[2404.HQ] Constitutionality of the Resolution to Restore Regional Accountability

High Court
14
High Court of the South Pacific

[2404.HQ] Constitutionality of the Resolution to Restore Regional Accountability

Petition
Does the Resolution to Restore Regional Accountability (“RtRRA”) function as a Bill of Attainder, which makes it unlawful as per Article III.2 of the Charter?

Summary of the Ruling
It is the opinion of the Court that the Resolution to Restore Regional Accountability does not operate as a bill of attainder. A bill of attainder, as members of the Coalition are shielded from by Charter III(2), is a law that (1) targets a member of the South Pacific or a definite and finite group of members of the South Pacific; (2) names, or makes easily identifiable, the member(s) being targeted; and (3) either (i) declares the targeted member(s) to be guilty of a crime or (ii) imposes, among its primary intents and effects, criminal punishment. The Resolution to Restore Regional Accountability neither legislatively declares guilt nor imposes punishment.

Justice Pronoun delivered the ruling, signed also by Justice Griffindor.

I

In February 2016, the Assembly adopted the Assembly Resolution to Restore the Coalition of the South Pacific (the 2016 Resolution), which, in relevant part, stipulated that “[a]ll individuals involved in the forum move and the Transitional Government” preceding the resolution “will receive a general amnesty for their actions.”1 In March 2024, the Assembly adopted the Resolution to Restore Regional Accountability, repealing the aforementioned section of the 2016 Resolution and re-establishing the responsibility of certain individuals involved in “the forum move and the Transitional Government” for their actions. The question before the Court is whether, by doing so, the Resolution to Restore Regional Accountability operates as a bill of attainder.

II

Members of the Coalition are afforded protection from bills of attainder by Article III, Section 2 of the Charter, under which “[n]o member may be subject to any bill of attainder.”2 The established meaning of the term ‘bill of attainder,’ the context of the protection against bills of attainder within regional law, and the legislative history of bills of attainder in the South Pacific all support a single, consistent understanding of this protection. A bill of attainder is a law that: (1) targets a member of the South Pacific or a definite and finite group of members of the South Pacific; (2) names, or makes easily identifiable, the member(s) being targeted; and (3) either (i) declares the targeted member(s) to be guilty of a crime or (ii) imposes, among its primary intents and effects, criminal punishment.

A

The term ‘bill of attainder’ is hardly unique to the laws of the Coalition. Our laws use all manner of words in the English language without defining each and every word, just as any English speaker would. Naturally, when the law uses a term, it implicitly adopts the generally understood meaning of that term. The corpus of regional law does not define the meaning of ‘majority’ or ‘precedence’ or ‘individual’ because it does not need to; the meanings of those terms are readily understood by English speakers. Similarly, when the Assembly uses an existing legal term of art such as ‘bill of attainder,’ it naturally adopts the existing meaning of the term.

The history of bills of attainder is rooted in English law. Dating back to at least the 14th century, bills of attainder enabled Parliament to enact legislative findings of criminal guilt and to authorize death, among other consequences, as punishment. By contrast, similar legislative acts that stopped short of imposing the death sentence were known as bills of pains and penalties.3,4 Needless to say, death as a criminal punishment is well outside the scope of the laws of the Coalition. Instead, the Charter’s prohibition of bills of attainder should be construed more broadly so as not to depend on imposition of the death penalty, in much the same way that bills of attainder have been more expansively defined in a range of real-world common law jurisdictions. Institutions in countries like the United States,5 Canada,6 Australia,7 and the Philippines8 have either construed bills of attainder more broadly so as to include bills of pains and penalties or have held both categories of laws to similar standards of legal validity. Many of these courts have, borrowing language from the Supreme Court of the United States and using notably similar language, defined a bill of attainder as a legislative act “which inflicts punishment […] without a judicial trial.”9,10,11

These holdings make it clear that protections against bills of attainder have been broadly and consistently understood as protections against legislative circumvention of judicial trials. In other words, these protections shield citizens from “trial by legislature,”12 and therefore, logically, from legislation that summarily inflicts effects that fall within the province of judicial trial — namely findings of criminal guilt and impositions of criminal punishment.

B

Just as the protection against bills of attainder should be understood within the context of accepted usage of the term, so too does its context within regional law illuminate its meaning. The Charter does not refer to bills of attainder in isolation, but rather within an enumerated list of protections contained in Article III, Section 2, which protects “[t]he right to a fair trial and defense against criminal accusations.”13 These specifically enumerated protections, on a plain reading, are included within this section precisely because they serve to protect the broader right to a fair criminal trial and defense. In guarding against bills of attainder, then, the Charter seeks to prohibit a specific means by which the legislature could infringe upon Article III rights.

A necessary inference from this understanding is that bills of attainder must “apply either to named individuals or to easily ascertainable members of a group.”14 A law that does not specifically target one or more members is not a bill of attainder; any law that defines a crime will, by its very nature, target those individuals who commit the crime, and were it not for laws criminalizing certain actions, there would be no need for criminal trials in the first place. For a law to be adjudged a bill of attainder, it must target one or more members with specificity; that is, bills of attainder are characterized by targeting definite and finite individuals or groups such as by naming the targeted members explicitly, rather than targeting nebulous and indefinite groups such as ‘all individuals who misuse public office.’

A plain reading also necessitates the inference that bills of attainder declare criminal guilt or impose criminal punishment, which are the consequences of the judicial trials that the Charter protects. Criminal sentences, however, encompass a wide range of plausible penalties. For all crimes other than treason and conduct violations, the Criminal Code merely requires that punishments be proportionate to the crime,15 meaning that the sentences imposed need not be generally, historically, or typically considered to be punitive. Given this breadth, punishment can not be practically bounded within any finite set of penalties. Rather, punitive laws are highlighted by their legislative purposes, or lack thereof, as illuminated through functional and motivational tests. While these considerations are well-adopted in the real world,16 they also follow from common-sense statutory interpretation.

A functional test plainly reveals laws that have no legitimate non-punitive purposes. Laws can further legitimate legislative, regulatory, policy, or other non-punitive interests, but simple logic would indicate that if a law serves no such non-punitive purposes, then “it is reasonable to conclude that punishment of individuals disadvantaged by the enactment was the purpose of the decisionmakers.”17 A motivational test, meanwhile, reveals laws which the legislature record indicates are intended as punishment. Certainly, if the Assembly intends a law to be punishment for a perceived crime, then that law seeks to bypass judicial trial and clearly falls within established understandings of bills of attainder.

C

The Charter has not always sheltered members of the Coalition from trial by legislature. Its current protections were proposed18 and adopted19 in the Great Council of 2016 with neither discussion about nor opposition to their introduction, and Article III, Section 2 has not been amended since then. These protections, however, were a novel addition to the constitutional rights of South Pacificans. The Charter as it existed prior to the 2016 Great Council made no reference to bills of attainder.20 Neither did previous versions of the Charter from 2012,21 2010,22 2008,23, 200724 or 2006;25 after all, the Assembly only added a bill of rights in the Charter in 2013.26

In 2012, four bills of attainder were proposed in the Assembly in 2012,27,28,29,30 although two were intended as jokes.31 While the legislative history is sparse, these proposals do corroborate other understandings of bills of attainder. Each proposal identified a specific target, listed a range of grievances, and imposed a clear punishment of banishment from the region and its forums. Given that the Assembly did not refer to these bills when adopting the current bill of attainder protections, it is unclear how influential they were in drafting the Charter. Nevertheless, their structure closely mirrors other understandings of bills of attainder based on their established meaning and on existing regional law, lending further credence that those interpretive approaches comport well with bills of attainder as historically understood and debated by the Assembly.

III

In light of this definition, the Resolution to Restore Regional Accountability is not a bill of attainder. The Resolution does not declare any member of the South Pacific to be guilty of a crime, nor does it impose punishment.

While Article 1, Section 1 of the Resolution uses the term ‘unlawfully,’ this terminology should not be construed to indicate criminality. The body of regional law reaches well beyond the confines of criminal law, and not all actions that contradict regional law are criminal. Instead, the Resolution’s reference to unlawful conduct should be understood using the plain meaning of the term — which Merriam-Webster defines as “not lawful” or “illegal,”32 which is to say, “not according to or authorized by law”33 — and cannot be understood as a declaration of criminal guilt.

Article 1, Section 4 of the Resolution certainly targets a definite and finite group of individuals — namely “senior or junior members of the Cabinet at any point during the term that began on 01 December 2015 and ended on 09 February 2016, as such offices were defined in the Charter as it was written at the time of the 2016 coup d’état, as well as any other individual who actively supported the same”34 — and, insofar as those individuals may be members or could become members, they would be entitled to the Charter’s protection against bills of attainder. The Resolution, however, does not impose punishment either in its function or its motivation.

Functionally, the Resolution merely establishes that the targeted individuals are “responsible for their statements, actions, or omissions”35 up through early 2016, serving a clear nonpunitive legislative purpose of “repeal[ing] the Amnesty Resolution”36 of 2016. Amending or repealing prior legislation is a clear legislative purpose that is regularly pursued without the appearance of punitiveness. Responsibility for one’s actions, furthermore, is hardly punishment, for common sense holds that individuals are, by default, responsible for their actions. After all, it is only logical that an individual is responsible for their own actions and statements unless otherwise provided for by law.

Motivationally, the legislative record evinces a clear intent to avoid the preemption of judicial trial, with the coauthors of the Resolution stating, for instance, that “[n]o judicial process is automatically initiated or concluded because of this resolution,”37 that determination of “whether any of those statements, actions, or omissions amount to a criminal offense remains the exclusive province of the High Court,”38 and that the Resolution “doesn’t charge anyone with any crimes.”39

IV

The Charter’s protection against bills of attainder, while younger than some other rights and freedoms guaranteed by the Charter, forms an integral component of the Charter’s guarantee of a right to a fair trial and criminal defense. Its provisions are rich in legislative and definitional context, and while it may not spring to life in this case, today, this hitherto untested provision of the Charter gains renewed definition.

It is so ordered.

Footnotes and References

  1. Assembly Resolution to Restore the Coalition of the South Pacific (2016, February 9). Retrieved 31 August 2024.
  2. Charter of the Coalition of the South Pacific; Article III, Section 2. Retrieved 31 August 2024.
  3. Levy, L. W. (1999). “Bills of Attainder.” Origins of the Bill of Rights, pp. 68–78. Yale University Press.
  4. Editors of Encyclopaedia Britannica (2004, June 18). “Attainder.” Encyclopedia Britannica.
  5. Cummings v. Missouri, 71 U.S. 277 (1867).
  6. Parliament of Canada (1995, November 28). “Bill Concerning Karla Homolka.” Senate Debates, 35th Parliament, 1st Session, vol. 3, p. 365.
  7. Polyukhovich v. Commonwealth (“War Crimes Act case”) [1991] HCA 32; (1991) 172 CLR 501 (14 August 1991).
  8. Fuertes v. Senate of the Philippines, 868 Phil. 117 (2020).
  9. Ibid.
  10. Polyukhovich v. Commonwealth, supra.
  11. Cummings v. Missouri, supra.
  12. United States v. Brown, 381 U.S. 437 (1965).
  13. Charter of the Coalition of the South Pacific; Article III, Section 2. Retrieved 31 August 2024.
  14. United States v. Lovett, 328 U.S. 303 (1946).
  15. Criminal Code; Article 3. Retrieved 1 September 2024.
  16. Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
  17. Id., at 476.
  18. sandaoguo (2016). Working Group Drafts.
  19. Awe (2016). “RE: Great Council 2016: Voting.” Great Council 2016: Voting.
  20. The Charter of The Coalition of The South Pacific (2016).
  21. Charter of The South Pacific (2012).
  22. Charter of The South Pacific (2010).
  23. Charter of The South Pacific (2008).
  24. Charter of The South Pacific (2007). Archived 27 July 2024.
  25. Charter of The South Pacific (2006). Archived 27 July 2024.
  26. Southern Bellz (2013). TSP Residents Bill of Rights.
  27. Belschaft (2012). Bill of Attainder: Punk Daddy.
  28. Belschaft (2012). Bill of Attainder: Anur-Sanur.
  29. Belschaft (2012). Bill of Attainder: Antariel.
  30. Milograd (2012). Bill of Attainder: Belschaft.
  31. Belschaft (2012). “RE: Bills of Attainder.” Bills of Attainder.
  32. Merriam-Webster, Inc. Unlawful Definition & Meaning. Retrieved 1 September 2024.
  33. Merriam-Webster, Inc. Illegal Definition & Meaning. Retrieved 1 September 2024.
  34. Resolution to Restore Regional Accountability; Article 1, Section 4.
  35. Ibid.
  36. Welly (2024). “Post #6.” [2411.AB] Resolution to Restore Regional Accountability.
  37. ProfessorHenn (2024). “Post #4.” [2411.AB] Resolution to Restore Regional Accountability.
  38. Welly (2024). “Post #6.” [2411.AB] Resolution to Restore Regional Accountability.
  39. Kris Kringle (2024). “Post #47.” [2411.AB] Resolution to Restore Regional Accountability.

Submission: 18 Jul 2024 | Determination: 19 Jul 2024 | Ruling: 11 Sep 2024