[2301.CN] Appointment of Pronoun to the High Court

Greetings to the Assembly.

The Final Report and Opinion of the October 2022 Judicial Selection Process was presented to the Prime Minister and disseminated to the Cabinet last month. After a discussion and a vote, and in accordance with the Judicial Act, Section 1, Clause 5, the Cabinet is pleased to present @Pronoun (Esfalsa) to the Assembly as our appointment to the High Court as Associate Justice. The opinion of the Court concerning Pronoun’s answers is presented below.

Pronoun is currently serving as the Minister of Engagement, in addition to being a Commander of the South Pacific Special Forces.

This appointment proposal has been assigned its appropriate identifying information.

— BlockBuster2K43, Deputy Chair of the Assembly

Thanks to the Cabinet for the nomination. I’ll note just to be clear that I abstained from any internal Cabinet deliberation on this matter. I’m happy to answer any and all questions from the Assembly about this nomination.

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Can the nominee’s answers to the Justice selection survey administered by the Court be shared with the Assembly?

Pronoun's Response to the Judicial Selection Survey

Personal Background

  1. Why do you wish to serve as an Associate Justice?

I am excited to have the opportunity to further engage with the Court, the judicial process, and the laws of our region as an Associate Justice. In fact, I made inquiries with the Chief Justice about the application process and began work on this application prior to the recent Cabinet announcement.

I believe that the duties of an Associate Justice mesh well with my personal interests and strengths. I have enjoyed preparing and writing amicus curiae briefs in the past, and although I will not pretend to be prolific in my appearances before the Court, I nevertheless enjoyed the process of careful, deliberate research and analysis in preparing each brief. I found it fits well with my detail-oriented personality and it is my hope that it will fit well with the role of Associate Justice as well.

  1. Do you hold any elected or appointed offices in the South Pacific or abroad? If so, please provide further detail.

I am currently an officer in the South Pacific Forces and have served in that rank since April 1, 2022. I was previously a Trainee from January 11 to 28, 2022, a Soldier from January 28 to April 1, 2022, and am currently in training to become a Commander. I also served as Minister of Defense, and thus as a member of the General Corps, from April 9, 2022 to October 16, 2022.

I also served as a Cabinet Advisor from October 16, 2022 to November 3, 2022.

Outside the scope of the Court, I am also a member of the map management team for the modern-tech Pacifica canon in our forum-based roleplay community.

  1. Do you have any judicial, legal, or other experience in the South Pacific or abroad that would qualify you to serve as an Associate Justice? If so, please provide further detail.

I do not have any additional experience.

Judicial Philosophy

  1. What role should the Court have with respect to the other branches of government?

The Court functions to ensure that the regional body of law is clear and consistent and that other branches of government (and individual actors) do not take actions in contradiction of the law. Creating and enforcing laws falls outside the scope of the Court, and responsibility for such belongs to the other branches of government.

  1. What should a judge consider when deciding the justiciability or probable cause in a case?

Our laws do not explicitly define justiciability, but they do suggest what issues the Court can and should rule on. In particular, the Charter empowers the Court to ‘clarify and interpret provisions of law’ in answer to legal questions, and the Judicial Act limits legal questions to questions seeking clarification on the meaning or applicability of the law. The language of both documents necessarily implies that there must be some ambiguity in the law for the Court to clarify or interpret. Therefore, for a case to be considered justiciable, it must seek a resolution to genuine ambiguity in the laws.

Frivolous cases, for instance, fall outside this standard since the concerns presented are not rooted in any genuine disagreement or confusion over the interpretation of the law.

Similarly, there cannot exist any ambiguity to interpret if the law or past rulings by the Court have already resolved that ambiguity. Accordingly, cases that pose previously answered questions or cases that simply seek the Court to restate provisions already established in law are not justiciable.

Finally, there must exist a sufficient legal basis for the Court to form its judicial interpretation. If no law exists to answer a particular question, that does not constitute ambiguity in the law, but rather an absence of law addressing that specific issue. It is not the role of the Court to remedy that absence, as the Court is a judicial rather than legislative entity.

  1. What should a judge consider when deciding whether to recuse from a case?

A judge should recuse themselves from a case if there exists a reasonable basis to perceive a conflict of interest or external factor that could negatively affect their ability to deliver impartial judgment. While the material fact of whether the judge’s judgment was genuinely impaired is important, the Court should seek to take a broader perspective and also avoid situations where a judge’s impartiality might reasonably be questioned even if it may not have been compromised. Ultimately, both the impartiality of the judge and the appearance of impartiality are important, so that the ruling in the case is not only fair but also earns the trust and acceptance of the public.

  1. What roles should the letter and the spirit of the law play in judicial interpretation?

The letter of the law is paramount, and rulings should conform to it wherever possible. The precise text of the law is the ultimate source of authority because it is the only source of information that has been voted on and adopted by a majority or supermajority of the Assembly. Commonly accepted understandings of the spirit or intent of a law may intuitively feel like common sense but ultimately have not been adopted through any governmental process that is legally codified or recognized.

In practice, of course, many cases brought before the Court arise due to disagreement or confusion on how to interpret the specific language of our laws. In these circumstances, it is the role of the Court to find the most reasonable and prudent interpretation of the laws, and the spirit of a law may aid the Court in this process.

The spirit of a law holds no inherent legal weight, but it may be useful to consider how the Assembly intended for a law to be interpreted when that law was adopted or amended. This interpretation is not necessarily reasonable — for instance, the intent of the Assembly can contradict constitutional law, can be rendered outdated by more recent developments, and so forth — but remains worth consideration. After all, it remains the general viewpoint of a substantial number of legislators, each of whom must undergo a vetting process and pledge to uphold the laws of the Coalition.

A special consideration arises under article VIII, section (5) of the Charter, which explicitly states that in cases where the Court seeks to reconcile contradictions between laws, it should strive to minimize disruption to the intentions behind the contradictory provisions.

  1. To what extent should a judge rely on the customary understanding of laws, judicial precedent, and amicus curiae briefs when considering cases?

The legal weight of judicial precedent is established by Article 4, Section 3 of the Judicial Act, which states that “[t]he opinion delivered for a legal question shall have the full force of law until appealed or the law upon which the opinion was based is significantly changed.” Accordingly, decisions by the Court on legal questions should be considered with equal weight to the text of the law itself.

Neither of the other two factors hold any inherent legal weight but can certainly assist in forming a judicial interpretation of the law. While both should be considered secondary to the letter of law, both are also valuable in resolving ambiguities or inconsistencies in the letter of the law.

The customary understanding of a law is often useful to understand the letter and spirit of the law. Such an understanding emerges organically, and investigating the process by which such an understanding emerged and by which it became generally accepted can yield significant insights into the intent of a law and especially how the spirit of the law is commonly understood. For instance, just as the Assembly may have certain intentions when adopting a law or amendment, it also may have certain intentions in keeping a law unchanged, suggesting that legislative intent and customary understanding coincide.

Amicus curiae briefs can offer varying perspectives on an issue. Certainly, some amici curiae have formidable skills in legal analysis of their own right, and there should be no issue with well-constructed arguments from amici curiae inspiring or influencing the reasoning of the Court. However, even amici curiae who do not present well-formed legal arguments can offer valuable contributions to the judicial process. They can, for instance, share a differing but still common customary understanding of the law, a historical perspective on the intent of a law when passed, or the practicalities and realities of the day-to-day implementation of a law.

  1. To what extent should a judge consider public opinion, friendships, and political associations when considering cases?

These factors are important to consider in evaluating potential conflicts of interest and perceptions of conflicts of interest, but outside of that context, should not affect a judge’s consideration of a case.

  1. How would you balance the need for thoroughness, clarity, and expediency when drafting rulings?

In my view, the key to balancing thoroughness, clarity, and expediency is maintaining a clear sense of the specificity of the issues at hand. The focus of the Court in drafting a decision should be on the depth, not the breadth, of analysis. Of course, the Court can and should consider broad issues as well as narrow ones provided that they are justiciable. However, the Court should be careful not to needlessly broaden issues that would otherwise be more specific.

This focus on the specific questions asked of the Court makes it easier for the assigned justice to construct a thorough and clear line of reasoning, and these two goals should be of the greatest priority. A ruling that is expedient but lacking in analytical prowess is likely to simply prompt further questions to the Court or, worse, be misinterpreted or misused.

Expediency, likewise, cannot be neglected. However, it is balanced somewhat by the power of the Court to issue temporary injunctions, which can alleviate the immediate needs of situations of genuine urgency. Maintaining a specific focus also assists with delivering rulings in a timely manner, as the Court can focus only on the issues of actual relevance.

  1. What steps should a judge take to avoid conflicts of interest in fact and by appearance?

A judge should carefully consider any prior involvement or familiarity with the parties to a case, the evidence in a case, or the laws relevant to a case; and should seek to consider how various possible rulings could impact their personal interests. Maintaining a clear picture of all potential sources of conflicts of interest is key to avoiding them both in fact and by appearance.

It is also important to be open and transparent in communication with the public on potential conflicts of interest. The best indicator of the appearance of a conflict of interest can be public comment, and judges should seek to be receptive to input from the public.

Moot Court

  1. [LUMC.03] Review of the Ban of Bail Organa

The Court finds that the ejection and ban of Bail Organa constituted an unreasonable application of Regional Message Board (RMB) moderation policies that violated the right to free expression protected by the Charter of the Coalition of the South Pacific (henceforth simply ‘the Charter’).

The right to free expression is established in Article III, Section 1 of the Charter, which states that “[a]ll members of the South Pacific will enjoy the freedoms of expression, speech, assembly, and the press, limited only by reasonable moderation policies.” In considering the applicability and impact of this right to the questions asked of the Court, three salient questions emerge: (1) whether the Local Council holds the authority to enact and enforce reasonable moderation policies; (2) whether the moderation policies enacted by the Local Council are reasonable; and (3) whether the enforcement of moderation policies by the Local Council was conducted reasonably, in accordance with those policies.

The Local Council has stated to the Court that the ejection of Bail Organa was conducted in accordance with the RMB Moderation Act; in other words, it was conducted to enforce moderation policies enacted by the Local Council. Therefore, the answer to each of the three aforementioned questions must be affirmative for these actions to be legal.

First, the Court must consider whether the Local Council holds the authority to enact and enforce reasonable moderation policies. Although Article III, Section 1 of the Charter does not establish where a ‘reasonable moderation policy’ must come from, the Charter does reference moderation policy again in Article V, Section 3 in granting the Local Council the authority to

“suppress messages on the Regional Message Board according to a standard moderation policy.” This idea was echoed in Application of the Regional Communications Act (2001.HQ), which held that “[t]he Charter clearly envisages moderation as being something […] the Local Council […] do[es].”

Notably, the Charter does not explicitly grant the Local Council the power to eject members of the Coalition. In fact, Article 2, Section 5 of the Regional Officers Act states that Local Councillors should receive “Appearance, Communications, and Polls powers,” a list from which Border Control powers are notably absent. Nevertheless, the moderation responsibilities of the Local Council are well-established, and there remains no legal prohibition against the Local Council requesting that other Regional Officers who do have Border Control powers eject a member of the Coalition to assist in those moderation duties.

Second, the Court must consider whether the moderation policies enacted by the Local Council are reasonable. While the reasonability of the entire RMB Moderation Act is outside the scope of this case, Article 2, Section 2, Sub-Section B is directly relevant to the issues at hand. On this issue, the Court established in Legality of Local Council Post Suppression Policies (2205.HQ) that “reasonable moderation policies are designed to hold the community into following a set of agreed-upon rules in order to establish good-faith discourse with fellow members of the region.” There is no available evidence to suggest that “excessive and unreasonable disturbances,” as listed in the RMB Moderation Act, runs contrary to promoting good-faith discourse. Indeed, an appeal to common sense would suggest that excessive and unreasonable disturbances would tend to disrupt good-faith discourse.

Third, the Court must consider whether the enforcement of moderation policies by the Local Council was conducted reasonably, in accordance with established moderation policies. The Court held in 2001.HQ that “a restriction on the expression of political preferences in an otherwise civil manner does not constitute a moderation policy.”

The Local Council has submitted to the Court that Bail Organa exhibited “behaviour no different to that of a spammer and a troll” and that he had spread “biases and half-truths.” However, the only evidence presented to support claims of such conduct is that “many posters [on the Regional Message Board] were calling Prime Minister Palpatine a dictator and talking of overthrowing the government.” Such discourse can clearly be considered to be an expression of political preferences. While some may consider the rhetoric voiced by many posters to be extreme, there is no available evidence to indicate that such discourse was uncivil or made in bad faith.

For these reasons, the Court finds that the ejection of Bail Organa was not conducted in accordance with any reasonable moderation policy and was a violation of the constitutionally protected freedom of expression.

  1. [LUMC.04] Camus v. Ant-Man

The Court does not find probable cause for the charge of defamation.

Defamation is defined in Article 1, Section 10 of the Criminal Code as “the communication of false or grossly misleading information about an individual to a recipient, for the purposes of damaging the standing of that individual and done so with a reckless disregard for its factual accuracy.”

The intent to damage Camus’ public standing appears to not be under dispute. Indeed, Ant-Man has opined that “[i]f the truth was enough to convince the region not to vote for [Camus], that’s not my problem,” reflecting an intent to alter the general public’s view of Camus.

However, there is insufficient evidence to support a finding of probable cause that Ant-Man disseminated “false or grossly misleading information” with a “reckless disregard for its factual accuracy.” While language inherently carries connotations that may vary from person to person, the language used by Ant-Man could be perceived by a reasonable person as accurate. This standard is the same as was referenced by the Court in Review of the Certification of the November 2018 Local Council Election (1804.HR), which referenced how the manner in which “reasonable people may perceive” statements in establishing “a legitimate point of view.”

Camus has argued that references to a “cabal” that makes “backroom deals” are demonstrably false. However, these statements arguably align with a reasonable perception of their meaning. The New Oxford American Dictionary defines a cabal as “a secret political clique or faction” and a backroom as “a place where secret, administrative, or supporting work is done.”

Both parties in this case agree that Camus engages in conversations with friends from other regions, and that the contents of such conversations are not always publicly accessible. It is not unreasonable for an individual to perceive such conversations as secret discussions occurring within a political clique. Regardless of whether such a perception is accurate in truth, it is not unreasonable for a person not privy to those discussions to form such a perception based on the information that is available to them. The crime of defamation prohibits false and grossly misleading information, but does not prohibit speculation or conjecture.

In its deliberation, therefore, the Court concluded there is not sufficient evidence to establish probable cause that Ant-Man engaged in defamation.

If no other legislator has any other questions or thoughts that they would like to contribute towards this High Court nomination. I motion this appointment to vote.

I second the motion.

We are now at a vote!

This appointment was passed by the Assembly, and the debate thread is being closed per the Legislative Procedure Act , Article 1, Section 9.