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Nat · 12-19-2018, 10:50 PM

In accordance with Article IV, Section 2 of the Judicial Act, I submit the following two related legal questions to the court:

Could part of a law be designated as constitutional while the rest was general law?
Could one law designate another law (or sections thereof) as constitutional?

I appreciate that the court may be busy at this time and am happy for the consideration of this issue to be delayed for as long as is necessary.

Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)

(This post was last modified: 12-30-2018, 03:26 PM by Belschaft.)

**Belschaft** · 12-30-2018, 03:24 PM

Determination of Justiciability

Whereas Nat has requested this Court that a review be conducted on certain issues related to the interpretation of the law with the following questions:

Could part of a law be designated as constitutional while the rest was general law?
Could one law designate another law (or sections thereof) as constitutional?

Whereas this Court has conducted a careful review of the merits of such a request on the basis of its legal necessity and potential to impact present and future policies.

It is resolved with respect to this Legal Question as follows:

These questions are deemed justiciable.
These questions shall be collectively assigned the case number HCLQ1805 and be referred to in full as Designation of Constitutional Laws.
The Court invites all able and willing members to submit their views and stances on this Legal Question in the form of amicus cruise briefs, no later than 11 January 2019.
The Court reserves the right to consult with, and request private testimonies from, other government institutions and individuals, for the purposes of research and clarification of context.
The Court retains, in compliance with the Charter and the Judicial Act, the sole right to issue an opinion on this Legal Question.

It is so ordered.

Belschaft
Associate Justice

Nat · 01-01-2019, 01:22 AM

I would like to thank the Court for accepting my legal questions. Below is my amicus curiae brief for the consideration of the Court. I am willing to answer any questions the Court has about my brief.

I would like to inform the Court that I am going away on a holiday soon with very little to no internet access. As such, it would be appreciated if the Court could direct any questions it has to me by 01:00 am 4 January 2019 (UTC). If I receive questions later than this time, I may not be able to answer them before I leave. I shall not be back until 21 January and then I have a busy fortnight after that. I apologise for any inconvenience this causes the Court.

Overview

This brief shall present four arguments, the first two of which are preliminary to the second two. The first argument will suggest that the marking provision in Article I, Section 1 of the Charter was intended to inform the Assembly and the High Court of the status of certain legislation as constitutional, so it could be treated accordingly by those bodies. The second argument will make a similar case in relation to HCLQ1804. With this in mind, the third argument will suggest that laws which mark other laws as constitutional are consistent with the Charter and HCLQ1804 or, at the very least, their purposes. Similarly, the fourth argument will suggest that designating sections of a law as constitutional would be consistent with the Charter and HCLQ1804 or their purposes. If this is shown, then it follows that both stand-alone constitutional sections and laws designating other laws as constitutional are consistent with the current laws of the South Pacific.

Assumptions

It is to be assumed in this brief that a law or section which designates other laws or sections as constitutional (hereinafter, a marking law) must itself be a constitutional law or section. Otherwise, a paradox would exist whereby a law or section could lose its constitutional status by a simple majority Assembly vote to amend the marking law. However, the entirety of the arguments presented do not rely upon this assumption, only some of the arguments do.

1. Intention of Article I, Section 1 of the Charter

The Charter requires that constitutional laws must be “marked as such.”¹It shall be argued that the purpose of marking a law as constitutional is to assist the Assembly and the High Court. The Assembly requires to know when a law is constitutional so it knows that it can only pass or amend that law with a supermajority.² The Court needs to know when a law is constitutional as it affects whether a law is permitted to do certain things under the Charter,³ whether a law may be struck down,⁴ and the precedence of laws.⁵ Thus, if the constitutional designation is accessible to these institutions, it will have fulfilled the intention this argument suggests is expressed in the Charter. This interpretation is corroborated by posts from the 2016 Great Council.

Considered constitutional: Sandaoguo on designating constitutional laws

In introducing the draft Charter, Sandaoguo said:⁶

Quote:
We wanted to stress that the Charter should have everything plus the kitchen sink. So there's a "constitutional law" provision that allows non-Charter laws to be considered constitutional (which is how it works in many RL countries).

This statement suggests that the primary purpose of the marking requirements in Article I, Section 1 was so that the laws may “be considered constitutional.” This is consistent with the argument about the intention of the Charter posed above.

For the Assembly: Belschaft on designating constitutional laws

In one of his contributions,⁷ Belschaft explained that constitutional laws are intended to detail “fundamental/structural elements” while general laws are more concerned with “the specifics […] as well as less important topics.” He went on to say:

Quote:
[Constitutional law] is for things that should be hard to change, and that broad consensus is required on, whilst [general law] is stuff that can be changed by a simple minority. We don't want 51% of the region eliminating something the other 49% considers to be fundamental/vital.

This statement is supportive of the idea that designating constitutional laws as such is for the benefit of the Assembly. It allows the Assembly to determine how it is allowed to revise legislation. This is consistent with the argument about the intention of the Charter posed above.

For the Court: Roavin on designating constitutional laws

In discussing constitutional law, Roavin stated:⁸

Quote:
The Charter defines the constitutional laws. So if the High Court were to declare a constitutional law void, then against what reference frame would it do that?

What the High Court can explicitly do is resolve conflicts in constitutional law (VIII.5).

Implicit within Roavin’s contribution is that the High Court must know which law is constitutional so that it may then deal with it in the special manner that constitutional laws are dealt with. This is consistent with the argument about the intention of the Charter posed above.

Conclusion to Part 1

As it has been shown, the marking provisions in Article I, Section 1 of the Charter were written with the intention of enabling both the Assembly and the High Court to treat constitutional laws differently, according to their special requirements. Thus, as long as the designation of constitutional status is available to the Assembly and the High Court, the intention of the marking provision in the Charter has been met.

2. Intention of HCLQ1804

The Charter requires that constitutional laws must be “marked as such.”¹ The Court considered this in Justiciability of legislator application appeals [HCLQ1804].⁹ It found that:

Quote:
Article I, Section 1 of the Charter provides for explicit marking of constitutional laws as such, and thus logically, laws lacking the explicit designation are not to be considered constitutional.

The Court subsequently ruled that the then-Legislator Committee Act was general law as it “bear[ed] no marking of constitutional status.” Case law, which part of general law,¹⁰ has therefore established that any constitutional law must be explicitly marked as such.

In examining the above ruling, it is clear that the primary intention of the ruling is to convey that laws which are not designated as constitutional are not constitutional. Where that marking is to be made is an aside since there was no indication that the then-Legislator Committee Act was constitutional, not in the law itself or anywhere else. Hence, the primary intention of the comments in HCLQ1804 is to provide that laws which are not marked as constitutional are themselves not constitutional.

3. Having a stand-alone marking law

Four arguments shall be made to support stand-alone laws which mark other laws as constitutional (hereinafter, marking laws). The first is that marking laws are consistent with the ruling in HCLQ1804. The second is that, if an inconsistency exists, the intended purposes of marking laws and the ruling in HCLQ1804 should be reconciled in favour of marking laws. The third is that, since marking laws are constitutional laws, they should override any inconsistencies they have with the HCLQ1804 ruling and that marking laws are consistent with the Charter. The fourth is that the intended purposes of the Charter and marking laws mean that marking laws should prevail to the extent of any inconsistency between them and the Charter. In any event, the conclusion is that marking laws may exist within the laws of the South Pacific.

Marking laws are consistent with HCLQ1804

Marking a law as constitutional by a different piece of legislation meets the criteria of an explicit mark as articulated in HCLQ1804. Any marking law would be publicly available in the MATT-DUCK Law Archive, as would the law it makes constitutional. In practice, the archival entry for the other law would likely state that it was made constitutional by the marking law, even if this statement was not within the text of the other law itself. Thus, in accordance with HCLQ1804, there would be explicit and easily-accessible markings designating these laws as constitutional. This means marking laws are consistent with HCLQ1804.

Marking laws should prevail over HCLQ1804 as the least disruptive interpretation

If the Court finds that HCLQ1804 and marking laws conflict with each other, then it should also find that marking laws should prevail. As case law is general law,¹⁰ the Court has no enumerated power to strike down other laws that are inconsistent with case law.¹¹ Rather, the Court may “reconcile contradictions within [laws …] maintaining the least amount of disruption to the intended purposes of the contradictory parts.”¹²

As it has been shown in Part 2 of this brief, the comments in HCLQ1804 on marking constitutional laws have the intention of finding that constitutional laws must be explicitly designated as such. This intention would be achieved by marking laws. Since marking laws would have the purpose of designating other laws as constitutional, anything other than finding the laws which are designated by them to be constitutional would be highly disruptive to the purpose of marking laws. Because of this, the least disruptive interpretation would be for marking laws to be upheld as consistent with the intention of HCLQ1804.

Marking laws should prevail over HCLQ1804 as they are constitutional laws

Should the Court believe that marking laws are inconsistent with the case law developed in HCLQ1804 and that upholding marking laws is not the least disruptive interpretation, then marking laws should still prevail as the Court should declare the case law from HCLQ1804 void to the extent of the contradiction. Case law is considered part of general law.[10] If marking laws are constitutional laws (as has been assumed), then they prevail to the extent that an irreconcilable contradiction exists.¹³ Thus, if case law presents a stumbling block to marking laws, it is marking laws which should prevail.

Marking laws are consistent with the Charter

Marking laws are in harmony with the Charter. The Charter only requires that a constitutional law be “marked as such.”¹ The marking need not be done on the piece of legislation that is being made constitutional. As long as the laws are designated as constitutional, even if it is not in their own text, then they have been marked as constitutional. This means that marking laws are consistent with the Charter.

Marking laws should prevail over the Charter as the least disruptive interpretation

Should the Court believe that marking laws conflict with Article I, Section 1 of the Charter then, for the extent of the conflict, marking laws should prevail. Since a marking law is assumed to be constitutional, it cannot be struck down by the Court. This is because the power to strike down constitutional laws is not enumerated under the Charter.¹¹ The Court only has the option to “reconcile contradictions within the Charter [and] constitutional laws […] maintaining the least amount of disruption to the intended purposes of the contradictory parts.”¹²

As has been demonstrated in Part 1 of this brief, the marking provisions in Article I, Section 1 of the Charter were written with the intention of enabling the Assembly and the High Court to treat constitutional laws according to their special requirements. Marking laws which designate other laws as constitutional would fulfil this purpose. Since the intention of marking laws themselves are to designate other laws as constitutional, anything other than finding the laws which are designated by them to be constitutional would be highly disruptive to the purpose of marking laws. As such, the interpretation posing the least disruption would be for marking laws to be upheld as consistent with the intention of Article I, Section 1 of the Charter. Thus, marking laws may exist within the laws of the South Pacific.

4. Designating sections of laws as constitutional

While both the Charter¹⁴ and the decision in HCLQ1804¹⁵ imply that whole laws are designated as constitutional, no explicit requirements have been articulated. As such, designating individual sections as constitutional is not inconsistent with any law of the South Pacific. Should the Court disagree with this reasoning, it should still uphold stand-alone constitutional sections as doing so would be the least disruptive interpretation of the law. The reasoning which supports this is identical to that in Part 3 of this brief. Hence, stand-alone constitutional sections may exist within the laws of the South Pacific as they either do not conflict with the Charter and HCLQ1804 or upholding them is the least disruptive interpretation.

Conclusion

As discussed above, the purpose of the marking provision in Article I, Section 1 of the Charter is to enable the Assembly and the High Court to treat constitutional laws in accordance with their special requirements. The remarks in the HCLQ1804 ruling about the designation of constitutional laws also have a similar purpose. It follows therefore that any constitutional designation accessible to the Assembly and the High Court is consistent with the intention of the Charter and HCLQ1804. This is the case both for marking laws and stand-alone constitutional sections. Thus, if the Court believes there are conflicts, those laws should be found to be able to exist within the laws of the South Pacific. Of course, if the Court believes that there are no conflicts then it should also find that those laws may exist within the laws of the South Pacific.

Footnotes

The Charter: Article I, Section 1
The Charter: Article XIII, Section 1 – although this relates to amendments, HCLQ1804 implies this relates to the passage of the laws themselves, which seems to be common practice
For example, the Charter: Article III, Section 4
The Charter: Article III, Section 6 & Article VIII, Section 4 (implicitly also Article V, Section 2)
The Charter: Article I, Section 2
http://tspforums.xyz/post-125865.html#pid125865
http://tspforums.xyz/post-126284.html#pid126284
http://tspforums.xyz/post-126280.html#pid126280
http://tspforums.xyz/post-172487.html#pid172487
Judicial Act: Article IV, Section 3
The Charter: Article III, Section 6 and Article VIII, Section 4
The Charter: Article VIII, Section 5
The Charter: Article VIII, Section 4
Specifically, Articles I and XIII of the Charter
Specifically, Part I of the HCLQ1804 ruling

Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)

Awe · 01-21-2019, 06:02 AM

Pardon my intrusion upon the Court Your Honour, but has there been any further deliberation on this Legal Question?

[Image: 9ehfkQV.png]

the island league

Former Offices

RP Information

**Belschaft** · 01-21-2019, 09:25 AM

HIGH COURT OF THE SOUTH PACIFIC
-
HCLQ1805
-
DESIGNATION OF CONSTITUTIONAL LAWS

Could part of a law be designated as constitutional while the rest was general law?
Could one law designate another law (or sections thereof) as constitutional?

21 JANUARY 2019

Justice BELSCHAFT delivered the Opinion, signed also by Justice SANDAOGUO.

Summary of Opinion

The opinion of the Court is delivered below in three parts. The first regards the principle of statutory interpretation. The second regards the first question asked by the petitioner. The third regards the second question asked by the petitioner.

Article I of the Charter is written in simple language. A literal, common sense interpretation of it is readily discernible, and was identified by the petitioner prior to engaging in logical and semantic arguments to reach an alternative interpretation. In doing so the petitioner wasted the time of the Court.

Article I requires that laws must be entirely constitutional or otherwise, and that they must be directly marked as such within their own text.

I

When acting to clarify and interpret provisions of the law the High Court always operates from a starting point of identifying the literal, common sense meaning of what is written. If such a reading produces an absurdity, or there are multiple possible meanings which meet this test, the High Court may go on to consider other issues. However, should there be a single literal, common sense meaning then the High Court will establish such as the law.

In their submission to the High Court the petitioner presented a thorough and scholarly argument, well researched and with multiple references to both the law and expert opinion. However, at each stage of this argument they moved away from a literal, common sense interpretation of what is written in the Charter. Having first identified the correct legal interpretation of the law, they then proceeded to engage in convoluted logical and semantic reasoning in an attempt to demonstrate that the law could be interpreted differently. In doing so they have wasted the High Court’s time and severely irritated this Associate Justice.

II

Article 1.2 of the Charter makes reference to Constitutional Laws and “other laws, regulations, and policies”. Article 1.3 of Charter additionally identifies itself as “a constitutional law holding supremacy over all others”, thus producing three tiers of law; The Charter, Constitutional Laws, and “other laws, regulations, and policies”. The petitioner identified for themselves that “both the Charter and the decision in HCLQ180415 imply that whole laws are designated as constitutional” in keeping with a literal, common sense interpretation.

As such the High Court concludes that part of a law cannot be designated as constitutional while the rest is general law; the entirety of a law must be either constitutional or otherwise.

III

Article 1.1 of the Charter is written in clear and simple language; “Laws that form the foundation of our community, are considered fundamental to governance, or otherwise are considered of great importance by the Assembly, are to be known as “constitutional laws” and marked as such.” The High Court does not consider there to be an ambiguity in this wording, with a literal, common sense meaning being readily discernible. Cross referencing laws in the manner described by the petitioner would theoretically meet the marking requirements established by Article I, Clause I, but requires the High Court to intentionally discard the literal, common sense meaning.

As such the High Court concludes that one law cannot designate another law (or sections thereof) as constitutional; constitutional laws must be directly marked as such within their own text.

It is so ordered.

Nat · 01-21-2019, 07:14 PM

I thank the Court for its ruling on this matter

Former Associate Justice of the High Court of the South Pacific (4 December 2019 to 5 February 2021)