2016 In re Petition for Injunctive Relief re: OrgLaw amendment (UC)

  

Din el Cort Pü Inalt
In the matter of
PETITION FOR INJUNCTIVE RELIEF re: OrgLaw amendment
Petitioner Avocat-Xheneral M. Schivâ
Decided
Preliminary Ruling: 13 February 2016/XXXVII Full Ruling: 18 April 2016/XXXVII
Brief of the ruling
Appeal is dismissed, the Cort permits 48RZ14 to be placed before the electorate. Amendments approved by the Ziu and the People in Referendum become a part of Organic Law upon certification of the relevant Referendum.
Opinion of the Court delivered by
Justice dal Nordselvă
joined by Chief Justice Tamorán, Justice Cjantscheir, Justice Edwards

Background

On December 29th, 2015, Attorney-General Miestrâ Schivâ issued an appeal challenging the ruling in Petition for Declarative Relief - Application of 47RZ28. The petition also sought to enjoin the Secretary of State from including The 3/4 Majority Amendment on the 49th Cosa ballot as a referendum, on the grounds that it was passed by the Ziu under false pretenses. The Cort Pü Inalt decided to hear the appeal as a five person bench composed of it's entire membership.

During the proceedings, Alexandreu Davinescu requested he be granted standing on behalf of the Ziu. Davinescu also accused Justice Txec Róibeard Nordselva of engaging in ex parte communications with the Attorney-General and requested that he be recused from the case.

Petition

MAY IT PLEASE THE COURT: The Government of Talossa, acting through me (hereinafter “the Petitioner”), seeks injunctive relief from the Uppermost Cort of Talossa (hereinafter “the Cort”) of the following nature: to determine whether the “proclamation” by the King of an Amendment to the Organic Law passed by the Ziu and by referendum, in accordance with and as understood by Org.XV:1, is necessary for that Amendment to come into effect.

Senator M. A. I-figlhâ Schivâ, UrN, Avocat-Xheneral

Ruling

Preliminary Ruling on the 13th of February 2016/XXXVII delivered by Chief Justice Tamorán

The cases in hand, stemming from the appeal against already decided Petition for Declarative Relief re the Application of the Amendment to 47RZ28, include both that initial appeal, and also some requests for other parties to be viewed as privy to this case. Furthermore, there is a plea that Justice Nordselva be recused from all of these cases because of an alleged impropriety of offering legal advice outside of the Cortroom. There are many points here which the complete bench of Justices have considered, in some detail. There is, however, an urgency outside of this Cortroom to make the overall decisions of this Cort public, and that is what this posting is intended to do. The full, and considered, reasoning for each of our decisions will be made public as soon as we are able, under both the time constraints and the secretarial limitations, to write a final version. The decisions, however, are final.

Note that if there is any difference in minor detail between this posting and that which contains the full reasoning, it is that later posting which will take precedence. There will not, however, be any alteration in the findings themselves.

The appeal against the decided Petition for Declarative Relief re: Application of 47RZ28 is dismissed.

This Cort sees no reason why it should - or even can - modify a prior decision of the Cort, itself reached after due deliberation. The Cort believes that the granting of this injunction would be inOrganic. The Cort believes that this would cross the Separation of Powers. The Cort observes that the Amendment process has started, and cannot be stopped. The Cort states that there is no injury to the Petitioner.

The requests for third parties to take part in this case have been allowed only to the extent of hearing amicus briefs presenting further information: no further party has been allowed to join the Petitioner. Moreover, no person or body can represent the Ziu unless and until the Ziu itself authorises it.

In the claim of impropriety by Justice Nordselva, the Cort finds that no such impropriety occurred, and given the small size of Talossa and the inevitable overlapping of people within public offices, it is very difficult for total secrecy to be maintained. However, this Bench of Justices find unanimously that Justice Nordselva committed no impropriety.

Note that, as a consequence, this decision of the Cort permits 48RZ14 to be placed before the electorate.

Full Ruling on the 18th of April 2016/XXXVII delivered by Justice dal Nordselvă

In the matter before the full bench of the Cort pu Inalt, our prior preliminary ruling is now amended. As such, this Cort finds the following:

Organic Law Article XV does not explicitly state what occurs during the amendment process if an amendment is not explicitly or, via tacit consent, proclaimed by the Monarch or what occurs if the Monarch refuses to proclaim an amendment. Organic Law states that in such circumstances where law is unclear, the Cort pu Inalt must interpret, according to law and established precedent.

Previous precedent of this Cort states, in part:

The Organic Law in Article XV Section 1 deliberately excludes the King from the amendment process right up to the final point, the proclamation, meaning the King May pass an amendment into law (passively or actively) or may refuse to do so. In this case, by excluding Royal Assent up to this point, the Organic Law empowers the King to refuse to proclaim an amendment, even if is has met all other requirements. To say at this point that the King's opinion doesn't matter, it becomes law anyway, is removing the King from the process, a concept which we hold to be incompatible with the Organic Law nor is in the spirit of the Organic Law.

Nowhere is the Monarch forced to proclaim an amendment. However, the question at stake is not whether or not the Monarch must proclaim explicitly or even if tacit consent is sufficient. Our previous ruling allowed for the understanding that the Monarch may refuse to proclaim an amendment explicitly and He may also choose to proclaim tacitly and implicitly.

The Question before this Cort extends the understanding of Our previous ruling in determining what happens to a law if the Monarch explicitly refuses to proclaim it. The ruling by a 3-justice panel did not expand that understanding.

Organic Law XV Section 1 states, in part:

An amendment to the Organic Law may be made by proclamation by the King where so authorized by: a vote of two-thirds in both chambers of the Ziu, and approval of the majority of voters participating in a referendum on the question of the amendment no later than during the next scheduled general election following the approval of the Ziu.

Does the Organic Law enable veto powers, vested in the Monarch, over amendments to the Organic Law? Does the Monarch possess reserve or explicit powers to block any amendments he sees fit to? This Cort finds an affirmative answer to both questions to be undemocratic and not in keeping with the body of Law upon which the kingdom is founded.

It has long been established practice that laws or Amendments duly authorized by the Ziu and the People via referendum have passed into force regardless of the failure by the king to approve such laws. Indeed, the overwhelming majority of amendments to the Organic Law have gone un-proclaimed and have been accepted without reservation by all levels of Talossan society, including all branches of the Talossan Government - Executive, Legislative, and Judicial. Amendments to the Organic Law do not therefore require the explicit proclamation by the Monarch.

This Cort has previously interpreted that the Organic Law provides for a refusal to proclaim an amendment but has not ruled that such a state has any effect upon the amendment at question.

Therefore, this Cort, by majority vote, rules the following:

In keeping with precedent and established practice, amendments to the Organic Law, where approved by the Ziu and the People in Referendum, according to the provisions of Article XV:1, are legally enforceable and become a part of Organic Law upon certification of the relevant Referendum and the existence or absence of an explicit proclamation of the amendment does not prevent its application and enforceability.

As a supplemental and not as part of this ruling, this Cort strongly encourages the Ziu to clarify the amendment process to prevent future uncertainty.

Assenting: Chief Justice Tamoran, Justices Cjantscheir, dal Nordselva, Edwards

Abstaining: Justice Ardpresteir