Your honors,

for reasons that the Court is aware of, I did not submit an amicus brief in the timespan granted for their submission. I ask that this short submission, despite its tardiness, is received. I have no intention of addressing the matter set out by Petitioner, but rather a derivative matter; this hopefully will not impact the substance of the impending ruling (which must certainly be in the drafting stage already), but at most some of its periphery components (and, depending on the outcome of the primary ask, this brief may be moot in its entirety).

In summary: It is my opinion that the Court is obligated to determine, as part of its ruling on this case, whether there is any reason to believe that the Chair may have acted with malintent. It is also my opinion that the Chair did not act with malintent.

Petitioner states that Chair Nakari stands "in wilful defiance" of the law in their original submission. This accusation on its own does not carry any significance in a legal fashion. However, should the Court find the Chair's actions unlawful, and does not address Petitioner's allegation of malintent, it can be inferred that the Court does not disagree with the assessment of malintent. That does carry legal significance for multiple reasons. First, it renders the Chair subject to recall on the basis of the "abuse of authority" criterion listed in Charter XI.1.a. Second, it renders the Chair subject to criminal accusation as per Criminal Code 1.7, and the petitioner of that charge will be protected from being charged with vexatiousness even if the case is brought simply for political purposes (such as during an ongoing reelection effort).

If the Chair did not in fact act with malintent, the above would constitute an unreasonable burden on her; a legal remedy through the Court is still available to her, but the burden would exist for a non negligible time frame regardless.

While the Court is principally a reactive rather than a proactive institution, the Judicial Act nonetheless gives the Court much freedom to act proactively within the context of a case (see Judicial Act 2.1.d and 5.1, for example). This is very much by design, as is well known. The Court may answer questions, or make statements, or do a variety of other things beyond the simple asks of a given submitted case. Examples can be found all over the Online Consultation Ruling System.

One such example also serves as precedent to inform this brief. In HCRR1804, Justice Sandaoguo answers not just the Petitioner's question but also delves into whether defamatory statements were made, even though defamation was not a crime. Justice Sandaoguo used that not only to reinforce the principal conclusion of that review, but by doing so, also thereby cleared Technolandia of a possible undue burden not too different from the kinds of burden that Nakari would meet as described above.

Given the undue burden with only late possibilities for remedy, the precedent from HCRR1804, as well as Judicial Act 2.1.b mandate that "Justices of the High Court shall [...] consider the impact of Court rulings carefully to ensure that, whenever possible, no individual is empowered to exploit rulings of the Court", it is clear to me that the Court must make a determination on Nakari's malintent for the purposes of this case.

That all being said, I do not believe that there is malintent on the part of the Chair. First, as the Chair noted in her testimony, she herself voted for the amendment and does not stand to gain from its failure to pass. Second, the Chair's testimony clearly portrays her good faith interpretation of the law; that's not to say that her interpretation is necessarily correct (it may well not be), but it is an interpretation reached in ostensible good faith nonetheless. Third, the principal argument for the Chair's interpretation, as laid out in her testimony, is corroborated by Discord conversations in #legislators-lounge (starting here); these conversations are contemporary with the actual decision to use a 60% threshold, which predates this court case and the issue even becoming ripe in the first place.

Thank you for your time.

Reply

VOTING THRESHOLDS Opinion

Document Code 1918.O

Submission 04 Nov 2019

Admission 07 Nov 2019

Opinion 08 Feb 2019

SUMMARY OF THE OPINION 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: General laws, amendments, resolutions, and treaties require a simple majority of those voting to pass. Appointments, unless otherwise specified, require a simple majority of those voting to pass. Constitutional laws, constitutional amendments, and resolutions dealing with matters of constitutional law require a three-fifths supermajority of those voting to pass.2 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.

CITATIONS 1. Charter of the Coalition of the South Pacific (Article 1, Section 2). 2. Legislative Procedure Act (Article 1, Section 4). 3. Elections Act (Article 8, Section 1). 4. Resolution on Adopting Defending Military Principles (Article 3). 5. Legislator Committee Act (Article 4, Section 1). 6. Legislative Procedure Act (Article 3, Section 1). 7. Proscription Act (Article 5, Section 1). 8. Legislative Procedure Act (Article 2, Section 1). 9. Legislative Procedure Act (Article 2).

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System

Reply