Document Code 1917.O

Submission 01 Sep 2019

Admission 05 Nov 2019

Opinion 13 Jan 2020

SUMMARY OF THE OPINION
 
There are two types of Regional Officer appointments: ex offico and discretionary. Ex officio Regional Officers are mentioned in Article 2 of the Regional Officers Act, including only one Local Councillor (however chosen). If there are not enough positions for all Article 2 appointments, the most junior Council on Regional Security members are passed over (with seniority determined by any reasonable method). Once Article 2 Regional Officers have their positions, any good faith resident of the South Pacific may be appointed as a discretionary Regional Officer under Article 3 of the Regional Officers Act. The law does not stipulate an order of priority within discretionary appointments, so the other two Local Councillors do not have primacy amongst Article 3 appointees.

JUSTICE NAT DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE REBELTOPIA
 
In NationStates, a region has a Delegate and may appoint up to twelve additional Regional Officers. These Regional Officers can be granted a variety of powers, from controlling borders to running region-wide polls. The allocation of Regional Officers in the South Pacific is primarily determined by the aptly named Regional Officers Act. So far, the limit of twelve additional Regional Officers has not posed any issues. However, it is possible this limit could be exceeded in future, so Farentago prudently sought the Court’s guidance on how such an issue may be navigated. Those questions form the basis of this opinion.
 
I
EX OFFICIO REGIONAL OFFICERS

Given that the Council on Regional Security regional officer position is defined in the Charter, if insufficient slots existed would their slots potentially overrule those granted by the Regional Officers Act entirely?

Article 2 of the Regional Officers Act states that:

(1) The in-game Delegate will be granted all Regional Officer powers.

(2) The Minister of Foreign Affairs will be granted the Embassies power.

(3) The Minister of Regional Affairs will be granted the Appearance and Communications powers.

(4) The Prime Minister will be granted the collective set of powers granted to the other Cabinet ministers herein.

(5) Members of the Council on Regional Security will be granted the Border Control power.

(6) At least one member of the Local Council will be granted the Appearance, Communications, and Polls power.

(7) During elections, the Election Commissioner will be granted the Polls and Communication powers.

Article 3 of the Regional Officers Act states:


As can be seen, each section in Article 2 is forceful in its stipulation that the relevant Regional Officer power will be granted to the official. Conversely, both sections in Article 3 are permissive by stating the relevant authority may grant certain Regional Officer powers to others. Therefore, ex officio appointments under Article 2 must occur, whereas discretionary appointments under Article 3 are optional. The logical extension of this is that Article 2 Regional Officers take precedence over Article 3 ones. This is the first key to determining when Council on Regional Security (CRS) members receive their Regional Officer appointments.

The Charter (Article IX, Section 11) states that:

(11) The Delegate must grant members of the Council on Regional Security appropriate Regional Officer powers to fulfil their duties. When there is a limited number of Regional Officer positions available, those positions must be given to the most senior Council members.

By making a provision for the appointment of only some CRS members, the Charter makes it clear that not all CRS members need to be Regional Officers. However, it cannot be said that this passage permits the CRS to be passed over completely. The Charter stipulates that “The Delegate must grant members of the [CRS] appropriate Regional Officer powers.” Article 2 of the Regional Officers Act reinforces this by saying “Members of the [CRS] will be granted the Border Control power.” So, while the Charter has a provision which means that not all CRS members must be appointed, both the Charter and the Regional Officers Act have provisions which mean that at least some CRS members must be made Regional Officers. But when do CRS members receive their appointments?

Consider the following phrase in the aforementioned Charter passage: “When there is a limited number of Regional Officer positions available.” What exactly does a limited number mean?¹ First off, it must be determined whether discretionary appointments under Article 3 of the Regional Officers Act are counted in this measure. It is not at all clear: one could argue they should be counted as they take up a physical Regional Officer slot, however, another could argue they should not count as their appointment can be revoked at any time (see Part II below) meaning they do not truly limit the "number of Regional Officer positions available." Since both views appear to be valid, the matter shall be approached by a process of elimination.

One interpretation is that a limited number means there are more people who have been appointed as Regional Officers than the amount of slots that are available. Hence, CRS members would be the first to lose their Regional Officer allocation (even before those appointed under Article 3 do). With enough discretionary appointments, this could mean that no CRS member is a Regional Officer. However, this is plainly unacceptable as it has been shown above that both the Charter and the Regional Officers Act require at least some CRS members to be Regional Officers. Because of this, the term limited number cannot refer to simply having too many Regional Officers.

One might propose a solution in that some CRS members could receive guaranteed appointments while the others are relegated to the back of the line. This two-tiered system is quite ingenious. However, it does not accord with the text of the law. The Charter says “When there is a limited number of Regional Officer positions available, those positions must be given to the most senior [CRS] members.” The words those positions imply the remaining positions available. Hence, the Charter will not allow for CRS members to be appointed as Regional Officers if there are no remaining positions available. However, in order to make some CRS members wait until everyone else is a Regional Officer, Article 3 appointments have to count for the purposes of determining how many positions are available. But, if they do count, the more senior CRS members will also have to wait (because they can only be appointed to any remaining positions available). The only possible workaround to make this two-tiered proposal a reality would be if Article 3 Regional Officer appointments count in determining whether there are positions available for some CRS members but not for others. This is self-evidently a very convoluted reading of the term limited number; as such, it is to be avoided if possible. Because of this, the law likely does not permit CRS members to be split into two different classes of allocation.

So CRS members cannot collectively or individually be put at the end of the Regional Officer queue (which, as shown before, is after Article 3 discretionary appointments). With their relation to Article 3 sorted, it is time to examine how the allocation of CRS members interacts with other Article 2 Regional Officers. Consider the possibility that CRS members receive their allocation before others who are entitled under Article 2 receive theirs. If this was to occur, a very large CRS would mean no one else was appointed a Regional Officer and so every other person with a claim under Article 2 would miss out. However, it was argued above that Article 2 requires all these ex officio Regional Officer appointments to occur. Hence, allocating CRS members before other Article 2 Regional Officers would create a conflict in the law, making this interpretation less preferable.

There is one more possibility: all non-CRS Article 2 allocations are done first, then CRS members are made Regional Officers in the order of their seniority, and finally any Article 3 discretionary appointments receive their entitlement. This interpretation of the law does not result in the other Article 2 Regional Officers missing out, does not split the CRS members into two tiers of allocation, and ensures at least some CRS members will be Regional Officers (as there are twelve non-Delegate Regional Officer slots and a maximum of five other Article 2 officers under the current law, leaving seven CRS spaces). Since this is the only interpretation which does not cause any of the aforementioned issues, it is the order of Regional Officer bestowal which the Court shall prefer. In summary, the answer to the question first posed by the petitioner is no, CRS members do not take priority over others mentioned in Article 2 but they are made Regional Officers before any Article 3 appointments occur.

So, it has been demonstrated that non-CRS Article 2 appointments occur first and then CRS members are made Regional Officers in the order of their seniority. However, what does the Charter mean by seniority within the CRS? The Charter does not stipulate how seniority is determined and it is not possible to glean this from any Assembly threads. Hence, seniority is not defined under the law and, until it is, any reasonable methodology for determining the most senior CRS members is sufficient. This answers another of the petitioner’s questions: How are the “most senior Council [on Regional Security] members” determined on a legal basis?

II
ON DISCRETIONARY APPOINTMENTS
 

Can discretionary regional officer slots - granted by Article 3 of the Regional Officers Act - be granted over other "flexible" slots such as those of the additional Local Council or Council on Regional Security members?

As shown above, discretionary Regional Officer appointments under Article 3 of the Regional Officers Act cannot be granted over CRS members. Because Article 2 also requires at least one Local Councillor to be a Regional Officer, discretionary appointments under Article 3 cannot displace the first Local Councillor.² However, what about the other two Local Councillors? Article 2 simply requires that “at least one member of the Local Council” is a Regional Officer. As Article 2 makes no requirement that the other Local Councillors be made Regional Officers, they therefore must be appointed under the discretionary system in Article 3. However, do those two Local Councillors have precedence within those who are appointed under Article 3? No, they do not.

Recalling Article 3 of the Regional Officers Act:


As can be seen, there is no mechanism provided in Article 3 to determine any order of priority amongst discretionary appointments. Subject to availability, the respective authorities (Cabinet, Delegate, and CRS) may grant–and thus revoke–Regional Officer powers "as they see fit." Hence, if there are too many discretionary appointments, any compromise agreement made between the relevant appointing authorities would be sufficient. This may mean that the other two Local Councillors miss out on being Regional Officers.

So, in answer to the question posed by the petitioner, it has been shown that one Local Councillor (however decided) receives their Regional Officer allocation under Article 2 before CRS members are appointed. However, the other two Local Councillors are can only be made Regional Officers under Article 3 (but these appointments are not guaranteed). Resultantly, they can only be appointed if there is space after all CRS members are made Regional Officers. This answers another of the petitioner’s questions (the final one remaining): When a limited number of regional officer slots exist, do the Local Council or Council on Regional Security slots have legal priority?

While the petitioner did not ask about the term regional members in Article 3, it was raised in Beepee’s submission. Hence, the Court shall provide guidance as to the definition of this phrase. In August 2016, Delegate Tsunamy passed an amendment to Article 3 so as to legitimise their Regional Officer appointments, including Railana as a World Assembly Advisor. Railana was not a member of the Cabinet, CRS, or Local Council at this time (and therefore was not otherwise a Regional Officer). Hence, the term regional members in Article 3 cannot just refer to those who are already Regional Officers. As the Assembly threads provide no further clarification, it is reasonable for the Court to consider the term regional members to be analogous to Members of the Coalition as defined in HCLQ1708 Members of the Coalition. Therefore, any good faith resident of the region may be appointed as a discretionary Regional Officer under Article 3. Of course, Article 3 may also be used to expand the powers of an existing Regional Officer as well, since the passage lists specific powers the relevant authorities may grant. Nonetheless, the operation of Article 3 is not restricted to those who are already Regional Officers as defined under Article 2.

FOOTNOTES

1. One could argue the term limited number refers to when there is an upper limit on the number of Regional Officers that can be appointed. However, this has always been the case and (unless something unforeseeable happens) will always be the case into the future. Therefore, this interpretation is nonsensical and will not be entertained any further.

2. The law does not provide any guidance as to how the singular Local Councillor may be chosen. Hence, any situation which causes a Local Councillor to have Regional Officer powers is acceptable. Indeed, if a Local Councillor was already a Regional Officer by virtue of sitting on the CRS they would satisfy the Article 2 requirements (and the other two Local Councillors would have to be appointed under Article 3).