Users browsing this thread:

Eluvatar · 02-12-2016, 03:05 PM

As Election Commissioner, I am faced with a pretty specific legal question: whether Belschaft can be nominated in this special election if his citizenship is returned five hours after nominations end.

I therefore must ask: are candidates required to be citizens during voting or when they are nominated?

If candidates must be citizens at nominations, is the reversal of a Cabinet removal of citizenship retrospective?

I ask the Court to consider these relevant paragraphs of the Charter and Election Act:

Charter Wrote:1.2.7. 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.

Charter Wrote:2.11. Voting and being elected to an office under the Coalition of The South Pacific shall be rights afforded only to citizens except for the Local Council. For the Local Council only, voting and being elected to an office shall be open to all residents of The South Pacific.

Election Act Wrote:1.4. All elections shall consist of a pre-voting period lasting six days and a voting period lasting three days. Citizens shall have to declare their candidacy or accept their nomination within the first three days of the pre-voting period.

Election Act Wrote:1.6. Candidates for elections may self-declare or be nominated by another Citizen. Candidates must file a Conflict of Interest Disclosure at the time of their acceptance of a nomination or self-declaration.

My interest is drawn particularly to the wording of the Charter's paragraph 2.11 which makes no mention of nominations but instead specifies that being elected to an office is a right afforded only to citizens.

I would appreciate guidance from the High Court in this matter by February 18th, when I am obliged as Election Commissioner to open voting. I will, of course, use my best judgement in understanding the law should I not receive guidance by that time.

[Image: HuoZhaoDao.png]

ProfessorHenn · 02-12-2016, 03:32 PM

If the Court will entertain a brief amicus brief, I would like to draw attention to 1.4's wording of "Citizens shall have to declare their candidacy or accept their nomination. . ." (Emphasis mine). The wording is clear in that Belschaft must be a citizen by the time nominations end in order to be a candidate for this election cycle.

Sent from my iPhone using Tapatalk

ProfessorHenn
Legislator

***sandaoguo*** · 02-12-2016, 05:27 PM

Submitted amicus brief:

In addition to the above point about section 1.4 of the Elections Act, more broadly our entire electoral system is predicted upon citizenship. See the Bill of Rights, which grants voting and being elected to office as a right only to citizens.

It does not follow under reasonable logic and interpretation that the law would afford a "right to nomination" for non-citizens, when it doesn't allow non-citizens to vote or hold office, regardless of how active they are on the forums.

Sent from my iPhone using Tapatalk

**Belschaft** · 02-12-2016, 06:37 PM

I would argue that this is a unprecedented and unanticipated situation, and that a certain amount of leeway should be allowed here. We are talking about a matter of six hours, that would not have occurred had Awe and Eluvatar logged in in a different order. This isn't a massive constitutional issue but a minor technicality that has occurred due to an unfortunate scheduling problem. To disqualify me from the elections due to such would be an absurdity, and a victory of pedantry over common sense. I will be a citizen by the time voting occurs; I will be a citizen by the time the winning candidates take office. It would be the exact kind of asinine decision that leads to NS courts being held in such contempt.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

(This post was last modified: 02-13-2016, 03:21 PM by Belschaft.)

***sandaoguo*** · 02-12-2016, 07:07 PM

Yes, it's unprecedented, though I wouldn't say unanticipated. It's a matter of awkward timing, but the laws are clear, and that laws haven't been changed. The subject (Belschaft) is not a citizen, because he's currently prohibited from being one by Cabinet declaration. The Assembly is voting on overturning that declaration, but unfortunately that vote will not end in time, and thus his citizenship application not processed in time, for Belschaft to declare his candidacy as a citizen, which is the legal requirement.

It is not "common sense" to say Belschaft should be allowed to run. Everything we have done since the coup has been done to legal standards, even if it would have been easier for some to do it otherwise. We passed a resolution to recall the rogue Cabinet, start special elections, and issue amnesty. We did that because we all believed it was important to follow our laws in the wake of the Cabinet and Delegate's lawlessness. It's not the case that there's universal acceptance for ignoring the security threat declaration-- it may be, once the Assembly has voted. But the Assembly still needs to vote. There would have been no problem if the Assembly had taken up the issue days ago, rather than at a date that coincidentally precludes Belschaft from being a citizen during the nomination period.

To talk about reasonableness and common sense, it's worth stressing that the Cabinet elected during this special election is effectively a caretaker Cabinet. It's likely they will not serve a full term, and a new election will be called under a entirely new legal system following the scheduled Great Council. So the stakes are really not that high. Belschaft will be a citizen during that process, and can run in a more permanent election. He'll be able to cast his votes in this special election, as well. The High Court shouldn't invalidate our long-standing election laws and traditions just because the issue of Belschaft's citizenship wasn't brought up earlier than it needed to be.

**Farengeto** · 02-14-2016, 02:08 AM

[Image: HCSeal.png]

HCLQ1603

February 14th, 2016

Petitioner

Eluvatar

Presiding Justice

Farengeto

As Election Commissioner, I am faced with a pretty specific legal question: whether Belschaft can be nominated in this special election if his citizenship is returned five hours after nominations end.

I therefore must ask: are candidates required to be citizens during voting or when they are nominated?

If candidates must be citizens at nominations, is the reversal of a Cabinet removal of citizenship retrospective?

I ask the Court to consider these relevant paragraphs of the Charter and Election Act:

Charter Wrote:1.2.7. 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.

Charter Wrote:2.11. Voting and being elected to an office under the Coalition of The South Pacific shall be rights afforded only to citizens except for the Local Council. For the Local Council only, voting and being elected to an office shall be open to all residents of The South Pacific.

Election Act Wrote:1.4. All elections shall consist of a pre-voting period lasting six days and a voting period lasting three days. Citizens shall have to declare their candidacy or accept their nomination within the first three days of the pre-voting period.

Election Act Wrote:1.6. Candidates for elections may self-declare or be nominated by another Citizen. Candidates must file a Conflict of Interest Disclosure at the time of their acceptance of a nomination or self-declaration.

My interest is drawn particularly to the wording of the Charter's paragraph 2.11 which makes no mention of nominations but instead specifies that being elected to an office is a right afforded only to citizens.

I would appreciate guidance from the High Court in this matter by February 18th, when I am obliged as Election Commissioner to open voting. I will, of course, use my best judgement in understanding the law should I not receive guidance by that time.

Ruling

After reviewing the relevant laws on the subject, it is of the opinion of this Court that a Candidate must possess Citizenship at the time of their nomination in order for their candidacy to be valid. This is supported in both Article 1.4 and 1.6 of the Election Act:

Quote:Article 1 - General Elections

4. All elections shall consist of a pre-voting period lasting six days and a voting period lasting three days. Citizens shall have to declare their candidacy or accept their nomination within the first three days of the pre-voting period.
6. Candidates for elections may self-declare or be nominated by another Citizen. Candidates must file a Conflict of Interest Disclosure at the time of their acceptance of a nomination or self-declaration.

Article 1.4 explicitly references citizenship as a prerequisite for candidacy, while Article 1.6 further references this implicitly through its usage of the term "another citizen". Thus should a potential candidate must possess citizenship for the acceptance or declaration of candidacy to be valid. Should a potential candidate be unable to complete the requirements for candidacy within the allotted time period for any reason, including reasons of citizenship, their candidacy will not be valid.

While the Court regrets that this may disqualify present or future candidates in situations such as those referenced by the Petitioner from running in their election, should they be granted citizenship before the conclusion of the election period this will not interfere with their ability to vote in the election, a right a granted to all citizens regardless of the circumstance.

**Belschaft** · 02-14-2016, 04:49 PM

In accordance with the Rules and Procedures of the High Court I'm submitting an appeal on grounds of violation of procedural due process and judicial misconduct. I believe that Farengeto should have recused himself from this matter due to personal bias, and in failing to do so has compromised my rights.

In addition to this, I request that the close of nominations be delayed until such time as this matter is settled, or becomes irrelevant.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

PREVIOUS ROLES

Punchwood · 02-14-2016, 04:55 PM

I have to agree with Belschaft on this due to the fact that Farengeto has voted against Bel regaining his citizenship. Nominations should be left open until this has been resolved.

Europeian Ambassador to The South Pacific
Former Local Council Member
Former Minister of Regional Affairs
Former High Court Justice

**Farengeto** · 02-14-2016, 05:17 PM

Feirmont has been assigned as Appellate Justice for this case.

***sandaoguo*** · 02-14-2016, 06:00 PM

Elections cannot be delayed just because a single person wants to run and has run into legal obstacles in gaining citizenship in time to nominate himself. That would be wholly unprecedented and there's no legal authority found in our Charter or laws that would allow the High Court to suspend or prolong the election.

Creating a constitutional crisis over this issue is irresponsible for all parties involved. The laws are clear. This upcoming Cabinet is merely going to be a caretaker and won't even serve a full term. It's not as if Belschaft won't have citizenship, a role in the constitutional convention, and the right to run for office in elections afterwards. This situation does not seem worthwhile to create a constitutional and institutional crisis over.

Besides, the merits of the case are not likely to change in an appeal.

Sent from my iPhone using Tapatalk