| HCLQ 1803 - Precedence of Laws |
HIGH COURT OF THE SOUTH PACIFIC
- HCLQ1803 - PRECEDENCE OF THE LAWS Does the Judicial Act have precedence over the Resolution on the Passage of the Judicial Act? Is there a hierarchy as to which pieces of legislation should have precedence over others? 31 MAY 2018 Justice SANDAOGUO delivered the Opinion, signed also by Chief Justice KRINGLE. Summary of the Opinion The Court finds that the Resolution of the Passage of the Judicial Act is an enacting law that does take precedent over the Judicial Act, as its purpose is to reconcile contradictions between the Judicial Act and the former system it replaces. As to the second question, the Court finds that Article I of the Charter provides for the only concrete hierarchy of laws. All non-constitutional laws fall into a single category of general laws, and it is not possible to delineate further a hierarchy under current law. I. Enacting Laws The Resolution on the Passage of the Judicial Act (hereinafter “the Resolution”) is what is known as an enacting law. These are laws that are passed in tandem with others, when there are incompatibilities between the new law and the way an old system worked. These laws can be used to grandfather officials into new roles, allow previous laws to continue for a certain amount of time, or otherwise reconcile incompatible parts of current practice versus the new laws. When the Assembly passed the Judicial Act, it reformed the judiciary, changed the position of Permanent Justice, and created new offices and requirements for those offices. These were changes incompatible with the way the judiciary had worked up until then. To reconcile those incompatibilities, the Assembly chose to name the sitting Permanent Justice as the new Chief Justice, dissolve the old Pool of Justices, create a timeline for appointment of two Associate Justices, and state that any open court cases be continued under the old set of laws. The alternative would have been to unnecessarily remove the Permanent Justice, reconfirm them, and redo all open cases under a new set of rules. The Assembly explicitly wanted to avoid that scenario. Historically, there is precedent for enacting laws. The Great Council of 2016 reformed nearly every aspect of Coalition government, and that created several incompatibilities with existing office-holders. To address that, the Assembly passed a law in tandem with the new Charter. That enacting law, the Great Council 2016 Continuing Resolution, ensured the smooth transition into a new system of government. The Resolution in contention was modeled after this one. As such, the answer to this question is simple. No, the Judicial Act does not have precedence over the Resolution. The latter was written to fix any incompatibilities with the Judicial Act and the former set of laws. II. Precedence of Laws This question is more difficult to cogently answer than the previous, but it too shall be short. The Charter gives guidance as to the supremacy of laws in Article I: “2. Constitutional laws hold precedence and supremacy over all other laws, regulations, and policies of all branches of government. 3. This Charter is a constitutional law holding supremacy over all others, and defines the purpose of our government and its framework.” So, the hierarchy exists as follows: The Charter itself, then constitutional laws. The Charter unfortunately does not provide any guidance as to a further breakdown for general laws and treaties, the other types of legally binding legislative vehicles. However, the Charter does say that the Court is empowered to “reconcile contradictions within the Charter, constitutional laws, general laws, Cabinet directives, and Local Council laws and regulations, maintaining the least amount of disruption to the intended purposes of the contradictory parts” (Article VIII, section 4). This provides a sort of hierarchy, wherein reason and rationality are the deciding factors of which laws are supreme over the others. In reconciling contradictions between two laws of the same type, it is not one law or the other that technically reigns supreme, but the interpretation that provides the least disruptive resolution. The Court cannot, however, provide a solid answer as to how it would rule in every possible permutation of contradictory law cases. Treaties provide an especially troublesome problem, as they are executive-created laws that are passed into the legal code by the Assembly, and involve commitments made to other sovereign powers. The Charter does not classify treaties as constitutional laws or a special category of laws, thus they must be considered general law. That makes them subject to Article VIII, section 4 interpretation. If a treaty and another law contradict, the Court must find a course of action that creates the least disruption to both the intent of the law and the intent of the foreign relations the treaty represents. This may prove a thorny issue for future administrations or future sessions of the Assembly, but the Court must only consider the law as written. In short, all non-constitutional laws, including treaty law, are considered general laws. Neither the Charter nor any other law provide for any further hierarchy, and thus it is impossible for the Court to create one. The only way to determine which law holds precedent over others is through Article VIII, section 4 interpretation.
I wonder if you could explain in more explicit terms that there is legislative precedent for enacting laws? I think it would be positive to make clear that the Court isn't' just inventing a new kind of law (new to TSP, that is), but rather giving a proper name to a system that already exists and guarantees clarity for the implementation of laws.
That aspect aside, I agree with the legal reasoning and am happy to sign off on this ruling. 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
I expanded on the historical precedent:
Historically, there is precedent for enacting laws. The Great Council of 2016 reformed nearly every aspect of Coalition government, and that created several incompatibilities with existing office-holders. To address that, the Assembly passed a law in tandem with the new Charter. That enacting law, the Great Council 2016 Continuing Resolution, ensured the smooth transition into a new system of government. The Resolution in contention was modeled after this one.
I am comfortable signing on to this.
Kris Kringle Chief Justice 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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