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***Kris Kringle*** · 07-04-2022, 11:27 PM

HIGH COURT OF THE SOUTH PACIFIC
[2209.HR] IN-GAME CONSENT FOR A2205.05 AMENDMENT TO ARTICLE XIV
SUBMISSION 02 JUN 2022 | JUSTICIABILITY 05 JUN 2022 | OPINION 04 JUL 2022

APPEAL
Does the action of the Chair to not refer A2205.05 Amendment to Article XIV to the in-game region for consent violate the rights protected by Article Three, Clause Five of the Charter?

SUMMARY OF THE OPINION
It is the opinion of the Court that the Chair's determination on the matter of A2205.05 Amendment to Article XIV - Great Councils is lawful and should be upheld. Consequently, the amendment has the full force of law and all actions taken pursuant to it, in particular A2205.06 Great Council Convening Resolution of 2022, are also deemed lawful. The Chair of the Great Council is instructed to take all appropriate actions as required of them by said resolution.

CHIEF JUSTICE KRINGLE DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE GRIFFINDOR.

A2205.05 Amendment to Article XIV - Great Councils amended the Charter to, among other provisions, remove the requirement that the gameside community be consulted on the convening of Great Councils. Given that Article III, Section 5 of the Charter says that the no law may be passed that ""directly affects the activities of the in-game community without the consent of the in-game community""¹, the High Court has been asked to assess the legality of a determination made by Chair of the Assembly The Haughtherlands (hereafter the Chair) not to refer the said amendment to the gameside community for their consideration. In order to conduct this assessment the Court will first consider the legal basis for the determination and the main legal and juridical implications at hand, this with the objective of proposing a legal test to which the determination can be subjected.

The determination was made on the basis of Article I, Section 4 and Article XIII, Section 2 of the Charter, both which say that any constitutional law 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 community""². It is clear from this that the primary official tasked with deciding when legislation requires gameside consultation is the Chair. It is also apparent from this that the Chair is given wide latitude to decide as they deem most fit; this decision could be based on their expertise and good faith, on consultations with the Local Council, or a different method that the Chair might deem convenient to help them reach their decision.

There are, of course, contextual clues that can help one understand the reasoning behind this provision. Sandaoguo, one of the primary drafters at the 2016 Great Council, said the following regarding the possibility of giving the gameside community a vote on the passage of legislation:

The approach should be functional. What actually affects the game side experience? What kinds of effects are enough to trigger an in game vote? It's one thing to vote on a law because it changes how the LC works, and another to vote on a treaty because it means the Embassies list will be altered.³

The above provides a certain added degree of clarity to the standard to which the Chair could hold themselves when making a determination but it does not necessarily offer greater clarity on the various nuances that they would face in cases such as the present one, nor does it provide guidance on what level of involvement or standard of review the Court should have in such cases. The Court has the power to void the acts of government institutions and officials when they violate the Charter and constitutional law, but this requires a clear basis for review that is lacking in this case. In the absence of further guidance the Court must establish a test that allows it to adequately review the matter while also ensuring that any decisions are not needlessly disruptive and instead preserve the predictability of regional governance. To that extent, the Court deems it convenient to consider three conditions for the review of government decisions, assuming an absence of further guidance:

The matter under review lacks apparent bad faith. It is presumed that the government institution or official acted in good faith and in the interest of adequately and fairly discharging their duties for the benefit of all members of the region, unless compelling evidence to the contrary is obtained.
The matter under review can be explained with rational arguments or supporting evidence that a reasonable person would deem adequate. The actions of government institutions or officials must be consistent with their legal mandates and cannot be capricious or absurd. In deference of the authority given to these institutions or officials, and in the interest of allowing for predictable governance, it is sufficient that the matter under review have a reasonable and rational basis, even if others can also find similarly rational reasons to oppose said matter.
The matter under review lacks a sufficiently egregious or damaging nature that would otherwise overcome the first two conditions. It is conceivable that an action by a government institution or official could cause such evident, egregious, or irreparable damage to an individual, group, or the region at large, that even if it was reached in good faith and has a rational basis, it would be absurd for the Court to allow it to stand. The burden is on whoever makes the claim to provide a convincing argument that this condition is met.

By establishing the above test the Court limits its review to ensuring that actions are not arbitrary, capricious, unreasonable, or egregiously damaging, but otherwise places the onus on government officials and ultimately the citizenry at large to determine how adequate an action truly is.

Having now a legal test, the Court turns to the Chair's determination on the matter of A2205.05 Amendment to Article XIV - Great Councils by evaluating each of the three conditions:

The presumption being that the Chair acts in good faith, the Court has neither found nor been given any compelling reason to decide otherwise.
The Chair was asked to explain their reasoning for the determination, which they did by stating that ""the amendment to Article XIV does indeed take away the confirmation referendum for Great Council resolutions, however (...) it only indirectly affects the game-side""⁴ and further stated that a hypothetical future Great Council ""could affect the gameside directly, but it doesn't mean it will in and of itself and as such can only indirectly affect it""⁵. It is reasonable to assert that the convening of a Great Council does not by itself have a direct effect over the gameside community and its home governance, given how a hypothetical Great Council could alter various aspects of the Charter while leaving the Local Council and other sections of gameside governance intact. To the extent that the Chair's explanation is rational and reasonable, the second condition has been met.
Belschaft, petitioner to this case, has made the argument that the Court should avoid absurd results and suppress whatever harm could arise from upholding the Chair's determination⁶. It is true that a Great Council could conceivably affect gameside governance without the underlying law having been accepted by the gameside community, and the Court understands the gravity of such a concern, but the fact remains that this is a hypothetical scenario that does not translate to any actual harm done to any member of the region. In the absence of actual harm, which would force the Court to consider the reasonability of the decision beyond the presence of a rational basis for it, the Court is reticent to question the judgement of the Chair.

Given that all three conditions have been met, the Court finds that the Chair's determination on the matter of A2205.05 Amendment to Article XIV - Great Councils is lawful and should be upheld. Consequently, the amendment has the full force of law and all actions taken pursuant to it, in particular A2205.06 Great Council Convening Resolution of 2022, are also deemed lawful. The Chair of the Great Council is instructed to take all appropriate actions as required of them by said resolution.

It is so ordered.

FOOTNOTES AND REFERENCES

[1] Charter of the Coalition of the South Pacific; Article III, Section 5 (2022). The MATT-DUCK Law Archive.
[2] Charter of the Coalition of the South Pacific; Article I, Section 4, and Article XIII, Section 2 (2022). The MATT-DUCK Law Archive.
[3] Sandaoguo (2016). Broad solutions to in-game inclusion. Retrieved from https://tspforums.xyz/thread-3958-post-1...#pid122822
[4] The Haughtherlands (2022). RE: [2209.HR] In-game consent for A2205.05 Amendment to Article XIV. Retrieved from https://tspforums.xyz/thread-10502-post-...#pid232095
[5] The Haughtherlands (2022). RE: [2209.HR] In-game consent for A2205.05 Amendment to Article XIV. Retrieved from https://tspforums.xyz/thread-10502-post-...#pid232095
[6] Belschaft (2022). RE: [2209.HR] In-game consent for A2205.05 Amendment to Article XIV. Retrieved from https://tspforums.xyz/thread-10502-post-...#pid232409

2209.HR.O | Issued 04 Jul 2022

Former Delegate of the South Pacific
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