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[1918] Voting Thresholds - Belschaft - 11-04-2019
Your honour,
In a recent ruling the Chair of the Assembly (CoA) used their discretionary powers to alter the voting threshold for amending the Criminal Code from a simple majority to a supermajority, in direct contradiction of the thresholds explicitly mandated by the Legislative Procedure Act (LPA).
Article 1.4 of the LPA clearly and unambiguously mandates specific voting thresholds for general and Constitutional laws. These thresholds are respectively set as a simple majority and a three-fifths supermajority.
Legislative Procedure Act, Article 1.4 Wrote:(4) General laws, amendments, resolutions, and treaties require a simple majority of those voting to pass. Appointments, unless otherwise specified, require a simple majority of those voting to pass. Constitutional laws, constitutional amendments, and resolutions dealing with matters of constitutional law require a three-fifths supermajority of those voting to pass.
Article 1.1 of THE CHARTER OF THE SOUTH PACIFIC (Charter) outlines the distinction between Constitutional laws and General laws, and mandates that all Constitutional laws be specifically marked as such.
THE CHARTER OF THE SOUTH PACIFIC, Article 1.1 Wrote:(1) Laws that form the foundation of our community, are considered fundamental to governance, or otherwise are considered of great importance by the Assembly, are to be known as “constitutional laws” and marked as such.
A standard format for marking laws as Constitutional has been developed to comply with the requirements of Article 1.1 of the Charter, which is as follows: “The XXX is a constitutional law, and further amendments to it must meet constitutional amendment requirements.” This marking is used on all four laws designated as Constitutional in accordance with Article 1.1 of the Charter. These laws are the Elections Act, the Legislative Procedure Act, the Legislator Committee Act, and the Proscription Act.
Elections Act, Article 8.1 Wrote:8. Constitutional Law
(1) The Election Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements
Legislative Procedure Act, Article 3.1 Wrote:3. Constitutional Law
(1) The Legislative Procedure Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements.
Legislator Committee Act, Article 4.1 Wrote:4. Constitutional Law
(1) The Legislator Committee Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements.
Proscription Act, Article 5.1 Wrote:5. Constitutional Law
(1) The Proscription Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements.
Two additional acts of the Assembly are marked as constitutional in accordance with the requirements of Article 1.1 of the Charter. The Charter establishes it’s supremacy over all other laws including all other Constitutional laws in Article 1.3, whilst Resolution on Adopting Defending Military Principles (ADMP) includes a clause resolving that the Assembly “Considers this resolution a constitutional law“.
THE CHARTER OF THE SOUTH PACIFIC, Article 1.3 Wrote:(3) This Charter is a constitutional law holding supremacy over all others, and defines the purpose of our government and its framework
Resolution on Adopting Defending Military Principles, Resolved Three Wrote:(3) Considers this resolution a constitutional law, to show our dedication to upholding these principles by considering them a fundamental aspect of our governance.
The commonality of all six acts of the Assembly that can be considered Constitutional is that they contain within them a specific written reference to the fact that they are to be considered such, in keeping with the requirements of Article 1.1 of the Charter. The Criminal Code does not use the standard format for marking laws as Constitutional, nor does it contain any other form of written reference that it should be considered as such in keeping with the Charter or the ADMP. As such it cannot be considered a Constitutional law.
It can be clearly seen that the Assembly has the power to designate laws as Constitutional or otherwise, and that the choice of this designation has the sole effect of determining the required voting threshold for amendments or resolutions relating to this law. The fact that the Assembly chose to not mark the Criminal Code as a Constitutional law is thus clear indication that it did not intend for it to require a supermajority to be amended.
In addition to this, Article 2 of the Legislative Procedure Act enumerates the specific powers and responsibilities of the CoA.
Legislative Procedure Act, Article 2 Wrote:2. Powers and Responsibilities of the Chair
(1) The Chair is responsible for creating voting threads and recording votes. In the event that the Chair does not perform these duties in a reasonable time frame, any legislator may create voting threads and record votes.
(2) The legislative history of each law will be recorded by the Chair. Legislative history will include reference to debate threads, voting results, and amendment history.
(3) The Chair must document the use of their discretionary powers including a rationale for using those powers in the relevant debate thread.
(4) The Chair may correct typographical errors, grammatical errors, naming or formatting inconsistencies at any time, as long as these corrections do not alter the original intent of the law, following a three day period in which the corrections are presented to the assembly for comments. Any such corrections must be recorded with the legislative history of each law.
(5) The Chair may delay votes for a reasonable time frame if done for the purposes of vote scheduling or to avoid preemption of active debate by a vote.
(6) The Chair may freely appoint any number of deputies, who will be authorized to perform those legislative duties of the Chair that the Chair permits. Any changes in the roster of deputies must be posted publicly.
(7) The Chair may waive the mandatory debate period remaining on a particular piece of legislation should a legislator motion for them to do so, provided that there has been no objection within 24 hours of the motion being made and seconded.
A cursory reading of this article shows that the power to set voting thresholds other than those mandated by the LPA is not a power granted to the CoA. As such the CoA has exceeded the lawful powers of their office in doing so. Petitioner has identified to the CoA the unlawful nature of their actions and suggested a remedy which would avoid a burdensome Court case, but this remedy has been refused and the CoA stands in wilful defiance of the law.
Having demonstrated both reasonable cause and a sound legal basis for raising this matter, petitioner asks the following questions of the Court,
1. What voting threshold does the law mandate to amend a law not marked as Constitutional?
2. Does the Chair of the Assembly have the power to set a threshold other than one mandated by the law?
2. Does the Chair of the Assembly have the power to set a threshold other than one mandated by the law?
RE: Legal Questions on Voting Thresholds - Nakari - 11-04-2019
Your honor, if it pleases, I wish to speak in favour of the legality - or at least, lack of illegality - of the actions taken.
My actions rest on two premises.
1. It is ambiguous whether a simple majority or a 60% supermajority is needed.
The Legislative Procedure Act requires a simple majority to amend a general law, so it follows that a simple majority is needed here.
The Criminal Code requires a 60% supermajority in order to repeal a prohibition. By repealing the relevant portions of the Criminal Code, the prohibition is also repealed. Therefore it follows that a 60% supermajority must be needed here.
Belschaft argues that if the Assembly didn't want the Criminal Code altered, they would have designated it as constitutional law. The Assembly, however, clearly didn't want the list of prohibited regions altered without 60% supermajority, else they would have not mandated a 60% supermajority.
Claiming that the LPA has precedence over this makes it pointless for the Assembly to have put that threshold in place, and this goes contrary to what I believe is a common sense reading of the law.
In addition, in some cases (mentioned below), amendments to general laws are voted on with the requirement of a supermajority. Therefore, I believe the LPA and the Criminal Code contradict, and the way forwards is ambiguous.
2. When there is ambiguity over what voting threshold should be used, the highest is used.
This didn't occur to me as an issue of arbitrarily raising the voting threshold via Chair discretion, as the closest equivalent to me seems to be omnibus votes where both general and constitutional law are both amended. For instance, the following votes amend various arrangements of general, constitutional, and Charter law, and in each case, the higher threshold is used:
https://tspforums.xyz/thread-5715.html
https://tspforums.xyz/thread-6409.html
https://tspforums.xyz/thread-6347.html
It would be obviously contradictory to use the lower threshold in those cases, as it would allow a simple majority to alter laws that the Assembly has decided need a supermajority. And it would be silly to argue that it is unfair to force the associated general law amendment to achieve a supermajority when the LPA says general law amendments require only a simple majority.
In the same way: the Assembly decided a supermajority was needed to alter who is prohibited, so it would seem contradictory to allow a simple majority to change that, even if a simple majority would be enough to alter the rest of the law under the LPA.
Essentially - I believe the law is unclear on this matter, and when the law is unclear, the precedent of omnibus bills shows that we play it safe by using the higher threshold. Both a 60% and 50% threshold are mandated, and so the 60% is followed, not out of arbitrary Chair discretion but out of consideration of similar precedent and consideration of what I believe to be a common sense reading of the law.
I am personally voting for the bill - I do not have political interest in raising the threshold to make the bill harder to pass. This is not a case of wilful defiance against the law - this is a case of trying to navigate ambiguities in the law the way I believe is set as precedent. Belschaft may not think the law is ambiguous on this, but there are enough legislators arguing on either side to show that the law is not sufficiently clear.
I would also like to see this ambiguity solved. If the Assembly votes within 50% and 60% in favour of the amendment, the legal status of the amendment is at this point unclear, and so guidance from the Court on how to interpret and reconcile the differing requirements would be extremely useful to the Assembly.
Notice of Reception - Kris Kringle - 11-05-2019
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HIGH COURT OF THE SOUTH PACIFIC
1918.NR | Notice of Reception |
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Notice is provided that this petition has been received by the High Court and has been assigned all necessary naming information as follows:
Docket File Number 1918 Reference Name Voting Thresholds Question
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RE: Legal Questions on Voting Thresholds - Sasha - 11-05-2019
Your honour,
I think that all reasonable parties will agree that no supermajority is needed to amend or repeal the supermajority requirement in the Criminal Code itself.
Nor does the supermajority requirement, as written, protect anything but specific prohibitions. It does not protect the criminal code or section 4 itself.
Therefore:
1. It would always be legal to simply repeal this law and the associated prohibitions with a simple majority if two steps were used - this cannot reasonably be contradicted without contradicting the letter of the law.
2. In this case, the full repeal of the law, including the supermajority requirement, is the primary action. The repeal of the associated prohibitions is merely a secondary action, a consequence. The supermajority requirement would only apply to the secondary action but the primary action which only requires a simple majority is repealing the legal basis for both the prohibitions and the supermajority requirement. The repeal of these specific prohibitions is merely implicit because their legal basis is withdrawn - that is not a repeal of a specific prohibition under section 4.
3. There is no recognisable intent in the law that the law itself should receive special protection. This may be intentional or through carelessness. If tbere is no clear recognisable intent suggesting otherwise, the court should stick to the very letter of the law. If the court, despite this, chooses to require a supermajority, that would be going against the letter of the law. It would be an attempt to close a perceived loophole that may, in fact, be an intentional part of the law and would set a bad precedent of letting the court, rather than the Assembly, create and decide law.
Your honour, I implore the court to uphold the law and declare the 60% supermajority requirement to be illegal in this case.
RE: Legal Questions on Voting Thresholds - Belschaft - 11-06-2019
Your honour,
In regards to the issue of the necessity of a decision on this matter I would present two arguments.
Firstly, as the originator of the amendment in question direct harm has been caused to myself. At present, and if no votes change, the amendment will achieve a simple majority as required by the LPA but not the supermajority imposed by the Chair. As such a decision is needed to ensure the lawful passage of the amendment, undoing the harm caused to myself.
Secondly, I would argue that broader democratic principles are in question. The LPA enables the Assembly to make determinations as to what thresholds are required to make or alter certain laws, by choosing to mark a law as constitutional if it wishes it to be subject to a supermajority. I detailed in my initial submission the way that the Assembly has chosen to mark four laws, the Charter and a resolution as constitutional, and further that the Assembly has chosen not to mark the Criminal Code as such.
By asserting a power to assign laws not marked as constitutional a supermajority threshold the Chair has assumed a power not granted to her by law, and in doing so usurped the power of the Assembly to make this determination. If this action is allowed to stand it would transfer power from the Assembly to the Chair in a manner not contemplated or agreed by the Assembly, and establish a new precedent in support of this. Should the current Chair acquire the power to arbitrarily alter required voting thresholds then a future Chair could use that power for nefarious purposes. An example of such nefarious purposes would be deciding that an official elected with 80% of votes could only be recalled from office with a supermajority of 80% in the Assembly, a decision which rests on similar logic to the Chairs actions in this matter.
Determination of Justiciability - Kris Kringle - 11-07-2019
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VOTING THRESHOLDS
Determination of Justiciability |
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Document Code 1918.DJ
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Submission 04 Nov 2019
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Admission 07 Nov 2019
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Whereas BELSCHAFT has petitioned this Court that a review be conducted on the applicability of the law to certain situations, through the following questions:
What voting threshold does the law mandate to amend a law not marked as Constitutional?
Does the Chair of the Assembly have the power to set a threshold other than one mandated by the law? Whereas this Court has considered the merits of such a petition on the basis of its legal necessity and further requirements contemplated in the Charter, the Judicial Act and all applicable law. It is resolved as follows:
It is so ordered. |
RE: [1918] Voting Thresholds - sandaoguo - 11-10-2019
Your Honors,
This case is not as clear-cut as the petitioner wants the Court to believe. The history of this particular portion of the Criminal Code makes it impossible to treat it with such simplicity, particularly in light of the established legislative precedent raised by Chair Nakari in part 2 of her brief.
The Court must consider the whole picture when deciding this particular question, and that includes the political context of prohibitions and proscriptions. The preemptive banning of individuals, groups, and organizations has been one of the most contentious, if not the most contested, policies in our political history. It was the underlying motive of 2 coup attempts, the subject of perennial debate, and also the sole legal mechanism that has protected our community from dangerous and duplicitous groups like the Empire (now known as the Rahl Family). This provision of the Criminal Code only still exists, after all, because of fierce disagreement over whether or not the Proscription Act was strong enough for keeping Rahl out of the region compared to the prohibition section of the Criminal Code. There's been more than one debate on repealing the prohibition and instead invoking the Proscription Act on the group instead. Previous debates resulted in keeping the Criminal Code intact. It's been a "zombie law" that existed solely because attempts to remove it have been met with strong opposition, all surrounding the deep political divides on the question of proscriptions/prohibitions in general and the Rahl Family in particular.
Perhaps the Court may consider that debate settled, now that the Cabinet has invoked the Proscription Act on the Rahl Family, but that is not material to the case at hand. The fact that there has been such fiery debate and intractable disagreement, for years, means there was a lack of consensus on the issue. It strains credulity, then, that the Assembly intended the Legislative Procedure Act to override the consensus-demanding supermajority threshold for overturning prohibitions. The Legislative Procedure Act was written during a time of protracted political conflict centered on the ability of the government to ban security threats. Does it really make any sense at all that the subject never came up, that the Assembly introduced the possibility of proponents of removing the prohibition (or repealing the whole section) pushing that through with a bare simple majority (despite the law saying a supermajority was required)... and it was just never discussed until now? It doesn't make sense.
In this particular case, the Court's responsibility is to reconcile the wording of the Legislative Procedure Act and the Criminal Court, and to do so the Court ought to weigh heavily on the legal and political context of both. The Assembly's lack of intent in allowing a repeal of either a singular prohibition or the entirety of the law itself is rather clear. Our legal system does not run according to robotic strict textualism. The Court was created to solve disputes in a way that causes the least amount of disruption to the intent of our laws. Ruling here that this particular part of the Criminal Code, given its history and political context, and given the lack of evidence in our legislative and political history that the Assembly ever intended so, is not overruled by the Legislative Procedure Act.
That may not bring harmony to the petitioner's wishes, but it prevents setting a bad precedent that unintentional wording in an unrelated law can create a loophole that allows one side or the other of a long-contentious disagreement to ram through changes. This community is made up of hobbyists, not lawyers. Our laws will never be perfect, but reasonable people can see intentions or the lack thereof relatively clearly.
RE: [1918] Voting Thresholds - Beepee - 11-11-2019
Your Honourable Justices,
The following amicus brief is respectfully submitted by BEEPEE to aide the Court in its consideration of the legal question posed by BELSCHAFT
What voting threshold does the law mandate to amend a law not marked as Constitutional?
Does the Chair of the Assembly have the power to set a threshold other than one mandated by the law?
Known as
Voting Thresholds [HCLQ1906]
_____________________________________
The Legal Question submitted by BELSCHAFT, is in fact two set questions, to aide the court I shall take each in turn
What voting threshold does the law mandate to amend a law not marked as Constitutional?
The Legislative Procedures Act defines the procedural rules for the Assembly and the Chair in the consideration and determination of Acts.
Article 1, Section 4 sets out the voting thresholds required for an Act to be passed by the assembly:
(4) General laws, amendments, resolutions, and treaties require a simple majority of those voting to pass. Appointments, unless otherwise specified, require a simple majority of those voting to pass. Constitutional laws, constitutional amendments, and resolutions dealing with matters of constitutional law require a three-fifths supermajority of those voting to pass.
Prima facie, the answer to BELSCHAFTS first question appears to be that any amendment to a law or Act not marked as Constitutional will require a simple majority to pass.
There is, however, an exception to the Legislative Procedures Act in that, at Article 4, Sections 8 and 9 of the Criminal Code (for example) provides a 60% threshold is required for designating, or rescinding, prohibitions. (As follows)
(8) Regions at war with The South Pacific or with which The South Pacific is at war shall be automatically considered Prohibited Groups.
a. The Assembly may further designate Prohibited Groups via a vote with a 60% majority in favor, should the Cabinet or the Council on Regional Security request such a designation.
(9) The Assembly may rescind a Prohibited Group designation via a vote with a 60% majority in favor.
Therefore, limited exemptions exist to the prima facie response.
It would not be, I respectfully surrender, wise for the Courts to list exceptions rather to note exceptions exist.
I turn now to the second of BELSCHAFT’s Questions.
Does the Chair of the Assembly have the power to set a threshold other than one mandated by the law?
In BELSCHAFT’s original statement to the Court he noted that the matter law involved was the Criminal Code. The Criminal Code is not, as far as I can ascertain, a Constitutional Law.
It is anticipated by Legislative Procedures Act that the wording of the Act will be followed, and as such a change to the Criminal Code (save the exception mentioned above) can be carried out by a simple majority.
As I understand it, BELSCHAFT contends that CHAIR NAKARI incorrectly applied discretion to amend a voting threshold from simple majority to 60% “super-majority".
Article 2 of the Legislative Procedures Act sets out the powers of the Chair. Section 3 of Article 4 provides discretionary to the Chair of the Assembly. No details are provided to explain what these discretionary powers are. The powers cannot be free ranging and cannot, surely, be to usurp the law as written. Therefore the Chair would have no powers to amend the voting majorities. If the sections following Article 4 (3), set out the discretionary powers provided, this is not clear; however it could be considered a reasonable interpretation of the law. Nothing in the sections following Article 4(3) permit the Chair to amend the voting majorities .
CHAIR NAKARI responded such that the proposal, involving the removal of the Prohibited Grouping (Article 4(10)) – known as “the Empire" necessitated a 60% majority rather than a 50% simple majority.
The Criminal Code, as written, would require a 60% majority to remove the prohibition when repealing the Code, as proposed. Indeed it would have been a reasonable assumption for legislators that the code would not be withdrawn with prohibitions still existing and as such the question of simple or super majority was not broached.
There is a reasonable logic followed by CHAIR NAKARI that requiring two votes one with a simple- and one with a super-majority would be excessive. It would seem reasonable that the Chair could use discretionary powers to clarify this mixed voting requirement and it would appear logical to accept the higher bar in this instance, to avoid falling foul of the exemption provided at Article 4, Sections 8 and 9 of the Criminal Code.
Had the vote proceeded similarly to the votes cast in two rounds of voting, rather than the process instigated by CHAIR NAKARI, the prohibition of the Empire would remain, with no prohibition law attached to it. This would result in an ultra vires prohibition of the Empire.
CHAIR NAKARI has submitted that such discretion has been implemented in the past. Whilst the Court may find some comfort in the previous actions, I do not find the precedent convincing as each relates to linked separate legislation.
I trust the above aides the Court in its consideration of the Legal questions, and I would be happy to provide further assistance if require.
Yours, respectfully
BEEPEE
RE: [1918] Voting Thresholds - Belschaft - 11-11-2019
Your honour, in rebuttal of the arguments presented by the Chair I submit the following;
(11-04-2019, 07:12 PM)Nakari Wrote: 1. It is ambiguous whether a simple majority or a 60% supermajority is needed.
The Legislative Procedure Act requires a simple majority to amend a general law, so it follows that a simple majority is needed here.
The Criminal Code requires a 60% supermajority in order to repeal a prohibition. By repealing the relevant portions of the Criminal Code, the prohibition is also repealed. Therefore it follows that a 60% supermajority must be needed here.
Belschaft argues that if the Assembly didn't want the Criminal Code altered, they would have designated it as constitutional law. The Assembly, however, clearly didn't want the list of prohibited regions altered without 60% supermajority, else they would have not mandated a 60% supermajority.
Claiming that the LPA has precedence over this makes it pointless for the Assembly to have put that threshold in place, and this goes contrary to what I believe is a common sense reading of the law.
In addition, in some cases (mentioned below), amendments to general laws are voted on with the requirement of a supermajority. Therefore, I believe the LPA and the Criminal Code contradict, and the way forwards is ambiguous.
The Chair has attempted to divine the intent of the Assembly, arguing that as the Assembly did not wish individual prohibited region designations to be repealed by a simple majority then it logically follows that the Assembly also did not wish for the the Prohibited Regions and Organisations article to be amended or repealed by a simple majority. This logic appears sound, but contrary to the Chair's arguments the Assembly has chosen to make it's intent in this matter clear. It has been demonstrated that the Assembly has established a clear and simple mechanism to decide which laws and acts require a super-majority to alter via marking them as constitutional. If the decision to mark a law as constitutional is a clear indicator that the Assembly wishes a matter to require a super-majority, then the decision of the Assembly to not mark a law as constitutional is a clear indicator that the Assembly wishes a matter to require a simple majority.
In addition to this, the Chair fails to acknowledge that repealing a prohibition and repealing the law that establishes prohibitions are fundamentally different acts. Whilst it may seem counter intuitive for the later to require a lower threshold than the former, this is nevertheless as the Assembly chose to establish the law. It could be argued that the Assembly was wrong to make this decision, but nevertheless it is the decision the Assembly made.
Finally, it must be considered that the LPA is a constitutional law, and thus has legal precedence and supremacy over the Criminal Code. As such, should the two laws contradict as claimed by the Chair then the Court is required to reconcile them in a manner that follows the requirements of the LPA, the superior law.
(11-04-2019, 07:12 PM)Nakari Wrote: 2. When there is ambiguity over what voting threshold should be used, the highest is used.
This didn't occur to me as an issue of arbitrarily raising the voting threshold via Chair discretion, as the closest equivalent to me seems to be omnibus votes where both general and constitutional law are both amended. For instance, the following votes amend various arrangements of general, constitutional, and Charter law, and in each case, the higher threshold is used:
https://tspforums.xyz/thread-5715.html
https://tspforums.xyz/thread-6409.html
https://tspforums.xyz/thread-6347.html
It would be obviously contradictory to use the lower threshold in those cases, as it would allow a simple majority to alter laws that the Assembly has decided need a supermajority. And it would be silly to argue that it is unfair to force the associated general law amendment to achieve a supermajority when the LPA says general law amendments require only a simple majority.
In the same way: the Assembly decided a supermajority was needed to alter who is prohibited, so it would seem contradictory to allow a simple majority to change that, even if a simple majority would be enough to alter the rest of the law under the LPA.
Essentially - I believe the law is unclear on this matter, and when the law is unclear, the precedent of omnibus bills shows that we play it safe by using the higher threshold. Both a 60% and 50% threshold are mandated, and so the 60% is followed, not out of arbitrary Chair discretion but out of consideration of similar precedent and consideration of what I believe to be a common sense reading of the law.
Whilst it has already been demonstrated that there is no ambiguity in this matter, even if such ambiguity existed the votes cited as precedent by the Chair do not support their chosen course of action. Each of the three votes were on amendments to multiple laws, at least one of which was a constitutional matter designated as such by the marking requirements of the LPA. The vote in question here was an amendment to a single law that is not marked as constitutional. As such the matter is not substantively similar to those where the precedent was established and as such it cannot be considered to apply.
In addition, it must be considered that even if there was ambiguity in this matter the Chair is not empowered to interpret the law or otherwise reconcile contradictions as they have sought to do. This is not a power granted to the Chair in Article 2 of of the LPA, and resolving ambiguities and contradictions in law is a power reserved to the Court; if the Chair felt this matter unclear, they were required to refer the matter to the Court. As such, even if the Chair's arguments in this matter are deemed correct the action taken would remain outside the legal powers of the office and thus must be considered to be null and void.
RE: [1918] Voting Thresholds - Belschaft - 11-27-2019
Your honour, may I respectfully ask when a ruling on this matter can be expected?