| Retroactive vote changes on Legislator Removals |
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Formal notification of loss of legislator status would, to my thinking, prohibit good faith participation as such.
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)
For Immediate Release
29 September 2017 The Court provides notice to the general public that the ruling on Retroactive Vote Changes on Legislator Removals [HCLQ1709] will be released on 01 October 2017 at 11:00 EST. The Court will thereafter entertain questions and doubts regarding the legal reasoning expressed in its ruling, and the process it followed in the consideration of the legal question, but it will not consider questions regarding the political ramifications of the same, nor will it express opinions of a political nature on any other unrelated subject. 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
Petitioner: Farengeto
Legal Question: In the event a Legislator loses their status in the monthly activity check, should votes already cast by the now former Legislator that month be removed, in particular retroactively for already concluded votes? Amicus Curiae Briefs
Law Clerk: Griffindor13 Summary of the Ruling
It is the opinion of the Court that votes cast in good faith by a legislator in full possession of their status as such should have their votes counted in equal standing as those of other legislators. This is supported by the precedent set by When is citizenship lost [HCLQ1509] and by custom, as explained by former Chairs of the Assembly and verified by the Court. In addition, a sensible interpretation of the Charter would indicate that government was established in such a way that its operation is logical and practicable. A system in which votes are routinely removed from the record would not only be contrary to judicial and customary precedent, but also be contrary to the logical goal of predictable and understandable government.
Chair of the Assembly Farengeto has asked the Court for the second consecutive time to provide clarity on a question of law. In so doing, he has again touched on an issue of vital importance to democracy in the region. Whether a legislator has a right to have their vote counted, even after failing to meet the requirements for eligibility, is a matter that lies at the very heart of the fairness and predictability of the law as it is applicable to all members, and therefore is a worthy subject for a legal question, one which will either confirm or upend precedent from years past, hopefully to the benefit of all current and future legislators.
I
Legal and Judicial Precedent There is much that can be said about the legal precedent that is directly applicable to the present legal question. Indeed, there are fourteen years of laws to be examined, analysed and dissected, particularly regarding the subject of membership in the Assembly, an institution that has existed without interruption since the very foundation of the Coalition.
Given the need for relative brevity, however, such an examination will have to be restricted to what the present law says, and what its immediate predecessor indicated. While a full examination of citizenship law might be interesting, it is perhaps more useful to limit the examination for the mere reason that legislator status and citizenship, the latter understood as it existed following the 2013 Great Council, are more recent, and therefore more applicable to the societal and legal standards of the region as they exist today. It is thus that the Court begins with an examination of what the law as it is written today says, following the reforms of the 2016 Great Council and any amendments that have been enacted since. A. Examination of Present Law There is no single provision of law that gives explicit guidance on the consideration of votes by recently removed legislators, but there is guidance on the removal of legislators in Chapter IV, Clause 5 of the Charter: Within the first week of each calendar month, the Chair will remove legislator status from any person no longer maintaining a nation in The South Pacific, or absent for more than half of all votes finished in the previous calendar month if a minimum of two votes occurred.
While the above excerpt looks for the most part normal, there is a subtle choice of words that is worthy of a closer examination. In the excerpt, it is said that “the Chair will remove legislator status” from any legislator who has ceased to meet certain requirements. It would seem that the implication is that status is removed at that time, rather than certified as previously lost. It should also be noted that, according to Chapter IV, Clause 6 of the Charter, the Chair has the power to exercise discretion in retaining legislator status for those who have failed to meet the requirements due to the “reasonable extenuating circumstances”. This provides further indication that the loss of eligibility is separate from the loss of status, the latter which would take place at a later point in time. This begs the question of why should the Court focus this much on the issue of status removals. After all, the present legal question refers to the votes of subsequently removed legislators. To answer this, there is a need to refer to two cases of regional law. Chapter III of the Charter guarantees to all members the right to vote, except when prohibited by constitutional law. While this right is not explicitly made applicable to legislators, it is the opinion of the Court that this provision can be reasonable applied to legislators, given the nature of the Assembly and the mechanisms under which it operates. A legislator who, in full exercise of their rights, casts a vote in the Voting Chamber, would see a violation of their rights to full participation, were their vote removed after the fact. Thus, it is imperative to determine when a legislator ceases to be such, in order to determine whether it would be legitimate to remove votes after voting has concluded. This is but a preliminary examination, and so there is nothing definitive about it, but it does provide an initial clue as to the general direction in which the law points. B. Examination of Past Law In similarity to present law, there was no single provision for the issue at hand, nor was there a single rule for the removal of citizenship, but there are points to be considered, based on what Article 1, Section 2 of the 2013 Charter said: 6. If a Citizen no longer has a resident nation their citizenship will be immediately removed by the Vice Delegate. (…)
8. Citizenship will be removed if a nation has not logged into the South Pacific forums for more than 30 days and made two posts within that period. In this case there was an imperative of immediacy. Clause 6 indicated that citizenship should be “immediately removed” the moment a citizen ceased to reside in the region. In contrast, Clause 8 had no such imperative, merely noting the activity requirements to be considered and the penalty for failure to adhere to them. In spite of that, the onus was still on the proper official, in this case the Vice Delegate, to remove citizenship, rather than merely certify that it had been lost at an uncertain point in the past. In that sense, citizenship could be presumed to have been lost the moment the Vice Delegate formally certified that it had been lost, and not a moment before that. This would be logical, since otherwise speculation would be rampant regarding the exact moment in which citizenship was lost, leading to similarly rampant speculation and uncertainty on the effects of such loss in the actions committed by the allegedly former citizen, absent an official clarification of status. Just like, when spending time in Isla Nublar, it would be wise to listen to the advice of Dr Grant, when dealing with the mechanics of citizenship, it would have made sense to count on a certain official to certify the loss of citizenship. C. Judicial Precedent There is no specific guidance from the Court on the issue of votes by ineligible citizens or legislators, but there is relevant guidance that the Court has provided in the past, particularly with a pair of rulings that was issued more than two years ago, regarding the issue of the loss of citizenship. In its decision in When is citizenship lost [HCLQ1509], the Court ruled that indeed loss of eligibility and loss of status are two different conditions, and that the latter does not happen as an automatic matter upon the occurrence of the former: In the absence of any provisions for the automatic removal of citizenship in the Charter a nation remains a citizen until the manual act of the removal of citizenship takes place.
This would seem to confirm the hypothesis earlier proposed, wherein status is not lost the very moment that a member becomes ineligible for citizenship or legislator status. What is more interesting, however, is that When is citizenship lost completes the argument by addressing the issue of citizen rights and privileges in the face of the potential loss of such status: All the time that a nation is shown as a citizen they may continue to exercise all the rights and privileges that are accorded by citizenship, including standing for office and voting in elections.
This provision of the ruling does affect in a direct manner the subject matter of the present legal question. In a subsequent paragraph, the Court went even further to consider the issue of votes cast by citizens who would be considered ineligible. On that subject, it ruled that “the votes of any nations [present in the region but who] have not undergone the process of citizenship removal due to inactivity at the time of voting should be counted as valid votes”. If there was any doubt regarding the existence of precedent regarding the subject matter of this legal question, it must be discarded, for the Court has already ruled in very clear terms that votes cast by otherwise ineligible citizens should be taken as valid, since there would had been no official statement to the contrary at the time that the vote was cast. There is further confirmation of this in the ruling of Who determines citizenship [HCLQ1510], where the Court clarified which official removed citizenship, and how such a removal functioned. In an echo of its previous ruling, the Court said that absent provisions “for the automatic removal of citizenship a nation remains a citizen until the Vice-Delegate or other authorised persons remove that citizenship”. Following this excerpt, the Court went on to repeat, word for word, the previously quoted portion that a citizen may continue to exercise the rights and privileges of citizenship, including participating in elections. Who determines citizenship did not necessarily provide any new insight into the issue, particularly given the prior ruling in When is citizenship lost, but when taken together, both rulings offer a powerful statement on the view of the Court regarding the loss of citizenship, and the rights of citizens who may not be eligible anymore, but have not yet been removed from the relevant roster. In these rulings, the Court took a view that placed the onus on the relevant officials to certify that citizenship had indeed been lost, guaranteeing certain protections for citizens who might be participating in good faith in the affairs of the region, until the moment they were formally called to refrain from such participation. II
Custom and Expert Testimony It would undoubtedly easy and faster to reach a decision at this point, particularly since the judicial precedent points very clearly to a certain direction, but it is perhaps more important to take a closer look at how the matter of retroactive vote changes has been handled in the past by those who have served as Chairs of the Assembly.
A detailed examination of the administration of votes and legislator status changes, while certainly interesting in its own right, would be impractical and excessively time consuming. This is why the Court contacted the four most recent and still active individuals to have served as Chair of the Assembly, asking for their reflections on a series of questions related to the present legal question. In particular, they were asked about their administration of the legislator status process and certain hypothetical interpretations of regional law. While not all those contacted found an opportunity to provide a response, those who did offered a helpful view of their own interpretations, as affected by their experiences as Chairs of the Assembly. Former Chair Omega supported a view where a legislator could lose their status when a declaration to that effect was by the Chair. He indicated, however, that “prior to said declaration, [he] would still consider them to be a legislator”. When offering possible interpretations for the issue, Omega proposed that “things technically only matter once they are acted upon”. This should not be taken as support for any particular position, particularly since Omega was not asked to express such support, nor did he take any explicit positions in his testimony, but it does serve to highlight the point that the argument for the difference between loss of eligibility and loss of status, has been acknowledged as plausible by one with considerable experience in the administration of the Assembly. Former Chair Sandaoguo was slightly more detailed in the justification for his reasoning, referencing When is citizenship lost to suggest that the most adequate interpretation of the law, at least at this time, is that which considers the precedent set by the aforementioned ruling. In response to the possibility of an automatic loss of status, Sandaoguo referenced again the precedent of When is citizenship lost to make the case that there is a “longstanding legal understanding that these statuses are not removed until the physical act of changing masks occurs”. It is worth noting that this represents an unknowing dissent from the position expressed by Omega, who argued that an official declaration was sufficient for a loss of status, without the need to alter user masks or otherwise manage a forum account. Sandaoguo further added that, based on his experience as a Forum Administrator and as Chair of the Assembly, a scheme in which loss of eligibility supposes a loss of status, what he called an “automatic removal paradigm”, would be counterproductive and necessitate a manual revision of past votes to retroactively change tallies, motions and other substantive actions by former legislators. He argued that that “our laws should be read to reduce absurdity, rather than require it”. The Court has found no evidence that an “automatic removal paradigm” has been implemented at any point in recent history, nor has it found any evidence that vote tallies have been altered with the intention of removing the votes of former citizens or legislators. In terms of what the administrative practices of the Assembly would seem to indicate, a vote that has been validly cast cannot be retroactively invalidated, unless the individual was never a legislator in the first place, and therefore ineligible to cast any votes whatsoever. III
Opinion of the Court It may have been Montesquieu who said that government should be constituted so that one man need not be afraid of another. Indeed, a foundational principle of the Charter is the belief that government should be efficient and fair, but above all predictable and understandable. What the government does and how it operates should be accessible to all members of the region, so that its actions may be subjected to scrutiny and held accountable when necessary. Such is the only way in which democracy in the region may be upheld and strengthened.
In asking whether votes by ineligible legislators should be counted, Chair Farengeto has by extension asked whether the government should operate in a manner that is predictable and understandable to all present and future members. If the Charter mandates that votes be routinely removed, there is abundant reason to believe that there would be unpredictability and instability in the Assembly, since a vote that passed could be proven to have failed soon after, and certain members would be uncertain regarding their ability to participate. When considering the issue, the Court finds it difficult to believe that the Charter was passed by overwhelming margins with the intent of requiring, in the words of Sandaoguo, “absurdity”, nor does it believe that there was an intent to discourage members from being able to understand the workings of their government. There is abundance of evidence pointing in the opposite direction, as examined in previous sections of this ruling, both in terms of the writing of present and past law, prior judicial opinions and the administrative and practical precedent. A reading of the Charter, both as written today and as written in years past, indicates a clear difference between the loss of eligibility and the loss of status. This is hinted by the wording of Chapter IV, Clause 5, and particularly Clause 6, which indicates that the Chair may withhold removal for extenuating circumstances. This indication is repeated in the 2013 Charter, which places the onus on the Vice Delegate to remove citizenship, rather than merely certify its automatic removal. Further indications of this are the rulings of When is citizenship lost and Who determines citizenship, which point in no unclear terms towards a system in which citizenship must be formally removed by the relevant official, rather than be assumed to have lapsed at a prior and uncertain point in time. Beyond that, When is citizenship lost provides specific guidance on the issue of vote removals, clarifying that votes that were valid at the time when they were cast should continue to be considered as such, regardless of any subsequent removal of the citizen or legislator who cast them. In third but no less important place, this Court would be unwise to diminish the importance of practice and custom in the interpretation of the law, particularly by those who were specifically tasked with implementing the provision under present consideration. Former Chairs Omega and Sandaoguo both rejected the “automatic removal paradigm” in favour of what could called an explicit removal paradigm. This is not only their view today but, most importantly, how the system has been interpreted and operated since its inception following the 2016 Great Council. A legislator who casts a vote in good faith, under the assumption that they remain in full possession of their status, is protected by the provisions of both Chapter III and Chapter IV of the Charter. Where the Court to rule that votes by former legislators should be discounted, not only would it overturn important judicial and administrative precedent, but it would also unfairly punish legislators and encourage disenfranchisement in the Assembly, promoting uncertainty and introducing absurdity into a process that should operate in the exact opposite way. While the Court recognises the drawbacks of allowing votes from legislators who might evidently fail to remain qualified for their status, it is of the opinion that the onus is on the Chair of the Assembly to implement a review system that is predictable and understandable, so that removals can be effected in a timely manner, without acting to the detriment of those who should enjoy the full rights of membership, one of which is the right to have their vote counted in equal standing as those of all other legislators. It is so ordered.
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 |
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