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THE SUPREME COURT OF

FEDERATED STATES OF MICRONESIA
Cite as Truk v. Otokichy (I), 1 FSM Intrm. 127 (Truk 1982)
TRUK STATE TRIAL DIVISION

[1 FSM Intrm. 127]
STATE OF TRUK,

vs.
 
MICHAEL OTOKICHY,

Defendant.

ORDER DENYING MOTION

     This matter comes before this court pursuant to the Certification of the Question of Jurisdiction entered December 10, 1981 by Associate Justice Nakamura of the High Court of the Trust Territory.  The authority for the certification is Special Joint Rule No. 1 of the High Court and of the Supreme Court of the Federated States of Micronesia.

     The Federated States of Micronesia asserts that the case comes within the jurisdiction of the Supreme Court.  At oral argument on January 18, 1982, the Federated States of Micronesia and the defendant appeared by counsel.  The defendant did not oppose the motion.  On January 22, the court invited Comment by the Federated States of Micronesia as to the non-appearance of the State of Truk in which name the prosecution is made.  The responses were a memorandum from the State of Truk, and a letter of the Federated States of Micronesia stating that the State of Truk was acting as

[1 FSM Intrm. 128]

the delegate of the Federated States of Micronesia, and was not a proper party.

     The court appreciates the memorandum of the State of Truk, and has no doubt that it should be considered.  The objection of the Federated States of Micronesia is without merit because it assumes national offenses are charged. This cannot be assumed because it is the crucial question presented by the motion.

     On January 21st the court invited the Trust Territory to submit an amicus curiae brief.  None has been received.

     The information was filed on November 19, 1981, accusing the defendant of four serious crimes occurring on or about March 7, 1981 in Truk in violation of various sections of Title 11 of the Trust Territory Code.

     The jurisdiction of this court is found in Article XI, 6 of the Constitutionof the Federated States of Micronesia.

(a)  The trial division of the Supreme Court has original and exclusive jurisdiction in cases affecting officials of foreign governments, disputes between states, admiralty or maritime cases, and in cases in which the national government is a party except where an interest in land is at issue.
 
(b)  The national courts, including the trial division of the Supreme Court, have concurrent original jurisdiction in cases arising under this Constitution; national law or treaties; and in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizens or subject.

[1 FSM Intrm. 129]

(c)  When the jurisdiction is concurrent, the proper court may be prescribed by statute.

     The issue most basic to the motion is whether Title 11  is a national law.  The transition article of the Constitution, Article XV, 1, reads in part, "A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed."

     The National Criminal Code, 11 F.S.M.C. 101 et seq., enacted by the Congress of the Federated States of Micronesia, and approved by the President on January 7, 1981, did repeal Title 11.  FSM v. Hartman, 1 FSM Intrm. 43, 45 (Truk 1981).  The effective date was July 12, 1981.

     For the purposes of analyzing the issue of this motion, the effect of the National Criminal Code is eliminated because the alleged act occurred before the effective date of the Code.  The National Criminal Code, 11 F.S.M.C. 102, states:

(1)  Except as provided in Subsection (2) of this Section, this Code does not apply to offenses committed before its effective date.  For purposes of this Section, an offense is committed before the effective date if any of the elements of the offense occurred before that date.

(2)  Prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose, as if the Code were not in force.

     Only the National Criminal Code and P.L. 1-69, relating to pardon and parole, have amended or repealed Title 11.

     Returning to Section 1 of Article XV, the next question is whether Title 11 is inconsistent with the Constitution.

[1 FSM Intrm. 130]

If it is inconsistent, it did not continue in effect; if consistent, it did.  No party suggests, nor can the court, that Title 11 is inconsistent with or violative of the Constitution.

     Title 11 continued in effect.  As it continued in effect, was it as a national law?

     The court concludes that Title 11 is not a national law.  Article VIII, 1, of the Constitution states, "A  power expressly delegated to the national government, or a power of such an indisputably national character as to be beyond the power of a state to control, is a national power."  This criminal jurisdiction of Title 11 was not "expressly delegated" to the national government, nor is it of an "indisputably national character."

     The term "expressly delegated" needs to be distinguished from that power given to the Congress of the Federated States of Micronesia to define major crimes.  FSM Const. art. IX, 2(p).

     On the date of these alleged offenses, the criminal jurisdiction of Title 11 had not been expressly delegated to the national government.  Nor had Congress's exercise of that power, the National Criminal Code, become effective.

     Title 11 continued in effect under the Constitution of the Federated States of Micronesia, but not as a national law.

[1 FSM Intrm. 131]

     The Federated States of Micronesia contends that even if Title 11 fails to set forth national offenses, this court has jurisdiction by virtue of Secretarial Order 3039.

     The effective date of the government of the Federated States of Micronesia was May 10, 1979.  On this same date, by virtue of Secretarial Order 3039, certain powers of government were transferred to the Federated States of Micronesia.  The transfer of judicial functions occurred when, according to the same order, the Chief Justice of the High Court of the Trust Territory determined that functioning courts existed.  The Chief Justice made that determination for the Supreme Court on May 5, 1981.

     It is the position of the Federated States of Micronesia that the delegation of judicial functions, made in very broad language in Section 2 of the Order,  1  is the authority by which this court has jurisdiction over this case, whether tried in this court or under an assignment to another made by the Chief Justice of the Supreme Court.

     No such power is found in the Constitution of the Federated States of Micronesia.

[1 FSM Intrm. 132]

     Earlier comments show that this court does not have jurisdiction to try the case, and in the Constitution no power is found for the Chief Justice to exercise supervisory authority over other than national courts.

     Secretarial Order 3039 Section 5(a) provides, "The present Community and District Courts and the Trial and Appellate Divisions of the High Court of the Trust Territory of the Pacific Islands shall continue to function and operate in accordance with the present procedural and jurisdictional provisions of Trust Territory law until the Federated States of Micronesia, the Marshall Islands, and Palau have established functioning Courts pursuant to the terms of their respective constitutions."

     The Constitution of the Federated States of Micronesia contemplates courts other than this court:  it provides for 3 levels of government, national, state and local, FSM Const. art. VII, 1, and it provides for appeals from state and local courts, FSM Const. art. XI, 7, 8.

     State and local courts are not functioning.  This court cannot presume to act in their absence.

     It is therefore ordered that the motion of the Federated States of Micronesia that this court assume jurisdiction of the case be, and it hereby is, denied.

     It is further ordered that the file of the proceedings in this case be returned to the High Court of the Trust Territory.

Filed: 3/11/82

                                                                 /s/  Richard Benson   
                                                                 Associate Justice


Footnote:
 
 1.  "Until the termination of the Trusteeship Agreement and subject to the limitations contained in this Order and in existing treaties, laws, and regulations of the United States generally applicable in the Trust Territory of the Pacific Islands, executive, legislative, and judicial functions of the Government of the Trust Territory of the Pacific Islands are, except as otherwise provided herein, hereby delegated to the three political subdivisions of the Trust Territory known as the Federated States of Micronesia, the Marshall Islands, and Palau."  (Back to opinion)