Your Lordships,
I would like to be submit my brief on the above subject as given by the Court Examiner
@TlomzKrano . I have written my brief in multiple parts for the sake of brevity and convenience.
- The Court Ruling [On Content Ownership and Freedom of Information Requests against the Security Council” and its impact and my opinion on the ruling]
- Potential course of action which may be taken by the Court.
_______________________________________________________________________________________________________________________________________________________________________________________________________
On Content Ownership and Freedom of Information Requests against the Security Council
In this ruling, the Court took into considerations, the inquiry and brief filed by
r3naissanc3r and
Grosseschnauzer respectively
. The Court also took considerations relevant portions of the Constitution and the legal code and established the following:
- The Security Council is not part of the Executive branch;
- The Vice Delegate functions both inside and outside of the Executive branch;
- The FOIA law does not apply to the Security Council;
- Established authors of posts own the content of their posts, and posts made in the capacity as a government official are owned by the branch in which that government official resides.
I would argue on the below listed points in this brief.
- The Security Council is not part of the Executive;
- FOIA law does not apply to the Security Council;
The above were the major conclusions of the ruling in my opinion. If it pleases Your Lordships, I will now build my first point.
The Security Council is not part of the Executive
I would like to direct Your Lordship's attention to Article 6 clause 1 of the constitution which states that,
“Constitutionally-mandated elected officials are the Delegate, Vice Delegate, Speaker, and Justices.”
From this, we deduce that the role of Vice delegate is the position of a governmental official.
Article 6 clause 3 of the constitution states that,
“The executive category consists of the Delegate, Vice Delegate, and government officials appointed by the Delegate or Vice Delegate.”
We, hereby establish that the Vice delegate is, indeed, a part of the Executive Branch and the government officials appointed(nominated) by the Vice delegate (in this case, members of the Security Council) are also a part of the Executive branch.
If all the members of the Security Council are, in fact, members of the Executive, it would be non-sensical and illogical to assume that Security Council as a government body is not part of the Executive Branch. This deduction from the constitutional provisions however conflicts with the past ruling, “
On Content Ownership and Freedom of Information Requests against the Security Council” which states,
“As for the Security Council itself, its status likewise cannot be determined solely from Article 7 of the Constitution. Given that the Chair of the Security Council holds that power only in the absence of holding executive authority, the Court opines that the Security Council is not categorized under the Executive Branch. Given that, and given that the Delegate has no legal authority over the Security Council with which to compel it to release information, the Court opines that the Security Council is not subject to the Freedom of Information Act as written.”
I, in my humble opinion, believe
this portion of the ruling or the entirety of it should be overturned by Your Lordships as they see fit.
My fellow court clerk
@Comfed reasons with me saying,
“I notice in your brief that you claim that Security Councillors are "government official[s] appointed by the Vice delegate," but that is not the case - Security Councillors apply for their positions, and are then either nominated or not by the SC. Then, the RA votes on whether or not to appoint them; a simple majority is required if the SC has nominated the applicant, and a two-thirds majority is required if the SC has not.”
This is an interesting point. I would like to, if it pleases Your Lordships, expand more on this.
It is, indeed, true that the Constitution lays down the rules and procedures on how members of the Security Council should nominate its members. Article 5 clause 2 of the constitution states that,
“Once an application has been submitted, the Security Council may nominate that applicant by a majority vote. The Regional Assembly may confirm a nominated applicant by a majority vote. If the Security Council does not nominate an applicant or does not act on them within thirty days, the Regional Assembly may appoint the applicant by a two-thirds majority vote.”
Now, I would like to direct Your Lordships’ attention to Article 6 clause 15 which says,
“Government bodies may create rules for their own governance subordinate to this constitution and the laws.”
I would also like to mention an excerpt from the ruling, “
On Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies” which states,
“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.”
The Constitution, as well as, this Esteemed Court itself has affirmed, that the Security Council has the right to establish its own rules and procedures.
Your Lordships, let’s ponder on this for a bit. The Security Council, at the time of its formation, may have been clueless on how to decide the rules and procedures. The Constitution gave the Security Council the necessary guidance, back then which they required in order to function optimally and to safeguard TNP’s regional security. Article 5 , in my opinion, provides the basic guiding principles, on which further sound legal code could be built upon by the members of the Security Council. Since the Constitution doesn’t exactly define the procedures and workings of the Security Council, it could have been a problem. But the Constitution, solves this by article 6 clause 15, which says, that the Security Council (Government Bodies) has the power the create its own rules and procedures. I, in my humble opinion, believe it is the
deliberate intention of the Constitution to give the Security Council, both the guiding principles/clauses (Article 5) as well as the discretionary power/clause (Article 6 Clause 15) to decide on their own to make rules for their own governance subordinate to this constitution and the laws as they see fit.
I, humbly, ask this Court, to ponder on this subject matter and provide much needed clarification.
However, I would like, if it pleases Your Lordships, to expand more on the nature of the Security Council.
Article 5 clause 4 of the constitution states that,
“The Security Council will monitor the security of the region and its territories and report on it to the public, and enforce decisions of the Regional Assembly to remove the Delegate.”
The Security Council is headed by the Vice-delegate who is elected during the General elections. I would like to state the following clauses which aids in my argument,
Article 3 clause 10 of the constitution states that,
“The Vice Delegate will chair the Security Council and enforce the continued eligibility of its members as determined by law.”
Section 4.5 clause 30 of the legal code states that,
“The election of the Delegate, the Vice Delegate, and the Speaker will begin on the first day of the months of January, May, and September.”
I would like to state the Court’s statement on the Delegate’s authority on the Security Council. This excerpt is from the ruling “
On Content Ownership and Freedom of Information Requests against the Security Council” which says,
“Given that, and given that the Delegate has no legal authority over the Security Council with which to compel it to release information, the Court opines that the Security Council is not subject to the Freedom of Information Act as written.”
The Delegate has no authority over the Security Council and can merely cooperate and ask the Security Council to work in good faith for the regional safety of TNP. Article 6 clause 15 of the constitution allows the Security Council to establish its own rules and procedures,
“Government bodies may create rules for their own governance subordinate to this constitution and the laws.”
The Court Ruling,”
On Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies” also affirms the same. An excerpt of the ruling states that,
“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.”
I, from my personal standpoint, look at the Security Council as an independent Executive government body which is headed by the Vice – delegate. It has the power to determine its own rules and procedures as they see fit and are under no obligation under the Delegate. However, the Security Council has its own checks and balances as stated by Article 5 clause 4,
“The Security Council will monitor the security of the region and its territories and report on it to the public, and enforce decisions of the Regional Assembly to remove the Delegate.”
They are, after all, answerable to the Regional Assembly and must accept FOI requests as already established.
I, humbly, urge the Honourable Court to ponder on this subject matter and provide much needed clarification.
FOIA law does not apply to the Security Council
The Security Council is responsible for monitoring the regional security of the region. It also has to “report on it to the public” which means the Security Council is answerable to the Regional Assembly and one way to achieve this is by FOI requests filed by the citizens of TNP.
I would like to direct Your Lordships’ attention to Section 5.6 clause 31 of the legal code which says,
“Disclosure of private Security Council records will be regulated in the same chapter regulating disclosure of executive government records.”
I would like to mention that the above clause refers to Section 7.4 clause 34 of the legal code stated below,
“For the purposes of this section, "government records" are those which are kept on any platform utilized by the government and are open to members of the government and anyone assisting them.”
Your Lordships, I would like to affirm an important note and even go on to argue for it,
Executive Government Records should not be interpreted or read as
private government records in Section 5.6 clause 31 since the clause nowhere uses the word ‘
private’ except for private Security Council records. While, I do understand there might be an implicit reference by the legal code to refer Private Security Council Records as private Government records but unless stated otherwise, I urge this Esteemed Court, that
Private Security Council Records should be read as
Government records. The legal code nor the Constitution does not provide for a separate clause defining Executive Government Record.
We have, finally deduced that private Security council Records are, indeed government records. Your Lordships, I, would now like to state Section 7.4 clause 34 which says,
“For the purposes of this section, "government records" are those which are kept on any platform utilized by the government and are open to members of the government and anyone assisting them.”
I would also like to state Section 7.4 clause 37 of the legal code says,
“At any time a resident may request the release of any government record or private government record through the appropriate officers.”
From the reasons stated above, we reach the conclusion
that since private security Council are government records and
government records can be requested to be released by a resident, I, hereby deduce that the
Security Council is, indeed subject to the FOI act. I humbly urge the Court
to overturn this part of the past ruling from “
On Content Ownership and Freedom of Information Requests against the Security Council” which states,
“As for the Security Council itself, its status likewise cannot be determined solely from Article 7 of the Constitution. Given that the Chair of the Security Council holds that power only in the absence of holding executive authority, the Court opines that the Security Council is not categorized under the Executive Branch. Given that, and given that the Delegate has no legal authority over the Security Council with which to compel it to release information, the Court opines that the Security Council is not subject to the Freedom of Information Act as written.”
If the Court refuses to read
Private Security Council records as
government records, The Court will
accidentally legislate and define the term Executive Government records. The Court’s responsibility is to interpret the constitution and the legal code and settle ambiguities in laws if any. I would like to state an excerpt from the ruling, “
On Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies” which states,
“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 endeavour 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.”
I would like to mention another excerpt from the ruling, “
On Defunct Rulings”, which says,
“This Court is often asked to rule on laws that are ambiguous. That is the nature of a Court with the power of judicial review. Those rulings have the force of law, but they are not laws themselves. This case is about the specific request for review and the challenged ruling, but to best reach its ruling the Court finds it necessary to weigh in on the general matter of past rulings on matters where the law is subsequently changed (perhaps as corrective to the past ruling) to reach the best ruling in this case. When a ruling may be in error the most direct corrective to that is an appeal. If, instead, the citizenry – through the Court’s ruling – is made aware of a flaw in the Legal Code, the proper corrective is to clarify the citizenry’s intent with the law through new legislation. As such it should be expected that Court rulings give rise to legislation that is meant to supersede Court rulings. This is also not the first time that the Court is asked to weigh in on a previous ruling that has since been superseded. It is, however, the first time that the Court sets out to make a test for superseded rulings, and clearly spell out what the status of a superseded ruling is.”
If the court still reads it as private government records, then I would like to direct Your Lordship’s attention to Section 7.4 clause 36 of the legal code which says,
“Private government records which reach one year of age will be relocated to the appropriate Declassified Archive visible to residents.”
Section 7.4 clause 37 states that,
“At any time a resident may request the release of any government record or private government record through the appropriate officers.”
The Security Council, would still, very much be subjected to the FOIA.
I, humbly, ask this Esteemed court to provide further and much needed clarification on this subject matter.
Potential course of action which may be taken by the Court
Now, the question arises, Your Lordships, what could be the potential course of action? In my humble opinion, I believe the court should do the following.
First, the court may(should) overturn a part of or the entirety of the past ruling(s) and acknowledge that the Security Council comes under the Executive branch as established in this brief.
The Court should acknowledge that the Vice Delegate has functions both inside and outside of the Security Council. I would like to state an excerpt from the ruling”
On Content Ownership and Freedom of Information Requests against the Security Council”, which aids my argument,
“A compelling argument found in the Legal Code is this clause:
“During any period when serving as acting Delegate, the Vice Delegate will be considered absent from the office of Vice Delegate.”
To rephrase in a manner more applicable to this question, according to the law, when the former category of duties moves from potential responsibility to actual responsibility, the Vice Delegate is relieved of responsibility for their stand-alone duties to the Security Council. The law envisions a difference between the nature of these two categories, which can comfortably be accommodated in potentiality but which cannot coexist in actuality.”
I, from a personal standpoint, believe it is the deliberate intention of our Constitution to empower the Vice Delegate with both roles/positions. The Esteemed Justices of this Court, might be inclined to provide further clarification if need be.
I thank Your Lordships for giving me your valuable time.
_______________________________________________________________________________________________________________________________________________________________________________________________________
