Ruling of the Court of The North Pacific
In regards to the judicial inquiry filed by Siwale on the Form of the Oath of a Delegate
Opinion drafted by Zyvetskistaahn, joined by Wonderess and Lady Raven Wing
The Court took into consideration the inquiry filed here by Siwale.
The Court took into consideration the legal brief filed here by Dreadton.
The Court took into consideration the relevant portions of the Constitution of The North Pacific:
Article 3. The Delegate and Vice Delegate:
1. The Delegate will be the head of state and government of The North Pacific and hold the in-game position of delegate.
2. The Delegate may eject and ban nations from the region as permitted by law, and will eject or ban nations from the region when required by law.
3. The Delegate may negotiate treaties with foreign powers. No treaty will come into effect unless approved by a two-thirds majority vote of the Regional Assembly.
4. When a proposal of the Regional Assembly to enact, amend or repeal a law is passed, the Speaker shall promptly present it to the Delegate, and it shall take effect immediately upon their signature.
5. The Delegate may veto a proposal of the Regional Assembly to enact, amend or repeal a law within one week of its passage.
6. The Regional Assembly may override such a veto by a two-thirds majority vote, which shall cause a proposal to take immediate effect.
7. If a proposal of the Regional Assembly to enact, amend or repeal a law has not been signed or vetoed by the Delegate, it shall take effect seven days after being passed.
8. The Delegate may appoint executive officers to assist them and may dismiss these officers freely. Executive officers may be regulated by law.
9. The Vice Delegate will chair the Security Council and enforce the continued eligibility of its members as determined by law.
10.. The Vice Delegate will hold the second most endorsements in the region. The Delegate may eject or ban any nation which exceeds any legally mandated endorsement limit.
11. In the case of a vacancy or absence in the office of Delegate or Vice Delegate, the first available person in the line of succession will assume the duties of the vacated position. If a member of the line of succession assumes the duties of either position while serving in, or having assumed the duties of, any other constitutionally-mandated elected office, they will be considered absent from that office.
12. The Delegate and Vice Delegate will be elected by the Regional Assembly by a majority vote every four months. No person shall be elected Delegate to a full or partial term in three consecutive election cycles.
Article 4. The Court:
1. The Court will try all criminal cases and review the constitutionality of laws or legality of government policies and actions.
2. Reviews of laws or government policies and actions must be made by request of an affected party unless there is a compelling regional interest in resolving it.
Article 6. General Provisions:
1. Constitutionally-mandated elected officials are the Delegate, Vice Delegate, Speaker, members of the Security Council, and Justices.
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, and government officials appointed by the Delegate or Vice Delegate.
[...]
8. All government officials will swear an oath of office. The content of these oaths will be determined by law and be legally binding.
The Court took into consideration the relevant portions of the Bill of Rights of The North Pacific:
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.
The Court took into consideration the relevant portions of the Legal Code of The North Pacific:
Chapter 5: Regional Security Law:
3. In this chapter, the serving Delegate means the person holding the constitutionally-mandated elected office of Delegate or, in the case of a vacancy in that office, the person who has assumed the duties of that office.
Section 7.1: Definitions:
4. The Serving Delegate is the person holding the constitutionally-mandated elected office of the Delegate or, in the case of a vacancy in that office, the person that has assumed the duties of that office.
5. The WA Delegate is the nation holding the WA Delegacy of the region The North Pacific.
The Court took into consideration the relevant portions of its decision on Standing and the Definition of Affected Party:
The Court opines that an affected party, with respect to one’s the ability to request judicial review, is someone who reasonably perceives that their rights have been infringed through action or inaction undertaken by a governmental body or bodies. An affected party also include those affected, adversely or otherwise, by laws passed by the regional assembly and policies enacted by the executive and judicial branches of government.
The affected party must detail in their review request the rights they perceive have been violated and/or the laws put asunder showing a clear connection between the law and how they are personally affected in the situation.
The Court took into consideration the relevant portions of its decision on Election Commissioners Failing to Take Their Oaths:
Do actions taken by elected, appointed, or confirmed officials prior to their taking of the oath have legal force?
No. All government officials must take their oath prior to carrying out any actions in an official capacity. Any such actions taken prior to the swearing of the oath are invalid and hold no governmental authority. Depending on the nature of the actions, they could potentially also be illegal. For instance, if the individual banned a nation from the region before taking up an office that gave them the legal authority to do so, they could be subject to criminal charges.
Can an oath of office apply retroactively to actions taken after winning election, or being appointed?
Absolutely not. No oath under TNP law may apply retroactively. The oath of office becomes binding on an individual when they swear it and assume the position relating to that oath, just as it stops being binding when they cease to hold that position. The oath can neither criminalize misconduct, nor legitimize unofficial actions, from before it was sworn.
A government official cannot be found guilty of gross misconduct for violating the oath of office before they took it. And, by the same token, an election commissioner taking their oath after opening candidacy declarations cannot thereby give that thread legal standing.
The Court took into consideration the relevant portions of its decision on the Permanence of Rejected Applications for the Regional Assembly:
As for the specific case of Treize_Dreizehn, the Court rules that his original admission to the Regional Assembly was not lawful. However, over the past four months he has acted in nothing but good faith. He has been a productive member of the RA, has voted on legislation and run in elections, and has served admirably in the Attorney General's office. Should the Court rule that these associated posts, votes, and actions are ex post facto unlawful, legally speaking, it would simultaneously be required to order a recount of all such legislative, non-legislative, and electoral votes, as well as a review of all actions taken as a government official and, potentially, a reopening of voting for any election in which Treize was a candidate. Such alteration of accepted fact is neither practical, possible, nor permitted by the Bill of Rights.
Therefore, Treize_Dreizehn's membership in the Regional Assembly is not revoked. He may continue to serve as a full-fledged member, entitled to all of the rights and privileges afforded to any other member.
The Court took into consideration the relevant portions of its decision on Alterations to the Citizenship Oath:
The fundamental question before the Court is whether the oath of citizenship must be taken exactly as it appears in the Legal Code, or if alterations to its content to allow for personal identification can be permitted.
The section of the Legal Code which deals with citizenship applications defines the specific oath that must be sworn, and does not make any allowance for oaths that are textually distinct but functionally identical. Additionally, in examining the rights granted to all nations by the Bill of Rights, the Court has found nothing which requires an alternate oath to be permitted or accepted by the Speaker.
Therefore, the Court finds that alterations to the oath cannot be permitted, and that they render the oath, and thus the application for citizenship, invalid. The Attorney General's brief lays out a succinct argument for why this must be the case. Permitting applicants to change the text would force the Speaker to adjudicate the fine line of what is and is not a valid identifier, or what qualifies as a change to the content of the oath that alters its meaning. It is also quite likely that, when the holder of the office changes, so too will the Speaker's interpretation of what is permitted. There is too great a risk that permitting the Speaker to make a judgement call on the content of the citizenship oath will result in unequal treatment under the law.
[...]
However, the Court does have the power to alleviate some of the iniquity. In accordance with precedent set on the question of continued citizenship of Treize Dreizehn, we find that the citizenship previously granted to individuals who altered the text of their oaths is valid. They may continue to be counted as citizens, entitled to all of the rights and privileges afforded to any other citizen under our laws until and unless they lose citizenship by normal legal processes.
Additionally, we find it necessary to address the validity of the oaths these citizens took. Although the Court has found that alterations to the oath render it invalid, we also believe it would do irreparable harm to rule that altered oaths which have heretofore been taken and accepted are invalid and not legally binding. Such a move would introduce iniquity between citizens who swore the correct oath, and who could therefore be prosecuted for Gross Misconduct, and those who did not and therefore could not.
Based on the evidence the court has reviewed as part of this request, the majority of incorrect oaths appear to be unintentional - likely copied, or based on, an earlier legal version of the current oath. Therefore, we extend the principle of good faith that was established in the ruling on Treize Dreizehn's citizenship. Those citizens who took an incorrect oath are granted the presumption of having acted in good faith, of having intended to swear the correct oath but making a simple mistake. As such, they will also be presumed to be bound by the correct oath as it stood in the law at the time of the citizen's admittance.
The Court opines the following:
Standing
This is a request for review brought by Siwale concerning the oath sworn by McMasterdonia following the September 2019 general election. The question posed is whether that oath was valid, given McMasterdonia stated the position he was taking up as being “WA Delegate”.
Siwale suggests that he has standing on the basis that he is an affected party, as his article 9 right to a government organised on the principles of democracy, accountability, and transparency may have been infringed, given that the swearing of an invalid oath would bring into question the legitimacy of the Delegate during a time when he was resident in the region. The Court does not consider this is sufficient to meet the requirements of standing as an affected party.
The Court has previously held that a petitioner must show that there is a clear connection between the act, policy or law claimed to be illegal or unconstitutional and how they are personally affected. The infringement claimed by the petitioner in this request is not personal in any real sense, but could be claimed by a vast group of residents.
The petitioner argues, alternatively, that they should be allowed to bring the request on the basis that there is a compelling regional interest in resolving it. The Court does allow the request on that basis.
Though the Court is alive to the fact that this request relates to relatively technical point and notes that undue delay in bringing requests will lead to them being subject to scepticism as to whether there is truly a compelling regional interest, the Court is satisfied in this instance. That is because this case, fundamentally, raises questions as to the validity of the actions of the Delegate, the most powerful single official in our constitutional order, and, through them, those they have appointed, for the whole of a term and beyond. Though the petitioner states they do not wish for retrospective impact of the Court’s decision, and so presumably would not wish for the Court to invalidate any action taken, their wish cannot bind the Court, which is, instead, compelled by its constitutional duty to determine the legality of the specific action of swearing the oath, with any consequences that may bring. The result of that is that the gravity of this request, though technical and substantially delayed, is such as to engage the Court’s jurisdiction.
What the oath requires
The first question the Court must ask to determine whether the oath was sworn as required by law is to ask what the law requires.
The Court has held in relation to the citizenship oath that, where the law required that oath to be sworn, it had to be sworn as stated in the law. There was no provision for variation in the law and allowing variation would have placed an onerous burden on the Speaker to determine validity of oaths, given the potential consequences flowing from allowing oaths that subsequently transpired to be invalid.
Here, there is no question as to deviation from the ordinary wording of the oath, rather, the question is as to deviation in swearing a part of the oath that reads “[government position]”. However, similarly, there is no provision for variation in the position and it would be wrong to require citizens subject to government action or other government officials to have to determine whether deviation in the position stated is within a permissible degree. The consequence of this is that where the name of a position is clear in law, be that in the Constitution or the Legal Code, that name must be sworn without deviation and where a position has multiple names in law, any of them will suffice, provided there is no deviation from them. By contrast, for a position that has no set name in law and is generic in its nature, such as that of executive officers appointed by the Delegate whose role and powers the Delegate may determine, the oath, in relation to any given appointee, must swear the name of the position as specified in their appointment, which creates the position they occupy.
Delegate or WA Delegate
The second question, then, is what is the correct name for the position of Delegate.
The Constitution recognises a distinction between the office of Delegate in our constitutional system and the position of Delegate in-game. It is that distinction that is reflected by the provisions of the Legal Code, which draw a distinction between the “serving Delegate” and the “WA Delegate”, the former being stated as holding the office of Delegate provided for by the Constitution.
The Bill of Rights does refer to the “WA Delegate” in article 2 (and formerly did so in article 8). However, the Constitutional language is, otherwise, consistent throughout. In article 2, which defines the office of Delegate, and in article 6, which includes general provisions concerning government officials, the Constitution refers only to the “Delegate” as being a government official and, as noted, draws a line between this and the in-game position.
The difference between the language of the Bill of Rights and the Constitution seems to stem from the former having retained its language from prior to the adoption of the latter and not from any difference in terms of whom it applies to. The reference to "WA Delegate" in the Bill of Rights must therefore carry the same meaning as "Delegate" in the Constitution. However, the term "WA Delegate" is also used as a term with a specific, defined meaning in the Legal Code. In that context, it bears a different meaning and simply means the nation that is World Assembly Delegate in-game.
It is not permissible for the oath to be sworn in a manner that allows this inconsistent dual meaning, particularly set against the otherwise consistent use of "Delegate" in the Constitution. The Court therefore concludes that "Delegate" must be used in swearing the oath required and that the challenged oath was, therefore, improperly sworn.
Validity of the Oath
This necessarily raises questions as to the validity of the oath and of the actions that have been taken during the period covered by it.
The Court has previously held that the effect of failure to take the oath results in the actions taken without the oath being sworn at all invalid. Here, the issue is slightly different, in that the oath was taken with what could be characterised as a minor and, the Court anticipates, inadvertent impropriety. There appears to be no reason to think that McMasterdonia did not intend to be bound by the oath they swore and, in any event, they exercised such considerable government authority for such a long time in reliance on it that the Court must conclude they intended to be bound. Further, others, including the Regional Assembly, parties before this Court, and foreign powers, have relied on the validity of the oath and the authority exercised relying on it.
It would be destructive in the extreme for this Court to take the view, retrospectively, that all of those exercises of authority were invalid. To borrow the words of the Court from
on the Permanence of Rejected Applications for the Regional Assembly, such alteration of accepted fact is neither practical, possible, nor permitted by the Bill of Rights.
It is within the power of the Court to remedy this invalidity, as it did in that case and more recently in relation to citizenship oaths. The Court must draw from McMasterdonia’s reliance on the oath the presumption that he took it in good faith and intended to be bound by it, the consequence of that is that he is bound by it. Further, the presumption that the oath was accepted as valid in good faith extends also to other officials and bodies and, indeed, the region at large, with the effect that the authority exercised relying on the oath are valid.
Conclusion
The Court therefore finds that the oath sworn by McMasterdonia was improperly sworn. To be valid, the oath of the Delegate must be sworn stating the government position as being “Delegate”. However, the Court also concludes that the improper oath was sworn in good faith by McMasterdonia and was relied on in good faith by the region, with the consequence that it was binding and that the authority exercised the basis of it was valid.
The above is a finalised version of the opinion. I have made some edits to the penultimate section, but I do not think the meaning is affected. I have replaced all instances of the oath being "taken" with it being "sworn" for consistency and made some other minor edits (mostly of a grammatical nature) elsewhere.
