Your Honors,

Brief amicus curiae in the matter of in-game consent for A2205.05

Is the Chair's decision challengeable in this Court?
Domais is wrong to claim that Article XIII of the Charter somehow "supersedes" Article III. Interpreted correctly, there is no conflict between the provisions at all. Article XIII, section 2 affords the Chair of the Assembly the discretion to rule on whether an amendment affects the gameside community. However, this discretion is not unfettered. The various provisions of Article III, as well as other elements of constitutional law, set limits on how this discretion may be exercised.

Were, for example, the Assembly to decide in future to carry out its threat to abolish the Local Council, and voted to amend the Charter by repealing Article V, the Chair of the Assembly could decide in accordance with Article XIII that the amendment does not require gameside consent. According to Domais' argument, this decision could not be challenged by this Court despite being an obvious breach of the gameside's Article III rights.

What is a "sufficiently egregious" breach?
The Petitioner and the opponents of this petition are in agreement that, if the Court's power to overturn the Chair's decision exists at all, it should only be exercised in cases where the Chair's abuse of power is "sufficiently egregious" to merit judicial intervention.

This is a high bar. In English law there is a principle known as Wednesbury unreasonableness, which holds that a court may only find a decision unreasonable if no reasonable person, acting reasonably, could have made it. It is not enough for a court to say it would have acted differently. While the High Court of the South Pacific is not an English law jurisdiction, I submit that the Wednesbury principle is a sound enough basis on which the Court should approach cases like these.

In other words, the issue before the Court is whether a reasonable Chair, acting reasonably, could possibly have concluded that the amendment to Article XIV of the Charter does not "directly affect" the gameside community.

Although this is a high bar, I submit that it has been met in this case. The text of Article XIV itself makes clear that the purpose of a Great Council is to rewrite or amend the constitutional laws of the South Pacific in a systematic manner. As well as removing the gameside's role in the convening of Great Councils, as highlighted by the petitioner, the amended Article XIV provides no protection for the gameside in any form. To repeat the example above, it would allow a Great Council to abolish the Local Council without gameside consent, since Article III, Section 5 of the Charter only prevents the Assembly from passing laws that affect the gameside without their consent.

The amended Article XIV therefore represents a significant diminution of the gameside's rights to self-determination. It may be that the gameside community is happy to defer to the forum in this regard, and give up their rights to approve the output of Great Councils. However, no reasonable Chair could possibly conclude that this was the case without first asking them.

Remedy
As the Petitioner points out, the Court has the power to strike down the Chair's decision to refuse a gameside vote in accordance with Article III, Section 6 of the Charter. It also has the power to declare the Chair's decision void in accordance with Article VIII, Section 4. The effect of using either of these powers would be identical in practice, requiring the Chair to submit the amendment to a gameside vote before the amendment is adopted as part of the Charter. The Court will also need to decide, as a consequential matter, how to approach the passage by the assembly of resolution A2205.06, which purports to convene a Great Council under the revised Article XIV.

In accordance with the rules of the High Court, I remain at the Court's disposal for follow-up questions and clarifications.