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SINGLETON CJ: [1] Early in October 2000 General Elections were held in Cyberia. The plaintiff policitical party claims that the first defendant (Michael Phyle) was not entitled to vote (but did so) and that the second defendant (the Acting Electoral Commissioner) should not have counted Mr Phyle's vote. The plaintiff seeks appropriate relief, which would be that the election results be recalculated without counting Mr Phyle's vote.

[2] The first sentence of s. 1.2 of the Constitution provides:

No person may vote who has been convicted of a felony involving moral turpitude unless their civil rights have been restored.

It is accepted by all parties that Mr Phyle was, on 7 May 2000, convicted of treason. It appears that that conviction followed a "plea bargain", but that fact does not alter the fact that there was a conviction. In passing sentence Hickey TJ said (inter alia):

you are hereby sentenced to a term of three (3) months imprisonment . . . . During that time, you may not make any posts on the Cyberian forums or otherwise engage in discourse in the Virtual Commonwealth, including running for election or serving in any government office in either the Virtual Commonwealth or any of the Provinces or other political subdivisions thereof. At the completion of your sentence, you will be allowed to again participate in the Virtual Commonwealth as a citizen.

[3] Three questions arise in this case:
1.    Is treason a "felony involving moral turpitude"?
2.    If so, were Mr Phyle's civil righs restored (in time)?
3.    If Mr Phyle was not entitled to vote, are there any technical proceedural or discretionary grounds upon which relief should be denied to the plaintiff?

A felony involving moral turpitude?

[4] The Court has not been informed of the offence of which Mr Phyle was convicted, other than that he was convicted of "treason". At common law there is no such crime as "treason" per se.   Rather, treason is a category of crime. The common law of crime recognises three categories of crime: treason, felony and misdemeanour. As a matter of strict law, treason is not a felony at all: it is a differnt, more serious category of crime. Originally at common law there were seven crimes within the category of treason, including killing the King and levying war against the realm. More recently, in some places, treason has been narrowed to cover fewer crimes: Art. III, s. 3, cl. 1 of the United States Constitution is an example. Except to the extent that the Cyberian Constitution or statues provide otherwise, the common law applies in Cyberia.

[5] Nevertheless, it is stated (and not disputed) that Mr Phyle has been convicted of treason. That may be as meaningful as saying that a person has been convicted of "felony" or "misdeamenour", or it may be that a closer review of the case would reveal that Mr Phyle was convicted of a particular treasonous crime, or it may be that the law of Cyberia recognises an actual crime called "treason". These issues are not directly raised in the present case, and I am prepared to proceed on the basis that Mr Phyle has been convicted of treason - which, as matter of record (that has not yet been corrected by appeal), he has.

[6] This is a case calling for the expounding of Constitutional law, not the criminal law. The question is: does the Constitution intend "felony" to have a strict, narrow meaning, or does "felony" in this constituional context merely mean serious crime? All three parties argue that the meaning of "felony" should be given the more liberal meaning. The Acting Electoral Commissioner rightly points out that the boundaries between the different categories of crime has never been fully delineated by the common law (and in many jurisdictions it is now a question governed by statute). He also rightly points out that "felony" often has a broader meaning than the strict one I have discussed above and he argues that that broader meaning applies in the present constitutional context. Mr Grieve, for the plaintiff, argues that it would be absurd if more serious crime had a lesser consequence than less serious (but otherwise equivilent) crime. I acknowledge the strength of these propositions. I hold that if treason (or any treasonous crime) is a crime of moral turpitude then it is a felony involving moral turpitude within the meaning of the Constittuion.

[7] The question therefore turns upon whether or not treason is a crime of moral turpitude. If treason is a crime of moral turpitude then it would be absurd that a crime so serious would not be caught by the section when lesser crimes (of the same moral obliquy) were.

[8] It must be assumed that there are more crimes involving any turpitude than crimes involving moral turpitude (otherwise the constitution would have used a tautology and thus violated the principle that every word should be given some useful funtcion or meaning). Just because treason is the most serious crime in the criminal calander does not mean that it necessarily is a crime involving moral turpitude, or even turpitude.

[9] None of the parties has been able to find a case in which it was held either that treason was a crime involving moral turpitude or that it was not. Nor have I. It is necessary to consider, therefore, both the meaning of the phrase itself and the decisions in other cases about other crimes.

[10] Turpitude means baseness or depravity. Morality is to be distinguished from legality. Morality involves not legal right and wrong but social or philosophical or religious right and wrong. For a crime to be one of moral turpitude it must involve not merely depravity or basenss but depravity or basenss of morality. The parties helpfully have taken me to non-judicial definitional material which, I think, strongly supports this general proposition.

[11] So far as I can see (although it is not crucial to my decision) the concept and phrase "crime involving moral turpitude" (and like phrases) emerged in north American statutes and constitutions (where the term is not always, if ever, defined). It does not appear to be a term of the common law. In Cyberia, the Courts look to the common law - not to the statutes - of other jurisdictions to ascertain the law. Terms such as "crime of moral turpitide" are not defined at common law, nor in the Contitution of Cyberia and only limited use can be made of statutory provisions in other places. In those other places, the question of whether a crime is one involving moral turpitude has in any event been decided on a case by case basis.

[12] There is a considerable amount of material (some of it in previous cases) to support the proposition that the concept of crime involving moral turpitude imports either an element of fraud or or an element of sexual depravity. However, there are so many cases which are in breach of this proposition that the proposition cannot be accepted as sufficiently firmly entrenched in the law. For example:
> other types of crime have in some cases also been held to be crimes of moral turpitude (these include murder, aggravated forms of assault, housebreaking and burglary);
> in other cases the same offences have been held not to be crimes of moral turpitude;
> there are yet other cases in which crimes of fraud or sexual deviancy have been held not to be crimes of moral turpitude.
For an apparently extenisve list of cases in which findings have been made about whether or not specific crimes are crimes of moral turpitude I have referred to www.criminalandimmgrationlaw.com which (inter alia) has a list of decisions.

[13] In some cases it appears that acts of homosexuality have been held to be crimes of moral turpitude. No doubt in earlier times they were so considered but there can be no question that these are wiser times and that homosexuality is neither immoral nor turpitudinous. Nor were such acts ever immoral or depraved: they were merely considered to be so. It is society that has changed. Whether or not something is a crime of moral turpitude is a question that is to be judged by the standards and circumstances of the time and place (whether of the time of the crime or the time of the judgment need not be determined here, because of the proxiity of the two in this case).

[14] Cyberia is quite different from the United Kingdom and the United States (and other polities) because it is a virtual nation. Its morality and its standards of depravity - and its state of historical develpment - are different. What might be a seroius crime in real nations might be less serious in a virtual nation and vice versa. For example, what is murder in a virtual nation, and how serious is it? And is criminal defamation in Cyberia one of the most serious of crimes? With this consideration (as well as the meanings of the words and the results of other cases) in mind, I have considered whether or not treason is a crime of moral turpitude in Cyberia in 2000.

[15] In my opinion a crime of moral turpitude is a crime that reflects poorly - extremely poorly - on the character of the person who committed it. An emphasis on this aspect also seems to me appropriate given that the ramification of resolving the issue is whether or not a person can vote (which, in a democracy, is a four-letter word that means participate as joint sovereign).

[16] Is treason a crime of moral delinquency? It seems to me that it is a crime of political delinquincy or sometimes military delinquency. It is very serious indeed, but those who commit treason may be of the highest moral character and motivated by their perception that the state is wrong or needs to be overthrown. Those who attempted to assassinate Hitler in 1944 were no doubt guilty of treason, but we would not conisider their actions immoral. Some acts of treason may well be immoral but the legal concept of the crime (or crimes) of treason does not necessarily import immorality. Likewise, whilst treason may be highly evil (at least in a legal and political sense), it does not in my view necessarily have the extremity of baseness or depravity that "turpitude" imports.

[17] I have concluded that treason is not an offence that the Constitution considers to be one involving moral turpitude. In reaching this conclusion I acknowledge that it might seem that treason would be a better basis for denying someone his or her franchise than, say, sexual misconduct, but the Constitution is expressed in certain terms, not others. Ultimately, the policy of the Constitution has been expressed in terms that relate more to the individual felon's character than to the security interests of the state. Moreover, countering the factor of possible absurdity is the Court's inclination to favour the individual citizen's rights in a case of legislative (including Constitutional) ambiguity.

[18] For the foregoing reasons the Cliam of the plaintiff must be dismissed. In deference to the various submissions, and in case I am wrong (and the matter is reviewed on appeal), it is appropriate that I give an indication of my views on the other issues that arose in this case.

The restoration of civil rights

[19] The next question was whether or not Mr Phyle's civil rights were restored.

[20] Before embarking on this question, however, I should note Mr Phyle's plea that had he known that the case now brought against him would be brought he would have taken steps before the election to have his rights restored. That may be factually so. It may even be that his steps would have been significant. But this is not relevant. The Court is now concerned with a matter of constitutional interpretation. There was no duty on the plaintiff to warn Mr Phyle of his impending predicament (even if the plaintiff knew or realised before the election). The case must be resolved on the basis of what the law provides.

[21] More pertinent is a later (perhaps inconsistent) submission filed by Mr Phyle that his civil rights were restored by Hickey TJ in the course of passing sentence on 7 May 2000. It is upon the judgment of Hickey TJ - and especially upon the remarks quoted above at para. [2] - that both defendants rely in support of the proposition that Mr Phyle's civil rights were restored.

[22] In a surprising move, Mr Hickey (as he now is) sought leave to file an amicus curiae brief. To say the very least, it is unorthodox of a former judge to seeki to appear in a case in which one of his own judgments is under review. In some jurisidctions it is considered unethical for a former judge to appear as attorney before his own court (a rule that must be relaxed in Cyberia for reasons of population), and I have never heard of a former judge seeking to appear amicus to explain his own judgment in another case. For better or worse, the judgments of this Court and all courts must stand or fall on their own expression. I therefore refused to allow Mr Hickey to appear, although (because of the importance of this case) I felt that the better course was to read the brief he filed so as to ensure that no public benefit from Mr Hichkey's wisdom would be lost. I have to say that Hickey TJ's judgment of 7 May 2000 was clearly enough expressed not to require the explanation that Mr Hickey sought to advance in this case.

[23] As no one suggests that Mr Phyle's rights were restored in any way other than by the judgment of Hickey TJ, and as I accept that Hickey TJ intended and purported to restore Mr Phyle's rights, the practial question is whether or not Hickey TJ had (or any judge would have) the power he purported to exercise. I turn therefore to a discussion of how civil rights might be restored.

[24] Civil rights could be restored either by automatic operation of law or by some offical organ of the state exercising a power (granted by law) to do so. It is not suggested by any of the parties that there is a law which by its automatic operation restored Mr Phyle's rights, and I have not independently been able to find such a law. The questions therefore are: did any official or organ of state have the necessary power; and did that official or organ exercise the power in this case?

[25] None of the parties can point to any express provision of the Constitution conferring a power to restore civil rights, and I can find no such provision. None of the parties can point to any express provision of any Act of the legislature conferring such a power, and I can find no such provision.

[26] Yet the Constitution, in s. 1.2 itself, necessarily implies that such a power exists somewhere. A fundamental and difficult question of constitutional law is thereby raised. Where the Constittuion necssarily implies - by an express provision - that a power exists but the Constitution does not allocate that power, in whose (or what) hands does the power lie?

[27] In such a circumstance as this, the answer turns on defining the nature of the power. If the power is executive then the President wields it. If the power is legislative then the legislature wields it. If the power is judicial then this Court wields it. The legisilature makes the law. The executive executes the law. The judiciary rules upon the proper application of the law to given disputes between parties.

[28] It is clear enough that in restoring a felon's civil rights no law is made. In my opinion the power to restore civil rights is not legislative and therefore does not reside with the legislature. This is not to say that the legislature is necessarily excluded entirely from this area of governance. It is not necessary to decide the question in this case but there is an argument that the legislature has an implied power to make laws to regulate (but not abrogate) the exercise of judicial and executive power.

[29] The distinction between executive and judicial power is often harder to discern. The answer cannot be found in the statutes of other jurisdictions, but only at common law. Because this case has been decided on the question of whether or not treason involves moral turpitude a lengthy discussion is not required and can be reserved until the question of power arises for true determination.

[30] The power to restore rights might be judicial because it might arise in a dispute between parties. Hickey TJ obviously thought that the power was judicial and that the question of its exercise arose in the dispute before him. On this question minds might legitimately differ. If the power is judicial, however, then the question arises when it should be exercised. Hickey TJ purported to exercise it at the time of passing sentence. I am inclined to the view that that was premature. If the power is judicial it should have been exercised at the later time when an application was made (and perhaps disputed) for Mr Phyle's civil rights to be restored. Courts do not try to predict the future: they resolve disputes by applying the law to the facts that are already proved in evidence.

[31] I think it is clear the power to restore civil rights is a discretionary power. That indcates that the power is executive in nature (although it does not compel that conclusion). The discretion is granted by law (the Constitution). Where the law grants a discretionary power it is usually executive, rather than judicial - especially where the power is to be exercised in the absence of some legal controversy between parties. It is true that judges have discretionary power, but it is usually incidental to a power to resolve a dispute that arises between parties under the law. The discretion in this case is much broader than a judicial discretion. It is a power that has been conferred by law to act unilaterally. It is not a power to resolve legal disptues. It is a power most analgous to the Royal prerogative of mercy (in the United Kingdom) or the related power of pardon (in the United States). I am therefore inclined (without finally deciding) to view the power is executive.

[32] It would follow that the power would be the President's and it appears that regarding Mr Phyle the power was not exercised. Whether or not Mr Phyle's crime has resulted in a loss of his civil rights from some reason other than the fact that his crime was one of moral turpitude does not arise for determination in this case.

Discretionary reasons to refuse relief

[33] Again, as this case has been determined on the first issue, this issue does not need to be canvassed extensively, but I shall give an indication of my thinking.

[34] Had Mr Phyle not been entitled to vote I do not think that his act of sending an e-mail to the Acting Electoral Commissioner at election time would have amounted to a vote within the meaning of the Constitution. I doubt whether the secrecy of that act would have been protected.

[35] The argument that there would be no utility in ordering a recount - and that therefore a recount should not be ordered - is more finely balanced. In a micronation there may be some utility in the public's knowing - down to the last vote - what the result of the election was, even if a recount did not affect who was elected. That benefit might have to be balanced against the burden that is cast upon the Electoral Commissioner by a recount.

[36] It may be that in a case such as this it is appropriate to make a declaration that a particular person was not entilted to vote, yet decline to order a recount. All this will be decided in a future case or future cases in which the issues fall to be determined.

Order

[37] The Orders of the Court are: THE PLAINTIFF'S CLAIM IS DISMISSED; SUBJECT TO ANY CONTRARY APPLICATION, THE PLAINTIFF IS TO PAY THE COSTS OF THE DEFENDANTS.