| [LEGAL QUESTION] Election of the Local Council |
Your Honours,
Recently an amendment to Article 8, Section 1.1. of the Charter allowed non-citizen residents to run for and be elected to the Local Council. However, Article 2.11 reserves the privilege of holding elected office to citizens, therefore creating a contradiction between two sections of the Charter. I respectfully ask the Court to address this issue, since it is one of high importance to our electoral process. As a matter of personal interpretation, I would argue that the Bill of Rights carries greater precedence within the internal scheme of the Charter, meaning that a potential reconciliation should give precedence to the restriction to non-citizens. Whether that limitation is desirable would be another matter, more appropriate for political, rather than judicial consideration. 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. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
The Court will hear this Legal Question. Any interested parties may submit an amicus brief on the matter.
HCLQ1515
July 28th, 2015
Petitioner
Kris Kringle
Presiding Justices
Hopolis, Hileville, TAC
Non-Presiding Justice
Apad
Question: Does Article 8.1.1 of The Charter contradict Article 2.11 of The Charter? Majority Opinion
Hopolis, Hileville, TAC
The Court has unanimously agreed that in its opinion, Article 8.1.1 of the Charter of the Coalition of The South Pacific
Quote:Three residents of The South Pacific shall serve on the Local Council does contradict the provisions of Article 2.11 Quote:Voting and being elected to an office under the Coalition of The South Pacific shall be rights afforded only to citizens In reaching this decision the Court recognizes that in keeping with the provisions of Article 4.1.4 of the Charter: Quote:The High Court may declare any whole General Law, or portions within such law, that conflict with the Charter defunct, and to reconcile contradictions within the Charter. It is the unanimous opinion of the High Court that the Bill of Rights, by its very nature, is considered to have greater precedence among the articles of The Charter and therefore the Court finds that the recent amendment to Article 8.1.1 of The Charter be declared defunct and consequently, stricken from The Charter with immediate effect. While this decision does not stop the operations of the Local Council, it does mean that all Councillors serving on the Local Council must be citizens of The South Pacific and that any non-citizen currently holding the position of Local Councillor be immediately disqualified from holding that position on the grounds of failing to meet the qualification criteria. However, as far as the Court is aware, the two current Local Councillors are Darkstrait and Ryccia who are both citizens and therefore as long as they do not resign, undergo a successful recall, or no longer hold citizenship they should continue to serve as Councillors on the Local Council for the remainder of their term of appointment. In reaching this decision we are mindful that it was the intention of the Assembly to create a body (the Local Council) that has representatives based on the qualification criteria of residency in The South Pacific rather than citizenship. Therefore, the Court also recommends: 1.) That the Assembly, as a matter of urgency, should seek to ratify an amendment to Article 2.11 of The Charter to exclude the Local Council from the citizenship requirement.
2.) That the Assembly should ratify legislation to reinstate Article 8.1.1 of The Charter upon passage of the previous recommendation.
I respectfully request that a Justice who has not been involved in the deliberations for this ruling review it. While I welcome the decision that the relevant clause be repealed, I find that deciding whether it should be reconsidered by the Assembly is a political determination, not a judicial one. In that sense, I hope that in this appeal the Court will revise its position on how open the requirements should be to run for the Local Council, to avoid addressing the issue altogether.
I finish this appeal request reiterating my respect for the Court and my thanks for its swift work. 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. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
Quote:I find that deciding whether it should be reconsidered by the Assembly is a political determination, not a judicial one. In accordance with Article 4.3.5 of The Charter: Quote:5. The Court Justices shall have the authority to examine laws and make recommendations to the Assembly, however they may not issue an arbitrary judgement or opinion on laws without a specific legal question being filed. We have done just that, made a recommendation. We cannot force the Assembly to reconsider it.
The issue is that the High Court is suggesting a political course of action, and it's not the first time either. The review and recommendation clause is about legal recommendations, not policy ones. The High Court should only be making recommendations to the Assembly when it's about avoiding a legal issue.
I believe there is a difference between saying something along the lines of "we recommend that the Assembly review this issue taking into consideration the contradictions reconciled in this ruling, if it so wishes" and saying "we recommend that the Assembly pass an amendment, as a matter of urgency, to reinstate the voided provision". Furthermore, two of our Local Councillors were elected back when the position was closed to citizens, so their positions were never in danger by this ruling.
Basically, my problem is that the Court has adopted the position that the LC should be open to non-citizens, when it's not its job to make such political determinations. 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. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System
Well, if that's how you interpret it, that's fine. I won't argue with you. It is up to Apad now.
It's not a matter of how I interpret, it's a matter of how it should be. It's not the Court's job to decide it be desirable, or politically good, for the Assembly to reinstate this or that provision. If it's legal then it stays, if it's not then it's voided. You shouldn't be deciding whether the Local Council should be open to citizens or non citizens. You did your job, let the Assembly decide if it wants to do anything else. I just don't understand why you should be recommending that the Assembly reinstate a provision, when in theory you shouldn't be in favour or against it.
I really hope the completely uninvolved Justice understands this point. 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. Legal Resources: THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System |
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