it all together...
I think all Elu did to that paragraph was remove a word, so I removed it.
I still have one section to finish - I was rereading the request and briefs and realized we didn't address the AG's arguments on speech abroad. Will deffo finish that this weekend, if not tonight.
I think is done!
Ruling of the Court of The North PacificIn regards to the judicial inquiry filed by abc on the Delegate's Authority to Staff the Executive Branch
Opinion drafted by SillyString, joined by Bootsie, with Eluvatar 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:The Court took into consideration the relevant portions of the Bill of Rights of The North Pacific:Article 7:
The Court took into consideration the relevant portions of the Legal Code of The North Pacific:
The Court took into consideration the relevant portions of its ruling on the Suppression of Posts on the Regional Message Board:Chapter 4 Section 4.1:
The Court took into consideration its verdict in the case of The North Pacific v. The Democratic Republic of Tomb:
The Court opines the following:
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 not rule on whether Pallaith violated abc's right to free speech. However, we will rule on the extent of the delegate's authority to staff the executive branch and on the permits and limits of free speech as it relates to service in government office. Any specific allegations that the delegate violated someone's rights through exercising this power can, if necessary, be settled via a criminal trial.
On the Authority to Appoint and Dismiss Executive Officers
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 instances that can or need be justified. 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. Similarly, because the Bill of Rights protects the free expression of religion, the delegate could not make professing the Flemingovian faith a condition for appointment as an executive officer. However, the delegate is free to dismiss an executive officer for saying something that gives the delegate doubts about their competence, judgment, or capacity to do their job.
On the Authority to Control Membership in the Executive Staff
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 legally predicated on assisting the delegate with the execution of their duties. They are, in fact, not established in the law at all - the idea of the executive staff as a body was invented by a prior delegate and retained by all subsequent ones. At this time, it 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 determinations should be based on some sort of misconduct by the barred individual (not on personal disagreements, prior inactivity, or other more mundane issues) and should be proportional to the misconduct that occurred.
The delegate is also free to abolish the executive staff, if they were to determine that it no longer best suited the needs of their ministries and of the region as a whole. Nothing in this section should be taken as requiring the existence of the executive staff, until and unless such existence is mandated by law. But insofar as it or any other executive body exists, executive officials may not violate the rights of TNP nations in determining who may and may not participate.
On the Freedom of Speech of Government Officials
The Bill of Rights protects nations' freedom of speech, and the right to question and criticize the regional government, without fear of retribution. This protection includes the right not to be threatened or punished for exercising that right. In TNP v. The Democratic Republic of Tomb, the Court found that as Delegate, Tomb had violated Flemingovia's rights to free speech by making his admission to the NPA conditional on refraining from parody songs mocking that institution. This was a clear attempt to prevent Flemingovia from engaging in public criticism and questioning of the TNP government, something that, as a private citizen, he has the right to do.
However, the situation is less straightforward when it comes to the dual voices of government officials. As nations and citizens of The North Pacific, government officials retain the right to criticize the actions of the government and to demand accountability and transparency in the actions of the various government bodies. And taking retribution against individuals who happen to be government officials for exercising that right is not permitted under the law, and should not be tolerated in an open and democratic society. For example, it would be a violation of the law for the delegate to fire one of their ministers simply because that minister disagreed with a decision made by the Election Commission and challenged it publicly.
But government officials do not speak only with their individual voice. They also, at times, wield governmental power, and speak with the authority of one of the branches of government. The Moderating Justice in a criminal trial speaks with the voice of the Court. The Foreign Affairs Minister, when negotiating a treaty with their counterpart in another region, speaks with the voice of the Executive. When speaking with these voices, government officials do not enjoy the blanket protections of freedom of speech, and their words may be enjoined by law or by someone with authority over them. The Delegate can instruct their Foreign Affairs minister on what provisions may be included in a treaty, or prohibit that minister from bringing up a personal grievance during negotiations - and they can remove the minister from office if their instructions are not followed. If the Court determines that a defendant is not guilty, the Moderating Justice cannot state that they have instead been found guilty - and the remaining Justices can publicly correct and overrule them if they try. A Security Councilor cannot unilaterally decide that a nation in the region is a security threat and threaten to ban them. In sum, government officials are subject to the oversight of their branch and of any superior official within that branch, and have no protections for engaging in official speech or actions that contravene such oversight.
There is an exception to the above ruling: government officials are not required to commit misconduct, no matter what instructions they are given, and they may not be punished for refusing to violate the law or for alerting the Attorney General about illegal activity within any branch of government.
On the Freedom of Speech Abroad
In his initial request, the petitioner stated that he was removed from the Foreign Affairs ministry and as a Gameside Advocate for "for using the RMB to voice my concerns about an embassy region." From what the Court could determine from the request and the briefs that were presented, such concerns were voiced solely on the RMB of the allied region, and none on TNP's RMB. This raises the question of how far a nation's freedom of speech extends outside of TNP, something which the Attorney General's brief also considered.
The freedom of speech is specifically granted to nations of The North Pacific. It therefore follows that nations that are not in The North Pacific are not afforded this protection. This includes embassy posting on the regional message board, forum posting by diplomats from other regions, and other similar types of speech. It also includes, as in the Attorney General's example, interactions outside of TNP between people who also happen to have TNP nations, but where no consequences result within TNP. If a delegate of another region bans someone from that region, or fires them from a role, such actions and speech are outside of the jurisdiction of our laws even when both parties are also members of TNP, and even when such actions would not be permitted if they occurred within TNP.
As for TNP nations speaking outside of the borders of TNP, such nations do not lose the protections of the bill of rights simply because of where their speech happens to take place. However, the Court also notes that free speech is not consequence-free speech; in the same way that citizens might choose not to vote for someone who says things they find objectionable, someone's conduct abroad (or at home) can be considered when the delegate makes decisions about appointing or removing executive officials, or when those executive officials make decisions about adding or removing members of the executive staff. For example, TNP nations have the right, under the bill of rights, to insult our allies (so long as they do not break a platform's rules on flaming), but they may then be reasonably denied a position as an ambassador to those allies. Similarly, as the Attorney General argued, the Delegate can decline to appoint someone as a minister (or can remove them from office) over disagreements about how that ministry should be run. The minister retains the right to speak freely about their concerns and criticisms, both publicly and privately. However, executive officials do ultimately exist in order to carry out the delegate's vision and goals, and the delegate is free to replace a minister who they feel is not able to perform those duties adequately.
On the Court's Prior Ruling on the Suppression of Posts on the Regional Message Board
In 2015, the Court issued a ruling in response to a request for review on the suppression of posts on the RMB. In it, the Court said:
We hereby overturn this ruling in its entirety. The protection of free speech is enshrined in our Bill of Rights precisely because its suppression is inherently harmful, and the Court's conclusion that the delegate's actions occurred in the context of friendly banter is belied by the very fact that a request for review was filed at all. Additionally, as laid out above, this ruling risks violating Eluvatar's right to a fair trial by preemptively determining that he committed a rights violation without the chance to testify in his own defense. It also risks violating Democatic Donkeys' right to protection against abuse of power and the right to be heard, by preemptively determining that "no harm" was done in the violation of his rights without a chance for him to provide testimony of his own.
I think all Elu did to that paragraph was remove a word, so I removed it.
I think is done!
Last edited: