[R4R] Regarding "On Applications to the Security Council"

[Picairn]

1. What law, government policy, or action (taken by a government official) do you request that the Court review?
Court ruling number 10 (2012), On Applications to 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?
This ruling violates Article 6, Clause 12 of the Constitution,

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

and infringes on the Security Council and the Regional Assembly's constitutional right to determine their own procedures absent any higher legal requirements, the former of which had its right affirmed by the Court in On Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies.

3. Are there any prior rulings of the Court that support your request for review? Which ones, and how?
In On Resolving Ambiguity in the Absence of Subordinate Rules for Government Bodies, the Court overturned On the Vice Delegate's Voting Rights within the Security Council due to its lack of any legal or constitutional basis for the Court’s invention of the Vice Delegate’s voting rights in the Security Council. In a similar manner, this ruling imposes an automatic admission process for Security Council applicants ex nihilo, based on nothing except the Court’s opinion and belief.

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 derives from my position as Court Examiner, as defined in Section 3.6, Clause 25 of the Legal Code: “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 a whole for your request to be decided now.
Much like its overturned precedents regarding the NPA and the Vice Delegate’s voting rights in the Security Council, this ruling is another problematic attempt by the Court to legislate from the bench, by creating binding rules and requirements for other government bodies without any legal or constitutional foundation. In particular, the Constitution then and now does not include any requirements for rejected applications to be automatically moved to the Regional Assembly for a vote—merely that the RA may confirm them by a two-thirds majority—but the Court nonetheless mandated such a procedure. In so doing, the Court encroached upon the Security Council’s constitutional prerogative in handling applications and the Regional Assembly’s ability to decide when and how it would vote to confirm rejected applicants, thereby violating the separation of powers as defined by the Constitution.

In the interests of sound law and an effective separation of powers, the Court should overturn the extraconstitutional mandates of this ruling.

6. Do you have any further information you wish to submit to the Court with your request?
It is worth noting that Article 5 of the Constitution, specifically Sections 1, 2, and 3, has been amended by the Regional Assembly since the ruling. The language of the admission process to the SC has been modified from an approve-and-admit process to a nominate-and-appoint one, with a new section clarifying the duration of nominations in effect. The exemption carveout conferred by the RA has also been eliminated. These amendments, however, do not materially change the core process of admitting an applicant to the Security Council as prescribed by the Constitution: they are first nominated or approved by the Council, then confirmed by a majority of the Regional Assembly. If their application is rejected or not acted upon for 30 days by the Council, the Regional Assembly may confirm them by a two-thirds majority vote.

 

[Skaraborg]

The Court accepts this request for review, and I will serve as the Moderating Justice. The Court does not recognize a respondent.

At this time, the Court will accept briefs from any party that may be interested for a period of five days following this post.

 

[Skaraborg]

The briefing period has closed and the Court is deliberating.

 

[Skaraborg]

Ruling of the Court of The North Pacific
In regards to the judicial inquiry filed by Picairn on Applications to the Security Council
Opinion drafted by Justice Skaraborg, joined by Chief Justice Pallaith and Justice Chipoli​

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

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

Article 5. The Security Council

1. Any person who meets any endorsement and influence requirements determined by law may apply to become a member of the Security Council.
2. 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.
3. Nominations remain in effect until voted on by the Regional Assembly, or until revoked by majority vote of the Security Council.

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

The Court took into consideration prior rulings by the Court here, here and here.

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 prior ruling

The Court established a procedure for applicants to the Security Council that must be followed. The Constitution does not require any action to be taken by either the Security Council or Regional Assembly. The question is whether the prior ruling improperly limited the Constitutional discretion of the Security Council or Regional Assembly.

On the procedure

The Court finds that the language of the ruling in On Applications to the Security Council is at best ambiguous and the text can be read as treating consideration by the Regional Assembly as an automatic stage of the application process.

Although the phrase “the application is moved to the Regional Assembly” could, considered in isolation, be understood as transferring responsibility for the application from the Security Council to the Regional Assembly, the ruling did not use the phrase in isolation. It stated that the procedure “must be followed” and that, regardless of the outcome of the Security Council’s vote (or its failure to act within thirty days), the application was moved to the Regional Assembly “to be voted upon.”

Read together, these statements establish a mandatory procedure in which an application proceeds from the Security Council to the Regional Assembly and is then subject to a vote. The Court therefore finds the ruling to impose an automatic requirement that the application be placed before the Regional Assembly for consideration. This is in violation of the Constitution who grants the Regional Assembly the discretion to not take action on an application. This discretionary power can be found in the word "may" which implies that it's up to the Regional Assembly's discretion whether to hold a vote or not. Any ruling that forces the Regional Assembly to take action is therefore unconstitutional.

The Court however disagrees with the Court Examiner that the case is close to On the Vice Delegate's Voting Rights within the Security Council due to there actually being rules surrounding the procedure in this case, whereas nothing was written regarding the Vice Delegate's voting rights. Since the Constitution regulates the procedure, the Security Council does not, in comparison to the ruling On the Vice Delegate's Voting Rights within the Security Council. The procedure was therefore not created ex nihilo. The Court based its procedure on the constitutional text, but overstepped its authority by removing the Regional Assembly’s discretionary power to admit an applicant into a mandatory requirement that every application be placed before it for a vote.

Holding

The Court hereby overturns the procedure set out by the prior ruling. The ruling conflated the procedure required for the successful admission of an applicant with a procedure that every application was required to follow. The Constitution establishes the conditions under which an applicant may be admitted to the Security Council. It does not necessarily require every application to go through each of those stages which the Court's ruling can be interpreted to require. Whether, and by what procedure, an application is brought before the Regional Assembly is a matter for the Regional Assembly to determine, not the Court.