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Nat · 07-08-2020, 10:12 PM

PUBLIC NOTICE OF DELAY IN RULING PUBLICATION
Justice Nat - High Court of the South Pacific

The new Standards for Case Management require that official notice be posted if it will take longer than fourteen days to publish a ruling. The deadline for this case falls on Saturday 11 July 2020. Internal discussions and consideration of amicus curiae briefs have lead to an extensive re-write of the draft opinion, causing a delay. Additionally, family commitments mean that Justice Nat will be unavailable over this coming weekend to finalise the draft opinion. This notice provides that the publication of the ruling may be delayed by up to seven days, such that the new deadline for publication will be Saturday 18 July 2020. In accordance with the Standards for Case Management, Justice Griffindor has signed off on this extension.

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

Nat · 07-16-2020, 10:48 PM

HIGH COURT OF THE SOUTH PACIFIC
2002.O
A QUESTION ON THE FILLING OF VACANCIES ON THE LOCAL COUNCIL
[SUBMISSION 23 JUNE 2020 | JUSTICIABILITY 25 JUNE 2020 | OPINION 17 JULY 2020]

SUMMARY OF THE OPINION

The requirement for the Local Council to have at least three members refers to its usual composition and not its quorum. As such, the Local Council can continue to exercise its authority when there are less than three Local Councillors. However, this does not include filling a vacancy on the Local Council as the Delegate alone has this authority. This is because the provision which empowers the Local Council to fill vacancies is void due to contradicting the constitutional provision for the Delegate to fill vacancies (that is, Sections 1 and 2 of Article 5 of the Local Council Elections Act are struck from the law).

The Delegate can fill an empty seat on the Local Council as they see fit (this includes forgoing to doing so) provided it is not a vacancy which an election is required for. This is because the word may in Section 2 of Article 5 of the Elections Act implies that the filling of a Local Council vacancy is optional. This finding on the meaning of the word may is made in the particular context of the section of the law discussed and, thus, should not be indiscriminately extrapolated to all other occurrences of the term in regional law.

JUSTICE NAT DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE GRIFFINDOR.

This case is a brilliant illustration of two things which this Court often comes across. The first is that seemingly trivial questions in the law can have more profound significance when fully explored. The second is that amicus curiae briefs aid the Court in thinking through the issues at hand. Both should be apparent in this ruling.

Before the Court is a question from Omega: ‘Does Article 5, Section 1 of the Local Council Elections Act mandate that a vacancy must be filled by the LC [Local Council]?’¹ At first glance, it seems very simple that ‘the Local Council may appoint a replacement.’² However, the interconnected tapestry of TSP law means the answer is not always as straightforward as it appears.

PART I
Does a vacancy render the Local Council unable to function?

First off, the Charter must be considered. It provides that ‘The Local Council will be […] composed of three or more residents of the South Pacific.’³ As it is common practice for only three people to be elected in Local Council elections this begs the question: since there must be at least three Local Councillors what happens when there is a vacancy?

The amicus curiae Bleakfoot suggested ‘Should the membership of the Local Council at any time fall below three members, it follows that it is no longer quorate, and therefore cannot exercise the powers granted to it by the Charter.’⁴ When questioned, Bleakfoot pointed out that the Court has previously ruled it ought to pursue the ‘the literal, common-sense meaning of what is written.’⁵ Implicit in the point made by Bleakfoot is that this quorum concept is the sole sensible interpretation of what is written. However, this is not true as the composition of a body and its quorum are not necessarily one-and-the-same.⁶

The Court must decide between two acceptable alternatives, whether the aforementioned Charter passage on the Local Council stipulates a quorum or merely states its composition. The very fact the passage uses the words composed of gives some clue. But the deciding factor is that if the passage referred to a quorum then the Local Council would pop in and out of abeyance with every vacancy. Conversely, if the passage concerns composition then the Local Council continues on. This seems simpler and does not deprive the gameside community of its self-representation (the purpose of Article V of the Charter).⁷ Thus, the Court disagrees with Bleakfoot; the Local Council can still function whilst a vacancy leaves it with less than three members.

PART II
Does the Delegate or the Local Council fill a Local Council vacancy?

Since it has been established that the Local Council can continue to discharge its powers when a vacancy occurs, the question now becomes: is the Local Council entitled to fill its own empty seat? When the Local Council Elections Act is examined the answer seems obvious:

A special election will be held for vacancies arising within the Local Council, if more than half of the term remains. If less than half of the term remains, or the position is vacant due to nobody running in its election, the Local Council may appoint a replacement until the next scheduled election or may call a special election.²

If the Local Council can not agree on a replacement within one week the Delegate may appoint a replacement from a list of candidates submitted by each Local Councilor or call a special election.⁸

So, the Local Council Elections Act would have a reader believe that, where a special election is not required, the Local Council can pick a replacement or call an election; under this law, the Delegate may select a candidate from a restricted pool (or call an election) only if the Local Council has not done so within a week. While this may seem reasonable it contradicts the carte blanche given to the Delegate by the Assembly-authored Elections Act:⁹

A special election will be held for vacancies arising within the Local Council, if more than half of the term remains. If less than half of the term remains, or the position is vacant due to nobody running in its election, the Delegate may appoint a replacement until the next regularly scheduled election.¹⁰

So, there is an issue in that one law frees the Delegate to fill a Local Council vacancy at any time by appointing anyone they please whereas the other law restricts the Delegate to wait for the Local Council to make a decision and (even then) only make the appointment from a restricted list of candidates. Any harmonisation of this disparity is a zero-sum game, as either the Delegate is fully empowered or is second-fiddle to the Local Council.¹¹ The question, then, is which law should prevail?

The Assembly-authored Elections Act is a constitutional law whereas the Local Council Elections Act is not. The Charter provides that ‘constitutional laws hold precedence and supremacy over all other laws, regulations, and policies of all branches of government.’¹² Indeed, while ‘the Local Council is entitled to self-administration within its jurisdiction on local issues,’ it ‘may not pass laws or regulations that contradict this Charter or constitutional laws.’¹³ As such (and as Bleakfoot argued), the Local Council had no authority to make a conflicting provision about the filling of vacancies.¹⁴ Since there was no legal right for the Local Council to pass those passages in the Local Council Elections Act, they cannot stand. Thus, the Charter is unambiguous that the constitutional Elections Act (and hence Delegate appointments) should prevail; accordingly, the offending portions of the Local Council Elections Act (Article V, Sections 1 and 2) are declared void.¹⁵

PART III
Does the Delegate have the option to refuse to appoint a replacement Local Councillor?

The conclusions the Court has reached so far have technically answered the question posed to it. That is, the Local Council does not have to fill a vacancy because it does not have the power to do so. However, to leave the analysis at this juncture is to miss the point of the question which is to know whether a vacancy on the Local Council has to be filled. So then, can the Delegate leave a Local Council seat vacant?

The passage under question states that ‘the Delegate may appoint a replacement.’² Bleakfoot argued the word may carries ‘an inherent component of discretion - if someone may do something, they are equally entitled to not do something.’¹⁶ Indeed, this accords with a past ruling of the Court upholding ‘the common legal theory that the ability to do something necessarily includes the ability to not do it.’¹⁷ Thus, the usual meaning of the term may implies that refusing to perform the stated action is acceptable. Nonetheless, the surrounding context should be consulted to ensure this usual rendering of the term may is reasonable in this particular case.

The immediate context of the passage supports rendering may as a choice about whether to pursue the stated action. Bleakfoot argued the Assembly could have used a word other than may to convey a requirement for the Delegate to fill the vacancy.¹⁶ Indeed, the Assembly also used the word will in the section of the law under question, that ‘a special election will be held’ when ‘more than half of the term remains.’¹⁰ The appearance of the term will in the same section of the law as may implies that the Assembly was willing and able to use an unambiguous phrase to convey that an action is compulsory. This finding lends credence to the idea that the word may in this passage of the law is providing a choice about whether or not to act. But what about the Charter passage which provides that ‘The Local Council will be […] composed of three or more residents of the South Pacific.’³

Despite how it may first appear, the Charter requirement for there to be more than three members of the Local Council does not mean that an empty seat must be filled. The original version of the current Charter and the laws associated with it did not make a provision for how a vacancy on the Local Council should be filled.¹⁸ Thus, the Charter text about the number of seats on the Local Council could not have contemplated compelling the appointment of a replacement because, in fact, there were no provisions for filling such vacancies at all.¹⁹ Therefore, the Charter passage does not provide any compelling reason to disregard the clear textual mandate that the Delegate can forgo appointing a replacement.²⁰

For the avoidance of any doubt, the Court shall spell out what should occur when a Local Council seat becomes vacant. If more than half the term remains then a special election must be held; this is not optional. If no one nominates or less than half the term remains, the Delegate can appoint a replacement if desired. Since the Delegate has discretion, they can choose to appoint their own preference, appoint someone recommended by the Local Council, appoint someone endorsed by a special election, or use any other method of selection they opt for. They can also delay appointing a replacement or opt to forgo it entirely. Thus, unless more than half the term remains and a special election returns a victor, the Delegate may dispose of a vacant Local Council seat as they see fit.

It is so ordered.

FOOTNOTES

[1] Omega’s case submission.

[2] Local Council Elections Act (Article 5, Section 1), emphasis added.

[3] The Charter (Article V, Section 1).

[4] Bleakfoot’s first brief (under Filling vacancies on the Local Council).

[5] HCLQ 1805 Designation of Constitutional Laws (Part I).

[6] To prove this is not some fantasy constructed by the Court for one case, consider the Australian Constitution. It states that ‘The Senate shall be composed of senators for each State’ (Section 7) and also that ‘The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.’ (Section 11) The Australian Senate can function without everyone being there. This proves the point of this Court that there is nothing unusual about claiming composition and quorum are not one-and-the-same as such an interpretation can readily be found in real-life sources.

[7] The Charter gives the following subtitle to Article V (which concerns the Local Council): ‘Establishing home rule for the in-game region residents.’

[8] Local Council Elections Act (Article 5, Section 2).

[9] One may argue that Article 6, Section 2 of the Elections Act falls foul of the self-governance provisions in Article V, Section 2 of the Charter: ‘the Assembly may not enact any law […] that is solely related to an issue local to the in-game community.’ However, this is not the case. As found in HCLQ 1704 Assembly Amendments via Gameside Matters (and also posited by Bleakfoot), the term enact in this section implies the act of passing a law. Therefore, the relevant portion of the Elections Act would not fall foul of the self-governance requirements if it was passed prior to the aforementioned part of the Charter. Indeed, this is the case. The aforementioned portion of the Elections Act passed in a gameside poll on 25 January 2017 one month before the current gameside self-determination provision in the Charter passed in a gameside poll on 25 February 2017. Therefore, the Assembly-authored Elections Act does not fall foul of the legal requirement for gameside self-governance.

[10] Elections Act (Article 6, Section 2), emphasis added.

[11] While the Court could find that the Local Council and the Delegate both have unfettered power to make an appointment this would mean that both could seek to make an appointment to the same vacancy. However, this is a foreign concept to either law. The Local Council Elections Act gives the Local Council a one week window in which it holds the exclusive right to act and the Assembly-authored Elections Act is such that the Delegate has no competition for their power to fill the vacancy. Thus, the Court cannot truthfully attest that allowing both to appoint a replacement at any time will ‘maintain the least amount of disruption to the intended purposes of the contradictory parts.’ (Article VIII, Section 5 of the Charter) As such, the Court must instead look to the zero-sum game of letting one law prevail.

[12] The Charter (Article I, Section 2)

[13] The Charter (Article V, Section 2)

[14] At the time the Local Council made provision for filling vacancies the MATT-DUCK Law Archive did not include the text of Article 6, Section 2 of the Elections Act due to a filing error. Nonetheless, the Court found in HCLQ 1904 Validity of Unindexed Laws ‘the fact that the amendments in question were not correctly filed does not have any bearing on whether they are law,’ (Part I, quoting Nat’s brief) and, specifically, that Article 6, Section 2 of the Elections Act should be considered law (Part III). While there most probably was no ill intent or even negligence on the part of the Local Council, the provisions in the Local Council Elections Act did contradict existing constitutional law. Hence, the Local Council had no authority to pass them.

[15] The Charter (Article VIII, Section 4) provides that the Court possesses the authority to ‘in whole or part’ declare any non-constitutional law ‘void upon a determination that it violates the terms of this Charter or any other constitutional law.’ Accordingly, the Court determines that Sections 1 and 2 of Article 5 of the Local Council Elections Act violate the terms of Section 2 of Article 6 of the Elections Act, which is a constitutional law. Consequently, Sections 1 and 2 of Article 5 of the Local Council Elections Act are declared void and the Local Council is hereby instructed to remove them from the official copy of the Local Council Elections Act. This finding leaves the rest of the Local Council Elections Act intact, including Section 3 of Article 5 (that is, only the two offending sections are to be struck). Hence, Section 2 of Article 6 of the Elections Act governs the filling of Local Council vacancies.

[16] Bleakfoot’s second brief (under Discretion and the use of ‘may’).

[17] HCLQ 1804 Justiciability of Legislator Application Appeals (Part III).

[18] The initial version of the current Charter was passed during the Great Council of 2016, it was an omnibus bill proposed by Sandaoguo.

[19] A keen historian of regional law may argue the text of Article V, Section 1 of the Charter has since changed and, therefore, could mean something different from that which passed the Great Council of 2016. However, both the old and new texts are substantially similar: the former was ‘The Local Council will be a body of three residents […]’ and the current is ‘The Local Council will be […] composed of three or more residents […]’ – the only apparent difference being whether there may only be three Local Councillors or whether there may only be three or more. Given there is no discussion of this particular change in the legislative record, the Court shall presume that the only intention for the change was that the Local Council could now have three or more members (that is, it was not intended that the change should have any implications for the filling of vacancies). Thus, the point stands that the requirement to have a minimum of three Local Councillors has existed prior to the ability to fill a vacancy on the Local Council.

[20] It is important to note that if the Local Council were unable to function during a vacancy, the Court may have looked much more unfavourably on any refusal to fill a Local Council vacancy since it would have removed self-governance from the gameside community. However, this is not the case as Part I of this ruling established that the requirement to have at least three Local Councillors refers to the usual composition of the Local Council rather than its quorum.

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