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High Court of the South Pacific
Case Submission

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Your Honours,

I, sandaoguo, 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: sandaoguo

Reference Name: Appeal of HCLQ 2003, "Legality of Closed Local Council Elections"

Description: Appeal of “Legality of Closed Local Council Elections”

Background

On August 1, 2020, the Election Commission commenced with the regularly-schedule elections for Local Council, pursuant to the “Local Council Elections Act.” The regional polls created for both rounds of the election used the “World Assembly” and “native” restrictions. As such, only those nations within The South Pacific who held World Assembly membership and had more influence in this region than any other could access the voting options in the poll.

Prior to the end of the final round of voting and the certification of the results, North Prarie filed a legal question with the High Court challenging the use of those restrictions in the election polls. The High Court ruled that the use of those restrictions was not authorized by a constitutional law. (“It is the opinion of the Court that the current Local Council elections unconstitutionally restrict voting to World Assembly natives. This is because the aforementioned voting restriction is not required or authorised by a constitutional law, meaning it falls foul of the Charter requirement that only a constitutional law may restrict the right to vote amongst those who are members of the Coalition”, HCLQ 2003.) The Assembly immediately tabled numerous bills seeking to address this constitutional deficit, but has yet to vote on any of these bills. The Local Council is unable to remedy this issue themselves, in a way that maintains the poll restrictions it prefers, due to being unable to pass laws of constitutional status of their own.

The High Court ordered the Election Commission to “ensure all members of the Coalition … can have their vote counted for both rounds of the current Local Council elections.” This order came despite the fact that the final round of voting had finished on August 7, a full four days before the order to alter how the round was conducted. As it stands, no result has been certified.

In subsequent discussions and clarifications of the High Court’s order, Chief Justice Kris Kringle and Justice Nat have made clear that the order requires the Election Commission to somehow allow votes to be cast in an election that has already ended, through whatever means available that the Election Commission chooses. Justice Nat offered a formal clarification of the ruling (https://tspforums.xyz/thread-8586-post-2...#pid205125). Chief Justice Kris Kringle went further in his exclamation during a Discord discussion about the status of the election: “All concerns about election security are, however legitimate, political and technical rather than legal. The fact of the matter is that the EC has to either do a new poll or allow members to cast a vote in some way. Not only is the EC legally allowed to complete the election, they’re legally compelled to do so.” (image)

It is this order that the Election Commission challenges in this appeal. Additionally, the Election Commission believes that the High Court has failed in its duty to ensure the least amount of disruption possible when issuing its ruling and order.

Legal Underpinnings of the Order

The Election Commission challenges the authority of the High Court to issue an order that requires the commission to “complete the election” by holding an additional round of voting for those who were denied access to the original polls. This challenge is based on the enumerated powers of the High Court outlined in Article VIII of the Charter.

The primary purpose of the High Court is to reconcile the Charter and any laws or orders that contradict it. This authority is spelled out in two different sections of Article VIII:

“(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.” (Article VIII, Section 4 &5, Charter of the Coalition of the South Pacific.)

In Section 4, the High Court is granted the power to declare laws and orders void if they conflict with the Charter or a constitutional law. In using its Section 4 authority, the Court has only two options: uphold the law or order in question, or declare it null and void.

In Section 5, the High Court is granted the power to reconcile contradictions in laws and orders, while maintaining as little disruption as possible. This is the scalpel to Section 4’s hammer. Where a law or order does not flagrantly and irreconcilably violate the Charter or a constitutional law, the High Court can interpret the law or order in a manner that allows it stand in congruence with the Charter and our constitutional laws.

The High Court did not root its decision in HCLQ 2003 in either of these sections explicitly. To determine what authority, if any, the High Court used to deliver its order to the Election Commission, we must analyze the decision in more detail.

So, what did the High Court decide? The case was about an order (in effect) by the Election Commission that the polls should be run with the “World Assembly native” requirement enabled. The decision struck down that order, with the High Court finding that such a requirement was not authorized by any law. This was an exercise of the High Court’s Section 4 authority to declare an order void if it contradicts the Charter.

The second part of the High Court’s decision was an order to the Election Commission to (in effect) hold an additional round of voting for those that were unable to vote but should have been allowed. There is no law, either of the Local Council or the Assembly, that would authorize a round of voting outside of election period. As a reminder, the Local Council election ended on August 7, pursuant to the schedule required by the “Local Council Elections Act.” So, is this an exercise of the High Court’s reconciliation authority? The Election Commission argues that it is not, as there is no law or order that the High Court is reconciling. Instead, an entirely new process, never before employed in the Coalition’s recorded history, has been invented and then the Election Commission has been ordered to carry it out.

The Coalition has experienced contested elections and ballots before. Ballots initially deemed invalid have been ordered by the courts to be counted, for example. Elections have been declared null and avoid, and new elections held. But never has an election’s voting period concluded, and then new votes cast in that election. This is a novel process that has no basis in any law, but merely one which the High Court believes should happen to implement their decision that the original polls were created with unconstitutional restrictions.

As such, the order to the Election Commission should be reversed. The High Court may determine that the election itself is invalid, that any votes that were attempted to be cast by non-World Assembly members during the valid voting period be counted, or other Section 5 remedies that can be rooted within existing law. But the Charter does not provide the High Court with the ability to invent a new process – a new round of voting conducted via telegram, direct or private message, or similar – and order the Election Commission, or any other branch of government, to carry it out.

Failure to Ensure Least Disruption

The second part of this appeal centers on the disruption caused by the High Court’s decision in HCLQ 2003. An election that ended on August 7 has still not, as of August 18 and likely further into the future, been certified. The Local Council has not sat its new councilors. The Assembly is scrambling to come up with ways to run a secure and safe election for the Local Council. The Cabinet has attempted to address the issue with a (now rescinded) executive order. Last but not least, the Election Commission has been paralyzed in moving forward on the Local Council election. In short, nearly every branch of government has been considerably disrupted.

Article VIII, Section 5 requires the High Court to “maintain the least amount of disruption” when reconciling a law or order with the Charter. This is a positive obligation, not merely a suggestion. It’s the belief of the Election Commission that the High Court neglected its obligation. Despite the clear implications the order would have on election security, the High Court never consulted with the Election Commission on the commission’s ability to safely, securely, and speedily carry out its vague order. The High Court treats the remedy as a “simple” matter. (“[T]he Election Commissioner simply must provide an alternative for those who are not World Assembly natives.” HCLQ 2003.) Minimal analysis was done in the High Court’s decision on the probably disruptions that would result from the order.

To be clear, the High Court is not obligated to allow an unconstitutional order to remain in effect because change is inherently disruptive. However, where the are less disruptive means of remedying an injury, those means ought to be explored and preferred over others. The High Court entertained only one alternative to their order – requiring a poll open to all. It did not explore other options, nor did it ask for briefs on what remedies could be implemented or briefs on the possibility of a more narrowly tailored decision. Despite its assertions, it is clear that the aftermath of HCLQ 2003 has not been “simple” to clear up.

Because of the failure to seek less disruptive remedies, it is the belief of the Election Commission that the decision in HCLQ 2003 should be vacated and scheduled for re-hearing. The decision in HCLQ 2003 cannot stand, as it was borne from an action by the High Court that did not meet the obligations found in Article VIII, Section 5.

Thank you.

Question: An appeal of HCLQ 2003, "Legality of Closed Local Council Elections"