Legal Question (interpret the meaning and application of a law) [2004] Status of HCLQ2002 |
Article 4, clause (3) of the Judicial Act states "The opinion delivered for a legal question shall have the full force of law until appealed or the law upon which the opinion was based is significantly changed."
1. Following the recent repeal of Section 2 of Article 6 of the Elections Act does the Decision in HCLQ2002 A QUESTION ON THE FILLING OF VACANCIES ON THE LOCAL COUNCIL to strike Section 5, articles 1 and 2 from the Local Council Elections Act remain in force? 2. If the decision to strike these two clauses is no longer in force, must the Local Council amend the act to restore clause's 1 and 2, or are they again in force without an amendment required? Legislator | Local Councilor | Aspiring TSP Curmudgeon Messages archived by the Ministry Of the Regal Executive - Bureaucratic Services
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
Given the lack of certification of the ongoing Local Council election, the matter of filling the Local Council vacancies may become a matter of pressing concern, and this will provide the Delegate and Local Council legal clarity on the issue of filling vacancies in the Local Council when less than half the term remains. Additionally, I have not found any case law exploring the scope of Article 4, clause (3) of the Judicial Act outlining what changes to a law qualify as "significantly changed" as it relates to High Court rulings delivered in response to Legal Questions. A ruling on this question will provide guidance on how our legislative bodies can follow up on issues arising from rulings on Legal Questions.
Legislator | Local Councilor | Aspiring TSP Curmudgeon Messages archived by the Ministry Of the Regal Executive - Bureaucratic Services
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
Your honors,
Brief amicus curiae on the question on the status of HCLQ2002 It is my view that the Court's decision in HCLQ2002 remains in force, and that the provisions of the Local Council Elections Act (LCLA) that were struck out by the Court remain struck out. In other words, the Local Council must actively 're-legislate' for these provisions in order for them to be reinstated. In HCLQ2002 the Court used its power under Article VIII, Section 4 of the Charter to strike out the 'offending' clauses of the LCLA. In the language of the Charter, the Court declared these clauses void. It is not necessary to relitigate that case here; suffice it to say that the Local Council lacked the constitutional authority to make that law, and therefore it does not stand. Previous rulings of this Court on the interpretation of the law have stressed that the ordinary 'common sense' meaning of words should prevail unless there is some compelling reason not to do so. The ordinary common sense meaning of the word 'void,' when applied to a legal provision, is that the provision ceases to exist, and should be treated as though it never existed. I submit that there is no compelling reason to depart from this meaning, so far as it pertains to laws and other actions of government being declared void by this Court. Applying this reasoning to the question at hand leads to the conclusion that the relevant clauses of the LCLA cannot be automatically reinstated even if the underlying law has changed in the meantime; the clauses are treated as though they never existed, and are therefore unaffected by any subsequent amendment to the Elections Act. Now that the Elections Act has been amended, it is of course open to the Local Council to make provision for the filling of its own vacancies, in accordance with the principles of self-administration outlined in the Charter. It is entirely possible for these provisions to be identical to those struck out by the Court in HCLQ2002. But this must be a positive step taken by the Local Council in accordance with its proper constitutional authority; it is not sufficient for the Local Council to rely on earlier, unconstitutional actions to address the issue. To address the point made by Volaworand in their earlier brief, I submit that the part of Article 4, Section 3 of the Judicial Act, which holds that legal opinions cease to have the full force of law when the underlying law is 'significantly changed,' is not engaged here. This is because, principally, the law that led the Court to its conclusion in HCLQ2002 is Article V, Section 2 of the Charter, which governs the relationship between the Local Council and constitutional laws made by the Assembly. This law has not been amended since that case was decided, and therefore the opinion in HCLQ2002 continues to have the full force of law. I submit, therefore, that the Court does not need at this point to further define 'significantly changed' for the purposes of Article 4, Section 3 of the Judicial Act. I trust this brief will be of assistance to the Court and, in accordance with the rules of the High Court, I remain at the Court's service for any follow-up questions or clarifications that are required.
Your honours,
Briefs amicus curiae on HCLQ2004 I concur with the opinion of Bleakfoot for slightly different reasons: The definition of "significant" is not neccessarily large or great - but rather of having notable meaning of consequence. Using this definition - which is the provided by marriam webster ("clearly conveying a special meaning") and oxford's learners ("large or important enough to have an effect or to be noticed") dictionaries - we can conclude easily and succinctly that any change made to a law must directly affect the opinion given by the court. Whereas the law that led the Court to its conclusion in HCLQ2002 is Article V, Section 2 of the Charter, which has not been amended, and whereas the amendment does not significantly affect the context of this law, the change is not significant and thus does not affect the opinion given in HCLQ2002. PS: And even if this law was significantly changed it wouldn't affect Section 5, articles 1 and 2 - first of all because, as Bleakfoot said, the law is considered striken from the record as if it never had existed, and a law that doesn't and hasn't existed now nor ever cannot be reinstated due to it's... lack of existance, but secondly, the power to declare a law void is defined in the constitution in Section VIII, Article 4: Quote:(4) The High Court has 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. Legal questions are the only part of the law that are affected by the significant change rule. Legal questions are also defined in the constitution later on in that section: Quote:(6) The High Court may clarify and interpret provisions of law when presented with a Legal Question about them. Notably, "Legal Questions" specifically give the court the power to interpret and clarify law - and are subject to the significant change rule. The Judicial Act seems to affirm this in its definition of legal questions, Section 4 Article 1 (and it also adds that the opinion of a Legal Question applies to existing law, so an opinion cannot be based entirely on a law that the High Court has just declared void): Quote:(1) A legal question is a case containing one or more questions seeking to receive clarification on the meaning of existing law or the applicability of law to concrete or hypothetical situations. If the court, such as in HCLQ2002, were to declare a law void, it would not be part of an opinion of a legal question - it would technically be the High Court exercising a seperate power not subject to the significant change rule. If this reading is correct, then I would suggest that from now on if, as part of a case, a law is declared void, then it should be clarified that the voiding of the law is seperate from the legal question and is only mentioned to provide context to the opinion and was only undertaken as a side effect of examining this law - not as the opinion of the legal question.
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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