| Legal Question: Powers of the Cabinet re; Treaties |
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Your honour, considering the recent actions of the Cabinet, I must submit the following legal questions;
"Does the Cabinet have the legal authority to dissolve a treaty without the approval of the Assembly?" "Does the Cabinet have the legal authority to assert a power not explicitly granted in the Charter?" The Charter addresses treaty matters in a number of locations, and makes certain specific grants of power to the Cabinet in regards to treaties. Article VI, Clauses 6 through 8, deals with the Ministry of Foreign Affairs and reads as following; Quote:6. The Minister of Foreign Affairs will be the Coalition’s chief diplomat. They will be responsible for establishing the government’s foreign policy program, communicating with allies, and coordinating with the military on foreign policy priorities when necessary. This constitutes an explicit grant of powers to the cabinet, the Minister of Foreign Affairs in particular, in regards to treaties. It should be noted that this grant of powers does not include the dissolution of treaties, but is limited to their negotiation. Further, upon such negotiation, the Cabinet is explicitly required to present proposed treaties to the assembly for ratification. It is only once the Assembly has provided such ratification that the treaty becomes lawful and legally binding, and absent such ratification any agreement made by the Minister of Foreign Affairs is null and void. This clearly indicates two things; firstly, that the Assembly, when adopting the Charter, considered the issue of treaties and chose to grant certain powers to the Cabinet. Having made this explicit and limited grant of powers, the Assembly did chose not to include in this treaty dissolution. No argument of an implicit grant of powers can be made when there has an explicit grant of powers; an explicit grant of powers having been made, only those powers exist. I do not believe that this can be disputed; the Assembly has chosen not to grant the Cabinet the powers the Minister of Foreign Affairs has tried to assert. Secondly, by requiring Assembly ratification, the Charter makes clear that the Assembly is the final arbiter of treaty matters. No proposed treaty can become law without the Assembly's approval; by stating such in the section of the Charter that makes grants of powers to the Cabinet, the Assembly has made clear that it reserves certain powers to itself. It thus cannot be argued that the Cabinet is the sole responsible authority in this matter. This reservation of powers is made clear once again in Article IV, Clause 6, of the Charter; Quote:6. All general laws, resolutions, and treaty ratifications must be passed by a simple majority of those voting. Laws marked as constitutional laws, or resolutions that deal with issues found in constitutional laws, require a three-fifths supermajority of those voting to pass. Appointments, unless otherwise specified, require a simple majority of those voting. Votes are held for a minimum of 3 days, except for votes on constitutional law which are held for a minimum of 5 days. The Assembly, once again, clearly reserved for itself the power of treaty ratification when adopting the Charter. This is yet again proof that the Assembly has granted the Cabinet only limited powers over treaties. Further to this, in Article IV, Clause 1, the Assembly made the following declaration; Quote:1. The Assembly holds supreme legislative authority in the Coalition, and is comprised of all eligible legislators and a representative of the Local Council. It is responsible for establishing and maintaining the legal code of the Coalition. By declaring that it holds supreme legislative authority, the Charter is explicit that no other body has the power or authority to undo or contradict it's legislative actions. This is an unambiguous clause; the Assembly is the only body with legislative power in TSP. That legislative power extends to treaties, which only enter force when ratified by a vote of the Assembly. Treaties have legal binding force in TSP because of that Assembly ratification - they are, in effect, a law binding TSP and the other signatories, agreed between both regions. Whilst obviously distinct from general laws, they require the same Assembly approval and have the same binding force. It is established, both in the Charter and long precedent, that the Assembly is the sole legislative authority. Only the Assembly has the power to amend, alter or dissolve it's legislative acts. A treaty is a legislative act of the Assembly. Thus only the Assembly can dissolve a Treaty. A second argument can be made in relation to ambiguity; the Charter, whilst reserving the power of treaty ratification to the Assembly, does not make a similar explicit reservation for treaty dissolution. I believe that I have presented the legal case for why such is not necessary above - treaties being a legislative act of the Assembly and thus subject only to the Assembly - but I acknowledge the potential for ambiguity. Article VI, Clauses 11 through 12, deals with issues of ambiguity; Quote:11. The executive may exercise the collective authority of executive orders, by unanimous consent among the Prime Ministers and Cabinet Ministers. Executive orders may only be issued to address an immediate and pressing issue created by ambiguity or holes in a particular law, which will immediately have the effect of law. These clauses make an explicit grant of power to the Cabinet for situations where there is ambiguity in the law; they also establish a clear procedure that must be followed in this situation. It is clear from this clause that the Cabinet may only assume powers not granted to it explicitly via executive order, and that such executive orders musty receive the approval of the Assembly to acquire legal power. This is yet another example of the limited powers of the Cabinet, and further evidence of the fact that such powers stem from the Assembly. There is no executive order, either proposed or in force, which grants the Cabinet the power to dissolve treaties. There is no explicit grant of these powers in the Charter, or any other section of regional law. As such, we have no other option but to conclude that the Cabinet does not have this power. Your honour, having demonstrated beyond any possible question that the Cabinet is not granted the power to dissolve treaties in the Charter, and that further to this that they have no legal authority to assert further powers without an Assembly approved Executive Order, I must ask that you immediately strike down these illegal actions of the Cabinet. Minister of Media, Subversion and Sandwich Making
Associate Justice of the High Court and Senior Moderator ![[Image: B9ytUsy.png]](https://i.imgur.com/B9ytUsy.png)
Your Honor, I intend to file a brief in this case, should it be granted.
Sent from my iPhone using Tapatalk
Granted.
And anyone else who would like to submit an amicus brief may do so.
Mr. Justice I would like to submit the following:
The role of this court is to clarify matters not to determine what TSP law is, it is merely to interpret it. That's why I would encourage the court to throw out this case and allow the Assembly to legislate this matter. The Assembly already has debate going on the first question presented here and I believe we should also allow the Assembly to determine what the answer to the second question is. Thank you very much Mr. Justice and I look forward to a ruling. Above all else, I hope to be a decent person.
Has Been What's Next? CoA: August 2016-January 2017
Minister of Foreign Affairs: October 2019-June 2020, October 2020- February 2021
Your Honor,
The Petitioner brings to the Court several distinct issues, making this a potential landmark case. In the first half of this brief, the undersigned will argue that separation of powers was paramount in the crafting of the Charter during the pivotal Great Council of 2016, and that nothing within the Charter supports the notion that the Assembly maintains all powers not explicitly granted to another body or person. Additionally, we will lay out that under the principle of “the greater power includes the lesser” the Cabinet has the authority to dissolve a treaty. Separation of Powers The Great Council of 2016 declared that the new Charter should follow the principles of the separation of powers. Under this system of government, branches of government are created in such a way that one branch cannot exercise the core functions of another. This is contrary to the notion of Assembly supremacy, in which all power flows from the Assembly outward. The Charter establishes the Assembly as the legislative branch, the Cabinet as the executive branch, and the High Court as the judicial branch. A perfect symbol of the Charter’s desire to separate powers is that the Chair of the Assembly was removed from the Cabinet, in order to stop the overlapping of executive and legislative roles. This matters because the Charter clearly sets out the executive functions of the Cabinet. Specific to this Legal Question, the Charter lays out: “6. The Minister of Foreign Affairs will be the Coalition’s chief diplomat. They will be responsible for establishing the government’s foreign policy program, communicating with allies, and coordinating with the military on foreign policy priorities when necessary.” It can’t be made clearer that foreign policy is a function of the Cabinet. It’s the responsibility of the Minister of Foreign Affairs to “establish the government’s foreign policy program.” This includes the maintenance of alliances, the prioritizing of agendas, exploring new partnerships, so on and so forth. The Assembly has no role in establishing or carrying out the government’s foreign policy program. Article VI, Section 7 is not a limited grant of explicit powers, as the Petitioner argues. The Minister is given the all-encompassing responsibility of handling the government’s foreign policy program. Section 7 does two things: it grants the Minister the sole authority to write treaties; and it lays out how those treaties are ratified. It is a clarifying section, not a section saying that this is the absolute extent of the Minister’s power. The extent of the Minister’s power is defined in Section 6, above. This contradicts Petitioner’s argument that a power not explicitly defined in the Charter automatically defaults to the Assembly. There is no textual basis for this in the Charter. While the Charter lays out the Assembly’s supreme role on legislation, it does not extend this to treaties, which is evident by the fact that the Assembly is in fact prohibited from writing treaties on its own. Petitioner’s argument violates the principles of the separation of powers. Yes, the Charter does not provide explicit direction of how a treaty is dissolved. However, that falls under the government’s foreign policy program, which is entirely under the Cabinet’s direction. It would be a usurpation of a core function of the executive branch if all aspects of executive responsibility not explicitly predetermined in the Charter fall automatically to the Assembly. The executive, by nature, will need to make decisions that are not pre-made for them by law. Those decisions do not automatically fall to the Assembly to make. That is not how the separation of powers works. There Is No Voting Requirement for Dissolution In the Charter prior to the Great Council of 2016, there was an explicit requirement that the Assembly must vote on a dissolution of a treaty. Our Charter now does not have that requirement. The logical conclusion to this is that there is no longer a requirement for a treaty to be dissolved. It cannot be the case that removing the requirement that the Assembly must vote to dissolve a treaty means that the power of dissolution then by default returns to the Assembly, which would require a vote to dissolve a treaty. That is not logical and strains credulity. Petitioner argues that this is now an ambiguous area of law. This is not the case. It is unambiguous that the requirement was removed, and so now there is no requirement. Perhaps it is the case that it’s ambiguous whether or not the Assembly should amend the Charter to require a vote for dissolution, but that is not the law as it stood when the Cabinet dissolved the TSP-Balder Treaty. The Petitioner fundamentally conflates his desire for how the process should work with the how the laws say the process does work. The Greater Power Includes The Lesser In addition to the principles of the separation powers confirming that the power of dissolution rests within the Cabinet, as it is the Cabinet that is responsible for the government’s foreign policy program, there is a common law principle that further confirms the Cabinet was within its authority to dissolve the TSP-Balder Treaty. This principle is known as the presumption that the greater power includes the lesser power. (Links: http://www.duhaime.org/LegalDictionary/O...Minus.aspx, http://www.fed-soc.org/publications/deta...abm-treaty) It is inarguable that the Cabinet has the sole authority to establish and conduct foreign policy. The dissolution of an alliance is a function of establishing and conducting foreign policy. Therefore, the Cabinet must have the authority to dissolve an alliance. To drive this point home, there is no explicit granting of power to the Cabinet to make public comments that affect the Coalition’s place in the diplomatic network of NationStates. However, no reasonable person would argue that the Cabinet or its Ministers must seek an Assembly vote before publishing a statement in support or opposition of some region or significant event. Such activity (which constitutes much of NationStates diplomatic politics) is a lesser component of the greater power of conducting foreign policy, and thus the Cabinet obviously has the authority to do it. This would be very different if there was a law requiring a vote. It bears repeating that there is no such law limiting the Cabinet’s foreign policy power, unlike the explicit law that requires the Assembly ratify treaties. If the Charter required an Assembly vote to dissolve a treaty, it would be explicitly laid out just as the requirement of a ratification vote is. If we were to remove the requirement of Assembly ratification tomorrow, what would happen? Would the Coalition be unable to establish any treaties at all? Or would we reasonable expect that means the Cabinet can make treaties themselves, and not have to seek a vote in the Assembly? The Treaty Says How Its Dissolved Article 7 of the TSP-Balder Treaty plainly says how the treaty will be dissolved: “7) This treaty shall be considered void if a signatory region makes a post to that effect in their embassy on the other signatories forums. If this is done, the treaty shall cease to be in effect 5 days after a signatory has declared their intent to leave the treaty. This shall not be considered an act of hostility.” This is the language that the Assembly put into force when it ratified the treaty. Absent any laws of the Coalition requiring prerequisite action, Article 7 is the commanding procedure for how the TSP-Balder treaty is dissolved. Under our previous Charter, there was a prerequisite law that the Assembly must vote on a dissolution. The current Charter has no such requirement. Therefore, the treaty is dissolved by posting The South Pacific’s intent to withdraw from it. The Cabinet is the executive authority of the Coalition, and is solely responsible for executing the terms of the treaty. This means that the language of the treaty, ratified by the Assembly, allows it to be dissolved by the Cabinet. An Executive Order Is Not Necessary or Proper Petitioner’s final claim is that the Cabinet was obligated to issue an executive order in order to dissolve the TSP-Balder Treaty. This is not so, and in fact an executive order would be wholly inappropriate. The issue here is not an ambiguity in law. As provided above, there is no requirement for an Assembly vote for dissolution, and the principles of separation of powers found within the Charter place the conduct of foreign policy in the hands of the executive branch. The Cabinet did not believe there was any ambiguity on the nonexistence of a requirement to vote. As such, there would be no reason for the Cabinet to issue an executive order. Contrary to Petitioner’s apparent belief, executive orders are not necessary to interpret the law. The Cabinet has an inherent and necessary power to interpret law, because it must interpret it in order to execute it. If an executive order is required whenever an interpretation happens, then the Cabinet would not be able to act without constantly issuing executing orders. That is just absurd. The executive order authority exists for when the Cabinet believes a particular law does not adequately address an immediate and pressing issue. There is no “particular law” for the Cabinet to issue an executive order to clarify. Again, there is no requirement for a vote, which means a vote is not required. That is not an ambiguity or a hole in a particular law, and thus it would be improper for the Cabinet to issue an executive order in this instance. Conclusion Your Honor, we the undersigned believe that we have a set forth an argument that the separation of powers within the Charter require the conclusion that, absent a requirement for the Assembly to vote on the dissolution of a treaty, the Cabinet is within its foreign policy program authority to dissolve the TSP-Balder Treaty. It would be a chaotic violation of our separation of powers for the Assembly to assume all executive powers not explicitly laid out in the Charter. Our system of government consists of three branches, with checks and balances to assure no one branch usurps the core functions of any other. If the executive branch is given the responsibility to create and conduct the government’s foreign policy program, the Assembly is expressly forbidden from creating its own treaties, and there is no requirement written in law that the Assembly must vote to dissolve a treaty, then it must follow that the executive branch has the authority to dissolve a treaty itself. Petitioner may not believe this is a good idea, but the proper route to change that is not to seek to upend the separation of powers by judicial fiat, but rather to propose a constitutional amendment to require a vote in the future. Thank you, Your Honor. Signed, Drugged Monkeys, Prime Minister Roavin, Minister of Regional Affairs Sandaoguo, Minister of Foreign Affairs Awe, in his private capacity
Your honor,
It was not my initial intention to weigh in on this debate, but as delegate and voice for the game-side members nations, I must ask a tangential, but incredibly important question here. Do treaties — and, likewise declarations of war — speak for those who reside in the South Pacific, but are not active on the forums (a.k.a. the game-side community)? It is my belief that the answer to this question is undoubtedly yes, since the resources needs to protect allies come directly from the game-side community. Likewise, the game-side community — and delegate's seat — is ultimately what is being "protected" by these alliances, and the game-side nations would be the most disrupted during any military actions in the region. I ask this tangentially related question because, if — as is my belief — the game-side community has a stake in the treaty process, then there are significant ramifications for the discussion at hand. Primarily, I point to Article XII of the Charter: Quote:2. Debate on Charter amendments will last for a minimum of two weeks, unless the Council on Regional Security acknowledges that the amendment addresses an immediate and perilous issue that threatens the security of the region. Any amendment that directly affects the game-side community or its home governance, as determined by the Chair of the Assembly, must also be debated and voted upon by the game-side community. While directly discussing "Charter amendments," the intention of giving the game-side community a say over how (1) legislation effects the community and (2) their community is set up, is clear. As such, if we accept that (1) the game-side community is directly affected by treaties, and (2) that the Charter calls for the game-side community to have a hand in its governance, then the game-side community must also have a say about treaties, which directly effects the in-game region. Further, the question at hand is whether or not the Cabinet shall have sole authority to dissolve treaties. Since the game-side community has no say over who is elected to the Cabinet — unlike the delegate and Local Council — it must be concluded that the game-side community would have absolutely no say over the treaty process, if the Cabinet is given sole discretion. Such a situation is clearly in violation of the spirit of the charter, and the law. If the Assembly voted on a treaty, one could reasonably make the argument that the bulk Local Council votes would advocate for the game-side nations. However, allowing officials who are not elected by the game-side community, the sole authority to dissolve treaties and thereby reshape the in-game region, is clearly in violation of the idea of allowing the game-side community a say in their self-governance.
-tsunamy
[forum admin]
Your Honor,
I submit just a simple response to Tsunamy's brief. If the Local Council was intended to have any role in the treaty-making process, the Charter would say so explicitly, just as it explicitly lays out the Cabinet's foreign policy authority. The Local Council is a home rule body, not a house of a bicameral legislature. It is a chaos-inducing stretch to say treaties directly affect activities of the in-game community, based on a theory that the in-game community is "affected" by anything that involves NationStates players in The South Pacific. If taken to its logical conclusion, the respondent's argument would require Cabinet elections to take place in-game as well, which is clearly the opposite of what the Charter says. Thank you, Sandaoguo
Unfortunately, Sandaoguo misread what I was saying and ignored the crutch of the my argument.
I'm not arguing that the Local Council should have a place in the treaty making process or that it she be treated as a bicameral legislature. I'm arguing that the gameside nations should have some say over the process. The fact that our current Local Councillors want to hold public votes on how they shall cast their votes in the Assembly is irrelevant to my argument. Treaties — at their heart — are created to protect our gameside region. This is not some "Gameplay" activity that does not have concrete outcomes. When a region is couped, our allies are there to help restore order. Further, during a coup or other military operations within The South Pacific proper, all nations who reside in the region are affected. Therefore, those was reside in the region should have a say about how they are protected. Given discussions elsewhere, I simply suggested the Local Council block vote could be used in place of a public, RMB-based vote (which seems to be what the minister is taking issues with). I am unconcerned about what mechanisms should be put in place to give the gameside nations a voice a in this process, however, I strongly believe they should have someone or some way to represent their views.
-tsunamy
[forum admin]
I would like to point out that the Legal Question before this honorable court makes no mention of the gameside region and I believe that a ruling that makes any precedent in that regard would overstep the range of this Legal Question.
Above all else, I hope to be a decent person.
Has Been What's Next? CoA: August 2016-January 2017
Minister of Foreign Affairs: October 2019-June 2020, October 2020- February 2021
Your honor,
first, I would like to echo the sentiments of Omega. Tsunamy's question is legitimate in and of itself, and deserves to be handled in a separate legal question that he should be encouraged to submit. It does overstep the boundaries of this legal question, however - the submission of an amicus brief, a privilege granted by our gracious justice and not a right given in our laws, shall not and cannot extend or alter the original legal question as presented by the petitioner; Tsunamy's brief inadvertently does just that and would be better served in a separate LQ. Furthermore, on the matter submitted, it is my belief that the crux of the argument lies within "the greater power includes the lesser" as addressed by sandaoguo and co-signed by (amongst others) myself. Another example to the current applicability of this principle is the honorable judge's very allowance of briefs to be submitted for this legal question. The Court Procedures Act states that the High Court will "analyze the question and deliver an Opinion", with no further statement made on how this is permitted. Traditionally, justices have allowed persons other than the petitioner to submit briefs to aid in analysis. The lesser power of the justices to allow and accept these briefs is implicitly contained in the greater power to "analyze the question and deliver an Opinion", so long as no law places an explicit restriction on doing so. In other words, "the greater power includes the lesser" is the very principle by which you are permitted to consider this very sentence that I am writing. Thank you, -- Roavin ![[Image: XXPV74Y.png?1]](https://i.imgur.com/XXPV74Y.png?1)
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