AUS Student Court Ruling: WTF?

Might as well go a bit further into the Student Court ruling, for the sake of the archives. (The next time Student Court makes a questionable ruling, hopefully people will come here to find out why the last one was questionable too.) But not too in depth, so don’t be scared off. Unlike Naylor’s “Rising Scourge of Kritarchy”, reading the ruling is hopefully not a pre-requisite to understanding this post.

In going through the ruling, Student Court’s decision-making narrative appeared to go something like this:

[1] Mr. Trasolini, the Appellant, would like us to rule on the validity of Ricardo Bortolon’s decision to count a disputed ballot in favour of Mr. Platt.

[2] AMS Code gives constituencies the ability to make their own rules governing elections, provided that a set of 20 conditions are met.

[3] In AUS electoral code some of those conditions are met explicitly but some are only met implicitly, by giving the AUS Elections Committee (AUSEC) the discretion to set specific rules.

[4] There seem to be two main issues with which the Court is presented in this case:

1) Was the electoral framework sound? And, if so
2) Was the application of the framework correct in this case?

[5] For the parts of AUS Code where the AUSEC is given discretion, they did not set specific rules before the election. Instead, they used their discretion to deal with issues as they arose.

[6] AUS Code, by not having explicit rules and simply giving the AUSEC discretion to make decisions, does not satisfy the conditions set out in AMS Code governing constituency elections.

[7] We find the AUS Constitution to be in violation of AMS Code.

[8] In the event of a violation of AMS Code, the AMS Bylaws give us the power to render an action “void and of no effect”

[9] We consider the AUS Presidential Election to be an action, and declare it to be void and of no effect.

[10] Since the election has been invalidated, it is unnecessary to rule on the validity of the disputed ballot.

By far the most flawed aspect of the student court is that it should not be possible to start at [1] and end at [10]. Meaning, Student Court was asked to rule on the validity of a single ballot. By the end of the ruling, they deemed that to be unnecessary. Instead, they ruled on the validity of the election rules, something that was never in dispute.

Put in another way by Alex in the comments to the last post: “Is it appropriate for them to consider outside of the question asked before them, and prescribe a remedy not sought by either party?” The answer should be absolutely, undeniably ‘NO’.

While paragraphs [1]-[3] and [5]-[10] of the explanation of student court’s decision above were paraphrased, paragraph [4] was quoted directly from the ruling. By that point they had completely forgotten what they were here to do and were not shy about explicity re-defining their own purpose partway through a ruling.

Setting this aside, was the judgment factually correct?

What the AUS Elections Committee was faulted for was for failing to “establish rules governing election procedures and the penalties for violating such rules”, and also for failing to “establish an internal appeals procedure to deal with protests and complaints concerning its elections and referenda”.

All of the rules dealing with these topics are set out in the AUS 2010 General Election Regulations document, which student court did not use as part of its deliberations. The blame for student court not having this document must be shared by everyone; if student court didn’t request it, somebody involved should have provided it to them as relevant background information.

The court certainly would have read it. Alexander Cooke, the law student who wrote the decision, apparently read everything and more. In addition to the AMS Constitution, Bylaws, and Code of Procedure and AUS Code and Constitution, he cites the “provincial Election Act, R.S.B.C. 1996, c. 106, and the federal Canada Elections Act, S.C. 2000, c. 9″, “Sullivan and Driedger on the Construction of Statutes, 4th ed.” and even “Crompton v. AMS Elections Administrator, 2008 UBCSC” (Lougheedgate) – not for any insight into the actual substance of the case, but rather to help justify overstepping their mandate in the same way as Student Court did in the Lougheedgate decision. At 11 pages, the ruling is bloated with large swaths of irrelevant considerations that do not advance towards any sort of logical conclusion. The discussion of the questionable ballot ends on page 4; the conclusion should have come shortly after that, not after 7 more pages designed to talk themselves out of deciding on the ballot.

Needless to say, the absence of the AUS election regulations from the deliberations means there is a fairly convincing argument to be made that the decision made was based on an incomplete set of facts.

Finally, if you’d like to hear a much more lawyer-like take from peripheral hack, and UBC Law graduate Colin Simkus, he has also summarized his thoughts on the ruling, which can best be summed up by this quote:

It is certainly ironic that [student court] would claim for itself the large discretionary power, in the apparent name of natural justice, to impugn, and implicitly overturn, the democratically created AMS and AUS rules, but would then so brazenly minimize the discretion of others, such as Matt Naylor, who were chosen to effectuate those rules