Ask and ye shall receive.
Ruling of the Court of The North Pacific
In regards to the judicial inquiry filed by saintpeter on behalf of Pigeonstan on the Constitutionality of Vague Laws and Gross Misconduct
Opinion drafted by Zyvetskistaahn, joined by Wonderess and Lady Raven Wing
The Court took into consideration the legal briefs filed by Dreadton and saintpeter.
The Court took into consideration the relevant portions of the Constitution of The North Pacific:
Article 4. The Court:
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:
Bill of Rights for all Nations of The North Pacific:
7. When charged with criminal acts, Nations of The North Pacific shall have a fair, impartial, and public trial before a neutral and impartial judicial officer. In any criminal proceeding, a Nation is presumed innocent unless guilt is proven to the fact finder by reasonably certain evidence. A Nation may be represented by any counsel of the Nation's choosing. No Nation convicted of a crime shall be subject to a punishment disproportionate to that crime.
[...]
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 Legal Code of The North Pacific:
Section 1.9: Gross Misconduct:
25. "Gross Misconduct" is defined as the violation of an individual's legally mandated sworn oath, either willfully or through negligence.
Section 6.1: Citizenship Applications:
2. Any resident may apply for citizenship using their regional forum account, by providing the name of their nation in The North Pacific, and swearing an oath as follows:
I pledge loyalty to The North Pacific, obedience to her laws, and responsible action as a member of her society. I pledge to only register one nation to vote in The North Pacific. I pledge that no nation under my control will wage war against the North Pacific. I understand that if I break this oath I may permanently lose my voting privileges. In this manner, I petition the Speaker for citizenship in The North Pacific.
The Court took into consideration the relevant portions of its decision on the Sentence Issued by the Court in The North Pacific v Whole India:
The Court has determined that Deropia does have the standing to bring this request for review on behalf of Whole India. Whole India, as the defendant whose sentence is being challenged, has obvious and unassailable standing to raise concerns about impropriety in their own sentencing. Criminal defendants have the right to be represented by counsel during their trial, and that right to representation must necessarily extend to other issues raised with the court pertaining to that trial, even if they do not occur during the official trial process.
The Court took into consideration the relevant portions of its decision on WA Nation Disclosure Requirements:
On the third point, the Court must examine the law in its entirety to determine whether or not WA Membership is a requirement, or a choice. At no point, under the Constitution or any element of the Legal Code, is World Assembly membership a requirement to participate. Membership alone is a choice. Choices come with consequences; some choices ease burdens, others impose them. The protections in the Bill of Rights are intended to protect all Nations of the North Pacific from unfair burdens imposed by their government. WA membership, however, is a choice, not an obligation.
Participation in activities which require WA membership is a choice, not an obligation. As such, any duty to report WA nations is, in effect, willingly shouldered by those players who choose to participate in such activities. The reporting requirements are imposed fairly, on all nations. That some nations choose to join the WA, thereby triggering this reporting requirement, is not a choice made for those players; it is a choice made by them. As such, the burden of reporting is willingly shouldered, and is not an unfair burden.
The Court took into consideration the relevant portions of its decision on Oath Violations by Former Members of the Regional Assembly:
The Court had determined that the matter is twofold. If the violation occurs after the time in which the nation is no longer a member of the Regional Assembly then they are not violating their oath as they are not bound to that oath at the current moment. Whereas if the violation occurs during the time in which the nation was a member of the Regional Assembly and was bound by that oath they may be tried for an Oath Violation.
The Court took into consideration the relevant portions of its decision on the Time at which Oaths Become Binding:
It is the opinion of the Court that the Regional Assembly membership oath found in Section 6 Clause 2 of the Codified Law of the North Pacific becomes legally binding on RA applicants if and when they become members of the Regional Assembly, and remains binding only so long as they remain members.
The Court took into consideration the relevant portions of its decision on the Standard of Proof and Intent:
To start, the Court opines that "willful deception" is synonymous with "intentional deception", and that the difference in word choice does not require a different standard of proof between the two crimes.
As for the standard itself, there are two types of intention in the commission of fraud. The first is demonstrable intent, wherein the defendant can be shown, by their own statements or actions relating to the alleged crime, to have engaged in deception as defined previously in this ruling.
The second is reckless intent, wherein intent is established by argumentation on reasonable expectations. The harmful or beneficial consequence of the deception must be something a reasonable person could have expected, by which the defendant can themselves be reasonably expected to have either expected or recklessly ignored the risk of that consequence. Either is sufficient.
The Court took into consideration the relevant portions of its decision on RA Membership Requirements for Candidates:
It is worth also examining the intent of the regional legislative body, the Regional Assembly, while drafting the constitutional clause in question. In the thread in the Regional Assembly discussing the Constitutional Omnibus Act of August 2012, when asked about the meaning of the definite article in Article 6, Clause 1, then Speaker Gulliver
stated: "The "the" there is deliberate. It means specifically the 15 days before the election in question, not any random 15 days, so it's not possible to argue that "I was in the assembly 15 days already, even if it wasn't continuous, therefore I'm good to run"."
It should be noted that taking the intention of the Regional Assembly into consideration when interpreting a statute is appropriate only when said statute is ambiguous or absurd. Neither of these is true in this case, as Article 6, Clause 1 of the Constitution unambiguously indicates that the requirement for candidates is that they have been in the Regional Assembly continuously for the fifteen days immediately preceding the opening of nominations. However, the legislature's intent here is in agreement with the actual meaning of the clause, and corroborates the interpretation adopted by the Court.
The Court took into consideration the relevant portions of its decision on Endorsement Count Requirements and the Solicitation of Endorsements:
Question Three - Is it a crime for a nation that is not the Vice Delegate to have the second most endorsements in the region?
It's not a crime merely to have more endorsements than the Vice Delegate: crimes are strictly defined in the criminal code (as per clause 1), and that's not one of them. In general, Reckless Endorsement Gathering is not a crime, but is a cause for ejection.
However, a Citizen could conceivably commit Gross Misconduct by violating their oath as citizen in egregious cases of Reckless Endorsement Gathering:
I, the leader of The North Pacific nation of [INSERT YOUR TNP NATION], pledge loyalty to The North Pacific, obedience to her laws, and responsible action as a member of her society. I pledge to only register one nation to vote in The North Pacific. I pledge that no nation under my control will wage war against the North Pacific. I understand that if I break this oath I may permanently lose my voting privileges. In this manner, I petition the Speaker for citizenship in The North Pacific.
However, where Reckless Endorsement Gathering is cause for ejection but not a crime, Gross Misconduct is a crime but is not cause for ejection:
8. Gross Misconduct will be punished by removal from office and the suspension of voting rights for whatever finite duration the Court sees fit.
[...]
Question One - Did Vice Delegate Bootsie, Security Counselor Plembobria, or Delegate Lord Ravenclaw break the law when the nation of Plembobria passed Bootsie's nation of Guslantis' endorsement count, or when Cheongji passed Guslantis' endorsement count?
The Court cannot give a criminal verdict in a request for review, nor rule on an indictment sight unseen.
However, the answers to questions two through five suggest that Lord Ravenclaw did not break the law by declining to eject either Cheongji or Plembobria, that as no claim has been made that Guslantis failed to have at least 75% of the serving Delegate's endorsement count there is no basis presented to consider Bootsie to have committed Gross Misconduct, and that as no case has been made that Plembobria acted irresponsibly there is no basis presented to consider Plembobria to have committed the same.
The Court opines the following:
Standing
This is a request for review concerning the crime of Gross Misconduct. It was filed by counsel on behalf of their then client Pigeonstan, Defendant in the trial
The North Pacific v Pigeonstan. While the Petitioner has ceased to act for Pigeonstan, the Court does not consider this makes a material difference to standing. A request filed by counsel is not based on their own standing, but their client's standing, which ordinarily would survive a change of counsel.
The request challenges Gross Misconduct committed by violation of the citizenship oath's pledge of "responsible action as a member of [The North Pacific's] society". It is contended that this pledge is so vague that it deprives Pigeonstan of due process of law, including prior notice, and of equal and fair treatment, contrary to Article 9 of the Bill of Rights. Pigeonstan is said to be affected because they face the jeopardy and stigma of a criminal trial.
The Court agrees that a criminal charge is sufficient for Pigeonstan to be an affected party in relation to the crimes they are charged with and there is a clear connection between those laws and an effect on their rights. The Court, therefore, accepts this request, but does so cautiously. Requests for review not the appropriate venue to decide criminal matters that call for decisions on matters of fact or for the exercise of judgement that depends on factual issues; the safeguards of trials are not present in requests for review and such decisions in the absence of those safeguards could risk a fair trial. However, this request poses an abstract question that is not dependent upon the underlying facts of Pigeonstan's case, so does not pose such a risk.
Vagueness in Principle
The first question raised by the review is whether the Bill of Rights restricts crimes from being too vaguely defined.
Article 9 of the Bill of Rights guarantees due process of law, specifically including a right to prior notice, and fair and equal protection of the provisions of the Constitution.
The Court accepts that those protections do render overly vague criminal laws unconstitutional. If a law is so vague a nation cannot tell whether their conduct is criminal, that nation is deprived of prior notice of criminal liability and, thereby, of the opportunity to ensure their conduct is lawful. Moreover, it impacts on their right to due process of law more broadly: a crime with an amorphous boundary infringes on a nation’s ability to know what it is accused of and to mount an effective defence.
Equal and fair protection of the provisions of the Constitution can also be infringed by such laws. An unclear law not only impacts on a nation’s ability to assess its conduct, but also on the Court’s ability to do so. An overly vague criminal law may lead to different defendants receiving different verdicts for the same conduct, due only to differing subjective understandings of the Courts that try them. That would be unfair and unequal.
Assessing Vagueness
This conclusion leads to a second question: how to decide whether a law is too vague.
There will always be some imprecision in laws. There are limits to the precision of language and laws, in particular, aim to apply generally. It is inevitable that there will be hard cases at the margins. Therefore, it is not enough to merely say a law is vague in some respect or in some scenarios.
Further, it is a fact, and many would say a strength, of our constitutional structure that it incorporates a citizen legislature. That is an important factor for the Court to consider. Our laws, unlike those in many other jurisdictions, are not drawn up with precision by lawyers and trained draughtsmen but are hammered out by the citizens themselves. A degree of imprecision may be expected to follow and the constitutional choice of a citizen legislature should not be sanctioned by the adoption of an overly exacting standard in deciding on vagueness.
The Court also considers there may be other factors relevant to assessing particular laws. If a nation can avoid the effect of a law entirely, it may be that they have willingly shouldered its burdens as the Court held in its decision
on WA Nation Disclosure Requirements, including, potentially, areas of vagueness in the law. If a law regulates officials, some vagueness may be the price those officials pay to exercise greater power over other nations. These factors are only examples and others may also be relevant.
Set against these points are the rights of nations under article 9. Those rights are just as much part of our constitutional structure and must be protected. The Court considers that, in general, when assessing whether a law is too vague the question is whether the law leaves a reasonable nation unable to say with reasonable certainty whether would risk criminal liability in relation to a substantial range of conduct. As noted, particular circumstances may justify some deviation.
Gross Misconduct
It is useful to set out Gross Misconduct’s elements, to understand the context in which "responsible action" is to be interpreted.
The conduct caught by the crime is that which violates a nation's legally mandated sworn oath. This covers, at least, the three oaths now in the Legal Code: the oath of office; the citizenship oath; and the NPA oath. The citizenship oath, as held in the Court’s decisions
on Oath Violations by Former Members of the Regional Assembly and
on the Time at which Oaths Become Binding, applies only to a nation's conduct while a citizen. A nation cannot be guilty of gross misconduct in relation to conduct before becoming, or after ceasing to be, a citizen.
Further, the conduct is punishable only where it is willful or negligent. The Court, in its decision
on the Standard of Proof and Intent, addressed the meaning of willful in the context of Fraud and held it to be equivalent to intentional, which was also considered in that decision.
Responsible Action
It is in that context that the Court must determine what "responsible action" means and whether its meaning is unconstitutionally vague.
The Court has been referred to the discussions of the Regional Assembly when amending the oath. As the Court's decision
on RA Membership Requirements for Candidates notes, it can sometimes be appropriate and useful to refer to the Assembly's discussions where a law is ambiguous or absurd. The Court considers that there is ambiguity in "responsible action" sufficient to look at those discussions. However, the statements made in the course of debating the phrase give only limited assistance. While one member put forward a potential meaning, they were not the proposer of the Bill and there were other members who considered the phrase ambiguous and were concerned about a potentially subjective reading of it.
The request, effectively, proceeds on the basis that "responsible action" could be reduced to a subjective question of whether a given nation considers conduct responsible or irresponsible. Examples of what could be covered on this understanding are set out: a nation standing in an election it will lose; a nation telegramming another a mild swear; a nation filing an unmeritorious request for review. The Court agrees that this is a possible meaning of the phrase and that, if it were its proper meaning for the purposes of Gross Misconduct, it would be unconstitutionally vague. Such a subjective meaning would deprive a reasonable nation of any meaningful ability to say whether its conduct is criminal.
However, the Court is of the view that where a law can bear different meanings and some of them would be unconstitutional, the Court should generally look to a meaning compliant with the Constitution and Bill of Rights. Further, the Court finds it unlikely that the Regional Assembly could have meant to pass a law that was so broad as to be unconstitutional, particularly where a number of members expressed concern about criminalising conduct on a subjective basis. These points have their limits: the Court should not adopt a meaning that does not fit plausibly with the particular wording of the law or that would be contrary to its surrounding context.
The Court notes that, in its decision
on Endorsement Count Requirements and the Solicitation of Endorsements, some consideration was given to Gross Misconduct committed by citizens. The Court stated that "a citizen could conceivably commit Gross Misconduct by violating their oath as citizen in egregious cases of Reckless Endorsement Gathering". This lends credence to a view that Gross Misconduct is not committed merely by some trivial irresponsibility, but that something greater is required. The very name of the crime supports this also, it is
Gross Misconduct.
The Court concludes it ought to adopt a narrow interpretation of "responsible action". This would comply with the requirements of the Bill of Rights, it would avoid finding unconstitutional an otherwise viable law, and it would not be contrary to the law's wording or its context. A violation of the pledge of "responsible action", for the purposes of Gross Misconduct, is conduct which a reasonable citizen would find obviously and seriously irresponsible. Further, where the conduct could not be criminalised due to being protected by the Bill of Rights, even if it could fall within the above meaning, it is not a violation of the pledge.
The Court finds that, with this meaning, "responsible action" is not so vague as to be unconstitutional. A reasonable nation would be able to say for most conduct whether it is covered by the crime of Gross Misconduct and, while there may remain areas of some doubt, the Court considers that cases falling at the margins would not be enough to render the meaning unconstitutional. In so finding the Court also has regard to other factors relevant to the issue, particularly: that the crime is not satisfied by conduct alone but the conduct must be willful or negligent; that a nation can guarantee that it is outside of the scope of Gross Misconduct by not seeking or by renouncing citizenship; and that citizens, though not exercising power on the same level as officials, do wield power over their fellow nations, by making laws for them and choosing the officials that administer them, and so have (and in the oath accept) a greater need to act with responsibility.
Conclusion
The Court finds that criminal laws can be so vague that they are unconstitutional, as they can infringe on a nation's rights under Article 9. Whether a criminal law is too vague is generally to be answered by considering whether it leaves reasonable nation unable to say with reasonable certainty whether it would risk criminal liability in relation to a substantial range of conduct, but other factors may also be relevant to considering particular laws.
Gross Misconduct by violation of the pledge of "responsible action" cannot be satisfied only by conduct that could be subjectively thought irresponsible. Such an interpretation would be unconstitutional and the Court considers it improper to adopt it where there are other constitutional interpretations that are open to the Court. Instead, the Court concludes that the pledge is only violated by conduct that a reasonable citizen would find obviously and seriously irresponsible and that conduct protected by the Bill of Rights does not violate the pledge even where it could be characterised as irresponsible.
The Court finds that, applying that meaning and considering other factors relevant to Gross Misconduct, the crime of Gross Misconduct committed by violation of the pledge of "responsible action" is not unconstitutionally vague.
