| Appeal: Legislator application |
Forgive the lack of formatting; time is short for this response.
It’s the view of the Court, through my power as Associate Justice, that it is not necessary for justices to testify “as legislators” to provide expert knowledge on the laws of the Coalition. Justices are expected to be experts as it is, and if a Justice was the primary author of a law before the court, that is an additional level of expertise. While a Justice would likely need to recuse themselves from defending an executive policy or testifying in a criminal trial, the purpose of the High Court is to uphold our laws. There is no conflict between justice and legislator, unlike justice and minister, where the balance and separation of powers become an issue with executive authority. So with that being said, if my knowledge as the primary author of that portion of the Charter is relevant to the decision of the Court, it will be provided by myself as Justice within the text of the decision.
I realize, it's just that I may have another brief given that testimony before the opinion is delivered.
Not a big deal, though. Please don't let this hold up anything. ![[Image: XXPV74Y.png?1]](https://i.imgur.com/XXPV74Y.png?1)
HIGH COURT OF THE SOUTH PACIFIC
- HCLQ1804 - JUSTICIABILITY OF LEGISLATOR APPLICATION APPEALS May the High Court hear an appeal of legislator application denials? 24 JUNE 2018 Justice SANDAOGUO delivered the Opinion, signed also by Justice BELSCHAFT. Summary of Opinion There opinion of the Court is delivered below in two parts. The first regards the constitutionality of the Legislator Committee Act. The second regards the jurisdiction of the Court in reviewing the actions of the Legislator Committee. Article III, Section 4 of the Charter “requires all laws prohibiting the right to vote or hold office by members of the Coalition to be constitutional laws.” The Legislator Committee Act attempts to prohibit certain members from exercising the right to vote or hold office, but is not properly labeled as a constitutional law. The Act is struck down pursuant to Article III, Section 6, in which the Court has the power to strike down any law conflicting with Article III rights and freedoms. In the event where the Legislator Committee Act is marked constitutional and otherwise unchanged, the Court has jurisdiction to hear complaints made regarding violations of Article III rights and freedoms. In cases where those rights and freedoms are not at question, Article VIII, Sections 4 and 5 provide an exhaustive list of the Court’s jurisdiction, which does not include actions of the Legislator Committee. As such, it is not within the Court’s jurisdiction to review general actions by the Legislator Committee, when the rights and freedoms of members of the Coalition are not affected. I
The Legislator Committee Act is the authoritative law dealing with legislator status and applications, and is the law that must be thoroughly examined by the Court in answering this legal question. When a member of The South Pacific applies to be a legislator of the Assembly, the Legislator Committee reviews the application according to a set of eligibility standards and security protocols, and either approves or denies the application. No other government official or institution is authoritatively involved in this process, outlined in Article 2 of the Legislator Committee Act, though the Council on Regional Security can be incidentally involved on matters of security risks. When an application is denied, as in the case of Malayan Singapura, the Legislator Committee is required to post a “sufficient reason” in the application thread. Under the Act, there is no recourse for the denial of an application. There is no legislative vehicle for appealing the decision, either to the Legislator Committee or to another organ of the Coalition, including the Court. The Charter of the Coalition holds that constitutional laws have supremacy over general laws, and that the Charter itself has supremacy over all laws. Article I, Section 1 of the Charter provides for explicit marking of constitutional laws as such, and thus logically, laws lacking the explicit designation are not to be considered constitutional. The Legislator Committee Act bears no marking of constitutional status. It is a general law, at the bottom of the precedence totem pole, so to speak. Given the lack of judicial recourse within the text of the Act, the Court must ask if the Charter or any other constitutional laws provide for judicial recourse instead. There are several vehicles for judicial recourse in the Charter. The first is Article III recourse, when the rights and freedoms of members are violated by “any general law or action.” The second is Article VIII recourse, flowing from the power of the High Court to “declare any general law or regulation .. void” if it conflicts with constitutional law, or to reconcile those contradictions if possible. After a thorough review of the Charter and the Legislator Committee Act, the Court cannot find any obvious contradictions, wherein the Charter would say an appeal is allowed and the Legislator Committee Act says otherwise, or vice-versa. This brings to the forefront Article III recourse. II
The most relevant enumerated right in Article III is the that right to vote or hold office. “No member may be denied the right to vote or hold office, unless prohibited by constitutional law” (Article III.4). The necessary means of holding office, outside of the Local Council, is by becoming a legislator of the Assembly. If a member is denied that opportunity, they are necessarily denied the right to vote or hold office. This is a fundamental right of our democracy, and was granted such high status within Article III by requiring those laws that limit the rights to vote or hold office be of constitutional threshold. Indeed, prior to the Legislator Committee Act reforms, the process of gaining or revoking legislator status was written into the Charter itself, the ultimate constitutional law. The Legislator Committee Act repealed the “Legislator Eligibility” clauses of the Charter and vested the power of determining eligibility in “a standing commission of legislators” (Article IV.5). However, the Legislator Committee Act itself is not a constitutional law. The Charter authorizes the creation of a standing commission, grants them the power to grant or revoke legislator status, but the law describing the functions and due processes of the committee was not elevated to the same status as the processes before. The Court cannot opine the reasons for this, even after reviewing the legislative history. While the vote enacting the legislation required the three-fifths majority constitutional laws need, this was because it was attached to the relevant Charter amendment, rather than because the new law itself was constitutional. The plain meaning of Article III, Section 4 of the Charter requires all laws prohibiting the right to vote or hold office by members of the Coalition to be constitutional laws. The Legislator Committee Act does not meet this constitutional requirement, and must so be struck down as a violation of the Rights and Freedoms in the Charter, pursuant to Article III, Section 6. This is not a situation where the Court can reconcile contradictory parts of a general law and the Charter, as the Court cannot by judicial fiat elevate a general law to constitutional status. In striking down the Legislator Committee Act, the Court must contend with what to do with the existing commission and application process. The current commissioners are authorized through Article IV, Section 5 of the Charter to grant and revoke legislator status, so we did not find that their appointments must be invalidated. In keeping with the Charter’s requirement for an application process, the commissioners are authorized to create a temporary application process, which must be formally published, until the Assembly addresses the legislative deficiencies in the Legislator Committee Act. III
In reaching the aforementioned conclusion, the Court has not opined on whether or not it is empowered to hear appeals of legislator application denials, at least insofar as the merits of the denial are questioned. Although the point may be moot until, if at all, the constitutionality status of the Legislator Committee Act is addressed through the political process, the Court can entertain an alternate reality where the law is marked constitutional without any further changes. In this scenario, the Court does not find any possibility of appeal. The Charter allows for the rights to vote and hold office to be limited or prohibited, so long as the law doing so is marked as a constitutional law. The inability to appeal government decisions is not foreign to our system of governance, and is not a fundamental violation of democracy. Indeed, the Charter as passed in 2016 did not allow for appeals of legislator application denial by the Chair of the Assembly, either. We do not, however, find that Article IV, Section 5’s formulation denies the standing commission the legal authority to deny legislator status to applicants, as amicus Beepee contends. Despite there being no explicit authority to deny applications, the Court understands the common legal theory that the ability to do something necessarily includes the ability to not do it. The commission’s legal authorization to “grant or revoke” legislator status naturally includes the ability to “not grant or not revoke” it. Lastly, the Court must contend with the question of whether or not we would be able to hear an appeal of a legislator application denial, upon claims that the Legislator Committee violated the law in reaching its decision. Article III of the Charter grants the Court jurisdiction to strike down any action “that violates any right or freedom found in this Charter” (Article III.6). If the Legislator Committee were to violate the the freedoms of expression, speech, assembly, or the press, for example, through its decisions in who to grant or deny legislator status, the affected member has recourse through the Court. This is unquestionable, and it this jurisdiction in which the Court operates to strike down the Legislator Committee Act. As amicus Roavin aptly notes, the High Court is also empowered to strike down any “general law or regulation, Cabinet directive, Chair determination, and Local Council law or regulation” on finding it violates the Charter or any other constitutional law (Article VIII.4). This is an exhaustive list establishing the Court’s jurisdiction. While the Court cannot and should not opine on the soundness of the legislature’s decisions, the Assembly has not included the decisions made by the Legislator Committee in this jurisdictional litany. When it comes to violations of law where rights and freedoms are not implicated, the Court seemingly has no jurisdiction to overrule the Legislator Committee’s decisions. While petitioner Roavin requests that the Court take extraordinary measures to expand the jurisdiction of the Court, this is a request that would have unforeseeable consequences beyond this particular case. First, the Court has no legal basis to unilaterally expand its jurisdiction, when for years it as been explicitly defined in an exhaustive list. Second, it is not the power or responsibility of the Court to take a subjective view of the Charter and completely replace the Assembly’s thoughts with our own. If this is a defect of the Charter, it is the Assembly’s responsibility, and the Assembly’s alone, to fix it. It is so ordered.
Important:
This determination refers to case [1807.HR] Appeal: Legislator Application, submitted on 18 March 2018 on this post. This determination complies with the opinion on [1808.HQ] Justiciability of Legislator Application Appeals, which determined that the Court is not allowed to review challenges to denials of legislator status.
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
May I ask that the Court consider amending the Determination of Justiciability to explicitly clarify that the finding of non-justiciability relates to Malayan Singapura's request to review his legislator revocation? I worry that if explicit reference is not made then readers may believe HCLQ 1804 Justiciability of Legislator Application Appeals itself is non-justiciable. I thank the Court in advance for its consideration of my suggestion.
Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)
(03-09-2021, 01:46 AM)Nat Wrote: May I ask that the Court consider amending the Determination of Justiciability to explicitly clarify that the finding of non-justiciability relates to Malayan Singapura's request to review his legislator revocation? I worry that if explicit reference is not made then readers may believe HCLQ 1804 Justiciability of Legislator Application Appeals itself is non-justiciable. I thank the Court in advance for its consideration of my suggestion. That is a reasonable suggestion. I've added a text above the Determination that explains the context behind it. 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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