+- The South Pacific (https://tspforums.xyz)
+-- Forum: Government District (https://tspforums.xyz/forum-5.html)
+--- Forum: High Court (https://tspforums.xyz/forum-50.html)
+--- Thread: [LQ] [2002] Local Council Vacancy (/thread-8404.html)
Pages:
1
2
[2002] Local Council Vacancy - Omega - 06-23-2020
High Court of the South Pacific
Case Submission
Your Honours,
I, Omega, respectfully submit the following case for consideration by the High Court. I hereby state that the information within this submission is true, to the best of my knowledge, and that there is no malicious intent or vexatious nature to it. I further promise to make myself available to any future questions or request from the Court in order to ensure that this case is fairly considered.
Nation: United Federated States of Omega
Reference Name: Local Council Vacancy
Description: The Local Council Elections Act states in Article 5, Section 1:
"(1) A special election will be held for vacancies arising within the Local Council, if more than half of the term remains. If less than half of the term remains, or the position is vacant due to nobody running in its election, the Local Council may appoint a replacement until the next scheduled election or may call a special election."
Question: Does Article 5, Section 1 of the Local Council Elections Act mandate that a vacancy must be filled by the LC?
I, Omega, respectfully submit the following case for consideration by the High Court. I hereby state that the information within this submission is true, to the best of my knowledge, and that there is no malicious intent or vexatious nature to it. I further promise to make myself available to any future questions or request from the Court in order to ensure that this case is fairly considered.
Nation: United Federated States of Omega
Reference Name: Local Council Vacancy
Description: The Local Council Elections Act states in Article 5, Section 1:
"(1) A special election will be held for vacancies arising within the Local Council, if more than half of the term remains. If less than half of the term remains, or the position is vacant due to nobody running in its election, the Local Council may appoint a replacement until the next scheduled election or may call a special election."
Question: Does Article 5, Section 1 of the Local Council Elections Act mandate that a vacancy must be filled by the LC?
Notice of Reception - Kris Kringle - 06-23-2020
HIGH COURT OF THE SOUTH PACIFIC 2002.NR A QUESTION ON THE FILLING OF VACANCIES ON THE LOCAL COUNCIL [SUBMISSION 23 JUNE 2020] |
Notice is given that this question has been received by the High Court and has been assigned all the necessary identifying information as follows: DOCKET FILE NUMBER 2002 REFERENCE NAME Local Council Vacancy QUESTION Does Article 5, Section 1 of the Local Council Elections Act mandate that a vacancy must be filled by the LC? The petitioner and other interested parties are invited to explain the necessity of a decision on this matter over the next 24 hours. Briefs Amicus Curiae on the preferred eventual outcome of this case are not required at this time. |
RE: [2002] Local Council Vacancy - Omega - 06-23-2020
Your honors,
I will not be taking any side on the issue of this case, I will just note it is urgent as a vacancy has opened up in response to the election of the new Chairperson of the Assembly. I do acknowledge this is more brief "brief" than is perhaps customary but I do not believe I need to provide anything else relevant to this matter of urgency. I am happy to answer any questions.
I thank the Court for their speed and prudence with this case
Omega
RE: [2002] Local Council Vacancy - Bleakfoot - 06-24-2020
Your honors,
My pre-emptive apologies to the Court if the below submission falls outside of the boundaries of this case, and should properly be submitted as a standalone question. Having not participated in proceedings in this Court before I ask for your patience if I have transgressed. However I feel the following matter is of relevance.
I would respectfully point out that Article 6(2) of the Elections Act also appears to govern the filling of vacancies on the Local Council, and appears to contradict the provisions in the Local Council Elections Act.
Therefore, before the Court directly addresses the question above, I believe that it must consider the applicability of Article 5(1) of the Local Council Elections Act to the process of filling a vacancy on the Local Council.
My thanks to the Court.
RE: [2002] Local Council Vacancy - Kris Kringle - 06-24-2020
(06-24-2020, 02:40 PM)Bleakfoot Wrote: My pre-emptive apologies to the Court if the below submission falls outside of the boundaries of this case, and should properly be submitted as a standalone question.
Thank you for adding to this discussion. The choice is yours: if you think this question should be asked separately, I encourage you to submit a separate question through the Case Submission System.
Determination of Justiciability - Kris Kringle - 06-25-2020
HIGH COURT OF THE SOUTH PACIFIC 2002.DJ A QUESTION ON THE FILLING OF VACANCIES ON THE LOCAL COUNCIL [SUBMISSION 23 JUNE 2020 | JUSTICIABILITY 25 JUNE 2020] |
Whereas this Court has been asked to clarify and interpret provisions of law, a power vested in it by Article VIII of the Charter of the South Pacific, and an answer to such a question has been found warranted and necessary.
DETERMINATION OF JUSTICIABILITY This case is found justiciable and shall be duly considered under case number HCLQ2002 and all other designations assigned by document 2002.NR. SUBMISSION OF BRIEFS AMICUS CURIAE Interested parties may submit briefs amicus curiae to argue their views on the whole or a part of this case no later than 7 calendar days from now, and shall thereafter be liable to answer any questions that the Court may pose in relation to their brief. SUBMISSION OF REQUESTS FOR RECUSAL Interested parties may request the recusal of the Chief Justice or any Associate Justice no later than 3 calendar days from now. Any such request should provide clear reasons to support the requested recusal and explain the possible negative impact of a failure to recuse. RETENTION OF RIGHTS The Court retains the right to consult with, and request further testimony and evidence from, government institutions and other third parties as necessary to adequately exercise its sole right to issue an opinion on this case. It is so ordered. |
RE: [2002] Local Council Vacancy - Nat - 06-28-2020
|
STATEMENT WELCOMING SUBMISSION OF BRIEFS AMICUS CURIAE Justice Nat - High Court of the South Pacific |
|
The Court invites all submissions on this case. It is particularly interested to hear any submissions on the relevance Article V, Section 1 of the Charter to this case: 'The Local Council will be [...] composed of three or more residents of the South Pacific.' Notwithstanding this, the Court readily welcomes submissions which take another approach; such submissions may highlight other important angles with which to view the case at hand.
All submissions made to this thread before 10:00 pm on 2 July 2020 (UTC) will be considered. The Court may entertain an extension to this deadline if it would assist an interested party in making a submission on this case. Should an interested party have concerns about anything in this statement, they are invited to indicate their reservations on this thread or pursue any other avenue that is open to them. |
RE: [2002] Local Council Vacancy - Bleakfoot - 06-30-2020
Your honors,
As alluded to in my earlier submission, I believe that the answer to this question lies not in the Local Council Elections Act (LCLA), but in the Elections Act. My view is that, where a vacancy arises on the Local Council with less than half the term remaining, the Delegate has absolute discretion over whether to appoint a replacement, save that should the membership of the Local Council at any time fall below three members, it will be unable to discharge its constitutional functions.
The Law
Article 5, Section 1 of the Local Council Elections Act states: A special election will be held for vacancies arising within the Local Council, if more than half of the term remains. If less than half of the term remains, or the position is vacant due to nobody running in its election, the Local Council may appoint a replacement until the next scheduled election or may call a special election.
Article 6, Section 2 of the Elections Act states: A special election will be held for vacancies arising within the Local Council, if more than half of the term remains. If less than half of the term remains, or the position is vacant due to nobody running in its election, the Delegate may appoint a replacement until the next regularly scheduled election.
Article 8 of the Elections Act states: The Election Act is a constitutional law, and further amendments to it must meet constitutional amendment requirements.
Article V, Sections 1-2 of the Charter state:
- The Local Council will be the local government of the in-game community, composed of three or more residents of the South Pacific, and will represent the interests of all players in the region, moderate the Regional Message Board, encourage activity on the gameside, and administrate itself on issues unique to the in-game community.
- The Local Council is entitled to self-administration within its jurisdiction on local issues, but may not pass laws or regulations that contradict this Charter or constitutional laws. To that end, the Assembly may not enact any law, nor the Cabinet deliver any directive, that is solely related to an issue local to the in-game community.
Differences between the LCLA and the Elections Act
The relevant sections of the LCLA and the Elections Act are superficially similar, save that the Elections Act reserves the right of the Delegate to discretionarily appoint a replacement to the Local Council where no special election is required; the LCLA devolves this power among the remaining members of the Local Council.
This difference goes to the heart of the question at hand, since the ambiguity in the wording of the LCLA, which has given rise to this question, is not repeated in the Elections Act - it is clear that while the Delegate may appoint a replacement, there is no inherent compulsion for them to do so.
The question the Court must resolve, therefore, is which provision should be preferred for the filling of vacancies on the Local Council. As I shall outline below, it is my view that the Elections Act should be preferred.
Which law must the Court follow?
The parts of the Elections Act relevant to Local Council elections were repealed in 2017, save for Article 6, Section 2. From the context of the reform it appears that the desire of the Assembly was to give the Local Council greater control over its own affairs, including the election of its members.
Therefore the retention of Article 6, Section 2 seems to be an error on the part of the Assembly. It is unlikely that the Assembly would consciously choose to devolve significant powers of self-determination to the Local Council, all the while retaining a relatively niche power to govern the filling of vacancies.
Nonetheless, while I am confident that this is an error, I submit that it is one for the Assembly to resolve, and not one in which the Court may properly interfere.
The Court must, therefore, consider the question with reference to our constitutional arrangements. Article V, Section 2 of the Charter (quoted above) provides that the Local Council 'may not pass laws or regulations that contradict this Charter or constitutional laws.' As the Elections Act is a constitutional law (per Article 8 of that Act), it follows that the Local Council may not pass laws that contradict it. As such, Article 5, Section 1 of the LCLA is null and of no effect, to the extent that it contradicts Article 6, Section 2 of the Elections Act.
Does Article 6, Section 2 of the Elections Act interfere with the Local Council's right to self-administration?
For completeness I wish to address the sentence in Article V, Section 2 of the Charter that immediately follows the one quoted above: 'To that end, the Assembly may not enact any law, nor the Cabinet deliver any directive, that is solely related to an issue local to the in-game community.'
Insofar as the Local Council is a body solely representing the in-game community, this sentence could be held to mean that Article 6, Section 2 of the Elections Act should be held to be null and of no effect, since it unconstitutionally interferes with the Local Council's right to self-determination.
However, I submit that this would be a misreading of the Article taken as a whole. This is for two primary reasons.
Firstly, the structure of Article V, Section 2 of the Charter demonstrates that the second sentence is subordinate to the first; the phrase 'To that end' suggests that the restrictions on the Assembly and the Cabinet are limited to the extent that they preserve the rights of the Local Council to self-administration. Therefore, when an apparent conflict arises between the Local Council's inability to pass laws that contradict constitutional laws (the first sentence), and the Assembly's inability to pass laws that interfere with the Local Council's right to self-administration (the second sentence), it is constitutional law that should prevail.
Secondly, Article V, Section 2 of the Charter is written in the present tense (The Assembly may not enact any law). By the time the LCLA was passed, the Elections Act had already been enacted. Therefore, at the time it was enacted, the Elections Act did not interfere with any of the Local Council's rights to self-administration, and thus this part of Article V, Section 2 is not engaged.
Filling vacancies on the Local Council
Article 6, Section 2 of the Elections Act makes clear that it is at the Delegate's discretion whether to fill a vacancy that arises on the Local Council with less than half of the term remaining.
However, the Elections Act, as with all laws, is subject to the Charter, which states at Article V, Section 1 that the Local Council is to be composed of three or more residents of the South Pacific. Should the membership of the Local Council at any time fall below three members, it follows that it is no longer quorate, and therefore cannot exercise the powers granted to it by the Charter. For the purposes of this case it is not necessary to speculate on who, if anyone, wields the authority to discharge the functions of the Local Council when it is inquorate.
Therefore, while the Delegate retains discretion over whether to fill a Local Council vacancy in these circumstances, they must be mindful that in some situations, failure to fill a vacancy would mean that the Local Council's powers would lapse.
Closing remarks
I thank the Court for the opportunity to make these submissions and, in accordance with the rules of the High Court, I remain at the Court's service to answer any follow-up questions.
Should the Court's ruling concord with my submissions, I would urge the Assembly to resolve the contradiction between the LCLA and the Elections Act at the earliest opportunity. The easiest way to do so would be to repeal Article 6, Section 2 of the Elections Act, as was presumably the intention in 2017.
However, this Court must rule on the law as it is, not as it would like it to be. Therefore I submit that the Court must properly regard Article 5, Section 1 of the LCLA as null and of no effect, and resolve this case with reference to Article 6, Section 2 of the Elections Act.
RE: [2002] Local Council Vacancy - Nat - 06-30-2020
@Bleakfoot - the Court thanks you for your comments. The Chief Justice has asked that I confirm your comments are indeed a brief amicus curiae for the consideration of the Court. It is the policy of the Court that all such briefs are explicitly labelled. Thus, while your comments appear to constitute a brief amicus curiae, it would be appreciated if you could confirm this.
The Court also has some questions about what you have written. The purpose of these questions are to give you an opportunity to strengthen your submission. It would be appreciated if you could answer the questions by the deadline set for submissions (10:00 pm on 2 July 2020 UTC). However, should you need it, the Court may consider extending this deadline upon request.
The Court also has some questions about what you have written. The purpose of these questions are to give you an opportunity to strengthen your submission. It would be appreciated if you could answer the questions by the deadline set for submissions (10:00 pm on 2 July 2020 UTC). However, should you need it, the Court may consider extending this deadline upon request.
- Is it possible to reconcile the relevant provisions of the Local Council Elections Act and the Elections Act through using Article VIII, Section 5 of the Charter? If so, should the Court opt to do this or, instead, declare that the relevant provisions of the Local Council Elections Act are null and void?
- If, as your submission suggests, the Local Council has no constitutional authority to act when it has less then three members, does it not follow that this is also the case for the entire duration of when a special election is held? If so, how does this interpretation not 'produce an absurdity [... whereby] the High Court may go on to consider other issues' (see HCLQ 1805 Designation of Constitutional Laws, Part I)?
- Your submission appears to assert the word may means that there is no requirement to act (no matter how ill-advised the inaction may be). Do you therefore hold that the word may in legislation must always mean there is no requirement to act? If so, how do you reconcile this view with the following excerpt from the Elections Act?
- Article 3, Section 2(d-e) of the Elections Act states: 'The two candidates with the highest number of approvals will move to a second round of voting conducted via a poll of Native World Assembly members. Should the voting result in a tie, more than two nations may move onto the second round of voting.' (Is this to say that, if second and third place are tied, the Election Commissioner has every right to choose not to allow one of those two candidates to progress as the law only requires that this may happen?)
- Article 3, Section 2(d-e) of the Elections Act states: 'The two candidates with the highest number of approvals will move to a second round of voting conducted via a poll of Native World Assembly members. Should the voting result in a tie, more than two nations may move onto the second round of voting.' (Is this to say that, if second and third place are tied, the Election Commissioner has every right to choose not to allow one of those two candidates to progress as the law only requires that this may happen?)
Please understand that these questions are in no way meant to deter your view, but rather to afford you the opportunity to further explain your arguments in light of the broader body of regional law. The Court looks forward to your answers and, as with all submissions, will give full consideration to them in arriving at a ruling. Briefs amicus curiae are incredibly important as they allow the Court to hear of and appreciate perspectives that it may have otherwise not thought of. Because of this, the Court thanks you for your previous comments and also for your consideration in providing answers to its current questions.
RE: [2002] Local Council Vacancy - Bleakfoot - 07-01-2020
Your honors,
I apologise for the inadvertent procedural oversight on my part. With the Court's permission I would request that my earlier post is regarded as a brief amicus curiae for the Court's consideration.
I thank the Court for the helpful direction and opportunity to expand on my earlier submissions. I would make clear that the Court may also consider the contents of this post when forming its opinion.
Which Article VIII power should the Court use?
If the Court agrees with my earlier submission that Article 5, Section 1 of the Local Council Elections Act (LCLA) conflicts with Article 6, Section 2 of the Elections Act, then the Court has the power to resolve this. There are two possible routes to resolution contained in Article VIII of the Charter (sections 4-5):
(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.
(5) The High Court may reconcile contradictions within the Charter, constitutional laws, general laws, Cabinet directives, and Local Council laws and regulations, maintaining the least amount of disruption to the intended purposes of the contradictory parts.
Section 4 applies to provisions that 'violate' the terms of the Charter; Section 5 applies to 'contradictions' within various bodies of law (for the purposes of avoiding absurdity, discussed further below, I would propose that the Court may read Section 5 as allowing for the resolution of contradictions within and between these bodies of law).
Although I have used the term 'contradiction' in my earlier submission, the question the Court must properly ask itself is whether the conflict between the LCLA and the Elections Act can be construed a 'contradiction,' or whether it is a 'violation' of the Charter and constitutional law.
The language used implies that a 'violation' that may be remedied by Section 4 is more serious than a 'contradiction' that may be remedied by Section 5; thus the test for establishing a 'violation' must be higher.
Nonetheless, my view is that Article 5, Section 1 of the LCLA does constitute a 'violation' of the Charter, and must therefore be struck out by the Court. The reason for this is that the Charter itself (at Article V, Section 2) prevents the Local Council from passing laws that contradict constitutional laws (including the Elections Act). This provision qualifies the Local Council's general right to self-determination as contained in the same section of the Charter, so that this right cannot be relied upon as a defence of the Local Council's actions.
In my view, therefore, the only remedy is for the Court to strike out the offending provision in the LCLA. This is not intended as a slight on the Local Council or any of its members, past or present; my view is that this was done inadvertently, due to an oversight on the part of the Assembly; nonetheless this does not abrogate the fact that this provision of the Charter has been violated.
It is, of course, open to the Court to devise its own test for distinguishing a 'violation' and a 'contradiction.' For example, the Court may wish to have regard to the intentions of the parties. However, in my view, acting in direct defiance of a term of the Charter - however inadvertent - should be properly regarded as a violation.
Local Council quorum and the meaning of 'absurdity'
As per the case helpfully cited by the Court (HCLQ 1805), the Court's initial approach to legislative interpretation should be the natural and ordinary 'common sense' meaning of the words. The natural and ordinary meaning of the opening words of Article V, Section 1 of the Charter is that the Local Council is to be composed of three or more residents of the South Pacific. Where the membership of the Local Council falls below three for any reason, it no longer meets the criteria specified in the Charter.
The question for the Court is therefore whether this situation, which (as the Court points out) would arise whenever a Special Election is called, produces an 'absurdity' that it is necessary for the Court to resolve.
I am inclined to leave it to the Court to properly devise a test for 'absurdity' that would enable it to intervene as per the principles laid down in HCLQ 1805. However, in this case I would point out that Article 3 of the Regional Officers Act permits the Delegate and Cabinet to grant gameside powers equivalent to those of Local Council members 'as they see fit.' It is therefore not the case that there would be a 'power vacuum' in the gameside community were the Local Council constitutionally unable to discharge its functions; the Executive are capable of resolving the matter without the need for the Court to intervene.
Discretion and the use of 'may'
Drawing on the principles from HCLQ 1805 regarding the natural and ordinary meaning of words as a starting point, it is indeed my view that the use of the word 'may' does carry an inherent component of discretion - if someone may do something, they are equally entitled to not do something. Where the Assembly wishes to compel someone to a particular course of action, it is open to the Assembly to use a different word, such as 'must' or 'will' - and I would respectfully point out the Court that these words are used elsewhere in the Elections Act, including elsewhere in Article 3, Section 2.
The existence of discretion does not mean that it is unfettered - those who are entitled, by way of legislation, to exercise certain functions (or to not exercise them, as the case may be) must still have regard to other laws, and the overall principles that govern the South Pacific.
To draw upon the example helpfully provided by the Court - the natural and ordinary meaning of the words contained in Article 3, Section 2 of the Elections Act does indeed mean that the Election Commissioner may choose not to allow one of the two 'tied' candidates to progress to the next round of voting. However, they cannot do so arbitrarily; for example, they must generally conduct themselves in a way that 'uphold democratic principles and rights' as per the Preamble to the Charter, and they cannot behave in a way that violates a member's right to hold office, as per Article III, Section 4 of the Charter.
It is properly the role of this Court to scrutinise the behaviour of officials, including (in this hypothetical instance) the Election Commissioner, and to rule on whether they have acted constitutionally and lawfully. Were this situation to arise in reality, I would expect the Court to closely examine the Election Commissioner's reasons for eliminating one of the candidates, and whether the use of their discretion was justified. In particular I would expect the court to reverse any conduct on the part of the Election Commissioner that was, in the Court's judgement, irrational or unreasonable, using its powers under Article VIII, Section 4 of the Charter.
Closing remarks
I repeat my earlier thanks and apology to the Court, and I trust that this further submission will be of use to them.