HIGH COURT OF THE SOUTH PACIFIC CASE SUBMISSION I, sandaoguo, respectfully submit the following case for consideration by the High Court. I hereby state that the information within this submission is true to the best of my knowledge, and that there is no malicious intent or vexatious nature to it. I further promise to make myself available to any future questions or request from the Court in order to ensure that this case is fairly considered. REFERENCE NAME Requirements of OWL recommendations and the power of the Cabinet to override those requirements ARGUMENT The procedures for how the Delegate of the South Pacific casts their vote on proposed World Assembly resolutions are defined in the World Assembly Act. The act states in Article 1.1 that the Delegate “shall cast their vote … according to voting recommendations issued by the Office of World Assembly Legislation” (hereinafter OWL). The act in Article 1.3 grants the Cabinet the power to “override a vote on a World Assembly resolution for security and diplomatic purposes.” With the passage of the World Assembly Act, the Assembly formalized the existing OWL office, making it an executive office in its own right. Passage of the act solidified a norm that had existed since OWL was created as a sub-Ministry project: that World Assembly members in the Coalition had an inherent right in determining how the Delegate would cast their vote. This is evident not just by the Assembly passing the statute and amending the Charter, but by the World Assembly Act’s wording itself. Article 1.2 shows that the default way the Delegate will cast their vote is by “the overall vote of all World Assembly nations,” indicating that if nothing else, South Pacifican World Assembly members have a base right to determine how the Delegate will vote. Under Article 3.1, the Assembly has delegated to OWL the power to “determine the medium for voting on proposed World Assembly resolutions.” Pursuant to that power, OWL has published those rules and regulations on the NationStates website (https://www.nationstates.net/page=dispatch/id=1336202). In these rules, OWL states that “when OWL staff detect a submitted or prepare-to-submit resolution proposal, they WILL post a notification … along with instructions on how to cast your vote” (emphasis added). Further in the rules, OWL states that “OWL votes WILL decide how the Delegate will vote and what OWL’s recommendation will advise other nations when the resolution is brought up to a vote in the WA.” In summary, the rules make two things very clear: 1. OWL will post a notification and open up a voting process for submitted or “prepare-to-submit” resolutions. 2. The votes cast by South Pacifican World Assembly members determine how to the Delegate will vote and what recommendation OWL will send to all other nations about how to vote. Any plain reading of the rules and regulations promulgated by OWL will lead an average person to believe that South Pacifican World Assembly members will be able to vote on every resolution submitted to the World Assembly, and that their vote will be determinative of both the Delegate’s vote and OWL’s recommendation to all other voters. Legally, these rules and regulations are binding under the World Assembly Act. For legal construction purposes, the “recommendations issued by the Office of World Assembly Legislation” are determined by the rules OWL has promulgated, which state South Pacifican World Assembly members will get to vote on what the recommendation will be. A recommendation can't be issued without a vote on what the recommendation will be, under OWL rules. The alternative would mean that OWL could completely ignore their rules and issue recommendations arbitrarily, which is not consistent with the clear intent of the law or democracy itself. With that being said, the rules OWL has promulgated do not state that the notification, voting, and recommendation process can or will be skipped. Even in cases where the Cabinet uses their Article 1.2 powers under the World Assembly Act, OWL still goes through with the full process, though their recommendation is ultimately determined by the Cabinet. The Cabinet’s power, however, is limited to “overriding a vote on a World Assembly resolution." The World Assembly Act doesn’t grant the Cabinet the power to override, or otherwise stop or prevent, the recommendation process itself. No matter what, under the current rules OWL has determined, resolutions will be put up and go through the recommendation voting process, so that the voices of South Pacifican World Assembly members can be heard. If the Cabinet issues an order otherwise, it would have no legal basis. Therefore, I believe the answers to the legal questions posed here are: 1. Under currently promulgated rules, OWL must post a notification for all submitted resolutions or prepare-to-submit resolutions, and go through the defined recommendation voting process. 2. The Cabinet’s power to override a vote on a World Assembly resolution for security of diplomatic purposes does not include the power to stop or prevent the notice and recommendation voting process OWL has promulgated. REQUEST 1. Does the World Assembly Act and rules promulgated by OWL pursuant to the act require OWL to post notice and go through the recommendation voting process on every resolution submitted? 2. Does the Cabinet's power to override a vote on a World Assembly resolution include the power to stop or prevent the notice and recommendation process OWL has promulgated? Submitted to the High Court of the South Pacific

(This post was last modified: 07-10-2021, 08:08 PM by Kris Kringle. Edit Reason: [Chief Justice Edit] Added the Docket Number. )

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HIGH COURT OF THE SOUTH PACIFIC [2105.HQ] REQUIREMENTS OF OWL RECOMMENDATIONS AND CABINET OVERRIDE POWERS SUBMISSION 10 JULY 2021 Notice is given that this submission has been received by the High Court and has been assigned all the necessary identifying information as follows: DOCKET NUMBER 2105.HQ REFERENCE NAME Requirements of OWL Recommendations and Cabinet Override Powers QUESTION Does the World Assembly Act and rules promulgated by OWL pursuant to the act require OWL to post notice and go through the recommendation voting process on every resolution submitted? Does the Cabinet's power to override a vote on a World Assembly resolution include the power to stop or prevent the notice and recommendation process OWL has promulgated? The petitioner and other interested parties are invited to explain the necessity of a decision on this matter no later than 12 July 2021 10:00 UTC, but the Court reserves the right to make a determination before then. Briefs Amicus Curiae on the preferred eventual outcome of this case are not required at this time. 2105.HQ.NR | Issued 10 July 2021

Former Delegate of the South Pacific
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Your Honors,

These questions are necessary to answer due to the ambiguities caused by the Assembly's delegation of rule-making authority to OWL itself. Because these rules are not debated and ratified by the Assembly, there's no legislative history to answer questions of their intended meaning. OWL's currently rules state that they "will" hold the recommendation votes, and if that's the case and these votes aren't held, there's a question of if legal or political remedy is available. I don't believe a plaintiff can seek legal remedy in the Court, such as an order for OWL to begin the recommendation vote process on a resolution, without first having a clear legal understanding of if OWL's self-promulgated rules actually mandate that process for every resolution.

For the second part of this legal questions, I believe it is necessary for the Court to reach a decision due to the ambiguity of what overriding "a vote on a World Assembly resolution" means. A Cabinet that would rather stymie debate on a resolution they have a position on, but would rather avoid publicly issuing an override for political reasons, could attempt to use their power to stop the recommendation voting process in the first place. That way they would avoid needing to override the recommendation if it goes the opposite direction of their preference. Although I believe the meaning is clear, the clause in question doesn't use the same type of wording as other parts of the World Assembly Act -- i.e. doesn't say the Cabinet overrides an OWL recommendation, to match all other clauses that discuss the Delegate's vote in terms of OWL's recommendation -- which can raise abusable ambiguities if not legally clarified.

Thank you.

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HIGH COURT OF THE SOUTH PACIFIC [2105.HQ] REQUIREMENTS OF OWL RECOMMENDATIONS AND CABINET OVERRIDE POWERS SUBMISSION 10 JULY 2021 | JUSTICIABILITY 11 JULY 2021 Whereas this Court has been asked to exercise the judicial power vested in it by Article VIII of the Charter of the South Pacific, it is resolved as follows: DETERMINATION OF JUSTICIABILITY This case is found justiciable and shall be duly considered under all designations assigned by document 2105.HQ.NR. SUBMISSION OF BRIEFS AMICUS CURIAE Interested parties may submit briefs amicus curiae to argue their views on the whole or a part of this case no later than 19 July 2021 10:00 UTC, and shall thereafter be liable to answer any questions that the Court may have in relation to their brief. SUBMISSION OF REQUESTS FOR RECUSAL Interested parties may request the recusal of the Chief Justice or any Associate Justice no later than 15 July 2021 10:00 UTC. Any such request should provide clear reasons to support the requested recusal and explain the possible negative impact of a failure to recuse. RETENTION OF RIGHTS The Court retains the right to consult with, and request further testimony and evidence from, government institutions and other third parties as necessary to adequately exercise its sole right to issue an opinion on this case. It is so ordered. 2105.HQ.DJ | Issued 11 July 2021

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:
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HIGH COURT OF THE SOUTH PACIFIC [2105.HQ] REQUIREMENTS OF OWL RECOMMENDATIONS AND CABINET OVERRIDE POWERS SUBMISSION 10 JULY 2021 | PROBABLE CAUSE 11 JULY 2021 Whereas this Court is empowered by Article 3, Section 5 of the Judicial Act to request evidence, information or opinions, it is requested as follows: Dispatch Discussion / Voting Instructions | OWL (hereafter the dispatch) outlines the process through which South Pacificans may participate in the Office of World Assembly Legislation (OWL)'s recommendation process. In particular the dispatch indicates when OWL staff will open the recommendation process for any given proposal. The dispatch, however, is formatted in the form of a guide, its content apparently aimed at orienting nations rather than merely setting standards. Given the above, the following question is asked to the Director of the Office of World Assembly Legislation (OWL): What value do you abscribe to the dispatch? Is it meant to be normative and, in that context, outline the expectations to which you hold OWL staff? Or is it meant to be an only informative document that merely provides a general outline of the recommendation process without setting any binding expectations? 2105.HQ.CO | Issued 13 July 2021

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.

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(This post was last modified: 07-14-2021, 09:57 AM by Kris Kringle.)

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Your Honors,

The dispatch in question is, to my knowledge, solely intended to provide an easily accessible gameside outline on voter eligibility and basic information that must be present on a ballot in order for it to be counted, with no binding character due to its abridged nature.

Instead, I would like to refer the Court to OWL's Internal Procedure Guide (referenced in the Staff Application), which describes the operational rules of OWL, including vote-opening and recommendation-writing, in great detail. Furthermore, it may be important for the question of whether to vote on every submitted proposal that there is a Proposals Monitoring Guide for staff members, which mentions a proposal's quality as a criteria for initiating the vote opening process on it. I would more expect staff to follow these two documents in any case of discrepancies between the dispatch in question and them, and they, rather than the dispatch, would be my go-to point of reference when determining what I expect of staff, despite them also taking on a guide-like character.

To briefly sum that up, I'd see the "Discussion / Voting Instructions | OWL" dispatch as more of a simplified, non-binding version of the internal guides to help nations get an idea of how they can vote without having them read the full multi-page Internal Procedure Guide, which I'd believe to be the prime source of expectations to set for staff.

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Your Honors,

Just very briefly, I would like to address the issue of an "Internal Procedure Guide" being the binding regulations versus OWL's public dispatches. While internal standard operating procedures may describe to OWL staff what they should be doing, they can't be considered the "law" as far as promulgating regulations go. A fundamental aspect of democracy is the rule of law, and in order to have that, laws must be public and accessible. In the Court's investigation on this matter, then, I would argue that the Court must weigh what OWL has promulgated publicly to members of the Coalition over any internal SOPs when determining what's the "law."

Thank you

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Your Honors, 

It would seem the Internal Procedure Guide referenced by Director anjo is in fact public, after all it is listed in the public OWL applications thread as a way to "learn[...] even more about the specifics of OWL staff members' responsibilities" as stated by Director anjo. Therefore, I believe the basis of the argument by which Sandaoguo attempts to disregard it to be factually inaccurate. 

If Sandaoguo's argument about about the prominence of placement of the Internal Procedure Guide relative to the referenced Dispatch, then perhaps there could be a case made to prefer the Dispatch. However, I believe such a determination would involve too much discretion being exercised by the Court and believe it would be more appropriate for the Court to defer to the Director's stated assessment of which documents are intended to have rule-making authority. 

Thank you

Minister of Foreign Affairs
General of the South Pacific Special Forces
Ambassador to Balder
Former Prime Minister and Minister of Defense

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The Court would welcome, if the public is so inclined, further arguments on the matter of the normative nature of documents and the role of visibility and ease of access on the relative normative value of related documents.

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

(This post was last modified: 07-14-2021, 09:25 PM by Kris Kringle.)

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Your Honors,

As one of the founding staff of OWL, the author of the majority of the office's Internal Procedure Guide, and a former Director, I believe I may be able to provide some insight into these questions.

For the first part of this legal question, and to develop upon Anjo's response the Court's request -- In drafting the Internal Procedure Guide, I did not view it as legally binding, but rather as a reference document (hence "guide") for the ideal operation of the office. (It is because of this informality that the terms "will", "are responsible for", "should", etc., which have distinct meanings in a legal setting, are interspersed throughout the document and used relatively interchangeably.)

EDIT: Additionally, in response to HumanSanity and Sandaoguo's submissions above -- This is why the Internal Procedure Guide was not widely promulgated. It was never meant to be interpreted as a binding legal document. It would be absurd to suggest that, therefore, the public-facing, even-more-informal Voting Instructions dispatch is the "law". No -- neither is the law; OWL never intended to create legally binding regulations. I will justify this assertion in the continuation of my brief below.

Many government institutions have such reference materials, which we would not construe as legally binding: for example, the Minister of Media may promulgate an outline for their ministry stating that "a Southern Journal issue WILL be published once a week", and indeed, the Ministry is legally responsible for "the regular publication of public media" (Charter, VI(10)), but we do not suggest that a citizen could seek legal recourse if the Ministry failed to publish a weekly issue. The Minister would certainly be failing their campaign promises, but those -- even turned into internal standards -- are not binding.

I do not believe that the "rule-making authority" the Assembly has delegated to OWL through the World Assembly Act is substantially different from the rule-making authority the Assembly delegates to the ministries through the Charter. The petitioner frames OWL's internal standards as if they were legislation, but they are in fact identical in form to the internal rules in the Ministry of Defence that create the Tidal Force, or the internal rules in the Ministry of Engagement that provide for the upkeep of the TSP Wiki Encyclopedia. For none of these internal rules is legal or political remedy considered. By deciding that "the Office of World Assembly Legislation shall determine the medium for voting on proposed World Assembly resolutions", the World Assembly Act is not delegating to OWL the ability to instantiate new laws of its own accord; rather, it is determining that the nature of OWL voting procedure is a matter best left up to non-legal internal standards instead of legislation.

Furthermore, in OWL, the Internal Procedure Guide is meant to demonstrate that the Office's goal is to provide a voting procedure and recommendation on every proposal; however, the World Assembly Act never makes such a requirement. Indeed, the Act even provides a distinct process for the situation in which OWL does not provide a recommendation: "In the absence of a recommendation, the Delegate shall vote on proposed World Assembly resolutions according to the overall vote of all World Assembly nations in the South Pacific" (W.A. Act, 1(2)). The inclusion of this clause indicates that the absence of an OWL recommendation is, in fact, meant to be legally possible.

I therefore believe that while not doing so may constitute failing its own goals, OWL is nevertheless not legally bound to post notice and go through the recommendation voting process on every resolution submitted.
 

---

As for the second part of the question: The petitioner wonders what exactly the World Assembly Act's use of "overriding a vote" means, and whether it is the same as or distinct from "overriding the recommendation." If the former, the Cabinet may only interfere once OWL is writing its recommendation; if the latter, the Cabinet can interfere to prevent the public collection of opinions from even being initiated. The OWL Internal Procedure Guide provides ample evidence that OWL's architects intended it to be the former, despite the confusion later introduced by vague wording in the World Assembly Act. Consider the following from the Guide:
 

On such proposals, the Cabinet may decide to overrule the normal vote in order to make the best determination for the region. If they do so, a Cabinet member must let OWL staff and the Delegate know and provide a public statement to be included in the OWL recommendation by the time the proposal goes to the voting floor.

[...]

This recommendation must follow the majority vote of South Pacifican WA members, though it may be overruled in exceptional circumstances, such as if the Cabinet makes a special determination.

In the first excerpt, the Guide uses the "overrule a vote" wording, but then goes on to explain that doing so specifically involves the Cabinet altering the recommendation -- i.e., overriding the recommendation. This interpretation is confirmed in the second excerpt, where, referring to the same process, the Guide explicitly says "it [the recommendation] may be overruled" (not that the OWL vote may be prevented!). Therefore, we can conclude clearly OWL's Cabinet Override process is intended to operate as follows: the South Pacifican public votes, a recommendation is prepared by OWL, but then the Cabinet orders OWL to alter the recommendation prior to publication (and therefore also alters the Delegate vote). In other words, the Cabinet can only interfere with OWL's recommendation, not wholesale prevent a vote. "Override a vote" means "override the result of a vote", not "override the creation of a vote."

This interpretation is what I and other architects believed we were setting up when we wrote the Procedure Guide and established OWL. It is also the way subsequent OWL staff have viewed the system as working. On security-sensitive votes, the OWL Director has often checked in with the Cabinet about whether they intend to use an override; this has, to my knowledge, never been done before the OWL vote is put up, but always afterwards, when staff are writing the recommendation. The World Assembly Act, written to encode a basic outline of the already-existing OWL system, presumably did not mean to change this one detail when it preserved everything else about the OWL system intact.

I therefore believe that the Cabinet's power to override a vote on a World Assembly resolution does not include the power to stop or prevent the notice and recommendation process OWL has promulgated, though it does include the power to alter the recommendation.

~ Aumeltopia ~

Raccoons are bandits! First they steal your food . . . and then your heart/identity!

(This post was last modified: 07-14-2021, 10:53 PM by Somyrion.)

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