Your honour,

In a recent ruling the Chair of the Assembly (CoA) used their discretionary powers to alter the voting threshold for amending the Criminal Code from a simple majority to a supermajority, in direct contradiction of the thresholds explicitly mandated by the Legislative Procedure Act (LPA).

Article 1.4 of the LPA clearly and unambiguously mandates specific voting thresholds for general and Constitutional laws. These thresholds are respectively set as a simple majority and a three-fifths supermajority.

Legislative Procedure Act, Article 1.4 Wrote:(4) General laws, amendments, resolutions, and treaties require a simple majority of those voting to pass. Appointments, unless otherwise specified, require a simple majority of those voting to pass. Constitutional laws, constitutional amendments, and resolutions dealing with matters of constitutional law require a three-fifths supermajority of those voting to pass.

Article 1.1 of THE CHARTER OF THE SOUTH PACIFIC (Charter) outlines the distinction between Constitutional laws and General laws, and mandates that all Constitutional laws be specifically marked as such.

THE CHARTER OF THE SOUTH PACIFIC, Article 1.1 Wrote:(1) Laws that form the foundation of our community, are considered fundamental to governance, or otherwise are considered of great importance by the Assembly, are to be known as “constitutional laws” and marked as such.

A standard format for marking laws as Constitutional has been developed to comply with the requirements of Article 1.1 of the Charter, which is as follows: “The XXX is a constitutional law, and further amendments to it must meet constitutional amendment requirements.” This marking is used on all four laws designated as Constitutional in accordance with Article 1.1 of the Charter. These laws are the Elections Act, the Legislative Procedure Act, the Legislator Committee Act, and the Proscription Act.

Elections Act, Article 8.1 Wrote:8. Constitutional Law

(1) The Election Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements

Legislative Procedure Act, Article 3.1 Wrote:3. Constitutional Law

(1) The Legislative Procedure Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements.

Legislator Committee Act, Article 4.1 Wrote:4. Constitutional Law

(1) The Legislator Committee Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements.

Proscription Act, Article 5.1 Wrote:5. Constitutional Law

(1) The Proscription Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements.

Two additional acts of the Assembly are marked as constitutional in accordance with the requirements of Article 1.1 of the Charter. The Charter establishes it’s supremacy over all other laws including all other Constitutional laws in Article 1.3, whilst Resolution on Adopting Defending Military Principles (ADMP) includes a clause resolving that the Assembly “Considers this resolution a constitutional law“.

THE CHARTER OF THE SOUTH PACIFIC, Article 1.3 Wrote:(3) This Charter is a constitutional law holding supremacy over all others, and defines the purpose of our government and its framework

Resolution on Adopting Defending Military Principles, Resolved Three Wrote:(3) Considers this resolution a constitutional law, to show our dedication to upholding these principles by considering them a fundamental aspect of our governance.

The commonality of all six acts of the Assembly that can be considered Constitutional is that they contain within them a specific written reference to the fact that they are to be considered such, in keeping with the requirements of Article 1.1 of the Charter. The Criminal Code does not use the standard format for marking laws as Constitutional, nor does it contain any other form of written reference that it should be considered as such in keeping with the Charter or the ADMP. As such it cannot be considered a Constitutional law.

It can be clearly seen that the Assembly has the power to designate laws as Constitutional or otherwise, and that the choice of this designation has the sole effect of determining the required voting threshold for amendments or resolutions relating to this law. The fact that the Assembly chose to not mark the Criminal Code as a Constitutional law is thus clear indication that it did not intend for it to require a supermajority to be amended.

In addition to this, Article 2 of the Legislative Procedure Act enumerates the specific powers and responsibilities of the CoA.

Legislative Procedure Act, Article 2 Wrote:2. Powers and Responsibilities of the Chair

(1) The Chair is responsible for creating voting threads and recording votes. In the event that the Chair does not perform these duties in a reasonable time frame, any legislator may create voting threads and record votes.

(2) The legislative history of each law will be recorded by the Chair. Legislative history will include reference to debate threads, voting results, and amendment history.

(3) The Chair must document the use of their discretionary powers including a rationale for using those powers in the relevant debate thread.

(4) The Chair may correct typographical errors, grammatical errors, naming or formatting inconsistencies at any time, as long as these corrections do not alter the original intent of the law, following a three day period in which the corrections are presented to the assembly for comments. Any such corrections must be recorded with the legislative history of each law.

(5) The Chair may delay votes for a reasonable time frame if done for the purposes of vote scheduling or to avoid preemption of active debate by a vote.

(6) The Chair may freely appoint any number of deputies, who will be authorized to perform those legislative duties of the Chair that the Chair permits. Any changes in the roster of deputies must be posted publicly.

(7) The Chair may waive the mandatory debate period remaining on a particular piece of legislation should a legislator motion for them to do so, provided that there has been no objection within 24 hours of the motion being made and seconded.

A cursory reading of this article shows that the power to set voting thresholds other than those mandated by the LPA is not a power granted to the CoA. As such the CoA has exceeded the lawful powers of their office in doing so. Petitioner has identified to the CoA the unlawful nature of their actions and suggested a remedy which would avoid a burdensome Court case, but this remedy has been refused and the CoA stands in wilful defiance of the law.

Having demonstrated both reasonable cause and a sound legal basis for raising this matter, petitioner asks the following questions of the Court,