| [legal question] Security Threat II |
Noting this power outlined for the courts in the Charter:
Quote:4. The High Court may declare any whole General Law, or portions within such law, that conflict with the Charter defunct, and to reconcile contradictions within the Charter. And noting this in the citizenship process (emphasis mine): Quote:7. Citizenship may be removed by a majority vote of the Cabinet if a nation is found to be a security threat. Citizens removed for being a security threat may appeal to the Assembly which may reverse the removal by a 75% majority vote in favor. I'd like the courts to now rule on any perceived security threats made prior to individuals obtaining citizenship. I believe that declaring individuals as security threats when the individual is not citizen or before the individual becomes a citizen represents a breach in the charter (as it is written in the charter). There is no citizenship to remove from someone who does not have citizenship. In short, this point (Point 7) law applies to citizens only. Non-citizens do not apply to this law. I therefore ask the courts to use their (limited) powers to declare all security threats made on non-citizens or those who were not citizens at the time of declaration to be rendered null and void, and that any affected apps must be checked by the vice delegate (or someone who is charged with the same duties as the vice delegate) without any consideration given to the misused "security concern" label. Furthermore, as this particular clause has been subject to abuse via "executive power" as defined in Article 6, Section 1.6, I ask the court to use their power outlined in point 4 above to rectify this contradiction of executive power. Thank you for your time.
If it pleases the Court, I would like to submit a brief amicus curiae regarding this legal question.
Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator. I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
This Legal Question is currently under discussion by the Courts. Any interested party may submit an amicus brief.
BRIEF AMICUS CURIAE
Legal Question by Todd McCloud on Processing and Denial of Citizenship Applications Submitted by Kris Montresor Identity and Interest of Amicus Curiae
Pursuant to Article 4, Section 3.3 of the Charter of the Coalition of the South Pacific I respectfully submit this brief amicus curiae to explain the reason why the question submitted by Todd McCloud lacks legal grounds and should be dismissed. I am currently the Minister of Regional Affairs and have served as a member of the Cabinet of the South Pacific for the past five terms. I am the primary drafter of the current Bill of Rights and have participated in several debates regarding the denial of citizenship applications and the public defense of said decisions. My condition as interested party arises from my current position as a member of the Cabinet and as a concerned citizen of the South Pacific, since any potential of the arguments by Todd McCloud would undermine the security powers of the Cabinet and potentially enable the future entry of citizens with malicious or otherwise dishonest intentions. Summary of Argument While Article 1, Section 2.7 of the Charter indeed restricts the removal of citizenship by the Cabinet to reasons over regional security, this bears no relation to the denial of citizenship applications. Such procedures are governed by Article 1, Section 2.1 and Article 2.8 of the Charter, which empower the Vice Delegate to review applications and reject them, provided that a reasonable cause for the rejection is given to the applicant. The Vice Delegate is clearly within her right to deny a citizenship application if she feels the applicant represents a threat or risk to regional security. ARGUMENT #1: Area of Applicability of Article 1, Section 2.7 Mr. McCloud is correct in arguing that Article 1, Section 2.7 of the Charter restricts the executive removal of citizens to reason of regional security. It is a fundamental aspect of our democracy that all citizens be given a chance to fully participate in regional life, and that participation even includes the right to criticize the government, no matter how uncomfortable or inconvenient that criticism might be. Such is the importance of free speech in the South Pacific that Amicus included a provision to that specific effect in the Bill of Rights, which has since been amended, but is reproduced in its original form for the Court: The freedom to voice their opinions on all matter of their interest, including the peaceful criticism of the Coalition and its government, on both the Forum and the Regional Message Board, subject to reasonable restrictions established by the Assembly that do not violate the spirit of the Charter. (Source)
While a full account of the security history of the South Pacific would take too much space and be of little relevance to the business of the Court, let it be known that in recent years the Government has been extremely respectful of dissenting opinions, as can bee seen by its reaction to debates and criticism in the past. One prominent example was the reaction to the parole granted to Milograd, which was met with fierce opposition towards the institution that authorized it. Even in the face of such opposition, which was certainly uncomfortable and inconvenient, the Government respected the right to free speech and engaged the citizenry in open debate. However, there is a limit to free speech, and that is when speech turns into actions, particularly actions that may cause real harm or serious destabilization to the region. Giving the Cabinet the ability to revoke the citizenship of individuals who threaten the security of the region -who may cause real harm or serious, non political, destabilization- is a useful mechanism to prevent actual harm from happening, but only insofar as that power is used for legitimate and urgent reasons. Hence why this power is explicitly limited by the Charter to reasons of regional security, certainly much more restricted and difficult to justify, as opposed to a blanket authority to remove citizens. If I have expanded upon the reasons why citizenship removals are a legitimate security mechanism, it is only to disprove any argument that their use or alleged use is a violation of the Bill of Rights or any other provision of the Charter. While the power can certainly be abused, the use of the provision in an of itself is certainly no abuse, particularly since there are many checks and balances instituted to ensure that no abuse takes place. It is difficult to understand, however, why Mr. McCloud would use the Citizenship Removal Clause to argue that denials of citizenship applications are invalid, since one has nothing to do with the other. I hereby reproduce Article 1, Section 2.7, for the benefit of the Court: Citizenship may be removed by a majority vote of the Cabinet if a nation is found to be a security threat. Citizens removed for being a security threat may appeal to the Assembly which may reverse the removal by a 75% majority vote in favor. (Source)
It is plainly stated in the quoted section that the object of action is citizenship, not a citizenship application. Since an individual whose citizenship application is denied is obviously not a citizen, then there is no citizenship to be removed in the first place. The Citizenship Removal Clause is therefore an illegitimate reason for denying citizenship applications. Both Mr. McCloud and I have so far arrived at the same conclusion, but we diverge in that I argue the Vice Delegate has never invoked Article 1, Section 2.7 as a reason for denying any citizenship application, and the petitioner has provided no evidence to that purpose. It would make no sense for the Court to penalise the Vice Delegate for an action, namely the illegitimate use of a section of the Charter, that she has never committed. #2: Invocation of Article 1, Section 2.1 and Article 2.8 It having been established that the Vice Delegate did not invoke the Citizenship Removal Clause in her denial of certain citizenship applications, it remains to be seen whether the denials themselves are a legitimate exercise of her power, particularly under the justification of regional security. I argue that it is entirely legitimate and perfectly legal for the Vice Delegate to perform such an action, based on the provisions of Article 1, Sections 2.1 and 2.2 and Article 2.8 of the Charter, which I quote below for the benefit of the Court: Section 2 - Acceptance and Removal
1. Citizenship applications will be reviewed by the Vice Delegate. 2. Upon review the applicant may be either conditionally approved or denied by the Vice Delegate. (Emphasis Added) (Source) In Article 1, Section 2.1 it is clearly established that the Vice Delegate is entrusted with the duty to review citizenship applications, and Section 2.2 further establishes that such review can lead to conditional acceptance or denial. Even at this point we can conclude that the denial of citizenship was at the very least legally permissible, though it is yet to be determined if it was reasonably justified. For this we need to rely on my previous explanation on the merits of regional security as a control mechanism on Article 1, Section 2.5 and Article 2.8 of the Charter, which is also being quoted for the benefit of the Court: Section 2 - Acceptance and Removal
5. In the event that an applicant is denied the reason for denial must be disclosed by the Vice Delegate. The applicant may appeal their denial to the Assembly which may reverse the denial by a 75% majority vote in favor. Article 2: Bill of Rights 8. The right to apply for citizenship and have such an application promptly accepted, subject to requirements of citizenship, or otherwise denied under reasonable causes, with the right to an appeal to the appropriate officials. (Emphasis Added) (Source) The Charter clearly indicates that a citizenship application can be denied if accompanied by a reasonable cause, and further indicates that any denial can be appealed to the appropriate officials, which Section 2.5 identifies as the Assembly of the South Pacific. Let it be known first that the Vice Delegate did provide reasonable cause for each citizenship denial, namely the threat that each applicant supposed to regional security, as evidenced in the following quotes: (02-14-2015, 10:30 AM)Penguin Wrote: Neenee. I'm sorry but you have been seen as a threat to our region and are therefore denied. Have a nice day :-) (03-08-2015, 05:52 PM)Penguin Wrote: Dali and BGP. You have both been rejected due to security issues. As per the new regulations feel free to appeal to the assembly. The above having been clarified, it was already suggested in Argument #1 that security concerns are a legitimate concern, if the person to which that concern is directed has a history relevant to the case and if present circumstances lead to reasonable suspicions. While it could be argued whether the denial of citizenship against Neenee, Dalimbar and British Grand Pacific is truly proportionate to their actions or fair to them personally, that debate is of a political nature, and was conducted in the Assembly, the main political forum of the region. In it the Cabinet explained in detail why it believed that the denial was justified, and it should be difficult to argue that the Cabinet did not see the denials as justified. Two points to be made on this are that a potential overturn should not have legal consequences for the Vice Delegate, and that the Assembly has in fact sustained at least two of the denials. Certainly an error in judgement from the Vice Delegate, should the Assembly overturn the denials, must not lead to legal consequences against the former. An error in judgement is quite different from a malicious misuse of the denial mechanism, and while the latter can and should be penalised, the former should not be subject to punishment, lest future Vice Delegates hesitate to deny applications from individuals with truly malicious intentions. The fact that the Assembly has sustained two denials so far also proves that the decision of the Vice Delegate was in fact correct and that the security concerns were at the very least of a reasonable nature. Conclusion For the reasons above, the question submitted by Mr. McCloud should be dismissed. DATED: 17 March 2015. Respectfully submitted,
Kris Montresor
Minister of Regional Affairs Note: this Brief Amicus Curiae has not been submitted with the official power or authority of the Ministry of Regional Affairs, nor do the positions outlined above correspond to anyone other than the individual advocating them. Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator. I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
The first half of the argument is indeed correct - no non-citizen may be declared a security threat. And the second half is also somewhat correct. That is, if it were followed under the legal procedure outlined above.
The fallacy here is that such channels are in place for the cabinet to prematurely declare someone a security threat, even non-citizens. This is widely known as a fact based on reports from both current and former cabinet members from this regime 1, 2 3. The very practice is against the protocol and practices of the charter. Note that involving bodies such as the cabinet, administration, etc for use of their tools is not a power granted to the vice delegate, and therefore is outside of the bounds of this charter. If I am interpreting the charter correctly, the basis of citizenship follows as such (Route 1): - 1 Administration checks IP address and general "forum security" issues - 2 If passed, goes to vice delegate (and only the vice delegate), where he or she may pass citizens -- a If passed, nation becomes a citizen and remains as such unless the following --- i Inactivity --- ii Security threat (declared by cabinet for current citizens) ---- ia Can be overturned via a 75% vote --- iii Court ruling - 3 If not passed, an explanation is merited -- a Can be overturned via a 75% vote That seems like a relatively streamlined process. However, based on the evidence provided above, and comments made from former and current cabinet members, this is happening (Route 2): - 1 Administration checks IP address and general "forum security" issues - 2 If passed, goes to vice delegate. Vice delegate asks about security threat to cabinet, or cabinet simply votes (this part is unclear). It is voted on and reported back to vice delegate. -- a If cabinet votes as a non-security threat, vice delegate approves and citizen remains as such unless the following --- i Inactivity --- ii Security threat (declared by cabinet for current citizens or nations applying for citizenship) ---- ai Can be overturned via a 75% vote in which cabinet is allowed to vote again, and will probably vote in the same manner as they did for the fist vote --- iii Court ruling - 3 If not passed, an explanation is merited -- a Can be overturned via a 75% vote I ask the court to bear in mind that the processes outlined in red are either undefined or against protocol outlined in the Charter of The South Pacific. Again, if Route 1 is being followed completely, there is no cause for concern. But instead, Route 2 is the current course of action. In fact, the very declaration of "security threat" is not under the jurisdiction of the Vice Delegate - that power is reserved for the cabinet and the cabinet only. Therefore, I urge the courts to consider the above actions outlined in my original post. Courts may ask for clarification on any of the above points if they wish.
I will remind the petitioner that the declaration of security threat under Article 1, Section 2.7 is quite different from the justification of security concern under Article 1, Section 2.5 and Article 2.8. On the first one the Cabinet is declaring a citizen to be a security threat. On the second one the Vice Delegate is providing reasonable cause, which may be due to security concerns as much as it may be due to the fact that the application contains false information. The sole requirement is that the cause for denial be reasonable, and the reasonability of the denial is to be judged by the Assembly.
There is no legal restriction as to the individuals the Vice Delegate can consult when reviewing citizenship applications, and it is to be expected that she should look for information from an institution that has relevant knowledge on the applicant. Mr. McCloud is claiming that having Cabinet input is illegal and violates the Charter, but it could be claimed just as well that treaty discussions in the Cabinet Office violates the Charter, since only the Foreign Minister is empowered to negotiate treaties. It would make no sense to argue that, however, because it is to be expected that executive officials will consult each other and strive to obtain the best information possible. If the Vice Delegate, after consulting with the relevant officials, reaches the conclusion that the applicant represents a threat to the security of the region, she is within her legal rights to deny it. While Mr. McCloud can argue that such should not be legally permissible, he cannot argue that it is not legally permissible. The wording of the Charter is quite clear in that regard. I will also clarify the citizenship application process, if the Court so allows: 1. A citizenship application is filed. 2. The Vice Delegate reviews the application. If in doubt or if alerted of some relevant information, she consults the Cabinet and maybe the CSS, to gather more input and information. 3. If satisfied she approves the application. If not she denies it, and presents reasonable cause for the denial, subject to Assembly review if appealed. 4. All applications approved by the Vice Delegate are then referred to Forum Administration. If accepted, the applicant becomes a citizen. If the applicant is revealed to be already a citizen or avoiding a forum ban, the application is denied without the option of appeal. Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator. I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
The path to citizenship does not involve the cabinet whatsoever. Nor does it involve a premature vote or declaration of who is and is not a security threat. This is merely an attempt to legitimize a procedure that is ultra vires, outside of the defined powers of both the cabinet and the vice delegate. Both the citizenship process and the procedure for initiating / processing a security threat declaration and clearly defined. The two do not mix.
This post requires no bold words. It is equally clear in both plain and bold text.
I trust the Court will see that Mr. McCloud's arguments hold not ground when held to close scrutiny. There should be no question about the right of the Vice Delegate to provide reasonable cause for the denial of citizens. The existence of a procedure to declare citizens as security threats does not preclude the use of the 'security threat' terminology, if applicable, in a different situation. The Vice Delegate is required to provide reasonable cause for denial, and to prevent her from concluding that an applicant is a security threat would be an unconstitutional restriction of her powers at best, and detrimental to our regional security mechanisms at worst.
Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator. I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
Will the Court accept or decline consideration of this legal question?
Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator. I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
This matter this currently under discussion and may be affected by the petition to release information that has been submitted by Hileville
|
![[+]](/images/collapse_collapsed.png "[+]")
Former Offices| Users browsing this thread: |
| 1 Guest(s) |