HIGH COURT OF THE SOUTH PACIFIC
[2105.HQ] REQUIREMENTS OF OWL RECOMMENDATIONS AND CABINET OVERRIDE POWERS
SUBMISSION 10 JUL 2021 | JUSTICIABILITY 11 JUL 2021 | OPINION 04 SEP 2021
QUESTION
Does the World Assembly Act and rules promulgated by OWL pursuant to the act require OWL to post notice and go through the recommendation voting process on every resolution submitted?
Does the Cabinet's power to override a vote on a World Assembly resolution include the power to stop or prevent the notice and recommendation process OWL has promulgated?
SUMMARY OF THE OPINION
It is the opinion of the Court that while the Office of World Assembly Legislation does not have an explicit and binding duty to conduct its voting and recommendation process for each and every proposal, it does have a requirement to be diligent in its duties and avoid systematic failures to conduct the voting and recommendation process for any proposal that it encounters. It is also the opinion of the Court that the power of the Cabinet to override votes extends only to the votes cast by the Delegate, and therefore that the Cabinet has no power to override or otherwise impede OWL's voting and recommendation process from reaching its conclusion.
CHIEF JUSTICE KRINGLE DELIVERED THE OPINION, SIGNED ALSO BY
JUSTICE ROAVIN.
This case consists of two questions that, while related in terms of the institution to which they refer, are not necessarily dependent on each other. The Court will therefore answer them separately within this opinion.
On the First Question
This question asks whether the World Assembly Act (WAA) and the rules issued pursuant to it by the Office of World Assembly Legislation (OWL) create a legal requirement that OWL conduct its full voting and recommendation process for every proposal that has been submitted.
Let us begin by considering Article 1, Section 1 of WAA, which says that the Delegate "shall cast their vote on proposed World Assembly resolutions according to voting recommendations issued by the Office of World Assembly Legislation"
1. This tells us that OWL must issue rules that outline how exactly the voting process should play out. There is also merit in considering Article 3, Section1 -"[OWL] shall determine the medium for voting on proposed World Assembly resolutions"
2- and Section 2 -"[World Assembly and Special Forces member nations] may not be barred from eligibility in having their votes counted"
3-. Together these two sections further tell us that the recommendation process must involve open voting by certain subsets of members.
OWL has abided by the above mandate by publishing two documents: a dispatch titled 'Discussion/Voting Instructions' and a Google Drive document titled 'OWL Procedure Guide'. Each document has their own subject matter, but both address at least in part the way in which OWL should run the process, from identifying proposals to conducting the vote and issuing its recommendation to the Delegate. 'Discussion/Voting Instructions' says that "when OWL staff detect a submitted or prepare-to-submit resolution proposal, they will post a notification (...) along with instructions on how to cast your vote, give your opinions, and debate with other nations"
4. 'OWL Procedure Guide' has more detailed information on how the process should play out, particularly in terms of the work that should be done to identify proposals:
This monitoring must be done regularly so that OWL does not lose track of a proposal and fall behind in the regional response process. When a proposal that looks likely to reach quorum is in drafting, submitted (i.e. the author indicates — usually on the on-site forum — that they will be campaigning for it), or when a proposal that did not look likely to reach quorum nonetheless does, junior staff will immediately notify senior staff.5
In view of the above, both the WAA and the two subsidiary documents, the Court would propose an initial premise: there is a general expectation that OWL should issue conduct its voting and recommendation process on all proposals. This does not yet mean that there is a legally binding requirement that the process be conducted in all cases, merely that a general expectation exists based on a reasonable reading of the WAA and the process as has been laid out by both subsidiary documents.
If one grants this premise, however, Article 1, Section 2 of the WAA also provides for a scenario where there is no recommendation
6. Certain briefs amicus curiae have raised the question of the difference between this and cases where OWL issues a "no recommendation" recommendation
7. The Court would argue that there is little practice effect between such a recommendation and a lack thereof. The reality would remain that the Delegate has no recommendation from OWL. This also acknowledges the fact that the resolutions can move fast and that staff is always likely to be limited. While there is an expectation that OWL should be well run, it would be absurd to deny that a vote can always be missed at some point.
This leads the Court to propose a second premise: it makes sense then to read WAA to the effect that it provides for scenarios where OWL did not have a chance to issue a recommendation.
It is at this point that we should refer back to the two subsidiary documents issued by OWL and the implications of their existence.
When reviewing their authoritative value, the Court had to conclude that there is no explicit law or regulation on the general prerogative of institutions to make rules. There are references to policies enacted by government institutions. It can also be inferred, out of general common sense, that institutions have the right to regulate their affairs, and they indeed do so in practice, but there is no specific law that says how rules should be made, what scope or level of authority they have, or how they can be amended or repeal. In that sense, there is no legal distinction between a well-formatted dispatch and a dispatch made by an official with no significant knowledge of BBCode: both can be equally valid, but there can also be equal cause for concern about how authoritative they truly are.
While the above is true, there remains an expectation that institutions should operate in a predictable and reliable manner. A rule might not be fully authoritative, but there is something to be said about an institution committing itself, through a series of publicly available documents or through its publicly observable behaviour, to conduct its duties a certain way. This contract of sorts, even if originating from little more than custom, can help members of the region navigate the government and so, to disrupt that pattern without reasonable cause and to the detriment of others is not acceptable.
There is no clearer example of the existence of this expectation than the provisions for recall. Article IX, Section 1, Sub-Section A of the Charter lists dereliction of duty as one of the causes for initiating a recall
8. How could one identify dereliction of duty if not by the expectations that an institution has set for itself, be it through its statements, actions or inactions? While the exact meaning of dereliction of duty is a matter outside the scope of this case, the Court can still make use of this very figure to infer that there must be an expectation that institutions and officials work in a way that is predictable, and therefore than can be held to account.
Of course, one must be careful not to confuse the natural adjustment of policies and priorities with a generalised failure to perform one's duties. The Court would argue that OWL should not be bound to a strict expectation that any and all proposals be brought to a vote, since the World Assembly Act itself provides for lapses, but that should not be an excuse for a situation where OWL displays a systematic failure to hold votes and issue recommendations the way it has committed itself to doing.
Given all the above, the Office of World Assembly Legislation does not have an explicit and binding duty to conduct its voting and recommendation process for each and every proposal that is submitted to the World Assembly. That said, the WAA and the documents issued by OWL pursuant to it do create an expectation that OWL staff will be diligent in conducting the voting and recommendation process for all proposals, and so failures to abide by this should be well justified and occasional, rather than unjustified and systematic. In addition, when the process does take place, it must be done in a manner wherein voting is open to all eligible members of the region. In that sense, there can be no scenario where OWL issues a recommendation without a prior public vote; any and all recommendations must be the result of the voting process as outlined in the WAA and, when feasible, as detailed in OWL's subsidiary documents.
On the Second Question
This question asks if the Cabinet may prevent OWL from conducting any part of its voting and recommendation process as part of its override power.
There have been propositions in briefs amicus curiae that the Cabinet has the power to override the recommendation, even if not stop the process itself from happening
9. The Court believes this to be mistaken.
Article 1, Section 3 of the WAA says that the Cabinet "may override a vote on a World Assembly resolution for security and diplomatic purposes"
10. This happens in the context of Article 1, which outlines how the Delegate is to cast their vote. A plain reading of Section 3 -the text refers to the vote, not the recommendation-, along with the broader context of Article 1, should give little doubt that the Cabinet's override power refers not to any authority over OWL's process, instead it refers to the vote cast by the Delegate.
Let us also consider the point of the override power. What does it seek to accomplish? Sandaoguo explained, during the debate for the passage of the WAA, that "the Cabinet ought to have this capability [to override votes], as our Delegate's vote is very much part of the broader scheme of diplomacy and security in the region"
11. It stands to reason then to say that the point of the override power is to ensure that the Delegate does not cast a vote that is contrary to the security and diplomatic interests of the region. In that sense, what point is there to overriding OWL's recommendation if the Cabinet can instead directly override the Delegate's vote?
A logical reading of the situation would favour the interpretation that the override power refers to the vote cast by the Delegate, which is after all the one that holds real weight in the South Pacific's dealings with the World Assembly.
It is so ordered.
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