Your Honors,

Brief amicus curiae on the case 2103.HQ

It may be that the temporary injunction made by the Court is sufficient to dispose of the Petitioner's concerns, such that there is no need for the Court to deliver a final ruling on this issue. However, on the assumption that an Opinion is required, I would make the following submission.

While Article 2(2) of the Legislator Committee Act requires the Legislator Committee to confirm receipt of a legislator application within 48 hours, the Act also anticipates that there may be cases when the Legislator Committee is unable to discharge its normal functions, and provides a remedy for this eventuality.

Article 1(4) of the Legislator Committee Act states that "If there is no member of the Legislator Committee available due to vacancy or leave, and there are outstanding duties to be performed, the Cabinet may appoint an emergency member to handle any urgent matters of the committee."

The "duties" of the Legislator Committee are not explicitly defined, but any reasonable reading of the Act would interpret the requirements of Article 2(2) to constitute a "duty." Therefore, a backlog of unacknowledged applications more than 48 hours old would constitute an "outstanding duty" that may be remedied by Article 1(4).

The Act also requires the outstanding duties to have arisen because "there is no member of the Legislator Committee available due to vacancy or leave." As of the time of this submission, the Legislator Committee has not yet explained the reasons for the backlog. However, I submit that the Court should interpret the meaning of "leave" broadly, to cover (for example) situations where members of the Committee are unavailable due to pressing IRL matters. A narrow interpretation risks paralysing the Committee at times where members are unavailable for reasons other than a pre-arranged leave of absence.

By this interpretation, the two preconditions in Article 1(4) are met; pursuant to that same paragraph, the Cabinet may appoint an emergency member of the Legislator Committee to address the backlog of legislator applications.

However, this is a discretionary power of the Cabinet (it may appoint an emergency member, but equally it may choose not to do so). While the Court has been reluctant in the past to ascribe a general sense of discretion whenever the word "may" is used in legislation (see, for instance, the Court's Opinion in LQ2002, in particular the Summary), the context supports the idea that in this instance there is a discretion. Other uses of "may" in the Legislator Committee Act clearly refer to discretionary powers (such as Article 2(4), empowering the Committee to request additional legitimation steps from applicants - there is no requirement for this to be done in every case).

The Cabinet's use of discretion in this matter is governed by the general body of law of the South Pacific. The Cabinet cannot act in a way that runs contrary to the general rights afforded by the Charter - in particular, in this case, the rights to vote and run for office enshrined in Article III, Section 4 of the Charter, as highlighted by the Petitioner in their original submission. An indefinite delay to processing legislator applications could arguably be unconstitutional, and hence open to challenge in this Court. Unlike the power of recall, which is only available to legislators (as highlighted by the Petitioner in their original submission), any member of the South Pacific may open a case in this Court.

However, the Cabinet's use of discretion, insofar as it has considered the issue at all, is not the matter under challenge here, so I will say no more on this subject at this time. For clarity, I am not submitting that the Cabinet has acted unlawfully in this matter, only that this would be an available route of challenge in an appropriate case.

To answer the Question, then; to the extent that Article 2(2) of the Legislator Committee Act binds the Committee to acknowledge legislator applications within 48 hours, the same Act also provides a remedy in the event that the Committee does not uphold its obligations. As this remedy is a discretionary power on the part of the Cabinet, there is an available route of challenge where the Cabinet's use of discretion is apparently unlawful.

This submission is made in good faith and I am happy to cooperate with any futher enquiries the Court wishes to make.

Reply

HIGH COURT OF THE SOUTH PACIFIC [2103.HQ] ENFORCEABILITY OF ARTICLE 2.2 OF THE LEGISLATOR COMMITTEE ACT SUBMISSION 18 MARCH 2021 | PROBABLE CAUSE 19 MARCH 2021 JUSTICE GRIFFINDOR DELIVERED THE ORDER, SIGNED ALSO BY JUSTICE BELSCHAFT. Whereas this Court is empowered by Article 9 of the Judicial Act to make use of temporary injunctions compel an individual or institution to do or refrain from specific acts, it is ordered as follows: NULLIFICATION OF THE FIRST INJUNCTION Whereas Sandaoguo has challenged the validity of the injunction issued by the Court on March 20th, 2021, it is resolved that the injunction in effect is nullified. A scaled-back injunction is hereby adopted and shall take effect immediately. This new injunction takes into account the work that the Legislator Committee did to comply with the original injunction. The new injunction will expire upon the end of the case, or in four weeks, whichever occurs first. REISSUED TEMPORARY INJUNCTION The Legislator Committee is ordered to continue providing timely receipt of legislator applications as they are received, under current laws. The Legislator Committee is also highly encouraged to accept or deny all applicants for legislator status, who have been waiting more than 7 days since their original application submission date, by the end of the original (extra) 7 days ordered by the previous injunction.   It is so ordered.     2103.HQ.SO | Issued 23 March 2021

-Griffindor/Ebonhand
-Current Roles/Positions
-Legislator 2/24/20-
-High Court Justice 6/7/20-
-South Pacific Coral Guard 11/17/20-
-Minister of Engagement 6/17/22-

-Past Roles/Positions
-Legislator 7/3/16-4/10/18
-Secretary of State 4/3/20-2/24/21
-Chair of the APC 9/24/16-5/31/17
-Vice-Chair of the APC 6/1/17-4/10/18
-Local Council Member 7/1/17-11/17/17
-Citizen 5/2012-12/2014 and  2/26/16-7/3/2016

Reply

Your honors,

I will be representing the Legislator Committee for the purposes of this case.

The current members of the Legislator Committee are Penguin and myself. Two additional individuals were recommended by us to Cabinet and, as far as we know, should be presented to the Assembly very soon.

It's not in our interests to reveal the exact tools and methods used for handling Legislator applications, but the rough process is as follows: A member performs a full check on an applicant, documents it internally, and then flags the application as "pending" (this is the initial response). Afterward, other members of the Committee will review the check, and answers to any open questions are determined. Afterwards, a member of the Committee documents and handles the final decision on acceptance or rejection. The time consuming part is usually this initial check, as it involves cross-referencing several separate sources of data to gather a heuristic about the applicant's suitability to Legislator Status. The guiding principle here is Legislator Committee Act 2.1, particularly bullet points (a) (opining on whether or not the applicant has malign intent) and © (ensuring that the applicant is not attempting to join with multiple identities). In the best case, a check takes about 5 minutes to perform. In some cases, the total effort may take several hours.

The current delay in processing applications has a variety of reasons, some of which are extenuating. As can be seen by a cursory glance of the applications archive, there is a cyclical nature to which member is the one that is most active in performing the processing. This isn't policy of the Committee, but rather an empirical observation. Historically, periods with greater delay were those where the low periods of those cycles overlapped. It's a problem that's easily mitigated by having more members on the Committee, which should be the case very soon. What will also help is a review of our processes, which we had intended to do with the new members anyway - in particular, one prospective member that we recommended brings extensive experience in these matters. One specific aspect of our processes that can be improved is being more transparent about the individual steps of the process and not fixing the initial reaction to the full completion of the first check. Furthermore, with the recent forum server upgrade, that opens the door to a variety of new tools to significantly help with the more tedious aspects of performing a check. It is my intent to focus on those once we have two new members that have settled in.

A formal leader for the Committee is, in our opinion, not required. The institution has worked well on a consensus model, and when a leadership personality was helpful, one would always emerge organically from within the ranks (in recent times, that was usually me). That being said, the necessity of a formal leader is an Assembly matter, not a matter for the High Court.

Reply

The Court thanks the Legislator Committee for its punctual response. Any further amicus briefs (if any) will be considered until March 28th.

-Griffindor/Ebonhand
-Current Roles/Positions
-Legislator 2/24/20-
-High Court Justice 6/7/20-
-South Pacific Coral Guard 11/17/20-
-Minister of Engagement 6/17/22-

-Past Roles/Positions
-Legislator 7/3/16-4/10/18
-Secretary of State 4/3/20-2/24/21
-Chair of the APC 9/24/16-5/31/17
-Vice-Chair of the APC 6/1/17-4/10/18
-Local Council Member 7/1/17-11/17/17
-Citizen 5/2012-12/2014 and  2/26/16-7/3/2016

Reply

HIGH COURT OF THE SOUTH PACIFIC [2103.HQ] ENFORCEABILITY OF ARTICLE 2.2 OF THE LEGISLATOR COMMITTEE ACT SUBMISSION 18 MARCH 2021 | JUSTICIABILITY 19 MARCH 2021 | OPINION 01 APRIL 2021 QUESTION Is "The Committee shall confirm the reception of an application within 48 hours" a binding requirement on the Legislator Committee or not? SUMMARY OF THE OPINION It is the opinion of the Court that the Legislator Committee is bound by the timing requirement laid out in Article 2, Section 2 of the Legislator Committee Act. However, there is no sanction, under current law, that the Legislator Committee may face, and, as such, the timing requirement is essentially nulled. The Assembly of the South Pacific is recommended to do as they see fit to either make the requirement binding by associating a penalty or crime to noncompliance, repealing the timing requirement, ensuring a constant (sufficient) staffing, or acting on any other solution that this Court did not mention. JUSTICE GRIFFINDOR DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE BELSCHAFT. This Court has been asked to rule on the enforceability of Article 2, Section 2 of the Legislator Committee Act on the Legislator Committee. The question arose after Altmoras, a new legislator in the South Pacific, found that his application for legislator status was seemingly forgotten and not being acted upon by the Legislator Committee. The Court brought temporary relief to those waiting for their applications for legislator status to be addressed in the form of an injunction designed to compel the Legislator Committee to act while the case was deliberated. In their case submission, Altmoras showed several examples over the last couple of months of instances where the Legislator Committee had exceeded the time limits for notifying the applicant of their legislator application being received by the committee. According to Article 2, Section 2 of the Legislator Committee Act, “the Committee shall confirm the reception of an application within 48 hours.”[1]. The examples provided by Altmoras showed several instances of the Legislator Committee taking between one to two weeks to confirm receipt of the applications, far exceeding the maximum time under the law of 48 hours, or two days. Moving forward, Article 2, Section 2 of the Legislator Committee Act also says that the Legislator Committee “shall strive to accept or deny each applicant within a week.”[1]. This clause is not a binding clause upon the Legislator Committee but rather a recommendation. Since it has been established that the Legislator Committee has taken up to two weeks to address some applications, the recommendation previously mentioned cannot be fulfilled, thus providing for an uncertain timeframe when an applicant should hope for a response from the Legislator Committee on the final status of their application. The Legislator Committee, in missing the 48-hour deadline and/or the recommended seven-day application decision deadline, violated the law (with regard to the 48-hour deadline specifically) in a way that impacts the new or returning citizens of the South Pacific from actively participating in the regional government. In many cases, the first few weeks after joining the regional forums is the most important time for a new citizen to become integrated into the community and begin taking part in the governance of the region. If a citizen must wait an excessively long time to receive their legislator status, many, if not most of them will not stick around long before going inactive. Altmoras makes an interesting argument when they say that the Legislator Committee could, in effect, disenfranchise citizens of the region from participating in the government, specifically the executive, by not acting on their legislator application[2]. This argument would be a valid argument only if the recommended seven-day return on the application were a strict seven-day return mandate. As Prime Minister and Council on Regional Security member Sandaoguo said to the Court, when challenging the initial injunction issued by the Court[3], the lack of the hard seven-day decision grants needed flexibility to the Legislator Committee to consult with other government bodies, such as the Council on Regional Security, when reviewing a legislator application. No inherent disenfranchisement is present solely because an application takes longer than seven days to be processed. If the seven-day recommendation was a mandate and the Legislator Committee went over the limit, then an argument for disenfranchisement could be made. The Legislator Committee is legally bound by the 48-hour requirement but currently finds itself in the unique position of being effectively immune from the requirement since there is no penalty for violating the clause under current law. The intention of the Assembly when drafting the timing requirement was undoubtedly included to prevent applications from going unaddressed for an excessively long time. However, the Assembly left no mechanism or process to follow in the event that the timing requirement was violated. The Court recommends that the Assembly address and amend the timing requirement to prevent its violation in the future. How the Assembly addresses the timing requirement does not particularly matter to the Court, nor will the Court indicate its preference in either way. The Assembly could choose to amend Article 2, Section 2 of the Legislator Committee Act by associating a penalty or crime for noncompliance, repealing the timing requirement altogether, ensuring a constant (sufficient) staffing, or acting on any other solution that this Court did not mention. The Court would like to thank the Cabinet and Assembly for working to confirm new members to the Legislator Committee. The Court would also like to thank the Legislator Committee for addressing and complying with the original and reissued injunction pertaining to the outstanding legislator applications. The reissued injunction is hereby nullified, as the case has now concluded.   It is so ordered. FOOTNOTES AND REFERENCES [1] Legislator Committee Act; Article 2, Section 2 (2020) The MATT-DUCK Law Archive [2] [2103.HQ] Enforceability of Article 2.2 of the Legislator Committee Act; Retrieved from: https://tspforums.xyz/thread-9299-post-2...#pid215724  [3] [2103.HQ] Enforceability of Article 2.2 of the Legislator Committee Act; Retrieved from: https://tspforums.xyz/thread-9299-post-2...#pid215818     2103.HQ.O | Issued 01 April 2021

-Griffindor/Ebonhand
-Current Roles/Positions
-Legislator 2/24/20-
-High Court Justice 6/7/20-
-South Pacific Coral Guard 11/17/20-
-Minister of Engagement 6/17/22-

-Past Roles/Positions
-Legislator 7/3/16-4/10/18
-Secretary of State 4/3/20-2/24/21
-Chair of the APC 9/24/16-5/31/17
-Vice-Chair of the APC 6/1/17-4/10/18
-Local Council Member 7/1/17-11/17/17
-Citizen 5/2012-12/2014 and  2/26/16-7/3/2016

Reply