Your Honours,

In place of a traditional Amicus Curare brief it is my intention to;

1. Respond to the arguments presented to the Court by other members acting as amicus curiae
   
2. Respond to the information provided by the Chair of The Assembly
   
3. Present my own argument based upon these responses
   

(06-06-2022, 04:33 PM)Domais Wrote:

HIGH COURT OF THE SOUTH PACIFIC
AMICUS BRIEF

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ARGUMENT
Your Honor,

Article Three, Section Five of the Charter does not prevent the amendment from taking effect because Article Thirteen, Section Two of the Charter supersedes it. Whereas Article Three, Section Five of the Charter deals with general laws, Article Thirteen, Section Two, however, directly deals with amendments. It is only natural that a section directly dealing with amending the Charter should take precedence over a general provision found somewhere else.

Even if Article Three, Section Five of the Charter does effect amendments, the petitioner's claim would still be meritless. The Chair has the power to determine whether or not an amendment affects the gameside community and cannot be challenged unless that determination is "sufficiently egregious." The Chair has ruled that this amendment does not affect the gameside community. Although the petitioner claims that the amendment removes the right of consent; therefore, it does affect the gameside community, the Court cannot sustain this claim because valid arguments to the contrary are present, namely that the amendment does not have any direct effect on the day-to-day operation of the gameside community. Naturally, the question of why that argument is "sufficiently egregious" arises. Petitioner does not explain why this reasoning is "sufficiently egregious," Since they are trying to overturn the Chair, they must provide not merely present an alternative rationale to the contrary.

The Chair’s ruling is not egregious or even "sufficiently egregious" and can be substantiated by a logical argument. Thus, the Chair's determination about the said amendment is legally valid. Since the judgment is legally correct, how can the amendment legally affect the gameside community?

Therefore, the decision of the Chair must be affirmed.
 

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Submitted to the High Court of the South Pacific

In their brief Domais has argued that Article Three, Section Five of the Charter cannot take effect as it is a "general provision" which "deals with general laws" and thus subservient to Article Thirteen, Section Two of the Charter which "directly deals with amendments." This argument is incorrect as a matter of law, as Article Three, Section Six of the Charter states that "(6) The High Court may strike down any general law or action that violates any right or freedom found in this Charter". As the matter in question is an action carried out by the Chair of The Assembly the supremacy of Article Three, Section Five of the Charter is clearly established.

Domais further argues that "the Chair has the power to determine whether or not an amendment affects the gameside community and cannot be challenged unless that determination is "sufficiently egregious."" This is a legal test of Domais own creation based on an informal explanation provided by the Chief Justice, which has no legal weight in of itself. The legal requirement established by Article Three, Section Six of the Charter for the intervention of the Court is that "any general law or action . . . violates any right or freedom found in this Charter". There is no requirement that such a violation be egregious, or even harmful; the Charter authorises - though does not mandate - the Court's intervention whenever such a violation occurs.
 

(06-07-2022, 04:26 AM)Bleakfoot Wrote: Your Honors,

Brief amicus curiae in the matter of in-game consent for A2205.05

Is the Chair's decision challengeable in this Court?
Domais is wrong to claim that Article XIII of the Charter somehow "supersedes" Article III. Interpreted correctly, there is no conflict between the provisions at all. Article XIII, section 2 affords the Chair of the Assembly the discretion to rule on whether an amendment affects the gameside community. However, this discretion is not unfettered. The various provisions of Article III, as well as other elements of constitutional law, set limits on how this discretion may be exercised.

Were, for example, the Assembly to decide in future to carry out its threat to abolish the Local Council, and voted to amend the Charter by repealing Article V, the Chair of the Assembly could decide in accordance with Article XIII that the amendment does not require gameside consent. According to Domais' argument, this decision could not be challenged by this Court despite being an obvious breach of the gameside's Article III rights.

What is a "sufficiently egregious" breach?
The Petitioner and the opponents of this petition are in agreement that, if the Court's power to overturn the Chair's decision exists at all, it should only be exercised in cases where the Chair's abuse of power is "sufficiently egregious" to merit judicial intervention.

This is a high bar. In English law there is a principle known as Wednesbury unreasonableness, which holds that a court may only find a decision unreasonable if no reasonable person, acting reasonably, could have made it. It is not enough for a court to say it would have acted differently. While the High Court of the South Pacific is not an English law jurisdiction, I submit that the Wednesbury principle is a sound enough basis on which the Court should approach cases like these.

In other words, the issue before the Court is whether a reasonable Chair, acting reasonably, could possibly have concluded that the amendment to Article XIV of the Charter does not "directly affect" the gameside community.

Although this is a high bar, I submit that it has been met in this case. The text of Article XIV itself makes clear that the purpose of a Great Council is to rewrite or amend the constitutional laws of the South Pacific in a systematic manner. As well as removing the gameside's role in the convening of Great Councils, as highlighted by the petitioner, the amended Article XIV provides no protection for the gameside in any form. To repeat the example above, it would allow a Great Council to abolish the Local Council without gameside consent, since Article III, Section 5 of the Charter only prevents the Assembly from passing laws that affect the gameside without their consent.

The amended Article XIV therefore represents a significant diminution of the gameside's rights to self-determination. It may be that the gameside community is happy to defer to the forum in this regard, and give up their rights to approve the output of Great Councils. However, no reasonable Chair could possibly conclude that this was the case without first asking them.

Remedy
As the Petitioner points out, the Court has the power to strike down the Chair's decision to refuse a gameside vote in accordance with Article III, Section 6 of the Charter. It also has the power to declare the Chair's decision void in accordance with Article VIII, Section 4. The effect of using either of these powers would be identical in practice, requiring the Chair to submit the amendment to a gameside vote before the amendment is adopted as part of the Charter. The Court will also need to decide, as a consequential matter, how to approach the passage by the assembly of resolution A2205.06, which purports to convene a Great Council under the revised Article XIV.

In accordance with the rules of the High Court, I remain at the Court's disposal for follow-up questions and clarifications.

I endorse the legal argument presented by Bleakfoot in "Is the Chair's decision challengeable in this Court?".

I disagree with Bleakfoots adoption of "sufficiently egregious" as the necessary standard for judicial intervention, but endorse their adoption of the Wednesbury standard of unreasonableness. I endorse their argument that the amendment has such a "significant diminution of the gameside's rights to self-determination" that no reasonable chair could conclude that it did not directly affect the gameside community and it's home governance.

I endorse the legal argument presented by Bleakfoot in "Remedy".
 

(06-09-2022, 03:31 PM)The Haughtherlands Wrote:

HIGH COURT OF THE SOUTH PACIFIC
INVITATION TO INFORM

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ARGUMENT
Your Honours,

The amendment to Article XIV does indeed take away the confirmation referendum for Great Council resolutions, however the way I viewed and still view it, it only indirectly affects the game-side. The Council could affect the game-side directly, but it doesn't mean it will in and of itself and as such can only indirectly affect it. I do not find it egregious to not refer the bill to the game-side when it doesn't directly affect it as required by law.

In my consideration, I also noted that it is a fact that representatives (or anyone for that matter) of the game-side may attend a Great Council, and have a voice and vote in all matters, including those that directly affect the game-side.

There's not much else to say unless I write a bunch of tautologies.

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Submitted to the High Court of the South Pacific

Your honours, the Chair's interpretation of the law in this manner would have the effect of rendering all legal protections and grants of power to the game-side community in the Charter meaningless. This exact same argument could be applied to Article Three, Section Five of the Charter itself as removing a specific legal protection of home governance doesn't "directly" effect the game-side community by the Chair's logic - only the specific act of removing or restricting said home governance would qualify should the Chair's ruling stand. This would enable the following process;

1. Protections and grants of power requiring game-side consent are removed from the Charter
   
2. Home governance is then withdrawn from the game-side region without the necessity of consent
   

This is clearly contrary to the intention of the law, even if under the Chair's specific - and absurd - interpretation of the Charter it may be lawful.
 

(06-10-2022, 12:09 AM)The Haughtherlands Wrote:

HIGH COURT OF THE SOUTH PACIFIC
INVITATION TO INFORM

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ARGUMENT
Your Honours,

Even though it does deprive them of confirming Great Council resolutions, I view it as not directly affecting it's activities nor governance. I did consider it, but, as stated previously, I truly don't see eye-to-eye with Belschaft on this one so I chose not to hold a referendum.

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Submitted to the High Court of the South Pacific

Your honours, the principle of consent is so central to home governance that they cannot be separated. The Chair actively acknowledges in their answer that his ruling "does deprive" the in-game community of their right to vote on whether or not confirm the Great Council resolution. This answer should have the effect of settling this entire legal question; convening a Great Council - and potentially rewriting our entire body of law - has an obvious and incontestable impact on the game-side community and its home governance.
 

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Your honours, this question is ultimately about a simple principle; is home governance to be respected? Can the Assembly remove a law making a specific grant of power to the game-side community without it's consent? Our laws - and in particular Article Three, Section Five of the Charter - are written in such a way as to provide legal protections to the game-side community and it's right of home governance. This a foundational principle of our entire government outlined in the very first Article of the Charter;

"Any constitutional law passed by the Assembly that directly affects the gameside community or its home governance, as determined by the Chair of the Assembly, must also receive the consent of the gameside before coming into force, where that consent shall not require more than a three-fifths supermajority in a vote."

Should the Court allow those sections of the law establishing such legal protections - either in the form of grants of power or protected rights - to be removed without the consent of the game-side community then it would fundamentally and fatally undermine the entire principle. All protections for the game-side community and it's right of home governance would be rendered meaningless. It is true that the Charter empowers the Chair with the determination of which laws and amendments require game-side consent, but this is an administrative function. Our laws are written on the basis of good faith, with the assumption that government officials will make fair and objective decisions, and as such the Chair is given this power - despite the now apparent potential for mischief. But our laws also provide a remedy for mischief - the intervention of the Court.

The Golden Rule of statutory interpretation is simple - the Court shall avoid an absurd result.

The Mischief Rule of statutory interpretation is also simple - the Court shall suppress whatever harm the law was intended to prevent.

The logic of the Chair would destroy a foundational principle of our laws. It would undermine - effectively nullify - every single section of the Charter which grants legal protections or powers to the game-side community. It would have the effect of ending home governance by transforming it from a legal right into a temporary gift of the Assembly which could be withdrawn at any time.

It would be contrary to the clear and unambiguous intent of the law.

It would directly enable the very mischief the relevant section of law was intended to prevent.

It would be absurd.

This is not a legal dispute about one single amendment; it is a legal dispute about a fundamental and foundational principle of regional law. The Court has the option of ruling on a narrow, technical basis and upholding the determination of the Chair; but it cannot pretend it does not know what the effect of such a ruling would be.

The Court would make itself party to the very mischief it is meant to prevent.