| Legal Question (interpret the meaning and application of a law) [1908] Legality of Ejections for Conduct Violations |
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Your Honour
I would like to submit the following Legal Question Article III, Section 3 of the Charter states: Quote:(3) No member, who had joined the region in good faith, may be banned or ejected from the in-game region without the due process of law. Article 2, Section 2 of the Criminal Code states: Quote:(2) Conduct violations are punishable by immediate ejection and banishment from the region, albeit punished parties may appeal this decision to the High Court. In most cases, nations that appeal the decision and apologize should expect to have their ban lifted. The question I pose before this Court is whether Article 2, Section 2 of the Criminal Code conflicts with Article III, Section 3 of the Charter, and if that Section of the Criminal Code should be deemed unconstitutional, should it be found to violate the right to due process.
For reference, I also submit before this Court the relevant discussion on Discord
Quote:daily nakari Yesterday at 10:49 PM
![[Image: BYEo2lg.png]](https://i.imgur.com/BYEo2lg.png) Determination of Justiciability Whereas Awesomiasa has requested this Court that a review be conducted on certain issues related to the interpretation of the law with the following question:
The question I pose before this Court is whether Article 2, Section 2 of the Criminal Code conflicts with Article III, Section 3 of the Charter, and if that Section of the Criminal Code should be deemed unconstitutional, should it be found to violate the right to due process.
Whereas this Court has conducted a careful review of the merits of such a request on the basis of its legal necessity and potential to impact present and future policies.
It is resolved with respect to this Legal Question as follows:
Kris Kringle Chief Justice 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 Your Honours, below is my amicus curiae brief for Legality of ejections for conduct violations [HCLQ1908]. I am willing to answer any questions the Court may have regarding this brief.
I) Background 1. Mechanism of ejection and banishment According to Designation of constitutional laws [HCLQ1805], the literal and common sense meaning of a law must prevail unless this "produces an absurdity or there are multiple possible meanings." The section of law under question is Article 2, Section 2 of the Criminal Code: "Conduct violations are punishable by immediate ejection and banishment from the region, albeit punished parties may appeal this decision to the High Court. In most cases, nations that appeal the decision and apologize should expect to have their ban lifted." The literal interpretation is that conduct violations result in ejection and banishment prior to any judicial process occurring since "parties may appeal this decision to the High Court." This begs the question of who determines when conduct violations have occurred. The Regional Officers Act (4.1) explicitly states that possession of the "border control power does not grant any authority to eject or ban nations from the region when not authorized by security or criminal laws." While the Criminal Code does not explicitly authorise border control officers to determine if a conduct violation exists and ban the nation accordingly, this would seem to be its intention. As such, this brief shall presume that this is the case. 2. Provisions within the Charter Article 3, Section 3 of the Charter states: "No member, who had joined the region in good faith, may be banned or ejected from the in-game region without due process of the law." It is immediately apparent that any inconsistency between the aforementioned sections of the Charter and the Criminal Code would only apply insofar as the individual concerned was a "member who had joined the region in good faith." The definition of membership and good faith has been covered comprehensively in Members of the Coalition [HCLQ1708] and so this brief will not discuss that particular area of case law. In regards to good faith members, the plain reading of the law is that they may not be banned or ejected without due process. The Court, in Review of the ban on Malayan Singapura [HCRR1801], commented that due process relating to ejection and banishment is "within the context of a series of procedures and guarantees that ensure expulsions are not arbitrary, can be reasonably contested and are consistent with the general values of the Charter." According to the Judicial Act (4.3), this case law definition of due process has the "full force of law." Therefore, a three-legged due process test should be applied to any law which enables expulsions to see if it satisfies the requirements of the Charter:
II) Constitutional tests for explusions
1. Arbitrariness In Citizenship and the Bill of Rights [HCLQ1512], the Court found that determinations would violate a provision against arbitrariness or discrimination if "the reasons cannot be justified." The laws underlying this decision have been significantly changed, which revokes the status of the decision as having the full force of law (Judicial Act 4.3). Nonetheless, the definition of arbitrariness used in that decision seems to be a reasonable one to continue to employ. Since conduct violations mean "breaking in-game NationStates rules" (Criminal Code 1.13), the reason for ejecting or banning an individual can be fully justified by referring to the extensive enumerated provisions on the NationStates site. Provided the border control officer can give such justification, actions under Article 2, Section 2 of the Criminal Code would not be considered arbitrary and are therefore consistent with the Charter in regards to arbitariness. 2. Reasonable Contestability While there is no previous judicial definition of reasonable contestability, the Court in Review of the ban on Malayan Singapura [HCRR1801] did state that "it is fairly confident in its belief that [...] holding a hearing before a troll can be banned [...] is not required." Since the Court in the same ruling stated that an ejection or ban must be reasonably contestable, this suggests that an ejection or ban may still be reasonably contestable even if there is no ability for judicial review prior to the action taking place. Otherwise, the Court could not have made the aforementioned statement without contradicting itself. With this in mind, the timing of the court review of actions under Article 2, Section 2 of the Criminal Code is immaterial and, therefore, such actions most definitely qualify as being reasonably contestable given they can be contested by appeal to the High Court. This means that the law in question is consistent with the Charter on the point of reasonable contestability. 3. Consistency with the Charter's values In Review of the ban on Malayan Singapura [HCRR1801], the Court drew upon the example of criminal law and trial process to find that the Local Council must "provide certain written guidelines, and establish a certain written procedure, for how Article 3 of the Border Control Act will be implemented. [...] This would be compliant with the overall values of the Charter." Given the Court applied an example from one arm of government to another, it would seem that it intended the core finding to be applicable across the entirety of the government. This core finding regarding the Charter's values was articulated well earlier in the ruling for that case: "there [must] be a reasonable and reasonably flexible definition of what could constitute [a violation of the law], and also that there [must] be a procedure for how such behaviour should be handled." It is readily apparent that conduct violations, which means "breaking in-game NationStates rules" (Criminal Code 1.13), are based upon written rules and, as such, are reasonably defined. However, the above argument on the mechanism of banishment for conduct violations (see I Part 1 of this brief) demonstrates that there is not an established written procedure for executing the border control powers conferred by Article 2, Section 2 of the Criminal Code. The question of who is entitled to execute Section 2 must be entirely inferred from the broader body of TSP law. Even then, it is not possible to ascertain how those people are to make a determination that their power is able to be executed, such as what standard of proof they are required to be satisfied with and whether they may make such a decision unilaterally or must consult with others. As such, with no established written procedure, the ejection and banishment provision in Article 2, Section 2 of the Criminal Code is not consistent with the general values of the Charter. This means it does not afford due process and is thus in conflict with Article 3, Section 3 of the Charter if and when it is employed against a good faith member. III) Conclusion Should the Court agree that ejection and banishment under Article 2, Section 2 of the Criminal Code is not entirely consistent with the third leg of due process (regarding the Charter's values), it should find that Section 2 is in conflict with Article 3, Section 3 of the Charter insofar as it is applied to good faith members. As such, the Court may void the Criminal Code or Article 2, Section 2 thereof (The Charter 8.4) or may reconcile the contradictions between the Charter and the Criminal Code (The Charter 8.5). Given the removal of the Criminal Code could have wide-ranging consequences, I urge the Court to only consider voiding Article 2, Section 2 or declaring that, until all the requirements for due process have been satisfied, the ejection and banishment provision of that section does not apply to good faith members.
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
1.) I think the phrase “who had joined the region in good faith” is important here because it’s essentially a clause saying, if it’s obvious they’re trolling just to troll, then you may eject them without due process.
That being said I hate how this court handles interpretation because not everyone thinks the same and judging what’s good faith would be inane. So instead, to make it less “corrupt”, I’d say describe the action instead of intent. Something like “no member, excluding those who had or are making the [insert whatever] universally unenjoyable, unnavigable, or profane to a people, may be banned or blah de blah” Because I think that’s where the confusion comes in, allowing boarder control to banish those who are making the game far worse than it should be, all else like election fraud and what not should be taken to court, but immediate problems require immediate solutions. 2.) Which is why I think the second rule used immediate, and is why I think just taking out that one word would do (Conduct violations are punishable by ejection and banishment from the region.) Immediately gives the sense of action, while removing immediately makes it more in line with a “we’re allowed to do this.” I think removing “immediately” would work on itself but if you want to make the legislation less psychoanalytical then the first point must also have the second point.
I would point out that the Court has already ruled on the due process requirements afforded to players banned for other violations in case of LC initiated bans of spammers and trolls, in HCRR1801 - REVIEW OF THE BAN ON MALAYAN SINGAPURA, where the Court ruled that due process that was not met in that case. The case summary:
It is the opinion of the Court that the ban on Malayan Singapura violates Article III, Section 3 of the Charter, and should be lifted. This is supported by a lack of written and publicly available posting guidelines at the time of the offending behaviour, the ambiguous and unclear nature of the warnings given, and the overall nature of the procedure employed by the Local Council. While the Local Council does have the power to expel spammers and trolls, this must follow certain procedures and guarantees, namely the public availability of written guidelines and the existence of a reasonable moderation process. Malayan Singapura was not afforded these minimal due process guarantees, as required by Article III, Section 3 of the Charter.
The Court has no reason to strike down any section of the Criminal Code. Since the Court has already outlined due process expectations for banjections for one reason, the "least amount of disruption to the intended purposes of the contradictory parts" would be to outline reasonable due process expectations for the exact same action but carried out for another reason. Legislator | Local Councilor | Aspiring TSP Curmudgeon Messages archived by the Ministry Of the Regal Executive - Bureaucratic Services
Conduct violations are defined as "breaking in-game NationStates rules" (different from banning for being a spammer or troll). We seem to judge whether conduct violations have been committed by observing if the NationStates moderators judge the behaviour to have broken the rules (as Pencil Sharpeners 2 did when it was questioned if Technolandia had committed a conduct violation).
The moderators do have rules visible on site, so at least that part is fulfilled. So I suppose the question really is "Do we count the NS onsite moderation process as due process and as reasonable?" I think we have to accept that the moderators probably have a better grip on who has broken NS rules or not than we do, and their judgement should suffice.
May it please the Court, I wish to file a short addendum to my brief in response to Nakari's brief as it presents a slightly different argument than that made previously:
(03-30-2019, 02:07 PM)Nakari Wrote: [...] So I suppose the question really is "Do we count the NS onsite moderation process as due process and as reasonable?" [...] Assuming NationStates moderation is all well and good, due process must still be established at the regional level. HCRR1801 requires that banjection procedure be written and available in order to satisfy due process (see my main amicus curiae brief above). To my knowledge, there is no written guideline (let alone a publicly-available one) which stipulates that action by NationStates moderators is sufficient proof of a conduct violation. Without a written and available process, a banjection fails the test for due process at the regional level. As such, the fine qualities of NationStates moderation is immaterial to the question at hand - they can not make up for the lack of due process at the regional level.
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
It’s not true that “there is no written guideline which stipulates that action by NationStates moderators is sufficient proof of a conduct violation.” The Criminal Code *is* the guideline.
(04-01-2019, 09:38 AM)sandaoguo Wrote: It’s not true that “there is no written guideline which stipulates that action by NationStates moderators is sufficient proof of a conduct violation.” The Criminal Code *is* the guideline. The Criminal Code states that "Conduct violations shall be defined as breaking in-game NationStates rules." Breaking the rules, not any moderator action arising from that, is the lone definition of conduct violations provided in the legislation. The law does not stipulate this region's process for determining when a conduct violation occurs, so there is in fact no written guideline which stipulates that action by NationStates moderators is sufficient proof of a conduct violation.
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
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