[Private] Scheduling of Votes R4R

[Wonderess]

1. What law, government policy, or action (taken by a government official) do you request that the Court review?

I request that the Court review Deputy Speaker Bobberino (appointed here and oath taken here) opening the Confirmation of Dreadton as Prosecutor in The North Pacific v. Pigeonstan vote without scheduling a vote in the thread for the non-legislative motion. I request that the Court determine whether this action was legal or not.

2. What portions of the Constitution, Bill of Rights, Legal Code, or other legal document do you believe has been violated by the above? How so?

I believe the following portions of our legal documents have been violated by the above:


The Speaker has the power to schedule votes for proposals in the Regional Assembly. In the case of a grievance against the scheduling of the vote the Regional Assembly has set out through the Regional Assembly Rules a procedure for these grievances to be redressed. By immediately opening a vote without scheduling one, the Deputy Speaker has violated the right to petition the governmental authorities for the redressment of grievances. The procedure for citizens to object to a scheduling decision by the Speaker is outlined below:


Given the lack of vote being scheduled, the ability to object to the decision of the Deputy Speaker was not possible.

Additionally, the following has been broken:

The act of immediately opening a vote without scheduling a vote violates the statement in the Bill of Rights that no nation are to be denied the due process of law, including prior notice and the opportunity to be heard. The confirmation at vote is a judicial matter and the actions taken have denied nations prior notice and the opportunity to be heard.

3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?

None of which I am aware of.

4. Please establish your standing by detailing how you, personally, have been adversely affected. If you are requesting a review of a governmental action, you must include how any rights or freedoms of yours have been violated.

The opening of a vote without the opportunity for myself and other citizens to object to the scheduling of the vote has denied us the right to petition for the redress of grievances. The opening of a vote without the opportunity for myself and other citizens to object to the scheduling of the vote has denied us the right of an opportunity to be heard.

5. Is there a compelling regional interest in resolving your request? If so, explain why it is in the interest of the region as whole for your request to be decided now.

There is a compelling regional interest in resolving the request as it determines whether a small group of citizens are permissible to within the span of a couple of hours advance a non-legislative proposal and have it begin voting without the opportunity for other citizens to object to the scheduling of the vote. This issue is playing out now in the above confirmation.

6. Do you have any further information you wish to submit to the Court with your request?

Section 1, Clause 2 of the Regional Assembly Rules state that the Speaker may schedule a vote in the Regional Assembly introducing possibility. Entering into conflict with this clause is the subsequent clause determining how citizens may object to the scheduling of a vote in the Regional Assembly. Furthermore, as previously outlined, the Bill of Rights outlines a variety of rights which have been demonstrated to have been violated; these rights comes into conflict with the Speaker not having to schedule a vote. I will note that the Bill of Rights takes precendence.

We have a new R4R outstanding,

 

[Wonderess]

So here is my take. From the Constitution:

Article 2. The Regional Assembly

1. Resident means any person with a nation in the region of The North Pacific.
2. The Regional Assembly will consist of all citizens.
3. Requirements for citizenship will be determined by law.
4. The Regional Assembly may enact, amend or repeal laws by a majority vote.
5. The Regional Assembly may remove a government official from office by a two-thirds majority vote.
6. The number of votes required to achieve quorum for any vote of the Regional Assembly except elections will be determined by law.
7. The Regional Assembly will elect a Speaker every four months by a majority vote.
8. The Speaker will administer the rules of the Regional Assembly. Where no rules exist, the Speaker may use their discretion.
9. Abstentions cast in the Regional Assembly will not be used to determine the result of any vote, but may be used for quorum and all other purposes.
10. The Speaker may appoint deputies to assist them in the execution of any of their powers and duties. Appointment of deputies may be regulated by law and the rules of the Regional Assembly.

Statute 8 makes it clear that where the rules do not bind the Speaker, they may use their own discretion to make decisions. The Rules of the Regional Assembly do not limit the Speaker.

The Standing Procedures states the following:

Non-Legislative Proposal Procedure

1. Any citizen may introduce a proposal to exercise a power of the Assembly besides enacting, amending, or repealing laws, or ratifying or revoking the ratification of treaties by creating a thread in the Regional Assembly forum or Private Halls subforum.
2. Any citizen may call for a vote on the proposal by posting "motion to vote", or a functional equivalent in the thread. Any other citizen may second such a motion.
3. Once the proposal has been moved and seconded, the Speaker will schedule a vote.

Statute 3 makes it clear that the vote will be scheduled by the Speaker (or someone wielding their power). Whether we can enforce the Standing Procedures is up for debate. Bob did not schedule a vote but merely opened the thread. Usually it is declared in the discussion thread when a vote is to be opened, but this was not done.

I do not think that the court should be legislating from the bench. Therefore, I think the case should be accepted, but the outcome should be that though the actions of the Deputy Speaker were questionable, it is the duty of the RA to rectify this problem by amending the law regulating how long either legislative or non legislative motions sit after a motion for vote succeeds before a vote is opened.

 

[Zyvetskistaahn]

I am minded to accept the request. I think Praetor has standing, I think it is questionable as to whether there is any impact on free speech, but I am more persuaded by the argument that the Rules seem to afford members some procedural right to object to scheduling and I think that is sufficient to give rise to standing in the circumstances. If it were not, I can’t really think of what more there could be to give rise to standing in relation to scheduling.

On the merits, I do not think there is any issue with the (Deputy) Speaker’s decision. The Constitution affords the Speakers a discretion where the Rules are lacking. The Rules themselves afford the Speaker an almost complete discretion around scheduling. There are a number of relevant cases that have been decided in relation to the Speaker’s discretion. These are: On the Speaker’s power to restrict the formatting of votes; On the Speaker’s power to end debate; On the use of the Speaker’s power to end debate; and On the Speaker’s power to extend voting periods.

The broad thrust of them is that where the Rules are silent or ambiguous, the Speaker may decide what to do. There is nothing in the Rules that requires scheduling or that prevents scheduling from being so short that objections can be entered. I do not think it is open to us to prescribe some minimum period where the Assembly has not done so. That being so, the decisions as to when and whether and with what notice business proceeds to vote are matters for the Speaker’s judgement, not ours. As the decisions around ending debate make clear, the regulation of the exercise of that judgement is really a political matter for the Assembly to decide.

 

[Lord Dominator]

I agree on the matter of standing being valid in this instance

 

[Zyvetskistaahn]

As will be seen from the public thread, I have accepted the request. I have allowed two days for briefs, in the hope that this matter can be resolved quite quickly so as to not cause delay to the trial.

 

[Zyvetskistaahn]

The time for briefs is up, we have received a few briefs. It seems to me that this review raises a few questions:

1. Do votes need to be scheduled in advance or can they simply be started?
2. If votes do need to be scheduled, can they be scheduled to begin immediately or must there be a minimum period for objections?
3. If there must be a period for objections, how is that decided and what was it in this case?
4. If the period for objections was not sufficient in this case, what is to be done about that?

My view is more or less as I indicated earlier.

In answer to 1, I would say there is no requirement for a vote to be scheduled in advance. The Rules are permissive of scheduling, rather than requiring it. The Rules could easily say “All votes must be scheduled in advance” or “Only votes that have been scheduled may be opened” or some similar construction. While the Standing Procedures indicate that scheduling will follow for all business, the Standing Procedures are an emanation of the Speaker’s discretion. They can be varied at the Speaker’s will either generally or for particular proposals, as the decision on the Use of the Speaker’s Power to End Debate makes clear.

In answer to 2 and 3, I would say there is no minimum period and we cannot set one. These questions are linked, in my view, as if there is a minimum period it must be something we are able to judge. I do not think there is any standard we could use to set a minimum period when the Regional Assembly has not set one in its Rules without leaving all proposals open to challenge for some nebulous standard. The Rules do not set a minimum period, so it is a matter, to my mind, for the Speaker in their discretion.

In answer to 4, given my views on the other issues, I would say the period is sufficient (because any or no period would be sufficient) and that, therefore, nothing needs to be done.

 

[Wonderess]

I agree with you, and I would emphasize as I initially said that this is the RA's domain to correct through the process of law nit the Court's responsibility to legislate.

 

[Zyvetskistaahn]

Ruling of the Court of The North Pacific
In regards to the judicial inquiry filed by Praetor on the Speaker's Power to Schedule Votes
Opinion drafted by Zyvetskistaahn, joined by Wonderess and Lady Raven Wing​

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

The Court took into consideration the legal briefs filed by Mall, St George, Racoda, and Praetor.

The Court took into consideration the relevant portions of the Constitution of The North Pacific:

8. The Speaker will administer the rules of the Regional Assembly. Where no rules exist, the Speaker may use their discretion.
[...]
10. The Speaker may appoint deputies to assist them in the execution of any of their powers and duties. Appointment of deputies may be regulated by law and the rules of the Regional Assembly.

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.

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.
[...]
9. Each Nation in The North Pacific is guaranteed the organization and operation of the governmental authorities of the region on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region shall deny to any Nation of The North Pacific, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific the equal and fair treatment and protection of the provisions of the Constitution. No governmental authority shall have power to adopt or impose an ex post facto law or a bill of attainder as to any act for purposes of criminal proceedings.

The Court took into consideration the relevant portions of the Rules of the Regional Assembly of The North Pacific:

2. The Speaker may schedule a vote on any proposal being discussed by the Regional Assembly as permitted by law.

3. If, before a vote on a proposal begins, at least three citizens object to the decision of the Speaker to schedule it, the Speaker must cancel the scheduled vote.

2. Unless otherwise specified by law, the Speaker may delegate any of their powers and duties to the Deputy Speaker. Delegation under this section does not relieve the Speaker of any of their powers and duties. Any provisions of law related to the powers and duties of the Speaker, when exercised by the Deputy Speaker under the provisions of this clause, shall apply to the Deputy Speaker.

The Court took into consideration the relevant portions of the Standing Procedures of the Speaker:

1. Any citizen may introduce a proposal to exercise a power of the Assembly besides enacting, amending, or repealing laws, or ratifying or revoking the ratification of treaties by creating a thread in the Regional Assembly forum or Private Halls subforum.
2. Any citizen may call for a vote on the proposal by posting "motion to vote", or a functional equivalent in the thread. Any other citizen may second such a motion.
3. Once the proposal has been moved and seconded, the Speaker will schedule a vote.

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 the Speaker's Powers to Restrict the Format of Votes:

The Speaker by making these policies was within their powers as laid out by the Constitution and not in violation of the Bill of Rights. The Court looked extensively at the Section 10 of the Bill of Rights and determined that the rules that were adopted still allowed the protection of each nations right to vote. We are aware the Speaker discounted votes that were not in line with the adopted polices but again the voters that lodged an invalid vote were still given the right to vote in the matter. It is our belief that once these rules were adopted they were enforced evenly and fairly.

The Court took into consideration the relevant portions of its decision on the Speaker's Power to End Debate:

The Constitution, Legal Code, and RA Rules are all completely devoid of any additional reference to the Speaker's discretionary powers. Nor are there any rules outlining how the Regional Assembly's business is to be conducted, which have bearing on this matter. As such, the Constitution's grant of discretion to the Speaker in administering the Regional Assembly is the only binding law on this issue.

The question is raised, however, as to whether or not the actions taken using this discretionary power violate the Bill of Rights. This Court believes that they do not. Nations do possess a right to freedom of speech, and the government may not impede that right, but this restriction must be balanced against the demands of a civilized society, which encourages equal treatment of all its citizens. Regardless of the personal feelings of any Regional Assembly member, the proposal in question was a targeted attempt to discriminate against a member of the region. In fact, the proposal would have violated several elements of the Bill of Rights and Legal Code. Furthermore, the target of this proposal had repeatedly asked for the harassment he felt he was experiencing to cease. Under these circumstances, the Speaker's actions are not a violation of the Bill of Rights for one simple reason.

. . . The governmental authorities of the region shall act only in the best interests of the Region, as permitted and limited under the Constitution.

The Speaker's actions were permitted under his discretion, and using his judgment he acted in the best interests of the region. If any Nation feels that the actions of a government official are in violation of these laws, the proper recourse is a recall proceeding, not a Court proceeding. Particularly not in circumstances such as these.

With that decided, the Court would take this opportunity to comment more broadly on the powers of the Speaker. Under the aforementioned Constitutional clause, the Speaker is granted broad discretion, where no rules exist, to administer the Regional Assembly as he or she sees fit. Under the Bill of Rights segment also mentioned previously, the Court believes that all government officials are obligated by law to act in good faith in discharging their duties. The Court believes that the Speaker does possess the right to unilaterally table proposals, if their continued debate is not reasonably in the best interests of the region. The Constitution grants this discretion, and the Bill of Rights in effect obligates the Speaker to exercise said discretion if he or she feels it is appropriate. If the Nations of The North Pacific disagree, the procedure for Recall is quite clear, and as has been demonstrated over the past few months, is quite accessible. Legal review of the Speaker's discretionary decisions is not, generally speaking, necessary.

The Court took into consideration the relevant portions of its decision on the Use of Speaker's Power to End Debate:

The Constitution establishes that the Regional Assembly has the authority to create the rules for its governance, and that it is the duty of the Speaker to administer those rules. Where there is vagueness as to procedure, or when situations arise which are not covered by those rules, or by superseding ones within the Constitution, Legal Code, or Bill of Rights, the Speaker is empowered to act as they see fit within the best interests of the region. Previous Courts have interpreted this power broadly, upholding the Speaker's broad authority to maintain an appropriate atmosphere, promote a productive use of the Regional Assembly, and block proposals and votes which they deem harmful. While the relevant law has changed since the previous decision, prompting us to take this case, upon investigation the underlying principles have not.

We uphold the previous rulings in full, and reiterate that disagreements over best interests can be solved via recall motions. The Court is not the appropriate body to resolve such disputes.

As in the review of a Speaker's decision to end debate, we find the Speaker's power broad, but not unlimited. While the Speaker may refuse to tolerate something harmful, it is not a legitimate use of their power to capriciously stifle any and all debate. Two things therefore matter in this instance: the content of the proposal in question, and the severity of the Speaker's crackdown.
[...]
As established through testimony, current RA procedure is divided into two parts, and the two parts hold different legal weight. That portion of it which is contained within the Rules of the Regional Assembly was established by a majority vote as allowed for under Article 7, Clause 11 of the Constitution, and the Speaker is obligated to apply it as written. However, that which is contained within the Speaker's Standing Policies is entirely discretionary, and the Speaker has the power to alter its application when such is deemed necessary.

Formal debate, the rules surrounding it, and the decision to move a proposal through that stage and into a vote, fall entirely within the Speaker's discretionary procedures. They would be equally as free to put bills to vote based on the flip of a coin or a well-written original sonnet asking them to do so. While there is a written procedure, it is provided as a courtesy to RA members so they know what to expect most of the time - it is not intended or presented as a promise. The Speaker is free to deviate from their written procedures as they wish.

The Court took into consideration the relevant portions of its decision on the Speaker's Power to Extend Voting Periods:

The Speaker has submitted that there exists a discretionary power under the Constitution to extend the duration of a vote and that the rules do not exclude the existence of such a power. The Court, in considering this proposition, is cognisant of its prior rulings on the nature of the Speaker's discretionary power: that it is a broad one; and that it is not limited strictly to occasions where no rules cover a matter, but extends to addressing vagueness in adopted rules. However, the Court does not agree that the rules permit the existence of a power of the kind the Speaker contends.
[...]
Where the rules cover a matter it is not necessary for them to expressly exclude the Speaker's discretion, for the discretion exists only where the rules are absent or sufficiently vague as to leave room for discretionary action. This Section is comprehensive and it does not contain a vagueness within which the Speaker's actions can be said to have fit, thus, its exclusion of a discretion to alter voting periods outside of its terms is total.

The Court opines the following:

Standing

This request for review concerns a decision by a Deputy Speaker to commence a vote on the appointment of a prosecutor for the criminal trial The North Pacific v Pigeonstan. The vote was either commenced without being scheduled or was scheduled to start with no time between the scheduling and the commencement. There is, for the purposes of this decision, little real difference between those possibilities.

The Petitioner contends that this decision infringed on their rights under the Bill of Rights, particularly Article 2, the right to petition for the redress of grievances, and Article 9, the right to an opportunity to be heard. That is because action of the Deputy Speaker effectively prevented objections under Section 1, rule 3 of the Rules of the Regional Assembly being made to a decision to schedule a vote on the proposal.

The Court accepts that the Petitioner was personally affected by the decision and that the Petitioner would, were the decision unlawful, have a reasonable perception that their rights were infringed, particularly in relation to the loss of opportunity protected by Article 9. What is protected by that Article is the opportunity to object, that opportunity has been curtailed by the action of the Deputy Speaker. The Court is therefore satisfied that the Petitioner does have standing to request this review.

The Law on the Speaker

The particular action at issue here was taken by a Deputy Speaker, but that does not have any bearing on the principles to be applied. The Constitution and the Rules of the Regional Assembly allow the Deputy Speaker to be delegated any power or responsibility of the Speaker, with the laws that apply to the Speaker applying in a like manner to their Deputies.

The Speaker is empowered by the Constitution to administer the Rules and, where no rules exist, they may use their discretion. The Court, over several decisions, has recognised that this discretion is broad and extends to resolving ambiguity in rules that have been made.

When some issue is within the bounds of the Speaker’s discretion, it is for the Speaker to decide how to exercise their discretion in the best interests of the region in pursuit of aims such as maintaining an appropriate atmosphere and promoting productive use of the Regional Assembly. In its decision on the Speaker’s Power to End Debate the Court made clear that this was so despite the fact that the exercise of the power contemplated in that case, terminating debate on a proposal unilaterally, would impinge on free speech. The rights of citizens in the Regional Assembly must be balanced against the demands of a civilized society, such as the rights of other citizens or the regional interest in the orderly conduct of the Regional Assembly's business. It is for the Speaker to strike that balance and only in truly exceptional circumstances, such as the capricious stifling of any and all debate as envisaged in the Court's decision on the Use of the Speaker’s Power to End Debate, could the Court interfere.

The Speaker has established policies to govern their decision making, the Standing Procedures. The nature of the Standing Procedures was also considered in the Court's decision on the Use of the Speaker’s Power to End Debate. Their purpose is to provide citizens a guide as to the process that will be followed most of the time, but that which is contained within the Standing Policies is discretionary and may be altered when necessary. That this must be so is supported by that decision and others holding that the Speaker is obligated to use their discretion in the best interests of the region, it would be inconsistent with that obligation if the Speaker could adopt a binding policy limiting their own discretion and preventing deviation which would better serve the region.

Scheduling a Vote

The Petitioner contends that the vote was not scheduled in advance, the Speaker, in response, has submitted that it was scheduled but was scheduled to start immediately. The Court will address both scenarios, beginning with that of the Petitioner.

The Rules on proposals provide that the Speaker may schedule a vote on a proposal being discussed by the Regional Assembly as permitted by law. They also provide that, before a vote begins, citizens can object to the Speaker’s decision, with the Speaker being obligated to cancel a vote that three citizens object to.

The question raised by the Petitioner about these provisions is whether they require votes to be scheduled or whether votes can be started without having been scheduled in advance. The Court held in its decision on the Speaker’s Power to Extend Voting Periods that the Rules need not expressly exclude the Speaker's discretion, where they are comprehensive and lack ambiguity that is sufficient. However, in contrast to the provisions on setting the length of votes at issue in that case, which mandated that the length be set at the beginning of each vote, the provisions the Court is now concerned with are permissive of scheduling; they do not prohibit votes being started without notice, nor do they compel all votes to be scheduled. The Rules could easily specify that the only votes that may be opened are those that have been scheduled, they do not. While the Standing Procedures state that a vote will be scheduled when a motion and a second are made, it is, as the Court held in its decision on the Use of the Speaker's Power to End Debate, open to the Speaker to depart from them and to do so at their discretion.

It appears to the Court that the Rules, in this regard, are ambiguous. They are permissive rather than prescriptive and leave space for the possibility of votes without notice. That being so, the question of how that ambiguity is resolved is a matter for the Speaker and that they have a broad discretion in how to resolve it.

Time to Object

While the above is sufficient to dispose of the request for review on the basis advanced by the Petitioner, the Court will also consider the point made by the Speaker that the vote was scheduled but with no delay between the decision to schedule and the vote.

The Speaker contends that there is no minimum period specified in the Rules for objections to decisions to schedule, nor is one specified in their Standing Procedures for non-legislative matters, such as the motion this request relates to. That being so, the Speaker says, it is within their discretion to decide to schedule a vote to start immediately and to start that vote. The Court agrees.

Even if the Court considered that there was a requirement for votes to be scheduled in advance, it is evident that there is ambiguity as to how far in advance that must be. No minimum period is prescribed in the Regional Assembly’s Rules, neither is a minimum period set out in the Standing Procedures and, as noted above, even if there were it would be open to the Speaker to depart from it. There is no robust legal principle the Court could use to decide one. Any standard prescribed by the Court would amount either to legislation or would be so vague as to be unmanageable.

It is not the place of this Court to decide how many days, hours or minutes would be needed for objections and, effectively, to make a new rule for the Regional Assembly. It is for the Regional Assembly to do that. Until the Regional Assembly does so, that question, again, is left to the Speaker’s discretion.

Conclusion

The Rules in this area are ambiguous and it is clear from the Constitution and the Court’s previous decisions that it is for the Speaker to decide how to resolve that ambiguity. Whether the vote was started without having been scheduled or whether it was scheduled to start immediately is an arid point. There is no substantive difference between them. Both would have the same effect on the Petitioner, both would be within the Speaker’s discretion and both would be permissible for that reason.

As the Court has endeavoured to make clear on previous occasions, citizens aggrieved by the Speaker’s decisions have means to raise their concerns: they can complain to the Speaker; they can vote against proposals that they think have been put up to soon; they can vote for some other candidate at the next election; ultimately, they can seek to recall the Speaker. If the Regional Assembly thinks its Rules afford the Speaker too much latitude, it can change them. Control of the Speaker's discretion is, barring a truly exceptional scenario, a political and not a legal matter.

---

EDIT: In conclusion, first paragraph “There is no substantive difference in effect between them” to “There is no substantive difference between them”; second paragraph “citizens are aggrieved” to “citizens aggrieved”.
EDIT2: I also misspelled my name <.<

 

[Wonderess]

Well done, Zyvet. Full support of this opinion.

 

[Lord Dominator]

Looks good