Dear Members, The response by the ICANN legal team is anything but correct. It shows a lack of appreciation of the organisation, LACRALO, and its role in the ICANN spectrum of a multi-stakeholder model. The legal team seeks to politicise this matter. This is not to remove a president or prime minister. This is about two functionaries who do not or cannot understand their role or the rules. The Chair (because it is really a chair and not a president) and Secretariat have the role of facilitating the work of LACRALO members (internet users). There is no political leadership of LACRALO and the only determination is whether or not the chair and secretariat are fulfilling their roles according to the rules of LACRALO. This is not even a democratic question, it is a question based on facts. This is more about customer satisfaction than it is about politics. The sovereignty of LACRALO rests in the decisions of its membership. This is therefore no special motion and does not require a two-thirds majority vote. Even so, to write in a dependency on a two-thirds vote as an amendment to the motion would be contrary to the rules. It should be noted that the founding fathers of LACRALO saw it as creating a mechanism for channelling diverse comments and feedback to ICANN. At this time we cannot discard the notion of the founding fathers because this requirement has not changed. There is need to hear from the bottom and hence LACRALO is not simply an organisation, it is a bottom-up process within a multi-stakeholder ecology. Therefore, there is no inadequacy in the rules and projecting this politicisation on the organisation is not necessary in the circumstances. There was no vision that any party not performing its role requires a special motion for removal. Hence it is not that the rules of LACRALO are not competent to deal with this matter, it is that there seems to be a move afoot to politicise LACRALO and that is exactly what the founding fathers wanted to avoid as they carved out the rules. I would therefore ask that the rules be interpreted in the spirit in which they were written and attempts to subvert them by declaring inadequacies is to move away from the concept of organising users to feed into a multi-stakeholder model. I therefore request that the opinion of the legal team be retracted and properly considered in the spirit of the plain meaning of the rules. ROK From: lac-discuss-en-bounces@atlarge-lists.icann.org [mailto:lac-discuss-en-bounces@atlarge-lists.icann.org] On Behalf Of Humberto Carrasco Sent: Wednesday, 23 September 2015 15:10 To: lac-discuss-en@atlarge-lists.icann.org Subject: [lac-discuss-en] Next steps regarding the motion of no confidence Dear all, We have received the official translations of the motion of no confidence into Spanish and Portuguese. They have already been sent to the LACRALO list and will be published in the wiki page. We have also received from the ICANN Legal Department the input on this issue. The answer is the following: "We have discussed your questions internally, and we consider that LACRALO leadership has to decide on a course of action. As regards LACRALO's rules, we have found provisions related to regular motions only. We have found no provisions related to special motions, and there are no general rules within ICANN that would apply to this situation. If the leaders determine that this falls within the category of regular motions, then LACRALO must follow the procedure established in its regulations. In general, the ICANN community is based on the accountable and responsive participation of the whole multistakeholder community, and encourages LACRALO members to meet in order to collectively address the issues raised in this motion." We believe that no LACRALO Rule of Procedure (RoP) or Operating Principle supports this motion. However, we also believe that we must listen to your opinion. Therefore, based on Article 11 of LACRALO RoPs, we propose the following resolution: "LACRALO lacks competence to rule on the motion of no confidence presented by Mr. Carlton Samuels because there are no rules regulating this situation, and so the motion cannot be handled." Also, in case you consider that LACRALO does have competence to rule on this motion and you reject the proposed resolution, we want to submit to a vote, in a subsidiary manner to the proposed resolution above, an amendment to the operative part of Mr. Samuels' motion. This amendment consists in adding the following phrase to the operative part of the motion of no confidence: "Resolved: The General Assembly shall demonstrate its lack of confidence in LACRALO leadership and shall vote on this motion. This motion shall be considered approved by the vote of a two-thirds majority of the ALSes' representatives present and voting." The motion of no confidence submitted is known in legal doctrine as "destructive motion of no confidence". This variation seeks to remove the Prime Minister or the President from government without discussing how to replace him/her and fill the power vacuum. In a parliamentary system, a new President or Prime Minister would then have to be elected (https://es.wikipedia.org/wiki/Moci%C3%B3n_de_censura). In institutions or governments where the motion of no confidence is regulated, there are specific requirements both for submission and approval. We consider that the requirement of a two-thirds majority of the ALSes' representatives present and voting is supported on Rules 83 and 84 of the Rules of Procedure of the General Assembly of the United Nations (UNGA) (http://www.un.org/es/ga/about/ropga/ropga_plenary.shtml). These rules read: Rule 83 [Rules 82, 83 and 85 reproducing textually the three paragraphs of Article 18 of the Charter] Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 c of Article 86 of the Charter, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions. Rule 84 [see introduction para. 10] Decisions of the General Assembly on amendments to proposals relating to important questions, and on parts of such proposals put to the vote separately, shall be made by a two-thirds majority of the members present and voting. Rule 18.5 of the RoP establishes that "Important Questions" shall mean "matters of substance" when referring to UNGA rules. We understand that the removal of the regional leaders is an important question or matter of substance requiring a quorum greater than normally required. Also, it must be taken into account that the outcome of this case will set a precedent for similar situations in LACRALO. That is why we propose the aforementioned two-thirds majority requirement. In view of the aforesaid, we propose the following voting calendar: The proposed resolution and amendment will be published in the wiki page within 24 hours. After that, the discussion will be opened until 8 October 2015, 23:00. FIRST The voting process regarding the proposed resolution will begin on 9 October 2015, 00:00. And it will close on 16 October 2015, 23:00. The voting process shall be governed by rules 12, 19 and 20 of LACRALO's RoP. Concerning the proposed resolution, the following question will be asked: Do you believe that LACRALO is competent to vote a motion of no confidence? 1. Yes, the motion of no confidence must move forward. 2. No, the motion of no confidence must be ignored. a.- If the NO wins, the proposed resolution shall be considered approved. As a consequence, the proposed amendment and Mr. Samuels' motion of no confidence must be ignored. SECOND b. - If the YES wins, the proposed resolution shall be considered rejected. In this case, a voting period on the amendment will be opened. The voting process regarding the proposed amendment will begin on 19 October 2015, 00:00. And it will close on 26 October 2015, 23:00. The voting process shall be governed by rules 12, 19 and 20 of LACRALO's RoP. The question to be answered will be: Do you agree with the following amendment to the operative part of Mr. Samuels' motion? "Resolved: The General Assembly shall demonstrate its lack of confidence in LACRALO leadership and shall vote on this motion. This motion shall be considered approved by the vote of a two-thirds majority of the ALSes' representatives present and voting." 1.- YES 2.- NO c. - If the YES wins, the amendment shall be considered approved. In this case, a voting period on the amended motion of no confidence will be opened. In this case, there will be no need to rule on Mr. Samuels' motion. The voting process on the amended motion of no confidence will begin on 30 October 2015, 00:00, and will finish on 6 November 2015, 23:00. The voting process shall be governed by rules 12, 19 and 20 of LACRALO's RoP. Do you agree to approve, by the vote of a two-thirds majority of the ALSes' representatives present and voting, the motion of no confidence in LACRALO leadership? 1.- YES 2.- NO d.- If the NO wins, the amendment shall be considered rejected. In this case, a voting period on Mr. Samuels' motion of no confidence will be opened. The voting process on Mr. Samuels' motion of no confidence will begin on 30 October 2015, 00:00, and will finish on 6 November 2015, 23:00. The voting process shall be governed by rules 12, 19 and 20 of LACRALO's RoP. Do you agree to approve the motion of no confidence in LACRALO leadership? 1.- YES 2.- NO Attached you will find the versions in Spanish, English and Portuguese of this response. Regards