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

High Court
22
High Court of the South Pacific

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

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

Summary of the Ruling
It is the opinion of the Court that the Resolution to Restore Regional Accountability enables unconstitutional ex post facto trial in some applications. In general, a member is tried ex post facto if they are tried for an act or omission that was not a criminal offense at the time it was committed, or if they are subject to a heavier penalty than was applicable under law at the time the criminal offense was committed. This case implicates the first category. In 2016, the Assembly granted amnesty for certain actions, erasing them from the eyes of the law. In the context of a criminal trial, that amnesty cannot now be revoked to restore those actions without unconstitutionally creating criminal liability where, in the eyes of the law, none existed at the time.

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

I

On January 31, 2016, the Cabinet announced that the Coalition was no more. In its place stood the newly declared Transitional Government of the South Pacific, led by the Cabinet.[1] Ten days earlier, the Cabinet had, among other actions, unilaterally created a new forum, redirected the forum’s existing domain name to the new forum, and removed Kringalia from the Committee on State Security. Three days earlier, the High Court had found those actions to be unlawful.[2] Now, the Cabinet had decided that it would no longer be the Cabinet of the Coalition of the South Pacific.

There is a distinction, however, between unlawful and criminal. The Court never considered, let alone adjudicated, any questions of criminal liability arising from the forum move and the Transitional Government, for in February 2016, the Assembly adopted the Assembly Resolution to Restore the Coalition of the South Pacific, which, in relevant part, granted a “general amnesty” to “[a]ll individuals involved in the forum move and the Transitional Government.”[3] But in March 2024, the Assembly passed the Resolution to Restore Regional Accountability, repealing the provision that granted the amnesty, and explicitly re-establishing the responsibility of Cabinet members for their actions.[4] The question before the Court is whether, in doing so, the 2024 resolution unconstitutionally enables members to be tried ex post facto.

II

For over four centuries, the term ex post facto has referred to action taken “after the fact,” or “retroactively.”[5] For over two centuries, the term has had a place in both English common law[6] and American constitutional law.[7] For over three-quarters of a century, nations across the world have committed to avoid ex post facto punishment.[8] And for almost a decade, the Coalition has done the same.[9]

While our laws do not explicitly define ex post facto trial, the historical, legal, and conventional context surrounding the term illuminates its meaning. A member is tried ex post facto if they are tried for an act or omission that was not a criminal offense at the time it was committed, or if they are subject to a heavier penalty than was applicable under law at the time the criminal offense was committed.

A

Today, the protection against ex post facto trial resides within Article III, Section 2 of the Charter, which establishes that “[n]o member may […] be tried ex post facto” (italics added).[10] But the Charter’s ex post facto protections do not stand alone. Article III, Section 2 concerns itself with more than ex post facto trial, protecting “[t]he right to a fair trial and defense against criminal accusations” more broadly.[10:1] On a plain reading, prohibiting ex post facto trial is merely one specific provision that helps protect the right to a fair trial. Why, then, is an ex post facto trial not a fair one?

On this subject, the history of the Coalition offers only sparse but nevertheless informative commentary. Members of the Coalition voted on a 2007 General Assembly resolution about ex post facto laws,[11] but it would be another five years before the issue was considered with respect to the Coalition’s own laws. In 2012, Magistrate Gandallfia defined ex post facto application of law as “creat[ing] a new crime” or “chang[ing] the severity of [a] crime,” but noted that the Coalition had no prohibition against ex post facto laws.[12] That absence received renewed attention in 2015, when the High Court recommended that “ex post facto law should not apply in the South Pacific” (italics added).[13] Today, a legislative recommendation from the judiciary may raise the specter of violating the separation of powers, but at the time, the Court was legally empowered to “make recommendations to the Assembly.”[14] And the Assembly heeded this recommendation. Three weeks later, the Assembly amended the Charter to prohibit ex post facto application of law.[15]

Comments from justices and legislators regarding the recommendation and amendment reveal some of the reasoning behind them. In chambers, Justice Hopolis opined that “[i]t seems inherently unfair to be charged with a crime that wasn’t a crime when you did it.”[16] In the Assembly, Legislator Sopo expressed the same sentiment, arguing that “[i]f something is not illegal when you do it, it’s not fair to try you for it later when it is.”[17] But why was it unfair? Justice Aramanchovia’s commentary suggested an answer: “[n]obody can predict the future.”[16:1]

That sentiment echoed centuries of real-world common law. It is not surprising, then, that the Assembly did not explicitly define the term ex post facto. Just as the Assembly need not include a dictionary to define each word within the corpus of regional law, it also need not explicitly define existing legal terminology to adopt the existing meaning of the term. ‘Ex post facto’ is a term of art that has held an established legal meaning since at least the 18th century,[18] and its common law history reflects the same principle described by Justice Aramanchovia. In 1765, Sir William Blackstone — a leading authority on English common law[19] — noted that ex post facto laws are unjust precisely because “it is impossible [to] foresee” that an action which is not a crime when it is committed would later be criminalized.[6:1] In other words, ex post facto laws deprive defendants of “fair warning” at the time of their actions that those actions were crimes.[20]

Consequently, a trial held for an act or omission that did not constitute a crime at the time of its commission constitutes trial ex post facto. Undoubtedly, if regional law did not criminalize an act or omission at the time it was committed, then a defendant could not depend on the law to provide fair warning of its criminality. This category of ex post facto trial is one whose injustice has been expounded in the common law tradition for centuries and which served as an explicit argument in favor of prohibiting ex post facto application of law in the Charter.

B

Most formulations of ex post facto protections do not stop there. Instead, they also include what Magistrate Gandallfia described as “chang[ing] the severity of [a] crime.”[12:1] In other words, it is unconstitutional to impose “a greater punishment, than the law annexed to the crime, when committed.”[21] Unlike the first category of ex post facto trial, this second category deals with acts and omissions that were already crimes at the time of their commission, but nevertheless forbids those crimes from being punished more harshly than was originally allowed.

This category, too, is rooted in history. As early as 1777, Richard Wooddeson — Blackstone’s successor[21:1] and “one of the great scholars of the common law”[22] — described an additional category of ex post facto laws that “imposed a sentence more severe than could have been awarded” at the time of the crime.[23] The Supreme Court of the United States soon adopted this formulation,[21:2] as did contemporary legal commentators. Since then, the Supreme Court has repeatedly reaffirmed this category.[22:1]

Internationally, this category has achieved consistent recognition even where other categories have not. The Universal Declaration of Human Rights, referenced by the High Court in 2015,[13:1] has documented the international community’s commitment to prohibiting ex post facto punishment as a violation of human rights since its adoption in 1948; the Declaration bars the imposition of “a heavier penalty than […] applicable at the time” of commission.[8:1] In the decades since then, this category of ex post facto punishment has been further recognized in, inter alia, the International Covenant on Civil and Political Rights, adopted in 1965;[24] the African Charter on Human and People’s Rights, adopted in 1986;[25] and the European Convention on Human Rights, adopted in 1953.[26]

While this category was never explicitly referenced in the legislative record, its real-world context shows that it is nevertheless widely understood as an integral part of ex post facto protections. In the United States, for instance, the Supreme Court’s ex post facto jurisprudence has mostly concerned claims not to retroactive criminalization, but rather to retroactive increase of punishment.[27] And for good reason. Just as defendants are deprived of fair warning of the criminality of their actions when the crime is retroactively defined, defendants are also deprived of fair warning of the punishment for their actions when the punishment is retroactively increased.[20:1]

This second category of ex post facto punishment runs just as contrary to the core beliefs of the Coalition as the first category. Predictability in governance is a foundational principle of the Charter and one that the Court has repeatedly embraced over the years.[28][29][30][31][32] An individual who takes an action has no way to predict the future; they can only predict the consequences of that action from the current corpus of regional law. Just as they cannot predict that a currently lawful action will later become criminal, they similarly cannot predict that the currently prescribed punishment for a crime will later become heftier.

C

These two categories are linked by a common thread of retroactivity, but that alone is insufficient to define ex post facto trial. After all, a prohibition on ex post facto trial only literally prevents trial ‘after the fact.’[21:3] But after what fact?

In some sense, any criminal trial is retroactive, because the Court adjudges allegations of criminal acts after the fact of their commission. Any legislative amendment is retroactive, because the Assembly alters the law after the fact of its adoption. Any appeal of a judicial case is retroactive, because the Court amends its jurisprudence after the fact of its issuance. It is all too easy, for the sake of argument, to define the reference point of retroactivity out of convenience rather than principle. But the principle is clear. The relevant point in time in questions of ex post facto retroactivity is the time when the act or omission in question was committed.

This understanding is well-established in the real world. As Blackstone explained, ex post facto protections concern actions that were “innocent when done.”[6:2] In the United States, Alexander Hamilton, writing in Federalist 84, assailed the tyranny of punishing “things which, when they were done, were breaches of no law” (emphasis added).[33] The Supreme Court of the United States has similarly held that the relevant point in time for ex post facto retroactivity is the time the offense was committed.[34] Other countries with English-language laws have followed suit. For example, ex post facto protections reference the time of the act or omission in Canada,[35] India,[36] and Australia.[37] Internationally, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and People’s Rights, and the European Convention on Human Rights all reference the law that existed “at the time when [the alleged crime] was committed.”[8:2][24:1][25:1][26:1]

The underlying principles of ex post facto protection support the same conclusion. Ex post facto injustices arise from unpredictability at the time an act or omission is committed. The mere acts of defining new crimes or increasing the punishment for existing crimes do not implicate those fairness concerns. If anything, the Assembly indicated a desire to apply the law as it stood at the time of the offense even if that law was subsequently revised or repealed.[38] Similarly, fair warning at the time of the offense does not imply that punishment must be monotonically decreasing. If the Court, for instance, is temporarily unable to conduct a criminal trial due to vacancy, that would function as a protection from prosecution. Any actions that could not be tried due to vacancy would then, of course, be subject to criminal liability once again when the vacancy is filled. But filling the vacancy and resuming criminal proceedings certainly would not implicate ex post facto protections per se.

Ultimately, the relevant point in time for determining ex post facto retroactivity is present in the very reasons the Assembly originally prohibited ex post facto application of law — to prevent trial or punishment for actions that were only made criminal after the fact of their commission.

D

There is one last twist in this story: the Great Council of 2016 revised the ex post facto provisions within the Charter, and the Assembly has not amended the clause since then.[39] In this case, that is not indicative of any discontinuity in the legislative history; to the contrary, both formulations evidently are concerned with the same issues of ex post facto punishment — as evidenced by the decision to incorporate the accepted meaning of the term ex post facto, rather than offering a definition to revise its meaning in our regional context — and the 2016 wording is a clear successor to the ex post facto protections in the Charter that it replaced.

One of the similarities between these two revisions is that our laws prevent ex post facto application of law. More specifically, the present Charter protects members from being tried ex post facto. The framers of the Charter could easily have barred the passage of ex post facto laws. They did not. We must take that decision to be deliberate, for its consequences are not merely semantic. By prohibiting ex post facto trial, the Charter forbids any act of government from producing retrospective criminalization or punishment, even if that act of government was not a law. This framing also aligns more closely with the classic hypothetical pondered by the Assembly in 2015. If the Assembly were to pass a new law defining a new crime, then, other objections notwithstanding, that law would be constitutional if applied in futuro and unconstitutional if applied ex post facto. Would those ex post facto applications render the entire law unconstitutional? If so, that would render any law establishing new crimes to be unconstitutional. Evidently, the Charter ponders applications of law.

In its explicit reference to members being “tried,” the Charter also formally codifies the idea that ex post facto provisions are limited to criminal law. That idea is centuries old; the Supreme Court of the United States held in 1798 that “‘ex post facto laws’ unquestionably refers to crimes and nothing else.”[21:4] The legislative record from 2015 also reveals no debate regarding any non-criminal applications.[9:1] And as the Charter plainly suggests, ex post facto protections are best understood not in isolation but rather as one facet of the right to a fair criminal trial and to a defense against criminal accusations.

III

A test for ex post facto trial offers an interpretive foothold with which to examine the Resolution. The 2016 and 2024 resolutions make it clear that the acts and omissions implicated are involvement in the “forum move and transitional government,” for which the 2016 resolution granted amnesty and the 2024 resolution revoked amnesty. What criminality or punishment, then, as applicable in 2016, does the 2024 resolution alter?

The answer is rooted in the nature of an amnesty. Here, a dictionary may be of limited use. Merriam-Webster ascribes little more meaning to the term than a “pardon” often characterized by being granted to large groups and before trial or conviction.[40] Both characteristics, of course, apply to the 2016 resolution. The term “pardon,” however, is notably absent.

While the Assembly did debate drafts conferring a “full pardon,” it ultimately passed a resolution offering a “general amnesty” instead. There may not have been a consensus on the difference in meaning, if any, between those two terms. Lord Ravenclaw, who first offered the terminology of a “general amnesty” as opposed to a pardon, seemed more concerned with generality than with amnesty. On the other hand, Drugged Monkeys suggested that they favored an amnesty to “pretend none of this happened.”[41]

Absent a definition in the law itself, established usage of the term “amnesty” — within the context of clearing the prospect of criminal liability — is more consistent. The 1911 edition of the Encyclopædia Britannica, for instance, contended that an amnesty, unlike a pardon, “obliterates all legal remembrance of the offence.”[42] The Supreme Court of the United States held in 1915 that while a pardon “remits punishment,” an amnesty “overlooks the offense.”[43] In other words, as the Supreme Court had explained in earlier cases, an amnesty was generally understood to be distinct from a pardon in that it bestowed oblivion, that is, it caused the offenses in question to be forgotten.[44][45]

But the Charter references neither pardons nor amnesty; nor did it in 2015. Absent any greater clarity in the legislative record, the Assembly’s decision to issue an amnesty rather than pardons must be viewed as deliberate. In the particular legal context of rebuilding peace and stability following a time of crisis, the established meanings of “amnesty” and “pardon” are clear.

Consequently, the amnesty operated retroactively. Within the context of criminal trial, an act of oblivion rewrites history. In the eyes of the Court, the actions for which amnesty is granted no longer exist. Insofar as the Charter’s ex post facto protections lead us to ask what culpability was provided for in law at the time of the forum move and Transitional Government, the answer is none. Simply put, there is no culpability for acts or omissions that did not occur. In altering that state, the Resolution to Restore Regional Accountability functions to enable ex post facto trial.

Of course, no state of oblivion existed in actuality in January 2016. But a question of ex post facto jurisprudence requires us to consider the ramifications for criminal trial specifically — the sole area of concern for the Charter’s ex post facto protections. Through that lens, the forum was never moved and the Transitional Government was never formed. To hold such a trial now, one would need to retroactively alter the events of January 2016, just as an act of forgetfulness must necessarily alter history retroactively to remove the events of January 2016 in order to prevent criminal liability. Preventing such a revocation of amnesty also protects the fair warning of criminal statutes by ensuring “‘fair warning’ to preserve evidence.”[46]

IV

Does this mean that the Resolution to Restore Regional Accountability, as Petitioner asks, violates the constitutional prohibition on ex post facto laws? Not quite. The Charter does not prohibit ex post facto laws, but rather ex post facto trials. Instead, the Resolution cannot be constitutionally applied to enable a criminal trial for acts or omissions covered by the 2016 amnesty.

The Resolution neither initiates nor recommends a criminal trial against any individual. It is therefore difficult to argue that the Resolution pertains solely to the criminal trials that the Charter’s ex post facto provisions are concerned with. The revocation of amnesty naturally applies equally to the same noncriminal applications as the amnesty that it revoked, whether those applications are related to administration, security, politics, or more.

In fact, in two of the Resolution’s five sections, the Assembly merely issues statements of recognition that do not impose criminal liability.[47] Even if otherwise construed, this Court has previously held that such statements, unless made as part of formally filing criminal charges, carry no legal weight and are not “criminal accusations” as considered by Article III, Section 2.[48] So, too, the Resolution’s other provisions can be construed as symbolic.

At some point, any law can be unconstitutionally applied. The appropriate remedy is not always to strike down the law. With respect to constitutional laws, such as the Resolution, the Charter takes particular care to admonish the Court to minimize disruption in reconciling contradictions.[49] Future disruption is not minimized by voiding the entire Resolution, including provisions and applications not implicated by ex post facto protections.

Particularly, in this case, the question before the Court concerns hypothetical applications rather than impending requirements. The Resolution contains no provision that requires an ex post facto trial to be held; rather, its provisions enable a trial that would not otherwise be possible. For instance, a law granting communications powers to regional officers may enable an officer to unconstitutionally suppress a post on the regional message board. The constitutional violation may not be possible without that law. That does not imply that the law must be voided.

Instead, to answer a legal question, the Court may interpret the legal provisions in question and deliver an opinion bearing the full force of law.[50][51] In this case, that force enables us to bar the specific unconstitutional applications of law without disruptively voiding lawfully adopted legislation that serves other, constitutional purposes. Today, we find that the Resolution to Restore Regional Accountability cannot be applied to enable a criminal trial against any member for acts or omissions for which the member received amnesty under the Assembly Resolution to Restore the Coalition of the South Pacific.

It is so ordered.

Submission: 25 July 2024 | Determination: 4 August 2024 | Ruling: 7 December 2024

  1. Hileville (2016). “The Transitional Government of the South Pacific.” NationStates. ↩︎

  2. On the Legality of Hileville and the Cabinet’s Actions of 21 January, 1602.HQ (2016). ↩︎

  3. Assembly Resolution to Restore the Coalition of the South Pacific (2016, February 9). ↩︎

  4. Resolution to Restore Regional Accountability (2024, March 23). ↩︎

  5. Merriam-Webster. “Ex Post Facto.” Merriam-Webster.com Dictionary. ↩︎

  6. Willam Blackstone (1765–1769), ed. Thomas Cooley (1884). Commentaries on the Laws of England, book 1, p. 46. ↩︎ ↩︎ ↩︎

  7. Constitution of the United States of America; Article I, Section 9. ↩︎

  8. Universal Declaration of Human Rights, Article 11, Section 2. ↩︎ ↩︎ ↩︎

  9. Hileville, et al. (2015). Amendment to the Bill of Rights. ↩︎ ↩︎

  10. Charter of the Coalition of the South Pacific; Article III, Section 2. ↩︎ ↩︎

  11. Fudgie (2007). No Ex Post Facto. ↩︎

  12. Gandallfia (2012). “Post #16.” The South Pacific v. Haxstree. ↩︎ ↩︎

  13. Retroactive Crimes, 1508.HQ (2015). ↩︎ ↩︎

  14. Charter of the Coalition of the South Pacific (2015, July 17); Article 4, Section 3. ↩︎

  15. Aramanchovia (2015). “Post #45.” Amendment to the Bill of Rights. ↩︎

  16. Retroactive Crimes (In-Chambers Discussion), 1508.HQ. ↩︎ ↩︎

  17. Sopo (2015). “Post #5.” Amendment to the Bill of Rights. ↩︎

  18. Collins v. Youngblood, 497 U.S. 37 (1990). ↩︎

  19. Schick v. United States, 195 U.S. 65 (1904). ↩︎

  20. Weaver v. Graham, 450 U.S. 24 (1981). ↩︎ ↩︎

  21. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). ↩︎ ↩︎ ↩︎ ↩︎ ↩︎

  22. Carmell v. Texas, 529 U. S. 513 (2000). ↩︎ ↩︎

  23. Wooddeson, Richard (1792). A Systematical View of the Laws of England, vol. 2, p. 639. ↩︎

  24. International Covenant on Civil and Political Rights, Article 15, Section 1. ↩︎ ↩︎

  25. African Charter on Human and Peoples’ Rights, Article 7, Section 2. ↩︎ ↩︎

  26. Convention for the Protection of Human Rights and Fundamental Freedoms, Article 7, Section 1. ↩︎ ↩︎

  27. Lynce v. Mathis, 519 U. S. 433 (1997). ↩︎

  28. Retroactive Vote Changes on Legislator Removals, 1715.HQ (2017). ↩︎

  29. Requirements of OWL Recommendations and Cabinet Override Powers, 2105.HQ (2021). ↩︎

  30. In re Assembly Vote Closures, 2207.HQ (2022). ↩︎

  31. In-Game Consent for A2205.05 Amendment to Article XIV, 2209.HR (2022). ↩︎

  32. In re Emergency Citizenship Committee Assignments, 2302.HQ (2023). ↩︎

  33. Hamilton, Alexander (1788). The Federalist No. 84. ↩︎

  34. Legal Information Institute. “ArtI.S9.C3.3.3 Retroactivity of Ex Post Facto Laws.” U.S. Constitution Annotated. ↩︎

  35. Canadian Charter of Rights and Freedoms, Section 11(g). ↩︎

  36. Constitution of India (2024), Part III, Article 20, Section 1. ↩︎

  37. R v Kidman [1915] HCA 58; (1915) 20 CLR 425 (16 September 1915). ↩︎

  38. Sopo (2015). “Post #42.” Amendment to the Bill of Rights. ↩︎

  39. Sandaoguo (2016). Working Group Drafts. ↩︎

  40. Merriam-Webster. “Amnesty.” Merriam-Webster.com Dictionary. ↩︎

  41. Sandaoguo, et al. (2016). Resolution on the Coalition. ↩︎

  42. Encyclopædia Britannica contributors (1911). “Amnesty.” Encyclopædia Britannica. ↩︎

  43. Burdick v. United States, 236 U.S. 79 (1915). ↩︎

  44. Knote v. United States, 95 U.S. 149 (1877). ↩︎

  45. Brown v. Walker, 161 U.S. 591 (1896). ↩︎

  46. Stogner v. California, 539 U.S. 607 (2003). ↩︎

  47. Constitutionality of the Resolution to Restore Regional Accountability, 2404.HQ (2024). ↩︎

  48. Right to a Fair Trial and Defense Against Criminal Accusations, 1706.HQ (2017). ↩︎

  49. Charter of the Coalition of the South Pacific; Article VII, Section 5. ↩︎

  50. Charter of the Coalition of the South Pacific; Article VII, Section 6. ↩︎

  51. Judicial Act, Article 4, Section 3. ↩︎

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