| Legal Question (interpret the meaning and application of a law) [1904] Separation of Powers |
![[Image: BYEo2lg.png]](https://i.imgur.com/BYEo2lg.png) [HCLQ1901] SEPARATION OF POWERS DFN 1904 | Submitted 17 February 2019 | Admitted 20 February 2019 | Decided 15 March 2019 Summary of the Opinion
It is the opinion of the Court, based on a historical and legal examination, that a Deputy and an Advisor are fundamentally different offices. While both are junior members of the Cabinet, Deputies have particular attributes and authority under the Elections Act that make them Offices of the Coalition, a distinct category to which Advisors would not, under ordinary circumstances, accede. This does not necessarily contemplate the occurrence of certain situations, such as Advisors being given executive responsibilities, which would need to be examined and considered as appropriate.
CHIEF JUSTICE KRINGLE delivered the opinion of the Court, signed also by JUSTICE BELSCHAFT.
This question asks whether there is a legal distinction between Deputies and Advisors, for the purposes of the Charter and the Elections Act. In considering this issue, the Court must review applicable laws and the historical context, to see whether Advisors are, not just legally, but also functionally, the same as Deputies. I
A. Article VII of the Elections Act Article VII of the Elections Act is the primary legal provision that guarantees the separation of powers within the Coalition. Sections 1 and 2 are particularly relevant to the present case:
(1) Offices of the Coalition are the Delegate, the Prime Minister and Cabinet Ministers, the Chair of the Assembly, Local Councillors, the Chief Justice, and any of their appointed deputies.
(2) It is not permitted for any individual to hold more than once office within the Coalition’s government. [1] These provisions trace their origin to the Executive Order of 31 August 2016 (hereafter “the Executive Order”), when the Cabinet proposed to the Assembly the addition of the following section to the Elections Act: No person may hold more than one elected or appointed position, or positions in two or more branches of government, except when explicitly allowed for in the Charter and laws passed by the Assembly. [2]
As explained by Prime Minister Drugged Monkeys, this provision sought to redress a legal void wherein a single person could hold positions of significant authority in more than one branch of government. Drugged Monkeys said that “central to these tenets [checks and balances] is the inability of one person to hold positions of power in branches that are meant to provide checks and balances to each other” [3]. In that sense, the point of provisions on the separations of powers is twofold: on the one hand, were someone allowed to hold multiple senior offices, they would become considerably more powerful than other officials who, under normal circumstances, would have a co-equal amount of power; on the other hand, the Executive Order suggests that it would be detrimental to the health of regional democracy for individuals to be in a position to check their own actions, as that would constitute a clear conflict of interest. Those same principles apply today, with the notable difference that now there is an additional clause, which indicates that separation of power does not simply apply to senior government officials, but rather to a particular category called “Offices of the Coalition” (henceforth “Offices”). These Offices are the principals of each branch of government, with the exception of Associate Justices of the High Court, but with the inclusion of “appointed deputies”, who have long been considered junior members of the Cabinet. B. Article VI, Section 15 of the Charter Article VI, Section 15 of the Charter is also relevant to the issue of separation of powers as presented in the question subject of this case, since it says the following: The Prime Minister and Cabinet Ministers may elect to appoint deputies and advisors, who will be considered junior members of the Cabinet, but will not have voting rights in any executive decision. [4]
Deputies have been junior members of the Cabinet since 2013, when Delegate Belschaft announced in his inaugural address that those positions would henceforth be included in the executive decision-making process [5]. This policy decision was subsequently codified into law, when Chair Sandaoguo introduced on 13 September 2013 an amendment to the Charter featuring the following language: The senior Cabinet members shall be the Delegate, Vice Delegate, Minister of Foreign Affairs, Minster of Regional Affairs, Minister of the Army, and Chair of the Assembly.
The junior Cabinet members shall be all appointed Deputies, the head of the judicial system, and the Editor in Chief of the South Pacific Independent News Network. [6] The latter two positions were subsequently removed from consideration, following concerns from citizens about the propriety of including judicial and press officials in executive decision-making, but there were no such concerns about Deputies themselves. As Sandaoguo explained in his post, the aim of the amendment was “to give Deputies the opportunity to be involved in policy discussions” [7]. There is an additional matter to be considered in the inclusion of Advisors to Section 15. Historically, the main option for citizens to get involved in executive government, other than being elected to the Cabinet, was to secure an appointment as Deputy Minister. There were other options, like the foreign service and the regional military, but those did not necessarily involve having a voice in the decision-making process. This begs question: when and why were Advisors added to the junior roster of the Cabinet? This provision made its first appearance in the 2016 Great Council, as part of the Working Group Draft that was eventually adopted as Charter. Sandaoguo, one of the primary drafters, explained his reasoning for this addition: I do remember that the Delegate used to appoint advisors that were kind of in a legal grey area, because they weren’t technically deputies of any ministry. I likely wrote it as “deputies and advisors” to encompass as broadly as possible all possibly [sic] scenarios.
Delegates had indeed appointed advisors in the past, albeit on a very limited basis; an outstanding example of this is the appointment of World Assembly Advisors, who, as the name suggests, advised the Delegate on matters of the World Assembly, particularly the General Assembly. Sandaoguo’s comment would suggest that the goal was to include positions who, while not formally a part of the Cabinet at the time, had a role in senior executive governance and decision-making. C. Status of Deputies and Advisors Deputies and Advisors have evolved since years prior. These days there is a distinct lack of Deputy appointments; instead, Ministers have opted to appoint councils of advisors. The Ministry of Regional Affairs has an Advisory Council established in 2014 [8]. The Ministry of Foreign Affairs has a MoFA Team established in 2017 [9]. The Ministry of Military Affairs has a General Corps established by the Charter since 2013 [10]. The Cabinet, as a single entity, has also appointed Advisors. In his testimony before the Court, Prime Minister Roavin explained what he considered to be the differences between Deputies and Advisors, indicating that, while “deputies are generally assumed to be bound to one of the ministries” [11], Advisors have more fluid duties, depending on the particular needs of each Cabinet. He exemplified this by recounting how Tsunamy was appointed as Senior Advisor with the aim of being a “final sanity check” [12] on a relatively inexperienced Cabinet, whereas Sandaoguo’s duties involved “advising the Cabinet on security matters” [13]. Neither the Cabinet, nor individual ministries, currently have appointed any Deputies, nor have many been appointed in the time following the 2016 Great Council. This makes sense, when considering the historical context in which each position originated. Deputies were most frequently appointed at a time that was all the help a Minister was likely to obtain. There was little in the way of a specialised staff, particularly for the Ministry of Regional Affairs. In contrast, Advisors were appointed in an age when ministries had the expectation of a dedicated staff and where the concern was to count on the advice of individuals with experience in specific issues, to support the Cabinet’s mission. II
This question, as stated at the beginning of this opinion, relates to the existence, or lack thereof, of a legal distinction between the positions of Deputy and Advisor. In seeking an answer to that, the Court has examined the history of provisions related to the separation of powers, particularly as related to Deputies and advisors, as well as the history of each position, as it relates to their rise to a junior Cabinet status. This serves the goal of helping the Court understand the intent behind the existence and development of both positions.
As far as semantics go, there is a clear difference between a Deputy Minister and an Advisor. One is a deputy to a principal officer, the other provides guidance, expertise and advise. There are two very different functions, and would logically be subject to different restrictions. This is supported by the histories of both positions, as has been explored in the prior section. As far the law goes, there one can also find very clear distinctions. It is true that the Charter designates both Deputies and Advisors are junior Cabinet members, therefore granting them a greater role than that of ordinary ministerial staff; however, there is another, arguably higher, level of distinction to be considered. Article VIII of the Elections Act creates the category of Office of the Coalition, those offices deemed too critical to allow any single individual to hold two or more of them simultaneously. One such office is that of Deputy, since in theory it would hold significantly more effective authority over a ministry than an Advisor, whose role would be restricted to providing guidance and knowledge. In that sense, a Deputy is a sensitive position, and therefore an Office of the Coalition, because it has the potential to exercise the same functions as the principal officer who appointed them. It is the opinion of the Court, based on a historical and legal examination, that a Deputy and an Advisor are fundamentally different offices. While both are junior members of the Cabinet, Deputies have particularly attributes and authority that make them Offices of the Coalition, a distinct category to which Advisors have not, as of today, acceded. That does not negate the risk that an individual named as Advisor could be assigned, in practice, responsibilities more akin to those of a Deputy. Such cases would need to be examined and evaluated on their merits. However, all things being equal, Deputies and Advisors remain different offices, each with a distinct set of responsibilities and restrictions as far as regional law is concerned. It is so ordered.
Sources:
[1] Elections Act (2016). [2] Executive Order of 31 August 2016 (2016). [3] Executive Order of 31 August 2016 (2016). [4] Charter of the South Pacific (2016). [5] Belschaft (2013). Inaugural Address of The Delegate [speech]. Retrieved from http://archive.tspforums.xyz/showthread.php?tid=856 [6] Sandaoguo (2013). Amendment to Article 5 of the Charter [forum post]. Retrieved from http://archive.tspforums.xyz/showthread....#pid119842 [7] Sandaoguo (2013). [8] Kringle, K. (2014). RE: Promotions and Appointments [forum post]. Retrieved from http://tspforums.xyz/thread-1348-post-36...l#pid36264 [9] Escade (2017). Ministry of Foreign Affairs Winter Term 2017 [forum post]. Retrieved from http://tspforums.xyz/thread-5008-post-15...#pid152420 [10] Great Council 2013 Omnibus Bill (2013). [11] Roavin (2019). RE: [LEGAL QUESTION] Separation of Powers & Cabinet Deputies and Advisors [testimony]. Retrieved from http://tspforums.xyz/thread-6882-post-18...#pid183219 [12] Roavin (2019). [13] Roavin (2019). Former Delegate of the South Pacific
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