VOTING THRESHOLDS
Opinion

Document Code 1918.O

Submission 04 Nov 2019

Admission 07 Nov 2019

Opinion 08 Feb 2019

It is the opinion of the Court that any law not marked as constitutional must be subject to a simple majority threshold for passage and amending, as required by Article 1, Section 4 of the Legislative Procedure Act. While the Chair and, in the Chair's absence, other legislators, have a limited prerogative to determine the threshold applicable to any given vote, as per Article 2 of the Legislative Procedure Act, such determinations must be in accordance with Article 1, Section 4 and any other applicable laws.

CHIEF JUSTICE KRINGLE DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE NAT

This Court has been asked to rule on the diversity of voting thresholds within the legislative process and, further, on the discretionary powers of the Chair of the Assembly as they pertain to the determination of the threshold required for each impending vote. These questions arise from the decision of Chair Nakari to require a 60% threshold for an amendment to the Criminal Code. In deciding these questions the Court will consider various points, including possible conflicts in laws and what precedent has been set by past practice in the administration of votes in the Assembly.

I
ON REGIONAL LAW AND THE CATEGORISATION OF VOTES

Article I of the Charter created two basic categories of law: there are constitutional laws -laws that relate to the basic functioning of the government and the governance of the region- and there are general laws -the default category for any law that has been passed by the Assembly. The former category is said to “hold precedence and supremacy over all other laws, regulations and policies of all branches of government”¹, meaning that, in any conflict between a constitutional law and a general law, or any lower regulation or ordinance, the former has a higher standing and should, in theory, prevail.

Over the years, the Assembly has passed a number of laws that govern its functioning, the duties of its presiding officers and outline the legislative process. Primary among these laws is the Legislative Procedure Act (hereafter the Act), a constitutional law that outlines the procedures for the consideration, debate and passage of laws, as well as the powers and responsibilities of the Chair. On the matter of thresholds for the two basic categories of laws described in the preceding paragraph, Article 1, Section 4 of the Act says as follows:


In the aforementioned section, the Act clearly states that constitutional laws and amendments require a three-fifths majority for passage but, for all other unspecified cases, a simple majority is sufficient. There is ample and publicly available precedent for the application of this section, to the extent that the Court will not provide a list of examples for this; a cursory review of the Voting Chamber Archive will reveal that constitutional laws are indeed required to achieve a three-fifths majority, whereas all other votes require a simple majority.

A review of passed laws also shows that laws follow this distinction. Laws meant to be constitutional are clearly marked as such by a clause of the following style: “[Title of the Act] is a constitutional law, and further amendments to it must meet constitutional amendment requirements”. This formula can be found in the Elections Act³, the Resolution on Adopting Defending Military Principles⁴, the Legislator Committee Act⁵, the Legislative Procedure Act⁶ and the Proscription Act⁷. In all these cases, and unlike general laws, resolutions and other legal documents that have been passed by the Assembly, it is specified that special requirements for passage must be considered.

In view of the above and considering the spirit in which the Charter and the Legislative Procedure Act were written, the Court has no recourse but to find that, unless otherwise provided by constitutional law, any law not marked as constitutional is subject to a simple majority threshold for passage and for subsequent amending, consistent with the text of Article 1, Section 4 of the Act. To determine any differently would be to act contrary to the Charter and, more directly, the Legislative Procedure Act, a constitutional law that clearly outlines which types of laws may be subject to higher thresholds.

II
ON THE DETERMINATION OF VOTING THRESHOLDS

The Chair is the presiding officer of the Assembly, elected to oversee the orderly administration of its business and of its legislative process. Article 2 of the Legislative Procedure Act provides a list of seven primary powers and responsibilities of the Chair and says that they are “responsible for creating voting threads and recording votes”⁸. This responsibility typically involves specifying the threshold required for passage and, once voting is finished, counting the votes and certifying the results.

To the extent that a limited amount of reasoning is required to ascertain the type of measure to the voted on, the Chair has some authority to determine the applicable threshold. In fact, since Article 2 of the Act allows any legislator to administer votes in the Chair’s absence ⁹, any legislator has the authority, under certain circumstances, to determine the applicable threshold. This determination, however, must obviously be in accordance with the thresholds set by the Legislative Procedure Act and any other applicable law (and when two or more laws conflict, the one in higher standing must prevail). There is no law that explicitly forbids setting a different threshold for certain kinds of votes but, at the same time, to set another threshold not contemplated in any law would be to go against the law, and that is an authority afforded to no member.

This does not mean that any Chair or legislator who erroneously determines a threshold is to be penalised. There are circumstances to be considered and if the action was not in itself malicious or intended to manipulate or obstruct the business of the Assembly then there might be little point in criminal prosecution. Regardless of how the issue of liability is resolved, however, the error should be remedied and the Assembly should be given the opportunity for its will to be considered under the actual threshold mandated by the law, whichever that may be.