FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Albert, 1 FSM Intrm. 14 (Pon. 1981)

[1 FSM Intrm. 14]

This case provides an opportunity for consideration of the interplay between the National Criminal Code, enacted by the Congress of the Federated States of Micronesia, and the Trust Territory Juvenile Code, enacted prior to the establishment of the government of the Federated States of Micronesia.

The case was originally instituted as a criminal action under the National Criminal Code accusing three defendants of violating the Code. At the September 3 initial appearance, two of the defendants, in response to questions by the Court, disclosed their ages as 16 and 17. The Juvenile Code makes special provision for proceeding where the persons charged as offenders are under the age of 18 years. 12 F.S.M.C. 1101.

On September 10, 1981, counsel for the two young defendants filed a notion seeking dismissal of the charges against them on the grounds that this Court lacks jurisdiction to hear criminal cases involving juveniles covered under the juvenile provisions of the Trust Territory Code, 12 F.S.M.C. § § 1101-1107.

[1 FSM Intrm. 15]

It would not be proper to dismiss the litigation against the juvenile defendants for lack of jurisdiction, for dismissal would be contrary to the National Criminal Code, 11 F.S.M.C. § § 101-1003. This is true despite the fact that the National Criminal Code makes no reference to charges against juveniles or to the Juvenile Code.

Article IX, Section 2(p) of the Constitution of the Federated States of Micronesia delegates to the Congress the power "to define major crimes and prescribe penalties, having due regard for local custom, and tradition." Congress exercised that power in adopting the National Criminal Code, 11 F.S.M.C. § § 101-1003. The National Criminal Code places in this Court exclusive jurisdiction over allegations of violations of the Code. No exception to that jurisdiction is provided for juveniles, so charges of crimes leveled against juveniles are governed by the National Criminal Code.

This is not to say that the Juvenile Code is without further effect. The continued existence of a Trust Territory statute within the Federated States of Micronesia is governed by Article XV, Section 1 of the Federated States of Micronesia Constitution, which provides that:

Section 1. A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this constitution, or is amended or repealed . . . .

An amendment or repeal of a Trust Territory statute by the Congress of the Federated States of Micronesia need not be explicit to be effective. If a Trust Territory statutory provision is inconsistent or in conflict with a

[1 FSM Intrm. 16]

statutory provision enacted by the Federated States of Micronesia Congress, that provision is repealed by implication. Yet other provisions of the same Trust Territory statute may remain intact if the statute, without the deleted provision, is self-sustaining and capable of separate enforcement. Thus, if a provision of the Juvenile Code is in conflict with the National Criminal Code, the National Criminal Code constitutes an amendment or repeal of that provision, but the repeal is only to the extent of that inconsistency.

For example, Section 4 of the Juvenile Code, 12 F.S.M.C. 1104, states that:

     Proceedings against a person as a delinquent child may be brought in the Trial Division of the High Court, or in the district or community court having jurisdiction over the place where the delinquency or any part of it occurred, except that if the acts charged may legally constitute murder or rape of which the person is not conclusively presumed to be incapable by law, the proceedings shall be brought only in the Trial Division of the High Court. (Emphasis added).

There can be no question that the underlined clause has been effectively repealed by the National Criminal Code which vests exclusive jurisdiction over murder and rape charges in the Supreme Court of the Federated States of Micronesia. 11 F.S.M.C. § § 901, 911, 914. Yet, the first clause of the Juvenile Code language quoted above has been set aside by the National Criminal Code only insofar as it might otherwise have been read to permit the courts named there to exercise continued jurisdiction over charges arising under the National Criminal Code. The clause presumably remains intact for purposes of cases which do not

[1 FSM Intrm. 17]

fall within the exclusive jurisdiction of this Court under the National Criminal Code or some other provision of FSM Law.

On the other hand, neither the National Criminal Code nor any other provision of law enacted by the FSM Congress is at odds with Section 1 of the Juvenile Code, 12 F.S.M.C. 1101, which specifies that "in cases involving offenders under the age of eighteen years, courts shall adopt a flexible procedure . . . ." That provision remains in effect and, coupled with this Court's broad rulemaking powers under Article XI, Section 9 of the Constitution, calls for this court to institute special procedures for consideration of criminal charges against juveniles.

Therefore, while the Court retains jurisdiction over the proceedings concerning all three defendants, it does appear appropriate to proceed separately in cases involving the juveniles. For this reason, we separate the cases involving the Juvenile defendants and shall proceed with Peteriko Albert as the only defendant in Criminal No. 1981-504. The proceedings as to the juvenile defendants shall be separate and shall progress pursuant to procedures to be developed by the Court, the parties and their counsel.

So ordered as of the 17th day of September, 1981.

Entered: September 22, 1981

/s/

---------------------------
EDWARD C. KING
Chief Justice
Supreme Court
Federated States of Micronesia