2014 In re Petition for Judicial Review re: 2013 Senator Election (L)

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In the Landsdoom of the Free Province of Fiôvâ


In the matter of
PETITION FOR JUDICIAL REVIEW
re: 2013 Senator Election
Petitioner
Xhorxh Asmour


Decided
2 January 2014/XXXV

Brief of the ruling
Petition dismissed on the grounds that this case does not have the necessary merit for a judicial review.

Opinion of the Court delivered by
Adjudicator dal Navâ


Petition

I, Xhorxh Asmour, citizen of the Talossan Province of Fiôvâ, feeling that my rights under the constitution and law of Fiôvâ have been violated, hereby petition the Most Honorable Kane Gruber, Landsdoom of Fiova, for a judicial review of the December 2013 Senatorial Election of this Province for the reasons presented below:

Title II, Section 5 of the Fiôván Elections and Referendums Law reads:

«The Secretary of State shall maintain a list of electors, with their electronic and postal details attached, and shall communicate the ballot paper and voting instructions to the electors once the ballot paper is available, as well as making this information publicly available on the National Webspace. The Secretary of State shall issue two reminders with the same information to voters, the first no later than seven days before the deadline for voting, and the second no later than three days before the deadline for voting.»
  1. Both procedures (communicating the ballot paper and voting instructions to the electors once the ballot paper is available, AS WELL AS making this information publicly available on the National Webspace) should have been carried out, but the first one was NOT, causing several electors who do not access Witt often to miss the election, whose results might have been different.
  2. The Secretary of State has a list of electronic and postal addresses for all electors, to be used for communications.
  3. No reminders were e-mailed to the electors.

That said, it is perfectly clear that the SoS has acted illegally, and I therefore petition that the election be declared void and a new election held as soon as possible.

Fiôvâ, January 1, 2014/XXXV

Xhorxh Asmour

Opinion

Analysis of merit of the Petition

In considering this petition for judicial review, there are few things which must be considered. First, judicial review is a "procedure by which decisions of a public body can be challenged in the Courts". However, there is no decision by the Office of the Secretary of State apparent. In addition, judicial review is also used to "rectify a 'public law wrong'", something that does not apply here, as no law is being challenged. The types of decisions that can be challenged are "decisions of body exercising a statutory or governmental function", but there is no decision being challenged; the only decision of the Office of the Secretary of State (insofar as this issue may be concerned) was the result of the election. The result of the election is not being challenged or addressed (except as a consequence of the administration of the election itself); the administration of the election is being challenged. What is being addressed is a perceived failure on the part of a public body to carry out their duties in preserving the rights of the voting populace. But does that constitute a violation of the rights of the voting populace?

In essence, the question is: is a failure to carry out one's duty a breach of law?

Judicial review has its place, but does that mean that it should be used when a party (or parties) would better be served with a suit? Should it be used in a a situation when a public body is seen as violating the law, when in fact, charges should be brought against that public body? If so, is judicial review merely a mechanism for bringing a public body up on charges? Is it a form of citizens' arrest? On what authority does the Landsdoom have the right to act in the same capacity as an attorney-general? The Landsdoom does not see that there is any authority under which the Landsdoom should be allowed to act in such a manner. It is a deliberative body, not a proactive body of enforcement.

Ruling

The Landsdoom is fully aware that this decision, since there are no specific rules for judicial review within the Province of Fiôvâ, does act as precedent for future petitions brought before the Landsdoom. Judicial review is generally brought before a court as means of addressing an issue of constitutionality of a law (and its exercise), not the failure of a public body to carry out its duties under the law. It is hoped that, as a result of this decision, petitions for judicial review are so filed after all alternative remedies have been exhausted, and are filed only when there is a specific law or laws that should be the subject of the review. If the case is decided in the plaintiff's favour, then and only then does it seem the Landsdoom would have authority to void an election.

THEREFORE, the Landsdoom hereby officially dismisses the petition on the grounds that this case does not have the necessary merit for a judicial review. It does not apply to the doctrine of judicial review as practised in the Kingdom of Talossa, nor in the Anglo-American legal tradition that serves as an operation model for the Kingdom. It is the opinion of the Landsdoom that the issue is a matter of whether the Office of the Secretary of State has fulfilled its duty, rather than acted outside the law or applied the law in an unfair manner, which would be the traditional scope of the mechanism of judicial review. The petitioner is instead urged to file a suit against the Office of the Secretary of State, to be brought before this or another deliberative judicial body. It is so ordered.

This order entered into immediate effect, here on this date 2nd of January 2014/XXXV,

Tamorán dal Navâ, Landsdoom