Dispute Resolution Committee/Application 2016-1

Application 2016-1 (Fletcher Boyd)
On Tuesday, 9 August 2016, the Dispute Resolution Committee received an application from Fletcher Boyd relating to the interpretation of the Party Constitution. That application was as follows:

Greetings DRC,

As you are no doubt aware there has been some concern over the interpretation of our Constitution in relation to CAPs. I formally request that the DRC investigate and rule on the following questions:

1) Does Article 9.1(5) disallow the modifaction of CAPs on the floor?

2) Does the National Congress have the ability to approve CAPs that only come into effect after a specified time?

3) Can a common understanding of the intended effect of provision be used to determine its actual effect?

Unrelated to the above I also have a question regarding headers.

4) Are headers (specifically Section 11) regarded as part of the Constitution? 2015/CAP-9 modified Section 11 such that the current header is no longer accurate and needs to be updated.

Interim determination
On Monday, 29 August 2016, the Committee met and determined that the application was of general interest to the Pirate Party. In accordance with rule 5(3) of the Committee's Rules of Procedure the Committee notified Mr Boyd and the members of the Pirate Party via the forum and email that the Committee intended to pursue the application, and invited interested members to make submissions on the matter by 11:59 pm on Tuesday, 6 September 2016. This was posted to the forum on the evening of 29 August and emailed to the members on the evening of 30 August, providing a period of slightly more than the seven days stipulated in the Committee's Rules of Procedure.

Submission (Ian Perry)
On Tuesday, 30 August 2016, the Committee received the following submission from Ian Perry (emphasis added to distinguish headings):

1) Does Article 9.1(5) disallow the modifaction of CAPs on the floor?

Article 9.1(5) should be strictly interpreted as saying that the proposer of an Amendment can modify it, within the stipulations of 9.1(5)(a) and 9.1(5)(b), before presenting it at Congress. It doesn't disallow CAPs to be modified on the floor; whether or not this can happen is not specified in the Constitution. An additional Article should be added to section 9.1 to clearly state the Party's position on this.

2) Does the National Congress have the ability to approve CAPs that only come into effect after a specified time?

The Constitution should, at all times, reflect the current core Party principles: If there is a time lapse before an approved Amendment is in effect, then either the current Constitution does not reflect the core Party principles or the future amended version does not.

3) Can a common understanding of the intended effect of provision be used to determine its actual effect?

If, to a "reasonable person", the intended effect of a Provision is not the same as the actual effect, the powers granted under Article 9.4(1) should be invoked to amend the Constitution and immediately reconcile the variation.

4) Are headers (specifically Section 11) regarded as part of the Constitution? 2015/CAP-9 modified Section 11 such that the current header is no longer accurate and needs to be updated.

Headers should be regarded as part of the Constitution, as they can be crucial to interpreting the Articles beneath. As above, if a Header is no longer reflective of the Articles it contains, Article 9.4(1) should be invoked to ensure the Constitution is clarified immediately.

Submission (Paul Templeton)
On Tuesday, 30 August 2016, the Committee received the following submission from Paul Templeton (emphasis added to distinguish headings):

1) Does Article 9.1(5) disallow the modifaction of CAPs on the floor?

Reading the article - Yes. But saying that if the Congress had a psychical quorum at the meeting I could not see a problem with amendments to a motion, otherwise delayed affect via on line voting (that is an amendment(s)where put but the amendment(s) would have to be passed with the quorum before a motion could be put).

2) Does the National Congress have the ability to approve CAPs that only come into effect after a specified time?

No - See above.

3) Can a common understanding of the intended effect of provision be used to determine its actual effect?

Yes it could - would help in the process of requested change.

4) Are headers (specifically Section 11) regarded as part of the Constitution? 2015/CAP-9 modified Section 11 such that the current header is no longer accurate and needs to be updated.

They are part of the constitution, but have no weight as it it a header/title of a section. If the header/title is not descriptive then it should be change according to the rules of the constitution. You could change the constitution to allow changes of the headers/titles of the constitution by the National Council.

ie Section 11 - 'Being Roughed up by Barnacles' would not change the sub sections

Submission (Daniel Oakley)
On Wednesday, 31 August 2016, the Committee received the following submission from Daniel Oakley (headings inserted for clarity, emphasis in original):

1) Does Article 9.1(5) disallow the modifaction of CAPs on the floor?

Yes. Article 9.1(5) clearly states "... may be modified by the proposer prior to the National Congress, so long as ...". On the floor is not prior to the National Congress.

I would not be against changes to Article 9.1(5) to make it so that they can be modified (to correct errors) prior to the vote on that specific CAP rather than prior to the National Congress, but the current constitution explicitly disallows the modification of CAPs on the floor.

2) Does the National Congress have the ability to approve CAPs that only come into effect after a specified time?

With the current constitution, no. It is not written into the constitution and would require special National Council actions (which is restricted to "where circumstances of urgency dictate, or where it is necessary for party operation". However, introducing a situation where we know that the National Council will need to create a temporary/operational amendment due to the party not being able to function properly is insane.

3) Can a common understanding of the intended effect of provision be used to determine its actual effect?

No, not when that common understanding goes against the textual content of the CAP. What is voted on and agreed upon by the party at large, and available later, is what's written in the CAP. If an explicit modification could be made to the CAP as stated in point 1) above, cool. Otherwise, the 'common understanding' doesn't trump the explicit text of the CAP being proposed.

4) Are headers (specifically Section 11) regarded as part of the Constitution? 2015/CAP-9 modified Section 11 such that the current header is no longer accurate and needs to be updated.

Similar to the titles of wiki pages vs their contents, the headers in the constitution mearly provide a simple overview of the content of that section or group of sections. Headers MUST relate to and accurately explain the content of the section it is representing, but they in and of themselves are not a part of the decision-making text of the constitution – mearly guides and markers for people who look over the constitution.

However, the grouping of related sections of the constitution are regarded as a part of the constitution. For instance, you couldn't just take 12.5(a) and renumber it to 12.6. The groups of sections themselves are part of the constitution, but the heading text explaining that section is not.

Submission (Travis Young)
On Wednesday, 31 August 2016, the Committee received the following submission from Travis Young:

1) Does Article 9.1(5) disallow the modifaction of CAPs on the floor?

As written, yes. It proposes that all modifications must be made prior. The deadline for amendments such as this should be made clear, eg 24hrs. It should also be stated that members must be notified of any amendments made in this way. So perhaps even 24hrs it too short.

2) Does the National Congress have the ability to approve CAPs that only come into effect after a specified time?

Unclear. It seems that this could be useful, but perhaps a limit on the timeframes would be needed.

3) Can a common understanding of the intended effect of provision be used to determine its actual effect?

if the common understanding is open to multiple interpretations then clarification should be sought and the provision amended before proceeding.

4) Are headers (specifically Section 11) regarded as part of the Constitution? 2015/CAP-9 modified Section 11 such that the current header is no longer accurate and needs to be updated.

Yes, they should be considered part of the constitution, but definitely need to be restated in the section and expanded upon.

Final determination
The Committee made its final determination on Wednesday, 7 September 2016.

Summary

 * 1) Article 9.1(5) disallows the modification of constitutional amendment proposals by the person who proposed them after the official business of Congress formally begins.
 * 2) Article 9.1(5) does not prevent the National Congress from amending a constitutional amendment proposal after the official business of Congress has begun, so long as such amendments are in accordance with any relevant constitutional provision or by-law, and the National Congress Standing Orders.
 * 3) The National Congress has the ability to adopt constitutional amendments that commence or lapse when certain conditions are met, including conditions as to time and circumstances.
 * 4) Constitutional amendments that commence or lapse when certain conditions are met should also insert into the Party Constitution information as to their commencement or lapse.
 * 5) When determining the effect of a provision in the Party Constitution, the literal meaning should be used unless the provision is ambiguous.
 * 6) A provision is ambiguous if there is only one literal meaning and that meaning would produce a result that is absurd or contrary to the context of the provision, or if there are multiple literal meanings and more than one of those literal meanings would not produce a result that is absurd or contrary to the context of the provision.
 * 7) If a provision is ambiguous, evidence may be adduced of any convention or assumption relating to the way the provision operates.
 * 8) Headings form part of the Party Constitution and may only be amended by the National Congress or National Council in accordance with the Party Constitution.
 * 9) Headings that contradict the substantive provisions of the Party Constitution are disregarded in its interpretation.

Reasons (Hayden Dwyer and Mozart Olbrycht-Palmer)
1) Does Article 9.1(5) disallow modification of CAPs on the floor?

Article 9.1(5) clarifies the effect of article 9.1(2) by providing that insubstantial modifications to constitutional amendment proposals ('CAPs') are permitted after the deadline of 28 days before the National Congress, so long as they are recorded and justified. The important words article 9.1(5) are: 'already proposed amendments may be modified by the proposer prior to the National Congress'.

The word 'prior' in article 9.1(5) explicitly prevents the person who submitted a CAP from modifying the CAP once Congress has commenced. Arguments to this effect were submitted by Ian Perry, Paul Templeton, Daniel Oakley and Travis Young, and they are accepted. Congress commences when the business of Congress formally begins, which is when the first item of the agenda commences. Modifications must be before this for them to be 'prior' to the National Congress.

However, the Party Constitution does not explicitly prohibit amendments to CAPs on the floor. Mr Perry and Mr Templeman considered this in their submissions: Mr Perry argued that article 9.1(5) 'doesn't disallow CAPs to be modified on the floor; whether or not this can happen is not specified', and Mr Templeman argued specifically that if Congress was quorate and passed a motion to amend a CAP, this would be a valid procedure.

The effect of article 9.1(5) is to ensure that CAPs are in substantially the same form when they are presented at Congress as they were when they were published 28 days or more before Congress. Mr Perry is correct that the Constitution is silent on whether the National Congress can amend a CAP. The minutes of the National Congress of 2015 indicate that this provision was intended to speed up Congress business by allowing minor corrections in advance, so that formal amendments were not needed at the Congress. This does not reveal an intention to prohibit the National Congress from amending CAPs on the floor. In the absence of any specific prohibition in the Constitution, Mr Templeman's view is preferred.

Therefore:


 * 1) Article 9.1(5) disallows the modification of constitutional amendment proposals by the person who proposed them after the official business of Congress formally begins.
 * 2) Article 9.1(5) does not prevent the National Congress from amending a constitutional amendment proposal after the official business of Congress has begun, so long as such amendments are in accordance with any relevant constitutional provision or by-law, and the National Congress Standing Orders.

2) Does the National Congress have the ability to approve CAPs that only come into effect after a specified time?

With respect to those members who made submissions, none of the submissions received made convincing arguments on this question. This question is essentially asking whether the National Congress may set a commencement date for a constitutional amendment rather than have the amendment enter into effect immediately. As Mr Young noted in his submission, such an ability could be useful.

Mr Perry submitted that '[t]he Constitution should, at all times, reflect the current core Party principles: If there is a time lapse before an approved Amendment is in effect, then either the current Constitution does not reflect the core Party principles or the future amended version does not.' With respect to Mr Perry, this is not necessarily the case. The Constitution is a constitutive document and while it contains certain principles, it also defines the structure of the Party, assigned responsibilities to certain officers, and contains procedures for the operation of the Party. It may be be argued that certain constitutional amendments may in fact better realise the principles of the Party by implementing, for example, more democratic or transparent procedures.

Mr Oakley's submissions was to the effect that the Constitution does not confer this ability on the National Congress, and therefore such an ability is not supported. He suggests instead that this would require an operational amendment by the National Council, but notes that introducing a situation where an operational amendment is required would be undesirable. The issue with these assertions is that they assume everything not explicitly permitted by the Constitution is necessarily prohibited. While this might be desirable for restraining the powers of the National Council, the National Congress, as an assembly of voting members, should only be restrained where explicitly (or perhaps, in some circumstances, implicitly) indicated by the Constitution or otherwise by law.

In 2014 the National Congress passed a formal motion, FM-1: Conditional withdrawal from Pirate Parties International. The motion provided that if any of a number of conditions were not met by 31 January 2015 the National Council would be empowered to withdraw the Party from Pirate Parties International. This did not, at the time, raise any constitutional concerns. Of course, this would not be enough to make it constitutional, but it demonstrates an assumption by the National Congress of July 2014 that setting criteria for when and under what circumstances a motion will take effect is valid.

Best practice in regard to commencement or lapse of and amendment is to include information as to their commencement or lapse in the constitutional amendment itself. This allows for clear and concise amendments, and has precedent in the form of the now-lapsed article 9.1(4), which read: 'In the event that the Members do not vote in favour of that increase, then this clause will lapse.' An example could be: 'This clause takes effect from [or lapses on] 1 January 2017'. Once these have commenced, the following National Congress may remove the commencement or lapse information.

Therefore:


 * 1) The National Congress has the ability to adopt constitutional amendments that commence or lapse when certain conditions are met, including conditions as to time and circumstances.
 * 2) Constitutional amendments that commence or lapse when certain conditions are met should also insert into the Party Constitution information as to their commencement or lapse.

3) Can a common understanding of the intended effect of provision be used to determine its actual effect?

Most constitutional provisions will be clearly understood, as the Dispute Resolution Committee's history demonstrates. This is in fact the first application received or pursued by the Committee. Nevertheless, this application in part relates to ambiguities in the Party Constitution, and no doubt as the Party grows in size there will be future issues.

Several of the submissions appeared to assume a false dichotomy between the 'actual effect' and 'intended effect' of a provision. Generally speaking these should be one and the same if the provision is drafted correctly. The 'actual effect' of a provision is the way in which it should be interpreted, and will be what the Dispute Resolution Committee determines it to be. The 'intended effect' is what the person or persons who drafted the provision meant by it.

This question is asking whether, in determining the effect of a provision, a common understanding of its effect can be used. In this context, a common understanding included conventions under which the Party has been operating, or assumptions that led to particular decisions being made. The Dispute Resolution Committee is being asked whether those conventions and assumptions can be used in the interpretation of a provision.

Where the literal reading of a provision produces a clear meaning, the provision should be read literally unless this would produce a result that is either absurd or contrary to the provision's context within the Party Constitution. If the literal reading is ambiguous and multiple valid interpretations could be made, or the literal meaning would produce an absurd result or be contrary to the context, evidence of conventions and assumptions as to the intended meaning may be adduced to determine the appropriate interpretation.

A convention or assumption that is not supported by the text of the provision will not operate to vindicate unconstitutional actions, nor will a mere allegation that a convention or assumption exists suffice to establish its existence. Where available, reference must be had to the rationale or explanation of the motion that originally enacted the provision, minutes of any relevant meetings, and, if necessary, audio or video recordings. Even if a convention or assumption that a provision operates a certain a way is established, that will not displace an unambiguous provision.

Therefore:


 * 1) When determining the effect of a provision in the Party Constitution, the literal meaning should be used unless the provision is ambiguous.
 * 2) A provision is ambiguous if there is only one literal meaning and that meaning would produce a result that is absurd or contrary to the context of the provision, or if there are multiple literal meanings and more than one of those literal meanings would not produce a result that is absurd or contrary to the context of the provision.
 * 3) If a provision is ambiguous, evidence may be adduced of any convention or assumption relating to the way the provision operates.

4) Are headers (specifically Section 11) regarded as part of the Constitution? 2015/CAP-9 modified Section 11 such that the current header is no longer accurate and needs to be updated.

Headings form part of the Party Constitution but their influence on the interpretation of the Party Constitution cannot be to contradict the substantive provisions. Thus, while the heading to article 11 states that the Party Constitution is not enforceable in law, this has no bearing on the actual status of the document: the Party Constitution is enforceable in law, regardless of that heading. The National Council may amend the Party Constitution through a temporary amendment on the basis of urgency or for operational purposes if necessary to correct headings.

Therefore:


 * 1) Headings form part of the Party Constitution and may only be amended by the National Congress or National Council in accordance with the Party Constitution.
 * 2) Headings that contradict the substantive provisions of the Party Constitution are disregarded in its interpretation.