What is less clear (at least to me) is the case of GM Dejan Antic. He is tied for second with Solomon on 7.5, and ordinarily he also would be ineligible for the title. But the ACF By-Laws for ACF Tournaments have a clause which states
So unless the ACF has already made a determination at the time of accepting entries (and I have no idea if they have), Antic may submit a claim to the ACF for the title on the grounds he is a permanent resident at the time the tournament was played. Certainly Antic has applied for permanent residency in Australia (although his last application was knocked back), and if it is subsequently accepted, can he back date his claim?
For those who may claim it is an open and shut case (based on the ACF by-laws) I believe the ACF is fairly flexible in its interpretation of its own laws eg both Felix Klein and Herman Van Riemsdijk are playing in the championship despite the By-Laws for the Championship allowing either the ACF to invite only 1 otherwise ineligible player (Van Reimsdijk has the rating (>2250) but not 20 ACF rated games, Klein may have the 20 ACF rated games, but not the rating (<2250)).
7 comments:
Glad I don't have to decide this one - looks like a lose lose case.
If they give the title to Antic and he subsequently leaves Australia for good because our moronic Immigration laws won't allow him in (and I understand his review wasn't exactly favourable a few days ago), then Stephen could feel quite hard done by.
On the other hand if Solo gets the title and in a few months Immigration come to their senses and give Antic PR, then it is all a bit sad for him.
Maybe in the end you have to go on what the residency status is at the time of the tournament - bit like rating prizes or age titles and that would rule out Antic, as he is not currently a permanent resident.
Jenni
Hi Shaun,
Jenni's comments are eminently sensible - rules are rules I suppose - but it also seems worth considering that we (the Aussie chess community) don't seem to have questioned Antic's eligibility or otherwise to win the Open section of the 2007 Grand Prix.
Cheers, Tony Dowden
My angle here isn't the merits of Antic's claims on the title, but that the ACF rules on the matter are inexact. The ACF has no need to refer to the residency status of Antic (in a legal sense), as they can simply form the opinion that he is a permanent resident. Of course to defend such a decision (either way) they may need to refer to Antic's residency status, but the ACF by-laws only use Citizenship and Residency as a qualifier for the title, not a dis-qualifier.
So while rules are rules, the ACF isn't bound by them in any case, just as the by-laws concerning player eligibility seem to be ignored on occasion.
(*Lest it be said that I am arguing for a strict enforcement of ACF By-Laws to the disadvantage of players and organisers, I am not. Instead I will simply make the suggestion that if the ACF chooses to ignore some of their own rules, then they should remove the rules completely).
When it comes to ACF laws and procedures, I am always reminded of that line from the Pirates of the Carribean movie - "Well its not so much of a code as a guideline..."
Jenni
Actually in the case of van Riemsdijk the ACF Council made a prior decision to admit him to the field in September, and the Klien case was covered by the ACF delegating authority to make decisions on the admission of such players to the selection panel for the event. So these are not cases of the ACF interpreting its by-laws flexibly, but rather cases of the ACF overriding them for particular purposes. There is no problem with the ACF doing this, as the by-laws are simply prescriptions for the way things are to be done except where the ACF makes a decision in advance to the contrary.
While the by-law on eligibility does say that it is the ACF's opinion that counts, the ACF would be placing itself in serious legal hot water if it decided to form an "opinion" that someone was a permanent resident when their application to be declared one had recently (albeit regrettably and quite possibly incorrectly) been rejected. To deny a clearly eligible runner-up a title on the grounds of an "opinion" that had no factual basis and was in fact contradicted by such facts as were available, would be exceedingly unwise.
This post does not necessarily reflect the view of the ACF or the selection committee for the event.
This matter is now academic but I am confident that there was no way that the ACF would have ruled that Antic was a permanent resident when he did not have permenent resident status under the Migration Act. In fact the relevant clause of the By-laws for ACF tournaments should also have referred to that status as does By-law no. 1 regarding the Australian Championship. I put the Migration Act references in By-law No. 1 bit overlooked the reference in the other by-law at the time.
Antic's eligibility for the open section of the Grand Prix arises because the ACF has decided that non-citizens are to be eligible. There is nothing in the Rules preventing it.
Jenni is quite right when she refers to the By-lawa as "guidelines". There is nothing in the ACF Constitution that allows the ACF Council to make by-laws but, equally, the Council needs to make rules reulation, by-laws or guideines or whatever you choose to call them (the name is irrelevant - see Shakespeare: "Romeo and Juliet") so as to have firm procedures for its own use and published procedures that will usually need to be qbserved by the chess community in its dealings with the ACF. There is no doubt that the Council has power to do that under the general law. Those procedures cannot be binding. The ACF has no power to make laws binding third parties - only governments or their delegates may do that - nor can the ACF legally bind itself - not even Parliament can do that. So the end result is that what we have are guidelines that will normally be followed but the ACF, as the maker of them, reserves - and legally has - the right to waive them in particular cases or to suspend their operation generally or amend or repeal them as it thinks fit. Such a power can of course be abused but so can any power. For example, many years ago that reprobate Victorian Premier Sir Henry Bolte was faced with a court decision that went against the government in relation to compulsory third party vehicle insurance so he had Parliament not only change the law (which was to be expected) but make the changes retrospective so that many were deprived of accrued rights (which was vintage Bolte but reprehensible).
DJ
Just a small addition picking up Kevin's "legal hot water" point. I can see no way in which the ACF could support a decision that X ( a foreigner without permanent residency under the Migration Act) was a permanent resident as X would be here only on a temporary visa and subject to deportation when the visa expired. Thus no reasonable person could say that X's residency status was "permanent" If it did so decide, the other competitors in the tournament would almost certainly have grounds successfully to challenge the ACF's action in the courts.
DJ
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