Granted.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
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Reply

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
   

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.
 

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".
 

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.
 

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.

_{Minister of Media, Subversion and Sandwich Making}
^{Associate Justice of the High Court and Senior Moderator}

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PREVIOUS ROLES

Former Delegate (x2.5)
Former Member of the Committee for State Security
Former Chief Justice of The High Court (x3)
Former Minister of Foreign Affairs (x2)
Former Chair of the Assembly (x3)
Former Minister of Security (x2)
Former Local Councillor (x2.5)
Former Forum Administrator
Former Minister of Media

(This post was last modified: 06-18-2022, 04:30 AM by Belschaft.)

Reply

Your Honors,

Amicus curiae brief for 2209.HR

I would like to mention case 1705.HQ. While it refers to a different section of the Charter than this one, where that one asked about Article 5.2 and this one asks about Article 3.5, I believe that the ruling that the law only affects the passing of new legislation and not the amending or repealing of legislation.

Article 3.5 of the Charter states:

No law may be passed by the Assembly that directly affects the activities of the in-game community without the consent of the in-game community.

Assuming "law" is a synonym for "legislation", we can see that the law states that no piece of legislation can be passed by the Assembly without in-game consent. The Charter makes no mention that amendments of legislation or repeals of legislation must be given the consent of the in-game community.

Therefore, I believe that the court case 1705.HQ serves as precedent in this case, and that an amendment of the Charter does not require in-game consent to be passed.

Thank you.

"After he realizes this newfound power of his to override the hopes and dreams of republicans, he puts all of the united provinces under his control."
one time minister of culture

(This post was last modified: 06-19-2022, 07:29 PM by im_a_waffle1.)

Reply

Your Honours,

Amicus brief by Jebediah

While the last amicus brief may be correct, and also applies to Article 1.4 of the charter, which states...

"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."

...this is of no bearing to the case, as there exists a very similar Article 13.2:

"Any amendment to the Charter or constitutional laws 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 before coming into force, where the consent shall not require more than a three-fifths supermajority in a vote. Additionally, the Local Council may originate amendments to its structure in the Charter, which must receive the consent of the Assembly before coming into force."

While these have differences between them, the notable parts for the purposes of this case - on whether or not this amendment should go to a gameside referendum - do not change between either section. The only difference is that one applies to new legislation, while the other applies to amendments (both apply to all constitutional laws, however one of them mentions the Charter by name while the other does not). In light of this, I beg the court to consider arguments made with an erroneous use of Article 1.4 as if they were using the correct Article 13.2.

Reply

Your Honors, 

I wish to apologize for the delay in my writing an amicus brief for this case, I've been prioritizing other matters. 

While Belschaft presents a rhetorically powerful case for the "consent" of the gameside community to any change potentially effecting them, his argument is far removed from the reality of the language in the Charter and endorsing it would be an absurd endorsement of a populist rewriting of our laws.

If the Charter read "the gameside shall vote to approve any proposal which affects the practices, idea, or concept of the gameside", then Belschaft's argument would be correct. However, that is not how the Charter reads in any of the relevant components. I argue the Court should rule the amendment constituitonal. I will turn to each component and explain why it does not apply.

Article I, Section 4 of the Charter reads as follows:

(4) 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.

In order for a constitutional law to require the consent of the gameside community before entering into effect, it must meet several stipulations.

• The amendment must directly affect the gameside community. The use of the word "direct" is deliberate and opposed to an indirect affect. In this case, the amended Article XIV's affect on the gameside community is at best indirect, as no activities of the gameside are in fact limited by the amendment to change the Great Council procedure.
  
• The amendment must affect the community or its home governance. Changing the procedure for calling a Great Council does not affect the community--no part of RMB activity or communication is modified. Nor does it affect its home governance, as the amendment to Article XIV does not change RMB rules or activities or the internal administration of the gameside (i.e. Local Council elections). If the Assembly had passed a law stating "The Local Council must ban double posting" or "The Local Council must move to six month terms", this would violate Article I, Section 4.
  
• The concept of "consent" does not appear in this article in the way Belschaft describes it. "Consent" is not a thing which the gameside always must do, it is something which is only required if the conditions of the Charter are met.
  

If the Court believes Article III, Section 5 of the Charter to prohibit the amendment to Article XIV altogether, then the portion of Article I, Section 4 that gives the power to make that determination to the Chair of the Assembly should be considered prior because Article I of the Charter "[d]efines the supreme laws of our community", which is prior to defining other components of the regional government.

The phrase "as determined by the Chair of the Assembly" is significant. I accept Bleakfoot's understanding/standard of "sufficiently egregious", however I disagree as to whether it applies in this case. The Chair did not err in a sufficiently egregious way in the context of the specific phrases used. The example used by Bleakfoot is not applicable. The Chair has not ruled an amendment an amendment abolishing the Local Council does not require gameside consent, rather that a different procedure for rewriting the laws of the Coalition does not require gameside consent. In this, there is a crucial difference. Furthermore, Bleakfoot's argument that this will result in the Great Council being able to abolish the Local Council without the consent of the gameside is based on a future possible scenario, something which is by definition indirect rather than direct. Additionally, such an occurrence would be a political question, which the Court should err to avoid.

While the Court may be dissatisfied with the strength of the Chair's reasoning for their determination, satisfaction (or lack thereof) with the thoroughness of this explanation is a political question rather than a question of law. If the Assembly were dissatisfied with the outcome or level of rigor which the Chair applied to this question, then the Assembly may either recall the Chair or choose to not re-elect the Chair. It is not for the Court to decide if the Chair's reasoning was itself sufficient, rather whether the Chair's action was sufficiently egregious. Furthermore, I disagree with Belschaft's characterization that the Chair's decision was in bad faith. This is not reflected in the reasoning provided by the Chair, and the inconsistency of the Chair's previous administrative rulings (e.g. the ruling on PhilipMacaroni's vote) with the supposed objective of promptly beginning the Great Council discredits the theory the Chair was acting in bad faith.

Article III, Section 5 reads:

(5) No law may be passed by the Assembly that directly affects the activities of the in-game community without the consent of the in-game community.

Again, the phrase "directly affects" and "activities" appear in this section. The amendment to Article XIV does not directly affect the activities of the in-game community because it does not directly limit the Local Council's ability to run activities, programming, or self-govern. Any potential affect is indirect in nature, rather than direct, and would be done by the Great Council, rather than the Assembly. Per the language of the amendment to Article XIV, the Great Council is a legally distinct body with distinct composition of membership from the Assembly, and thus is not bound by Article III, Section 5. Therefore, the Court cannot even rule against the amendment on the basis of potential "direct affects" by the Great Council, as the Great Council is distinct from the Assembly, which is the body affected by Article III, Section 5.

Article XIII, Section 2 reads:

(2) Any amendment to the Charter or constitutional laws 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 before coming into force, where the consent shall not require more than a three-fifths supermajority in a vote. Additionally, the Local Council may originate amendments to its structure in the Charter, which must receive the consent of the Assembly before coming into force.

Article XIII, Section 2 does not introduce any additional protections beyond those contained in Article I, Section 4 and uses the same phrasing "directly affects the gameside community or its home governance, as determined by the Chair of the Assembly". As a result, I will not reduplicate my analysis.

I will add that Article XIII, Section 2 is self-evidently the clause of the Charter intended to provide an agent and procedure for execution of the guarantees provided in Article III, Section 5. Article III, Section 5 provides a guarantee of a right to consent to the gameside. In this case, the Court should not intervene to decide how Article III should be executed and compliance determined where the Charter has already provided a mechanism. While the Court's mandate does supply an ability to reconcile incompatible sections of the Charter, this is not the case because the Charter explicitly intends Article XIII, Section 2 to be the political process for executing Article III, Section 5's rights guarantee.

Belschaft concludes his amicus brief by arguing such a result is "absurd".

In order to prefer Belschaft's reasoning, one has to intervene in order to utilize completely distinct language from the language available in the Charter. The Court has in the past given rulings which were arguably "absurd" in order to avoid the possibility of intervention beyond the scope of the laws provided and reserve political determinations to the political branches.

The language that Belschaft provides in his brief is lofty at best and based in principles preferring a certain ideological position rather than law. To side with Belschaft's argument would place the Court off of the firm grounding of the language of the Charter and in the realm of intervening on behalf of a political cause. This would be absurd and extend past the Court's assigned role by the Charter.

Minister of Foreign Affairs
General of the South Pacific Special Forces
Ambassador to Balder
Former Prime Minister and Minister of Defense

Reply

Your Honours,

Amicus brief by Jebediah

This Court's most important mandate is to maintain the rights and freedoms as listed in the Charter. Article 8.4 of the Charter gives the Court the power to:

"...declare any general law, regulation, directive, determination or any other official act of government, in whole or in part, void upon a determination that it violates the terms of this Charter or any other constitutional law."

...while Article 3.2 emphasises this responsibility in relation to rights and freedoms:

"The High Court may strike down any general law or action that violates any right or freedom found in this Charter."

As has been argued before in this case, determining whether or not a law or amendment affects the gameside community or its home governance falls under an "action" or a "determination or any other official act of government". Since this specific determination concerns a right and freedom - that of Article 3.5, which requires gameside consent to any law affecting the gameside - it is of this court's highest priority to ensure that this determination is correct.

This case concerns the recent amendment to Article 14 concerning the Great Council mechanism - of which the relevant sections concern calling and ending a Great Council. The previous text was written as:

"(2) A resolution establishing a Great Council may be adopted with a three-fifths supermajority of the Assembly, which must be confirmed by a majority vote of the gameside community.
...
(4) Any and all changes to regional law proposed by a Great Council may be adopted by a three-fifths supermajority of the Assembly, which must be confirmed by a majority vote of the game-side community."

...while the new text on the same subjects is thus:

"(2) Great Councils shall operate in parallel to the Assembly, which will still be convened under regular order. Participation in Great Councils is determined in the organizing resolution, where the Assembly may expand eligibility beyond legislators or restrict eligibility by criteria it deems fit.
...
(5) Changes or additions to the constitutional canon of the Coalition may be adopted by a three-fifths majority of the Great Council. Changes or additions to regular statutory law may be adopted by simple majority of the Great Council."

Emphasis has been added to relevant clauses. The effect of this change is clear - Article 14.2 removes the gameside's right to block a Great Council, which when combined with the change to Article 14.5 directly leads to a method by which the Assembly may pass any law without consulting the gameside at all.

It does not matter that the Assembly can allow members of the gameside to participate, and that it may only do this if it first passes a resolution allowing itself to do so. The gameside community's right is to have the final say on any laws that affect it, and by introducing this mechanism the assembly is allowing itself to circumvent this. It is clearly absurd that a section made to protect this right of the gameside community should somehow be circumvented by passing a law which gives the Assembly the option to violate it.

It is because of these facts that we are led to the conclusion that this Amendment cannot be compatible with the mischief Article 13.2 and Article 1.4 was made to protect. Had the Assembly passed a law which, as an example, removed the Local Council - this would be clearly put to a gameside vote according to Article 13.2 and Article 1.4. However, the argument that is being made by other friends of the Court is that the assembly may circumvent these Articles by simply passing an amendment which allows them to do so without allowing the gameside to approve it, despite the fact that these Articles specifically protect the gameside from this exact ability. The Assembly may then pass any law it wants regarding the gameside so long as it meets certain conditions (which are entirely different from the conditions required by the gameside's rights and freedoms) without ever needing any kind of approval from the gameside community.

Therefore, it does not matter that this is not an immediate and direct violation of rights but rather an amendment that allows such rights to be violated, because the Court's mandate is to protect these rights and freedoms, not the naive and literal interpretation of this amendment's effect. It does not matter that the Chair is ordinarily responsible for determining this nor whether the Chair's decision was in good or bad faith, because the Court has the ability and the mandate to strike down actions and determinations which violate the aforementioned rights.

To paraphrase Belschaft in his last amicus brief - the right in Article 3.5 is clearly and unambiguously designed to protect the gameside from laws and amendments made by the Assembly by requiring the consent of the gameside to pass any law which affects itself. By allowing the Chair and the Assembly to pass this amendment, the Court would enable the Assembly to circumvent this right entirely, despite the fact that the right is meant to stop the Assembly from passing these kinds of laws.

It would directly enable the very mischief this right was intended to prevent.

It would be clearly and self-evidently absurd.

Reply

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

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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.

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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:

1. 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.
   
   
2. 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.
   
   
3. 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:

1. The presumption being that the Chair acts in good faith, the Court has neither found nor been given any compelling reason to decide otherwise.
   
   
2. 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.
   
   
3. 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.

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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

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2209.HR.O | Issued 04 Jul 2022

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

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