Article 4, clause (3) of the Judicial Act  states "The opinion delivered for a legal question shall have the full force of law until appealed or the law upon which the opinion was based is significantly changed."

1. Following the recent repeal of Section 2 of Article 6 of the Elections Act does the Decision in HCLQ2002 A QUESTION ON THE FILLING OF VACANCIES ON THE LOCAL COUNCIL to strike Section 5, articles 1 and 2 from the Local Council Elections Act remain in force?

2. If the decision to strike these two clauses is no longer in force, must the Local Council amend the act to restore clause's 1 and 2, or are they again in force without an amendment required?

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(This post was last modified: 08-12-2020, 09:34 AM by Kris Kringle. Edit Reason: [Chief Justice Edit] Updated the title of the thread with the case code. )

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HIGH COURT OF THE SOUTH PACIFIC 2004.NR A QUESTION ON THE STATUS OF HCLQ2002 [SUBMISSION 12 AUGUST 2020]

Notice is given that this question has been received by the High Court and has been assigned all the necessary identifying information as follows: DOCKET FILE NUMBER 2004 REFERENCE NAME Status of HCLQ2002 QUESTION Following the recent repeal of Section 2 of Article 6 of the Elections Act does the Decision in HCLQ2002 A QUESTION ON THE FILLING OF VACANCIES ON THE LOCAL COUNCIL to strike Section 5, articles 1 and 2 from the Local Council Elections Act remain in force? If the decision to strike these two clauses is no longer in force, must the Local Council amend the act to restore clause's 1 and 2, or are they again in force without an amendment required? The petitioner and other interested parties are invited to explain the necessity of a decision on this matter over the next 24 hours. Briefs Amicus Curiae on the preferred eventual outcome of this case are not required at this time.

Former Delegate of the South Pacific
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Given the lack of certification of the ongoing Local Council election, the matter of filling the Local Council vacancies may become a matter of pressing concern, and this will provide the Delegate and Local Council legal clarity on the issue of filling vacancies in the Local Council when less than half the term remains.  Additionally, I have not found any case law exploring the scope of Article 4, clause (3) of the Judicial Act outlining what changes to a law qualify as "significantly changed" as it relates to High Court rulings delivered in response to Legal Questions.   A ruling on this question will provide guidance on how our legislative bodies can follow up on issues arising from rulings on Legal Questions.

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HIGH COURT OF THE SOUTH PACIFIC 2004.DJ A QUESTION ON THE STATUS OF HCLQ2002 [SUBMISSION 12 AUGUST 2020 | JUSTICIABILITY 13 AUGUST 2020]

Whereas this Court has been asked to clarify and interpret provisions of law, a power vested in it by Article VIII of the Charter of the South Pacific, and an answer to such a question has been found warranted and necessary. DETERMINATION OF JUSTICIABILITY This case is found justiciable and shall be duly considered under case number HCLQ2004 and all other designations assigned by document 2004.NR. SUBMISSION OF BRIEFS AMICUS CURIAE Interested parties may submit briefs amicus curiae to argue their views on the whole or a part of this case no later than 7 calendar days from now, and shall thereafter be liable to answer any questions that the Court may pose in relation to their brief. SUBMISSION OF REQUESTS FOR RECUSAL Interested parties may request the recusal of the Chief Justice or any Associate Justice no later than 3 calendar days from now. Any such request should provide clear reasons to support the requested recusal and explain the possible negative impact of a failure to recuse. RETENTION OF RIGHTS The Court retains the right to consult with, and request further testimony and evidence from, government institutions and other third parties as necessary to adequately exercise its sole right to issue an opinion on this case. It is so ordered.

Former Delegate of the South Pacific
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Your honors,

Brief amicus curiae on the question on the status of HCLQ2002

It is my view that the Court's decision in HCLQ2002 remains in force, and that the provisions of the Local Council Elections Act (LCLA) that were struck out by the Court remain struck out. In other words, the Local Council must actively 're-legislate' for these provisions in order for them to be reinstated.

In HCLQ2002 the Court used its power under Article VIII, Section 4 of the Charter to strike out the 'offending' clauses of the LCLA. In the language of the Charter, the Court declared these clauses void. It is not necessary to relitigate that case here; suffice it to say that the Local Council lacked the constitutional authority to make that law, and therefore it does not stand.

Previous rulings of this Court on the interpretation of the law have stressed that the ordinary 'common sense' meaning of words should prevail unless there is some compelling reason not to do so. The ordinary common sense meaning of the word 'void,' when applied to a legal provision, is that the provision ceases to exist, and should be treated as though it never existed. I submit that there is no compelling reason to depart from this meaning, so far as it pertains to laws and other actions of government being declared void by this Court.

Applying this reasoning to the question at hand leads to the conclusion that the relevant clauses of the LCLA cannot be automatically reinstated even if the underlying law has changed in the meantime; the clauses are treated as though they never existed, and are therefore unaffected by any subsequent amendment to the Elections Act.

Now that the Elections Act has been amended, it is of course open to the Local Council to make provision for the filling of its own vacancies, in accordance with the principles of self-administration outlined in the Charter. It is entirely possible for these provisions to be identical to those struck out by the Court in HCLQ2002. But this must be a positive step taken by the Local Council in accordance with its proper constitutional authority; it is not sufficient for the Local Council to rely on earlier, unconstitutional actions to address the issue.

To address the point made by Volaworand in their earlier brief, I submit that the part of Article 4, Section 3 of the Judicial Act, which holds that legal opinions cease to have the full force of law when the underlying law is 'significantly changed,' is not engaged here. This is because, principally, the law that led the Court to its conclusion in HCLQ2002 is Article V, Section 2 of the Charter, which governs the relationship between the Local Council and constitutional laws made by the Assembly. This law has not been amended since that case was decided, and therefore the opinion in HCLQ2002 continues to have the full force of law. I submit, therefore, that the Court does not need at this point to further define 'significantly changed' for the purposes of Article 4, Section 3 of the Judicial Act.

I trust this brief will be of assistance to the Court and, in accordance with the rules of the High Court, I remain at the Court's service for any follow-up questions or clarifications that are required.

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Your honours,

Briefs amicus curiae on HCLQ2004

I concur with the opinion of Bleakfoot for slightly different reasons:

The definition of "significant" is not neccessarily large or great - but rather of having notable meaning of consequence. Using this definition - which is the provided by marriam webster ("clearly conveying a special meaning") and oxford's learners ("large or important enough to have an effect or to be noticed") dictionaries - we can conclude easily and succinctly that any change made to a law must directly affect the opinion given by the court.

Whereas the law that led the Court to its conclusion in HCLQ2002 is Article V, Section 2 of the Charter, which has not been amended, and whereas the amendment does not significantly affect the context of this law, the change is not significant and thus does not affect the opinion given in HCLQ2002.

PS:

And even if this law was significantly changed it wouldn't affect Section 5, articles 1 and 2 - first of all because, as Bleakfoot said, the law is considered striken from the record as if it never had existed, and a law that doesn't and hasn't existed now nor ever cannot be reinstated due to it's... lack of existance, but secondly, the power to declare a law void is defined in the constitution in Section VIII, Article 4:
 

(4) The High Court has the power to declare any general law, regulation, directive, determination or any other official act of government, in whole or in part, void upon a determination that it violates the terms of this Charter or any other constitutional law.

Legal questions are the only part of the law that are affected by the significant change rule. Legal questions are also defined in the constitution later on in that section:
 

(6) The High Court may clarify and interpret provisions of law when presented with a Legal Question about them.

Notably, "Legal Questions" specifically give the court the power to interpret and clarify law - and are subject to the significant change rule. The Judicial Act seems to affirm this in its definition of legal questions, Section 4 Article 1 (and it also adds that the opinion of a Legal Question applies to existing law, so an opinion cannot be based entirely on a law that the High Court has just declared void):
 

(1) A legal question is a case containing one or more questions seeking to receive clarification on the meaning of existing law or the applicability of law to concrete or hypothetical situations.

If the court, such as in HCLQ2002, were to declare a law void, it would not be part of an opinion of a legal question - it would technically be the High Court exercising a seperate power not subject to the significant change rule.

If this reading is correct, then I would suggest that from now on if, as part of a case, a law is declared void, then it should be clarified that the voiding of the law is seperate from the legal question and is only mentioned to provide context to the opinion and was only undertaken as a side effect of examining this law - not as the opinion of the legal question.

(This post was last modified: 08-16-2020, 08:17 AM by Jebediah.)

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HIGH COURT OF THE SOUTH PACIFIC [2004] STATUS OF HCLQ2002 SUBMISSION 12 AUG 2020 | JUSTICIABILITY 13 AUG 2020 | OPINION 31 AUGUST 2020 QUESTION Following the recent repeal of Section 2 of Article 6 of the Elections Act does the Decision in HCLQ2002 A QUESTION ON THE FILLING OF VACANCIES ON THE LOCAL COUNCIL to strike Section 5, articles 1 and 2 from the Local Council Elections Act remain in force? If the decision to strike these two clauses is no longer in force, must the Local Council amend the act to restore clause's 1 and 2, or are they again in force without an amendment required? SUMMARY OF THE OPINION It is the opinion of the Court that [2002] Local Council Vacancy no longer has the full force of law and that Article 5, Section 1 and 2 of the Local Council Elections Act should come into force automatically without the need for further voting. This is due to the fact that the cause for the decision in [2002] no longer exists, thus removing the only obstacle to the constitutionality of the voided provisions. In addition, the effect of voiding a law is that the law becomes inoperative but otherwise remains in the books; therefore, once a previously voided law is no longer so, it should regain full force without the need for further action. CHIEF JUSTICE KRINGLE DELIVERED THE OPINION, SIGNED ALSO BY JUSTICE GRIFFINDOR. On the matter of the current status of [2002] Local Council Vacancy (hereafter [2002]), it is the opinion of the Court that the effects of the opinion are no longer operative and that no action on the part of the Local Council, other than actual enforcement, is required to restore Article 5, Sections 1 and 2 of the Local Council Elections Act. This decision is the result of a review of the context and arguments laid out in 2002 and an examination of the mandate of the Court under the Charter. [2002] reviewed the legality of Article 5, Sections 1 and 2 of the Local Council Elections Act (hereafter Article 5.1 and 5.2) vis-à-vis Article 6, Section 2 of the Elections Act (hereafter Article 6.2). Justice Nat decided, based on a comprehensive review of the law and the arguments presented by third parties, that Article 6.2 had a higher authority than Article 5.1 and 5.2. The ruling was abundantly clear when it said that "the Charter is unambiguous that the constitutional Elections Act (...) should prevail; accordingly, the offending portions of the Local Council Elections Act (...) are declared void"[1]. The caveat to this, however, is that Article 4, Section 3 of the Judicial Act clearly states that an opinion only has the full force of law until "the law upon which the opinion was based is significantly changed"[2]. This prompts the question, has the law significantly changed? The decision in [2002] was based on a very specific set of circumstances: Article 5, Sections 1 and 2 was unconstitutional because it conflicted with a provision of a constitutional law; the principle of supremacy established in the Charter demanded that the lower law be voided. That set of circumstances has changed: Article 6.2 has since been repealed by the Assembly, which means that there is no longer any constitutional law that conflicts with Article 5, Sections 1 and 2. If the same case had been considered today, without a conflict with Article 6.2 and all other things being equal, the Court would find no reason to void Article 5, Sections 1 and 2. The Court believes that this change in circumstances -the repeal of the constitutional law that required the voidance of Article 5, Sections 1 and 2- constitutes a significant change under the Judicial Act; consequently, the Court finds that [2002] Local Council Vacancy should no longer have the full force of law. In so finding, however, the Court now has to consider the second question, which asks what is the practical effect of this determination. Must the previously voided provisions be again passed by the Local Council or do they automatically come into force again? Bleakfoot suggested in their brief amicus curiae that the correct interpretation should be the former, that the common sense meaning of the term 'void' requires the Court to determine that "the [voided] clauses are treated as though they never existed"[3]. This argument is not without merit, but the Court disagrees with the logical conclusion suggested by Bleakfoot -that the voided law would have to be passed again- due to two reasons: the actual meaning of the term 'void' suggests an alternative concept, and the mandate of the Court vis-à-vis that of the Assembly agrees with that alternative concept. A definition of the verbal form of 'void' is "to remove the legal force from something"[4]. Contrary to what the brief suggested, the meaning of the term would not be to strike a law from the books, rather to merely render it inoperative, unenforceable. This is a semantic exercise, however, though a useful one; the true test is a review of the mandate of the Court. The High Court is entrusted under Article XIII, Section 1 of the Charter of the South Pacific with "exclusive judicial authority"[5]. This includes the power to interpret laws, resolve contradictions between them, review the acts of government officials and conduct criminal proceedings. This is the authority to which the Court referred when it decided [2002]: the 'judicial authority' to resolve a contradiction between laws. The caveat to this is that the way in which the Court exercises its powers should be judicial in nature. To declare that a provision of law should be treated as though it never existed, and would therefore need to be passed again, would be an exercise in legislation, a power that is held by the Assembly as the "supreme legislative authority"[6] and by the Local Council as a body entitled to "self-administration within its jurisdiction"[7]. There are be limited exceptions to the above. In [1916] Validity of Unindexed Laws the Court directed the Chair of the Assembly to make specific changes to the text of the law, but this was because the nature of the case required that specific answer, not because the Court has, as a matter of course, the power to alter the actual text of laws, as opposed to their meaning or enforceability[8]. It must be considered that the Assembly or the Local Council, as may be the case, clearly wished a specific text to be in the books when they passed it, even if that text ends up being unconstitutional. Insofar as the Court may generally only provide judicial solutions to issues, a voided provision of law is not stricken from the books, it is merely rendered inoperative, unless and until the relevant legislative body decides to repeal it. Consequently, and given that the Court has already determined that [2002] Local Council Vacancy no longer has the full force of law, the Local Council is directed to restore the text of Article 5, Sections 1 and 2 to the Local Council Elections Act and should consider them to again have the full force of law from the moment this decision is published. It is so ordered. FOOTNOTES AND REFERENCES [1] [2002] Local Council Vacancy (2020). Comprehensive Rulings Repository. [2] Judicial Act; Article 4, Section 3 (2020). The MATT-DUCK Law Archive. [3] Bleakfoot (2002). [2002.BAC.01] RE: Determination of Justiciability. Retrieved from https://tspforums.xyz/thread-8558-post-2...#pid204988 [4] Cambridge University Press (2020). Void. Retrieved from https://dictionary.cambridge.org/diction...anish/void [5] Charter of the South Pacific; Article XIII, Section 1 (2020). The MATT-DUCK Law Archive. [6] Charter of the South Pacific; Article IV, Section 1 (2020). The MATT-DUCK Law Archive. [7] Charter of the South Pacific; Article V, Section 2 (2020). The MATT-DUCK Law Archive. [8] [1916] Validity of Unindexed Laws (2020). Comprehensive Rulings Repository.

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

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