CARE's Constitutionality

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Oni Jiutai
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CARE's Constitutionality

Post by Oni Jiutai »

A number of questions have been raised about whether CARE's makeup is constitutional. Specifically, the concern is that we allow (and indeed encourage) non-citizens to be members of the SL CARE group, with CDS citizens having a slightly different status, that we believe complies with the faction rules.

An application has been made to the the Scientific Council for their view. This seems to raise a problem, since recently the majority of the SC's judicial powers were transferred to the Courts of Common Jurisdiction.

We suggest the following way forward. If the SC is willing to hold a meeting and give their view on whether CARE's current organisation is constitutional, we will agree to regard their decision as final.

Obviously, this would require both the SC and Beathan to agree to have the question handled in such a way, but a form of binding arbitration seems the best way of resolving things sensibly.

We would leave the nature of the meeting to the SC, but obviously would like to have the opportunity to make submissions to them in some form.

I've, temporarily at least, agreed to act as Counsel to CARE on the matter, so if Beathan or anyone on the SC, or indeed anyone else, wants to get in touch to discuss, please do so - or post to this thread.
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Post by Oni Jiutai »

The fast moving CDS Constitution having overtaken my previous post (the JA having been repealed), I shall wait for further direction from the SC has to how the matter is to be dealt with.
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Gwyneth Llewelyn
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Post by Gwyneth Llewelyn »

Oni, the SC will indeed review CARE's (and some of the other parties') compliance with the election rules at its meeting tomorrow (Sunday) at 10 AM SLT :)

In any circumstances, I think that the following should apply to your organisation:
[quote:39h069p1][b:39h069p1]Article IV, Section 2[/b:39h069p1]
All faction members must be citizens of the Confederation of Democratic Simulators and must join a special SL group created for the sole purpose of running for seats in the RA. No citizen is required to be part of a faction and cannot be a member of more than one faction at the same time.
[/quote:39h069p1]
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Post by Beathan »

Oni --

I see nothing wrong with CARE's building bridges between CDS factions and between the CDS and noncitizens. However, this process must be done outside the faction group. The Constitution is clear that the faction group can include only CDS citizens and must be organized for the sole purpose of running candidates for the RA. There is nothing unclear about this.

This means that the current CARE group can either be a faction or a broad political group -- but not both. However, CARE can have two groups -- the faction group, which includes only citizens and faction members, and the broad political group, which has a more inclusive membership and a less limited purpose. I really don't see why this double-breasted approach, which I have suggested before, works any hardship on CARE.

CARE must prove that it understands and intends to respect the CDS Constitution. Unfortunately, CARE is not yet making this proof.

Further, I think that to participate in CDS elections under the CDS Constitution, CARE must comply with the Constitutional requirements for election participation. It has not. I think that the Constitutionally required result of this noncompliance is removal of CARE from the ballot. This would be the result iRL democratic elections, such as we have here in Washington State. There is nothing undemocratic in insisting that election participants comply with the Constitutional requirements of elections.

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Post by Gwyneth Llewelyn »

Well, I wouldn't go so far myself, Beathan. We'll obviously review this later on the SC meeting, but I can imagine that almost all parties have, indeed, committed slight irregularites here and there. The issue is really to understand if these were done [i:l47ofss8]deliberately[/i:l47ofss8] or by any other reason — lack of time, failure to understand certain tiny but annoying rules, etc. For the record, some parties (CARE among them) did actually approach me (other parties might have approached other members of the SC, I don't know) to try to clarify some of the campaigning issues and other details. In my mind that shows a clear intent on clearing any issues and making sure that all parties (again, CARE included) wish to be 'clear' by election day.

We can get bogged down in technicalities, but so far, the only party to be ever excluded from the elections was for lack of members (not even 3). The other 'minor details' were always sorted out in time. Of course, if this starts to become an 'abuse' (and not mere neglect/ignorance), it might be grounds for exclusion, but I sincerely don't feel this was the case. People eager to explain themselves, getting in touch with others to clarify issues, asking questions about procedures (in private and public) cannot be so easily 'dismissed' as being 'evil wrongdoers'.

Obviously the SC might have other views than mine, but I feel particularly uncomfortable in having parties disqualified with mere trifles. Also, one must also consider the limitations of the SL group tools, which have also evolved over time. For instance, in the past, the Groups listed [i:l47ofss8]publicly[/i:l47ofss8] all members in them. Now you can turn this feature off, so it's harder to "validate" parties based only on the members they show in their lists. The "requirement" for having a SL group specifically for voting purposes was two-fold: allowing a way to automatically check if a member was a valid faction member for ranking purposes (unfortunately, this is not so easy to script as it was thought at that time, although it's not impossible) and to easily count how many members a party has (to be able to fill a majority of votes in the RA, in the case they were elected). Since the group tools were changed, and our legislation was not adapted to that change, there is now a slight discrepancy of what the Constitution intended and what the new group tools allow.

There is no question that a faction can have citizens and non-citizens, since there is good precedent for that (Ulrika's old SDF had, indeed, many more non-citizens than citizens), although the requirement for "All faction members must be citizens" in the Constitution should be read to meant that a [i:l47ofss8]CDS faction is comprised of CDS citizens[/i:l47ofss8] and that the articles in the Constitution regarding voting, ranking, limits and rights, do only apply to CDS citizens, and not to non-CDS citizens. In a sense, we cannot neither discriminate against non-citizens willing to participate in a party, nor do we have any jurisdiction telling non-citizens what they should do. All we can establish are the rights and duties of [i:l47ofss8]citizens[/i:l47ofss8] who are members of a faction created for the purpose of running for elections in the CDS.

It might [i:l47ofss8]have[/i:l47ofss8] been better if CARE had [i:l47ofss8]two[/i:l47ofss8] groups — "CARE" and "CARE for CDS" to make the separation more clear. However, this might be contrary to the spirit of allowing people to form their own associations and run them in the manner they like. Again, we're discussing lots of technicalities here, both related to the right of freedom of association and the way the SL groups work. What is quite clear is that [i:l47ofss8]only citizens of the CDS will be able to rank and vote in the elections[/i:l47ofss8]. The rest is muddy — and I hope that our meeting later is able to clarify this issue and provide some guidelines.
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Post by Beathan »

Ah --

Gwyn, thanks for clarifying the historical treatment of factions under the Constitutional. Dual faction membership has never been permitted, yes?

I do disagree with your analysis of the CDS's control over noncitizens with regard to these groups, however. It is certainly true that the CDS has no control over noncitizens and cannot restrict their actions or associations. However, the CDS does have control over CDS groups -- including factions -- and can control how those groups behave and recruit. The CDS can tell a group -- you are not acting as an appropriate CDS group. If you wish to remain a CDS group, please change. If you don't change, you will no longer be recognized by the CDS as a CDS group.

Further, with regard to noncitizens, I don't see how the words of the Constitution can be read to support the SDF/CARE position. The Constitution says that the faction shall be a SL group, that group shall be for the single purpose of running for RA election, and that group shall have no member who is not a CDS citizen or who is a member of another faction as well. I understand that Ulrika violated this (as well as other) sections of the Constitution in the passed. Pat has indicated that the CSDF is also violating it. However, until the concern about CARE, I have been told that no one raised the issue. Until the issue was raised, the SC could not really consider it -- so the fact that there was some past practice, which was never challenged, does not mean that the SC cannot apply a plain reading of the Constitution now that a challenge has been made.

The faction term looks like a ripe term for Constitutional amendment. The Simplicity Party will consider making clarification changes as part of its Constitutional simplification proposal. Other factions can and should propose similar amendments. However, until such amendment actually happens, the factions must respect the current Constitution. A faction cannot organize itself in an unconstitutional way and then propose an amendment to make its organization constitutional, standing behind the as-yet-unpassed amendment as a justification. Rather, if a faction wishes to engage in a project currently prohibited by the plain languge of the Cosntitution, as CARE does, it must first carefully organize itself to comply with the Constitution, win election, and then pass Constitutional amendments to allow implementation of the plan.

In other words, if CARE's project is the cart and CARE's voters are the horse, CARE put its cart before its horse. I am not saying that there is anything wrong with the cart (except, of course, the Judiciary Act) -- or the horse (except to the extent voters were misled into joining CARE, as some seem to have been). I am just saying that carts don't work that way under the plain language of our current Constitution.

The SC has the power to disregard this plain language, applying historical examples instead. That is a coherent and not undefensibile method of determining Constitutional rights and duties. However, it is a dangerous method as if gives little prospective guidance to citizens, especially when the interpretation is exactly contrary to the ordinary meaning of the actual words in the Constitution, leaving every Constitutional issue open until interpreted by the SC -- meaning that the only good answer to any question about the Constitution is, "I don't know -- you have to ask the SC."

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Post by Gwyneth Llewelyn »

Yes, well, that's why we also have separated between things like "party" and "faction running for elections in the CDS". Both terms (party/faction) can, and are, usually used as being synonymous. The issue is just about having a "CDS faction running for elections" which has indeed a more limited and restricted definition — again, the way the SL group system demands certain things to be set up. One could reason that CARE, as a party, has a much wider scope than the "faction" that is running for elections; in that case, the only argument here would be if you could use the [i:1awo1x4v]same[/i:1awo1x4v] group for both things. The Constitution tends to say "no", exactly because of the reason you point out: people might be joining the "party" by believing they would be joining the "faction running for elections" (or vice-versa) and it was thought to be best to separate things.

The new SL group roles, for instance, could be used to clarify this issue much further; you could have a role for "faction members" (with voting powers to rank candidates), a role for "willing to serve members" (ie. the ones on the faction list for the elections), a role for "party members" (mostly non-citizens), and "sympathisers" (who are not party members but would like to get notifications for the party). Sadly, although all this is possible in terms of the new SL groups, the Constitution predates all that.
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Post by Oni Jiutai »

[quote:oaqs2ini]The new SL group roles, for instance, could be used to clarify this issue much further; you could have a role for "faction members" (with voting powers to rank candidates), a role for "willing to serve members" (ie. the ones on the faction list for the elections), a role for "party members" (mostly non-citizens), and "sympathisers" (who are not party members but would like to get notifications for the party).[/quote:oaqs2ini]

That is indeed how CARE has dealt with the question. Non-citizens have a different role than citizens and aren't considered faction members for CDS purposes. Although it hasn't come up yet, I'm sure we'd be happy to create a further group for "Citizens, but not wanting to be in the Faction".

So far as the Constitution is concerned, our view is that a group of those with a particular role within another group is sufficiently a 'SL Group' to qualify.

Finally, I'd add that the question raises minor, but not insignificant questions under the UDHR. My view is that Article 19 (Freedom of Speech), Article 20 (Freedom of Association) and Article 21 (Participation in the Political System) are all engaged, to a greater or lesser extent. So any ambiguity should be interpreted liberally, to allow people to organise themselves as they prefer.
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Post by Beathan »

Oni --

I accept Gwynn's observation about the basis on which to exclude factions form elections -- insufficient members. If this is the only basis, and it is perfectly OK for it to be the only basis, than the Constitutional violations I am concerned about don't invalidate CARE as a faction. However, they do raise questions about the CARE electorate that should be addressed. People join CARE because of the greater project without intending to be CARE voters. These citizens should not count toward the CARE electorate. When these people are removed, it is possible (though not likely) that CARE only has two members -- in which case it does not qualify for elections.

Further, I think that the Constitution is clear -- and does not support your interpretation. The Constitution specifically requires that the faction group be an "SL group" -- not a group within an SL group -- and that it be organized for the "sole purpose" of running candidates for RA elections. (Within SL, the term "group" has a specific meaning -- and that meaning was the one that was intended by the plain language of the Constitution. An "SL group" is a group organized by the coding of SL, one which can be found in the SL "group search" option. Groups within SL groups are not SL groups on this plain meaning.) I agree with Gwynn that these restrictions are outdated -- but until the Constitution is amended, they remain restrictions.

Further, UDHR rights are not implicated. No speech is restricted. Anyone can still say anything even if the two-group approach is required. The two-group approach also fully provides for and protects association rights. Any person can still associate with CARE and CARE's ideas and members. Finally, voting rights are fully protected by the election process -- and party participation in elections is guaranteed by providing them a vehicle (in a Constitutional SL faction group for the limited purpose of RA elections).

Beathan
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