| [PASSED] Appointment of Sandaoguo to the High Court |
Dear fellow Legislators and Chairwoman of the Assembly,
After careful deliberation, the cabinet has decided to appoint Sandaoguo to serve as Associate Justice. Sandaoguo has loyally and productively served the region for over five years. This includes multiple tenures each of serving as Chair of Assembly, Minister of Foreign Affairs, a partial term as Justice of the High Court (though no cases were fully processed during said term), and as advisor or deputy to most institutions of the region. He is a long standing member of the CRS (Council on Regional Security) and as the Intel Coordinator works closely with the Minister of Military Affairs supporting security in the South Pacific. He has a proven record as a skilled legislator, being among other things the primary author of the current Charter as well as the author of the templates on which the majority of our extant diplomatic documents are based. In terms of qualifications, he brings with him from outside NationStates extensive experience with political science in his educational and occupational backgrounds and studies constitutional law as a hobby. The interview answers presented display an awareness of the various responsibilities of a judge, and an acknowledgement of the responsibilities of the Court. While he did not reference an existing case that does directly address the issue of resignations, his ruling from Resignations from the Cabinet, and his rulings in Coalition v. Cobra and Appending of Titles show a consistency with the values and views already expressed in his previous answers, and an understanding of the logic that is required to rule on cases. We unanimously believe that Sandaoguo has the necessary experience and qualifications to serve in the Court. Based on prior history, we had concerns about his temperament, his ideas on the balance between the rule of law and the desire of expediency, and (for some of us) the continued desire for political activity. The followup questions we presented did not assuage our concerns much, and in some parts even exacerbated them. Nonetheless, all but one of us agreed that these concerns are significantly mitigated by established process (principally the sign-off requirement and ultimately judicial appeal), and are overshadowed by the outstanding qualifications he otherwise will bring to the High Court. Chairwoman, with the power vested in me as Prime Minister of the Coalition, I declare that the Cabinet and Chief Justice have in good faith appointed Sandaoguo to serve as Associate Justice in accordance with per Article 1 Section 5 of the Judicial Act, and request that the corresponding assembly procedure is initiated. We are happy to address any questions from Legislators. (statement is co-authored by Escade and Kris Kringle) ![[Image: XXPV74Y.png?1]](https://i.imgur.com/XXPV74Y.png?1)
Bless up
Answers that Sandaoguo provided to Cabinet and High Court
General Information What is your forum username? Sandaoguo Are you interested in serving as Associate Justice of the High Court Yes If you answered "Yes" to the previous question, why do you want to serve as Associate Justice? I believe I had a wealth of experience and knowledge when it comes to TSP's laws, institutions, and culture, that would enhance the court's abilities to consider all sides of the cases in front of it. Do you currently hold any office or position under the Coalition that is subject to election, appointment or confirmation? Yes If you answered "Yes" to the previous question, which offices do you currently hold? CRS, which is subject to appointment & confirmation. I'm also a member of the MoFA Team and MoRA Council, neither of which I believe would count under this question, but are appointed nonetheless. Do you have any judicial or legal experience, either in the South Pacific, in other regions or in your real life? [In the South Pacific] Yes Do you have any judicial or legal experience, either in the South Pacific, in other regions or in your real life? [In other regions] No Do you have any judicial or legal experience, either in the South Pacific, in other regions or in your real life? [In real life] No If you selected "Yes" in any part of the previous question, please detail your experience. I have been the principal author of many of TSP's laws over the past 5 years. I've been involved, either as the primary party or as an amicus, of many court cases as well. In which of the following areas do you have significant experience or interest? Legislative Drafting and Debate;Foreign Policy;Culture, Media and Integration;Judicial Affairs and Legal Advocacy;Military Gameplay;World Assembly Judicial Philosophy What roles do the letter and the spirit of the law have in judicial interpretation, and with respect to each other? The letter of the law is first and foremost commanding. When the letter is unclear or leads to patent absurdity, the spirit of the law (as understood by the justices, through their own research/intuition or clear legislative history) can be used to settle a dispute. To what extent should the way in which a law is customarily implemented inform the interpretation of said law by a judge? Legislative history is easily accessible for the court, and thus the debate threads, Discord chats, etc. can be used legitimately to reach an interpretation. Additionally, I think it's reasonable for justices to look at the overall purpose of the law and use their own judgement in how the purpose can be best maintained/achieved from the interpretations in front of them. To what extent should prior rulings bind or guide the decision of cases? What is the important of judicial precedent in informing ongoing cases? In an ideal world, TSP's court would be bound by stare decisis. In the world we actually live in, unfortunately, TSP's court hasn't always been lead by the most qualified or responsible people. A highly reasoned opinion should establish precedent, and the court should be free to reconsider past opinions that aren't of great quality in their reasoning. That being said, just as in real life, times and circumstances can change, and the court ought to have the power to change its mind. Under what circumstances would custom, judicial precedent and other related sources not be useful as a means of informing a judge? I don't think a smart judge would ignore any of these. They may have differing levels of importance, but the court should consider all available information when trying to reach a conclusion. What is the importance of amicus curiae briefs, testimonies and oral argument in the handling and consideration of cases? Briefs and testimonies provide different perspectives that individual justices may not immediately consider otherwise. (We don't really have "oral arguments.") They're also important in allowing TSPers with a wealth of knowledge to provide input into a case they aren't necessarily party to, which helps the court's reputation as an institution accessible to all. What considerations should be taken into account when determining the justiciability of a case? Whether there's actually a law to enforce is an obvious one. The court also should be reluctant to hear cases that can be settled through the political process, particularly if little to no attempt has been made to do that prior to filing a case. Additionally, if the court would need to essentially craft new laws to solve the problem, they should probably reject the case. What considerations should be taken into account when deciding if a recusal from a case is appropriate? If you have a previously stated opinion on the exact question. If you were involved in the decision-making process related to the question. If you have a long-standing personal animosity towards the petitioner or defendant, that a reasonable person would cast doubt on the legitimacy of your decision. And, of course, if you stand to personally benefit from the outcome. What relative importance would you ascribe to expediency and thoroughness, respectively, when considering cases and drafting rulings? I believe this balance is dependent on the urgency of the circumstances. You don't treat a trial for treason the same way you treat one for conduct violations. Generally, the court should be as speedy as possible, and not give out extension after extension. The most serious of trials shouldn't take more than a month maximum to settle. If you're going to launch a criminal trial, you should have your case already planned. Legal questions shouldn't take long, either. Pressing questions, like those involving electoral law on the eve before an election, should be settled with great speed. However, when that's not possible, the court should be allowed to order a freeze (like a temporary restraining order in real life) to the situation while the case is handled. Extensions for briefs and testimonies in legal questions should be given rarely. Unlike trials, legal questions put our laws in doubt altogether until they're settled. That requires more speed than in criminal trials, where the law is clear, but the facts need to be sussed out. How important is it to explain within a ruling the legal, customary, and other arguments and considerations that contributed towards the decision? While extensive opinions describing the history of law, the origins of customs, etc, are fun reads for those of us interested in this stuff, I don't think they're that important. What's important is explaining in detail the actual order of the court. Opinions filled to the brim with jargon, or with a bunch of information that's interesting but not altogether necessary, might have the effect of deterring laymen from reading it altogether. Role of the Judiciary What role does the Court have with respect to keeping the balance of power between the three branches of government? The court's role is to ensure all branches are following the rule of law, rather than the rule of men. The court's powers to enforce that are inherently broad and supreme. That being said, the court isn't the legislature and cannot invent laws where none exist, just because it believes there's an issue in the balance of power or that one branch is exercising power inappropriately. What role should judges have in regional, political and governmental life? The ideal most have is that judges maintain life within the four walls of their chambers. However, this is a game and we have a relatively small player base. Judges are players with a broad range of interests, and should be allowed to be involved in other parts of the game than the court itself. Somebody who is *too* involved is a problem, because it casts doubt on their ability to judge without undue bias. That can be solved by avoiding direct decision-making roles in government. But I don't believe it's necessary to always abstain in Assembly votes, never voice an opinion on a bill or government action, etc. When a judge's activities would lead a reasonable person to question their judicial decision's legitimacy, that's a reason to recuse, but not to be a recluse. What steps should judges take to ensure they avoid conflicts of interest in fact and by impression? My answer to this question is answered in the previous, I believe. Should the High Court seek to train judicial and legal talent? Yes If you answered "Yes" to the previous question, why did you answer that way, and what steps should be taken to train talent? If you answered "No" to the previous question, why not? I think the court's clerk project can be a good way to train people in researching cases. I'm not sure how effective it will be in the long run, but having an available outlet could get people interested in paying attention. At the end of the day, just watching the court, reading the arguments, and even participating in a case yourself, are the best ways to become qualified. What role should public opinion and pressure, personal views or friendships and political alliances play in the judicial process? This may be controversial, but I think public opinion should play a role in the decision of the court. If a court's decision is going to spark the downfall of our democratic institutions, then they shouldn't make that decision, even if the law would lead them to it. TSPers need to have faith in the court as an institution, otherwise none of this works. This isn't the real world, where you need to amass an army to take down the regime. Faithlessness in the rule of law has lead to coups and takeovers countless times in NationStates. The court shouldn't reach a ruling that would violate the rule of law, but it can for example dismiss the case if it believes the political process would best address the problem. That being said, "personal views of friendships and political alliances" have no role at all in the judicial process. If you're a member of a party, you should recuse yourself from cases involved another member. If you hate parties, that is not an excuse to use the court to hamstring them. The same goes for personal relationships. As I mentioned in a previous question, if you have a long-standing personal animosity, you should probably recuse yourself. Moot Court Following a fight with the Prime Minister, a highly popular Minister of Military Affairs submitted their letter of resignation, to be effective 72 hours after it was received. After repeated calls in the Assembly for the Minister to stay, they agreed to withdraw the resignation. A newer legislator expressed his belief that the Charter does not allow resignations to be withdrawn. In response to this, the Prime Minister announced their intention to refuse the resignation. This same legislator again expressed his belief that the Charter did not allow for refusals. The resigning Minister filed the following question: Can the Prime Minister refuse a resignation by a Minister? If accepted, are resignations immediate, or can they be withdrawn? There is strong pressure on the Court to take the question and rule that resignations can be withdrawn, so that the Minister can continue serving without going through a special election. Please rule on justiciability and, as appropriate, draft a ruling or explain your denial of justiciability. This question raises a point of inquiry in the separation of powers between the Assembly and the Cabinet. It is justiciable, as the question can be answered without the need for the Court to invent new law or trample on the exclusive powers of a co-equal branch of government. Elections are no the sole responsibility of any one branch. What do our laws say about resignations? The words "resignation" and "resign" appear in our body of law a few times, but none in the context of resigning from the Cabinet. Vacancies in office are handled generally under Article 6 of the Elections Act, without the issue arising in any other law. As such, Article 6 is the commanding law of resignations. Article 6 does not explicitly mention the act of resignation, merely the rules for appointments and special elections following a vacancy. These vacancies can be caused by criminal penalty, loss of legislator status, administrative ban, etc. The source of vacancy is always controlled by some external event or law. What is clear to the Court is that there are no laws allowing or prohibiting post-dated resignations, nor regulating them whatsoever. There is a history of post-dated resignations. Farengeto resigned as Minister of Regional Affairs on June 9, 2014, but noted the resignation would not be effective until midnight that night. I resigned myself as Chair of the Assembly on December 8, 2017, effective that 4:45pm that day. While these are hardly 3-day margins, they are post-dated resignations that were never challenged. In our small sample size for resignations altogether, post-dating a resignation has never been a controversial act. The Court considers the history here as evidence of custom consistent with the law. As far as the Court can find, there has never been a case where a resigning official withdrew their resignation. That does not, in itself, mean the practice is inconsistent with our laws. Withdrawal of otherwise mandatory actions has been a common practice in the Assembly with bills, recalls, etc., so there is precedent for the overall idea. Given the absence of commanding law, the Court cannot find a reason to rule that post-dated resignations cannot be withdrawn prior to their effectiveness. A post-dated resignation allows a government official to conduct themselves with the full powers of their office until the date and time of resignation. It only makes sense that that's because the resignation doesn't legally "exist" until the effective date. Therefore, it can be withdrawn at will. If that is a situation the Assembly doesn't like, it may regulate resignations, or use the existing political vehicles to express their displeasure. As for the power of the Prime Minister to refuse a resignation, the Court finds no source of that power within our body of laws. It is beyond the realm of democracy to force a person to be in a job they no longer wish to be in. It would be a violation of a Minister's freedom of assembly if the Prime Minister can force that Minister to remain in the Cabinet following a resignation. While the Prime Minister can rhetorically say they refuse the resignation all they wish, it is the resigning Minister's decision and theirs alone. It is therefore ordered: 1. A post-dated resignation may be withdrawn at-will at any point prior to the effectiveness of the resignation. 2. The Prime Minister cannot refuse the resignation of a Cabinet minister. 3. The Minister of Military Affairs, having withdrawn their resignation prior to the effective time and date, has not resigned and is still therefore in office. Delegate Cobra attempted to overthrow the Coalition and replace it with the People's Republic of the South Pacific. Over the course of 10 days, he banjected over 1000 nations and orchestrated a smearing campaign against the Coalition, assisted by various propaganda allies on the RMB. He was finally overthrown and charged with treason under the Criminal Code. Evidence includes his successive telegrams and posts, where he denounces the Coalition and defends the People's Republic, including a post where he explicitly says "I have couped, and I don't regret it. The Coalition was a corrupt government and had to fall." There are also logs and testimonies from defectors that prove he had been planning the coup for at least two weeks before it was done. Cobra has argued that the evidence is fabricated and that he was simply enforcing the endorsement cap, but has refused to prove that the evidence was fabricated, or that any of the nations that he banjected had broken the cap. In the end he refused to participate in the trial, and his defence attorney, one of his propaganda allies, has consistently tried to derail the proceedings. Please assume that proceedings have already taken place, and that you now have to draft the ruling and verdict. The Court issues a judgement against the defendant, finding them guilty of treason under Article 1 of the Criminal Code. The Court has reviewed the evidence submitted in this case. It believes that the photographic and text evidence clearly surpasses the necessary burden of proof, establishing that it is substantially more likely than not that the defendant is guilty of treason. While the defendant's counsel has claimed the evidence is fabricated, absent actual proof of that claim, or anything other than the mere claim that would cast doubt upon the evidence, the Court believes the evidence is indeed legitimate and factual. Additionally, publicly available databases disprove the defendant's claim that the 1,000 nations ejected were in violation of the endorsement cap. Using the powers of the Delegate, defendant Cobra illegally overthrew the Coalition of the The South Pacific, in contravention of Article II of the Charter. The evidential record establishes convincingly that 1,000 nations were illegally ejected and banned from the region; that the defendant had conspired two weeks prior to commit treason; and that he publicly admitted to committing a coup d'etat. Having established the facts of this case, it is the Court's duty to represent the Coalition in determining a sentence for this high crime. The Court orders the Delegate and the Council on Regional Security to immediately ban defendant Cobra from the region, and the Forum Administration to place a permanent ban on the defendant's forum account. Should the defendant wish to request an appeal, they may issue such request through telegram to a member of the Court, or through a third party. A Local Councillor is facing criticism after they released a statement, signed with their official title, saying that a certain nation should be banned from the region. This nation took it as an official statement from the Local Council indicating that they were going to be banjected soon. The Local Councillor has contended that the statement was not meant to be official, but to clarify the issue, they have submitted the following question: Does appending one's position in Cabinet to a statement make it an official statement? Please rule on justiciability and, as appropriate, draft a ruling or explain your denial of justiciability. The Court finds this question non-justiciable. There is no real injury to be addressed here, as no bans or ejections have taken place. Additionally, the question being posed is not of true consequence, as it doesn't pertain to Local Council's or the Cabinet's legal ability to ban a player. Rather, the Court has been asked to determine simply when a statement is "official," which is not a question of law, but of politics.
I’m really excited to see Sand get chosen for a position like this. I fully support the decision and wish him luck
 .
Greetings, I am The Serres Republic.
Currently 'The Future Greatest and Most Splendid General of All TSP.' I know you all look forward to when I complete my grand quest ;P. Official ‘Most Dedicated Raider’ in all of TSP. Look at me all evil and shtuff ;P Heck I was MoFA, Now Im PM. I must be loved owo
Congrats GR!
-tsunamy
[forum admin]
Super excited about this <3
Escade ~ Positions Held in TSP ~ Delegate | Vice Delegate Minister of Regional Affairs, | Minister of Foreign Affairs | Minister of Military Affairs ~ The Sparkly One ~ My Pinterest
Glen,
Whilst I think that you are a fantastic appointment and will make a good Justice, I have concerns about your approach to the Bill of Rights. This should come as no suprise as we have often argued about how extensive it is and who it applies to. As such, I have a few questions; 1. To which players do you believe the rights outlined in Article Three of the Charter applies? 2. What is your view on unenumerated rights; does Article Three grant such? If so which rights, and to whom? 3. Where Article Three requires or prohibits a particular course of action, does this still apply if an alternative course of action is created? For example, would 3.2 (The right to a fair trial and defense against criminal accusations will not be abridged.) still apply if a law was written creating a process other than a trial? 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)
I'm going to attempt to answer these questions in a broad sense, to avoid opining on specific issues that may appear before the court in the future.
(05-12-2018, 03:47 PM)Belschaft Wrote: 1. To which players do you believe the rights outlined in Article Three of the Charter applies? I believe the controlling precedent here is HCLQ1708 "Members of the Coalition." That precedent sets forth a test for determining if somebody is a member of the Coalition. First, do they have an account on the forums or a nation in the region? Second, are they participating in the Coalition in good faith? As the opinion says, membership is not an automatic and unlimited right. There needs to be a "reasonable display of participation in good faith." That can apply to a wide selection of players in TSP. It's hard to say how the specific rights in Article 3 would apply to various situations, which I think HCLQ1708 contemplates. But it's clear that Article 3 rights apply to all members participating in good faith, and the possible future court cases would hinge on the finding of good faith. (05-12-2018, 03:47 PM)Belschaft Wrote: 2. What is your view on unenumerated rights; does Article Three grant such? If so which rights, and to whom? Article 3 doesn't provide anything about unenumerated rights, unlike the Irish or American constitutions. There's no TSP case law about unenumerated rights specifically, either. Though I believe there are many cases where the court finds that certain laws naturally imply this or that, which is the same logic as the unenumerated rights idea. We're a democracy, and oftentimes we've operated under a common law assumption, which would lend itself to the court finding that an unenumerated right would exist. I can't say what these are or to whom they apply, because implied rights tend to be created by courts when presented with specific issues. (05-12-2018, 03:47 PM)Belschaft Wrote: 3. Where Article Three requires or prohibits a particular course of action, does this still apply if an alternative course of action is created? For example, would 3.2 (The right to a fair trial and defense against criminal accusations will not be abridged.) still apply if a law was written creating a process other than a trial? Given this is a question that will likely come before the court in the future, I don't think it would be appropriate for me to make a definitive statement. The specifics of a case always matter.
(Here's the ~important post~ I was working on! I wanted to answer Bel's questions first.)
I would like to thank the Cabinet and the Chief Justice for nominating me to serve as an Associate Justice to the court. It's no secret that I've been a controversial figure for some time now, having served in many different governments and in as many capacities in TSP. If approved, I would faithfully execute my duties on the court and bring to it my studied views on TSP's laws and customs. I've been involved in the court as a regular amicus filer and have originated many Legal Questions in the past 5 years. Many of my amicus briefs were quoted or reflected in final opinions, showing my experience and knowledge within TSP's legal system niche. I'm proud of my participation in the court and TSP can look back on my Legal Questions and briefs and get a pretty good picture of what I would be like as a justice. However, I also believe in transparency and honesty. During the second round of interview questions, I honestly said that I don't believe my political career is over and that I do have ambitions of running for executive office again. The court system was changed to allow associate justices to hold other positions, but even still, it's something the Assembly should know and should judge. I do not intend to resign from the Forum Administration Team or the Council on Regional Security. I do believe I would be able to maintain a strict separation of my conflicting interests, recusing myself when appropriate or necessary. Also, the Assembly knows what they're getting with me. I'm a firebrand, not afraid to speak my mind, even if it sometimes irks the more stoic among us. The Cabinet and the Chief Justice said they had concerns about my "temperament," and I imagine that is what they talked about. I don't believe it's bad to hold strong opinions, and I think we're all generally better off expressing them out in the open, rather than being unsure of what each other really thinks. Regardless of my sometimes acerbic personality, I have never and will never violate my loyalty to The South Pacific. It's been my only region for the past 5 years and will hopefully be my only region for the next 5 years to come. I care deeply about our community, our government, and our laws. That's the kind of justice you can expect me to be. Thank you guys <3
(05-13-2018, 03:50 PM)sandaoguo Wrote:(05-12-2018, 03:47 PM)Belschaft Wrote: 3. Where Article Three requires or prohibits a particular course of action, does this still apply if an alternative course of action is created? For example, would 3.2 (The right to a fair trial and defense against criminal accusations will not be abridged.) still apply if a law was written creating a process other than a trial? Considering your willingness to comment on pretty much everything else - and your usual habit of stating your opinion come what may - this is both surprising and somewhat concerning to me. Is it the case that your uncharacteristic reticence is due to you believing that the right to a fair trial and defense against criminal accusations can be abridged by the creation of a parallel process? I remind you that you have commented on this subject before, and I simply seek to get you on the record in regards to previously expressed opinions. Minister of Media, Subversion and Sandwich Making
Associate Justice of the High Court and Senior Moderator |
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