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The content of this article is solely the responsibility of the author and does not necessarily represent the official views of the College of Micronesia - FSM

The FSM Constitution and the 2001 Constitutional Convention

By John R. Haglelgam
Regent Professor
College of Micronesia-FSM

A Brief History

The Constitution of the Federated States of Micronesia (FSM Constitution) was drafted by the Micronesian Constitutional Convention, which convened in Saipan in June of 1975. The Congress of Micronesia convened the Convention to draft a constitution for a Micronesian state. This move was intended to support the Micronesian position at the future political status negotiation with the United States, which had remained deadlocked. During the negotiation proceedings, the Micronesians had argued that sovereignty in Micronesia resides with the people and that the Micronesians have the inherent right to draft their constitution and form their government. The United States negotiators had argued that the Compact of Free Association would form the basis of a constitution for a future Micronesian state. This would mean that the Compact would be the supreme law in a Micronesian state. From the perspective of the Congress of Micronesia, this would mean that the United States could restrict the exercise of sovereign rights of the Micronesians to freely draft their constitution. In order to lend meaning to the exercise of this right, the Compact must conform to the constitution and not the other way around.

All the districts of the Trust Territory of the Pacific Islands elected delegates to the Convention. Even the districts that had advocated for separation, namely the Marshall Islands District, Palau District, and the Mariana Islands District, participated in the drafting of the FSM Constitution; thus the inclusion of these districts in the text of the Constitution.

The FSM Constitution was not ratified until 1978. The long delay for the referendum was due to the United States objections to several provisions of the draft constitution. The most significant ones were the objections to the supremacy clause and the two hundred mile exclusive economic zone (EEZ). The Americans had originally argued that the Constitution should be subservient to the Compact of Free Association. The objection to the EEZ provision was the standard American argument that no one state should exercise control over tuna, a highly migratory species.

In 1977, Peter Rosenblatt, the newly appointed head of the Office of Micronesian Status Negotiation, held several informal meetings with the Micronesian delegations which culminated in the “Statement of Agreed Principles for Free Association,” generally known as the “Hilo Principles.” The Hilo Principles was the breakthrough that restarted the stalled Micronesian status negotiation in 1977.

In addition to control of domestic affairs, the Hilo Principles had allowed the future Micronesian states to exercise authority over foreign affairs while the United States retained control of security and defense. This grant of authority over foreign affairs completely altered the intent of the free association from its original conceptualization as the stepping-stone to independence, to being the conduit for political independence. The negotiations in 1977 were historic because the United States had, for the first time, allowed separate negotiation with delegations from the Marshall Islands District and Palau District. Previously, the United States had negotiated a commonwealth status with the Mariana District.

After the rounds of negotiation in 1977, the United States negotiators had dropped their objections to provisions of the draft FSM Constitution. This allowed the referendum on the Constitution to take place in 1978. In the referendum, voters in the Marshall Island District, Palau District, and the Mariana District rejected the FSM Constitution while voters in Kusaie District, Ponape District, Truk District, and Yap District approved it overwhelmingly. (Later the spelling of Kusaie, Ponape, and Truk were changed to Kosrae, Pohnpei, and Chuuk respectively.)

By approving the FSM Constitution in the 1978 plebiscite, the voters in Kusaie, Ponape, Truk, and Yap Districts had finally exercised their sovereign rights to form their own country called Federated States of Micronesia with the Constitution as its supreme law.

A Brief Analysis of the FSM Constitution

This short analysis will be limited to the system and form of government, concept of separation of power, checks and balances, the role of traditional chiefs embodied in the FSM Constitution, issues at the center of dispute between the states and the national government, and finally issues that might dominate the FSM ConCon this year.

The FSM Constitution is a child of politics. It is a political document that was crafted amidst competing interests, political demands and controversies, but in the end the delegates to the Micronesian Constitutional Convention (also referred to as Micro ConCon) were able to reach compromises on key issues that contributed to the success of the Convention.

The Preamble expresses the wish of the Micronesians to live together amongst themselves and with the rest of humanity, in peace and harmony. It also traces the beginning of a Micronesian nation to the time when their ancestors, using rafts and canoes and navigating by the stars, set out on epic voyages to make their homes on these islands.

The Constitution establishes a federal system with a substantively presidential form of government. Its main features are (1) the separation of power; (2) checks and balances; and (3) the creation of the semi-autonomous states.

The Constitution establishes three levels of government: (1) the national; (2) the state; and (3) the municipal. The state governments have exclusive power to deal with such local issues as land, primary and secondary education, health care, the environment and conservation within their respective jurisdictions, including the territorial sea, lagoons and rivers. Under the Constitution, the states are also given the residual power, i.e., the powers that are not expressly delegated to the national government and are not national in character. In other words, the powers of the national government are limited to those that are expressly delegated and are national in character.

A federal system of government had more appeal with the delegates to the Micro ConCon because under this system the states in the Federated States of Micronesia would retain their cultural distinctions. In addition, each state can undertake to legislate for the preservation of its cultures and traditions and prescribe the role of its traditional leaders in the state government. Furthermore, the Micronesians had bad experience living under the unitary Trust Territory government that was at times quite autocratic in its dealing with the district governments.

The Micro ConCon created a government that is substantially presidential in form. The separation of powers and checks and balances are embodied in the creation of a legislature, an executive, and a judiciary.

Basically, the FSM Congress is the law-making body, but a congressional act does not become law until the president approves it or let it becomes law without his signature. The Congress, however, has the ultimate power to override a presidential veto by a vote of at least three of the state congressional delegations, each casting one vote. When the FSM Congress overrides a presidential veto, the bill becomes law without any further action on the part of the president. The only action remains for the president to do is to assign a number to the law, a purely administrative act.

The FSM Congress is a unicameral legislature, which has fourteen (14) members, 10 serving two-year terms and 4 four-year terms. The two-year term members represent election districts, with roughly equal population, in their respective states. Chuuk has five two-year members; Kosrae has one, Pohnpei three, and Yap one. Each of the states has one four-year member. The four-year members represent the equality of the states. The four-year members are the only ones eligible to run for president and vice president. To lower the cost of operating the congress, the Micro ConCon combined the two-year term and four-year term members in one chamber. But to dispel the smaller states fears of being outvoted in the Congress, the Micro ConCon delegates adopted an ingenious voting process. Each bill must pass two readings in Congress; meaning that it must be voted on twice on separate days. On first reading, the entire members of the Congress vote, but on second reading each state delegation casts one vote. In other words, all fourteen members of Congress vote on first reading and only four cast votes on second and final reading, one vote for each state. This voting process does more than dispel the fear of the smaller states; it also equalizes the voting power in the FSM Congress. On second reading of bills, all four states -- small and large-- cast one vote.

Another matter of considerable importance is the internal organization of the Congress. The FSM Congress has six standing committees. Each state has at least one representative on each committee. The bigger states usually have more members on each committee. At the start of each new congress, the speaker, in consultation with state delegations, appoints members to the various committees. The committee assignment reflects the interest and expertise of each member. These committees are permanent subject matter committees, meaning each committee’s jurisdiction extends to specific issues. These committees form the backbone and the workhorses of congress; thus the committee chairmen are not only important politicians, but politically powerful too. The committees hold hearings on bills and resolutions on issues under their respective jurisdictions and make decision regarding their disposition. A committee can report a bill to the floor of congress for favorable action or for filing. Sometimes a committee will decide to hold a bill or resolution in the committee indefinitely, a euphemism for killing it.

As a head of the executive branch, the president is legally charged with implementing national laws and policies. He can, however, initiate public policy. But substantive policy matters are subjected to congressional approval and so are nominations of principal officials in the executive branch. Additionally, the president is constitutionally delegated the roles as (1) head of government, and (2) head of state. As the head of state, the president symbolizes and represents the sovereignty of the people of the Federated States of Micronesia. This makes the president the only internationally recognized symbol of sovereignty and national independence in the FSM.

The vice president, who is also elected by the Congress from among its four-year members, is the second ranking official in the executive branch. The Constitution delineates no separate function for the vice president, except to succeed to the presidency when the president dies or is disabled. In essence, the vice president is the president-in-waiting. The vice president, however, performs tasks assign by the president and participates as a full-fledged member of the President Cabinet.

The FSM Supreme Court interprets the Constitution; thus, the power to review acts of the legislative and the executive branches. This power is known as the “judicial review.” The justices are, however, nominated by the president with the advice and consent of the FSM Congress. The Congress has the power to confirm or reject a nomination to the FSM Supreme Court. The role of the executive and legislative branches in the nomination and approval process of nominations to the FSM Supreme Court ensures that the representatives of the people will have a saying in who sits on the Court. It brings legitimacy and politics to the Court. The Congress can refuse approval of a nomination to the Supreme Court because of nominee’s social views and political beliefs. So far, the FSM Congress has refused to act on only one nomination because of questions about his educational qualification.

With its exclusive power over taxes and appropriation of funds, the Congress is certainly the Primus inter pares in the national government. The Congress can use its tax power to raise revenues and appropriate these revenues in any manner it sees fit. National law requires the president to submit the consolidated national government budget to the FSM Congress no later than April 1st each year for its review and approval during its May session. The Congress uses this review power to examine the merit of every line item in the budget and make any adjustments (i.e., reduce, increase, or delete entirely) as it sees fit.

Additionally, the FSM Congress elects the President and the Vice President. This added function has made the Congress the constituent of the President. As such, congressional power vis--vis the President is greatly enhanced. In other words, the mode of electing the FSM President diminishes the presidential power in its dealing with the national legislature. A president or a vice president who wishes to seek re-election must always try to avoid alienating members of Congress. This has resulted in situations where the president has allowed Congress to encroach on its constitutionally delegated power. This has threatened the fine line of checks and balances established under the FSM Constitution and may have tipped the balance of power between the two political branches in favor of the Congress.

The FSM Supreme Court has used its power to interpret the Constitution to give itself jurisdiction over land cases that involved diversity of citizenship. Additionally, the Court has used the legal fiction of “dormant concurrent jurisdiction” to hear cases rising from fishing activities in the territorial sea. These decisions have expanded the jurisdiction of the FSM Supreme Court into areas that are not stipulated in the Constitution. These decisions may have been in violation of the letter and/or the spirit of the FSM Constitution.

The Constitution empowers the state government to voluntarily utilize the FSM Supreme Court as the court of last resort. So far, the Kosrae State Constitution is the only one that mandates the use of the FSM Supreme Court for appellate cases

The Constitution wrestled with the contentious issue of traditional leaders’ roles in the new national government. The traditional chiefs had participated in the ConCon as full-fledged members by virtue of traditional titles. Some of the districts supported the traditional chiefs’ role in the national government, but others did not. In the end, however, the argument that the proper place for the traditional leaders is at the state level seemed to be accepted by the delegates. The Constitution leaves it up to each state to decide whether to allocate one of its two-year seats in the FSM Congress to the traditional chiefs. So far, no state has allocated any of its two-year seats to the traditional chiefs and the chiefs, as far as I know, have not made any requests for it.

The Constitution authorizes the FSM Congress to create, when needed, a Chamber of Chiefs consisting of traditional leaders from each of the states in the FSM. The states that have no traditional leaders may elect their representatives to this body. The Constitution is silent on whether this Chamber will have a legislative or an executive function. The states may also provide “an active, functional role” for their traditional chiefs in their constitutions. So far, Yap State Constitution is the only one that provides this role for the traditional leaders.

The Constitution ensures that no conflict arises with regard to customary role of traditional chiefs and their customary recognition and honor. It seems to allow them to serve in any roles at any level of government as may be prescribed by constitution or statute.

Additionally, the Constitution allows the protection of “traditions of the people of the Federated States of Micronesia” by statute. It goes further to declare that if such statute is challenge as in violation of the Declaration of Rights provision, then “protection of Micronesian tradition shall be considered a compelling social purpose warranting such governmental action.” This implies that a statute protecting tradition is immune from being declared unconstitutional even if it directly violates the Declaration of Rights provision of the FSM Constitution.

The Constitution mandates that the FSM constituent states have democratic constitutions. Some experts have pointed to this requirement for democratic state constitution to question the constitutionality of the Yap State Constitution, which creates two traditional chiefs’ councils to function essentially as the fourth branch of government.

The Periphery Against the Center: The 2001 FSM Constitutional Convention

I should preface this discussion by saying that political disputes between the center and the periphery are not uncommon in a federal system of government such as the one in the Federated States of Micronesia. In fact disputes and frictions seem to be endemic to a federal system of government.

The issues discussed below are certainly going to surface in the FSM Constitutional Convention this year. These issues are economic in nature and are not new. The voters have already voted against them in nationwide plebiscites, but the states are prepared to bring them up again. The state positions on these issues are not fully articulated yet, but I will outline them here with the hope of stimulating discussion. I certainly want to get as many views and comments on these issues as possible.

For the FSM, a contentious issue is the power of the national government to regulate foreign investment permit. The Journal of the Micronesian ConCon had mentioned the issuance of foreign investment permits as one example of issues that could fall under state power to regulate. Without the benefit of the FSM Supreme Court’s interpretation, the states argue that the power to issue foreign investment permit is theirs; thus it is beyond the national government to regulate. In spite of it being listed in the Micro ConCon Journal as an example of a state power, the implication of foreign investment on foreign affairs and international commerce need to be addressed. It is hard to deny the fact that foreign investment is an area directly linked to international commerce. Issuance of investment permits to foreign investors to do business in the FSM is also directly linked to the national power to conduct foreign affairs. This linkage allows the national government to constitutionally exercise its power through the residual clause grant of power.

Another recent dispute between the states and the national government is the ownership of the FSM exclusive economic zone, i.e., the area of the ocean outside of the twelve-mile territorial sea extending to two hundred miles from the island baselines. The FSM Constitution empowers the national government to “regulate the ownership, exploration, and exploitation of natural resources within the marine space” in the exclusive economic zone. To comply with its obligation under international law, the national government neither claimed ownership or control of the exclusive economic zone, but only the sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, both living and non-living.

The states forced a referendum on this issue, but the voters defeated the proposed amendment to the FSM Constitution that would have made the states owners of the resources in the exclusive economic zone. The crux of this dispute is control of the revenue derived from selling fishing permits to foreign fishing boats. The amounts vary from year to year, but it is substantial for a nation with few resources and small locally derived revenue.

The states have taken the national government to court to force the latter to share the fishing permit revenue with them. The trial division of the FSM Supreme Court granted a summary judgment in favor of the national government and the states appealed. The appellate division upheld the trial court decision. In granting the summary judgment, the court rejected the states’ claim of ownership of the exclusive economic zone and the additional claim that the fishing permit fee is revenue that must be divided in accordance with Section 5 of Article IX of the FSM Constitution. One interesting aspect of the states’ arguments was the use of custom and tradition to support their claim of ownership. The states are new inventions and with weak links to custom and tradition. According to custom and tradition in some states, individual persons, lineages and clans own the reefs within and without the territorial sea. But the customary ownership of reefs is not universal in the Federated States of Micronesia.

The defeat of the proposed amendment in the plebiscite did not signal the end of the states’ attempt to claim ownership. The states are now looking to the 2001 FSM ConCon to advance their claims again, but before the states bring this issue up they need to examine their policy toward the outlying areas. The voters in the outlying villages and defeated the proposed amendment for a reason. Over the years, members of the national congress, through congressional appropriations, have provided assistance to build schools and dispensaries, extended power, and built and maintained secondary roads in remote areas. To the people living in these areas, the closest and most visible presence of the any governmental agency is the FSM Congress funded projects. They view the states’ claim to the exclusive economic zone as a threat to the relationship that they have established with their representatives in the national congress. After all it is their national representatives that have provided the “pork” when they needed it most. Perhaps the voters also see the national government as a lesser evil than the state government. For the states to succeed in convincing the voters, I believe a change in policy toward the remote villages and the outlying islands is in order: a proactive policy that would incorporate the needs of the remote areas in the current state budget will help.

Another issue related to the ownership of resources in the exclusive economic zone is the division of revenue between the national government and the states. Currently, national law requires that the national government retains 30 percent of tax revenue from all the states and 70 percent is remitted to the state where the tax is collected. Although the current revenue sharing formula favors the states, the states want it to be increased to 80 percent for them and 20 for the national government and be constitutionally mandated. From the states’ perspective, a constitutionally mandated formula will obstruct any congressional tampering. It seems, however, that a formula mandated by the constitution will be so rigid that it might not be in the best interest of the nation to require it.

For fishing permit revenue, the national government keeps all of it, but the FSM Congress appropriates this fund for projects in the states. The merit of some of these appropriations is questionable, but the distribution within each state is, for the most part, equitable. The remote villages and outlying islands receive their fair share.

The method of electing the president is another issue that must be re-examined in this year’s Constitutional Convention. A popular election of the president will enhance the legitimacy and thus the power of the FSM presidency vis--vis the other two branches of the national government. It will free the presidency from the politics within congress and creates a genuine check and balance between the two branches of the national government. Additionally, it will create a sense of ownership among the voters toward the presidency and perhaps a feeling of national unity too. In other words, the presidency might just become the focal point for national unity. The popular election of the FSM president must, however, include the necessary safeguards to ensure that the process does not politically marginalize the smaller states, thus creating a politically dangerous and explosive situation.

The last issue that I want to discuss here is term limit for members of the FSM Congress. Some of my friends have argued against term limit for congress members because it is really up to the people, so they argued, to either retain them or kick them out. But a closer analysis of this issue will show that the incumbents are well entrenched in their elected positions because of the client voters who have received material benefits in exchange for their support in election after election. In other words, the incumbents are commandeering resources of the state to retain their elective office. These resources are not available to non-incumbent candidates. So a level playing field never existed in the political arena in the FSM. In election after election, the political playing field always tipped heavily in favor of the incumbent because of use of public funds to curry favors from voters.

I believe the added political values of term limits for congress are several: (1) it might bring a new breed of politicians to office with different ideas and ways of doing things and new vision for the future. It could bring excitement that might invigorate and animate the political process in creative ways; (2) it might erase the sense of political hopelessness among voters who feel left out of the process; and (3) it would create a genuine political competition among the candidates.

The above discussion represents just a small portion of public concerns and possible issues at the upcoming 2001 FSM Constitutional Convention. I have only tried to raise some important issues for discussion; new ones will undoubtedly emerge as we go into the convention; and the convention itself will be a complex process of negotiation and compromise. I would appreciate your comments and positions regarding these issues. You can reach me at this e-mail address:johnh@comfsm.fm

 
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