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HIGH COURT OF THE SOUTH PACIFIC
[2103.HQ] ENFORCEABILITY OF ARTICLE 2.2 OF THE LEGISLATOR COMMITTEE ACT
SUBMISSION 18 MARCH 2021 | JUSTICIABILITY 19 MARCH 2021 | OPINION 01 APRIL 2021
QUESTION
Is "The Committee shall confirm the reception of an application within 48 hours" a binding requirement on the Legislator Committee or not?
SUMMARY OF THE OPINION
It is the opinion of the Court that the Legislator Committee is bound by the timing requirement laid out in Article 2, Section 2 of the Legislator Committee Act. However, there is no sanction, under current law, that the Legislator Committee may face, and, as such, the timing requirement is essentially nulled. The Assembly of the South Pacific is recommended to do as they see fit to either make the requirement binding by associating a penalty or crime to noncompliance, repealing the timing requirement, ensuring a constant (sufficient) staffing, or acting on any other solution that this Court did not mention.
JUSTICE GRIFFINDOR DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE BELSCHAFT.
This Court has been asked to rule on the enforceability of Article 2, Section 2 of the Legislator Committee Act on the Legislator Committee. The question arose after Altmoras, a new legislator in the South Pacific, found that his application for legislator status was seemingly forgotten and not being acted upon by the Legislator Committee. The Court brought temporary relief to those waiting for their applications for legislator status to be addressed in the form of an injunction designed to compel the Legislator Committee to act while the case was deliberated.
In their case submission, Altmoras showed several examples over the last couple of months of instances where the Legislator Committee had exceeded the time limits for notifying the applicant of their legislator application being received by the committee. According to Article 2, Section 2 of the Legislator Committee Act, “the Committee shall confirm the reception of an application within 48 hours.”[1]. The examples provided by Altmoras showed several instances of the Legislator Committee taking between one to two weeks to confirm receipt of the applications, far exceeding the maximum time under the law of 48 hours, or two days. Moving forward, Article 2, Section 2 of the Legislator Committee Act also says that the Legislator Committee “shall strive to accept or deny each applicant within a week.”[1]. This clause is not a binding clause upon the Legislator Committee but rather a recommendation. Since it has been established that the Legislator Committee has taken up to two weeks to address some applications, the recommendation previously mentioned cannot be fulfilled, thus providing for an uncertain timeframe when an applicant should hope for a response from the Legislator Committee on the final status of their application.
The Legislator Committee, in missing the 48-hour deadline and/or the recommended seven-day application decision deadline, violated the law (with regard to the 48-hour deadline specifically) in a way that impacts the new or returning citizens of the South Pacific from actively participating in the regional government. In many cases, the first few weeks after joining the regional forums is the most important time for a new citizen to become integrated into the community and begin taking part in the governance of the region. If a citizen must wait an excessively long time to receive their legislator status, many, if not most of them will not stick around long before going inactive.
Altmoras makes an interesting argument when they say that the Legislator Committee could, in effect, disenfranchise citizens of the region from participating in the government, specifically the executive, by not acting on their legislator application[2]. This argument would be a valid argument only if the recommended seven-day return on the application were a strict seven-day return mandate. As Prime Minister and Council on Regional Security member Sandaoguo said to the Court, when challenging the initial injunction issued by the Court[3], the lack of the hard seven-day decision grants needed flexibility to the Legislator Committee to consult with other government bodies, such as the Council on Regional Security, when reviewing a legislator application. No inherent disenfranchisement is present solely because an application takes longer than seven days to be processed. If the seven-day recommendation was a mandate and the Legislator Committee went over the limit, then an argument for disenfranchisement could be made.
The Legislator Committee is legally bound by the 48-hour requirement but currently finds itself in the unique position of being effectively immune from the requirement since there is no penalty for violating the clause under current law. The intention of the Assembly when drafting the timing requirement was undoubtedly included to prevent applications from going unaddressed for an excessively long time. However, the Assembly left no mechanism or process to follow in the event that the timing requirement was violated.
The Court recommends that the Assembly address and amend the timing requirement to prevent its violation in the future. How the Assembly addresses the timing requirement does not particularly matter to the Court, nor will the Court indicate its preference in either way. The Assembly could choose to amend Article 2, Section 2 of the Legislator Committee Act by associating a penalty or crime for noncompliance, repealing the timing requirement altogether, ensuring a constant (sufficient) staffing, or acting on any other solution that this Court did not mention. The Court would like to thank the Cabinet and Assembly for working to confirm new members to the Legislator Committee. The Court would also like to thank the Legislator Committee for addressing and complying with the original and reissued injunction pertaining to the outstanding legislator applications. The reissued injunction is hereby nullified, as the case has now concluded.
It is so ordered.
2103.HQ.O | Issued 01 April 2021
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