The Pirate Party International Court of Arbitration has been asked to decide of the validity of various points of its n°2011-1 ruling by the Pirate Party of Switzerland.
The Court of Arbitration has stated that the complainant was right to point out the lack of public rules of procedures, and agreed that it had to publish its rules of procedures.
The Court did not find sufficient material to nullify, either in its entirety or partially, the n°2011-1 ruling ; but added precisions on the extent of the considering 27 about public voting by citizens.
Court of Arbitration ruling n°2011-1-A, December the 25th
-> PP Switzerland "PP Switzerland challenges the Court of Arbitration ruling n°2011-1" statement of December 13th.
THE PIRATE PARTY INTERNATIONAL COURT OF ARBITRATION,
Given the PPI Statutes,
Given the December 9th ruling n°2011-1 by the PPI Court of Arbitration,
Given the December 13th "PP Switzerland challenges the Court of Arbitration ruling n°2011-1" statement by the PP Switzerland,
- ABOUT THE COURT OF ARBITRATION ACTING ON ITS OWN INITIATIVE
1) Considering in the December 9th statement n°2011-1 by the PPI Court of Arbitration, the Court of Arbitration has taken an own initiative at considerings 6 and 12.
2) Considering in the December 13th statement, the PP Switzerland challenges the considering 6 as contrary to a due process, states that a court cannot rule on its own initiative, demands a clear ruling on "nullo actore, nullus iudex", and requests the PPI Court of Arbitration statement n°2011-1 to be nullified in its entirety as a result.
3) Considering that, according to paragraph XIVa. (3) b) of the PPI Statutes, the PPI Court of Arbitration has "the exclusive power to declare matters of fact when necessary for the functioning of the PPI".
4) Considering that paragraph XIVa. (2) of the PPI Statutes gives the power to send complaints to the Court of Arbitration to "the organs and officers of the PPI", that the Court of Arbitration is an organ of the PPI, and that its members are officers of the PPI.
5) Considering that therefore the Court of Arbitration has the power to study a case on its own initiative, provided the functioning of the PPI or the PPI by itself are suspected of a violation of the PPI Statutes of the Pirate Party movement core values, or would be victims of such a suspected behaviour.
7) Considering that, as a result, the Court of Arbitration had the power to open the procedure of ruling n°2011-1 on its own initiative.
- ABOUT THE LACK OF PUBLISHED PROCEDURES FOR THE COURT OF ARBITRATION
8) Considering the PP Switzerland, in the December 13th statement, points out the lack of complaint and defendant procedures, and the need of transparency on internal proceedings.
9) Considering the Court of Arbitration has not published such procedures, and that it can cause a prejudice to human rights and fundamental freedoms like the right to a fair trial and transparency of public institutions.
10) Considering that the PPI General Assembly has not defined such procedures, and that the lack of clear rules until the next PPI General Assembly meeting justifies that the Court of Arbitration defines herself its own procedures, publishes and applies them before they can be submitted to the vote of the PPI Members.
11) Considering that the own intended actions of the Court of Arbitration until now have been taken in reaction to internal or external complaints, and that no official complaint has suffered from the lack of clear procedures.
12) Considering that the December 9th statement n°2011-1 by the PPI Court of Arbitration, despite not having been discussed following strict procedures as no procedures were defined, has been approved by a majority of the Court of Arbitration members who signed it publicly ; and therefore provides sufficient transparency.
13) Considering that this same statement is not a ruling in an internal dispute, and that therefore the Court of Arbitration had no obligation to consult each and every PPI Member before ruling.
14) Considering that it results from the beginning that the Court of Arbitration shall define and publish clear complaint, defendant, and internal procedures.
15) Considering that the lack of publication of such procedures did not cause a prejudice to the previous statements, and that therefore it does not make them invalid.
- ABOUT THE COURT OF ARBITRATION PRONOUNCING BOARD SEATS VACANCY
16) Considering the Pirate Party of Switzerland challenges considerings 7 and 9 of the n°2011-1 ruling stating that "the Court of Arbitration shall pronounce a PPI board seat vacancy if it can cause dispute, complaints, or Statutes breach".
17) Considering the paragraph XIVa. (3) c) gives to the Court of Arbitration the exclusive power to "decide the disputes between the officers and the organs of the PPI".
18) Considering that Finlay Archibald was a PPI officer since his election to the PPI board.
19) Considering that long term lack of response from a PPI board member to contact attempts by the rest of the PPI board does not prevent from contestation after a vacant seat statement, and can therefore be qualified as a dispute between a PPI officer and a PPI organ ; contrary to cases like resignation from the board, where it is manifest that the resigning board member has no dispute with the board on the vacancy of his seat.
20) Considering that the right to a fair trial implies that, despite his absence, a board member whose seat is to be declared vacant shall not be presumed to agree with this vacancy.
21) Considering that therefore, any board seat vacancy statement for long term absence shall be considered as potentially questionable, and therefore shall be decided only by the Court of Arbitration, after making sure reasonable chances to contest this statement are given to the concerned board member.
- ABOUT THE COURT OF ARBITRATION REJECTING SECRET BALLOTS ELECTRONIC VOTING SYSTEMS
22) Considering the Pirate Party of Switzerland challenges considerings 22 and 23 of the n°2011-1 ruling of the Court of Arbitration, stating that the use of electronic voting systems "implies to sacrifice either a part of secrecy or a part of integrity" and that giving up voting integrity "would therefore be in contradiction with the pirate movement core values".
23) Considering the Pirate Party of Switzerland contests the considerings 22 and 23 validity on the point that it does not take into account the possible existence of electronic voting systems wich respect both secrecy and integrity and on the point that no opposing party was heard.
23) Considering that both attacked considerings 22 and 23 refer to considering 21 stating that "no procedure of electronic voting that guarantee, at the same time, anonymity and secrecy of the vote, and integrity and equality, has been proposed to the PPI".
24) Considering that therefore both considerings would not apply to the use of an electronic voting system that would respect both integrity and secrecy, and that therefore the claim of invalidity of the Pirate Party of Switzerland is not justified.
25) Considering that the Pirate Party of Switzerland use of its electronic voting system was not judged by the Court of Arbitration in ruling n°2011-1, and that therefore the Court of Arbitration had no obligation to hear their arguments in particular.
26) Considering that it results from the above that the considerings 22 and 23 of the ruling n°2011-1 of the Court or Arbitration are valid, and does not prevent the use of a secret ballots electronic voting system as soon as such system that also guarantees integrity of the votes would be presented to the PPI.
27) Considering that the Pirate Party of Switzerland has presented documentation about its electronic voting system to the PPI board and Court of Arbitration.
28) Considering that page 8 of the document linked under the title "An Internet Voting System Supporting User Privacy" about the ADDER system says at page 8 : "Currently, our system does not offer to a voter a method for physically verifying that his published encrypted ballot encrypts his actual choice. Instead, the voter relies on the correctness of the client software for this task. We note that dealing with this is a complex problem, since any method for voter-based verifiability can also potentially used by the voter to prove how he voted and thus allow for vote buying".
29) Considering that any large scale use of an electronic voting system with such potential breach in vote integrity would be subject to fraud attempts, and that therefore and apart from any other consideration it does not fulfil the required criterion of integrity for a large scale use such as a PPI board partial election.
30) Considering that therefore, no electronic voting system that respects both integrity and secrecy of the vote has yet been presented to the PPI.
- ABOUT THE COURT OF ARBITRATION STATING PUBLIC VOTING OF CITIZENS CONTRARY TO PIRATE MOVEMENT CORE VALUES
31) Considering that the Pirate Party of Switzerland challenges the part of considering 29 of the n°2011-1 ruling of the Court of Arbitration that says that "the publication of the vote of citizens" in "a partial board election" would "breach the pirate movement core values".
32) Considering the Pirate Party of Switzerland bases his challenge on the fact that public voting is a clear foundation of democracy, not uncommon for parliaments, and that it is not in their interest as there are public voting elections in both Pirate Party of Switzerland and some communes and cantons in Switzerland.
33) Considering the considering 29 of the n°2011-1 ruling of the Court of Arbitration was restricted to elections.
34) Considering that parliament members are in similar situation than public organizations at considering 27 of the n°2011-1 ruling of the Court of Arbitration.
35) Considering that the interest of a PPI member cannot prevent the Court of Arbitration to rule against any measure contrary to the Pirate Party movement core values.
36) Considering that a public voting system could be used, provided guarantees are made that the voters cannot be threatened or mistreated by the candidates whatever their eventual results in the polls.
37) Considering that in general, it is reasonable to consider any publication of citizen votes could generate such problems.
38) Considering that exceptions to this rule would be tolerable in the case of small elections, for seats with little influence, where it would be reasonable to consider nobody would threaten or mistreat any candidate or voter in order to influence the result, and that every voter would eventually agree to make it public with no constraint whatsoever.
39) Considering that this is not the case for any large scale election like for the PPI board seats, provided citizens would be voting.
40) Considering that the Court of Arbitration has not to judge whether the Switzerland communal and contonal elections, or the Pirate Party of Switzerland board public elections, would meet this requirement.
41) Considering that therefore, the considering 27 of the n°2011-1 ruling of the Court of Arbitration does not prevent in itself neither Switzerland nor Pirate Party of Switzerland to organise public elections.
S T A T E S
Article 1) The Court of Arbitration must decide before 2011 December 31th on its rules of procedures.
Article 2) With the reserves expressed at considering 38, the n°2011-1 ruling of the Court of Arbitration is valid.
Article 3) The current decision, and the rules of procedures evoked at article 1, will be published on the PPI website.
Deliberate by the Pirate Party International Court of Arbitration on December 25th of 2011, attended by the followings :
Marco Confalonieri, Arturo Martinez, Maxime Rouquet and Sven Clement