In re SDBI & SDIA Acts 2020 SDSC 2
| Alternate citation | In re SDBI & SDIA Acts [2020] SDSC 2 |
|---|---|
| Date of judgment | 19th December 2022 |
| Justices | Chief Justice Danyo Justice Euphyrric |
| Held | The SDBI and SDIA Acts were unconstitutional as they excluded the Attorney General from criminal investigations. The Attorney General was, at the time, constitutionally given primary authority over all criminal investigations. |
| Ruling | 2-0 |
| Applicable precedent |
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Verdict
MAJORITY OPINION by Chief Justice Danyo (with Justice Euphyrric agreeing)
Introduction
[1] The petitioner is seeking judicial review of the SDBI and SimDemocracy Intelligence Agency (“SDIA”) Acts, henceforth just referred to as the “Acts”, with respect to Article 7, s4 of the Constitution which states that “the Attorney General shall have primary authority over all criminal investigations in r/SimDemocracy”.
[2] The Acts establish SimDemocracy’s domestic policing agency and SimDemocracy’s foreign intelligence agency respectively.
Summary of the arguments
[3] The petitioner offers two (2) main arguments for why they believe the Acts are incompatible with Article 7, s4.
[4] The argument which the petitioner favours is that the Director of Investigation (“SDBI Director”) and Director of Intelligence (“SDIA Director”) have “failed in their duties by not reporting to their senior officer”, which the petitioner argues is the Attorney General. They also argue the Discord Supervisor also failed their duties by not providing the Attorney General to all SDBI and SDIA channels. The petitioner further alleges that the SDIA Director also failed their duties by not providing the Attorney General access to the SDIA server.
[5] The second alternative argument is that the Acts are unconstitutional as the Attorney General is excluded, either explicitly in the case of the SDBI Act, and implicitly in the case of the SDIA Act, from participating (let alone taking a leading role) in criminal investigations in direct contravention of Article 7, s4. They argue that the Attorney General has been unconstitutionally relegated “to the role of a mere prosecutor” and that the SDBI Director in effect has primary authority over all criminal investigations, not the Attorney General.
The ambit of Article 7, s4
[6] Both of the Acts concern themselves with criminal investigations. Article 3, s1 of the SDBI Act states that the SDBI “has the authority to investigate suspected crimes or criminals”. The SDIA Act admittedly is less clearer but Article 1, s1 of the SDIA Act states that the SDIA is “an executive body whose primary purpose is handling and gathering information that is not in the public domain”, however, their cooperation with their domestic counterparts (Article 1, s3) further implies that their activities does indeed involve criminal investigations, just that their investigations happen outside of “the public domain”. It is therefore clear that both Acts are within the ambit of Article 7, s4.
Was there a failure of duty?
[7] The favoured interpretation by the petitioner is that the Directors and the Discord Supervisor failed their duties. For this interpretation to hold, three questions must be asked.
[8] The first question is was there duty in the first place? For someone to be held to be in failure, or in breach of their duty, there must be a duty in the first place. These duties can originate from the constitutional law, statutory law, or the common law.
[9] If the answer to the first question was yes, the second question is whether there was a breach of duty? For someone to have breached their duties, they must have committed an act or omission which is in direct contravention to their responsibilities imposed by law.
[10] The third question, which is specific to this argument, is whether the breach of duty (assuming there was a breach of duty) resulted from personal failure (which amounts to failure of duty), or whether it resulted from compliance with a lower law. This question is necessary to ask because if the Acts themselves were unconstitutional, and the Directors and Supervisors merely complied with the Acts, they would be in breach of their duty, but through no personal fault of their own. It would also be a misnomer to characterise that as a “failure of duty” which implies negligence on their part, but admittedly this is merely a point of semantics and is irrelevant to the case in hand.
[11] So, to ask the first question, was there a duty for the SDBI and SDIA Directors to report to the Attorney General about their activities in regards to criminal investigations? This court holds that there was. As the Attorney General has the “primary authority” over all criminal investigations, not only does the Attorney General have the right to know and be adequately informed on what criminal investigations are being conducted under their authority at the very minimum. Arguably, primary authority does also extend to mean that the Attorney General also has the powers to give specific directions to the Directors, but they could also, at their own discretion, decide to delegate the management of day-to-day investigations to the Directors.
[12] As a second part to the first question, was there a duty for the Discord Supervisor to give the Attorney General access to all SDBI and SDIA channels. Likewise, was there a duty for the SDIA Director to give the Attorney General access to the SDIA server? This court also holds that there was. Once again, for the Attorney General to exercise their role as the “primary authority” over all criminal investigations, they must have unobstructed access to all investigations being carried out under their authority. This means having full access to SDBI channels as the SDBI is primarily an agency to investigate criminal offences. As for SDIA channels, the Attorney General should have access to any channel (both within the SimDemocracy server and the SDIA server) that deals with criminal investigations outside of the public domain. Any channels which exclusively deal with operations or investigations that fall outside the remit of criminal investigation, e.g. espionage, may be exempt from Attorney General oversight.
[13] So, as there was a duty, the next question was there a breach of it? This court holds that there was indeed a breach of duty. This is very simply because the SDBI and SDIA Directors do not share all information regarding their criminal investigations and the Discord Supervisor (and SDIA Director) has not yet given the Attorney General unobstructed access to the channels which they are entitled to access as the “primary authority” of all criminal investigations.
[14] So the final question is, did the breach of duty amount to a failure of duty due to personal fault of the Directors and Supervisor? This court holds that there was no failure of duty because the Directors and Supervisor were not at fault.
[15] In regards to the SDBI and SDIA Directors and their duty to report their activities to the Attorney General, neither of the Acts, nor Article 7, s4, impose an explicit positive obligation (in other words, duty) for them to report their activities. To use the words of the petitioner, these duties are found to be present under constitutional law because it is in the “spirit of the Constitution”, in other words, these duties exist in order to uphold the Attorney General’s primary authority over criminal investigations, even if the constitutional law does not explicitly provide for a duty. However, because it wasn’t made explicit, personal failure or fault can not be attributed to the breach of duty, thus it did not amount to failure of duty.
[16] Likewise, in regards to the Discord Supervisor not giving channel access to the Attorney General uses the same logic. The Discord Supervisor has no personal prerogative other than that is prescribed by law. It is therefore not only unreasonable, but unlawful, for the Discord Supervisor to uphold an implied constitutional duty on their own prerogative using their own interpretation which hasn’t yet been sanctioned by a competent court. Therefore there was no personal failure or fault that can be attributed to the breach of duty, meaning it did not constitute failure of duty.
[17] As such, while there was a breach of duty (constitutional duty to be precise), there was no failure of duty that resulted from personal failure or fault from the Directors or Supervisors. Therefore this court dismisses this argument.
Were the Acts unconstitutional?
[18] This leaves us with the petitioner’s second argument to address, were the Acts unconstitutional?
[19] Let’s address the SDBI Act first. As we’ve concluded previously, the SDBI Director was held to be in breach of their duty by not informing the Attorney General of the criminal investigations they were conducting. Likewise, Article 4, s1.8 explicitly restricts the Attorney General from being in the SDBI. The Act itself does not compel or require the SDBI Director in any way to involve the Attorney General in any criminal investigation, nor does it provide any way in which the Attorney General can involve themselves, and only provides provision for communications with the Attorney General to initiate criminal proceedings (Article 5, s1.2), relegating them to a mere chief prosecutor.
[20] In the SDIA Act, there are no provisions to bar or exclude the Attorney General from any criminal investigations. The petitioner points that the Attorney General has never held a position in the SDIA, although this point is irrelevant. However, like the SDBI Act, the SDIA Act provides no provision to compel the SDIA Director in any way to involve the Attorney General in any criminal investigations it conducts. In fact, according to the petitioner, the Attorney General requested channel access to SDIA channels and were refused access.
[21] We can therefore conclude that the breach of duties by the Directors (and subsequently, the Discord Supervisor) did not come from personal failure, but rather failure of statutory law through omission.
Verdict
[22] The SDBI and SDIA Acts are unconstitutional.
[23] There shall be an implementation period of seven (7) days in which the Senate can make the necessary amendments (or replace the Acts in its entirety) in order to comply with the Constitution. If the Acts remain in contravention of the Constitution (assuming they’re not replaced), the SDBI and SDIA Acts shall be voided and cease to have effect after the implementation period.
