Your Honourable Justices,
The following amicus brief is respectfully submitted by BEEPEE to aide the Court in its consideration of the legal question posed by BELSCHAFT
What voting threshold does the law mandate to amend a law not marked as Constitutional?
Does the Chair of the Assembly have the power to set a threshold other than one mandated by the law?
Known as
Voting Thresholds [HCLQ1906]
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The Legal Question submitted by BELSCHAFT, is in fact two set questions, to aide the court I shall take each in turn
What voting threshold does the law mandate to amend a law not marked as Constitutional?
The Legislative Procedures Act defines the procedural rules for the Assembly and the Chair in the consideration and determination of Acts.
Article 1, Section 4 sets out the voting thresholds required for an Act to be passed by the assembly:
(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.
Prima facie, the answer to BELSCHAFTS first question appears to be that any amendment to a law or Act not marked as Constitutional will require a simple majority to pass.
There is, however, an exception to the Legislative Procedures Act in that, at Article 4, Sections 8 and 9 of the Criminal Code (for example) provides a 60% threshold is required for designating, or rescinding, prohibitions. (As follows)
(8) Regions at war with The South Pacific or with which The South Pacific is at war shall be automatically considered Prohibited Groups.
a. The Assembly may further designate Prohibited Groups via a vote with a 60% majority in favor, should the Cabinet or the Council on Regional Security request such a designation.
(9) The Assembly may rescind a Prohibited Group designation via a vote with a 60% majority in favor.
Therefore, limited exemptions exist to the
prima facie response.
It would not be, I respectfully surrender, wise for the Courts to list exceptions rather to note exceptions exist.
I turn now to the second of BELSCHAFT’s Questions.
Does the Chair of the Assembly have the power to set a threshold other than one mandated by the law?
In BELSCHAFT’s original statement to the Court he noted that the matter law involved was the Criminal Code. The Criminal Code is not, as far as I can ascertain, a Constitutional Law.
It is anticipated by Legislative Procedures Act that the wording of the Act will be followed, and as such a change to the Criminal Code (save the exception mentioned above) can be carried out by a simple majority.
As I understand it, BELSCHAFT contends that CHAIR NAKARI incorrectly applied discretion to amend a voting threshold from simple majority to 60% “super-majority".
Article 2 of the Legislative Procedures Act sets out the powers of the Chair. Section 3 of Article 4 provides discretionary to the Chair of the Assembly. No details are provided to explain what these discretionary powers are. The powers cannot be free ranging and cannot, surely, be to usurp the law as written. Therefore the Chair would have no powers to amend the voting majorities. If the sections following Article 4 (3), set out the discretionary powers provided, this is not clear; however it could be considered a reasonable interpretation of the law. Nothing in the sections following Article 4(3) permit the Chair to amend the voting majorities .
CHAIR NAKARI responded such that the proposal, involving the removal of the Prohibited Grouping (Article 4(10)) – known as “the Empire" necessitated a 60% majority rather than a 50% simple majority.
The Criminal Code, as written, would require a 60% majority to remove the prohibition when repealing the Code, as proposed. Indeed it would have been a reasonable assumption for legislators that the code would not be withdrawn with prohibitions still existing and as such the question of simple or super majority was not broached.
There is a reasonable logic followed by CHAIR NAKARI that requiring two votes one with a simple- and one with a super-majority would be excessive. It would seem reasonable that the Chair could use discretionary powers to clarify this mixed voting requirement and it would appear logical to accept the higher bar in this instance, to avoid falling foul of the exemption provided at Article 4, Sections 8 and 9 of the Criminal Code.
Had the vote proceeded similarly to the votes cast in two rounds of voting, rather than the process instigated by CHAIR NAKARI, the prohibition of the Empire would remain, with no prohibition law attached to it. This would result in an
ultra vires prohibition of the Empire.
CHAIR NAKARI has submitted that such discretion has been implemented in the past. Whilst the Court may find some comfort in the previous actions, I do not find the precedent convincing as each relates to linked separate legislation.
I trust the above aides the Court in its consideration of the Legal questions, and I would be happy to provide further assistance if require.
Yours, respectfully
BEEPEE
