In re Protectorate Act 2024 2025 SDCR 21
In re Protectorate Act 2024 [2025] SDCR 21
| Date of judgment | 26 November 2025 |
| Judges |
|
| Held | Application dismissed |
| Ruling | 3-0 |
| Applicable precedent |
MAJORITY OPINION by Judge Brandmal
(with Judge Hmquestionable agreeing in full and Judge ppatpat concurring)
Introduction
[1] The petitioner seeks judicial review of the Protectorate Act 2024. The act has since been repealed, and the petition is therefore summarily dismissed.
CONCURRING OPINION by Judge ppatpat
Introduction
[2] The Court today declines to answer the question actually put to it. My colleagues would dismiss this petition as moot because the Protectorate Act 2024 has since been repealed. I cannot join them in that logic.
[3] Where, as here, a statute has operated for a meaningful period, affected rights and expectations, and raises structural questions “capable of repetition yet evading review”, it is entirely appropriate for this Court to give a declaratory answer even though no injunction could now bite. The repeal of the Act may have mooted the remedy, but it has not mooted the principle. I will now attempt to address the merits of the petition best I can.
On the constitutionality of Article 1
[4] The Supreme Court has now authoritatively held in Zepz367, ex parte, Shun (Appellant) v State of SimDemocracy (Respondent) [2025] SDSC 39 that the Constitution cannot be applied retroactively to re-characterise past conduct.
[5] The logic is general. A Constitution is not a time machine. It may prospectively constrain future acts and invalidate existing statutes for the future, but it does not reach back to alter the legal character of a statute at the moment of its enactment.
[6] Accordingly, the question before us, at least for now, is narrow. Were Articles 1 and 2 of the Protectorate Act 2024 constitutional under the 24-01-31 Constitution, which was in force at the time of its enactment?
[7] We are not asked, and in my view ought not, to decide whether later constitutional innovations concerning “territories”, “core territories” and “colonies” (now found in Part 4 of the current Constitution) would have constrained the Act’s future operation had it remained on the books.
[8] The Petitioner’s principal claim is that by declaring that the “sovereign territory of the SimDemocracy shall be expanded,” the Act improperly “assumes powers reserved to constitutional amendment” and “extends SimDemocracy’s sovereignty” in violation of some unwritten territorial limit.
[9] At the time of passage of the challenged law, the constitution made no mention of colonies. The Petitioner’s arguments about “colonial subordination” and “core territories” are arguments from a later constitutional text, projected backwards. They are thus flatly rejected.
[10] When inspecting the text of the 24-01-31 Constitution, that text contains no clause purporting to freeze SimDemocracy’s “sovereign territory” as of a particular date, or to forbid the Legislature from recognising additional platforms as places where its law may apply. The Preamble speaks, in general terms, of providing “a framework for government” and protecting citizens’ rights. It does not carve territorial boundaries in constitutional stone.
[11] The Petitioner’s metaphor that “sovereignty is not a wand that the Senate may wave to conjure dominion over new lands” may be rhetorically pleasing, but metaphors are not law. The legal question is whether the Constitution forbids the Senate and President, acting together, from extending SimDemocracy’s regulatory reach by statute. There is no such prohibition in the text at that point of time.
[12] As such, Article 1 of the challenged law is constitutional.
On the constitutionality of Article 2
[13] Going forward, much of the difficulty in argument arises from attempting to squeeze the Protectorate into the later categories of "core territory" and "colony" found in the current Constitution’s Part 4. Under those provisions, 'territories' are constitutionally defined platforms; 'core territories' are those whose democratic continuity is guaranteed by Supervisors; and 'colonies' are non-core territories which may enjoy a charter of autonomous governance subject to constitutional limits.
[14] Those categories did not exist at the time of the Protectorate Act’s passage. To insist that the Act must be a 'colony' or 'core territory' is to apply the new constitutional taxonomy retroactively, in direct tension with the doctrine we judge past acts by the law “at the time when [they were] committed”.
[15] Under the 24-01-31 Constitution, the Protectorate is best understood as sui generis: a special statutory arrangement by which SimDemocracy extends its internal law and institutions to an external community. It is neither colony nor core territory because the Constitution at that time recognised no such classes. It is simply what its own Act says it is: an “International Protectorate” subject to the Constitution, laws, and courts of SimDemocracy.
[16] As such, Article 2 of the challenged law is constitutional.
On the constitutionality of Article 3
[17] This is where things get slightly trickier, and where I will attempt to fill a lacuna in the Supreme Court’s ruling in Zepz367, ex parte, Shun (Appellant) v State of SimDemocracy (Respondent) [2025] SDSC 39. Yes, I do agree, and am bound by the principle established there that we do not apply new constitutional standards retroactively to condemn decisions that were lawful when made.
[18] But Zepz367, ex parte, Shun (Appellant) v State of SimDemocracy (Respondent) [2025] SDSC 39 does not stand for the broader proposition that once a statute is validly enacted, it is forever immune from the operation of later constitutional text. I shall now attempt to stumble through the following tension I am attempting to describe.
[19] When conducting judicial review, the first question is what kind of law is before us. Some statutes do a constitutionally cognizable thing at a point in time; others prescribe ongoing rules of primary conduct or governance. We can call the former action legislation and the latter continuing legislation. The distinction matters because action legislation is judged under the Constitution as it existed when the act was done, while continuing legislation — by definition — purports to operate forward and so must conform to the current Constitution in its present and future application.
[20] A statute is action in nature when, by its own terms, it performs or completes a discrete governmental act upon enactment (or at a single effective time), leaving only the fact of that act to persist. Classic examples include: annexing or redefining boundaries; ratifying a specific instrument; issuing a one-time authorization; or appointing a named officer. These laws may have long-lasting consequences, but the legal change they accomplish is singular and self-executing.
[21] A statute is continuing in nature when it sets ongoing norms — rules of primary conduct, jurisdictional allocations, standing organizational structures, or procedures — that govern events as they arise in the future. Criminal codes, standing jurisdictional grants, and permanent organizational charters are continuing laws. Their validity must be measured against the Constitution whenever and however they purport to operate.
[22] This is not to say that a piece of legislation cannot have both continuing and action features. For example, a redrawing of electoral boundaries can be both continuing and action in nature. The act of redrawing the boundaries is an action, evaluated against the Constitution at the time it occurred. The boundaries that are set going forward are continuing in nature, and they may be evaluated against the Constitution in force for as long as it purports to operate.
[23] Think of it as the actual act of redrawing boundaries being evaluated against the Constitution at the time, and the boundaries themselves being evaluated against whatever Constitution is in force when the judicial review is filed.
[24] If a boundary redrawing was duly passed and was perfectly constitutional when it was passed, the very act of passing it cannot be overturned. It is valid up until the point where the Constitution may have been amended to include provisions that potentially make the boundaries unconstitutional.
[25] The key distinction is between declaring a past act unlawful at the time it occurred, and recognising that a statute which was valid when enacted may become inoperative for the future, to the extent of inconsistency with a later, superior constitutional text.
[26] Now that we have this framework laid out, how does this interact with Article 3 of the challenged law?
[27] Article 3 of the Protectorate Act is quintessentially continuing legislation. It does not perform a one-off, 'spent' act, such as ratifying a past treaty or expanding territory. Instead, it establishes an office and a standing power: to appoint and remove a Protector “at the pleasure” of the President; and to trigger a local Governor’s election once population passes a threshold of five, with the election process to be devised by the Protector and approved by the Senate.
[28] The question is thus whether the Article is constitutional within the current constitution.
[29] The relevant constitutional provision is Article 7. §2 of Article 7 defines Executive Officers as the heads of executive bodies, as created by legislation or by decree of the President.
[30] On any fair reading, the office of Protector fits comfortably inside this framework. The Protector is the head of an executive body, by way of being “chief executive” of the Protectorate’s administration. The protector is created explicitly by legislation (the Protectorate Act). I thus find that the Protector is an executive officer.
[31] As the Protector is an Executive Officer, he simply takes his place in the Cabinet by operation of Article 7 §1, alongside other Executive Officers and positions specified by legislation.
[32] One may be inclined to believe this makes the position unconstitutional, due to the seeming lack of confirmation by the Senate required by Article 1 of the Constitution. This argument confuses statutory silence with statutory override. The constitution requires a confirmation process yes, but it does not say that any statute creating an executive office must restate this requirement *in haec verba*.
[33] The Protectorate Act creates the office and prescribes that the President shall appoint its holder. It does not purport to exempt that appointment from the general confirmation rules, nor could it. The correct interpretive approach is to read Article 3 of the Protectorate Act as subject to the Constitution. The Protector is an Executive Officer, the constitutional requirement of Senate confirmation applies of its own force, filling the statutory silence. If, in practice, a Protector were appointed without Senate confirmation, that would be a defect in administration, not in the Act’s text.
[34] The Petitioner’s final argument is grounded not in any explicit text of any Constitution, but in a claimed implied right to self-government and participation in public affairs. They invoke In re 39th Presidential Election [2020] SDSC 11 for the proposition that “representation in governance is an inseparable element of citizenship,” and In re Restraining Order Act [2019] SDSC 1 for a “constitutional presumption of parity among citizens” in matters of procedure.
[35] There is no dispute that the Constitution recognizes implied rights. The question is not whether citizens have a right to political participation and representation – they plainly do – but what that right entails in institutional terms.
[36] I think the petitioner is distorting the precedent to fit his goals. The central part of the holding in 39th Presidential Election was concerned with ensuring that citizens could participate in the governance of the Republic – that is, in the central representative institutions of SimDemocracy. The Court insisted that citizens must have a meaningful vote for the Senate and the President, and that elections must be free, fair, and open to all citizens on equal terms. It did not announce a constitutional requirement that representative bodies be replicated at every administrative level, or that every executive officer exercising delegated power must be directly elected.
[37] Our constitutional practice makes that clear. Even within the core territories, not every official wielding public power is elected. Judges, Supervisors, and many Executive Officers assume office by appointment and confirmation, not by direct universal suffrage. The representation that 39th Presidential Election safeguards is structural representation at the level of the Republic – the ability of citizens to shape the Senate and Presidency that, in turn, shape the rest of the state – not a guarantee that all sub-units will be mini-parliaments.
[38] On that understanding, Protectorate residents are not relegated to 'subjects'. They remain full citizens of SimDemocracy, able to vote in senatorial and presidential elections and in public referenda on the same basis as all others. Their representatives in the Senate may legislate for the Protectorate; their President appoints (and may remove) its chief executive; and the national courts exercise jurisdiction over its disputes. That is representation in governance in the very sense 39th Presidential Election was concerned with.
[39] As such, their rights to political participation and representation are not violated. Article 3 is thus constitutional in full.
Conclusion
[40] For the reasons above, I maintain my view that the petition should be dismissed on the merits, not on mootness, and I respectfully concur.