| Legal Question: On the legality of Hileville and the Cabinet's actions of 21 January |
To the Permanent Justice of the High Court of The South Pacific,
The following Legal Question is submitted, challenging the legality of the Cabinet's actions on 21 January 2015, which are: unilaterally creating a new forum and redirecting the domain (thesouthpacific.org) to these new forums; unilaterally removing Tsunamy, Sandaoguo, and Kringalia as forum administrators; unilaterally installing Hileville, Imkihca, and Scylla as forum administrators; unilaterally removing Kringalia's citizenship and his membership in the Committee on State Security; and unilaterally removing Regional Officer Border Control powers from Tsunamy, Sandaoguo, Kringalia, and Farengeto. Part 1: Unilaterally creating a new forum and redirecting the domain to those new forums In contradiction of Articles 9.1 and 9.2, Hileville and the Cabinet created a new forum on 10 January 2015. (As evidenced by the creation date for the “Lampshade” root account.) These forums are located at the following URL: http://s15.zetaboards.com/the_South_Pacific/ (hereafter “the Zetaboards domain” or “the Zetaboards forum”). They did so in direct violation of Article 9.3 of the Charter, usurping the Assembly's exclusive right over establishing new forums. Part 1(a): Article 9.1 (as amended 8 December 2015) of the Charter states: “1. The Coalition's official Regional Forum is located at http://thesouthpacific.org.” (Herein after “the forums.”) Hileville, owner the thesouthpacific.org domain, set up a URL redirect to the Zetaboards domain. When typing in “thesouthpacific.org” in their browser, the user is redirected to the Zetaboards domain. As such, in a purely legalistic argument, the forums created by Hileville and the Cabinet are not “located at” http://thesouthpacific.org. The are “located at” http://s15.zetaboards.com/the_South_Pacific/. Therefore, the forums at the Zetaboards domain are not the Coalition's official Regional Forum under the Charter. Part 1(b): Article 9.2 (as amended 8 December 2015) of the Charter states: “2. Should the Regional Forum cease to exist or otherwise become permanently unavailable then the Cabinet is authorized to establish a replacement Regional Forum.” Hileville and the Cabinet make no argument in their statement that the forums had ceased to exist or had become permanently unavailable. Their arguments for taking those drastic actions were grievances against members of the Administration Team. Nowhere in the Charter is that a valid reason to establish new forums. Therefore, the Cabinet was not “authorized to establish a replacement Regional Forum.” Part 1(c ): Article 9.3 (as amended 8 December 2015) of the Charter states: “3. Barring circumstances outlined in Section 2 the Assembly reserves the sole right to authorize the creation of a new Regional Forum.” The Assembly did not debate, and certainly did not vote, on Hileville and the Cabinet's forum move. Because the forums had not ceased to exist and did not become permanently unavailable, the only legal means for the creation of a new forum is through an Assembly vote on a Charter amendment. No such vote occurred. The Assembly's sole right to establish new forums is further evidenced by the move to the DigitalOcean server, approved on 8 December 2015 (http://104.131.34.7/thread-3474.html). The Admins had been discussing a forum move with the Assembly since February 2015. It took a full year through the political process to conduct a nondisruptive forum move. It flies in the face of reason that Hileville and the Cabinet argue they are authorized to move to new forums in an instant, without Assembly consultation, without a debate, and without a vote, and in a highly disruptive manner that leaves nearly two years of threads, posts, logs, Assembly votes, election results, roleplays, games, diplomatic events, and archives effectively inaccessible. Furthermore, the above resolution (which is a binding legal document) specifies that the Official Regional Forum will be located on a server owned by Tsunamy and maintained by Sandaoguo. Neither of these conditions exist for the Zetaboards forum. Question: Given the above, did Hileville and the Cabinet knowingly and flagrantly violate Articles 9.1, 9.2, and 9.3 of the Charter? ----- Part 2: Unilaterally removing Tsunamy, Sandaoguo, and Kringalia as admins, and installing Hileville, Imkihca, and Scylla as admins. Without any granted authority under the Charter to do so, Hileville and the Cabinet removed the entire Administration Team and installed the above three Cabinet members as administrators of the Zetaboards forums. They did without any consultation with the Assembly, the High Court, the Committee on State Security, or the sitting Administration Team. Article 9 of the Charter, which governs the Administration Team, contains no provision for Cabinet authority to remove or install members of the Administration Team. Such rules are governed by the Administrative Procedures, as specified in Article 9.5. The Administrative Procedures (http://104.131.34.7/thread-567-post-30458.html#pid30458) set forth an application process for new Administrators and Moderators. The Administration Team had not announced open applications for new administrators. Hileville, Imkihca, and Scylla never submitted applications to become administrators. They were never chosen to become administrators. Under no law of the Coalition are they authorized to be administrators of the official Regional Forum. Question: Given the above, did Hileville and the Cabinet knowingly and flagrantly act without legal authorization to remove Tsunamy, Sandaoguo, and Kringalia as administrators, and did they act without any legal authorization and against Administrative Procedures to install Hileville, Imkihca, and Scylla as administrators? ----- Part 3: Unilaterally removing Kringalia from the Committee on State Security Without any legal authority under the Charter, Hileville and the Cabinet removed Kringalia from the Committee on State Security (CSS). They did so by illegally removing his citizenship and claiming he could not sit on the CSS as a result. Part 3(a): Illegally removing Kringalia's citizenship On 30 December 2015, Imkihca send a Private Message to Sandaoguo with a list of players who no longer qualified for citizenship, either because they ceased to exist in TSP, or they did not meet the activity requirements of 2 posts within a 30 day period. Kringalia was included on this list, with Imkihca noting that his last 2 posts were made on 22 November 2015. On 4 January 2016, following the move to the DigitalOcean server, Sandaoguo conducted the demasking of the list, save Kringalia. The reason given was that Kringalia had actually made posts in the private administration forum, which Imkihca could not see. For the record, those posts were made on 3:52pm (Eastern) on 1 December 2015 and 10:29am (Eastern) on 2 December 2015. In other words, Kringalia had made 2 posts within the 30 day period since Imkihca sent the demask list. Proof can be supplied to the Permanent Justice upon request. Hileville and the Cabinet contend that those posts do not count, because they were made in a private area of the forum that Imkihca could not see. There is no legal basis for this argument. There are several areas of the forum that the Vice Delegate cannot see, including Ministry forums, Cabinet forums, and confidential military forums. When citizens make posts in those forums, they count. They have always counted. In response to Sandaoguo, Imkihca even agreed that she had “no problem including posts in private sections of the forums.” (Proof of all Private Message content can be supplied to the Permanent Justice upon request.) There was a legitimate issue with the Vice Delegate being responsible for conducting activity checks, but not being able to see all posts in all areas of the forum. As with many thing in The South Pacific, a hodge-podge series of amendments to laws and inadequate planning led to a hole in the process. Seeking to be helpful, Sandaoguo created a tool to alleviate this issue, which showed the dates of the last two posts made by all citizens regardless of where they were made, without needing to grant the Vice Delegate permissions to access those areas. Imkihca was sent the URL to this tool, which is publicly available at http://104.131.34.7/pages.php?page=citizens-list, on 12 January 2015. This was slightly over one week after the issue was brought to the Administration Team's attention. In fact, between the time this issue arose and the time Hileville created the Zetaboards forum on 10 January 2015, only 6 days had passed. The Cabinet did not bother to have an actual discussion with the Administration Team over the issue, and used it as a pillar in their statement even though the Citizen Roster was created specifically to fix the issue. If Hileville and the Cabinet continued to have a grievance over Kringalia's citizenship status, they did not express that to any administrator after 4 January 2015. Imkihca did not continue the Private Message thread with Sandaoguo after he provided her the explanation and justification. The Cabinet did not issue a formal complaint. They did not raise the issue with Tsunamy or Kringalia. How can the Administration Team remedy an issue without communication? Furthermore, if the Cabinet and the Administration Team could not reach an agreement, even though no attempt had been made, the appropriate venue to turn to would be the High Court. Disagreements over the meaning and application of the laws are settled in our judiciary. Instead, they created the Zetaboards forum, sat on those forums for 11 days, and during that time did not attempt whatsoever to pursue any legal means of addressing their grievances. Part 3(b): Illegally removing Kringalia from the Committee on State Security There are three means under the law by which a member of the CSS may lose their membership: 1. Resigning. 2. Losing citizenship. 3. A successful recall under Article 2 of the Code of Laws. Kringalia did not resign. Pursuant to Part 3(a), he remains a citizen. As such, and until one of the above three events happen, Kringalia is a member of the CSS. Hileville and the Cabinet cannot point to any legal means for the Cabinet to unilaterally remove any member of the CSS. Question: Did Hileville and the Cabinet knowingly and flagrantly act without any legal authorization to remove Kringalia's citizenship and remove him from the Committee on State Security? ----- Part 4: Unilaterally removing Regional Officer Border Control powers from Tsunamy, Sandaoguo, Kringalia, and Farengeto “Border Control” is a Regional Officer power granting a player the ability to eject or ban nations from the region. The issuance of Border Control power is determined by the Regional Officers Act (http://104.131.34.7/thread-3441.html). All members of the Committee on State Security must be granted Border Control power, per Article 1.2 of that act. This is a serious security measure, as being able to eject and ban nations from the region allows members of the Committee on State Security to respond to invasion and coups d'etat. Without it, the CSS is effectively powerless. Article 4.3 of the act allows a majority of the Cabinet to suspend Regional Officers powers for “behavior unbecoming of a regional representative of The South Pacific.” In their statement, Hileville and the Cabinet do not content that those above CSS members were acting in an unbecoming manner. Rather, Border Control power was removed “to ensure regional security during this transition.” (“This transition” referring to the illegal forum move.) It should be noted that members of the CSS who are also members of the Cabinet did not have their Border Control power removed. (For the record, that would be Imkihca and Sam111, in addition to Hileville as Delegate Observer.) So, Hileville and the Cabinet removed the only real means of responding to an illegal coup d'etat of the region from all CSS members who were not part of the Cabinet that decided to engage in the above illegal activities. Question: Did Hileville and the Cabinet knowingly and flagrantly violate the Regional Officers Act by removing Border Control powers from Tsunamy, Sandaoguo, Kringalia, and Farengeto, “to ensure regional security”?
These forums are not the legal forums of the South Pacific. And therefore are not recognized by the Government.
All legal questions should be posted at the official forums http://thesouthpacific.org.
(01-22-2016, 03:23 AM)Hileville Wrote: These forums are not the legal forums of the South Pacific. And therefore are not recognized by the Government. A declaration you can't make, as you are not the Permanent Justice. Fargengeto will decide how he wants to receive legal questions.
I officially request that Farengeto recuse himself from these proceedings. Farengeto was one of the CSS members who lost his border control powers via the Cabinet's executive order. Therefore it is my belief that he can not hear over these questions.
I further request that he ask the Assembly to appoint someone to serve as Acting Justice. This is the only way to be fair as we do have not formally agreed on a Pool of Justices. (01-22-2016, 03:28 AM)sandaoguo Wrote:(01-22-2016, 03:23 AM)Hileville Wrote: These forums are not the legal forums of the South Pacific. And therefore are not recognized by the Government. I think Faren's already made an account on the other site. May as well post them there too, just in case he doesn't pop back here.
An eye for an eye just makes the whole world go blind.
~Mahatma Gandhi (01-22-2016, 03:39 AM)Hileville Wrote: I officially request that Farengeto recuse himself from these proceedings. Farengeto was one of the CSS members who lost his border control powers via the Cabinet's executive order. Therefore it is my belief that he can not hear over these questions. So you and the Cabinet can pick someone who shall defend you? Europeian Ambassador to The South Pacific
Former Local Council Member Former Minister of Regional Affairs Former High Court Justice (01-22-2016, 08:04 PM)Punchwood Wrote:(01-22-2016, 03:39 AM)Hileville Wrote: I officially request that Farengeto recuse himself from these proceedings. Farengeto was one of the CSS members who lost his border control powers via the Cabinet's executive order. Therefore it is my belief that he can not hear over these questions. What part of the ASSEMBLY will appoint someone don't you understand?
Yes but sadly the Cabinet has 6 members and there are a few people who support this move and therefore you will most likely overrule everyone else.
Europeian Ambassador to The South Pacific
Former Local Council Member Former Minister of Regional Affairs Former High Court Justice
The Court finds this question Justiciable and will hear the case. While the Court reviews the issue, interested parties are welcome to submit an amicus brief on the question. The court will be handling each part of this legal question separately. I will be addressing the first three parts of this question myself, but I will be recusing myself from the fourth part due to a conflict of interest. A member of the pool of Justices will be selected to handle the fourth part of this case.
Response to Amicus Curiae Briefs
The amicus briefs submitted to this Court by Hileville and Sopo offer fantastical interpretations of law that are not rooted in reality. Part 1: Response to Hileville In his brief, Hileville makes the assertion that Article 9.1 is not violated, because the domain “thesouthpacific.org” is in use and points to a forum. In my original filing to this Court, I entertained a nonsensical interpretation of law, hoping to beat nonsense at its own game. In this response, I will do away with that interpretative strategy. It is a simple fact that when the Assembly voted to amend Article 9.1 to replace “thesouthpacific.x10.mx” with “thesouthpacific.org”, it voted to simply alter the stated URL for the forums in use. The accompanying resolution, which holds binding legal status as a General Law, leaves no room for interpretation as to what the change in domain entailed. The Assembly authorized, according to Article 9 procedures, a move of the forums to a new server, owned by Tsunamy and operated by Sandaoguo. Upon that move, Article 9.1 would be amended to read the correct domain. To accept Hileville’s argument is to accept that the Assembly authorized any forum that happened to exist at “thesouthpacific.org”, regardless of who made them, when they were made, or if the Assembly itself had any say in altering which forums existed at the domain. Not only does the 8 December 2015 resolution show that such interpretation is flatly wrong, that interpretation is simply unreasonable. Articles 9.1 and 9.2 exist exactly to prevent any person – be they Delegate, Cabinet member, admin, citizen, or invader – to create a new forum and claim it as the Official Regional Forum. The Assembly did not write this clause into the Charter to allow the owner of the domain to decide, one random day, to point the domain away from the Official Regional Forum and to whatever they wished and allow the owner to claim whatever exists at the domain as the Official Regional Forum. If Hileville, the owner of the domain, redirected it to Facebook, that does not mean Facebook is the Official Regional Forum. The Assembly enshrined into the Charter the location of the Official Regional Forum to ensure that it could not change without their approval, upon the whim of the domain owner, or any other person. Hileville also argues, disingenuously, that the Zetaboards forum are not really new forums. The Charter does not explicitly define what software is used to deliver a forum at the stated domain. “Thesouthpacific.org” points to a forum, therefore no move to a new forum has occurred. The Cabinet’s own statement betrays the Delegate’s novel legal theory. Their statement is linked, of course, in large text at the top of the Zetaboards forum, as “Cabinet Statement on New Forums.” The statement’s official title is “On the change of forums.” The Cabinet there seems to believe that they did indeed create a new forum and move to it, but the Delegate here argues to the Court that no new forums were created and the Official Regional Forum wasn’t moved, and thus Article 9.2 has not been violated. The Cabinet must now find themselves in a particularly awkward situation. Hileville further argues for an expansive view of Executive Policy, one which allows the Cabinet to turn the Executive Policy clause of the Charter into wholesale dictatorial power. The Court here does not have to reach any decision on the extent to which Executive Policy may be exercised, because Hileville is wrong that no law exists in this area. Article 9 is the law of the land on the Forum and the Administration Team. The Charter is the supreme law of our region. If the Cabinet wishes for there to be a procedure for the removal of administrators, it must amend the Charter to allow for it. The Cabinet cannot use their Executive Policy power to alter a fundamental foundation of the region created in the Charter. To accept Hileville’s argument on Executive Policy is to accept that the Cabinet may add anything to the Charter at will. Hileville points to the 29 March 2015 Executive Policy on the contested election for Minister of Foreign Affairs (http://104.131.34.7/thread-1910.html) as support for his argument. The two actions are not equal. The March Executive Policy did not attempt to write into the Charter a procedure that did not exist. The Cabinet in March enacted an Executive Policy regarding an area of election law (which is a simple General Law) that did not exist: what to do when the results of an election are being contested in court, but a candidate is claiming victory and demanding to sit on the Cabinet? In that situation, the Cabinet acted to prevent Wolf from sitting on the Cabinet when it there was likelihood that he did not, in fact, win the election. A decision by the High Court relating to when citizenship is lost resulted in the Court effectively declaring that he did not, in fact, win the election. There were no laws to point to for addressing a genuine constitutional crisis. Had the Cabinet not exacted that Executive Policy, Wolf would have sat on the Cabinet in violation of the Charter. In the case at hand, there are laws in place to enact the Cabinet’s desired policy. They wanted a new forum, and the Charter is explicit in the procedure required to establish a new forum. The remainder of Hileville’s brief regards the validity of Kringalia’s citizenship. I believe I presented a solid legal case in my original filing, that Hileville has not offered any real challenge to that case, and thus there is no need for me to respond further. I will state, however, that his plain assertion that the Charter does not allow an administrator to “block the Vice Delegate from removing the citizenship of any player” is currently a question under consideration by this Court in a separate Legal Question. Part 2: Response to Sopo Before I begin, I must protest the use of Merriam Webster as any kind of legal authority on the English language. That position is reserved to the Oxford English Dictionary, the most canonical collection of English words available. No court worth its weight in salt would use a lesser dictionary. That aside, in his response, Sopo makes an argument more incredulous than his co-Cabinet member. Despite being able to post freely, to roleplay, to engage in debate, to hold elections, and a plethora of other activities that were ongoing, Sopo argues that the Official Regional Forum was “permanently unavailable” because, essentially, the Cabinet did not like the administrators not removing Kringalia’s citizenship. This argument is so out there that the Court should dismiss it outright. But nonetheless, I will counter. Common sense provides more than enough meaning to what it means for the forums to cease to exist or become permanently unavailable. If the forum literally does not exist – no database, no threads, no posts, nothing – then it has ceased to exist. If the forum cannot be accessed through any means – perhaps because of an unfixable server error, a ban placed by the host, a rogue administrator disabling access, or similar – then it is permanently unavailable. Sopo also argues that due to the administrators not removing Kringalia’s citizenship, a “valid vote on any topic” was “almost impossible.” I feel it prudent to remind the Minister that he was elected under a vote held after Kringalia supposedly should have lost his citizenship. Perhaps his own election falls under the realm of the possible when all other votes are “almost impossible.” Sopo then continues to impugn the character of the Administration Team, engaging in a wild conspiracy that perhaps they would alter election results, edit database entries, and flagrantly add and remove citizenship masking to manipulate votes. If Sopo has any proof of this conspiracy, I’m sure the Court and the Assembly would want to see it. What Sopo and Hileville both miss in their assertions that the Administration Team violated the law by not removing Kringalia’s citizenship upon the Vice Delegate’s vote, is the fact that Kringalia had posted within the window to ensure his citizenship. Of course, if the Administration Team did remove his citizenship, they would certainly have been violating the Bill of Rights. Lastly, Sopo engages in a lesson on property law. But perhaps not a very good one. Not that American or English property law is an authoritative source of meaning to our Charter, but the analogy is not a particularly good one. The Administration Team and the Cabinet have a legal disagreement over the validity of a handful of posts made in the private administrator forum. This does not amount to any member of the Cabinet, let alone any citizen, being effectively or actually prevented from using the forum. Simply because the Cabinet did not like the Administration Team’s opinion does not allow it to avoid the judicial system, or to ignore or violate the Charter. ----- I would like to further note that neither of the briefs referenced above have been posted in both venues. |
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