[2302.HQ] In re Emergency Citizenship Committee Appointments

High Court
1
HIGH COURT OF THE SOUTH PACIFIC
CASE SUBMISSION

I respectfully submit this case for the consideration of the High Court, and in so doing state that the information contained within it is true to the best of my knowledge, and I further make myself available to answer any questions that the Court may have.

Reference Name
In re Emergency Citizenship Committee Appointments

Request
I humbly request that this Court answer the following legal questions:

  1. If the Council on Regional Security rescinds an emergency Prime Ministerial appointment to the Citizenship Committee pursuant to Citizenship Act. 1.(4), does the CRS’s decision apply retrospectively, such that legally it is as if the emergency Citizenship Committee member were never appointed, or does the CRS’s decision apply prospectively only, removing the emergency member from the Citizenship Committee as of the date of the CRS decision?
  2. If the CRS’s decision applies retrospectively, are all official actions taken by the emergency Citizenship Committee member while in office rendered null and void as of the date of the CRS decision to rescind their appointment?
  3. If so, do all citizens whose citizenship applications were approved as a result of the emergency Citizenship Committee member’s membership on the Committee automatically lose citizenship status?
  4. If so, does that invalidate the results of any election in which such citizens cast decisive votes?

Description
These questions arose during the Assembly debate on the recent omnibus citizenship reform. See [2339.AB] Amended Voter Registration Bill - #65 by ProfessorHenn. Though now part of the Citizenship Act, the relevant provision predates the omnibus bill; it was adopted with only nomenclature changes from section 1.(4) of the Legislator Committee Act.

Though I am sure the Court will realize without further illustration the ways in which these questions could arise in practice, I provide the following hypothetical to highlight the potential significance of the answers and the need to clarify this area of our law:

Say the incumbent Prime Minister is in a tight re-election race. To tip the scales, they recruit two allies from a hostile foreign region to move nations to TSP and apply for citizenship. Seeking to conceal their plot, these individuals fail to disclose any foreign affiliations on their citizenship applications. As a result of several recent resignations, the Prime Minister is able to appoint another steadfast political ally as an emergency Citizenship Committee member pursuant to Citizenship Act 1.(4). At the direction of the Prime Minister, this individual proceeds to approve the citizenship applications of the Prime Minister’s foreign allies just in time for them to vote in the election, in which their votes end up being decisive. Soon thereafter, the CRS uncovers the scheme and rescinds the Prime Minister’s emergency Citizenship Committee appointment on security grounds. What result? Are the foreign allies automatically stripped of their citizenship with retroactive effect? And if so, are the election results invalidated?

I stand ready to answer the Court’s questions and to provide an amicus brief should one be helpful to the Court.

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High Court of the South Pacific

[2302.HQ] In re Emergency Citizenship Committee Appointments

Let this serve as notice that this petition has been received by the High Court and has been assigned the following identifying information:

Docket Number
2302.HQ

Reference Name
In re Emergency Citizenship Committee Assignments

Request

  1. If the Council on Regional Security rescinds an emergency Prime Ministerial appointment to the Citizenship Committee pursuant to Citizenship Act. 1.(4), does the CRS’s decision apply retrospectively, such that legally it is as if the emergency Citizenship Committee member were never appointed, or does the CRS’s decision apply prospectively only, removing the emergency member from the Citizenship Committee as of the date of the CRS decision?

  2. If the CRS’s decision applies retrospectively, are all official actions taken by the emergency Citizenship Committee member while in office rendered null and void as of the date of the CRS decision to rescind their appointment?

  3. If so, do all citizens whose citizenship applications were approved as a result of the emergency Citizenship Committee member’s membership on the Committee automatically lose citizenship status?

  4. If so, does that invalidate the results of any election in which such citizens cast decisive votes?

The petitioner and other interested parties are invited to explain the admissibility or lack thereof of this case no later than 2023-10-07T19:00:00Z, but the Court reserves the right to make a determination before then.

Submission: 04 Oct 2023

3
High Court of the South Pacific

[2302.HQ] In re Emergency Citizenship Committee Appointments

Whereas this Court has been asked to exercise the judicial power vested in it by Article VIII of the Charter of the South Pacific, it is resolved that this case is justiciable and will be considered for resolution by a panel of two justices.

The petitioner and interested parties may submit arguments with their views on this case no later than 2023-10-25T19:00:00Z, but the Court reserves the right to issue an opinion before then.

Submission: 04 Oct 2023 | Determination: 18 Oct 2023

4

May it please the Court, I am also drafting an amicus brief in this case and plan to submit it in the next few days.

5

The Court would like to inquire if the said amicus brief is forthcoming.

6

Indeed, it is. Apologies for the delay; RL has been a bit overwhelming lately. But things have cleared up as of this weekend, so I should be able to write the brief tomorrow.

7

Chief Justice and may it please the Court:

With further apologies for the delay, I submit the following amicus brief for the Court’s consideration. After attempting and failing to draft a succinct general summary, I found it most efficient to simply address each question in turn.

  1. If the Council on Regional Security rescinds an emergency Prime Ministerial appointment to the Citizenship Committee pursuant to Citizenship Act. 1.(4), does the CRS’s decision apply retrospectively, such that legally it is as if the emergency Citizenship Committee member were never appointed, or does the CRS’s decision apply prospectively only, removing the emergency member from the Citizenship Committee as of the date of the CRS decision?

The CRS’s decision applies retrospectively, such that legally it is as if the emergency Citizenship Committee member was never appointed. Text, structure, and precedent all support this interpretation.

I begin with the text. The Citizenship Act provides that “[t]he Council on Regional Security may, on security grounds only, rescind the Prime Minister’s [emergency] appointment [to the Citizenship Committee].” Citizenship Act, 1(4) (emphasis added). The key word in this provision is “rescind.” That word was chosen carefully; indeed, this sub-section of the Citizenship Act is the only place it appears in our constitutional law. When a legal order is rescinded, it is rendered void ab initio, as if it were never made in the first place. Thus, the legal effect of a CRS decision to rescind the Prime Minister’s emergency appointment is to render that purported appointment void, meaning that the Citizenship Committee member was never lawfully appointed to the Committee.

This textual inference is bolstered when the CRS rescission clause is compared with the other sub-section of the Citizenship Act that provides for removal of Citizenship Committee members. That sub-section specifies that a “member of the Citizenship Committee is removed from the committee if the member” resigns, loses citizenship, or is recalled by the Assembly. Citizenship Act 1(3) (emphasis added). The differences in this provision’s language and focus are telling. First, it refers to a Citizenship Committee member being “removed” from office, suggesting that they actually took up that office; one cannot be removed from an office that one never held. Second, this sub-section is focused on a Citizenship Committee member’s status as a member of the Committee, whereas the CRS rescission provision targets the Prime Minister’s initial appointment of an emergency member. Taken together, these distinctions suggest that the removal sub-section is designed to enumerate the ways in which a Citizenship Committee member could be removed from an office in which they were lawfully serving, while the CRS rescission provision is designed to prevent them from taking office in the first place.

The structure of the overall emergency Citizenship Committee provision compels the same conclusion. An emergency Citizenship Committee member’s tenure in office is carefully delimited: it lasts only “until the Prime Minister rescinds the appointment or until one week after a regular committee member is available, whichever happens sooner.” Citizenship Act 1(4). Given that an emergency member is likely to serve only a short stint on the Committee, it would make little sense for the CRS to be limited to removing them prospectively. By the time the CRS identified the security threat posed by the emergency member, convened, and decided to rescind their appointment, it is likely that the emergency member would already be on their way out of office. And they almost certainly would have already undertaken whatever actions they planned to undermine regional security. Thus, reading the CRS rescission clause to authorize only prospective removal of an emergency Citizenship Committee member would render that provision ineffective.

Finally, a brief word on precedent. As discussed further below, this Court has been prudently cautious in its approach to citizenship matters, often preferring to read legislation as preserving individuals’ citizenship status. But where regional security is at stake, the Court has taken a more deferential approach, permitting government officials broader latitude in making citizenship decisions. See, e.g., In re Security Threat, 1511.HQ; In re Citizenship and the Bill of Rights, 1524.HQ. The same interpretive principle should apply here. Thus, should the Court harbor any doubts as to the correct reading of the CRS rsecission principle, it should err on the side of maximizing the government’s ability to respond to emerging security threats.

  1. If the CRS’s decision applies retrospectively, are all official actions taken by the emergency Citizenship Committee member while in office rendered null and void as of the date of the CRS decision to rescind their appointment?

Yes. If the Court accepts my argument with respect to the first question, then the answer to this question should be clear and requires little elaboration. When the CRS rescinds the Prime Minister’s appointment of an emergency Citizenship Committee member, it means that individual never actually became a member of the Citizenship Committee. Thus, they were never lawfully authorized to exercise the powers vested in Citizenship Committee members. Any purported attempts to do so would be purely ultra vires and of no legal effect.

  1. If so, do all citizens whose citizenship applications were approved as a result of the emergency Citizenship Committee member’s membership on the Committee automatically lose citizenship status?

Not quite, although the ultimate result will be the same. This somewhat confusing conclusion is the result of the inarticulate way in which this question was drafted, for which the petitioner apologizes. To be very precise, individuals whose citizenship applications were approved by the emergency Citizenship Committee member do not lose citizenship when the CRS rescinds the Prime Minister’s appointment of the emergency member. Instead, the CRS decision means that, as a legal matter, such individuals never became citizens in the first place. Obviously, there is no way for them to “lose” citizenship that they never had, hence why this question was poorly worded.

This conclusion follows from the answers to the first two questions. When the CRS rescinds the Prime Minister’s appointment, it is legally as if the emergency member was never appointed to the Citizenship Committee. Any actions they took in execution of that office were therefore without legal effect, including approving citizenship applications. Thus, anyone whose citizenship applications they purported to approve never lawfully became a citizen at all.

  1. If so, does that invalidate the results of any election in which such citizens cast decisive votes?

Possibly—it depends on the timing of the CRS action in relation to the election. As this Court has repeatedly recognized, it would be neither wise nor desirable to allow elections or Assembly votes to be regularly overturned or called into question because of subsequent changes to voters’ eligibility. See, e.g., In re Retroactive Vote Changes on Legislator Removals, 1715.HQ; In re Who Determines Citizenship, 1517.HQ; In re When is Citizenship Lost, 1515.HQ. Indeed, our “government was established in such a way that its operation is logical and practicable,” and a “system in which votes are routinely removed from the record would . . . be contrary to the logical goal of predictable and understandable government.” In re Retroactive Vote Changes on Legislator Removals, 1715.HQ.

Thankfully, our constitutional law provides a mechanism by which these concerns with finality and predictability can be reconciled with the important security interests underlying the CRS’s authority to rescind emergency Citizenship Committee appointments. The Elections Act contemplates that “election-related disputes” may arise in the course of an election, and it authorizes the Election Commissioner to “arbitrate” those disputes. Elections Act 1(5). The Act prohibits the Commissioner from “finaliz[ing] any election until all disputes have been settled.” Id. But it also requires the Commissioner to act with dispatch—“any and all election-related disputes must be settled” by the first of the month in which the Prime Minister elect is to take office. Elections Act. 4(2). Once any outstanding disputes are settled, the election is finalized and beyond further question, even if irregularities are subsequently discovered.

A claim that certain voters were ineligible is an “election-related dispute.” Thus, if the CRS rescinds the Prime Minister’s emergency appointment to the Citizenship Committee either during the election or during the period in which election-related disputes can be raised, then the votes of individuals whose citizenship applications were approved by the emergency member should be invalidated. But if the CRS acts after the dispute period has ended, then the finalized election results will not be affected. Should the Assembly wish to remove the newly installed Prime Minister for their having appointed a security threat to the Citizenship Committee at that point, then it must resort to a recall or vote of no confidence.

This conclusion is not inconsistent with this Court’s “automatic removal” precedents. In those cases, this Court held that votes must be counted where they were cast in good faith by citizens or legislators who were in full possession of the necessary status at the time they voted, even if those voters were no longer technically eligible and could have had their status removed by a relevant official. See In re Retroactive Vote Changes on Legislator Removals, 1715.HQ; In re Who Determines Citizenship, 1517.HQ; In re When is Citizenship Lost, 1515.HQ. Importantly, in each of these cases, the voter had lawfully obtained the relevant status to vote, and the question presented was when they lost that status, either automatically upon their no longer meeting the applicable requirements or only upon manual removal by a responsible official. As the Court made pellucid, “a vote that has been validly cast cannot be retroactively invalidated, unless the individual was never a legislator in the first place, and therefore ineligible to cast any votes whatsoever.” In re Retroactive Vote Changes on Legislator Removals, 1715.HQ (emphasis added). Replace the word “legislator” with “citizen,” and that situation is precisely the one presented here. Individuals granted citizenship by an emergency Citizenship Committee member whose appointment was rescinded never became citizens in the first place and were ineligible to cast any votes whatsoever.

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The Court thanks the petitioner for their brief and argument on this case, and would request their assistance with the following questions:

  • In re Security Threat and In re Citizenship and the Bill of Rights dealt with very specific uses of government powers, namely the right to deny citizenship and the right to revoke citizenship. The laws that supported the exercise of those powers have since been repealed or amended. Why are these cases still applicable to current law?

  • Given that regional law prevents citizens from voting in an election that had already started by the time they were admitted, how feasible is the security risk that, per your argument, warrants reading rescissions to be retroactive? Would regional law already not have provisions that prevent such scenarios from materialising? If so, would a retroactive rescission that itself reverses citizenship admissions not serve only to penalise newly admitted citizens?

  • This Court has a long established philosophy of interpreting the law so that the principle of predictable government is observed. Would this principle be observed under a scenario where there a possibility that citizens admitted by an emergency Citizenship Committee member might not have been lawfully admitted in the first place?

The Court would also invite the @crs to provide its input on this matter by providing an answer to the following question:

  • Is there, from your view, a legitimate security interest that would be served by rendering a security-based rescission of emergency Citizenship Committee appointments, that would outweigh any potential damage to the civil rights of admitted citizens?
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The petitioner thanks the Court for the opportunity to address these questions and notifies the Court that responses will be forthcoming this evening.

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With thanks for the Court’s patience, please see below for my responses.

  1. In re Security Threat and In re Citizenship and the Bill of Rights dealt with very specific uses of government powers, namely the right to deny citizenship and the right to revoke citizenship. The laws that supported the exercise of those powers have since been repealed or amended. Why are these cases still applicable to current law?

The specific holdings of In re Security Threat and In re Citizenship and the Bill of Rights do not directly control the outcome of this case, given that, as the Court correctly notes, those cases dealt with different provisions of regional law that have since been repealed. But they do stand for several important and interrelated legal principles that are applicable to the question presented here. In both cases, this Court was asked to invalidate or, in the alternative, narrowly construe legal provisions authorizing government officials to revoke or deny citizenship on regional security grounds. And in both cases this Court rejected petitioners’ requests. Instead it, (1) read the underlying provisions broadly to authorize citizenship actions based solely on a government official’s determination that an individual posed a “security threat” and (2) squarely held that such actions were consistent with the Charter and “neither arbitrary [n]or discriminative.” In re Citizenship and the Bill of Rights, 1524.HQ; see also In re Security Threat, 1511.HQ (holding that officials were “able to deny a[ ] [citizenship] application on the grounds of being a Security Threat as long as it is disclosed that this is the reason the applicant is being denied.”).

Taken together, these cases establish two relevant principles of law. First, regional security is a sufficiently compelling governmental interest to justify officials altering individuals’ citizenship statuses where duly authorized by law. Second, where linguistically plausible, this Court should interpret legal provisions authorizing such action in a way that preserves rather than limits official discretion to protect regional security. Applied to the instant case, these principles suggest that, first, it would be fully consistent with the Charter for the Citizenship Act to authorize retrospective citizenship changes where necessary to protect regional security. Second, insofar as the Court finds the relevant provision ambiguous—i.e., it could reasonably be interpreted either as applying retrospectively or prospectively—then the Court should err in favor of preserving the CRS’s ability to counter threats to regional security by interpreting it to apply retrospectively.

  1. Given that regional law prevents citizens from voting in an election that had already started by the time they were admitted, how feasible is the security risk that, per your argument, warrants reading rescissions to be retroactive? Would regional law already not have provisions that prevent such scenarios from materialising? If so, would a retroactive rescission that itself reverses citizenship admissions not serve only to penalise newly admitted citizens?

The requirement the Court identifies—that citizens must be admitted prior to an election period in order to vote in the attendant election—probably makes it less likely that a security risk would materialize via an emergency Citizenship Committee appointment, but not infeasible. I approach this question from the assumption that the emergency Citizenship Committee member constitutes a genuine threat to regional security, i.e., they are someone who seeks to undermine the sovereignty of the Coalition or otherwise harm TSP, through whatever nefarious means possible. I imagine that such a person would carefully plan their actions and accordingly would take account of the temporal limitation the Court identifies. Harkening back to the hypothetical presented in the original petition, the corrupt Prime Minister seeking to stay in office with the aid of hostile foreign powers would almost certainly arrange for their foreign allies to relocate to TSP and be granted citizenship by the emergency member prior to the election period starting. If the CRS’s rescission of the emergency member’s appointment did not operate retrospectively, then those foreign allies would presumptively retain their citizenship throughout the election process and be able to vote.

I say presumptively because there are other legal mechanisms by which the citizenship of malign actors can be removed, namely proscription or criminal prosecution. But neither is an adequate substitute for the speedy, blanket rescission of all citizenship grants made by the emergency member. For one thing, proscription requires the Prime Minister’s assent in addition to that of the CRS, which would make it impossible to impose in a scenario like that hypothesized in the original petition. Second, even if the Prime Minister were to agree, the Proscription Act is too slow—it mandates a seven-day grace period before the proscription goes into effect. See Proscription Act 2(2). And it would necessitate proscribing each suspected citizen individually, with the requisite investigation and evidentiary findings. The same is true of criminal prosecution, which would require full individual trials before the High Court, each with the possibility of appeal. The election at issue would almost certainly have concluded by the time proscription or criminal proceedings could be finalized, at which point the emergency member’s malign purposes would have been accomplished.

There also may be political means by which the emergency member’s actions could be countered, but these would be riskier and likely less effective than if the CRS’s rescission of their appointment operated retrospectively. For example, the CRS could both rescind the emergency member’s appointment and publicize their reasons for doing so. Presumably, that would influence many loyal citizens to vote against the position that the emergency member sought to advance in the ongoing election. But this bears additional security risks, including requiring the CRS to divulge some information about (at very least the existence of) whatever intelligence operations uncovered the plot. And it would only be effective early in the election cycle, before citizens have voted.

To be sure, permitting the CRS to simultaneously alter the citizenship status of all members whose citizenship was approved by the emergency member is strong medicine that should be employed only in exceptional circumstances. And it admittedly represents an impingement on the rights of any innocent citizens whose applications happen to have been approved by the emergency member. But we trust the CRS with even stronger medicine that imposes even greater costs on civil liberties, including, apparently, the authority to dissolve the executive government, suspend the operation of this Court, and rule by decree in the event of a coup. It is therefore not clear why we would not trust them with the comparatively modest authority contemplated in the instant case, which would enable them to respond to security crises that, while perhaps not as dramatic as a coup, are of no less consequence. Moreover, it bears noting that any impingement on civil rights, while not insubstantial, would be temporary. The CRS’s actions under this provision do not amount to a proscription or criminal conviction—innocent members unluckily caught up in the CRS’s action would be free to reapply for citizenship immediately. They would not be able to vote in the ongoing election, but that is all. It is that temporally delimited impingement on civil liberties—not an indefinite citizenship removal—that must be weighed against the substantial security interests at stake.

  1. This Court has a long established philosophy of interpreting the law so that the principle of predictable government is observed. Would this principle be observed under a scenario where there a possibility that citizens admitted by an emergency Citizenship Committee member might not have been lawfully admitted in the first place?

I acknowledge that, in certain respects, the interpretation advanced in my brief is in some tension with the principle of predictable government. Were CRS rescissions to operate retrospectively, such actions could unsettle voter and candidate expectations during an election season; potentially necessitate adjudication of election disputes if undertaken late enough in the voting process; and, as discussed above, temporarily impinge upon the civil liberties of innocent citizens. But the costs of those disruptions must be weighed against the compelling governmental interest in regional security. Given the extraordinary circumstances that would be required for the CRS to exercise such a potent authority, I would respectfully submit that balance tips in favor of the need to protect regional security.

Moreover, viewed from a different angle, failing to adopt this interpretation is also in tension with the principle of predictable government. One aspect of predictable government is that the region’s laws should be clear and comprehensible to the ordinary citizen. Generally, that means that each provision of law should have some meaning or serve some function; the Court should hesitate before interpreting a provision in such a way that renders it superfluous, useless, or a mere form of words. A jurisprudential system does not foster predictability if citizens must guess which provisions of law will be given legal effect. As discussed in my opening brief, it is very hard to see what purpose the CRS rescission provision could serve if its effects were not retrospective. By the time the CRS acted, the emergency member’s time in office would likely be soon to expire naturally, and—assuming they represented a genuine security threat—they would almost certainly have completed whatever nefarious actions they had planned. It would not serve the values of predictability and consistency were this Court to interpret an apparently significant provision of the Citizenship Act to be without any practical utility.

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High Court of the South Pacific
Court Order

[2302.HQ] In re Emergency Citizenship Committee Appointments

Whereas this Court is vested by Article 3, Section 5 of the Judicial Act with the power to compel individuals and institutions to answer questions, it is resolved that the Council on Regional Security is hereby compelled to answer the following question:

Is there, from your view, a legitimate security interest that would be served by rendering a security-based rescission of emergency Citizenship Committee appointments, that would outweigh any potential damage to the civil rights of admitted citizens?

The Council on Regional Security must provide its answer no later than 2023-12-03T19:00:00Z.

Issued: 30 Nov 2023

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Your honor,

thank you for addressing this question to the Council on Regional Security. We have begun to address it.

Unfortunately, we will not have a response ready on the timeline you’ve identified due to the time delay in getting input from different members of the Council. Would it be possible to get a one week extension on providing a response?

13

Your honors,

I wanted to ask a clarification question about the High Court’s question for the CRS. From my perspective, the question reads as asking us to justify why the law as written gives us a security-based rescission. Can the Court clarify it’s question to ensure I understand correctly?

14
Please consider the following as a re-framed question:

Is there from your view a legitimate security interest, outweighing any potential damage to the civil rights of citizens or to the principle of predictable governance, in deciding that, upon the rescission of an emergency appointment to the Citizenship Committee, any citizens admitted by said emergency appointee should be considered not to have been lawfully admitted and consequently lose any status as citizens?

Given the confusion that arose from the framing of the question, the Court grants the request for additional time to expect an answer no later than 2023-12-08T19:00:00Z.

15

The CRS is not going to have a unanimous response to the Court’s question.

16
The Court issued an order compelling the Council to provide an answer to the question that was asked; that was not a request. The Council's internal proceedings and voting mechanisms are its own, but the Court expects an answer.
17

The Court cannot compel the Council give an answer it doesn’t have. There is no consensus, so the Council can’t have an official opinion on this matter.

18
The Court has the legal right to compel testimony from individuals and institutions as it sees fit to support its understanding of a case. In this particular matter the Council has been asked to answer a specific question; whether that answer is presented as the sole unanimous view of the Council or the diverse views of individual members is to be decided by the Council in accordance with its own internal procedures, and the Court is more than amenable to such possible answers, but simply not answering is not an acceptable outcome.

The Council is expected to provide an answer, either unanimously or in any other format that is most fit for purpose, no later than 2023-12-15T19:00:00Z.

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The below represents the opinion of myself and one other member of the Council. At this time, no other responses to the question asked by the High Court have been formally drafted.

If an emergency appointment to the Citizenship Committee were rescinded by the Council on Regional Security that decision would indicate that there is a meaningful security concern about a given appointment that would necessitate the nullification of any citizenship acceptances that had been processed primarily by the Citizenship Committee member who’s appointment was rescinded.

The Citizenship Act gives the Council the power to rescind an emergency appointment as a last resort. Due to reputational risks and mechanical concerns, the Council would likely only exercise such an option as a last resort, if there was a credible reason to believe a temporary appointment meant active harm to the security of the Coalition. Consider a scenario where the Council had reason to believe a citizen was a part of an effort to subvert the region’s internal affairs and that individual was then appointed to the Citizenship Committee. If the Council’s rescinding an emergency appointment did not apply to previous appointments, then the emergency member would have the opportunity to admit multiple potentially sympathetic new citizens (either under real or assumed aliases) using their status as an emergency appointed member.

From the Council’s perspective, this does not damage the civil rights of the admitted citizens. If an emergency appointment was rescinded, then the Prime Minister would be able to make a new appointment, and that new appointment would then be able to re-process the applications as if they had never been handled in the first place. This would not be a revocation of citizenship rights, rather a recognition that the original grant of citizenship was done by an untrustworthy individual.

20
High Court of the South Pacific

[2302.HQ] In re Emergency Citizenship Committee Appointments

Petition

  1. If the Council on Regional Security rescinds an emergency Prime Ministerial appointment to the Citizenship Committee pursuant to Citizenship Act. 1.(4), does the CRS’s decision apply retrospectively, such that legally it is as if the emergency Citizenship Committee member were never appointed, or does the CRS’s decision apply prospectively only, removing the emergency member from the Citizenship Committee as of the date of the CRS decision?

  2. If the CRS’s decision applies retrospectively, are all official actions taken by the emergency Citizenship Committee member while in office rendered null and void as of the date of the CRS decision to rescind their appointment?

  3. If so, do all citizens whose citizenship applications were approved as a result of the emergency Citizenship Committee member’s membership on the Committee automatically lose citizenship status?

  4. If so, does that invalidate the results of any election in which such citizens cast decisive votes?

Summary of the Ruling
It is the opinion of the Court that rescissions of emergency appointments to the Citizenship Committee are not retroactive nor do they void the validity of actions taken by said emergency member while they held office. This is supported by the fact that a detailed reading of Citizenship Act 1.4 shows rescissions need not be retroactive, and further by the interests of minimising the potential disruption that retroactive rescissions would cause to the orderly administration of the region.

Chief Justice Kringle delivered the ruling, signed also by Justice Pronoun.

The High Court has been asked to evaluate the nature and practical effect of the rescission of emergency appointments to the Citizenship Committee when enacted by the Council on Regional Security. This request, structured in the form of four distinct questions, seeks to determine whether rescissions are retroactive and, if so, what effects this may have over relevant government processes.

The Citizenship Act establishes that the Prime Minister “may appoint an emergency member to handle any urgent matters of the committee” (Citizenship Act 1.4) in cases where no other member is available; it similarly establishes that the Council on Regional Security may “on security grounds only, rescind the Prime Minister’s appointment” (Citizenship Act 1.4) but it does not offer further guidance on the effect of such a rescission.

Petitioner has argued that rescissions are retroactive, making the point that “when a legal order is rescinded, it is rendered void ab initio” (Welly, 2023) and further noting that the Citizenship Act makes separate use of the terms ‘rescind’ and ‘remove’ when referring to the ouster of members of the Citizenship Committee, suggesting that the effects of both actions must therefore be different.

The Court acknowledges these arguments but differs in a number of ways.

While the Citizenship Act (hereafter the ‘Act’) does make separate use of the terms ‘rescind’ and ‘remove’, the fact is that the Act also makes use of the term ‘rescind’ twice within the same section. Section 1.4 uses the term ‘rescind’ to refer to ousters by both the Council on Regional Security and the Prime Minister:

The Council on Regional Security may, on security grounds only, rescind the Prime Minister’s appointment. (Citizenship Act 1.4)

The emergency member’s tenure will last until the Prime Minister rescinds the appointment (…). (Citizenship Act 1.4)

The argument could be made that both cases of rescission should be seen as retroactive, but the Court would differ for two reasons.

First, the latter provision says that “the emergency member’s tenure will last until the Prime Minister rescinds the appointment” (Citizenship Act 1.4), suggesting that their tenure lasts for a definite period of time that is then interrupted by the Prime Minister’s intervention. If this applies then what follows is that either rescissions are not retroactive or the term ‘rescind’ has two different meanings, the latter being an outcome that the Court finds to result in absurdity.

Second, there was extremely limited debate on the choice of terms for what would become Section 1.4, which lends credence to the proposition that the term ‘rescind’ may have been used as a stylistic choice rather than a true and meaningful one. A cursory review of the relevant history shows that Prime Minister Roavin proposed Section 1.4 as an executive order and presented it already fully drafted (Roavin, 2018) to the Cabinet, where there was no meaningful debate by the ministers of the time; the situation was similar in the Assembly, where there was no discussion on the mechanisms for the ouster of an emergency member.

These reasons could be seen as insufficient on their own, but together they begin to form a narrative. In addition to the above two, the Court notes that reading rescissions as being retroactive would make governance more disruptive and unpredictable, seeing how citizens could be removed without warning or fault of their own, and along with them the validity their votes in both the Assembly and regional elections could potentially be called into question. It is the Court’s view that, when faced with such a decision, it is best to err on the side of guaranteeing the rights of citizens and the orderly and predictable administration of regional governance.

In view of the above, the Court rules that rescissions of emergency appointments to the Citizenship Committee are not retroactive nor do they void the validity of actions taken by said emergency member while they held office, and therefore all further questions to this case are rendered moot.

Footnotes and References

  1. Citizenship Act; Article 1, Section 4 (2023). The MATT-DUCK Law Archive.

  2. Welly (2023). Brief amicus curiae from 04 November 2023. Retrieved from In re Emergency Citizenship Committee Appointments - #7 by Welly.

  3. Roavin (2018). Executive Order: LegComm. Retrieved from Executive Order: LegComm

Submission: 04 Oct 2023 | Determination: 18 Oct 2023 | Ruling: 01 Jan 2024