Your honors,

Brief amicus curiae on the Appeal of HCLQ2003
With the Court's permission I would like to focus this brief on the Appellant's first ground of appeal, namely that the Court lacked the power to issue the order, expressed in its Opinion on HCLQ2003, that the Election Commissioner must 'ensure all members of the Coalition ... can have their vote counted for both rounds of the current Local Council elections.'

In my opinion, the issue at hand is more wide-ranging than the Appellant submits, and goes to the heart of the Court's function. The question the Court should properly ask itself is: What power does the Court have to issue orders to give effect to its rulings?

The law
The Court's primary powers are contained in Article VIII, Sections 4-7 of the Charter. So far as is relevant, the Court has the power to declare any law (or act of government) void due to a violation of the Charter or constitutional law; to reconcile contradictions in the law of the South Pacific; and to interpret and clarify the law in a Legal Question. The Charter also gives the Court the power to strike down any law or action that violates any of the freedoms contained in Article III of the Charter.

The Judicial Act also gives the Court additional powers, but these are chiefly concerned with case management. For example, the Court has the power (per Article 9 of the Judicial Act) to issue a temporary injunction to compel a party 'to do or refrain from specific acts' pertinent to an ongoing case. However, a temporary injunction automatically lapses at the conclusion of the case (Article 9, Section 2).

The Elections Act states (at Article 1, Section 5) that the Court shall arbitrate on any election disputes that cocnern a matter of law. However, this does not grant the Court any additional powers; any election-related disputes must be resolved using the powers vested in the Court by other areas of law.

Discussion of the Court's powers
Article VIII, Section 4 of the Charter gives the Court the power to declare a law or other act of government 'void' on the basis that it violates the terms of the Charter. However, this power is purely declaratory; in order for such a ruling to have practical effect, it must be implemented by someone else. For example, in HCLQ2002 the Court ruled that parts of the Local Council Elections Act violated Article V of the Charter; the Local Council responded by removing the offending sections from the Act (albeit whether this removal was permanent is currently under discussion in HCLQ2004).

The power in Article VIII, Section 4 is to be contrasted with the Court's Article III power to 'strike down' any law or action that infringes on any right or freedom that is derived from the Charter. This implies that the Court is empowered to directly act to strike out a law that violates a Charter right or freedom, as opposed to the declaratory relief offered by Article VIII, Section 4 (which has broader application, for example to declare void a law that violates the Charter in a way other than by infringing on rights and freedoms).

However, this Article III right is exclusively destructive - while the Court can strike out or reverse any existing law or action, it cannot create any new law or compel any positive action to be taken.

A similar conclusion results from analysis of the Court's other Article VIII powers. While the Court can issue a ruling to reconcile contradictions in the law, and issue a legal opinion in response to a Legal Question, it lacks any authority to issue orders to ensure its conclusions are implemented. Indeed, the only powers the Court has to compel individuals or organisations to act in any particular way are those related to temporary injunctions under Article 9 of the Judicial Act; as already stated, these powers may not be exercised once a relevant case is concluded.

There is, therefore, no explicit provision of law that allows the Court to compel anyone to act in any particular way, save for the limited exceptions outlined above. In consequence we should also ask whether the Court has implicit jurisdiction to order that its rulings are implemented. There are three primary reasons why I submit that this is not the case:

• Firstly, it is the case that a legal opinion delivered by the Court has the full force of law, as allowed by Article 4, Section 3 of the Judicial Act. However, an order is delivered in consequence of a legal opinion, not as part of it. This is because the Court's power to answer a legal question is separate to its other powers (Jebediah has already explored this issue in their amicus curiae brief in the matter of HCLQ2004), and is restricted to enabling it to 'clarify and interpret' existing law. The purpose of Article 4, Section 3 is to prevent similar questions of legal interpretation being 're-litigated' over and over again before the Court; the Court is entitled to rely on earlier rulings as settled law. This section of the Judicial Act cannot, therefore, be used as a shortcut to enable the Court to exercise powers it has not been explicitly granted by the Charter or constitutional law.
  
• Secondly, the existence of Article 9 of the Judicial Act, governing temporary injuctions, clearly demonstrates that the Assembly has considered the matter of whether the Court should be allowed to issue orders compelling parties to do or refrain from certain actions. By restricting this power to the specific circumstances outlined in Article 9, this strongly suggests that the Assembly did not intend to give the Court an open-ended power to issue similar orders in other situations.
  
• Thirdly, the Court has no power to enforce its own rulings. The offence of 'Contempt of Court' in Article 1, Section 5 of the Criminal Code is limited to conduct that prevents the Court 'from reaching a true and just result' - in other words, it is concerned with conduct before and during a case, not afterwards (by which time the Court has already reached its result by delivering its judgment). Indeed, there is no sanction specifically set out in law for anyone who refuses to follow an order made by the Court. This supports the contention that 'orders' issued by the Court, in consequence of a legal opinion, are non-binding, since it is expected that a binding order would carry some sanction for non-compliance.
  

Application to the present case
The Appellant is correct that the Court had no power to order that all members of the Coalition should have their vote counted for the present round of Local Council elections. However, this is for a different reason than contended by the Appellant - while it may or may not be the case that electoral law does not allow for the filing of ballots after the polls have closed, this is immaterial, since the Court had no power to order a specific course of action in any event, regardless of what it was.

The Court's power, under Article III, Section 6 of the Charter, was limited to striking out the Election Commissioner's decision to exclude an absentee ballot from the election. It is then for the Election Commissioner to decide how to lawfully proceed with the election. In other words, the legal opinion stands, but the consequential order does not.

I trust this brief will be of assistance to the Court, and I remain available for any follow-up questions that may result.