[R4R] Reject Facism Law Conflicts with Regional Bill of Rights

1. What law, government policy, or action (taken by a government official) do you request that the Court review?
The Reject Fascism Bill, as debated here, passed here, and signed here.

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?
Article I, Section I of the Constitution states:
Article 6, Section 17 of the Constitution states:
Section 2 of the Bill of Rights states:
Section 9 of the Bill of Rights states:

I believe that automatically failing any citizenship applicant "who identifies as fascist or has engaged in the promotion of fascism." violates their rights to free speech under the Bill of Rights of The North Pacific and discriminates against them versus other applicants, violating their right to equal and fair treatment under the Constitution. I ask that the Court review the conflict between the regional Bill of Rights and the new law.

3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?
The court has been asked to rule many times on sections of the Bill of Rights pertinent to free speech and equal and fair treatment under the provisions of the Constitution. Time and time again, the Court has ruled to uphold these provisions of the Bill of Rights, setting a breadth of precedent for the Court to consider in this case. Previous rulings show that where regional law violates the Bill of Rights, that law is overturned by the Court.

Reference Case - C.9 on the Bill of Rights, as ruled here (see third ruling). This ruling is important as it clarifies which nations are subject to Section 9 of the Bill of Rights. While other rulings have discussed and included Section 9 as evidence, this ruling is significant in that it clarifies that the provision requires "equal and fair treatment" to all nations of the North Pacific in relation to the provisions as laid out in the Constitution.

Request for Review: Constitutionality of the Sedition Law, as ruled here. Critically, the court found that "The Constitution does not provide for the ability to infringe on Free Speech in any of its provisions." It ruled to overturn the law that was found in conflict with Section 2 of the Bill of Rights.

Request for Review: Citizenship Oath Amendment, as ruled here. This ruling is important because it found that 'equal and fair treatment' under the Constitution does apply to nations applying for regional citizenship.

Request for Review: Removal from Positions on the Basis of Criticism of Government Policy as ruled here. This ruling is important because it establishes that "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.", giving precedent that nations that reside within TNP are afforded the protections of the Bill of Rights, even if statements made externally are not respected by TNP.

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.
As a nation that resides within The North Pacific, a violation of the Bill of Rights (that is applicable to all nations) represents a violation of my rights. Any law that abridges the right to free speech as is provided under the Bill of Rights adversely affects my ability to freely voice my opinions.

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.
The compelling regional interest in resolving my request is the clear conflict that is now present within regional law, that affects all current and future nations of TNP. Clarity and coherence in our legal documents is important.

6. Do you have any further information you wish to submit to the Court with your request?
I request that Pallaith recuse himself from the review process as he was the author of the legislation, and will therefore clearly be biased in favor of it.

The court is currently in talks about accepting or denying this request.

Pallaith as recused himself under Court Procedure 4.1.3

I accept this R4R.

I consider Pallaith is the appropriate respondent to this request and I will notify them accordingly. The court will accept briefs from any interested party.

Pallaith has recused himself from this case and a temporary hearing officer will be appointed in due course.

In accordance with the Court's standing procedures, the time for briefs will last 5 days will close (time=1628043960)

The court appoints @Oracle as Temporary Hearing Officer for this R4R

The date is inncorrect, briefs will end on Aug 04.

A Brief in Support of the Challenged Law

Submitted by Pallaith, in his capacity as a private citizen and respondent

Fiji asserts that the Reject Fascism Bill, as enacted into law, violates Article 1, Section 1 and Article 6, Section 17 of the Constitution, as well as Sections 2 and 9 of the Bill of Rights. Regarding the constitutional violations, he cites the portions of the constitution guaranteeing all nations the rights defined by the Bill of Rights, and the provision barring laws or policies that contradict the Constitution. To bolster this argument, he cites 4 prior rulings by this Court: On the Scope of Clause 9 of the Bill of Rights, On the Constitutionality of Prohibiting Sedition, On Alterations to the Citizenship Oath, and On the Delegate's Authority to Staff the Executive Branch. When it comes to On the Scope of Clause 9 of the Bill of Rights, there is no dispute here that the Bill of Rights does in fact apply to all residents in TNP. What is in dispute is whether the law under review actually violates these provisions of the Bill of Rights as Fiji asserts and based on a closer examination of the same case law he laid out in his initial request for review, I conclude that it does not.

Before addressing the argument on its merits, I would like to briefly address the question of standing. Fiji relies on a general standing as a citizen of TNP and asserts that his rights are also impacted by the hypothetical violation of potential fascist applicants who fail the Vice Delegate’s check. This Court has recently denied review of the Vice Delegate’s powers in part on the grounds that the petitioner was not impacted by the Vice Delegate’s check. The same is obviously true of Fiji, as he is already a citizen. Again, we must consider the result of On Standing and the Definition of Affected Party, which was that "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." Fiji attempts to do this by effectively saying that if one nation’s rights under the Bill of Rights are violated, then all nations’ rights are violated. For the purposes of standing, this simply cannot be the case. Nevertheless, the Court has accepted this request for review. This has happened many times in the past despite a lack of standing, and so it is here.

Fiji asserts that On Alterations to the Citizenship Oath finds that the provision of the Constitution concerned with “equal and fair treatment” applies to nations applying for citizenship. The ruling was concerned with alterations to the citizenship oath, and whether the Speaker was treating all applicants fairly in inconsistently processing applications with altered oaths. The Court ruled that the inconsistent processing did not afford these nations equal and fair treatment. While Fiji relies on this ruling to bolster his claim that the Bill of Rights applies to the citizenship process (the ruling would not make sense if it was not applying the Bill of Rights to the citizenship process), it is concerned specifically with the Speaker’s power in managing citizenship. And what the Court concludes in this ruling works against the point Fiji is trying to make. Whereas the Speaker was not offering “equal and fair treatment” to citizens by inconsistently accepting applicants based on altered oaths, the Vice Delegate’s security check is simple and consistent: after performing a security check, the Vice Delegate passes or fails an applicant. The matter is then referred to the RA for an up or down vote. It does not matter why the security check was failed – the applicant receives a vote all the same. The law currently being reviewed adds an additional provision, a second check which if failed goes down the same road to an RA vote. Whether a nation is deemed fascist for the purposes of this law, or deemed a security risk, the result is always the same.

The new condition for the Vice Delegate to consider does not lead to a different process for the applicants. All applicants who fail the Vice Delegate’s check get a vote by the RA. It would be absurd to argue that because the Vice Delegate sometimes fails applicants when performing a security check, those nations’ rights as they relate to the Bill of Rights are being violated. With that in mind I would contend that it is unfathomable the Court would consider this new check to be unconstitutional on Section 9 grounds, as it must logically follow that the security check would also be unconstitutional on the same grounds. Clearly, the nations that fail the security check are being discriminated against, but as far as the process goes, all nations receive the same scrutiny, and the few who fail this check experience the same next step of an RA vote. To the extent some applicants are discriminated against (that is, denied citizenship on the grounds of failing the Vice Delegate’s check), they are nevertheless treated equally and fairly as part of that process. The Vice Delegate’s security check, by its very nature, necessitates treating some applicants differently from others. This depends on the judgment of the Vice Delegate, and we have seen varying criteria for this check over the years. No two applicants who have failed this check failed it for the same reason. And yet, they went through the exact same process that played out the same way each time.

In the very next case Fiji cites as proof of his assertion, the Court addresses this ruling, and why it is distinguishable from that case (which I will address in the following paragraph). The Court remarked that “[t]he 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.” The result here is not problematic, because the rights violation being asserted is a lack of “equal and fair treatment” even though clearly, all applicants are treated the same when going through this process, and clearly the process is the same whether the Vice Delegate checks fascism or security.

Finally, I would briefly address how Section 2 applies to this ruling. Fiji cited this case for its Section 9 dimension but was silent on Section 2. The Court, however, did address Section 2 in this ruling, and once again, it does not bolster his case. The petitioner alleged that his free speech rights were violated as he could not alter it with his own identifier but was forced to comply with the oath as written. The oath is a crucial component of the Speaker’s check and failing to properly swear it constitutes grounds for one’s citizenship to be rejected. This is the same logic underpinning the Vice Delegate’s check: if you do not meet the criteria for passing that check, your application is rejected. The law under review creates an explicit standard, much like the oath, which if not met constitutes failure of the citizenship check. The Court did not deem the petitioner’s inability to swear an oath with the identifier of his choice to be a violation of his rights under Section 2 of the Bill of Rights: “The Court does not find that this small restriction on the location of one's identifier constitutes an infringement of a nation's right to free speech, as that speech remains free to occur.” As I will elaborate at greater length below, the fact that the nation is still able to engage in fascist speech despite this provision in the legal code is a crucial point.

Fiji also asserts On the Delegate's Authority to Staff the Executive Branch extends the “equal and fair treatment” clause to any place in the game outside of TNP. My reading of the case, however, emphasizes again Section 2 of the Bill of Rights, as it is far more relevant to addressing that rather than the incidental application of Section 9. In that case, the Court considered whether a government official‘s freedom of speech was violated because the delegate removed him from his position because of his conduct in communications with other regions outside of the region. That case was concerned with the conduct of a government official, not a simple resident, but it nevertheless established that nations residing in TNP enjoy freedom of speech even when outside TNP. The Court, however, also held that “[t]he 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.” When performing a check of citizenship applicants, the Vice Delegate may consider – and currently does when evaluating whether a nation may be a security threat – what a nation did outside of TNP. Should that conduct or speech have predated their time as a resident in TNP, it clearly would not enjoy the protection of the Bill of Rights.

To the extent that conduct or speech home or abroad occurred while they happened to also be a resident of TNP, the Court goes on to say in the same case that “free speech is not consequence-free speech.” Indeed, conduct and speech deemed to be a security concern has for years led to the Vice Delegate rejecting applicants for citizenship! Strictly speaking, much of what has resulted in an applicant failing the Vice Delegate’s check involved conduct or speech that took place outside of TNP, regardless of whether the applicant was at the time a resident in TNP or not. And in such cases, the applicant was not forbidden from engaging in that conduct or speech, they simply suffered a consequence for the behavior, the consequence being, they failed the Vice Delegate’s check when applying for citizenship. The law under review does not bar applicants from being fascist or espousing fascist things. It does not restrict their speech at all. It creates a condition by which the Vice Delegate can reject them; it creates a consequence for their speech.

This fundamental flaw also exists in Fiji’s argument regarding the Court’s ruling in On the Constitutionality of Prohibiting Sedition. In that case, the Court struck down a law that sought to forbid nations in TNP from intentionally inciting revolt against the government. Fiji relies on the Court’s statement that “[t]he Constitution does not provide for the ability to infringe on Free Speech in any of its provisions.” The law the Court ruled unconstitutional expressly forbade a type of speech and clearly contradicted this. As I have just outlined in the preceding paragraph, however, the law under review does not expressly forbid any type of speech. Rather, it empowers the Vice Delegate to reject applicants on an additional basis aside from the existing security check provision. As with the Court’s conclusion in On Alterations to the Citizenship Oath, the speech is free to occur, but engaging in that speech brings with it a limitation in the citizenship application process.

In summary, the Court cannot consider this law to be unconstitutional. It is concerned with amending one aspect of the citizenship approval process, a process that has two consistent paths, one when accepted and one when rejected, and which the Court has previously ruled may impose restrictions on some applicants. For almost a decade this process has included a check that by its very nature requires treating some applicants differently from others. In considering an applicant’s speech or conduct, whether in the region or outside of it, the law empowering the Vice Delegate to reject an applicant imposes a potential consequence of that behavior (that they may be rejected from citizenship) but does not bar the behavior itself. The nations are free to speak and believe whatever they want, the government does not prohibit them from doing so. To rule that this law violates Section 2 of the Bill of Rights, the Court would be ruling that even consequences for speech would violate a nation’s free speech rights. This would do serious damage to the government’s ability to respond to offenses from appointees by removing them for cause, it would make it harder for officials to regulate the spaces in which they work and conduct regional business, it would restrict the moderation of the regional message board. Much has been said about Section 2, but its concluding clause is just as relevant as the rest: “The governmental authorities of the region shall act only in the best interests of the Region, as permitted and limited under the Constitution.” In ruling that this law cannot stand, the Court would be setting a new standard for free speech in this region, one that would greatly enhance its viability and make it near absolute, at the expense of any reasonable attempt to curtail its excesses for the betterment of the region. It would diminish the government’s ability to act in the region’s best interest.

I have also argued that if this new law is deemed to violate Section 9 of the Bill of Rights, it must follow that the Vice Delegate’s security check also violates Section 9. I would remind the Court that it has always taken care not to rule so broadly as to call into question years of precedent and actions by former government officials. Whenever the Court has decided that an error was made in the past, and the business of government relied upon that mistake in how it dealt with nations in this region, it has always taken care not to look backward, but to set a new standard (On the Permanence of Rejected Applications for the Regional Assembly, On the Form of the Oath of a Delegate). Even if the Court kept to its precedent and ruled that this aspect of the citizenship application process can no longer stand going forward, the Court would leave the region with no viable way to consider regional security when admitting new citizens into its community. If the chief security official of the region cannot flag potentially dangerous individuals because doing so discriminates against them in a fashion incompatible with the Bill of Rights, then what recourse are we left with? The Court must also consider the impact such a result would have on the safety and security of the region, as it would make it impossible for applicants to be properly vetted when attempting to obtain citizenship and could ultimately harm and threaten the rights all nations in TNP have should the worst happen, and particularly unsavory and dangerous individuals be allowed easy access to TNP’s government and legislative powers. The Court must conclude that the law under review is constitutional. I thank the Court for its time.

On Personal Standing

It is clear that there is no personal standing for the petitioner's request for review to be accepted due to them being adversely affected. In the request for review "The meaning of affected party", the Court held that "[t]he 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 petitioner has not demonstrated how they have been personally affected in the situation, instead, they rely on the nebulous concept that any violation of the Bill of Rights violates their rights. The petitioner has not confirmed that they identify as a fascist or has promoted fascism (and even if so, they would not remain affected as they are currently a citizen).

Furthermore, the petitioner attempts to state that their ability to freely voice their opinion is affected, however, they are not in a category of an individual which would be affected (a resident applying for citizenship with a demonstrated history of fascism who is rejected by the Vice Delegate). Indeed, the petitioner is a long-standing citizen and is not currently affected personally, in rejecting the request for review of "Loss of Citizenship", the Court maintained that "[t]he fact that some scenario where a decision could apply may arise in future is not sufficient". The hypothetical possibility of the petitioner losing citizenship, reapplying and then being denied for a fascist history is not sufficient for personal standing to be persuasive in accepting this brief.

On Regional Interest

The petitioner maintains that there is a conflict in the law and that qualifies as being in the regional interest. While I disagree with the argument of a conflict and would agree with Pallaith's brief that there is no conflict, the Court has previously maintained that a hypothetical scenario is not sufficient for a request for review to be accepted based on the regional interest. In "The Limits of the VD's Security Evaluation", this very same term, the Court notes that a reason for the rejection is there is "lacks evidence of an occurrence in which the Court can view the question". There is no evidence presented of an occurrence where free speech is impact by the law. The Court also specifically referred to "Loss of Citizenship" just a couple of weeks ago where the Court noted that, as aforementioned, "[t]he fact that some scenario where a decision could apply may arise in future is not sufficient". Given that once again, there has been no direct impact. As well, the Court states that "the possibility of differing interpretations of the law would not be enough to be a compelling regional interest". The petitioner argues that nebulously all residents of TNP are having their rights infringed upon which certainly differs from other interpretations. Simply having a differing interpretation of the law than others should not be sufficient for this request for review to be accepted.

Additionally, the petitioner maintains that the law affects all current and future nations of TNP. The effects of the law are much narrower in scope than the petitioner attempts to state. The law is rather narrow in that only resident nations applying for citizenship that are denied due to identifying as fascist or promoting fascism, the petitioner has not demonstrated that there are any affected individuals meeting this circumstance. If the law is not affecting anyone, is there really a regional interest in resolving the legal questions presented? Should there be a genuinely affected party, there are no barriers for someone actually impacted to request a review of the law.

Previous requests for reviews clearly demonstrate that there is not sufficient grounds for this review to be accepted based on the regional interest.

Summary

The course of action for the Court is clear. The Court should decline to comment on the further on this matter other than the lack of personal standing of the petitioner and the lack of regional interest in resolving the brief. There is no demonstrated personal standing of the petitioner and it is not in the regional interest to accept this brief. The petitioner has attempted to manipulate the law's affects to be overly broad when in reality, the law is much narrower in scope with more limited affect with no affect on the petitioner directly.

I thank the Court for their time.

The briefing period is now closed.

It's been a while. Any update from the Court?

The Court is still in deliberations.

The Court took into consideration the inquire filed [here] by El Fiji Grande

The Court took into consideration the legal brief filed [here] by Pallaith
The Court took into consideration the legal brief filed [here] by Praetor

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

Article 1. Bill of Rights
1. All nations are guaranteed the rights defined by the Bill of Rights.
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Article 2. The Regional Assembly
3. Requirements for citizenship will be determined by law.
4. The Regional Assembly may enact, amend or repeal laws by a majority vote.

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The Court took into consideration the relevant portion 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.

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The Court took into consideration the relevant portion of the Legal Code of The North Pacific.

Chapter 6: Regional Assembly Statutes
Section 6.1: Citizenship Applications
6. The Vice Delegate will automatically fail any applicant who identifies as fascist or has engaged in the promotion of fascism.
8. If an applicant is rejected for failing an evaluation by the Vice Delegate, the Regional Assembly shall immediately debate the rejection and will hold a majority vote on whether to uphold it. The vote must begin two days after the rejection occurs.
9. The Regional Assembly may overturn a previous decision to uphold the rejection of an applicant by majority vote.

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The Court took into consideration prior ruling by the Court [here], [here], [here], & [here].

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On Standing
The Court finds that while the stated standing provided of being a nation protected under the Bill of Rights is a weak claim to standing, none-the-less the compelling interest keeps the Request valid due to the implications of a violations of rights in the application process to attain citizenship.

On Compelling Interest
The Court finds that there is a valid argument to be made about the purported conflict between the Reject Fascism Bill and the Bill of Rights.

On the Conflict between the Reject Fascism Bill (R.F.B.) and Bill of Rights Clauses 2 and 9.
The Court finds that no conflict exists between these because the R.F.B. does not target the speech of those applying for citizenship. The R.F.B. specifically targets applicants for their affiliation with a group (Fascists) and upon the affirmative action of promoting said group. The bill that is now Chapter 6, Section 6.1, Clause 6 in no way bars or punishes the ability of people to speak about anything only requiring a rejection for those who "identifies as" (affiliation) or "engages in the promotion" (action) neither of which are protected by the Bill of Rights or the Constitution.

Clause 2 of the Bill of Rights contains 3 freedom of “speech”, “press” and “expression of religion” none of which protect the above, Clause 9 only refers to “fair and equal treatment and protection” in relation to the actions of members of the government, a law can not violate Clause 9 because it only guarantees that the government will apply the laws to any “nations of The North Pacific” in an “equal and fair” manner, it would only be a violation of Clause 9 to selectively enforce the laws as they are written.

I thank the Court for its time.