[2405.HQ] Constitutionality of the Resolution to Restore Regional Accountability 2

High Court
1

Your honors,

I come to you today to submit a Legal Question as per Article 4 of the Judicial Act (“JA”). As a current member of the South Pacific, I have standing to submit such a question in accordance with JA 4.2.

My question is: Does the Resolution to Restore Regional Accountability (“RtRRA”) violate Article III.2 of the Charter, specifically the provision against ex post facto laws?

My interpretation is principally simple. RtRRA explicitly states that individuals that had an amnesty granted to them before no longer may enjoy that amnesty. That means, RtRRA is an act that retroactively (re)criminalizes something, which is the very definition of an ex post facto law and therefore unconstitutional as per III.2 of the Charter.

RtRRA 1.4 states, in part:

(4) Those who […] are responsible for their statements, actions, or omissions leading up to and during the 2016 coup d’état.

RtRRA 1.4 explicitly states that “those” (which includes TGSP members) are now “responsible” for their actions, which means that those that had amnesty granted to them should no longer have that protection. This isn’t just my interpretation, I explicitly asked RtRRA’s author on Discord:

[4:59 PM] Roavin: Repeal the amnesty, as in, those that had amnesty granted to them no longer do?
[5:20 PM] Kringle: That’s what repeal means.

Encyclopædia Britannica states that amnesty is:

an act of grace by which the supreme power in a state restores those who may have been guilty of any offence against it to the position of innocent persons. It includes more than pardon, inasmuch as it obliterates all legal remembrance of the offence.

By recriminalizing those acts which had been explicitly legally forgiven/forgotten, RtRRA functions as an ex post facto law and is therefore unequivocally a violation of Charter III.2.

To give an example from the world beyond NationStates: In a recent ruling by the Supreme Court of the Philippines, the court declared that the amnesty granted to former senator Antonio Trillanes IV was valid and that its revocation through Proclamation No. 572, issued by former President Rodrigo Duterte, was unconstitutional. Specifically, the attempt to revive criminal cases against Trillanes after they were dismissed with finality was found to violate his constitutional rights against ex post facto laws and double jeopardy. This is quite similar to the RtRRA, which makes TGSP members that already had amnesty granted to them criminally prosecutable once more for those same acts.

In conclusion, this is a clear and obvious matter: RtRRA brazenly and unequivocally violates the Charter and must be declared null and void.

2
High Court of the South Pacific

Notice of Reception

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
2405.HQ

Reference Name
Constitutionality of the Resolution to Restore Regional Accountability 2

Request
Does the Resolution to Restore Regional Accountability (“RtRRA”) violate Article III.2 of the Charter, specifically the provision against ex post facto laws?

Submission: 24 July 2024

3
High Court of the South Pacific

[2404.HQ] Constitutionality of the Resolution to Restore Regional Accountability 2

Whereas this Court has been asked to exercise the judicial power vested in it by Article VII 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.

Associate Justice @Pronoun has been assigned as the primary Justice for this case, with Associate Justice @Griffindor as the secondary Justice.

The petitioner and interested parties may submit arguments with their views on this case no later than 2024-08-12T00:00:00Z, but the Court reserves the right to issue an opinion before then.

Submission: 24 July 2024 | Determination: 3 August 2024

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4

Your Honors,

I plan to submit a brief in this case and will do so by the Court’s announced deadline.

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5

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

6

With sincere apologies to the Court, I must ask leave for a few more days to prepare this brief. I have been absolutely swamped with RL obligations and have not had capacity to dedicate the time and attention that a brief on such a serious and complex matter requires. Would the Court be amenable to an extension of three days, i.e., to August 15?

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The Court is amenable to an extension until 2024-08-17T00:00:00Z.

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Your Honors,

I thank the Court for its forbearance in extending the deadline for this brief. I also apologize in advance for some repetitive language and citations between this brief and that which I filed in the previous iteration of this case. I re-include that content here not because I am worried your Honors will have overlooked it in my earlier brief, but rather for the historical record, so that a future reader can understand the full scope of the arguments presented in this case without referencing other case files. Without further throat clearing, I turn to the merits.

Petitioner’s challenge to the Resolution to Restore Regional Accountability should be rejected. First, the Resolution is not an ex post facto law. It is therefore fully consistent with the Charter. Second, even if this Court concludes that the Resolution does authorize ex post facto criminal proceedings, there is still no basis for declaring the Resolution “null and void” in its entirety as Petitioner requests. The Resolution has numerous civil applications that do not—and by their nature could not—violate the ex post facto clause. At most then, the Court should clarify that the Resolution cannot constitutionally be applied to authorize criminal proceedings for past conduct, but that its civil applications remain in force.

I. The Resolution is Not an Ex Post Facto Law

Contrary to Petitioner’s claims, the Resolution does not subject anyone to be “tried ex post facto” in violation of the Charter. See Charter III.(2). To see why requires clarifying the meaning of the Charter’s general prohibition on ex post facto trials. Much like the Bill of Attainder clause, the Charter does not expressly define the term “ex post facto.” But that is not particularly surprising. An ex post facto law is not a novel concept unique to our Charter; rather, it was a preexisting legal term of art with deep roots in the common law. See Collins v. Youngblood, 497 U.S. 37, 41 (1990) (noting that “ex post facto law” is “a term of art with an established meaning” dating back to at least the seventeenth century). Those who framed the Charter plucked the term from that context and adopted it as part of our law. And when “a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). Put differently, there was no need to define “ex post facto” laws in the Charter, as it simply incorporated the well-established meaning of that term. Since this Court has never issued an opinion interpreting the ex post facto clause, it is appropriate to consult external sources to ascertain its meaning.

To begin with, the prohibition on ex post facto legislation applies only to criminal laws. This limitation is supported by centuries of precedent. See, e.g., Collins, 497 U.S. at 41 (“Although the Latin phrase ‘ex post facto’ literally encompasses any law passed ‘after the fact,’ it has long been recognized” that it “applies only to penal statutes”); Watson v. Mercer, 33 U.S. (8 Pet.) 88, 110 (1834) (noting that “the phrase, ex post facto laws, is not applicable to civil laws, but to penal and criminal laws”); Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (opinion of Iredell, J.) (“[T]he true construction of the prohibition [on ex post facto laws] extends to criminal, not to civil, cases.”); 1 W. Blackstone, Commentaries on the Laws of England at 46 (1765) (describing the act of “making of laws, ex post facto” as “when after an action, indifferent in itself, is committed, the Legislator, then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it.”). The language of our Charter reinforces this long-established definition. It does not prohibit ex post facto laws in general, but only being “tried ex post facto,” Charter III.(2) (emphasis added), a clear reference to criminal trial, cf. Charter VII.(7) (“The High Court holds the sole power to conduct a criminal trial.”).

Moreover, only four categories of criminal laws are properly considered ex post facto. Specifically, a criminal law is impermissibly ex post facto if it:

(1) “[M]akes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.”

(2) “[A]ggravates a crime, or makes it greater than it was, when committed.”

(3) “[C]hanges the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”

(4) “[A]lters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”

Calder, 3 U.S. (3 Dall.) at 390 (opinion of Chase, J.); Collins, 497 U.S. at 42 (describing the categories set forth in Calder as providing “an exclusive definition of ex post facto laws”); Carmell v. Texas, 529 U.S. 513, 539 (2000) (admonishing that it would be “a mistake to stray beyond Calder’s four categories”).

The Resolution does not fall within any of the foregoing categories. Notice that each category refers to laws that impose different or greater criminal liability for past conduct than that which could have been imposed under the criminal laws that were in force at the time when such conduct was committed. The Resolution does no such thing: It creates no crimes; it imposes no punishments. Nor does it impose criminal liability of any sort on coup participants that is greater than or different from that which could have lawfully been imposed upon them at the time of their conduct. If an alleged coup plotter’s actions were innocent under the criminal laws that were in force in 2015, then such actions are still innocent—the Resolution does not criminalize them. Likewise, if an alleged coup plotter’s actions were criminal at the time but subject only to particular punishments, the Resolution does not add to or increase the severity of those punishments. And so on. The Resolution simply repeals the Amnesty, which is well within the Assembly’s constitutional authority to do. Insofar as repealing the Amnesty has any effect on an alleged coup plotter’s criminal liability, it is only that anyone whose actions were criminal at the time they were committed may no longer raise the Amnesty as a defense to prosecution for such actions. That’s it.

Importantly, the Resolution does not purport to authorize or make lawful current prosecutions for past conduct notwithstanding all other provisions of TSP law. For instance, a defendant prosecuted today for actions related to the coup might argue that the criminal laws in effect at the time of the coup have been repealed, such that no prosecutions can be lawfully instituted under them. See Great Council 2016 Continuing Resolution 1.(1) (providing that “[a]ll previous laws of the Coalition will no longer have any legal force.”). In other words, even if that defendant’s actions were criminal in 2015, they might move to dismiss the prosecution because the statutes making them criminal are no longer operative. Alternatively, if a prosecution were instituted under a criminal law enacted after the coup, the defendant might challenge that prosecution on the grounds that application of today’s criminal law to past conduct would subject them to an ex post facto trial. Those may be good arguments, but they have nothing to do with the Resolution’s constitutionality. The Resolution does not purport to override any and all legal limitations on the imposition of criminal liability for actions committed during the coup. It removes only one such limitation—the Amnesty. Removing that limitation is manifestly not an imposition of ex post facto criminal liability, even if other provisions of law would prevent such prosecutions.

The Petitioner seems to resist this argument, suggesting that the Resolution’s declaration that those involved in the coup are “responsible” for their actions implicitly authorizes prosecutions for those actions in violation of TSP law. Even if this were a plausible interpretation of the Resolution (and it’s not), this Court should adopt the more limited reading of the Resolution advanced above. Where an act of the Assembly is reasonably susceptible to multiple interpretations, one of which would raise serious doubts about the constitutionality of the legislation and the other of which would not, this Court should adopt the latter interpretation and reconcile the act with the Charter. See In re Application of the Regional Communications Act , 2001.HQ; cf. Charter VII.(5) (authorizing this Court to “reconcile contradictions within the Charter, constitutional laws, general laws, and Executive Orders, maintaining the least amount of disruption to the intended purposes of the contradictory parts.”). This interpretive principle accords due respect to the Assembly by rightly presuming that it intends to pass only constitutional legislation. It avoids unnecessary conflict between coordinate branches. And it reserves this Court’s authority to invalidate democratically enacted legislation—a power of “great gravity and delicacy” in a democratic society—to only clear cases of unconstitutionality. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 345 (1936) (Brandeis, J., concurring). When interpreted as simply repealing the Amnesty without altering any other legal defenses that may be available against prosecutions for past conduct, it is plain that the Resolution does not authorize any ex post facto trials.

II. The Resolution’s Civil Applications do not Implicate the Ex Post Facto Clause.

Even if this Court were to accept Petitioner’s argument that some applications of the Resolution authorize an ex post facto trial in violation of the Charter, that does not justify Petitioner’s requested remedy. The Petitioner asks this Court to declare the resolution “null and void” in its entirety. But there is no warrant for such a far-reaching ruling. A law is facially unconstitutional—and thus null and void in its entirety—only when it has no constitutional applications whatsoever. If some of a law’s applications are constitutional while others are not, then the proper course is for this Court to declare as much and limit the law’s reach to its permissible applications.

There is no doubt that the Resolution’s civil applications do not operate as ex post facto laws and are therefore fully constitutional. Indeed, the Petitioner does not even suggest otherwise, focusing his brief exclusively on potential criminal prosecutions. That makes sense. After all, as previously discussed, the ex post facto clause applies only to criminal laws; it has no bearing on the retroactive civil law. And the Resolution has numerous civil applications. For example, it enables the Council on Regional Security to consider a coup plotter’s past conduct in assessing whether they constitute a “significant risk to regional security” under the Citizenship Act. Indeed, the only time that the Resolution has been applied to date was in that civil context. See Review of the Rejection of Siberian Districts’ Citizenship Application, 24.03HR; see also Johannessen v. United States, 225 U.S. 227 (1912) (holding that a statute providing for retroactive revocation of citizenship was civil and therefore did not violate an an analogous ex post facto clause). As such, even on the erroneous view that application of the Resolution in criminal contexts operates as an unconstitutional ex post facto law, this Court should still reject Petitioner’s request to invalidate the Resolution in its entirety. Instead, it should clarify the limits of the Resolution’s constitutional application to civil contexts.

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Your honors,

I plan to respond within the next 1-3 days.

10

So noted.

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Your Honors,

this brief is filed in response to Welly’s brief. In summary, Welly’s definitions listed from the US Supreme Court are interpreted by Welly so narrowly as to be ahistorical to how the US Supreme Court operates itself; in fact, there are several cases of the US Supreme Court that have struck down laws not entirely dissimilar to RtRRA for ex post facto reasons. I also show that an amnesty repeal ipso facto violates ex post facto, and why Welly’s limited reading of III.2 is absurd.

I. The definition of ex post facto

Welly’s brief, in arguing against whether RtRRA violates ex post facto, relies on whether or not RtRRA itself is the act that would change the criminal status of an act or its punishment:

The Resolution does no such thing: It creates no crimes; it imposes no punishments. Nor does it impose criminal liability of any sort on coup participants that is greater than or different from that which could have lawfully been imposed upon them at the time of their conduct.

The flaw in Welly’s argument, however, is that they only apply those to direct effects of the specific law in question. It’s technically true that RtRRA does not directly create a crime or impose a punishment. However, in repealing the amnesty even to those that had previously received it, RtRRA does so via proxy, and even if done indirectly, this violates ex post facto. This interpretation has been upheld multiple times by the US Supreme Court, the very Court that Welly uses in their argument.

For example, in Lynce v. Mathis, 519 U.S. 433 (concerning a case in which Lynce was released from prison early due to a credit system, but was rearrested later because the credit system was repealed by the legislature), the US Supreme Court writes:

To fall within the ex post facto prohibition, a law must be retrospective—that is, “it must apply to events occurring before its enactment”—and it “must disadvantage the offender affected by it,” id., at 29, by altering the definition of criminal conduct or increasing the punishment for the crime, see Collins v. Youngblood, 497 U. S. 37, 50 (1990). In this case the operation of the 1992 statute to effect the cancellation of overcrowding credits and the consequent reincarceration of petitioner was clearly retrospective.

The 1992 statute mentioned in that quote also did not create a crime or impose punishment, however it reversed a previous possibility of lessened punishment that the petitioner had already taken advantage of. Other examples where the US Supreme Court upheld this principle are Weaver v. Graham, 450 U.S. 24 and Stogner v. California, 539 U.S. 607. Similar principles can also be found in UK case law, e.g. in R v. Smith [2005] UKHL 51.

In summary, that a reversal of a previously-granted benefit to an offender violates ex post facto protection is well-established in both US and UK case law.

II. The repeal of amnesty

The affected members of RtRRA are those who participated in the 2016 coup, thereby potentially committing a crime, and subsequently fulfilled the obligations of the amnesty granted in Assembly Resolution to Restore the Coalition of the South Pacific. RtRRA repeals their previously granted amnesty in its text. This is a fact and not disputed by Welly.

What amnesty is was never defined; various definitions exist which are fairly similar. The one I quoted in my initial submission, for example, specifies that an offense no longer exists in a legal sense. Other definitions see it as a pardon, in which the offense is not forgotten but rather forgiven. Going back to the Lynce v. Mathis tests: Repealing an amnesty is obviously retrospective, and no matter if the amnesty is seen as a form of pardon or as a form of legal amnesia, it disadvantages the affected members and therefore, as per Lynce v. Mathis, a repeal of an amnesty ipso facto violates ex post facto protections.

Welly further writes:

When interpreted as simply repealing the Amnesty without altering any other legal defenses that may be available against prosecutions for past conduct, it is plain that the Resolution does not authorize any ex post facto trials.

This is false, because it’s the very fact that the amnesty is repealed that violates ex post facto protections. The protections against ex post facto aren’t conditional on whether or not other defenses are potentially available, but rather they are a fundamental and unconditional right in democracies.

RtRRA repeals an amnesty (something Welly does not dispute) and therefore it is inherently unconstitutional.

III. Applicability

Welly argues:

[The Charter] does not prohibit ex post facto laws in general, but only being “tried ex post facto”

Even assuming Welly is using their own very limited definition of ex post facto, this is an absurd interpretation, because it would mean the Assembly could pass all the laws it wants no matter if constitutional or not, and only if acted upon would they be held to account. It’s also ahistorical, see e.g. HCLQ1804 in which the Legislator Committee Act was deemed unconstitutional by the High Court due to its substance and not by a specific application of it.

As established in HCLQ1805 which outlines the principles of statutory interpretation used by the High Court, the Court will eschew a literal common-sense reading of a law if it produces an absurdity. A reasonable person would see a Charter-level prohibition on being “tried ex post facto” to also include a prohibition on making laws that authorize or enable being tried (or punished) ex post facto.

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If the Court would permit me a very concise reply, I shall file it by this evening.

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That is amenable to the Court.

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Your Honors,

I thank the Court for permitting me to file this reply, as there is much to respond to in the petitioner’s learned brief. I have also added a single citation to one of this Court’s cases, In re Application of the Regional Communications Act, 2001.HQ, to my earlier brief.

There are two key points to which I would draw the Court’s attention.

First, the petitioner’s brief implicitly (and rightly) concedes that the Resolution is constitutional as applied in numerous contexts. There is thus no basis for the Court to declare it “null and void” and facially invalid.

To see why, consider how the petitioner frames the issue. The petitioner defines an ex post facto law as any legislation that results in the “reversal of a previously-granted benefit to an offender.” Proceeding from that excessively broad definition, the petitioner demarks the set of individuals to whom application of the Resolution would be unconstitutionally ex post facto:

Notice who and what are not included in that set of affected members. For one thing, it excludes all civil applications of the Resolution. This is unsurprising. As discussed in my opening brief, the prohibition on ex post facto trial applies only to criminal laws; the petitioner makes no effort to dispute this bedrock principle. What’s more, it even excludes applications of the Resolution in criminal cases where the alleged coup participant failed to fulfill the requirements to obtain amnesty that were set forth in the Resolution to Restore the Coalition, namely “good behavior and acknowledgement of culpability.” Because such individuals were never actually granted the “benefit” of amnesty, they cannot be retroactively deprived of that benefit by the Resolution.

As a result, even if the Court were to accept all of petitioner’s arguments, the most it could say about the Resolution’s constitutionality is the following: The Resolution cannot constitutionally be applied to prevent an individual who lawfully obtained amnesty pursuant to the terms of the Resolution to Restore the Coalition from raising that amnesty as a defense to a criminal prosecution for their involvement in the 2016 coup. To be clear, I disagree that the Court should say even that; as set forth in my opening brief, the Resolution is fully constitutional and does not authorize ex post facto prosecution as that term is properly understood. Regardless, such a specific subset of unconstitutional applications cannot justify completely invalidating a democratically enacted piece of constitutional legislation. If accepted by the Court, it would justify only declaring the constitutional limits of the Resolution’s application.

Second, the Court should reject the petitioner’s attempt to rewrite the Charter’s clear instruction that “[n]o member may be . . . tried ex post facto” in a way that the petitioner finds less “absurd.” The Charter means what it says–it prohibits trial pursuant to ex post facto criminal legislation, not the passage or very existence of such legislation. It is instructive to compare the language actually included in our Charter with similar constitutional language prohibiting ex post facto laws. See, e.g., U.S. Const., art. I, sec. 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.” (emphasis added)); Philippines Const., art. 3, sec. 22 (“No ex post facto law or bill of attainder shall be enacted.” (emphasis added)). Those provisions were designed to make unconstitutional the passage of ex post facto legislation in the first place. The drafters of our Charter could easily have adopted such an express prohibition. But they didn’t. They chose a different formulation, and this Court is bound to respect that decision. See In re Designation of Constitutional Laws, 1819.HQ (holding that “should there be a single literal, common sense meaning then the High Court will establish such as the law.”); On Constitutional Laws, 1609.HQ (explaining that the Court’s role in answering legal questions is “not to overwrite laws, but to interpret them.”).

In any event, there is nothing “absurd” about adjudicating the constitutionality of allegedly ex post facto legislation in the context of individual criminal trials. On the contrary, that’s how many such challenges would naturally arise. Rarely does a legislature pass a law at time 1 that provides: “Anyone who engaged in conduct X before time 1 is guilty of a crime.” Such a law would be entirely ex post facto in its operation and thus facially unconstitutional, but also somewhat odd. Instead, criminal laws usually provide that: “Anyone who engages in conduct X is guilty of a crime.” Then, the question of ex post facto application arises when a person is indicted for committing conduct X but claims that they did so prior to time 1, such that the law cannot constitutionally be applied to them. Thus, the temporal limits of any given criminal statute are frequently worked out on a case-by-case basis in individual criminal trials. Indeed, numerous constitutional prohibitions on ex post facto prosecution are written in ways that acknowledge this fact. See, e.g. India Const., Part III, sec. 20 (“No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence” (emphasis added)); Canada Charter of Rights and Freedoms, Sec. 11(g) (“Any person charged with an offence has the right not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law” (emphasis added)).

To be sure, under TSP law, an individual can always file a legal question with this Court asking if their being tried for particular past conduct would amount to an unconstitutional ex post facto trial. See Judicial Act 4.(1) (authorizing the Court to answer legal questions about “the applicability of law to concrete or hypothetical situations.”). But the fact that someone can obtain an advance ruling as to whether being tried for particular conduct would violate one of their rights under the Charter does not change the nature of that right. It is a right to be free from trial ex post facto, not a right to be free from the passage or existence of ex post facto legislation.

Petitioner’s citation to Justiciability of Legislator Application Appeals, 1808.HQ, is inapposite. In that case, the Court invalidated the Legislator Committee Act because that statute “prohibit[ed] certain members from exercising the right to vote or hold office, but [was] not properly labeled as a constitutional law.” In other words, the Legislator Committee Act was facially unconstitutional. It was a general law that purported to authorize the Legislator Committee to regulate voting and holding office, but the Charter provided that only constitutional laws could do that. Thus, the Legislator Committee Act could not constitutionally be applied in any case, to anyone. It had no constitutional applications and thus was invalidated in its entirety. That is simply not the case with the Resolution, nor is such a result commanded by the Charter’s relatively narrow prohibition on being “tried ex post facto.”

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The Court thanks Petitioner Roavin and amicus curiae Welly for their briefs and would welcome further briefing focused on the following questions.

A wide range of sources describe an ex post facto law or application of law as operating ‘retroactively.’1 Most sources assert that retroactivity should be judged against the time of the alleged crime; in other words, “the relevant point in time for determining whether a law applies retroactively is the time the offense was committed.”2 Others, however, contend that retroactivity can be judged relative to the time the law in question was enacted; that is, a law that “deprives persons accused of crime of some lawful protection to which they have become entitled”3 is an ex post facto law even if such protection was not present at the time of the alleged crime but rather gained afterward.

  1. To what extent do generally understood definitions of ex post facto applications of law — in either typical usage or in regional usage specifically4 — provide for a law to be considered retroactive if it solely impacts legislation or legislative acts which were not enacted at the time of the alleged crime?
  2. To what extent do generally understood principles of ex post facto prohibitions comport with the revocation of a lawful protection after it has been gained?5

The Charter provides that in resolving contradictions between itself and constitutional laws, the High Court should “maintain[…] the least amount of disruption to the intended purposes of the contradictory parts.”6

  1. Petitioner has argued that the repeal of an amnesty is unconstitutional. Does every provision of the Resolution to Restore Regional Accountability (“the Resolution”) operate to repeal the amnesty, or does the Resolution contain any provisions that are not ex post facto (in any application)?
  2. Suppose the Court were to find that the Resolution is unconstitutional in some applications but constitutional in others. Opinions delivered by the Court for legal questions carry “the full force of law.”7 Is this force sufficient for an opinion to restrict the scope of the Resolution to constitutional applications only, or must the Court void the Resolution in its entirety, and thus also prevent its constitutional applications, in order to prevent such unconstitutional applications?

1 See Merriam-Webster, Inc., Ex Post Facto Definition & Meaning; Encyclopædia Britannica, Inc., Ex Post Facto Law; Wikipedia contributors, Ex Post Facto Law; Legal Information Institute, Ex Post Facto; Calder v. Bull, 3 Dall. 386, 391, noting that “[e]very ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law.”
2 Legal Information Institute, ArtI.S9.C3.3.3 Retroactivity of Ex Post Facto Laws. See also Calder, supra, at 390; Weaver v. Graham, 450 U.S. 24, 30, noting that “[c]ritical to relief under the Ex Post Facto Clause is […] the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated” (emphasis supplied).
3 Black’s Law Dictionary (5th ed.), p. 520, via People v. Sandiganbayan, 286 Phil. 347. See also Stogner v. California, 539 U.S. 607, 613–614, describing Calder’s second category of ex post facto laws as “applying where a new law inflicts a punishment upon a person not then subject to that punishment, to any degree.”
4 Charter Art. III, § 2 has remained unchanged and, to the Court’s present knowledge, not directly debated, since its introduction in 2016 (sandaoguo, Working Group Drafts). Petitioner and amici curiae, however, may find use in the legislative record surrounding the first introduction of ex post facto protections into the Charter (Hileville, Amendment to the Bill of Rights), and if felt to be relevant, are welcome to brief the Court on the extent, if any, to which said record should be instructive to the Court’s present opinion.
5 See Weaver, supra, at 28–29, noting that the ex post facto prohibition “assure[s] that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed;” cf. Stogner, supra, at 611, noting the importance of “‘fair warning’ […] that might have led [the defendant] to preserve exculpatory evidence.” See also Calder, supra, at 391, arguing “I do not consider any law ex post facto within the prohibition that mollifies the rigor of the criminal law, but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction.”
6 Art. VII, § 5.
7 Judicial Act, Art. 4, § 3.

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I thank the Court for its insightful questions and give notice that I plan to file a brief in response. Does the Court have a deadline for such responses? I will endeavor to be prompt, but I have a week of heavy travel and RL obligations coming up, which may cause me to be slower than I would like.

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Briefing by 2024-09-01T00:00:00Z would be ideal, but more time is certainly allowable. However, an estimate of a suitable timeframe (or a specific requested extension, if preferable) would help the Court progress in its deliberation.

The Court also notes that, insofar as the questions posed are intended to be related as grouped, further briefing need not laboriously expound commonalities in argument responding to each question, and even need not respond to each question individually if doing so would not make sense in the context of the substance of a brief.

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Your honors,

the intent of ex post facto protection is not necessarily to prohibit retroactive laws in general, but rather to protect individuals from retroactive penalization. In many cases, the phrasing of such laws expresses this in terms of laws written at the time an alleged crime was committed since that is the primary concern of such protections, but time and time again, across the world, independent Courts have interpreted such laws based on the underlying intent - that is, to prohibit retroactive penalization. If a punishment is lessened or abolished through an act of law, and that punishment is later reinstated, it is just as much retroactive punishment as it would have been if the act had only been criminal in a later law.

Such an interpretation also follows from the Rule of Lenity, a legal principle in US and UK common law which states that anything unclear should be interpreted in favor of the accused.

European countries often have laws to prescribe a similar principle, that of “lex mitior” which states that in the face of new laws or amended laws, the milder of them should apply to an accused. While this principle doesn’t directly apply to TSP’s US/UK-inspired legal traditions, it demonstrates that the underlying idea of not being able to retroactively remove a cessation of punishment is fairly universal.

I have given several examples where Courts have interpreted ex post facto protections in this way, even if the law as written refers to the acts committed: Lynce v. Mathis in the US, R v. Smith [2005] UKHL 51 in the UK, and the unconstitutionality Proclamation No. 572 in the Philippines. But other examples exist too, e.g. European Court of Human Rights: Del Rio Prada v Spain [2013] ECHR 307.

And many laws and treaties are in fact written in such a way as to either disallow retroactively reversing a lessening of penalization, or to apply “lex mitior”. For example, Article 29 of the Albanian Constitution explicitly allows retroactive laws only if they are favorable to the accused (“A favorable criminal law has retroactive effect”), while Article 15 of he Arab Charter on Human Rights prescribes lex mitior (“In all circumstances, the law most favorable to the defendant shall be applied.”)

Now there are situations in real world case law where retroactive punishments (sometimes in the form of voiding an amnesty) are or were considered permissible. The most notable example are the Nuremburg trials, of course, but other examples exist (e.g. in Greece, Brazil, Uruguay). However, there is one key difference to note here: Where such retroactive punishments are allowed, this is generally because the accused have committed grave violations of human rights. This is something that in the game world of NationStates is simply not possible, therefore that is not applicable here.

So to answer the first and second question, the intent as well as frequent interpretations of ex post facto protections, insofar as the concerned crime does not relate to grave human rights violations, do consider a law retroactive and in violation even if it only affects later legislative acts surrounding the penalization of a crime.

To answer the third and fourth questions: I don’t think every provision of RtRRA is necessarily unconstitutional.

  • 1.1 only states the view of the Assembly. This is fine.
  • 1.2 states that an amnesty was granted. This is also fine. This section also states that the Assembly is unclear about whether the amnesty is still in force, though that in and of itself is not unconstitutional either.
  • 1.3 repeals the clause which specifies the amnesty and the conditions for attaining it. Since this includes not just the offer of amnesty but the amnesty itself (as was the author’s admitted intent), that is unconstitutional.
  • 1.4 is the complement to 1.3 and states that affected members are now “responsible for” those actions, despite them not being responsible before then. Even if this were not the plain meaning of 1.4 (and it is), it wouldn’t otherwise be meaningful without 1.3 and therefore is unconstitutional as well.
  • 2.1 declares that RtRRA is constitutional law, which is not unconstitutional.

However, while the Court is authorized to invalidate laws in part rather than only in full, this doesn’t mean that this is necessarily “the least amount of disruption”, just because it’s the least amount of characters that are invalidated.

I’ll go back to my previous example of 1808.HQ. Welly claims that the entire Legislator Committee Act was unconstitutional and could only have been invalidated in full, but that is entirely false because the problematic part surrounded those where an applicant could be rejected. The rest of the machinery described in that Act was not unconstitutional.

Justice Sandaoguo could have struck out only those parts, but that would have been much more disruptive, as it would have left a dysfunctional committee in place which had no right to reject an applicant. Instead, Justice Sandaoguo voided the entire Act and authorized a temporary applications process, with the reasonable expectation that the Assembly will make the necessary changes to the Legislator Committee Act, as it later did.

The Court could simply strike out 1.3 and 1.4 from RtRRA but not void the resolution in its entirety. It is certainly authorized by the Charter to do so. However, that’s not necessarily the least disruptive approach. 1.3 and 1.4 are the only operative clauses in RtRRA, and also the unconstitutional ones. Striking only them out would leave a resolution on the books which has no meaning, no operative power, and contains a question in 1.2 which this Court will have answered as part of this case. The Assembly would be compelled to amend this shell resolution.

But if the Court has a reasonable expectation that the Assembly would pass an updated, constitutional version of RtRRA after its invalidation, and since RtRRA without its unconstitutional parts no longer has any operative clauses remaining, it would be simpler to simply strike down the resolution in its entirety and pass the issue back to the Assembly.

19

Your Honors,

I should be able to post my reply—to both the Court’s questions and the Petitioner’s recent submission—by tomorrow night. I hope that is amenable to the Court’s schedule.

20

That’s fine.