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Appeal (overturn a previous Court decision) [2005] Appeal of [HCLQ2003] Legality of Closed Local Council Elections
#1


High Court of the South Pacific
Case Submission

 
Your Honours,

I, sandaoguo, respectfully submit the following case for consideration by the High Court. I hereby state that the information within this submission is true, to the best of my knowledge, and that there is no malicious intent or vexatious nature to it. I further promise to make myself available to any future questions or request from the Court in order to ensure that this case is fairly considered.

Nation: sandaoguo

Reference Name: Appeal of HCLQ 2003, "Legality of Closed Local Council Elections"

Description: Appeal of “Legality of Closed Local Council Elections”

Background

On August 1, 2020, the Election Commission commenced with the regularly-schedule elections for Local Council, pursuant to the “Local Council Elections Act.” The regional polls created for both rounds of the election used the “World Assembly” and “native” restrictions. As such, only those nations within The South Pacific who held World Assembly membership and had more influence in this region than any other could access the voting options in the poll.

Prior to the end of the final round of voting and the certification of the results, North Prarie filed a legal question with the High Court challenging the use of those restrictions in the election polls. The High Court ruled that the use of those restrictions was not authorized by a constitutional law. (“It is the opinion of the Court that the current Local Council elections unconstitutionally restrict voting to World Assembly natives. This is because the aforementioned voting restriction is not required or authorised by a constitutional law, meaning it falls foul of the Charter requirement that only a constitutional law may restrict the right to vote amongst those who are members of the Coalition”, HCLQ 2003.) The Assembly immediately tabled numerous bills seeking to address this constitutional deficit, but has yet to vote on any of these bills. The Local Council is unable to remedy this issue themselves, in a way that maintains the poll restrictions it prefers, due to being unable to pass laws of constitutional status of their own.

The High Court ordered the Election Commission to “ensure all members of the Coalition … can have their vote counted for both rounds of the current Local Council elections.” This order came despite the fact that the final round of voting had finished on August 7, a full four days before the order to alter how the round was conducted. As it stands, no result has been certified.

In subsequent discussions and clarifications of the High Court’s order, Chief Justice Kris Kringle and Justice Nat have made clear that the order requires the Election Commission to somehow allow votes to be cast in an election that has already ended, through whatever means available that the Election Commission chooses. Justice Nat offered a formal clarification of the ruling (https://tspforums.xyz/thread-8586-post-2...#pid205125). Chief Justice Kris Kringle went further in his exclamation during a Discord discussion about the status of the election: “All concerns about election security are, however legitimate, political and technical rather than legal. The fact of the matter is that the EC has to either do a new poll or allow members to cast a vote in some way. Not only is the EC legally allowed to complete the election, they’re legally compelled to do so.” (image)

It is this order that the Election Commission challenges in this appeal. Additionally, the Election Commission believes that the High Court has failed in its duty to ensure the least amount of disruption possible when issuing its ruling and order.

Legal Underpinnings of the Order

The Election Commission challenges the authority of the High Court to issue an order that requires the commission to “complete the election” by holding an additional round of voting for those who were denied access to the original polls. This challenge is based on the enumerated powers of the High Court outlined in Article VIII of the Charter.

The primary purpose of the High Court is to reconcile the Charter and any laws or orders that contradict it. This authority is spelled out in two different sections of Article VIII:

“(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.

(5) The High Court may reconcile contradictions within the Charter, constitutional laws, general laws, Cabinet directives, and Local Council laws and regulations, maintaining the least amount of disruption to the intended purposes of the contradictory parts.” (Article VIII, Section 4 &5, Charter of the Coalition of the South Pacific.)

In Section 4, the High Court is granted the power to declare laws and orders void if they conflict with the Charter or a constitutional law. In using its Section 4 authority, the Court has only two options: uphold the law or order in question, or declare it null and void.

In Section 5, the High Court is granted the power to reconcile contradictions in laws and orders, while maintaining as little disruption as possible. This is the scalpel to Section 4’s hammer. Where a law or order does not flagrantly and irreconcilably violate the Charter or a constitutional law, the High Court can interpret the law or order in a manner that allows it stand in congruence with the Charter and our constitutional laws.

The High Court did not root its decision in HCLQ 2003 in either of these sections explicitly. To determine what authority, if any, the High Court used to deliver its order to the Election Commission, we must analyze the decision in more detail.

So, what did the High Court decide? The case was about an order (in effect) by the Election Commission that the polls should be run with the “World Assembly native” requirement enabled. The decision struck down that order, with the High Court finding that such a requirement was not authorized by any law. This was an exercise of the High Court’s Section 4 authority to declare an order void if it contradicts the Charter.

The second part of the High Court’s decision was an order to the Election Commission to (in effect) hold an additional round of voting for those that were unable to vote but should have been allowed. There is no law, either of the Local Council or the Assembly, that would authorize a round of voting outside of election period. As a reminder, the Local Council election ended on August 7, pursuant to the schedule required by the “Local Council Elections Act.” So, is this an exercise of the High Court’s reconciliation authority? The Election Commission argues that it is not, as there is no law or order that the High Court is reconciling. Instead, an entirely new process, never before employed in the Coalition’s recorded history, has been invented and then the Election Commission has been ordered to carry it out.

The Coalition has experienced contested elections and ballots before. Ballots initially deemed invalid have been ordered by the courts to be counted, for example. Elections have been declared null and avoid, and new elections held. But never has an election’s voting period concluded, and then new votes cast in that election. This is a novel process that has no basis in any law, but merely one which the High Court believes should happen to implement their decision that the original polls were created with unconstitutional restrictions.

As such, the order to the Election Commission should be reversed. The High Court may determine that the election itself is invalid, that any votes that were attempted to be cast by non-World Assembly members during the valid voting period be counted, or other Section 5 remedies that can be rooted within existing law. But the Charter does not provide the High Court with the ability to invent a new process – a new round of voting conducted via telegram, direct or private message, or similar – and order the Election Commission, or any other branch of government, to carry it out.

Failure to Ensure Least Disruption

The second part of this appeal centers on the disruption caused by the High Court’s decision in HCLQ 2003. An election that ended on August 7 has still not, as of August 18 and likely further into the future, been certified. The Local Council has not sat its new councilors. The Assembly is scrambling to come up with ways to run a secure and safe election for the Local Council. The Cabinet has attempted to address the issue with a (now rescinded) executive order. Last but not least, the Election Commission has been paralyzed in moving forward on the Local Council election. In short, nearly every branch of government has been considerably disrupted.

Article VIII, Section 5 requires the High Court to “maintain the least amount of disruption” when reconciling a law or order with the Charter. This is a positive obligation, not merely a suggestion. It’s the belief of the Election Commission that the High Court neglected its obligation. Despite the clear implications the order would have on election security, the High Court never consulted with the Election Commission on the commission’s ability to safely, securely, and speedily carry out its vague order. The High Court treats the remedy as a “simple” matter. (“[T]he Election Commissioner simply must provide an alternative for those who are not World Assembly natives.” HCLQ 2003.) Minimal analysis was done in the High Court’s decision on the probably disruptions that would result from the order.

To be clear, the High Court is not obligated to allow an unconstitutional order to remain in effect because change is inherently disruptive. However, where the are less disruptive means of remedying an injury, those means ought to be explored and preferred over others. The High Court entertained only one alternative to their order – requiring a poll open to all. It did not explore other options, nor did it ask for briefs on what remedies could be implemented or briefs on the possibility of a more narrowly tailored decision. Despite its assertions, it is clear that the aftermath of HCLQ 2003 has not been “simple” to clear up.

Because of the failure to seek less disruptive remedies, it is the belief of the Election Commission that the decision in HCLQ 2003 should be vacated and scheduled for re-hearing. The decision in HCLQ 2003 cannot stand, as it was borne from an action by the High Court that did not meet the obligations found in Article VIII, Section 5.

Thank you.

Question: An appeal of HCLQ 2003, "Legality of Closed Local Council Elections"
[-] The following 1 user Likes sandaoguo's post:
  • Somyrion
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#2

HIGH COURT OF THE SOUTH PACIFIC
2005.NR
AN APPEAL OF [HCLQ2003] LEGALITY OF CLOSED LOCAL COUNCIL ELECTIONS
[SUBMISSION 18 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
2005

REFERENCE NAME
Appeal of [HCLQ2003] Legality of Closed Local Council Elections

QUESTION
N.A.

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
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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#3

[Image: yVO1LNm.png]

Necessity of Decision
The High Court has requested an explanation of the necessity of a decision on this appeal. To keep it short and sweet, the Election Commission is being compelled to act in a way it believes it cannot legally act. The basis of this of this appeal is twofold: the contradiction of law posed by the High Court's order to conduct a round of voting that is not provided for in any law, and the violation of process due to the Election Commission's belief that the High Court failed to solicit or consider less disruptive remedies.
Reply
#4

HIGH COURT OF THE SOUTH PACIFIC
2005.DJ
AN APPEAL OF [HCLQ2003] LEGALITY OF CLOSED LOCAL COUNCIL ELECTIONS
[SUBMISSION 18 AUGUST 2020 | JUSTICIABILITY 19 AUGUST 2020]
Whereas this Court has been asked to reconsider a prior decision, a power vested in it by Article VIII of the Charter of the South Pacific, and an answer to such a request has been found warranted and necessary.

DETERMINATION OF JUSTICIABILITY
This case is found justiciable and shall be duly considered under case number HCLA2005 and all other designations assigned by document 2005.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
The presiding and secondary Justices of the case subject to this appeal are automatically recused. Interested parties may request the recusal of the remaining Justices 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
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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#5

Your honors,

Brief amicus curiae on the Appeal of HCLQ2003
With the Court's permission I would like to focus this brief on the Appellant's first ground of appeal, namely that the Court lacked the power to issue the order, expressed in its Opinion on HCLQ2003, that the Election Commissioner must 'ensure all members of the Coalition ... can have their vote counted for both rounds of the current Local Council elections.'

In my opinion, the issue at hand is more wide-ranging than the Appellant submits, and goes to the heart of the Court's function. The question the Court should properly ask itself is: What power does the Court have to issue orders to give effect to its rulings?

The law
The Court's primary powers are contained in Article VIII, Sections 4-7 of the Charter. So far as is relevant, the Court has the power to declare any law (or act of government) void due to a violation of the Charter or constitutional law; to reconcile contradictions in the law of the South Pacific; and to interpret and clarify the law in a Legal Question. The Charter also gives the Court the power to strike down any law or action that violates any of the freedoms contained in Article III of the Charter.

The Judicial Act also gives the Court additional powers, but these are chiefly concerned with case management. For example, the Court has the power (per Article 9 of the Judicial Act) to issue a temporary injunction to compel a party 'to do or refrain from specific acts' pertinent to an ongoing case. However, a temporary injunction automatically lapses at the conclusion of the case (Article 9, Section 2).

The Elections Act states (at Article 1, Section 5) that the Court shall arbitrate on any election disputes that cocnern a matter of law. However, this does not grant the Court any additional powers; any election-related disputes must be resolved using the powers vested in the Court by other areas of law.

Discussion of the Court's powers
Article VIII, Section 4 of the Charter gives the Court the power to declare a law or other act of government 'void' on the basis that it violates the terms of the Charter. However, this power is purely declaratory; in order for such a ruling to have practical effect, it must be implemented by someone else. For example, in HCLQ2002 the Court ruled that parts of the Local Council Elections Act violated Article V of the Charter; the Local Council responded by removing the offending sections from the Act (albeit whether this removal was permanent is currently under discussion in HCLQ2004).

The power in Article VIII, Section 4 is to be contrasted with the Court's Article III power to 'strike down' any law or action that infringes on any right or freedom that is derived from the Charter. This implies that the Court is empowered to directly act to strike out a law that violates a Charter right or freedom, as opposed to the declaratory relief offered by Article VIII, Section 4 (which has broader application, for example to declare void a law that violates the Charter in a way other than by infringing on rights and freedoms).

However, this Article III right is exclusively destructive - while the Court can strike out or reverse any existing law or action, it cannot create any new law or compel any positive action to be taken.

A similar conclusion results from analysis of the Court's other Article VIII powers. While the Court can issue a ruling to reconcile contradictions in the law, and issue a legal opinion in response to a Legal Question, it lacks any authority to issue orders to ensure its conclusions are implemented. Indeed, the only powers the Court has to compel individuals or organisations to act in any particular way are those related to temporary injunctions under Article 9 of the Judicial Act; as already stated, these powers may not be exercised once a relevant case is concluded.

There is, therefore, no explicit provision of law that allows the Court to compel anyone to act in any particular way, save for the limited exceptions outlined above. In consequence we should also ask whether the Court has implicit jurisdiction to order that its rulings are implemented. There are three primary reasons why I submit that this is not the case:
  • Firstly, it is the case that a legal opinion delivered by the Court has the full force of law, as allowed by Article 4, Section 3 of the Judicial Act. However, an order is delivered in consequence of a legal opinion, not as part of it. This is because the Court's power to answer a legal question is separate to its other powers (Jebediah has already explored this issue in their amicus curiae brief in the matter of HCLQ2004), and is restricted to enabling it to 'clarify and interpret' existing law. The purpose of Article 4, Section 3 is to prevent similar questions of legal interpretation being 're-litigated' over and over again before the Court; the Court is entitled to rely on earlier rulings as settled law. This section of the Judicial Act cannot, therefore, be used as a shortcut to enable the Court to exercise powers it has not been explicitly granted by the Charter or constitutional law.
  • Secondly, the existence of Article 9 of the Judicial Act, governing temporary injuctions, clearly demonstrates that the Assembly has considered the matter of whether the Court should be allowed to issue orders compelling parties to do or refrain from certain actions. By restricting this power to the specific circumstances outlined in Article 9, this strongly suggests that the Assembly did not intend to give the Court an open-ended power to issue similar orders in other situations.
  • Thirdly, the Court has no power to enforce its own rulings. The offence of 'Contempt of Court' in Article 1, Section 5 of the Criminal Code is limited to conduct that prevents the Court 'from reaching a true and just result' - in other words, it is concerned with conduct before and during a case, not afterwards (by which time the Court has already reached its result by delivering its judgment). Indeed, there is no sanction specifically set out in law for anyone who refuses to follow an order made by the Court. This supports the contention that 'orders' issued by the Court, in consequence of a legal opinion, are non-binding, since it is expected that a binding order would carry some sanction for non-compliance.

Application to the present case
The Appellant is correct that the Court had no power to order that all members of the Coalition should have their vote counted for the present round of Local Council elections. However, this is for a different reason than contended by the Appellant - while it may or may not be the case that electoral law does not allow for the filing of ballots after the polls have closed, this is immaterial, since the Court had no power to order a specific course of action in any event, regardless of what it was.

The Court's power, under Article III, Section 6 of the Charter, was limited to striking out the Election Commissioner's decision to exclude an absentee ballot from the election. It is then for the Election Commissioner to decide how to lawfully proceed with the election. In other words, the legal opinion stands, but the consequential order does not.

I trust this brief will be of assistance to the Court, and I remain available for any follow-up questions that may result.
Reply
#6

 
 
Quote:
High Court of the South Pacific
August 20th, 2020
 

Justice Griffindor delivered the order, signed also by Justice Belschaft


On August 6th, 2020, the High Court of the South Pacific issued an injunction that placed the Local Council elections on hold, pending the release of HCLQ2003: Legality of Closed Local Council Elections. On August 12th, 2020, the High Court released its opinion for HCLQ2003, and as of today (August 20th, 2020), the election results have not yet been certified. Following the appeal of HCLQ2003, it would appear that the certification of the Local Council election results is to be delayed further.

The Court seeks to remedy this long delay in results, and hereby issues a new injunction related to this matter. The Court hereby orders that the Election Commission certify the results of the Local Council election and declare interim winners, who shall hold office until such time as this appeal is concluded, so that the region is not unnecessarily stalled, waiting for the Court to publish the results of the appeal. The Court believes that the temporary disenfranchisement of some non-WA members, though unacceptable, is needed to avoid the complete disenfranchisement of the whole population of the region for an unfair delay of their lawful right to elect members of the Local Council. 

With the injunction coming into immediate effect, the Court will process the appeal as a standard case. The Court also encourages the Assembly and Local Council to continue debate on the numerous proposals and act as if HCLQ2003 is still in full effect.
 
It is so ordered.
-Griffindor/Ebonhand
-Current Roles/Positions
-Legislator 2/24/20-
-High Court Justice 6/7/20-
-South Pacific Coral Guard 11/17/20-
-Minister of Engagement 6/17/22-


-Past Roles/Positions
-Legislator 7/3/16-4/10/18
-Secretary of State 4/3/20-2/24/21

-Chair of the APC 9/24/16-5/31/17
-Vice-Chair of the APC 6/1/17-4/10/18
-Local Council Member 7/1/17-11/17/17
-Citizen 5/2012-12/2014 and  2/26/16-7/3/2016
Reply
#7

Your honors —

If I may, as the original election commissioner involved in this case, I'll demur the legalese of the appellant and amicus brief above. 

Yet, while I agree with with the appellant that this was not the the least disruptive method, I believe this could have been substantially mitigated by the original ruling providing a more explicit direction for how the election commissioner could satisfy the court's ruling.

While I appreciate the court's conservatism in its ruling, more explicit instruction would have been useful; I would encourage the court to offer practical implications in future cases, especially of such magnitude.

Thank you.
-tsunamy
[forum admin]
Reply
#8

Quote:
HIGH COURT OF THE SOUTH PACIFIC
[HCLA2005]: Appeal of [HCLQ2003] Legality of Closed Local Council Elections

With the recent passage of A2009.03 Local Council Constitutional Laws by the Assembly of the South Pacific, the region's laws have been changed allowing the Local Council the ability to pass constitutional laws pertaining to the governance of the RMB.

The passed legislation enables the Local Council to resolve the issues that arose out of the most recent Local Council elections, and subsequent High Court case HCLQ: Legality of Closed Local Council Elections.

The Court asks the petitioner, Sandaoguo, if they would like to withdraw their appeal on the grounds that any produced ruling by the appeal would immediately be obsolete, as well as the original opinion [2003] already considered overturned by the passage of new laws. 
 
-Griffindor/Ebonhand
-Current Roles/Positions
-Legislator 2/24/20-
-High Court Justice 6/7/20-
-South Pacific Coral Guard 11/17/20-
-Minister of Engagement 6/17/22-


-Past Roles/Positions
-Legislator 7/3/16-4/10/18
-Secretary of State 4/3/20-2/24/21

-Chair of the APC 9/24/16-5/31/17
-Vice-Chair of the APC 6/1/17-4/10/18
-Local Council Member 7/1/17-11/17/17
-Citizen 5/2012-12/2014 and  2/26/16-7/3/2016
Reply
#9

While I believe the Court made significant errors in their legal reasoning, in addition to ordering a remedy that violated the requirement to ensure the least amount of disruption, I recognize that the underlying controversy of this case is rendered moot by the recent Charter amendments granting the Local Council explicit power to pass local constitutional laws. Continuing with the case would have no impact on the current laws, and I don't believe it's worth our time for the Court to consider an appeal that would at most be a mea culpa. So I do withdraw my request for appeal.
Reply
#10

HIGH COURT OF THE SOUTH PACIFIC
HQLA2005
AN APPEAL OF [HCLQ2003] LEGALITY OF CLOSED LOCAL COUNCIL ELECTIONS
Statement on Case Dismissal:
The High Court of the South Pacific hereby gives notice of the dismissal of [HCLA2005]: Appeal of [HCLQ2003] Legality of Closed Local Council Elections. 

The reforms passed by the Assembly and approved by the RMB allowing for Constitutional laws to be passed by the Local Council has given the Local Council the ability to determine the level of access to its elections. The reforms also serves to moot the precedent set by the opinion of [HCLQ2003], as well as render any opinion produced by this ruling [2005] obsolete as well.

On the Courts injunction, which was issued on the 20th of August 2020, has already expired, as of the 17th of September 2020. The injunction allowed the Local Council to begin their term despite the election remaining officially unresolved. Now that this case is dismissed and the laws have been changed, the election may (formally) conclude in line with the newly passed laws.
 
It is so ordered.
-Griffindor/Ebonhand
-Current Roles/Positions
-Legislator 2/24/20-
-High Court Justice 6/7/20-
-South Pacific Coral Guard 11/17/20-
-Minister of Engagement 6/17/22-


-Past Roles/Positions
-Legislator 7/3/16-4/10/18
-Secretary of State 4/3/20-2/24/21

-Chair of the APC 9/24/16-5/31/17
-Vice-Chair of the APC 6/1/17-4/10/18
-Local Council Member 7/1/17-11/17/17
-Citizen 5/2012-12/2014 and  2/26/16-7/3/2016
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