Legal Question (interpret the meaning and application of a law) [2103.HQ] Enforceability of Article 2.2 of the Legislator Committee Act |
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.
-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
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.
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
-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 |
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