| [HCRR1804] Opinion draft |
HIGH COURT OF THE SOUTH PACIFIC
- HCRR1804 - REVIEW OF THE CERTIFICATION OF THE NOVEMBER 2018 LOCAL COUNCIL ELECTION Do the actions of Technolandia cast doubt on the validity of the election, and what remedy is available if so? XX DECEMBER 2018 Justice SANDAOGUO delivered the Opinion, signed also by _____ ----- Summary of the Opinion The Court finds that the certification of the November 2018 Local Council election is valid and thus request for remedy is denied. In reaching this conclusion, the Court considered that the Local Council Elections Law does not prohibit the use of seemingly underhanded political behavior, and that no other criminal or civil laws applicable to the Local Council have been violated. Additionally, the Court finds that the Election Commission does not have jurisdiction to settle election-related disputes under the Local Council Elections Law, and absent such an authorization, requests for remedy in relation to Local Council elections must be made to the High Court or settled by the Local Council itself. Furthermore, the Court finds that even if defamation was a crime at the time, Technolandia's claims are not defamatory. As such, further consideration on the necessity of a new election is moot. ----- I. Jurisdictional Concerns The first task of this Court, in any case before it, is to consider questions of jurisdiction. Who has the authority to remedy a wrong? Before the merits of a case can be heard by the Court, we issue a declaration of justiciability, part of which is finding that the Court has jurisdiction over the case or controversy in question. We did so here, and now a more thorough explanation of our decision is warranted. This is the first case challenging the electoral process of the Local Council. The relationship between the forum-based and game-based communities of the Coalition can be complicated, but generally the Charter in Article V.2 lays out that the Local Council “is entitled to self-administration within its jurisdiction on local issues.” This is not without limitations. No law or regulation passed by the Local Council may contradict the Charter or a constitutional law passed by the Assembly. The election of Local Councillors decidedly is a local issue. Prior to the passage of the Self-Administration Clause, Local Council elections were regulated by the Elections Act, a constitutional law duly passed by the Assembly. However, on June 12, 2017, the Assembly repealed these regulations, leaving the determination of time, manner, and term lengths to the Local Council itself. Subsequently, the Local Council passed its own Elections Law. While there are many differences between the Assembly’s Elections Act and the Local Council’s Elections Law, there is a critical difference in the powers assigned to the Election Commission. In Cabinet, Assembly, and Delegate elections, regulated under the Elections Act, the Election Commission is empowered with original jurisdiction over election-related disputes (Article 1.5). This provision does not exist within the Local Council’s Elections Law, which only tasks the Election Commission with organizing the technical aspects of elections. While the Local Council seems to have chosen to piggy-back off the pre-existing Election Commission infrastructure, we cannot say that the Local Council intended the Election Commission to have all the same power and authority it has under the Elections Act. When the Local Council was given the right to self-administration, it was given the right to make those decisions explicitly for itself. In this case, it has not chosen explicitly to give the Election Commission original jurisdiction over Local Council election-related disputes. Indeed, while the Election Commission did not err in certifying the results of the November 2018 election, they are not empowered with any legal authority to do anything other than count the ballots and declare who won according to the rules set forth within the Local Council Elections Law. To the extent that the Election Commission published notice that Technolandia did not break any NationStates rules, there is no legal force behind it beyond the Election Commission stating its opinion. In other words, had the Election Commission determined that Technolandia violated laws that cast into doubt the results of the election, they would have had no legal authority to issue a remedy, be that disqualifying Technolandia or restarting the elections altogether. Absent the Local Council explicitly providing the Election Commission with jurisdiction to settle election-related disputes, we find that there are only two venues to settle such disputes under current law. The first is the Local Council itself passing a law or regulation settling the dispute. The second is a Legal Question submitted with the High Court, which has final jurisdiction for the entire Coalition over any legal dispute covered under Article VIII.4 and Article VIII.5 of the Charter. II. Claims of Malfeasance The central claim against Technolandia is that they libelously misrepresented comments posted by Auphelia. Libel, or defamation more broadly, is the pillar upon which the argument of election illegitimacy rests, and so we must consider two things: 1. Is the telegram sent by Technolandia libelous? In other words, are the claims within the telegram deceitful, false, and made with actual malice, and did Auphelia suffer demonstrable harm? 2. Is defamation prima facie grounds for the nullification of an election? Technolandia sent out a telegram to Auphelia voters making the claim that Auphelia has a posting history “which includes numerous references to the Holocaust, specifically death camps and gas chambers, that many nations find disturbing.” A selection of these posts is included in the evidence submitted by Election Commissioner Pencil Sharpener’s 2. An overview of these posts does show that Auphelia did use references to gas chambers, death camps, labor camps, re-education camps, and concentration camps. Given that, it is difficult to argue that Technolandia has made facially false claims about Auphelia’s posting content. The only defense given, by concerned party Belschaft, is that the comments were selectively edited and taken out of context. After a review of the posts in question, the Court must disagree. While certain posts were not quoted in full, we do not conclude that the abbreviated quotations change the context or in any way alter the meaning of the original posts. For example, Auphelia made the following post on 3/18/2017: “Erm . . . I hate to break it to you but Africa is a continent. And if you are going to keep doing this, Knowhere is a great place . . . . pristine white beaches . . . . full spa facilities . . . *whispers under breath* . . .. gas chambers . . . .” The quote of this post was certainly shortened, but not in a way that changed its meaning: “Knowhere is a great place . . . . pristine white beaches . . . . full spa facilities . . . *whispers under breath* . . .. gas chambers . . . .” Are these posts taken out of context? There appears to have been a roleplaying plot line in Knowhere that included gas chambers, and that context is not available from Technolandia’s claims. That much is true. However, this is not context that fundamentally changes how reasonable people may perceive the posts. Indeed, the use of Holocaust references in jokes, which is what the posts most closely resemble, is often considered offensive no matter the context in which they are made. Reasonable people can disagree on how offensive Auphelia’s posts are, the Court is not passing judgement one way or the other. But the fact that there can be disagreement here means that Technolandia’s opinion that the posts are offensive, and thus Auphelia not a suitable candidate for Local Council, is a legitimate point of view. Defamation does not mean simply that someone says something that harms another’s reputation. To be defamation, the defamatory comment must be actually false, said with actual knowledge that it is false, and actually harm the reputation of the other people in measurable ways. While the loss of an election may be measurable, the primary requirement of defamation is not met here. Furthermore, defamation was not itself a crime in any part of The South Pacific when the claims were made. If it was, and defamation did indeed occur, the Court might entertain a request to nullify an election based upon the commission of a serious crime. However, that bar is still a high one to meet. While we have no need to delve into the merits in this case, given that we have ruled out defamation, there are many questions that make this Legal Question possibly impossible to answer. How can the Court determine if an electoral outcome was determined by defamatory comments? How can the Court nullify certain votes, but not others? When does a defamation case become important enough to nullify an election? Do we nullify every election in which a defamatory claim is made, regardless of the severity of the claim? Perhaps some questions have no legally certain answer. Alas, this case is rather simple: Technolandia’s comments do not qualify as defamation, and thus there is nothing else to consider.
I would suggest amending this paragraph as follows:
Quote:Furthermore, defamation was not itself a crime in any part of The South Pacific when the claims were made. In fact, while the Court has considered its own definition of defamation, for the purposes of this case, this should not be considered to be the authoritative definition of the concept, nor should it be considered a ruling on the likelihood that defamation may have taken place under the definition of the recently codified crime of defamation. If it was defamation was a crime, and if defamation did indeed occur, the Court might entertain consider hearing arugments on a request to nullify an election based upon the commission of a serious crime. However, that bar is still a high one to meet. Otherwise I would be comfortable with the draft ruling, and would sign off on it. 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
That sounds good to me! I’ll update the draft when I get home from work
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