POHNPEI SUPREME COURT REPORTS
VOL. 2
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YASUO PANUELO and BRIGIDA PANUELO
Plaintiffs
v.
STATE OF POHNPEI,
Defendant
Pohnpei Appeal No. 9-86
Appellate Division of the Pohnpei Supreme Court
April 23, 1987
Questions submitted by the Federated States of Micronesia Supreme Court for determination by the Appellate Division of the Pohnpei Supreme Court: (1) Whether the provisions of Article 7, Section 4, of the Pohnpei Constitution "(a) self-executing, creating substantive rights enforceable by individuals in a court of law; or (b) general policy directives to the Pohnpei Government which do not vest individuals with legal rights that they may assert in court? and (2) What factors should be considered in determining the constitutionality of a particular decision by government officials to refuse to provide financial assistance for an operation necessary to give the patient any possibility of avoiding what otherwise would be certain death?"
This case requiring the above determinations of the Court arose from the failure of Pohnpei State officials' decision against the funding of a bone marrow transplant in Hawaii of the plaintiffs' daughter who subsequently died of aplastic anemia.
The Appellate Division of the Pohnpei Supreme Court, PER CURIAM comprising EDWEL, H. SANTOS, Chief Justice; CARL KOHLER, Associate Justice; YOSTER CARL, Associate Justice; and JUDAH C. JOHNNY, Associate Justice, held (1) that the provisions of Article 7 of the Pohnpei Constitution (including Section 4) were general policy principles to the Government of Pohnpei, and that those provisions vested no legal rights in individuals which they might assert in the courts; and (2) that the provisions of Article 7, Section 4, of the Pohnpei Constitution were not self-executing.
1. Constitutional Law - Supreme Court - -Appellate Division - Composition
While Article 10, Section 5(2), of the Pohnpei Constitution provides that "No fewer than three justices shall hear and decide cases in the appellate division", the fourmember panel of justices of the Pohnpei Supreme Court may heatand determine cases involving important constitutional issues.
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2. Constitutional Law - Pohnpel Constitution - Interpretation - Whether Constitutional Provisions are Self-Executing
The question as to whether the provisions of Article 7 of the Pohnpei Constitution are self-executing, creating substantive rights capable of enforcement by individuals in a court of law will depend upon the intent of the framers as disclosed in the four corners of the Constitution itself giving the words their ordinary meaning, and by a consideration of the nature of the acts to be done and the general objects to be accomplished.
3. Constitutional Law - Pohnpel Constitution - Interpretation
Though the intent of the framers of the Pohnpei Constitution may be disclosed in the four corners of the Constitution itself, giving the words their ordinary meaning, the Court may not ignore any relevant extrinsic aids to interpretation, which may be resorted to where the internal aids are not helpful.
4. Law - Source of Pohnpel Law
In a case where Pohnpei lacks statute or case law precedent the Court is at liberty to adopt as persuasive precedents from other sources where such precedents are consistent with Pohnpeian concept of justice.
5. Constitutional Law - Pohnpel Constitution - Interpretation
The words used in Article 7, Section 4, of the Pohnpei Constitution are words in common use and are to be construed in their natural and ordinary meaning.
6. Constitutional Law - Pohnpel Constitution - Interpretation
The intent of the framers of the Pohnpei Constitution as expressed in Article 7, Section 4, is that the Pohnpei Government as the custodian of the welfare of the people of Pohnpei shall be empowered and charged to undertake certain specified responsibilities for the educational, cultural and health needs of the people as a whole having regard to the financial constraints of the Government.
7. Constitutional Law - Pohnpel Constitution - Interpretation
The provisions of Article 7, Section 4, of the Pohnpel Constitution,
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giving power to the Pohnpei Government to do the things specified therein are directory.
8. Constitutional Law - Pohnpel Constitution - Interpretation
Where the provisions of Article 7, Section 4, of the Pohnpei Constitution merely requires that certain things be done by the. Pohnpei Government, without prescribing the result that shall follow ff those things are not done the provisions are directory in character.
9. Constitutional Law - Pohnpel Constitution - Interpretation
Where the provisions of Article 7, Section 4, of the Pohnpei Constitution provide that certain things be done by the Pohnpei government and the provisions contain mere matters of direction and are not followed by words of positive prohibition, the provisions are directory in character.
10. Constitutional Law - Pohnpef Constitution - Interpretation
The provisions of Article 7, Section 4, of the Pohnpei Constitution are merely directory because in contrast to Article 4 which deals with fundamental rights, Article 4 is prohibitive in terms whereas Article 7 provisions are not.
11. Constitution Law - Constitutions - Mandatory and Directory Provisions
Legally prohibited acts attract some form of legal sanction and are accordingly mandatory and enforceable by the Court but not so with directory acts.
12. Constitutional Law - Pohnpei Constitution - Interpretation
The contrasting formats of Articles 4 and 7 of the Pohnpei Constitution show that the framers of the Constitution intended to achieve two different objects - by Article 4 to confer legally enforceable rights on individuals; and by Article 7 not to confer such enforceable rights.
13. Constitutional Law - Pohnpei Constitution - Interpretation
The provisions of Article 7 of the Pohnpei Constitution are general policy directives to the Government of Pohnpei which do not vest individuals with legal rights that they may assert in the courts.
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14. Constitutional Law - Constitutions - Self-Executing Provisions
A constitutional provision is self-executing where no legislation is necessary to bring it into effect and where there is nothing to be done by the legislature to put it into operation unless a contrary intent is clearly shown.
15. Constitutional Law - Pohnpei Constitution - Interpretation
Article 7 of the Pohnpei Constitution in general and Article 7, Section 4, of the Constitution, in particular lay down general principles or a line of policy directives without supplying the means by which such principles or policy are to be effectuated.
16. Constitutional Law - Pohnpel Constitution - Interpretation
Inasmuch as the regulation of the health care services by the Pohnpei Government entails the enactment of necessary legislation by the Legislature, the provisions of Article 7, Section 4, of the Pohnpei Constitution are not self-executing.
Counsel for Plaintiffs: R. Barry Michelson, Esq
Ramp & Michelson
P. O Box 1480 Kolonia, Pohnpei
Counsel for Defendants: Thomas Tarpley, Esq.
State Attorney
Pohnpei State Government
Kolonia, Pohnpei
CORAM:
EDWEL H. SANTOS, Chief Justice,
CARL KOHLER, Associate Justice,
YOSTER CARL, Associate Justice, and
JUDAH C. JOHNNY, Associate Justice
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PER CURIAM
A. Introductory
On October 6, 1986, the F.S.M. Supreme Court, Trial Division, by the Honorable Mr. Chief Justice Edward C. King, authorized the parties in this case to submit to the Appellate Division of the Pohnpei Supreme Court the following questions fordetermination:
"1. Are the provisions of Article 7, Section 4 of the Pohnpei Constitution:
a. Self-executing, creating substantive rights enforceable by individuals in a court of law?
b. General policy directives to the Pohnpei Government which do not vest individuals with legal rights that they may assert in courts?
2. What factors should be considered in determining the consti tutionality of a particular decision by government officials to refuse to provide financial assistance for an operation neces sary to give the patient any possibility of avoiding what otherwise would be certain death?"
By the F.S.M. Supreme Court order if this Court certifies that option 1.b. above correctly characterized these constitutional
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provisions, there is no need to answer question 2.
[1] The Constitution of the State of Pohnpei provides that "No fewer than three justices shall hear and decide cases in the appellate division." PN Constitution, Article 10, Section 5 (2). Accordingly and in view of the importance of the constitutional issues submitted for decision, the 4-member-justices of the Pohnpei Supreme Court empanelled and heard oral argument of counsel on March 6,1987, in the Courthouse in Kolonia, the State of Pohnpei, Federated States of Micronesia.
We see this as a landmark case in the development of the constitutional law of Pohnpei. We have therefore taken into our uttermost consideration the impact that our determination in this case would have on this development and on our own people. We answer question 1.b. first since that disposes of the second limb of question 1.a.
B. Facts of the Case
The facts of the case occasioning the interpretation and construction of Article 7, Section 4, of the Pohnpei Constitution are in a nutshell as follows: On August 8,1984, Elizabeth Panuelo an infant child, was admitted to the Pohnpei State Hospital with
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complaints of easy bruising and decreased energy and appetite. Local diagnostic testing supported the initial diagnosis of leukemia. She was later sent to Tripler Army Medical Center in Honolulu, Hawaii, where it was discovered that she was suffering from severe aplastic anemia, a condition which without treatment would lead to her death. The defendant State by its officials decided against funding a bone marrow transplant which would probably have saved Elizabeth's life. Elizabeth died. The plaintiffs have, consequently, filed a suit in the F.S.M. Supreme Court against the Government of Pohnpei and the Federated States of Micronesia for money damages for the alleged wrongful death of their child. It is the plaintiffs' position that Pohnpei State, by that decision, violated Article 7, Section 4 (1), of the Pohnpei Constitution which provides as follows:
"Section 4. Health Services
(1) The government of Pohnpei shall provide health care services for the public."
Defendant Pohnpei State has denied these allegations.
C. Legal Analysis and Opinion
As this particular constitutional certification raises questions never presented to this Court before and the questions raised are
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of potentially great social and budgetary concern to the people and the Government in this State, we deem it necessary to set forth in full the provisions of Article 7 of the Pohnpei Constitution.
"ARTICLE 7
RESPONSIBILITIES OF THE GOVERNMENT OF POHNPEI
Section 1. Resources and Environment. The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the conservation of natural resources and the protection of the environment.
Section 2. Development. The Government of Pohnpei shall promote economic development and shall establish and faithfully execute a development plan for Pohnpei.
Section 3. Education.
(1) The Government of Pohnpei shall provide educational services for the public. Compulsory education through a grade to be set by statute shall be enforced by law. Public education of citizens of Pohnpei through a grade as prescribed by statute shall be free of fees. Any fees imposed for public education shall be limited to the ability to pay.
(2) The Government of Pohnpei shall provide forthe regulation of educational services. All public and private educational institutions shall comply with minimum standards of educational achievement which shall be estab lished by the Government of Pohnpei.
(3) The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the continual improvement of educational standards and services.
Section 4. Health Services
(1) The Government of Pohnpei shall provide health care services for the public.
(2) The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the continual improvement in health care services.
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(3) The Government of Pohnpei shall provide for the regulation of health care services.
Section 5. History and Culture. The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the identification, preservation, and administration, forthe benefit of the public, of places, artifacts and information of historical and cultural importance.
Section 6. Public Safety.
(1) The Government of Pohnpei shall establish and faithfully execute comprehensive plans for continual improvement in the protection of the safety and security of persons and property.
(2) There shall be a Pohnpei Government agency responsible for maintaining peace and order in times of crisis and natural disaster.
Section 7. Delegation of Administration.
The Government of Pohnpei may delegate to the local government the authority to administer services described in this Article, provided that the Government of Pohnpei retains responsibility for policy and proper administration.
Section 8. Skill Development. The Pohnpei Government shall have the responsibility to promote the development and evaluation of the skills of workers, as provided by law."
[2-4] The fulfilment of the Government's responsibilities enumerated in Article 7 is of the most vital and controlling interest to the Government of Pohnpei, the individuals and to the public at large in Pohnpei. But the question as to whether these provisions are self-executing, creating substantive rights capable of enforcement by individuals in a court of law will depend upon the intent of the framers as disclosed in the four corners of the Constitution itself giving the words their ordinary meaning, and by a consideration of
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the nature of the acts to be done and the general object to be accomplished. This appears to us to be a commonsense and rational approach to the problem and is in conformity with general rules of construction. But this, of course, is not to ignore any relevant extrinsic aids. We are aware that we may resort to these aids where the internal aids are not helpful. We are also conscious of the fact that this jurisdiction lacks statute and case law precedent in this case but that we are at liberty to adopt as persuasive precedents from other sources where they are consistent with our concept of justice.
[5-7] As the starting point we think the words of the Constitution are words in common use and are to be taken in their natural and ordinary meaning. In so doing we find that it is the intent of the framers of the Pohnpei Constitution that the Pohnpei Government as the custodian of the welfare of the people shall be empowered and charged to undertake certain specified responsibilities for the educational, cultural and health needs of the people as a whole having regard to the financial constraints of the Govemment. Since the financial resources of governments all over the world are limited there is no need to say that there is a limit to which a
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government can provide amenities and services to the people. To think otherwise makes no sense to us. Howbeit the Government has power to do the things specified in Article 7. These provisions are directory. We are persuaded by the view expressed in Scopes v. State of Tennessee 53 ALR 821 that a constitutional provision that "it shall be the duty of the general assembly to cherish science" is merely directory and cannot be enforced by the courts.
[8] We may also observe that Article 7 of the Pohnpei Constitution merely requires that certain things be done by the Pohnpei Government, without prescribing the result that shall follow, if those things are not done. Any such statute is directory in character. State ex inf. Mitchell ex rel. Goodman v. Heath 132 SW 2d. 1001, 1003; 345 Mo. 226.
[9] One other feature makes Article 7 directory. It contains mere matters of direction and are not followed by words of positive prohibition. Gomez v. Timon Tex. 128 SW 656.
[10-12] Yet another consideration that fortifies us in our view that Article 7 of the Pohnpei Constitution is merely directory is the fait that in contrast to Article 4 which deals with fundamental rights, Article 4 is prohibitive in terms whereas Article 7 provisions are not.
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Needless for us to say that legally prohibited acts attract some form of legal sanction and are accordingly mandatory and enforceable by the court but not so with directory acts. State v. Haun 59 P.340. Thus the contrasting formats of these two articles of the Pohnpei Constitution lead us to the view that the framers of the Constitution intended to achieve two different objects - by Article 4 to confer legally enforceable rights on individuals; and by Article 7 not to confer such enforceable rights. It takes a rather strange jurisprudence to think that the effect of the two articles in the Constitution is the same.
[13] For the reasons stated, in our opinion, the provisions of Article 7 of the Pohnpei Constitution are general policy directives to the Government of Pohnpei which do not vest individuals with legal rights that they may assert in the courts.
[14-16] We now answer the first limb of question 1 which seeks to find out whether the provisions of Article 7, Section 4, are self-executing. We consider this is a mere academic exercise since we do not see its necessity in view of our answer to question 1.b. A constitutional provision is self-executing where no legislation is necessary to bring it into effect and where there is nothing
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to be done by the legislature to put it into operation unless a contrary intent is clearly shown. Rice et al. v. Howard 69 P 77. In our opinion, the provisions of Article 7 of the Pohnpei Constitution in general and of Article 7, Section 4, in particular, of the said Constitution lay down general principles or a line of policy directives without supplying the means by which such principles or policy are to be effectuated. As concerns Article 7, section 4, which is at issue, for example, if the Government is to regulate the health care services, this would entail the enactment by the Legislature of the necessary legislation. We therefore hold that the provisions of Article 7, Section 4, of the Pohnpei Constitution are not self executing.
D. Summary of Conclusions
1. The provisions of Article 7 of the Pohnpei Constitution are general policy directives to the Government of Pohnpei. These provisions do not vest individuals with legal rights that they may assert in the courts.
2. The provisions of Article 7, Section 4, of the Pohnpei Constitution are not self-executing.
It is so Ordered this 23rd day of April, 1987.