In re GPA 4§2 2025 SDCR 13
In re Article 4 §2. of the Government Proceedings Act [2025] SDCR 13
| Date of judgment | 2nd November 2025 |
| Judges |
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| Held |
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| Ruling | 2-1 |
| Applicable precedent |
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MAJORITY OPINION Per Curiam
(with Judge Hmquestionable agreeing, Judge Benbookworm agreeing except [13], and Judge Confused dissenting from [16-17])
Introduction
[1] The petitioner challenges the constitutionality of Article 4 of the Government Proceedings Act 2025 (GPA) on the basis that it violates the right to equality before the law in Article 17 of the Constitution by giving criminal and civil immunity to Senators for anything relating to matters before the Senate. The petition primarily focuses on Article 4§2.
Arguments from the petitioner
[2] The petitioner argues that the senatorial immunity creates a privileged class distinct from ordinary citizens, insulating them from anything short of Terms of Service violations so long as it plausibly relates to their office as Senator. They argue the law constructively denies the privilege to everyone else not mentioned.
[3] The petitioner asks for the GPA to be balanced with the public interest in accountability and the rights of other citizens to not be subject to torts committed by immune legislators, presenting that legislative debate is already protected by the freedoms of expression and speech. They argue that this does not constitute permissible infringement under Article 29 of the Constitution and is not strictly necessary to protect other rights nor the continued existence of SimDemocracy.
[4] Petitioner argues that there are only two grounds for the right to equality to be infringed upon. They argue that liability is “dichotomiz[ed]” between Senators and Non-Senators. This, we understand, is a reference to In re Article 6 s6 of the Executive Act 2023 [2025] SDSC 10, which forbids laws which provide a dichotomy of choice. They also cite the permissible infringement clause from Article 29 of the Constitution, arguing this legislation does not fall under one of the listed exceptions.
Arguments from the respondent
[5] The government’s response seeks to differentiate between institutional and personal immunity.
- [5.1] This is difficult to square with the text of §2: “No Senator” and §2.1 “To avoid doubt, no liability shall fall on the government for the aforementioned conduct.” This is compared to §1 where despite the qualified immunity for public officials, the government can still be sued and the official ordered to comply.
Case law, considerations, etc
[6] SimDemocracy has a long history of court proceedings against the government and its officials. However, with the exception of judicial reviews, it does not appear that any previous cases arose from senatorial conduct.
[7] The primary consideration in this case, as identified by Petitioners, is that of equality before the law. Let us examine Article 17 of the Constitution, which states:
| §1. Every person shall be equal before the law and be entitled to equal protection of the law.
§2. Equal protection of the law, and equality of rights under the law, shall not be restricted or abridged on the basis of protected characteristics. §3. Protected characteristics shall include, race, religion, sexual orientation, gender identity, national or social origin, ethnicity, age, disability, and political beliefs. |
[8] For a law to be constitutional under Article 17, it must treat every person as “equal before the law” and entitle every person to “equal protection of the law”.
How should Art 17 §1 be interpreted?
[9] Current precedent gives us a few pieces of guidance for interpreting §1. Firstly, the law must not present a "dichotomy of choice” (see In re Article 6 s6 of the Executive Act 2023 [2025] SDSC 10at [8]). Secondly, the classification must be based on a “reasonable standard” (see In re Synd Hire Birdish Pls Act [2025] SDSC 31at [7]). Whether a standard is reasonable is judged based on its relation to the objective of the classification. In , the court found that an example of a reasonable standard was the hiring of State Attorneys based on their membership in the Bar Association.
[10] Dichotomy of choice arises when two issues occur. Firstly, an issue in law where multiple methods are provided for the handling of a single case. This is seen in In re Appeal of Summary Ban - "mc_uighilin" (u/Panzzrr) [2025] SDSC 2, where the law provided multiple ways of dealing with Terms of Service Violations, through a summary ban or a charge under the Criminal Code.
[11] Secondly, this discretion must have been used unevenly without following any clear guidelines or standard. In In re Penalties and Tickets Act 2025 SDSC 17, this is elucidated as an “uneven application” (at [17]). Similarly in that case, “defined guidelines (and strict adherence to those guidelines)” is listed as a way to avoid a law or policy being struck down for uneven application.
[12] As to what constitutes an unreasonable standard, an unreasonable standard in Synd Hire Birdish Pls was the hiring of Election Commissioners based on whether they were Birdish, as that was an “unfair” standard for determining employment, and thus unreasonable. After all, whether or not a person is Birdish has no bearing on their performance as an Election Commissioner.
Test for Equality Before the Law
[13] There is therefore a three-step test in determining a challenge under equality before the law.
- [13.1] First, we test if the policy or law causes dichotomy. That is to say, multiple ways of handling cases which are not differentiated from each other by way of a standard which is strictly adhered to.
- [13.2] Secondly, we test if the standard used is one based on a protected characteristic.
- [13.3] Finally, we test if the standard used is reasonable, taking into account the objective of the policy or law.
[14] Firstly, we determine if the law causes dichotomy. As the law differentiates based on a person’s position as Senator for the purposes of immunity, without providing discretion, there is no dichotomy. An example of the same law with a dichotomy would be an act which provided random users with immunity.
[15] Secondly, a person’s position as a (non)senator is not listed as a protected characteristic, and has never been recognized as one. Therefore, the standard passes this test as well.
[16] Thirdly, we applied the reasonable standard test and found that the classification of persons based on position in the Senate is a reasonable classification.
Decision
[17] The challenged legislation does not violate the equality of law established by Article 17 of the Constitution. The court does not opine on the law’s compatibility with other constitutional provisions.
CONCURRING OPINION by Judge Hmquestionable
Reasonable Standard
[18] I write to clarify how the reasonable standard test should be applied. To test if the classification of persons based on position in the Senate is a reasonable classification, one must first refer to what the result of the law is.
[19] What is the result of Article 4, §2 of the Government Proceedings Act? The text in question reads:
§2. No Senator shall be liable to any civil or criminal proceedings, arrest, imprisonment or damages by reason of any matter or thing which they may have brought before the Senate by bill, resolution, motion, vote, or otherwise, or anything which they may have said in the Senate.
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[20] In sum, the law excludes Senators from criminal or civil liability for their work in the Senate.
[21] Now that the result of the law is identified, it is necessary to see whether the classification for whether someone receives immunity based on their position is a reasonable standard.
[22] Immunity is not an unusual concept. In many jurisdictions throughout the world, members of the Legislative are given immunity from arrest or prosecution for all which they do in the Senate. The Constitution of the United States protects their legislators’ right to “speech and debate”. The United Kingdom protects its legislators through the concept of Parliamentary Privilege. The Indian constitution prevents its legislators from being liable in relation to “any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof”.
- [22.1] The purpose of these clauses are to “ensure that legislators are not questioned by a hostile executive or judiciary in regard to their legislative activities” (Mayer, P. 2017). In this way, the constitutional separation of powers is protected to prevent an undue intrusion by the other branches of government, such as through “civil or criminal proceedings, arrest, imprisonment or damages”.
[23] The classification within the Government Proceedings Act is based on a person’s position as Senator. The Senate is the only legislative body in SimDemocracy. It is therefore reasonable to extend the protection for legislative immunity only to Senators.
[24] Therefore, the act would pass the reasonable standard test.
CONCURRING OPINION by Judge Benbookworm
Sorry this decision is incomprehensible
[25] You can easily see how this judgment was written by committee. This is the true nature of per curiam decisions. But you either end up like the Supreme Court and take many months to write a decision, or cut your losses and admit you can’t agree.
[26] While I agree with most of my colleague’s concurrence regarding legislative immunity in other jurisdictions, I just think that he needs an editor. Try counting how many times the word “secondly” or “dichotomy” appears in the majority decision. I tried to fix the repeated jumping around, but gave up.
[27] I think the majority is legislating from the bench in creating the test in [13]. The judiciary needs to be more conservative when creating binding precedent, and should endeavor to leave the creation of formal tests to the legislature.
- [27.1] While I personally agree with my dissenting colleague and dislike the legislation, I do not believe that the constitutional text and case law permit this court to take such a stance.
[28] Note to anyone trying to cite the majority decision in the future: Any attempts to cite this case had better make sure to read each time that topic is mentioned. Good luck.
DISSENTING OPINION by Judge Confused
Application of the Test for Equality
[29] I respectfully disagree with my fellow judges’ view that mere membership in the Senate constitutes a reasonable basis for complete exemption from civil and criminal liability, with the only exception being TOS violations. The clause in question draws no distinction between a Senator acting in good faith in the exercise of official functions and one acting with mala fide intent. Such blanket immunity is wholly alien to SimDem’s constitutional framework. Its breadth allows a Senator to engage in harassment or other misconduct within Senate channels without consequence, leaving victims without remedy. The mere possibility of such impunity renders the provision incompatible with the rule of law.
[30] Comparative constitutional systems offer no support for such a sweeping privilege. Legislators in India, the United States, and the United Kingdom enjoy immunity only for official legislative acts—speech, votes, or proceedings within their Houses. The impugned clause, by contrast, fails to confine immunity to official deliberative acts and thus invites abuse.
- [30.1] Moreover, direct transplantation of real-world doctrines into SimDemocracy is unsound. The nature and accountability of a Discord-based Senate—where terms are short and oversight limited—cannot justify the assumption that members will exercise restraint comparable to real-world legislators. Yet, the harm caused by cyberharassment or abuse of privilege in a digital polity can be equally real.
[31] Furthermore, Article 18, Section 3 of the SimDem Constitution already guarantees freedom of speech to all members, limited only by the duty not to infringe upon the rights of others. In light of this broad protection, there is no constitutional necessity to confer an additional layer of immunity upon Senators. To do so would imply that the effective discharge of legislative functions somehow requires the ability to violate the rights of others—a proposition wholly inconsistent with the principles of equality and rule of law.
[32] I am of the opinion that the assessment of “reasonableness” under the Test for Equality must be guided by the Permissible Encroachment Clause (Art. 29, S.1). This clause, by its very nature, directly infringes upon the guarantee of “equal protection of all,” and indirectly impairs allied rights such as liberty, personal security, and the right to safety in one’s person. Article 29, Section 1 authorises the State to limit the Bill of Rights only to protect the rights of others, to safeguard the rights of society as a whole, or to ensure SimDemocracy’s continued existence on any given platform. The impugned clause satisfies none of these conditions. It does not protect the rights of others—indeed, it undermines them. It advances no legitimate societal interest, instead fostering institutional lawlessness. Nor does it contribute to the preservation of SimDemocracy’s existence on any platform. Accordingly, there exists no constitutionally permissible justification for this encroachment upon the right to equality.
[33] For the foregoing reasons, I am of the opinion that the impugned clause offends both facets of equality — “equality before the law,” by granting Senators unjustified immunity, and “equal protection of the laws,” by enabling them to infringe upon the rights of others without consequence, thereby denying victims any effective remedy.
[34] However, I am not persuaded that the impugned clause must be struck down in its entirety. A harmonious reading, consistent with this Court’s power of judicial review, permits and indeed compels the Court to read down the provision so as to confine senatorial immunity strictly to acts performed in the exercise of official functions within the Senate. Immunity shall extend only to actions that are within the lawful authority of a Senator and are reasonable in nature.
[35] In conclusion, to uphold this clause in its unrestrained form would be to place Senators above the law—a proposition wholly alien to the spirit of our Constitution. Yet to erase it altogether would risk silencing the very institution meant to give voice to the people. Thus, this Court should tread the narrow path between tyranny and chaos: the clause should live, but only as a shadow of its former self—confined strictly to acts performed lawfully and reasonably within the walls of the Senate. Beyond that threshold, no man, however exalted his office, may claim sanctuary from the law.
[36] For the reasons above, I dissent.
Citations
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