The West Pacific Dominion - Coups d’etat and Constitutional Law

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The West Pacific Dominion - Coups d’etat and Constitutional Law
By Sir Hippocrates H. MacKai / 4 Nov 2005

Original source: http://hippogradlaw.blogspot.ca
As posted in the Naivetry Reference Library.

For twenty four hours yesterday, the West Pacific was taken over by a self-appointed junta of regional elites in a stunning coup d’etat. Many residents of the West Pacific were horrified by what happened, not least because the West Pacific has a reputation for constitutionality. Those of us who remember the reign of Norion know why the residents of the West Pacific have become such sticklers for the rule of law.

The short-lived “West Pacific Dominion” was denounced far and wide, but nowhere more loudly than in the region itself. Prominent regional residents, including the regent, Wickedly Evil People, the former Prime Minister, Dilber, and regional greats Berhampore and Lanier, formed an opposition to the dictatorial junta, the “Core”. The West Pacific, it must be widely recognised, had entered what could be considered a period of inactivity. This was not what we were condemning.

The problem was the means taken. In a region that has cherished its constitution and the rule of law ever since emerging from the shadow of dictatorship, it was simply unacceptable for a government, elected or not, to abandon the constitution, abandon the board and establish an entirely new regime under martial law.

We have therefore, as students of the law, to ask ourselves four questions. Was the establishment of the Dominion legal under regional law? Was it legal under international law? And regardless of legality, was it truly legitimate? The fourth question is one that will be asked by more and more people as recent events are digested: What should the ADN have done?

The Core sought to justify its actions in two ways. First of all, it was asserted that the Prime Minister had the power to impose martial law. He did not, not under the region’s constitution. Then it was argued that the Constitutional Conventions had likewise declared the previous constitution obsolete. There are important differences though. The government prior to ConCom2 had collapsed. None existed. The framers were within their rights to establish a new constitution.

In contrast, the Dominion was formed when a constitutional government was still operating. The principle of constitutional entrenchment is fundamental, and it is asserted every time a supermajority is required for amendments. By requiring a 3/4 vote of its Council, the Second Constitution asserted that it was entrenched, and thus could not be so easily abolished. Consequently, the establishment of the Dominion was ultra vires – contrary to regional law.

On a personal level, many Core members had taken oaths to uphold the constitution of the West Pacific, which were obviously broken by the establishment of the Dominion. Those who fall into this category may well be subject to prosecution in the future on charges of dereliction of duty or even treason.

International law is a different matter. As has been explained before, international law boils down to the rulings of the moderators, and on this matter it simply asserts that the delegate is the only recognised authority in a region. Consequently, under international law, it was for Minineenee to decide what would happen. Minineenee was a member of the Core, and thus the Core would be the legal government of the region under international law. We will come back to this later.

As to the legitimacy of the Dominion, we turn to the widely accepted constitutional principle that constitutions are based upon the consensus – the popular acquiescence – of the governed. This holds that while the abolition of the Second Constitution was certainly unlawful, it would have remained legitimate if it had the popular consent of the region. In this case, such consent would have had to be recorded by a referendum. We may never know what the outcome of this would have been (though it seems it would have failed) but what must be undisputed is that a plebiscite was not held, and that a self-selected clique imposed the change on the region without so much as a consultation.

In order to address the question of what the ADN should have done, we must return to our study of how international law looks upon the issue, for treaties are certainly primarily subject to international law. Berhampore has sought to punish the ADN for at least appearing to side with the Core, pursuing action under article IV of the alliance’s charter, which refers to illegal actions including “treason” – “attempting to overthrow the government of an alliance member region to which the offender owes allegiance”.

The ADN, under Pope Hope, approached this issue cautiously, and should be given credit for that. Unsure of their position, they tried a “wait and see” method of diplomacy, attempting not to offend either side too much. To a large extent they succeeded. We cannot judge their actions because there weren’t any. The question that is posed is: what should they have done?

Obviously their own charter obliges them to support the government of an alliance member, and not to attempt its overthrow. This is a difficult question. There can be no doubt that the Core were overthrowing the government system of TWP, but that is not the same thing as “government”. The ADN is an international body, established by treaties and dedicated to international actions. Consequently, their guiding system should be international, not regional law, and under international law the “government” of this alliance member was Minineenee, the delegate. Legally, the ADN’s official allegiance was to the Delegate and Prime Minister of the West Pacific, who were both prominent Core members.

The question of legitimacy arises here though. The ADN may have been doing the legal thing by tacitly supporting the Core, but they are certainly perceived as having betrayed the region itself.

Why the Core did what they did is not our concern. What they did is. Regardless of whether they believed it was in the region’s interests to do so, they betrayed the trust placed in them, and they committed crimes against the West Pacific. The fate of those who attempted to abolish the Second Constitution, as well as the fate of the region itself, will be decided in the next few days. The only thing that we can truly be certain of is that the West Pacific has just faced the greatest test of its respect for constitutional law. It has passed.

Sir Hippocrates H. MacKai was a Councillor of the West Pacific and prominent critic of the Dominion.