[R4R] Regarding 'On the Vice Delegate's Voting Rights within the Security Council'

[TlomzKrano]

1. What law, government policy, or action (taken by a government official) do you request that the Court review?
Previous court ruling number 4, On the Vice Delegate's Voting Rights within the Security Council.

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?

The Vice Delegate will chair the Security Council and enforce the continued eligibility of its members as determined by law.

Government bodies may create rules for their own governance subordinate to this constitution and the laws.

If the Vice Delegate is a member of the Security Council, they may cast a vote on matters before the SC. Otherwise, they may only vote to break a tie.

The opinion of the court in 2012 was issued when the Procedures of the Security Council did not address the voting capability of the Vice Delegate as it relates to Security Council matters. For its time, the ruling is fundamentally correct that no law exists which explicitly governs the ability for the Vice Delegate to vote on Security Council matters. The basis for the 2012 ruling is the establishment of the Vice Delegate as Chairman of the Security Council (Article 3, Clause 10 of the Constitution as quoted above), thus implying that they have the ability to vote on the Security Council matters they oversee.

The above quoted clause from the Procedure of the Security Council was introduced via amendment as of September 20th, 2015, and has remained in the procedures ever since. This clause directly addresses the voting eligibility of the Vice Delegate in Security Council matters and remains the sole statute governing such abilities. The Security Council has over eight years of voting history with this rule actively being enforced.

The 2012 ruling is problematic in that the Court attempts to discover the intention of the author where no such preference by the author exists. Article 6, Clause 15 of the Constitution (quoted above) grants ultimate deference to government entities, such as the Security Council, to internally govern what is not explicitly covered in superseding statutes. Thus, the Security Council is free to govern their voting procedure by use of the Procedure of the Security Council, given the Constitution does not address the Vice Delegate’s voting abilities as they relate to Security Council matters.


3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?
Previous court ruling number 41, On the Physical Representation of Outdated Rulings on Requests for Review, establishes the ability for Requests for Review (R4R) rulings to result in the overruling of previous court rulings, as is being proposed in this R4R.

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.
Standing derived by my position as Court Examiner, defined in Legal Code Section 3.6, Clause 34: "The Court Examiner will have standing in all cases of judicial review brought before the Court."

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.
This request looks to address a ruling by the Court that was issued during a period in which the Security Council did not internally address the voting abilities of a non-member Vice Delegate. The clause the court cites in their ruling makes no mention of the voting abilities of the Vice Delegate, however is still used by way of deriving intention of the author to determine the voting abilities of the Vice Delegate. This attempt by the court to derive such intention where no reasonably ascertainable intention exists is in violation of Constitutional Law.

It is firmly in the interests of the region, inclusive of the Security Council, that the accuracy of standing precedent is upheld and current operations of government bodies are in line with established law and standing precedent.

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

 

[Pallaith]

The Court accepts this request for review, and I will serve as the Moderating Justice. The Court does not recognize any responsible government official to be recognized as respondent, given this is a Court decision under review.

At this time the Court will accept briefs from any interested party, until five days from this post.

 

[Simone]

I submit my brief as a citizen.

(Using myself as example) - as the chairman of a board of directors of a private company I am by law a director myself, and therefore I have a vote. The fact that the VD is not automatically a member of the Security Council seems to imply that it is more akin to someone "above the fray" ie say the British House of Commons, where the Speaker is independent and does not vote by convention (refer to Erskine May). To take another example IRL, the Senate President is the ex officio chairman of the Commission on Appointments of the Philippines, but can only vote on ties.

It seems that a constitutional change to clarify this status would be best. I have no opinion on whether the VD should get a vote, but I dislike ambiguities.

 

[Pallaith]

The time for submitting briefs is over. The Court will now deliberate.

 

[Pallaith]

Ruling of the Court of The North Pacific
In regards to the Judicial Inquiry filed by TlomzKrano on Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies and the Reconsideration of the Vice Delegate's Voting Rights within the Security Council
Opinion drafted by Justice Pallaith, joined by Chief Justice Attempted Socialism and Justice Eluvatar​

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

The Court took into consideration the legal brief filed here by Simone.

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

Article 3: The Delegate and Vice Delegate
10. The Vice Delegate will chair the Security Council and enforce the continued eligibility of its members as determined by law.

Article 6: General Provisions
15. Government bodies may create rules for their own governance subordinate to this constitution and the laws.

The Court took into consideration the relevant portion of the Procedure of the Security Council

Article 8: Access by Non-Members
1. If the Vice Delegate is a member of the Security Council, they may cast a vote on matters before the SC. Otherwise, they may only vote to break a tie.

The Court took into consideration the prior rulings by the Court On the Vice Delegate's Voting Rights within the Security Council and On Recognizing Outdated Rulings.

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The Court opines the following:

On Standing
The petitioner is the Court Examiner, and enjoys universal standing for all questions before this Court. There is no question of proper standing in this case.

On the Court’s Prior Ruling
The Court is asked to reconsider one of its prior rulings, this one deemed to create a conflict between the Constitution and a subordinate government body, which in this case is the Security Council. The provision of the Constitution originally considered by this Court in its decision On the Vice Delegate’s Voting Rights within the Security Council has not changed since that ruling. The provision of the Constitution identified by the petitioner, regarding the ability of government bodies to create their own subordinate rules to the Constitution, has also not changed since the ruling under review. What has changed since that decision is the amendment of the Security Council’s procedures, where the Security Council placed a restriction on the Vice Delegate’s ability to vote in the Security Council. Whereas before the Security Council was silent on this matter, they have since created a rule that only grants the Vice Delegate a vote to break ties unless the Vice Delegate is also a member of the Security Council.

The Court asserted in its prior decision that because the Constitution did not state that the Vice Delegate did not have voting rights in the Security Council, there was “no choice but to assume” that the Constitution was intended to give the Vice Delegate such voting rights. At best, by also observing that the provision in question specified the role of the Vice Delegate as chair of the Security Council, the Court insinuated that having a vote in that body was related to that role. However, there was no explicit analysis or justification for this particular conclusion. In evaluating the other constitutional provision cited by the Court Examiner, regarding government bodies establishing their own rules, we believe that the Constitution clearly intended for the Security Council to decide how voting was handled in that body. But while government bodies constitutionally have the right to set these rules, they do not always manage to do so, or to consider every potential gap or situation that may arise from how the rules are written. This is when ambiguity creeps in.

On the Vice Delegate’s Role in the Security Council
When considering the basic separation of powers evident in the Constitution, as well as the Legal Code, it is clear that the Vice Delegate is not selected by the Security Council and is explicitly a role intended to be apart from the Security Council, as membership in the Security Council is not a pre-requisite for the position. And as the Court already established, the Vice Delegate chairs the Security Council, which allows the Vice Delegate to have some insulation from the Security Council and allows the region some democratic means to steer the Security Council. At the same time, the Security Council itself determines its organization and its procedures. The constitutional provision in question, after all, also establishes that as chair, the Vice Delegate enforces membership in the Security Council which is determined by law, not this article of the Constitution. The Vice Delegate applies rules made by the Security Council, not by the Vice Delegate. The checks and balances cut both ways – the Vice Delegate can be a check on the Security Council, but they can do the same to the Vice Delegate. With all of this in mind, the Court today believes that it would have been perfectly reasonable to rule that the Vice Delegate had no voting rights on the Security Council, and in fact was not meant to have them.

On Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies
It can be said that the fact the Constitution is often silent on the specific details of how government bodies and their regulations are organized is a feature, not a bug. These matters are left to the Legal Code, and when even that is silent, the rules adopted by the various government bodies, including but not limited to the Security Council, the Regional Assembly, the Court, the Election Commission, or the Bar Commission. The Constitution, as we have already shown, specifically contemplates this. But when those rules or procedures contain gaps, and they are not addressed by changes to those procedures or to existing law, the Court often has to step in. As the Constitution is clear that the various government bodies may establish their own rules, this Court believes that to the extent it must weigh in and resolve ambiguities related to the regulation of government bodies, it should do so with careful application of existing constitutional and legal provisions, and settle the question with as little change to the subordinate laws and regulations as possible, particularly if the changes involve drafting entirely new language. The Court is not a legislative or regulatory body, and believes it is always better for the Regional Assembly to settle ambiguities in law itself, and for government bodies to clearly outline their own procedures and address deficiencies with internal amendments wherever possible. Nevertheless, we have many times outlined provisions or rules that can guide government bodies when these guidelines or rules were not in place, and may continue to do so from time to time, but on such occasions the Court must endeavor to tread lightly and only as much as is required by the nature of the ambiguity at the heart of the question it is asked to answer.

When resolving these questions, as outlined above, the Court should rely on some legal logic that serves as a foundation and can be traced to some constitutional principle or pattern in existing law or procedures. We find that lacking in the Court’s prior decision, which was baseless and relied on reading into existence a supposedly obvious intention that today’s Court believes is not supported by all of the same text and subtext that existed when this subject was last considered by the Court. That being said, while this Court cannot agree with the logic asserted by the Court in the prior case, we do recognize that in this particular situation, the Court resolved a binary question. This Court accepts that the resolution of the prior case was valid, because the Court had two choices and either one was equally capable of resolving the ambiguity. Either the Vice Delegate had voting rights on the Security Council, or the Vice Delegate didn’t have voting rights in the Security Council, and since no existing law and no existing procedure of the Security Council defined such rights, the Court had to answer the question. This also did not require changing the procedures in any way, and created no additional burden, so while the outcome was the opposite of what today’s Court would have ruled, and we feel the Court’s decision had little basis, the Court nevertheless was able to make this judgment call and choose one of the two options available to it to resolve this particular question.

Even so, the Court erred in the decision it made. While simply answering the question and affirming the right of the Vice Delegate to vote in Security Council matters would have been a small matter, the Court went much further than necessary in how it resolved the question. By asserting that the Constitution was intended to grant the Vice Delegate voting authority on the Security Council, the Court established its answer as a constitutional principle and therefore completely eliminated the Security Council’s ability to regulate the Vice Delegate’s vote despite the Constitution not precluding them from doing so. Ever since the Security Council adopted its rule for Vice Delegate voting in its procedures, it has done so, at least according to this Court’s binding precedent, in violation of the Constitution. We believe it would be absurd to declare the Security Council’s own governance of its internal voting unconstitutional, not only because it has relied on those procedures for nearly a decade, but because those procedures are fully consistent with our understanding of the separation of powers and the various roles each official plays in the Security Council, and are an example of another constitutional provision in action. The two provisions under review do not conflict, except because a prior Court ruling decided that they did.

Holding
We hereby overturn the ruling On the Vice Delegate’s Voting Rights within the Security Council in its entirety, and find that the Vice Delegate does not have an inherent constitutional right to vote in the Security Council. We affirm the Security Council’s constitutional right to determine its own procedures, including voting within that body, in the absence of any higher legal provisions further defining its procedures.