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by The Republic of Thromsa. . 17 reads.

Judgment in Case P-3/2019 (Constitutional Court of the Union of Thromsa)

Gazette of Thromsa
JUDGMENT OF THE CONSTITUTIONAL COURT OF THE UNION OF THROMSA

(PLENARY OF THE COURT)
Affairs:
INTERNATIONAL LAW
CONSTITUTION STATUTE
LEAGUE OF THE WESTERN ISLES
PREVENTIVE REVIEW

CASE: P-3/2019
RAPPORTEUR: Lord Faron Blakeslee (Vice-Chief Justice)

IN THE NAME OF THE THROMSONIAN PEOPLE AND THE UNION OF THROMSA, THE CONSTITUTIONAL COURT, MEETING IN PLENARY, RULES THE FOLLOWING JUDGMENT:


I. Introduction
1. The President of the Union requested, under Article 18, paragraph 7, of the Presidency Statute, and Article 5, paragraph j, of the Constitution Statute, the preventive judicial review of constitutionality of the League (Resolutions) Bill (hereinafter, ‘Bill’).

2. The concerning Bill is a Constitutional Act to regulate the transposition of Resolutions by the competent Assembly of the League of The Western Islands.

3. Concerned, the President, in their request, pointed the following questions:
“1. Is the usage of an act with constitutional force required? And if so, should such act be a Constitutional Act?
2. Does the League (Resolutions) Bill violate The Constitution by imposing a different treatment on general rules of international law?
3. Does the League (Resolutions) Bill violate The Constitution by possibly limiting International Law, and International Obligations of the Union under such Law?”.

4. As it has been customary (having even considered it to be a Constitutional Consuetudinary Convention in Case P-5/1992 therefore, part of the Constitution under Article 2 §2) on this Court, the Solicitor-General of the Union was invited to proffer their opinion, representing the Government, the proponent of the Bill, having, in summary, given the following opinion:
“In short, and with direct answer and in a succinct way, as argued above, to the questions presented:
1. The usage of an act with constitutional force is required by the mere option of using one as there is no actual binding requirement of a clear justification on whether an act of parliament should have a certain procedure and form unless clearly stipulated by constitutional law.
2. This question is unfounded as, under the sovereignty of the Union, clearly stipulated under constitutional law, the Union is not obliged to follow any form of principle of equality on international relations, and needing to give equal treatment to all international legal instruments.
3. Under the same sovereignty of the Union, the organs of the Union are free, under the Law of the Union, to limit International Law and Obligations of the Union.”.

5. The Substitute Deputy Prosecutor-General of the Union in this Court gave the following opinion:
“The Union Prosecution Service agrees with the opinion of the Solicitor-General of the Union”.

6. As it has been found in various other judgments, the Court is not bound on the questions presented, and free to judge on others, given that it would violate the principle of legality.

II. Of the review
A. The usage of a Constitutional Act
7. The Constitution provides various forms of acts, some with constitutional force, others with a ‘force of law’ (expressed in French as ‘acte avec force de loi’, that in English makes little sense given that it is custom that law has an extremely broad meaning), others with various degrees of administrative and regulatory force.

8. As Gérard Neuville expresses (in Traité de droit constitutionnelle trœmsienne, Livre IV, 1988) ‘[n]ot all acts of Parliament have the same force, and constitutional law establishes what matter shall follow this or that procedure. Acts of Parliament with constitutional force are established by the Constitution Statute, and they are the Constitutional Act, Charter and Statute. The last two with the exact same procedure. When choosing which one to follow one shall do so in accordance with the principles of concrete need, opportunity, and analogy to the examples given by the Constitution Statute. But in the end, they are defined, by the Statute itself, as acts that follow a procedure…”.

9. Judge Charlotte Taylor (in Introduction to Constitutional Law, 1979) expresses a slightly different opinion: “on interpreting these Articles [4, 7 and 14 of the Constitution Statute] we shall always find a significant degree of analogy, otherwise an act is not worthy of the reenforced constitutional force, and should be legislation under such constitutional force…”.

10. Franklyn Sokołowski initially agreed with the opinion of Charlotte Taylor (in Annotated Constitution Statute, 1979, 2nd edition), but latter agreed with the opinion of Gérard Neuville (in Revisiting Constitutional Acts, Charters and Statutes. Hampshire Law Review, 1989).
11. This has been also analysed by this Court before, namely in Cases P-1/1989, P-7/1990, P-1/1992, P-4/1994, York v Union (Case A-207/1991), Henri IV v Union (Case A-29/1994), having opted for the opinion of Gérard Neuville.

12. However, the Court has also opted for Taylor’s opinion, namely in Case P-2/1991, P-1/1993 and P-3/1994.

13. Significant case law has also been produced in other courts, namely Stephen Howard v Union (Case G009/1990) of the Supreme Court of Justice, Union (Ministry for Culture) v Union (Ministry for Foreign Affairs) (Case B074/1993) of the Supreme Administrative Court, and Union Pharmaceutical Regulation Board v PharmaB (Case R-36) of the 2nd . Federal Session.

14. As per the main opinion, should the Court consider that the Bill follows the principles of concrete need, opportunity, and analogy?

15. Firstly, is there a concrete need for a reinforcement of an act, for it to have Constitutional Force? Under our opinion, yes. The regulation of an international instrument with such significance truly requires a forced act, namely for stability, but also for reasons of importance of International Law.

16. Secondly, is it opportune to use a Constitutional Act, instead of a Constitutional Charter or Statute? The procedure for Constitutional Acts is clearly less dispendious than for the other two, and given that the Bill does not impose any direct obligations to subjects of the Union, would the ratification method be opportune? We would find that it wouldn’t. We do find that the usage of a Constitutional Act is opportune, faced with the other two options.

17. Lastly, is there a significant degree of analogy? We would only have to say yes. Under Article 4, paragraph d we can read as follows: “Constitutional Acts shall be used by Parliament for concrete needs of constitutional law, namely: for a partial, and reasonably limited secession of sovereignty to an international organisation, without the prejudice of general sovereignty of the Union. This Bill clearly doesn’t secede sovereignty of the Union to an international organisation, it recognises it as previous, it seeks only to regulate how Resolutions of the League can enter to the Union body of law, however, we can find a general norm under this paragraph: regulation of International Law, obviously, always limited by the opportunity of a Constitutional Statute, that clearly states in fine the regulation of any area of constitutional law, without the prejudice of Constitutional Acts”.

18. Therefore, this Court finds that the usage of a Constitutional Act is completely constitutional.

B. Principle of equality to other rules of International Law
19. There is no statutory principle to equality of rules of International Law. That is, in the words of Perry Vernon (in Modern International Law, 1994) “free playground of the sovereign states”. That is, the limit to International Law is, indeed, the sovereignty of a state.

20. There is no doubt that the Union is sovereign. The maxime expression of that is, indeed, Section 1 of the Orleans Decree 1968. And case law, both of this Court, other Courts of the Union, and its subjects, in uncountable.

21. It is, indeed, the playground of the Union. The Union is free to favour and discriminate different rules of International Law. And with the Union, this Court clearly means any organ therein.

22. Therefore, this Court finds that there is no ‘principle of equality to rules of International Law’, and thus opting for the constitutionality of the Bill.

C. Limitation of International Law
23. Mere referral to the previous paragraphs.

D. Limitation of International Obligations
24. The limitation of international obligations, is, clearly a concern. International Law isn’t Private Law. When referring to treaties and other international instruments, pacta sunt servanda has a completely different meaning. Under private law an obligation is sanctioned, by a mere remedy when not complied, obviously depending on the concrete system. Under International Law, however, the worst possible outcome is, indeed ‘war’.

25. Could the risk to initiate a war conflict to the Union be unconstitutional? We find that the negative answer is the one to opt for.

26. Under Article 6 of the Charter of the League of The Western Isles, reads as follows:
“Article 6: Member Obligations
1. Member states shall be obligated to follow the League's charter and the League's resolutions.
2. Any member state which has violated the charter or a resolution may be barred membership to the League for a limited or unlimited period following a League resolution to such aim.
3. Any member or former member state which has violated the charter or a resolution may have sanctions or other actions issued against them by the League.
4. In the event any member state had, before becoming a member state of the League, undertaken any obligations inconsistent with the League's charter or resolutions, it shall have the duty of taking immediate steps to absolve itself from its prior obligations.
5. Member states of the League are encouraged to promote the establishment of international organizations that maintain the goals of peace, stability, and prevention of disease and suffering.“.

27. As the Admiralty Court for Pacifica previously found in Union v Bomb Fisheries LLC (Case A41/2017), the actions of the League are “mediocre, at best” and that “the setting of International Law and Relations in the Isles is, indeed, deplorable”. And, as Orianne Soucy expresses (in Droit international public, 2018), “the League is nothing more than a bureaucratic assembly. The actual effects of its Resolutions are questionable, and the general expected quality of them, is, as well”.

28. As such, this Court finds that the League’s resolutions are not sufficiently effective to pose any form of threat to the Union, as the obligations presented to the Union are not significant, or that the Union is actually expected to abide by them, as it would be significatly expected that the body of law of the Union is already fully developed and remarkable, showing clear traces of a higher sense of civilisation and society; and therefore, opt for the constitutionality of the Bill on this matter.

III. Decision
29. As such, the Court finds that the Bill is not unconstitutional.

30. The Court decided, however, to give the dictum, and by such, decrees the following vexillum:
1) When interpreting Resolutions of the League, Courts, and any other entity or person, shall always do so in accordance with the principles that govern the Union and its subjects, as well as case law of the Union Courts, and of the Courts of its subjects.
2) When available, any internal legislation provides the same aim, that shall be the sole one applicable. And the same applies to international rules with a higher degree of quality to the concrete case, and aim of the Resolutions of the League.

31. Free of costs.

Faron Blakeslee (Rapporteur) — Gilbert de La Fontaine (Chief Justice) — Callum MacDonald (Voted for the ruling, but I agree with the declaration presented by Lady Courtemanche) — Dalila PelletierClarissa HathawayCorentin LerouxFlora Simpson (I agree with Lady Édith Courtemanche) — Gabriel Lesauvage (Voted against the ruling) — Hugo FayLinda DurantPresley LaneTheodore BrandÉdith Courtemanche (With a separate declaration).

SEPARATE DECLARATION
1.I agree with the arguments presented on the ruling, however, I believe the Court should have decided on a second vexillum for the interpretation of the Constitution Statute.

2.Therefore I proposed to give the dictum, and the adoption of the following vexillum:
1) When choosing between an act with constitutional force, or an act with mere force de loi, Parliament shall analyse the concrete need for the required force of constitutionality.
2) When choosing between a Constitutional Act, Charter and Statute, Parliament shall analyse the principle of opportunity and analogy to the options presented on the Constitution Statute itself.
3) Any Court of the Union, or its subjects, may find that an act with constitutional force does not require such force, and thus declare it to be a mere act with force de loi, in which case the Union Prosecution Service shall request a direct appeal to this Constitutional Court.

Édith Courtemanche.


The Republic of Thromsa

Edited:

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