| [DISCUSSION] Persona Non Grata Act |
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In the discussion on the judicial review of regional proscriptions thread (http://tspforums.xyz/thread-6594.html) and as heard on the discord channels, it occurs to me that we do require strong protections, insofar as they can apply to TSP, from certain individuals.
The current Proscription Act grants certain rights to the Cabinet however, in my mind, these allow a great degree of flexibility to those who would seek to undermine our region. In the discussion thread above, I suggested maintaining the Proscription Act and also bringing in a PNG Act to further strengthen our security. A separate PNG Act would allow a further avenue for the Cabinet, together with the CRS, to maintain our democracy whilst providing limits on the rights of persona non grata. I have written an early first draft to aid discussion. I appreciate that the limits set out here will no doubt cause some to baulk, particularly (I imagine) the Chief Justice. In coming to this early draft, I have been cognisant of the criticism of the previous Proscriptions from those outwith TSP. However, I deem it almost impossible to maintain security with an open stance on these matters. The Papua New Guinea Act
An Act to allow for the exclusion of named individuals from the South Pacific Abbreviations For the purposes of this Act only, the following abbreviations are used: The Executive: the Delegate and Cabinet of the South Pacific CRS: Council on Regional Security PNG: Persona Non Grata TSP: the South Pacific Article 1 - Naming of an Individual (1) The Executive may at any time declare any individual is persona non grata. An individual may be declared non grata prior to arriving in or before reentering TSP, or if they are on ambassadorial duties from another region. (2) In naming an individual, the Executive must post within the South Pacific Forums - Executive Office a "PNG Notice". A copy of the "PNG Notice" must also be sent to the named individual within 12 hours of the Notice being on the South Pacific Forum. (3) If the individual non grata is an Ambassador from another region to the South Pacific, the "PNG Notice" must also be provided to the Delegate of the other Region within 12 hours of the Notice being posted in the South Pacific Forums. Article 2 - Contents of the Notice (1)The "PNG Notice" must: • clearly identify the named individual, • the date on which the Notice is to take effect, and • be signed by at least 3 members of the Executive. (2) The "PNG Notice" may include any further information the Executive considers appropriate, including (but not limited to) named puppets. (3) The effective date of the "PNG Notice" must be no less than 24 hours after the Notice being posted in the South Pacific Forums. Article 3 - Actions of the Executive (1) Prior to declaring an individual non grata, the Executive may consult with the CRS. Article 4 - Actions of the Persona Non Grata (1) If the individual currently resides within the South Pacific and has been declared non grata, the individual must leave the region and any other TSP jurisdiction including any offsite (e.g. discord, TSP Forums) channels within 7 days from the date of effect of the Notice. (2) The named individual may appeal the "PNG Notice" within the 7 days from the date of effect of the Notice. The appeal must be made in writing to the High Court at which time the effective date of the Notice will be stayed to allow consideration of the appeal. (3) Any individual declared non grata must not seek to join or join TSP or any area within its jurisdiction including it's off site channels whilst the Notice remains in effect. Article 5 - Actions of the Council on Regional Security (1) The CRS may nominate any individual to be declared to the Executive. The CRS may include any evidence to the Executive it deems appropriate. (2) Following a "PNG Notice" coming into effect, the CRS will allow a period of 7 days for individual non grata to leave the Region. After which, the CRS may ban, eject or banject the individual and any named puppets within the "PNG Notice" as necessary. Article 6 - Actions of the High Court (1) The High Court may consider an appeal on the grounds that the "PNG Notice" has been incorrectly served or fails to include the required information as required under Articles 1 and/or 2. (2) In determining an appeal the High Court may quash or uphold the "PNG Notice". (3) The High Court also has the authority to correct and reissue a "PNG Notice", including the date of effect. In correcting a PNG Notice, the Court upholds the Notice subject to the changes made. Article 7 - Rescinding a PNG Notice (1) The Executive may rescind a "PNG Notice" at any time. In rescinding the "PNG Notice", The Executive must post a retraction in the South Pacific Forum - Executive Office and inform the individual concerned. The retraction must be signed by at least 3 members of the Executive. (2) The Assembly may compel the Executive to rescind a "PNG Notice" by means of a vote in which at least 60% of the Assembly vote in favour of rescinding the Notice. Amended Article 1(1) to reflect @Nat 's concerns
Hi Beepee, I have a few questions so I may understand your proposal better before I comment:
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
Hi @Nat
1. Yes 2. Yes 3. Yes Although I'm open to change.... happy to work with you on it. and, I could envisage the Courts not being happy with this proposal.
Perhaps before everyone recoil with horror, let me say... I've tried to limit the ability of the power of Executive by requiring 3 signatories, thus it must be a majority vote. The PNG can be tempored by the legislature.
I thought about requiring a justification see at 2(2), but sometimes I envisage occasionally that wouldn't be wanted or required. Mostly it can be used if wanted. Would we necessarily want to allow an appeal and if we don't require justification on what other grounds could they appeal?
Thanks for your reply @Beepee
I currently don't think that anyone who is a good faith member of TSP should be subject to the PNG process. Only foreign representatives and new arrivals possibly should be. This is because the PNG process essentially allows the Executive unlimited ability to remove anyone for any reason. Although I do not think it would do so, the Executive could subvert the rule of law by PNGing unpopular but otherwise unremarkable individuals. I imagine the only safeguard, refusal by 60% supermajority in the Assembly, may be difficult to achieve if a person is unpopular. I am unsure why this process is necessary for new arrivals. I would like to hear your reasoning. Currently, I think it may be better to reform the Proscription Act. Perhaps the Proscription Act could be amended to allow the proscription of individuals who pose a significant threat to regional security, even if they have not carried out any actions against regional security (which, I am led to believe, is one of the issues you perceive about the current law). Further, the Proscription Act could be amended to allow for a temporary unappealable ban (say, one week) while the CRS determines if the individual poses a credible threat which would warrant a permanent proscription. Would this remove the issues you had with the Proscription Act, or are there other problems as well? As for representatives of other regions, I am not presently opposed to the usage of a PNG power on them. That is more of a foreign relations matter which falls under the purview of the Executive anyway.
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
Hi @Nat
As I said in the proscription act discussion comments, the proscription act only deals with hostile forces on a strictly limited number of points. It would take a large rewrite and even then wouldn't deal with certain issues of threat/inappropriateness of allowing someone with safety concerns into or to remain in the region (there have been a few discussions on the type of person that this could apply to I'm not going to reiterate here) A supplementary act, like a PNG act, could fill that void. I envisage the PNG would be predominantly used for external individuals, but those individuals could also be, for example, ambassadors within TSP who are within the region. In your question you said no-one here in good faith should be subject to PNG (i agree), but what about people who are not here in good faith or have become so jaded that they no longer care as to their actions? No-one who is acting in a responsible manner would be subject to PNG, but there have been instances in the past where issues have occurred which could be dealt with through a stronger piece of legislation. Whilst, yes, the Executive could use it bar unpopular players, it's not necessarily the case, and I think we need to trust the Executive to make decisions in a mature and level headed manner. (Cue the audience shouting "Oh no we cant!') Maybe we do need to provide a justification clause for a PNG, but I envisaged it being much broader than proscription and find it difficult to see how the Court would assess the justification on such a broad remit? It can be done... let me have a think....
What do you mean when you say the Court may "correct and reissue" a notice?
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
Hi Kris,
Well I was thinking that minor errors, miscalcs etc., could be corrected by the Court rather than a full quash... Let's say Beepee is declared PNG and the date the notice takes effect is down as 1 Jan 2018, when clearly it's intended to be 1 Jan 2019, that could be corrected and reissued by the court if an appeal were made. I don't envisage the Court to undertake the issuing, and I would hope the Executive could undertake the matters simply and with little fuss or need for correction. I hope that helps explain.
Ought that not to come under the discretionary powers the Chair already has?
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Hi @Seraph
Yes and no.... I think. Yes, the CoA could amend the notice to deal with typos/errors in the forum. But it would not necessarily deal with say a notification by TG, which could be used as the basis for an an appeal. If (and we might be moving away from this position) the Courts can only hear an appeal on content and following notification, I was unsure as to their powers otherwise to dismiss an appeal without an edit/correction clause. Are you thinking that clause can come out? |
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