[R4R] Regarding "On Regional Officers Banning Nations during NationStates Events"

[TlomzKrano]

1. What law, government policy, or action (taken by a government official) do you request that the Court review?
Previous court ruling number 49, On Regional Officers Banning Nations during NationStates Events.

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?

11. No governmental authority of the region and its territories has the power to suspend or disregard the Constitution or the Legal Code. In the event of an actual emergency, the governmental authorities of the region and its territories, with the express consent of the Nations of the region and its territories or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of the Constitution.

4. Requirements for citizenship will be determined by law.
5. The Regional Assembly may enact, amend or repeal laws by a majority vote.

15. The Speaker will promptly remove any citizens whose removal is ordered by the Court, whose registered nations in The North Pacific or one of its territories leave or cease to exist, or whose citizenship is voluntarily renounced by notifying the Speaker.
16. The Speaker will promptly remove any citizens who, for over 30 consecutive days, neither post on the regional forum, nor post on the regional message board of The North Pacific or one of its territories with their registered nations.

5. During an outbreak, the delegate is authorized to act in any reasonable manner to pursue the adopted plan. This includes, but is not limited to, ejecting or banning nations from the region who have entered the region during the crisis, imposing restrictions on national movement into the region, and granting Border Control to other government officials for the duration of the event.
6. No more than 30 days before the historical start of the event, the Delegate may appoint a Citizen to assist in the regional response to an infectious disease outbreak. The appointee is exempt from constitutional restrictions on holding multiple government offices for purposes of their appointment. The appointee's term shall end at the conclusion of the event.
8. During an outbreak, no nation may have their status as a resident or citizen removed solely for leaving the region, so long as they return within three days of the end of the emergency.

The target ruling attempts to reinforce the ability of government authorities to act during 'Emergency Situations', as defined in Chapter 8 of the legal code. In doing so, the court broadly interprets portions of Legal Code Section 8.2: Disease Control (at the time of ruling, provisions found in chapter 8 of the legal code were found in chapter 9 of the legal code) and Section 6.2: Administration and Loss of Citizenship, offering conditions for governmental action and a sweeping stipulation on the loss of citizenship.

The second condition on governmental action the ruling offers,

“...authorizing a regional officer to eject nations must be reasonable under the circumstances. For example, if the delegate appointed a regional officer who was known to be a security risk, that would be illegal because it is unreasonable.”

has been explicitly codified under Section 8.2, Clause 6 of the Legal Code as shown above. This clause, when considered in combination with Section 8.2 Clause 5, shown above, adequately cover the second condition provided by the target ruling. Thus, rendering this specific portion of the ruling obsolete and therefore should be struck out.

In the final paragraph of the ruling, the court offers a set of stipulations governing the loss of citizenship with respect to nations ejected and/or banned, specifically

“The court notes, however, that for purposes of losing citizenship, ejections do not constitute leaving the region, since the ejected nation was forcibly removed and took no action to leave. Thus, under the law as it currently stands, ejected citizens would remain citizens until they ceased to exist, returned [sic] the region and then departed of their own volition, or failed to post on the forum for over 30 consecutive days.“

These stipulations appear to attempt to combine certain provisions established in Section 6.2 Clause 16 of the Legal Code, shown above, with restrictions on how ejections apply to citizenship removal as per Section 6.2 Clause 15 of the legal code, shown above, and apply them to emergency situations. This action is problematic for two primary reasons.

First, the action applies arbitrary restrictions to Section 6.2, Clause 15 that are not substantiated by any court rulings or complimentary law. Further, to illustrate their faulty logic, these restrictions allow for the theoretical case of an ejected citizen maintaining their citizenship while never returning to the region by asserting that their departure was involuntary without considering that their refusal to return is voluntary. While one might find it useful to conditionally prevent ejections from stripping citizenship and residency status from members of our community, the court cannot opine those restrictions into existence without proper and detailed justification. The very existence of these court established restrictions hampers the Regional Assembly’s ability to further legislate on this issue, thus violating Article 2, Clauses 4 and 5 of the Constitution, listed above. The court is fundamentally not a legislative body and cannot offer opinions not supported by existing legislation and/or previous rulings. This is especially relevant as the ruling does not obviously attempt to offer commentary on what those restrictions were derived from beyond “Thus, under the law as it currently stands” which is not an adequate explanation and only serves to further confuse future court justices and regional assembly members.

Second, the action contradicts already existing law regarding the citizenship of ejected and/or banned citizens as established in Section 8.2, Clause 8 of the Legal Code, as shown above. Section 8.2, Clause 8 explicitly establishes that citizenship of ejected and/or banned citizens is only protected from provisions set forth in Section 6.2, Clause 15 for three (3) days after the conclusion of the ‘Emergency Situation’. Upon the conclusion of that three day waiting period in which the ejected nation has not returned, the Speaker is empowered to remove citizenship from the ejected nation in accordance with Section 6.2, Clause 15 of the legal code.

The above provides multiple avenues through which the ruling fails to pass muster and is complimented by briefs presented in section 6 of this request for review.

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.

Previous court ruling number 77, On the Reconsideration of the Time at Which Oaths Become Binding, serves as an example of the court striking down only a portion of a previous ruling.

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 intends to address a faulty ruling that over extended the reach of the court onto topics not directly presented by the R4R and in a way that is not supported by currently existing law. It is in the interest of the region to address faulty or unsubstantiated rulings as the existence of those rulings can harm the legitimacy future rulings and legislation which rely on their accuracy. Further, those incorrect rulings harm the integrity of the standing precedent that has been developed over years of court rulings. This, in combination with the fact that one portion of the target ruling has been explicitly codified, present an obvious need for immediate court action.

6. Do you have any further information you wish to submit to the Court with your request?
On the Supremacy of Legal Code Chapter 8 During Emergency Situations
Article 1 of the Constitution, the Bill of Rights, Clause 11 states the following,

“No governmental authority of the region and its territories has the power to suspend or disregard the Constitution or the Legal Code. In the event of an actual emergency, the governmental authorities of the region and its territories, with the express consent of the Nations of the region and its territories or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of the Constitution.”

The above clause establishes the ability for the government to act when invoked due to an emergency situation, as long as any of the actions pass two checks. The first check is that any action must only be made with the express consent of the region, and the second check is that any action must be reasonably consistent with provisions set forth within the Constitution.

The Regional Assembly, being the legislative body that represents the nations of The North Pacific, established Chapter 8 of the Legal Code, “Emergency Situations”. This Chapter serves to define various emergencies and conditionally empower the government during emergency situations. This satisfies both required checks for government action as the laws in Chapter 8 were established with consent of the majority of the regional legislative body and the process to establish them in the legal code satisfies the reasonable consistency with Constitutional provisions.

Given government actions during an emergency situation are only beholden to the Constitution, the laws established within Chapter 8, for the purpose of use during Emergency Situations, supersede all other portions of the Legal Code, thus allowing Chapter 8 provisions on citizenship to modify or otherwise restrict the application of Chapter 6 provisions.

On Protections Offered by the Constitution Against Wanton Ejection
Article 1 of the Constitution, the Bill of Rights, Clauses 5 and 8 state the following,

5. All Nations of The North Pacific and its territories have the right to be protected against the abuse of powers by any official of a government authority of the region and its territories. Any Nation of The North Pacific and its territories has the right to request the recall of any official of a government authority of the region and its territories in accordance with the Constitution, that is deemed to have participated in such acts.
8. The regional power of ejection and banning may not be granted or exercised, nor forum bans imposed, unless expressly authorized pursuant to the Constitution or the Legal Code. Any ejected or banned nation is entitled to prompt judicial review of the matter.

For the purposes of this brief as it relates to the request for review presented, Clause 5 serves to establish that all nations in The North Pacific and its territories have a fundamental right to not be abused by government and Clause 8 establishes that all ejections made by the government must be in line with the Constitution and Legal Code.

While these clauses explicitly protect any resident from an unjust ejection, so that it may be challenged and reversed in all due course, they do not protect residents from losing any of their residency based statuses, such as citizenship, when ejected. Ideally, any unjust ejection is dealt with expeditiously so as to minimize harm to the victim, however again, there is no legally established protection for their resident and citizen statuses (excluding Legal Code Section 8.2 Clause 8 which limits the application of provisions established in Section 6.2). The Constitution explicitly hands the ability to legislate on citizenship requirements, and their implied protections, to the Regional Assembly via Article 2: The Regional Assembly.

If we delve into the Legal Code, Section 6.2 provides the Speaker with conditions for removal of Citizenship. Examining Clause 16, the Speaker will remove citizenship from any citizens "whose registered nations in The North Pacific or one of its territories leave". This provision is limited during Emergency Situations by Section 8.2 Clause 8, as previously discussed in the main body of the R4R. Beyond this singular limitation during an Emergency Situation, no other limitations exist in the Constitution or Legal Code. The only piece of standing law or legal precedent that prevents citizenship from being removed due to ejection is the target ruling of this R4R, whose issues have been detailed in the main body.

 

[Dreadton]

This R4R is accepted. I will server as Moderating Justice.

As this relates to a court decision, I do not identify a responding party on this mater. All interested parties are invited to submit briefs on this matter.

The briefing period will last for 14 days, Closing on 30 March 24, absent a compelling reason to extend.

 

[Dreadton]

The briefing period is closed for this Request for Review

 

[Dreadton]

Ruling of the Court of The North Pacific
In regards to the judicial inquiry filed by @TlomzKrano on the Loss of Citizenship When Ejected.

Opinion drafted by @Pallaith and @Dreadton , with @Eluvatar abstaining ​

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

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

Article 1.1 All nations are guaranteed the rights defined by the Bill of Rights.

Article 1.4 Requirements for citizenship will be determined by law.

Article 1.5 The Regional Assembly may enact, amend or repeal laws by a majority vote.

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 and its territories. Each Nation has the right to assemble, and to petition the governmental authorities of the region and its territories, including the WA Delegate, for the redress of grievances. The governmental authorities of the region and its territories shall act only in the best interests of the Region and its territories, as permitted and limited under the Constitution.

5. All Nations of The North Pacific and its territories have the right to be protected against the abuse of powers by any official of a government authority of the region and its territories. Any Nation of The North Pacific and its territories has the right to request the recall of any official of a government authority of the region and its territories in accordance with the Constitution, that is deemed to have participated in such acts.

6. No Nation shall be held to answer for a crime in a manner not prescribed by the Constitution or the Legal Code. No Nation shall be subjected to being twice put in jeopardy for the same offense. No Nation shall ever be compelled in any criminal case to be a witness against itself.

8. The regional power of ejection and banning may not be granted or exercised, nor forum bans imposed, unless expressly authorized pursuant to the Constitution or the Legal Code. Any ejected or banned nation is entitled to prompt judicial review of the matter.

9. Each Nation in The North Pacific and its territories is guaranteed the organization and operation of the governmental authorities of the region and its territories on fundamental principles of democracy, accountability, and transparency. No action by the governmental authorities of the region and its territories shall deny to any Nation of The North Pacific and its territories, due process of law, including prior notice and the opportunity to be heard, nor deny to any Nation of The North Pacific and its territories 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.

11. No governmental authority of the region and its territories has the power to suspend or disregard the Constitution or the Legal Code. In the event of an actual emergency, the governmental authorities of the region and its territories, with the express consent of the Nations of the region and its territories or their representatives, is authorized to act in any reasonable manner that is consistent as practicable with the pertinent provisions of the Constitution.

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

Treason will be punished by ejection and banning, and removal of any basic rights for whatever duration the Court sees fit.

27. The Delegate may eject and/or ban a particular nation from the region pending criminal charges against them, or prior to the conclusion of an ongoing criminal trial in which they are the defendant, only when that nation poses a clear security threat and their removal is necessary for the protection of the region.
28. The Delegate must seek the approval of the Court for any such ejection or ban. Where possible, this approval must be sought prior to the nation's removal from the region. Otherwise, it must be sought within one day of the action.
29. If the ejection or ban is performed during a criminal trial against that nation, approval will be at the discretion of the justice moderating the trial. Otherwise, any single justice may approve or deny the Delegate's request.
30. Any nation ejected or banned under this section may file an appeal of the decision. These appeals may not be denied, and must be decided by the full court.
31. The Delegate must immediately provide any nation ejected or banned under this section with a link to the Courtroom and inform them of their right to file an appeal.
32. If criminal charges are not brought against a nation ejected or banned under this section, or if the criminal charges are rejected by the Court, or if the nation is not found Guilty at the conclusion of the trial, any ban against that nation which was imposed under this section must be revoked.

15. The Speaker will promptly remove any citizens whose removal is ordered by the Court, whose registered nations in The North Pacific or one of its territories leave or cease to exist, or whose citizenship is voluntarily renounced by notifying the Speaker.
16. The Speaker will promptly remove any citizens who, for over 30 consecutive days, neither post on the regional forum, nor post on the regional message board of The North Pacific or one of its territories with their registered nations.
17. The Speaker will promptly remove any citizens whose registered nations in The North Pacific or one of its territories are not in the World Assembly, except as part of an operation with the North Pacific Army, if their citizenship was granted after failing an evaluation by forum administration. This requirement will not apply if the citizens request and then pass another evaluation by forum administration.
18. The Speaker will promptly remove any citizens to whom they granted citizenship in error, if the error is discovered within 7 days of granting their citizenship.
19. The Speaker will promptly remove any citizens who are banned for maintaining a nation in a region or organization at war with The North Pacific.
21. The Speaker will promptly remove any citizens who are confirmed to be using a second forum account or evading a judicially-imposed penalty.
22. The Speaker will promptly remove any citizens who are banned by forum administration.

16. Violators of NationStates rules, residents banned offsite by forum administration, or residents who maintain a nation in a region or organization at war with The North Pacific, may be subject to summary ejection or banning.
17. Residents banned on the basis of forum bans imposed by forum administration may not be banned for longer than the length of the ban imposed by forum administration.
18. Nations recruiting for other regions may be subject to summary ejection or banning.
19. Nations for which the Court has issued an indictment permitting it may be ejected or banned.
20. Nations that have been so sentenced by the Court will be ejected or banned.
21. The official performing an ejection or ban will promptly inform the region and Government.

3. A NationStates event involving an outbreak of an infectious disease shall be considered an actual emergency, and does not require a declaration by the RA.
4. In advance of an outbreak, or promptly after an outbreak begins, the government must present a poll to the public regarding how the government should respond. The poll must contain at least three substantially different options. The government will respond according to the will of the public expressed through that poll.
5. During an outbreak, the delegate is authorized to act in any reasonable manner to pursue the adopted plan. This includes, but is not limited to, ejecting or banning nations from the region who have entered the region during the crisis, imposing restrictions on national movement into the region, and granting Border Control to other government officials for the duration of the event.
6. No more than 30 days before the historical start of the event, the Delegate may appoint a Citizen to assist in the regional response to an infectious disease outbreak. The appointee is exempt from constitutional restrictions on holding multiple government offices for purposes of their appointment. The appointee's term shall end at the conclusion of the event.
7. Nations ejected or banned because of the outbreak must be promptly unbanned and invited to return once the emergency is over.
8. During an outbreak, no nation may have their status as a resident or citizen removed solely for leaving the region, so long as they return within three days of the end of the emergency.
9. Following an outbreak, the Speaker must promptly contact any resident or citizen who remains outside the region, and inform them that they are at risk of losing their status if they do not return within three days.

The Court took into consideration the relevant portions of 2007 TNP LAW 28:

Assembly members whose nation has CTE'd (Ceased to Exist) or who have moved out of The North Pacific when not on official business shall be removed from membership automatically by the Speaker.

The Court took into consideration the relevant portions of 2005 Constitution:

At any time, should sufficient evidence be brought to the Minister of Immigration and Internal Affairs that proves that a registered voter fails to meet the requirements for membership due to the deletion of a Nation from NationStates through inactivity or NationStates Moderator intervention, that Nation's name may be purged from the list of registered voters. Should a Nation, whose voter registration has been purged, later be found to have been resurrected in NationStates, or that the Nation become a member of the Region once again, they may re-apply for voting rights according to the procedures in the preceding clauses of this Section. The act of expulsion or banning of a Nation from the Region prior to a trial or a referendum does not affect its status as a registered voter until and unless a final judgment is entered in a judicial proceeding or a final certification is entered in a referendum, whichever is applicable to the given situation. The North Pacific Legal Code may provide authority to the Minister of Immigration and Internal Affairs for the periodic purging of the names of registered voters who are no longer eligible to vote in the Region, upon due notice because they no longer meet the requirements of this Section.

The Court took into consideration the relevant portions of On Regional Officers Banning Nations during NationStates Events and its Related Filings


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
In 2016, during the annual Z-day event, then citizen Gracius Maximus was ejected by a government official as part of the event. He then challenged the action, alleging several errors in law. First, that the Delegate did not delegate ejection authority making the ejection by another regional officer unlawful. Second, that the action violated his freedom to engage his nation as he saw fit. Finally, his ejection could jeopardize his standing as an elected official and member of the Regional Assembly.

The Court, under the law of that period, ruled that the Delegate must explicitly authorize a regional officer to eject nations during the event, that such authorization is subjected to a reasonableness standard, and that such power is inherent to the Governmental authority to address the emergency.

The Court further opined that an ejection in this manner cannot result in the loss of citizenship. In order for a citizen ejected during the event to lose citizenship, they had to return to the region and leave again, cease to exist, or fail to meet the activity requirements. It is this final part that is being challenged in this Request for Review.

The Court discussion thread on this matter was thin on reasoning for this part of the ruling. The Court looked into the earlier version of the regions governing documents for perspective. When looking at the 2005 and 2007 versions, the provisions regarding loss of citizenship revolve around actions of the individuals and protections against rogue government officials. Both the 2005 and 2007 versions outline the burden on the government to support the ejection and removal of a citizen from the region and expressly limit the potential damage that an ejection may cause. It is in this context we view the original ruling.

On the Loss of Citizenship When Ejected
Throughout the Legal Code and our body of jurisprudence, we have held that the Government is subservient to the people. With Citizenship, this subservience places the burden on the Government to prove that the Citizen acted in a willful manner that resulted in the legal removal of their citizenship. Our laws place great emphasis on how and when citizenship can be removed, outlining multiple steps that must be taken to remove a person from our rolls. The Speaker is directed to specific events that trigger removal, the Court may only remove citizenship for the Crime of Treason, and the Vice Delegate must present a case to the Regional Assembly for review and a vote before rejecting an application for citizenship. Reviewing the historical context in which the Court held the original case, the laws at the time, and our laws today, a common thread runs through it all. Each clause that addresses the removal of citizenship is preceded by a voluntary action of the Citizen or applicant. Failing to maintain a nation in the region, failing to maintain a nation at all, and conducting acts that are offensive to the community are all voluntary acts, whether the citizens are doing something or choosing to not do something that is required of them. It is with this context we uphold the court's original ruling.

There are well established laws on how an ejection from the region should and must be handled. Section 3.5 of the Legal Code establishes a multi-step process that the Government must follow when ejecting a nation from the region, and that person is entitled to due process. This lends further legal support for the Court's original ruling. In the event that a nation is ejected for being a security risk to the region, the legal code does not provide for the removal of citizenship and does provide for redress to the nation in question. The Court must hold a hearing on the ejection and hold a trial on the underlying criminal activity, a process in which the Government must prove the nation acted in some manner. These protections and steps are well established for good reason. To permit the loss of citizenship based solely on an ejection and without due process opens the door for rogue officials to eject and remove citizenship of its opposition and suppress the rights of the people.

An ejection is not a voluntary act in and of itself. It is the Government's reaction to an emergency and part of its program to address it. Many on this Court have experience and even led the response to a disease outbreak, and we are aware of the chaos of the event, the good and bad actors involved, and what happens or can happen to those who choose to not participate. Furthermore, nothing in the original briefings nor in the briefings for this review establish a factual rational or legal citation to support an argument that a nation's actions during a disease outbreak is sufficiently voluntary and cause for the removal of citizenship. In the context of a disease outbreak, ejections for the duration of the outbreak is a use of regional authority to control an emergency situation.

Part of the emergency law governing the disease outbreak event regulates the time frame in which nations should return after leaving, and establishes this time frame as 3 days. As part of this process, the Speaker is mandated to contact all ejected nations and inform them of their right to return and the time frame allotted to them to make their return. The Regional Assembly determined this period of time and the amount of grace afforded to impacted nations in making their return. Because of these efforts, we consider it reasonable for citizenship to be at risk if an ejected nation chooses not to return after being contacted and given time to hear of and act on the warning provided by the Speaker. When this grace period elapses, and they have been properly informed, their decision not to return is just as voluntary as any self-directed departure from the region would be under non-emergency situations. Removal of citizenship under these circumstances would be valid and acceptable under the existing framework. However, the burden remains on the Government to establish that all requirements for the removal were met and that the circumstances were reasonable. A person whose citizenship is removed in this manner is still afforded the ability and opportunity to have their ejection judicially reviewed.

On Reasonable Requirements for Return
As has been stated, the Regional Assembly currently provides for 3 days before a nation's citizenship is in jeopardy after departing the region during the disease outbreak. But is this time frame reasonable? The petitioner argued at length about the Assembly's role in determining limits to citizenship, and its broad authority in emergency situations. This Court can imagine circumstances wherein impacted nations may functionally be unable to meet the Assembly's requirements, such as starting or enforcing the 3 day clock when it is mechanically impossible for the ejected nations to return to the region. The Assembly could also forgo fully informing the impacted nations of their ability to return, and rely on their confusion or lack of knowledge to cause them to run out of time. This requirement would not be reasonable under such circumstances. Instead, the Assembly would need to give nations a fair shot to receive and act on their requirements, and every nation would need to have the same opportunity afforded to them without any being treated differently. Considering the law as currently written, with all of its stipulations, this Court considers the disease outbreak's requirements for return to be reasonable.

Holding
We affirm the previous ruling in its entirety. Ejection does not constitute leaving the region, and therefore citizenship cannot be removed when a nation is ejected. However, we clarify that a nation which is ejected during a disease outbreak event or similar emergency situation, and does not voluntarily return under the Assembly's requirements for return, may have its citizenship removed, so long as those requirements and the circumstances surrounding the potential return are reasonable.