8 FSM Intrm. 577-580

THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA

CHUUK STATE TRIAL DIVISION

Cite as Chuuk v. Sound,

8 FSM Intrm. 577 (Chk. S. Ct. Tr. 1998)

[8 FSM Intrm. 577]

CHUUK STATE,

Plaintiff,

vs.

JOHNATHAN SOUND,

Defendant.

CSSC CRIMINAL CASE NO. 9-97

ORDER AND JUDGMENT

DENYING MOTION TO DISMISS

Wanis R. Simina

Associate Justice

Decided: July 29, 1998

APPEARANCES:

For the Plaintiff: Maketo Robert, Esq.

Attorney General

Office of the Chuuk Attorney General

P.O. Box 189

Weno, Chuuk FM 96942

For the Defendant: Ready Johnny, Esq.

Office of the Public Defender

P.O. Box 745

Weno, Chuuk FM 96942

* * * *

HEADNOTES

Constitutional Law ) Chuuk; Custom and Tradition ) Chuuk

The Chuuk Constitution provides that existing Chuukese custom and tradition shall be respected. Chuuk v. Sound, 8 FSM Intrm. 577, 578 (Chk. S. Ct. Tr. 1998).

Criminal Law and Procedure; Custom and Tradition ) Chuuk

A customary forgiveness ceremony resolving disputes among families or clans may not prevent the court system from determining the individual guilt of the defendant and considering whether societal notions of justice and the need to uphold law and order require fining, imprisonment or other restriction

[8 FSM Intrm. 578]

of the defendant's freedom. Chuuk v. Sound, 8 FSM Intrm. 577, 579 (Chk. S. Ct. Tr. 1998).

Criminal Law and Procedure ) Dismissal; Custom and Tradition ) Chuuk

Because the trend of the application of customary settlements in the criminal justice system, is its use as excuse, justification or mitigation during the imposition of sentence after conviction for a crime and not as an element of guilt or the dismissal of an information and complaint charging a criminal offense, a motion for dismissal of a major criminal charge on the grounds that a customary settlement has been reached will be denied. Chuuk v. Sound, 8 FSM Intrm. 577, 579-80 (Chk. S. Ct. Tr. 1998).

* * * *

COURT'S OPINION

WANIS R. SIMINA, Associate Justice:

This case comes before the Court after notice and proceedings in the nature of a pre-trial hearing. Preliminary matters before the Court at the hearing included testimony in support of an oral motion to dismiss a charge of murder against the Defendant on the grounds that the incident had been the subject of a customary settlement.

Defendant argues, in essence, that the customary settlement reached between all parties and consented to by the prosecution requires dismissal of the charge of murder against him under the provisions of Article IV, Chuuk State Constitution, which provides that "Existing Chuukese custom and tradition shall be respected."

The motion to dismiss the charge of murder against the Defendant is denied and in view of the reasoning and conclusions reached herein it is not necessary to review the evidence tending to establish the fact of a customary settlement.

This is a case of first impression for the Court in the application of Article IV where the Defendant is charged with a major crime such as murder. The issue has been before the courts in other States of the FSM and before the Supreme Court of the FSM. These custom and tradition provisions are not a part of the American judicial system and are not found in the English common law.

Therefore, it falls upon the Court at this time to resolve the basic issue of whether an information and complaint charging a major crime of murder is subject to dismissal on the grounds that a customary settlement has been reached between the accused and the victim or the family of a deceased victim.

It is probable that the concept of customary and traditional settlements of disputes or wrongdoing dates from the time the islands of Micronesia were first inhabited.

In the case of Federated States of Micronesia v. Mudong, 1 FSM Intrm 135 (Pon. 1982), the Court noted that at a time more than 100 years ago, a customary settlement disposed entirely of any rights or responsibilities of the parties. However, at least as early as German and Japanese times through the American time, to the adoption of the present Constitution of Chuuk State, these systems of government maintained a court system for the trial and punishment of serious criminal activity.

The court in the Mudong case also noted that there is very little written reference to what effect, if any, a customary settlement should have on the criminal justice system provided by the courts.

Although the Mudong case arose in Pohnpei, the reasoning of the Court used to reach its

[8 FSM Intrm. 579]

conclusion is applicable to the case at bar and is persuasive authority for the establishment of a rule of law for this issue in Chuuk State.

This Court takes the liberty of paraphrasing the Mudong case in reaching its conclusion herein that customary settlement and court proceedings have separate fields of operation and one should not control over the other. The most striking difference is said to be that a customary settlement involves individuals or a group comprised of a family, clan or a community. In contrast, the criminal law focuses on preserving order and respect for the rule of law in all of society throughout the State.

This Court sees the following two paragraphs as sound logic and this approach is adopted as the policy and precedent for future cases before the Courts in Chuuk State. In reviewing the constitutional legal system and the customary settlement system, the Court in the Mudong case said:

The two systems, then, can be seen as supplementary and complementary, not contradictory. Each has a valuable role to perform, independent of the other. There may often be opportunities for coordination or mutual support, but there appears no reason why one system should control the other.

A court's finding of guilt and sentencing would not render illegal, or prevent, customary forgiveness of the defendant by the victim's family or clan. Whatever the court does, customary settlement may remain desirable to resolve lingering hostility and disputes between the families. Conversely, a customary forgiveness ceremony resolving disputes among families or clans may not prevent the court system from determining the individual guilt of the defendant and considering whether societal notions of justice and the need to uphold law and order require fining, imprisonment or other restriction of the defendant's freedom.

Mudong, 1 FSM Intrm. at 145-46.

There is no doubt that the superiority of the Criminal Justice System is known throughout the Trust Territory at least since 1958. See Ngirasmengesong v. Trust Territory, 1 TTR 615 (App. 1958) (Palau). See also Trust Territory v. Lino, 6 TTR 7(Marsh. 1972); Figir v. Trust Territory, 4 TTR 368 (Yap 1969).

Additional authority for the conclusion reached by this Court is found in Ngirmekur v. Municipality of Airai, 7 TTR 477 (Pal. 1976) wherein the opinion reviews other cases as follows: "If the custom breaches the peace and fails to maintain law and order, the government shall provide a solution. Trust Territory v. Benido, 1 T.T.R. 46 (Tr. Div. 1953)." Ngirmekur, 7 TTR at 484-85. "Public policy forbids the enforcement of those customs which are inherently disruptive of maintaining law and order. Yangilemau v. Mahoburimalei, 1 T.T.R. 429 (Tr. Div. 1958)." Ngirmekur, 7 TTR at 485. "Where a crime is committed, the criminal cannot use custom as a shield from prosecution. Figir v. Trust Territory, 4 T.T.R. 368 (Tr. Div. 1969)." Ngirmekur, 7 TTR at 485.

It should be noted that the cases cited are based largely on provisions in the Trust Territory Code. However, the reasoning and logic contained in these decisions are most impressive for the determination of issues involving custom and tradition.

For many years, the trend of the application of customary settlements in the criminal justice system, is its use as excuse, justification or mitigation during the imposition of sentence after conviction for a crime and not as an element of guilt or the dismissal of an information and complaint charging a criminal offense. This is especially true where the charge, as in this case, is a major criminal

[8 FSM Intrm. 580]

offense.

Therefore, the motion for dismissal of the charges on the grounds that a customary settlement has been reached is due to be denied.

It is so ordered.

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	THE SUPREME COURT OF THE FEDERATED STATES OF MICRONESIA CHUUK STATE TRIAL DIVISION Cite as Chuuk v. Sound, 8 FSM Intrm. 577 (Chk. S. Ct. Tr. 1998) [8 FSM Intrm. 577] CHUUK STATE, Plaintiff, vs. JOHNATHAN SOUND, Defendant. CSSC CRIMINAL CASE NO. 9-97 ORDER AND JUDGMENT DENYING MOTION TO DISMISS Wanis R. Simina Associate Justice Decided: July 29, 1998 APPEARANCES: For the Plaintiff: Maketo Robert, Esq. Attorney General Office of the Chuuk Attorney General P.O. Box 189 Weno, Chuuk FM 96942 For the Defendant: Ready Johnny, Esq. Office of the Public Defender P.O. Box 745 Weno, Chuuk FM 96942 * * * * HEADNOTES Constitutional Law ) Chuuk; Custom and Tradition ) Chuuk The Chuuk Constitution provides that existing Chuukese custom and tradition shall be respected. Chuuk v. Sound, 8 FSM Intrm. 577, 578 (Chk. S. Ct. Tr. 1998). Criminal Law and Procedure; Custom and Tradition ) Chuuk A court's finding of guilt and sentencing would not render illegal, or prevent, customary forgiveness of the defendant by the victim's family or clan. Whatever the court does, customary settlement may remain desirable to resolve lingering hostility and disputes between the families. Chuuk v. Sound, 8 FSM Intrm. 577, 579 (Chk. S. Ct. Tr. 1998). Criminal Law and Procedure; Custom and Tradition ) Chuuk A customary forgiveness ceremony resolving disputes among families or clans may not prevent the court system from determining the individual guilt of the defendant and considering whether societal notions of justice and the need to uphold law and order require fining, imprisonment or other restriction [8 FSM Intrm. 578] of the defendant's freedom. Chuuk v. Sound, 8 FSM Intrm. 577, 579 (Chk. S. Ct. Tr. 1998). Criminal Law and Procedure ) Dismissal; Custom and Tradition ) Chuuk Because the trend of the application of customary settlements in the criminal justice system, is its use as excuse, justification or mitigation during the imposition of sentence after conviction for a crime and not as an element of guilt or the dismissal of an information and complaint charging a criminal offense, a motion for dismissal of a major criminal charge on the grounds that a customary settlement has been reached will be denied. Chuuk v. Sound, 8 FSM Intrm. 577, 579-80 (Chk. S. Ct. Tr. 1998). * * * * COURT'S OPINION WANIS R. SIMINA, Associate Justice: This case comes before the Court after notice and proceedings in the nature of a pre-trial hearing. Preliminary matters before the Court at the hearing included testimony in support of an oral motion to dismiss a charge of murder against the Defendant on the grounds that the incident had been the subject of a customary settlement. Defendant argues, in essence, that the customary settlement reached between all parties and consented to by the prosecution requires dismissal of the charge of murder against him under the provisions of Article IV, Chuuk State Constitution, which provides that "Existing Chuukese custom and tradition shall be respected." The motion to dismiss the charge of murder against the Defendant is denied and in view of the reasoning and conclusions reached herein it is not necessary to review the evidence tending to establish the fact of a customary settlement. This is a case of first impression for the Court in the application of Article IV where the Defendant is charged with a major crime such as murder. The issue has been before the courts in other States of the FSM and before the Supreme Court of the FSM. These custom and tradition provisions are not a part of the American judicial system and are not found in the English common law. Therefore, it falls upon the Court at this time to resolve the basic issue of whether an information and complaint charging a major crime of murder is subject to dismissal on the grounds that a customary settlement has been reached between the accused and the victim or the family of a deceased victim. It is probable that the concept of customary and traditional settlements of disputes or wrongdoing dates from the time the islands of Micronesia were first inhabited. In the case of Federated States of Micronesia v. Mudong, 1 FSM Intrm 135 (Pon. 1982), the Court noted that at a time more than 100 years ago, a customary settlement disposed entirely of any rights or responsibilities of the parties. However, at least as early as German and Japanese times through the American time, to the adoption of the present Constitution of Chuuk State, these systems of government maintained a court system for the trial and punishment of serious criminal activity. The court in the Mudong case also noted that there is very little written reference to what effect, if any, a customary settlement should have on the criminal justice system provided by the courts. Although the Mudong case arose in Pohnpei, the reasoning of the Court used to reach its [8 FSM Intrm. 579] conclusion is applicable to the case at bar and is persuasive authority for the establishment of a rule of law for this issue in Chuuk State. This Court takes the liberty of paraphrasing the Mudong case in reaching its conclusion herein that customary settlement and court proceedings have separate fields of operation and one should not control over the other. The most striking difference is said to be that a customary settlement involves individuals or a group comprised of a family, clan or a community. In contrast, the criminal law focuses on preserving order and respect for the rule of law in all of society throughout the State. This Court sees the following two paragraphs as sound logic and this approach is adopted as the policy and precedent for future cases before the Courts in Chuuk State. In reviewing the constitutional legal system and the customary settlement system, the Court in the Mudong case said: The two systems, then, can be seen as supplementary and complementary, not contradictory. Each has a valuable role to perform, independent of the other. There may often be opportunities for coordination or mutual support, but there appears no reason why one system should control the other. A court's finding of guilt and sentencing would not render illegal, or prevent, customary forgiveness of the defendant by the victim's family or clan. Whatever the court does, customary settlement may remain desirable to resolve lingering hostility and disputes between the families. Conversely, a customary forgiveness ceremony resolving disputes among families or clans may not prevent the court system from determining the individual guilt of the defendant and considering whether societal notions of justice and the need to uphold law and order require fining, imprisonment or other restriction of the defendant's freedom. Mudong, 1 FSM Intrm. at 145-46. There is no doubt that the superiority of the Criminal Justice System is known throughout the Trust Territory at least since 1958. See Ngirasmengesong v. Trust Territory, 1 TTR 615 (App. 1958) (Palau). See also Trust Territory v. Lino, 6 TTR 7(Marsh. 1972); Figir v. Trust Territory, 4 TTR 368 (Yap 1969). Additional authority for the conclusion reached by this Court is found in Ngirmekur v. Municipality of Airai, 7 TTR 477 (Pal. 1976) wherein the opinion reviews other cases as follows: "If the custom breaches the peace and fails to maintain law and order, the government shall provide a solution. Trust Territory v. Benido, 1 T.T.R. 46 (Tr. Div. 1953)." Ngirmekur, 7 TTR at 484-85. "Public policy forbids the enforcement of those customs which are inherently disruptive of maintaining law and order. Yangilemau v. Mahoburimalei, 1 T.T.R. 429 (Tr. Div. 1958)." Ngirmekur, 7 TTR at 485. "Where a crime is committed, the criminal cannot use custom as a shield from prosecution. Figir v. Trust Territory, 4 T.T.R. 368 (Tr. Div. 1969)." Ngirmekur, 7 TTR at 485. It should be noted that the cases cited are based largely on provisions in the Trust Territory Code. However, the reasoning and logic contained in these decisions are most impressive for the determination of issues involving custom and tradition. For many years, the trend of the application of customary settlements in the criminal justice system, is its use as excuse, justification or mitigation during the imposition of sentence after conviction for a crime and not as an element of guilt or the dismissal of an information and complaint charging a criminal offense. This is especially true where the charge, as in this case, is a major criminal [8 FSM Intrm. 580] offense. Therefore, the motion for dismissal of the charges on the grounds that a customary settlement has been reached is due to be denied. It is so ordered.