[Beyond the Borders] TEP High Court Strikes Down Constitution, Restores It A Day Later

TEP High Court Strikes Down Constitution, Restores It A Day Later
Government, laws, and treaties back into effect after "ground-shaking" ruling overturned based on procedural error

Written by Pierce

Last Monday, The East Pacific’s Conclave, or high court, briefly struck down the region’s governing constitution known as the Concordat until restoring it based on a technicality of their internal procedures.

Citizen Zukchiva first filed for a judicial review to the Conclave on the 16th of July asking two legal questions:

1. Is the February 2020 Concordat passed by the legislature and citizenry a repeal and replacement of the previous Concordat or an amendment? This question is based on a provision in the most recent Concordat that recognized it as a “descendent” of the first Concordat that took place upon ratification by the nations of TEP and overseen by the Elders. The recent governing constitution also specifically stated that the new Concordat “repeals and replaces said concordat”.

2. Given that the elder Concordat had no legal mechanism for its repeal and replacement, does that make the February 2020 Concordat illegal? Thus, could the Conclave strike it and all of the subsequent amendments and laws down?

The Conclave took up the case the same day. In a follow-up brief, Zukchiva reviewed the legal history of popular sovereignty as the source of legitimacy for any government willed into existence despite the absence of enumerated legal mechanisms. There have been four such instances since 2004, the most recent occurrences in 2008 when the citizenry suspended the previous governing Charter for the Elder government and in 2009 when the citizenry instituted the “Elder” Concordat with the Elder’s consent. Zukchiva concluded that since current Concordat “recognized” itself as the descendant of the “Elder” Concordat and thus recognizes the legitimacy of the Elders since they oversaw the ratification of the January 2020 Concordat and first Delegate elections, the current Concordat’s enactment via repeal and replace was legal since it follows the principle of popular sovereignty that is steeped in the region’s legal history and tradition. There were no other response briefs filed to the Conclave that asked the Conclave to strike down the Concordat. In fact, there were no other briefs filed after Zukchiva’s follow-up brief.

Twenty-three days passed before the Conclave handed down their decision striking down the Concordat, with Viceroy SirShadow (their equivalent of the Chief Justice) delivering the opinion of the court.

The opinion first highlighted the possibility of two possible governing documents in operation: the operation under the May 2022 Concordat or the operation under the July 2019 Concordat that was amended in February 2020 that was passed by referendum. This amendment “repealed and replaced” the prior Concordat, which would have forced the dissolution of the government under the 2019 Concordat to be replaced with a new one. Given that there was no legal avenue for repealing it outright, it was illegal. The opinion then declared that the “social contract” of the region demands “rule of law, rather than the acquiescence of popular will”. Thus, the February 2020 amendment “could not derive its legitimacy from popular will”. Furthermore, the said social contract does not allow a government organ to act on behalf of another organ, therefore no single organ can consent to the dissolution of the entire body on the other organs’ behalf. Since the February 2020 amendment was approved by the Magisterium alone, it was illegitimate and thus illegal. In other words, the repeal of the July 2019 Concordat was illegal, so the iteration of the July Concordat remains legitimate.

To be clear, the amendment process included ratification by simple majority approval by the nations of TEP, two-thirds majority approval by the legislature, and three-fourths majority approval by the citizenry. Europeian legal experts tell the EBC that the opinion is notably devoid of further explanation as to why the February 2020 amendment was not “legitimate”, particularly why the amendment was not enough to legally “repeal and replace” the Concordat as a rewrite versus the need for an existing clause that explicitly outlines of mechanism to repeal and replace. It fails to analyze the region’s legal history and tradition might come into play for that point as well. After the region waited a month for this ruling, there is no meaningful legal analysis or application of the law, no review of legal history, and no further explanation beyond the conclusion that declared the current iteration of the Concordat illegal. Again, the only response brief was from the citizen that filed for the judicial review submitted in opposition to the Conclave striking it down. There were no briefs asking the Conclave to do so, and no questions from the Viceroy or the Arbiters (associate justices) to the applicant. However on the 19th of July, former Delegate Libertanny asked the Conclave that if they do strike down and make the government illegitimate: a) would this Conclave would be legitimate, b) if the 2020 Conclave was back in place, could they overrule the current Conclave’s potential ruling that would strike the February amendment down? Arbiter Wallenburg responded that if they were to rule that way, there would be illegitimate Delegates and thus illegitimately appointed Arbitors and that “either the ‘old’ Conclave recognizes the old Concordat or the ‘new’ Conclave recognizes the new Concordat.

Ironically, although all government actions and statutes that conflict with the July Concordat are illegal (none of which the Conclave specified), not all government officials elected or appointed are illegitimate if they were elected or appointed with in the July Concordat’s provisions. Delegates elected after the February amendment until October 2021, the Conclave reasoned, “may” be legitimate. Under this reasoning, Atlae was the last legitimate Delegate and Albrook was the first illegitimate Delegate given that October is when the Delegates were first elected under the system of universal citizenship per the February Amendment. Since Arbiters Eastern Alksearia, Nociav, and Wallenburg were appointed under “legitimate” Delegates, they are legitimate members of the Conclave. Thus, the Conclave maintained that they have the authority to make this ruling.

The reactions were swift. Libertanny proposed an amendment on the Concordat to the legislature to change the amendment process and include provisions for its repeal and replacement. Vizier Hobbes filed for a civil trial against the Conclave for deprivation of rights as a result of their decision in violation of the Concordat. In one portion of their complaint, Vizier Hobbes stated, “The court allowed all their arbiters except one to remain lawful arbiters, however, even this is unlawful under the 2019 concordat, nullifying the ruling and potentially meaning all Arbiters involved acted unlawfully themselves.” The Vizier further asserted that “the most ground-shaking ruling in the Conclave’s history” should be invalidated based on the standing rules of the Conclave and July Concordat. They then withdrew the motion for a “more concise” judicial review on the Conclave’s power to strike down the legislature’s non-binding amendments and binding referendums. In a Discord message in The East Pacific’s Discord, Delegate Alvintis pled for “understanding” and calm as Viceroy SirShadow pled for individuals “not to make the Conclave do any more work than it needs to right now”, and announced that a new Delegate election was imminent.

To foreign policy experts within Europeia, there was understandable confusion. Were new citizens accepted during the “illegitimate period” legal citizens? What would have happened to TEP’s personae non grata during that period? What of the treaties that the latest government officials had signed? With very little clarity, The East Pacific’s laws, treaties, and latest executive policies had been upended.

Finally, the day after, Viceroy SirShadow released another statement overturning the ruling based on a violation of the Conclave’s internal procedures. The violation was not based on the number of Arbiters as Vizier Hobbes alleged, but based on the length of time it took the Conclave to issue its ruling. Their internal procedures dictate that a judicial review is meant to take ten days at most, only seven if an Arbiter doesn’t request an extension. Since it took the Conclave twenty-three days to issue its ruling, the Conclave violated its own procedures. Thus, the Viceroy overturned it and accepted full responsibility, restoring the government and all statutes into effect.

Here at home, some officials have kept a close eye on these developments and expressed relief on the end of the saga. "I am pleased to see that the ruling was overturned," Senate Speaker and former Attorney General Prim told the EBC, "The original ruling seemed to be a bit reckless and would have caused a lot of chaos. Let's hope that The East Pacific is able to put in some guardrails to prevent other existential issues like that in the future."

The Europeian Ministry of Foreign Affairs provided no comment to the EBC but officials' minds are likely at ease knowing that the treaty between the two regions remains intact. Europeia and The East Pacific signed and ratified the Treaty of Klunvorden in January 2018 under President Rach. This stunning development on the question of TEP's government's legitimacy comes as the Senate is discussing clarifications to Europeia's statutes on citizens violating treaties and as the Attorney General's Office toils on a non-binding opinion for a legal question over the criminal liability of a president subverting a legitimate allied government.