Catchpole v. Electoral Commissioner
Interim Order
(1) The special legislative election fixed for 16 June is postponed for a further 48 hours from the the making of this order.
(2) The Acting President (himself or through a minister) is to advise A F de Andrade and L Reagan by email that they have a right to register as electors by subscribing to cybervote.
(3) The Court is to be informed immediately when Order 2 is implemented;
(4) This order is made without prejudice to any later objection that may be raised to the registration of these two citizens, which can be addressed in separate proceedings.
(5) The Court will publish its reasons within 24 hours.
Alan Grieve
Chief Justice
Reasons for Interim Order
The Interim Order is grounded on the first section of our constitution.
(1)
Quote:
1.1 RIGHT TO VOTE Everyone who is a citizen for the 28 days before election day has the right to vote.
It has become trite law in Cyberia to say that the constitution must be interpreted, under Section 16.19, in a way that promotes the purpose and objects of the Charter of Rights and that promotes the purpose and objects of the particular provision. Our law does not require that the purpose and objects be stated. It follows the right to vote guaranteed by Section 1.1 must be effective and all organs of state have a duty to make it effective.
Mt Catchpole submitted, correctly in our view, that a citizen who has never registered has never become an elector.
Quote:
1.6.8 In this Constitution 'elector' means a citizen who is eligible to vote and has registered as an elector.
Mt Catchpole also submitted, equally correctly in our view, that the Nonvoters provision only touches electors, not citizens generally.
Quote:
1.9 NONVOTERS Every elector who does not vote in a regular general election must show reasonable cause for not voting to the Electoral Commissioner within 21 days or forfeit their citizenship by operation of law.
Citizens who are not electors cannot vote. The two citizens who are the subjects of the Interim Order have, as an ancillary to the right to vote, the right to know that there is a registration requirement. While all organs of state have a general duty to make rights effective by informing citizens of their rights, it appears that none of the constitution, the federal code or the executive order, make any provision for a particular organ of state to have a specific duty to advise new citizens to register.
Absent such provision, the only locus of the duty to inform can be the Executive. The responsibilities of the Executive vest in the President, except to the extent the President entrusts particular duties to Ministers.
(2) The subjects of this order have, by inaction, been deprived of their right to vote because no-one has informed them of that right. That must end and end quickly. The election was delayed, initially, by my lack of connectivity. It is now delayed by the failure of the Executive to implement the Interim Order. If it is not implemented within the time we set down, this Court will have no choice but to consider what sanctions (including any finding of contempt) are appropriate.
(3) The Court is alarmed by the contradiction between Mr Anderson's evidence and Mr Reagan's evidence. Both accounts cannot be true. At some stage the Court will have to conduct an adversary proceeding, with both parties subject to cross-examination, to determine which evidence is accurate and if it is necessary to refer any person for prosecution. We specifically make no finding at this point as whther either or both accounts are true or untrue because such a finding is uneccesary to this order.
The Court will make a final order in 72 hours time. We would be grateful for any submissions on what the final order should be.
Alan Grieve
Chief Justice
Final Order and Ancillary Matters
(1) The Interim Orders are made permanent and we adopt the reasons for those orders as the reasons for the permanent orders.
(2) We hereby summons Zachary Anderson and Liam Reagan to give further evidence so that the discrepancy between their evidence can be resolved. Both are to make themselves available for cross-examination within 48 hours on pain of contempt.
(3) Although both Dep Catchpole's failure to withdraw certain remarks and the remarks themselves are certainly disrespectful, we will take no action in respect of them.
It is necessary to address Mr Catchpole's last submission. A statute cannot override the constitution. As stated in our findings on the Interim orders, it is the constitution itself that imposes the duty to make rights effective on all organs of state. It follows that the registration provisions of the Electoral Code cannot excuse another organ of state from a constitutional duty. merely saying the Electoral Commissioner has certain duties under the Electoral Code (duties that had already discharged at the time of Mr Catchpole's submission) does not abolish the Executive's duty under the Constitution.
Alan Grieve
Chief Justice
Memorandum in the Cause
(1) The Court notes the appointment of a minister of justice and expects the Commonwealth to enter an appearance in this matter. In particular, we expect a report on what steps the Commonwealth has taken to execute the warrant of apprehension.
(2) The warrant is being represented on the forum and elsewhere as working a removal of the President from his office or even as an unlawful coup d'etat. Nothing could be further from the truth.
(3) A President of the Commonwealth can be dismissed from office in a limited number of ways provided by the Constitution. The methods are recall, impeachment, special election, and disqualififcation for absence.
Quote:
2.8 RECALL Recall is the power of the electors to require a special election for the National Assembly or the President.
2.8.1 Recall is initiated by delivering to the Electoral Commissioner a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have 10 days to file signed petitions.
2.8.2 A petition to recall a President must be signed by electors equal in number to 25% percent of the the electors.
2.8.3 A referendum to determine whether to hold a special election must happen not less than 20 days nor more than 30 days after the date of certification that the petition has
sufficient signatures.
2.8.4 If a majority of all the electors vote on the question is to recall, the special election must be held not less than 20 days nor more than 30 days after the date of certification that the recall has passed.
2.8.5 The governor of an organised province may be recalled in the same manner as the president on the petition of 25% of the electors in that province.
Quote:
4.22 IMPEACHMENT All officers of the Commonwealth are subject to impeachment by the National Assembly. The motion for impeachment must list fully the basis for the proceeding. Trial on impeachment must be conducted by the National Assembly. A supreme court justice designated by the court must preside at the trial. A supermajority of deputies is required for a judgment of impeachment. The judgment may not extend beyond removal from office, but does not prevent proceedings in the courts on the same or related charges.
Quote:
1.10 SPECIAL ELECTION A special election may be called by the President or by the National Assembly. The President and the National Assembly must face election within 21 days when a special election is called. The term of office of a candidate elected at a special election is the remainder of the unexpired term and commences on Election Day.
Quote:
5.13. ABSENCE. If for a period of 14 days, the President has been continuously absent from office or unable to discharge the office by reason of mental or physical disability, the office must be deemed vacant.
(4) The President would also cease to be to hold his office if he ceased to be a citizen. We do not propose to have the warrant of apprehension work an indirect removal from office of the president and we will suspend the warrant of apprehension, if necessary, to ensure that the president does not forfeit his citizenship in terms of CFC 910.1. Political questions should be resolved by the political branches, not by deus ex machina interventions by the judiciary.
(5) The Court has no role, beyond providing a presiding officer, in impeachment. The Court has referred certain matters to the National Assembly. We now refer them to the minister of justice for consideration, independent of the President, including the Acing President, whether those matters should be prosecuted.
(6) The Court has no role in the event of the President, including the Acting President, calling a special election at which a new President and Assembly would be elected.
(7) The Court has a role under Section 5.13 only to the extent that it has exclusive jurisdiction to rule on the matter where the question of the president's absence is contested. The Court addressed the issue of presidential absence in Fors v President and it is a matter for the minister of justice or another citizen to bring proceedings for a declaration on wther the current presidential absence, or the unauthorised presidential absence between 14 June and 5 July this year, worked a vacancy in the presidency. In Fors v President we ruled there must be an attempt to contact the president. It is a matter of record that repeated unsuccessful attempts have been made, both on the order of this Court and by other organs of state, to contact the president during his various absences and none were successful. because S 5.13 is self-executing, it may be that Mr Anderson ceased to be president by his own action on 28 June and could not resume the office merely by announcing his return. We reach no conclusion on the matter, which can be addressed in separate proceedings.
Quote:
5.14. JURISDICTION The Supreme Court has original, exclusive and final jurisdiction to determine any question concerning the qualifications, election, absence or disability of the President.
( Those who recall the Whittaberg fiasco, where a vice-president attempted to oust the elected president from his office and dissolve the National Assembly on the authority of a self-appointed Committee of National Salvation, may be bemused that the same self-appointed body, now calling themselves by a different name, have strenuously denounced Acting President Fors for assuming his office in the absence of the President. We addressed the Whittaberg matter in Ceres v Menet. The coup attempt was ultimately unsuccessful and the vice-presidency was abolished, in part to ensure there would be no repetition of a vice-presidential coup.
(9) We have specifically not addressed the issue of whether Mr Anderson can execute his office while a criminal fugitive and said that can be addressed in separate proceedings.
(10) The Court notes that Mr Anderson continues to defy the order for his attendance. What a Court orders must be performed. Mr Anderson can plead an immunity befre this Court and if he is unsuccessful he can appeal the Court's decision to the appellate division where it will be heard by different judges. What Mr Anderson cannot do is simply ignore an Order. No-one in Cyberia is above the law.
(11) Orders and directions are made accordingly.
Alan Grieve
Chief Justice
(1) The special legislative election fixed for 16 June is postponed for a further 48 hours from the the making of this order.
(2) The Acting President (himself or through a minister) is to advise A F de Andrade and L Reagan by email that they have a right to register as electors by subscribing to cybervote.
(3) The Court is to be informed immediately when Order 2 is implemented;
(4) This order is made without prejudice to any later objection that may be raised to the registration of these two citizens, which can be addressed in separate proceedings.
(5) The Court will publish its reasons within 24 hours.
Alan Grieve
Chief Justice
Reasons for Interim Order
The Interim Order is grounded on the first section of our constitution.
(1)
Quote:
1.1 RIGHT TO VOTE Everyone who is a citizen for the 28 days before election day has the right to vote.
It has become trite law in Cyberia to say that the constitution must be interpreted, under Section 16.19, in a way that promotes the purpose and objects of the Charter of Rights and that promotes the purpose and objects of the particular provision. Our law does not require that the purpose and objects be stated. It follows the right to vote guaranteed by Section 1.1 must be effective and all organs of state have a duty to make it effective.
Mt Catchpole submitted, correctly in our view, that a citizen who has never registered has never become an elector.
Quote:
1.6.8 In this Constitution 'elector' means a citizen who is eligible to vote and has registered as an elector.
Mt Catchpole also submitted, equally correctly in our view, that the Nonvoters provision only touches electors, not citizens generally.
Quote:
1.9 NONVOTERS Every elector who does not vote in a regular general election must show reasonable cause for not voting to the Electoral Commissioner within 21 days or forfeit their citizenship by operation of law.
Citizens who are not electors cannot vote. The two citizens who are the subjects of the Interim Order have, as an ancillary to the right to vote, the right to know that there is a registration requirement. While all organs of state have a general duty to make rights effective by informing citizens of their rights, it appears that none of the constitution, the federal code or the executive order, make any provision for a particular organ of state to have a specific duty to advise new citizens to register.
Absent such provision, the only locus of the duty to inform can be the Executive. The responsibilities of the Executive vest in the President, except to the extent the President entrusts particular duties to Ministers.
(2) The subjects of this order have, by inaction, been deprived of their right to vote because no-one has informed them of that right. That must end and end quickly. The election was delayed, initially, by my lack of connectivity. It is now delayed by the failure of the Executive to implement the Interim Order. If it is not implemented within the time we set down, this Court will have no choice but to consider what sanctions (including any finding of contempt) are appropriate.
(3) The Court is alarmed by the contradiction between Mr Anderson's evidence and Mr Reagan's evidence. Both accounts cannot be true. At some stage the Court will have to conduct an adversary proceeding, with both parties subject to cross-examination, to determine which evidence is accurate and if it is necessary to refer any person for prosecution. We specifically make no finding at this point as whther either or both accounts are true or untrue because such a finding is uneccesary to this order.
The Court will make a final order in 72 hours time. We would be grateful for any submissions on what the final order should be.
Alan Grieve
Chief Justice
Final Order and Ancillary Matters
(1) The Interim Orders are made permanent and we adopt the reasons for those orders as the reasons for the permanent orders.
(2) We hereby summons Zachary Anderson and Liam Reagan to give further evidence so that the discrepancy between their evidence can be resolved. Both are to make themselves available for cross-examination within 48 hours on pain of contempt.
(3) Although both Dep Catchpole's failure to withdraw certain remarks and the remarks themselves are certainly disrespectful, we will take no action in respect of them.
It is necessary to address Mr Catchpole's last submission. A statute cannot override the constitution. As stated in our findings on the Interim orders, it is the constitution itself that imposes the duty to make rights effective on all organs of state. It follows that the registration provisions of the Electoral Code cannot excuse another organ of state from a constitutional duty. merely saying the Electoral Commissioner has certain duties under the Electoral Code (duties that had already discharged at the time of Mr Catchpole's submission) does not abolish the Executive's duty under the Constitution.
Alan Grieve
Chief Justice
Memorandum in the Cause
(1) The Court notes the appointment of a minister of justice and expects the Commonwealth to enter an appearance in this matter. In particular, we expect a report on what steps the Commonwealth has taken to execute the warrant of apprehension.
(2) The warrant is being represented on the forum and elsewhere as working a removal of the President from his office or even as an unlawful coup d'etat. Nothing could be further from the truth.
(3) A President of the Commonwealth can be dismissed from office in a limited number of ways provided by the Constitution. The methods are recall, impeachment, special election, and disqualififcation for absence.
Quote:
2.8 RECALL Recall is the power of the electors to require a special election for the National Assembly or the President.
2.8.1 Recall is initiated by delivering to the Electoral Commissioner a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have 10 days to file signed petitions.
2.8.2 A petition to recall a President must be signed by electors equal in number to 25% percent of the the electors.
2.8.3 A referendum to determine whether to hold a special election must happen not less than 20 days nor more than 30 days after the date of certification that the petition has
sufficient signatures.
2.8.4 If a majority of all the electors vote on the question is to recall, the special election must be held not less than 20 days nor more than 30 days after the date of certification that the recall has passed.
2.8.5 The governor of an organised province may be recalled in the same manner as the president on the petition of 25% of the electors in that province.
Quote:
4.22 IMPEACHMENT All officers of the Commonwealth are subject to impeachment by the National Assembly. The motion for impeachment must list fully the basis for the proceeding. Trial on impeachment must be conducted by the National Assembly. A supreme court justice designated by the court must preside at the trial. A supermajority of deputies is required for a judgment of impeachment. The judgment may not extend beyond removal from office, but does not prevent proceedings in the courts on the same or related charges.
Quote:
1.10 SPECIAL ELECTION A special election may be called by the President or by the National Assembly. The President and the National Assembly must face election within 21 days when a special election is called. The term of office of a candidate elected at a special election is the remainder of the unexpired term and commences on Election Day.
Quote:
5.13. ABSENCE. If for a period of 14 days, the President has been continuously absent from office or unable to discharge the office by reason of mental or physical disability, the office must be deemed vacant.
(4) The President would also cease to be to hold his office if he ceased to be a citizen. We do not propose to have the warrant of apprehension work an indirect removal from office of the president and we will suspend the warrant of apprehension, if necessary, to ensure that the president does not forfeit his citizenship in terms of CFC 910.1. Political questions should be resolved by the political branches, not by deus ex machina interventions by the judiciary.
(5) The Court has no role, beyond providing a presiding officer, in impeachment. The Court has referred certain matters to the National Assembly. We now refer them to the minister of justice for consideration, independent of the President, including the Acing President, whether those matters should be prosecuted.
(6) The Court has no role in the event of the President, including the Acting President, calling a special election at which a new President and Assembly would be elected.
(7) The Court has a role under Section 5.13 only to the extent that it has exclusive jurisdiction to rule on the matter where the question of the president's absence is contested. The Court addressed the issue of presidential absence in Fors v President and it is a matter for the minister of justice or another citizen to bring proceedings for a declaration on wther the current presidential absence, or the unauthorised presidential absence between 14 June and 5 July this year, worked a vacancy in the presidency. In Fors v President we ruled there must be an attempt to contact the president. It is a matter of record that repeated unsuccessful attempts have been made, both on the order of this Court and by other organs of state, to contact the president during his various absences and none were successful. because S 5.13 is self-executing, it may be that Mr Anderson ceased to be president by his own action on 28 June and could not resume the office merely by announcing his return. We reach no conclusion on the matter, which can be addressed in separate proceedings.
Quote:
5.14. JURISDICTION The Supreme Court has original, exclusive and final jurisdiction to determine any question concerning the qualifications, election, absence or disability of the President.
( Those who recall the Whittaberg fiasco, where a vice-president attempted to oust the elected president from his office and dissolve the National Assembly on the authority of a self-appointed Committee of National Salvation, may be bemused that the same self-appointed body, now calling themselves by a different name, have strenuously denounced Acting President Fors for assuming his office in the absence of the President. We addressed the Whittaberg matter in Ceres v Menet. The coup attempt was ultimately unsuccessful and the vice-presidency was abolished, in part to ensure there would be no repetition of a vice-presidential coup.
(9) We have specifically not addressed the issue of whether Mr Anderson can execute his office while a criminal fugitive and said that can be addressed in separate proceedings.
(10) The Court notes that Mr Anderson continues to defy the order for his attendance. What a Court orders must be performed. Mr Anderson can plead an immunity befre this Court and if he is unsuccessful he can appeal the Court's decision to the appellate division where it will be heard by different judges. What Mr Anderson cannot do is simply ignore an Order. No-one in Cyberia is above the law.
(11) Orders and directions are made accordingly.
Alan Grieve
Chief Justice
posted by Jack | 1:25 PM
<< Home