POHNPEI LAW REPORTS
VOL. 3
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PN.L.R. 125]
ALTERIO ROSARIO,
Plaintiff
v.
PETER
LOHN (as ELECTION CHAIRMAN,
SOKEHS MUNICIPALITY),
Defendant
Pohnpei Civil Action No. 214-87
Appellate Division of the Pohnpei Supreme
Court
May 26, 1988
Action by plaintiff for a declaratory relief against the defendant
as Election Chairman of Sokehs Municipality for failure to enter
plaintiff's name on the ballot as a candidate for election to the office
of Chief Magistrate of Sokehs Municipality. The refusal to place the
plaintiff's name on the ballot was based on the Election Chairman's
interpretation of Article 7, Section 2, of the Constitution of Sokehs
Municipality which makes a person convicted of a felony ineligible to
serve as a Chief Magistrate of the Municipality. The plaintiff argued (1)
that the defendant's interpretation and application of Article 7, Section
2, of the Constitution of the Sokehs Muncipality was erroneous and
violative of the Equal Rights provision of the Constitution of Pohnpei;
(2) that the proscription of a felon as contained in Article 7, Section 2,
of the Constitution of the Sokehs Municipality applied only to one serving
(or to serve) as Chief Magistrate but not to one who wanted to run as a
candidate for that office; (3) that Article 7, Section 2, of the
Constitution of the Sokehs Municipality was vague and should not be
applied retroactively; and (4) that the retroactive application of Article
7, Section 2, of the Constitution of the Sokehs Municipality violated the
Ex Post Facto provision of the Constitution of
Pohnpei.
The
Appellate Division of the Pohnpei Supreme Court, PER CURIAM, affirming the
Election Chairman's interpretation of Article 7, Section 2, of the
Constitution of the Sokehs Municipality, held (1) that the defendant
correctly interpreted and applied the provisions of Article 7 Section 2
relative to felony
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conviction.; (2) that Article 7,
Section 2, did not violate the Equal Protection provisions of the
Constitution of Pohnpei; (3) that the constitutional prohibition made no
distinction and applied to persons both serving (or to serve) as Chief
Magistrate as well as those attempting to run as a candidate for that
office; (4) that Article 7, Section 2, was unequivocally clear, and that
the prohibition applied retroactively; (5) that retroactive application of
Article 7, Section 2, did not violate the Ex Post Facto provisions of the
Constitution of Pohnpei.
1.
Constitutional Law - State and Municipal
Constitutions - Construction
The provisions of Article 7, Section 2, of the
Constitution of the Sokehs Municipality that "a person convicted of a
felony is ineligible to serve as Chief Magistrate"of the Municipality does
not violate the Equal Rights provisions of the Constitution of
Pohnpei.
2.
Constitutional Law - Municipal Constitution
- Construction
The constitutional prohibition in Article 7, Section
2, of the Constitution of the Sokehs Municipality, that "a person
convicted of a felony is ineligible to serve as Chief Magistrate" of the
Municipality, makes no distinction and applies to a person serving ( or to
serve) as Chief Magistrate as well as to a person attempting to run as a
candidate for that office.
3.
Constitutional Law - Municipal Constitution
- Construction
The Constitutional prohibition in Article 7, Section
2, of the Constitution of the Sokehs Municipality, that "a person
convicted of a felony is ineligible to serve as Chief Magistrate" of the
Municipality, is unequivocally clear, and applies
retroactively.
4.
Constitutional Law-State and Municipal
Constitutions- Construction
The retroactive application of Article 7, Section 2,
of the Constitution of the Sokehs Municipality which prohibits "a person
convicted of a felony from serving as Chief Magistrate" of the
Municipality, does not violate the Ex Post
Facto provisions of the Constitution of Pohnpei.
[3
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5.
Constitutional Law - Constitution -
Construction - Aids to Construction
The relative Standing Committee Report of a
Constitutional Convention may be resorted to as an aid to the construction
of a constitutional provision.
6.
Constitutional Law - Municipal Constitution
- Chief Magistrate Qualification
A person convicted of a felony is ineligible to serve
as Chief Magistrate of the Sokehs Municipality irrespective of whether he
has subsequently received a letter of pardon restoring his civil
rights.
7.
Constitutional Law - Municipal Constitution
- Constitutional Prohibition - Courts -
Enforcement
The constitutional prohibition against an ex-felon to
serve as Chief Magistrate as prescribed in the Sokehs Municipality
Constitution is an expressed will of the citizens of the Sokehs
Municipality, and the Court is to give efficacy to that expressed
will.
8.
Constitutional Law - Municipal Constitution
- Operation
Where the citizens of the Sokehs Municipality by
their own decision make the provision of Article 7, Section 2, which
prohibits "a person convicted of a felony from serving as Chief
Magistrate" of the Municipality, run retroactively the Court is without
legal authority to change that policy decision.
9.
Municipal Governments -
Independence
In order to assure the independence, peace and
tranquility of the municipalities, their power to prescribe the
qualifications of their own officers, including the time when certain
qualifications are attached, the tenure of their offices, the manner of
their election and the grounds for which such elections may be contested
as well as the grounds for removal of such officers, should be exclusive
and free from external interference, except so far as plainly provided by
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10.
Constitutional Law - State and Municipal
Constitutions - Construction
There is no inconsistency between the provision in
Article 7, Section 2, of the Constitution of the Sokehs Municipality that
"a person convicted of a felony is ineligible to serve as Chief
Magistrate" of the Municipality, and the Equal Rights provision of the
Pohnpei Constitution.
11.
Constitutional Law - State Constitution -
Construction
While the Equal Rights provision of the Constitution
of Pohnpei proscribes discrimination against persons on account of gender,
race, ancestry, national origin, religion, language, or social status,
there is no mention of ex-felons as constitutionally protected
persons.
12.
Constitutional Law - Municipal Constitution
- Constitutional Prohibition - Civil Rights of Citizens of
Pohnpei
The provision of Article 7, Section 2, of the Sokehs
Constitution which bans a person convicted of a felony from serving as
Chief Magistrate does not abridge the privileges or immunities of citizens
of the State of Pohnpei; hence an interpretation and application of the
provision so as to bar an ex-felon from standing as a candidate for
election as Chief Magistrate does not violate the Equal Protection clause
of the Constitution of Pohnpei.
13.
Election
The election process being foreign to Pohnpeians, the
social and political systems of Pohnpei require that Pohnpeians look to
foreign sources for assistance in formulating their own rules which are
suitable to their situation.
14.
Public Office - Election - Eligibility and
Qualification - Determination of Time
The question as to the time when the eligibility of a
person for election to a public office must exist, whether at the time
of
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election, the commencement of the term, or the
induction into office is ascertained from the language used in the
constitution or statutory provision declaring the qualifications for the
office, which time the constitution or statute may expressly or by
necessary implication specify.
15.
Public Office - Election - Eligibility and
Qualification - Determination of Time
Where the time when the eligibility of a person for
election to a public office has been specified by a constitutional
provision or statute, there can be no question but that the candidate must
possess the necessary qualifications at that time. (63 Am Jur. 2d., Public
Officers and Employees S.40.)
16.
Constitutional Law - Municipal Constitution
- Construction
The felony conviction as a prohibition against
eligibility under. Article 7, Section 2, of the Constitution of the Sokehs
Municipality is static and permanent.
17.
Constitutional Law - Constitutions -
Operation
It is a generally accepted doctrine that a
constitution cannot operate retroactively.
18.
Constitutional Law - Constitutions -
Construction
Inasmuch as every fundamental constitution has
borrowed some of its elements from the instruments of other nations,
foreign decisions interpreting such basic documents when an issue arises
for the first time in a jurisdiction with a new constitution interpreting
a provision in pari materia with that of some
other jurisdiction may be freely referred to, but "it will be improper to
import into the question of construction doctrines of democratic theory
and practice obtaining in other countries, unrelated to the tenor, scheme
and words of the provisions which [the Court] has to construe." But where
a constitutional provision is adopted from a foreign constitution, it may
reasonably be assumed that the Constituent Assembly in
[3
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adopting the provision was aware of its content as
delimited by judicial interpretation in the foreign courts and recourse
may therefore be had to the authorities of the superior courts of the
foreign jurisdiction for a guide to interpretation of the constitutional
provision.
19.
Constitutional Law - Constitutional and
Statutory Provisions - Public Office - Qualifications of
Eligibility
The conditions or qualifications of eligibility to
public office as prescribed by constitutional and statutory provisions and
the consequent disqualification relate generally to such matters as age,
citizenship, suffrage, property ownership and payment of taxes, crime or
misconduct, prior removal or suspension from office, failure to file
election expenses, and the holding of an incompatible
office.
20.
Constitutional Law - Constltutlonal and
Statutory Provisions - Public Office - Qualifications of
Eligibility
Among other matters which, by express provisions of
the law, may disqualify persons from being chosen for or from holding
public offices, or particular offices, the appointing officer may be
prohibited from appointing persons related to him, or the law may prohibit
the holding of a particular office by the same person for a stated number
of consecutive years or terms. (63AmJur2d,Public Officers and Employees,
Section 44.)
21.
Constitutional Law - Constitution - Ex Post
Facto Provision Definition of Ex Post Facto
Ex post facto has been defined as
(1) every
law that makes an act, done before the passing of the law, and which was
innocent when done, criminal, and punishes such action;
(2) every
law that aggravates a crime, or makes it greater than it was when
committed;
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(3) every law
that changes the punishment, or inflicts a greater punishment than the law
annexed to the crime when committed;
(4) every law
that alters the legal rules of evidence, and receives less or different
testimony than the law required at the time of the commission of the
offense, in order to convict the offender.
All
these, and similar laws, are prohibited by the constitution; but the law
may be ex post facto, and still not be amenable to this constitutional
inhibition. That is, provided it mollifies, instead of aggravating, the
rigor of the criminal law. (Black's Law Dictionary, 4th Ed.
1968);
(5) an "ex post
facto law" includes every law that creates and punishes a criminal offense
that, when done before the passing of the law, was innocent, and every law
that aggravates a crime or makes it greater than it was when committed,
and every law that inflicts a greater punishment than was attached to the
crime when committed.
22.
Constitutional Law - Constitution - Ex Post
Facto Provision
While ex post facto deals
principally with crimes and punishment of crimes, the qualification or
disqualification of a candidate for the office of Chief Magistrate of the
Sokehs Municipality deals with political privilege.
23.
Constitutional Law - Constitution -
Suffrage
Municipalities, including Pohnpei, may deprive a
person who has been convicted of a felony of the right of suffrage. (PNI
Constitution, Art. 6, Sec. 1)
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PN.L.R. 132]
24.
Constitutional Law - Constitution - Public
Office
Municipalities, including Pohnpei, may deprive a
person who has been convicted of a felony of the right to hold public
office. (PNI Constitution, Art. 8, Sec 4, Art 9, Sec.3 and Art. 10, Sec
6.)
25.
Constitutional Law - Constitutional
Provisions - Purpose
The manifest purpose of the provisions of the Pohnpei
Constitution under which a person who has been convicted of a felony may
be deprived of the right of suffrage or the right to hold public office is
to preserve the purity of elections and to uphold the trustworthiness of
public officers of Pohnpei and not to invoke a punishment or penalty.
Additional purposes are to be found in Article 7, Section 2, of the Sokehs
Municipality Constitution, namely "Pwukoh en Chief
Magistrate... me kesempwal, karehda en irairdi ong sooun doadoahk me
likilikoh kopworopwor oh sohte ad sowed kihla mwekid sowed ehu me kauwehla
soare oh likilik rehn aramas."
26.
Constitutional Law - State and Municipal
Constitutions - Right to Vote or to Hold Public Office
The presumption is that one rendered infamous by
conviction of a felony or other offense indicative of moral turpitude is
unfit to vote (PNI Constitution, Art 6, Sec 1.) and likewise, he is unfit
to hold the office of Chief Magistrate (Sokehs Constitution, Art 7, Sec.
2),and the exclusion constitutes the withholding of a privilege, not the
denial of a personal right, and the law making such exclusion is not an ex post facto law or a bill of
attainder.
Counsel for
Appellant: Ioanis Kanichy
Trial Counselor
Kolonia, Pohnpei
Counsel for
Appellee: Randy M. Boyer, Esq.
State Attorney
Pohnpei State Government
Kolonia, Pohnpei
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CORAM:
Edwel H. Santos, Chief Justice
Carl Kohler, Associate Justice
Yoster Carl, Associate Justice
Judah C. Johnny, Associate Justice
EDWEL H. SANTOS, Chief
Justice
The
plaintiff brought this action for declaratory relief against the defendant
as Election Chairman of the Sokehs Municipality for the latter's refusal
to enter plaintiff's name on the ballot as a candidate for the office of
Chief Magistrate of the Sokehs Municipality, the election of which was
scheduled for November 10,1987. The defendant's refusal to place the
plaintiff's name on the ballot was based on the former's interpretation of
Article 7, Section 2, of the Constitution of the Sokehs Municipality which
makes a person convicted of a felony ineligible to serve as Chief
Magistrate. We affirm the determination of the Election
Chairman.
II. BACKGROUND
INFORMATION
The
plaintiff filed on September 30, 1987, his nomination petition with the
defendant in his capacity as Election Chairman for the Sokehs 1987 General
Election for the seat of Chief Magistrate. The Sokehs General Election was
scheduled to be conducted on November 10, 1987, the same day the entire
State of Pohnpei
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scheduled her General Election.
The defendant, in pursuance of his duties and authority reviewed the
qualifications of the plaintiff to serve as Chief Magistrate pursuant to
the Constitution of the Sokehs Municipality and found that the plaintiff,
Alterino Rosario:
1) On
September 12, 1969, was convicted of a felony, namely, assault and battery
with a dangerous weapon, in the Court of the Trust Territory in Ponape;
and
2)
Article 7, Section 2, of the Constitution of Sokehs proscribes a person
convicted of a felony from serving as Chief magistrate.
Based
upon the above findings, the Election Chairman wrote on October 9, 1987,
informing the plaintiff that his name could not be placed on the ballot
for the Chief Magistrate election.
The
plaintiff on October 16, 1987, wrote to the Election Chairman requesting
the Election Chairman to reconsider his October 9, 1987, decision in the
light of the following reasons:
1) the
Sokehs Municipal Constitution came into force on July 10, 1985, whereas
the plaintiff's felony conviction took place on September 30,1969, or 18
years earlier; [Actual conviction date was September 12, 1969]. Both
Constitutions of the State of
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Pohnpei and of the Federated
States of Micronesia proscribe ex post facto law. Thus Article 7, Section
2, of the Constitution of Sokehs became operative on July 10, 1985, and
the prohibition against felony conviction operates against one convicted
on the said date and thereafter.
2) the
prohibition based on felony conviction as prescribed by Article 7, Section
2, applies only to one serving (or to serve) as Chief Magistrate, but it
does not apply to one seeking to be a candidate for that
office.
The
defendant Election Chairman of Sokehs sustained his earlier decision, and
the plaintiff brought this action for a declaratory judgment from this
Court.
Because
of time constraint, the defendant was allowed to appear to defend this
cause without filing a written response (Rule 19, PNI App.
Rules).
The
constitutional issues raised by this action are of first instance, thus
necessitating the action of the Appellate Division of this
Court.
Oral
argument was heard on Saturday, November 7, 1987, en banc, and upon consideration of the arguments
presented by
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counsel and the evidence
adduced, a brief opinion was orally presented denying the relief sought by
the plaintiff, thus affirming the determination of the Sokehs Election
Chairman. This writing memorializes the opinion of the
Court.
III. ISSUES
PRESENTED
The
plaintiff raised the following issues, and the holdings of the Court
follow:
A.
Whether defendant's interpretation and application of Article 7, Section
2, (particularly that,"a person convicted of a felony is ineligible to
serve as Chief Magistrate",) of the Constitution of the Sokehs
Municipality was erroneous and violative of the Equal Rights provisions of
the Constitution of Pohnpei.
[1] Court holding: We hold that the defendant
correctly interpreted and applied the provisions of Article 7, Section 2,
relative to felony conviction, that the said provisions do not violate the
Equal Right provisions of the Constitution of Pohnpei.
B.
Whether the proscription of a felon as contained in Article 7, Section 2,
applies only to one serving (or to serve) as Chief Magistrate, but not to
one who wants to run as a candidate for the office of Chief
Magistrate.
[3
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[2] Court holding: We hold that constitutional
prohibition makes no distinction and applies to both: one serving or (to
serve) as Chief Magistrate as well as to one attempting to run as a
candidate for that office.
C.
Whether Article 7, Section 2, is vague and should not be applied
retroactively.
[3] Court holding: We hold that Article 7, Section 2,
is unequivocally clear, and the prohibition applies
retroactively.
D.
Whether retroactive application of Article 7, Section 2, violates the Ex
Post Facto provision of the Constitution of Pohnpei.
[4] Court holding: We hold that retroactive
application of Article 7, Section 2, does not violate the Ex Post Facto provisions of the Constitution of
Pohnpei.
IV.
REASONING
A. Article 7 Section 2 -
Interpretation
Article
7, Section 2, of the Constitution of Sokehs reads as
follows:
Sohte me kak wiahla Chief Magistrate lao a mahkier
sounpar silihsek (30) ni ahnsou me ah dien doadoahk pahn tepda, wia tohn
wehi mehlel en Weipokon en Pohnpei erein sounpar rieisek (20) oh wia tohn
wei mehlel
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en Wein Sokehs sounpar eisek-limau (15). Chief
Magistrate men pahn kin usuhsda sang pali moron en tohn usuhs mehlel en
Wein Sokehs nan usuhs lap ehu en weliepe kan. Aramas emen me dipekihda dip toutou sohte kak en
wiahla Chief Magistrate. Chief Magistrate men sohte kak ale ehu
pwukoah tohrohr likin ah pwukoah. (Kakehlepen lokaia
kapatapatehng)
Translated into
English:
No person is eligible to become Chief Magistrate
unless he has attained the age of thirty (30) years when his term of
office commences, been a citizen of the State of Pohnpei for twenty (20)
years and has been a citizen of Sokehs Municipality for fifteen (15)
years. Chief Magistrate will be elected by majority of the registered
voters of Sokehs Municipality in a general election called for the
election of (Sokehs) representatives. A person
convicted of a felony is ineligible to serve as Chief Magistrate. A
Chief Magistrate may not accept any other employment (function) other than
that of Chief Magistrate. (Emphasis supplied.)
The
plaintiff contends that the Election Chairman's interpretation of Article
7, Section 2, which deprived plaintiff's right to have his name placed on
the ballot for the Chief Magistrate election of 1987 was erroneous and
violated the Equal Rights provisions enshrined in the Constitution of
Pohnpei. We do not agree with plaintiff's contention. In support of our
holding, a comparative analysis of the similar constitutional provisions
prescribing eligibility of elected or appointed officers found in the
constitutions of the Federated States of Micronesia, State of Pohnpei and
the Munici-
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pality of Sokehs is in
order.
1. Constitution of the
Federated States of Micronesia.
The Constitution of the
Federated States of Micronesia prescribes the qualifications of members of
Congress as follows:
A person is ineligible to be a member of Congress
unless he is at least 30 years of age on the day of election and has been
a citizen of the Federated States of Micronesia for at least 15 years, and
a resident of the state from which he is elected for at least 5 years. A person convicted of a felony by a state or national
government court is ineligible to be a member of Congress. The
Congress may modify this provision or prescribe additional qualifications;
knowledge of the English language may not be a qualification. FSM Const, Art. IX, Sec. 9. (Emphasis added).
Under the Executive article we
note the following qualifications for
the President:
A person is ineligible to become President unless he
is a member of Congress for a 4-year term, a citizen of the Federated
States of Micronesia by birth, and a resident of the Federated States of
Micronesia for at least 15 years. FSM Const., Art.
X, Sec. 4.
It should be noted that the
qualifications prescribed for members of Congress also apply to the
President and Vice-President as they must be members of Congress for a
4-year term before they can be elected President and Vice-President,
respectively.
Qualifications of the Justices of the Supreme Court of
the Federated States of Micronesia are prescribed pursuant to Art.
XI,
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Sec. 5, FSM Constitution, and
are enumerated as follows:
A person nominated to the position of Chief Justice
or Associate Justice of the Supreme Court shall:
(1)
be at least thirty years of age at the time
of nomination; and
(2)
be a graduate from an accredited law school
and be admitted to practice law in any jurisdiction, or be a person of
equivalent and extraordinary legal ability obtained through at least five
years of experience practicing law.
(P.L. 1-31 Sec. 7; 4 FSMC
107).
Relevant to the issue before us are the qualifications
of a person to become a member of Congress, hence to become President and
Vice-President of the Federated States of Micronesia. More specifically
the prohibition: "A person convicted of a felony by a state or national
government court is ineligible to be a member of Congress." To understand
more fully what this constitutional provision entails, we refer to the
journal of the Micronesian Constitutional Convention. We find the three
paragraphs quoted below to be explicit as to expound the true intent of
the framers respecting the prohibition against ex-felons.
"This section also prohibits any person convicted of
a felony by any court in Micronesia from election or appointment to the
Congress, but allows room for the Congress by law to change this absolute
prohibition. The Committee considered first the type of
provision
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normally found in American state constitutions which
prohibits felons from becoming members of Congress, but also allows them
to become legislators if they receive an executive pardon. The Committee
was wary of the executive pardon power, feeling that it might be abused by
the executive branch for political reasons.
The Committee therefore decided to eliminate the
normal pardon power language from this section prohibiting felons from
becoming legislators. At the same time, the Committee did not wish to
forever prohibit a man or woman from becoming a legislator because he or
she had made a minor mistake early in life, if that person had later
become an honest and law-abiding citizen. Some felonies are more serious
than others. If a person has committed a felony which is not considered by
the community to be highly offensive, and the person has long since become
a law-abiding and respected member of the community, perhaps he or she
should be eligible to become a member of the Congress.
Because it is not now known what crimes will be
felonies under the new government, and because community values and morals
may change from time to time, the Committee felt that it should be left to
the Congress itself in the future to define circumstances under which a
convicted felon might be eligible to become a member of Congress. The
Committee has therefore decided to make convicted felons ineligible for
the time being, but to allow flexibility for Congress by law to provide
future exceptions to such ineligibility."
SCREP.
No. 36 FSM Con. Con. Journal, Vol.II, at p.845.
The
drafters of our National Constitution intended that "if a person is
convicted of a felony, in any court in Micronesia, he is ineligible to
become a member of Congress,or to become Presi-
[3
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dent or Vice-President. "Whether
a convicted felon had subsequently received an executive pardon or whether
that conviction took place early in life, a phrase which we interpret to
include the period of one's life even prior to the effective date of the
constitution, is immaterial. He is forever ineligible to become a member
of Congress or to become President or Vice-President once a felony
conviction is attached to his name. That intention was ratified by the
people of our nation. The duty of the Court is to give efficacy to that
Constitutional intent.
Under
the Constitution of the Federated States of Micronesia, as we note above,
a person who has been convicted of a felony, regardless of the grade of
the felony, and whether or not that person has subsequently been pardoned
by the chief executive, is ineligible to become a member of Congress,
hence ineligible to become President or Vice-President.
This
policy decision provides the first link of a chain which hangs down
through the State to the local level of our Government structure, as will
be seen below.
2. The Constitution of
the State of Pohnpei
A state shall have a democratic
constitution, Art. VII, Section 2,
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FSM Constitution. In consonance
with this constitutional call and acting under the authority of State Law
2L-131-82 (The Act Creating Constitutional Convention in and for Pohnpei),
the Pohnpei Constitution was drafted by the delegates elected for that
purpose, and the draft constitution was voted upon and ratified by the
people of the State of Pohnpei. It came into force on November 8, 1984.
Article 8, Section 4, prescribes the qualifications of members of the
Legislature as follows:
No person is eligible to serve as a member of the
Legislature unless he is at least twenty-five years of age at the time his
term of office commences; he has been a citizen of a local government
[state] of Pohnpei for at least twenty five years at the time his term of
office commences; and he has been a citizen of the local government that
he represents for at least three years. A person
convicted of a felony is ineligible to serve as a member of the
Legislature unless he has received a pardon restoring his civil rights
at least sixty days before he is elected. The Legislature shall be the
sole judge of the qualifications of its members. (Emphasis
added.)
The
qualifications of the Governor and the Lieutenant Governor are as
follows:
(1) No
person is eligible to become Governor or Lieutenant Governor unless he is
a citizen of Pohnpei by birth; he is at least thirty-five years of
age; and he has never been convicted of a
felony.
(2) No
person may serve more than two consecutive terms as Governor, except
that a person who serves
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as Governor less than two years during a term to
which another person was first elected, may serve two full consecutive
terms thereafter. (Emphasis added.)
The
qualifications of justices of the Pohnpei Supreme Court are prescribed by
the Constitution as well as by the Pohnpei Judiciary Act (S.L. No.
2L-160-82), and these qualifications are:
No person is eligible to serve as a justice of the
Pohnpei Supreme Court unless he is at least thirty-five years of age. A person convicted of a felony is ineligible to
serve. ( Emphasis added.)
Pohnpei Constitution, Art. 10,
Sec. 6.
Statutory qualifications include:
(1)
be at least 35 years of age at the time of
nomination;
(2)
be a graduate from an accredited law school
and be admitted to practice law in any jurisdiction, or be a person of
demonstrated legal ability obtained through at least five years of
experience practicing law or as full-time judge of the Trust Territory
District Court; and,
(3) have
been a citizen and resident of (Pohnpei State) for at least 10 years and 5
years immediately preceding his appointment.
S.L. No. 2L-160-82, Section
4.
Note the minor variance with
respect to the age requirement. The Constitutional qualification states
"at least thirty-five.years to serve as a justice" while the Statute calls
for at least 35 years of age "at
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the time of nomination." The
Constitutional provision prevails over that of the statute. Pohnpei
Constitution, Art. 2.
The
qualification restriction with respect to "felony conviction" bans one
from becoming a member of the Legislature, unless
he has received a pardon restoring his civil rights at least sixty days
before he is elected. The normal pardon language is eliminated from
the Executive and the Judiciary articles of the Pohnpei Constitution as is
eliminated from the legislative provision in the FSM Constitution. One may
ponder whether this exclusion means that "once a person is convicted of a
felony he is ineligible to serve as Governor, Lieutenant-Governor, or a
Justice of the Pohnpei Supreme Court," regardless of whether that person
had subsequently received an executive pardon for his felony conviction.
We resort to the Pohnpei Convention record for aid in determining the true
meaning of this constitutional provision.
[5]
Standing Committee Report No. 56, relating to the Executive Branch
Article, (filed by the Committee on State Functions and Structure) states
in part the following:
Sapwelimomwi Koamidi kamehlele me aramas emen me
dipekidahr dihp toutou ieu sohte pahn kak wia Kepina de Keriauhn Kepina,
mehndahte ma a aledier mahk
(pardon)
[3
PN.L.R. 146]
mwurin eh dipadahr.
Aramas emen me dipekidahr dihp toutou ieu pahn
kohkohlahte sohte mweiong en wia Kepina de Keriau en
Kepina.
The English version of the same
report translatesthis portion of the report as follows:
Your committee believes that a person who has once
been convicted of a felony is not qualified to hold the high office of
Governor or Lieutenant-Governor, irrespective of
his subsequently being pardoned. A person so convicted will thereafter remain ineligible for those
offices.
Standing Committee Report No. 56
Re: Executive Article, p. 1 (Emphasis supplied).
[5] In Standing Committee Report
No. 75 Re: Judiciary, we note the following explanation with respect to
the qualifications of justices of the Pohnpei Supreme
Court:
Iretikitik 6, koasoanehdi iren kak riau me pahn
kareieng aramas emen en kak wia sounkopwung en Mwoalen Kopwung
Ileile:
(1)
sounpere lelehr sounpar 35;
(2)
sohte dipekihda dihp toutou ieu
.
Met wewehki mehndahte ma aramas emen dipekihda dihp
toutou ieu oh ih alehdi mahkpe (pardon) met sohtehte pahn mweidohng en
kakala wia sounkopwung. Ire wet sohte irehdi Pwihn en Kou Kosonned ren pil
kak kapataieng, ni kosonned, ire kak teikan me pahn konehng aramas en Wein
Pohnpei.
Standing Committee Report No. 75
(Judiciary), Pohnpei Con. Con., at p. 3.
The
above paragraphs are translated into the English language as
follows:
[3
PN.L.R. 147]
Section 6 prescribes two qualifications required of
the justices of the Pohnpei Supreme Court:
(1) he
[sic] must have attained the age of 35;
(2) he
[sic] never been convicted of a felony.
Regardless of whether one has received an executive
pardon for his felony conviction, that executive pardon still does not
make him eligible to serve as a justice.
This provision does not limit the authority of the
Legislature to prescribe by statute additional qualifications as may be
necessary for the citizens of Pohnpei.
SCREP No. 75 (Judiciary), p. 3,
Pohnpei Con. Con. Record.
It is
therefore clear from the above quoted paragraphs that under the
Constitution of the State of Pohnpei:
a person convicted of a felony can not become a
member of the Pohnpei Legislature, unless he has received an executive
pardon at least 60 days before he is elected; and
a person convicted of a felony can not become the
Governor Lieutenant Governor, or Justice of the Pohnpei Supreme Court,
regardless of whether he has received an executive pardon which restores
to him his civil rights. He is forever banned.
It could be argued as
unjustified for a people whose Christian principles seem to dominate their
daily affairs and whose custom of apology and pardon is so highly
respected, to adopt such a policy in their Constitution which in essence
has the effect of "not accepting" one's apology sincerely tendered.
Unjustified as it may seem, our duty is to declare what the law is and to
ensure that it is
[3
PN.L.R. 148]
upheld. We proceed therefore to
examine the Sokehs Constitution.
3. The Constitution of the Municipality of
Sokehs.
Sohte me pahn kak iang wia candidate ong nan usuhs en
weliepe de idihdda ong nan Pwihn en Kauada Kosonned lao a pahn mahkier
sounpar rieisek-limau (25) ni ahnsou me ah then doadoahk pahn tepda, e
wiaier tohn wehi manaman en Pohnpei sounpar rieisek (20), wia tohn Wein
Sokehs sounpar limau (5) oh wiahier tohn lopidi me a pahn usuhs loale
sohte mwotomwotasang sounpar ehu (1). Aramas emen me dipekihda dihp toutou
sohte kak towehda Pwihn en Kauwada Kosonned lao a pahn alehdi mahk me pahn
kapwurehiong ah pwuhng rahn weneisek (60) mwohn usuhs. Pwihn en Kauwada
Kosonned kelehpw me ahneki manaman en koasoanehdi oh wia sown tenek ong
kak en towe kan.
Iralaud 6, Iretikitik 3 en
Sokehs Constitution. Translated into English,
No person is eligible to be a candidate for the
office of Councilman unless he is at least twenty-five (25) years of age
at the time his term of office commences, he has been a citizen of the
State of Pohnpei for at least twenty (20) years, he has been a citizen of
Sokehs Municipality for five (5) years, and a resident of the section he
intends to represent for not less than one (1) year. A person convicted of
a felony is ineligible to serve as a member of the Council unless he has
received a pardon restoring his civil rights at least sixty (60) days
before he is elected. The Council shall be the sole judge of the
qualifications of its members.
[3
PN.L.R. 149]
Sokehs Constitution , Art. 6,
Sec. 3.
Sohte me kak wiahla Chief Magistrate lao a mahkier
sounpar silihsek (30) ni ahnsou me ah then doadoahk pahn tepda, wia tohn
wehi mehlel en Weipokon en Pohnpei erein sounpar rieisek (20) oh wia tohn
wehi mehlel en Wein Sokehs sounpar eisek-limau.(15). Chief Magistrate men
pahn kin usuhsda sang pall moron en tohn usuhs mehlel en Wein Sokehs nan
usuhs lap ehu en weliepe kan. Aramas emen me
dipekihda dihp toutou sohte kak en wiahla Chief Magistrate. Chief
Magistrate men sohte kak ale ehu pwukoah torohr likin ah
pwukoah.
Sokehs Constitution, Iralaud 7,
Iretikitik 2. (Emphasis supplied).
No person is eligible to become Chief Magistrate
unless he has attained the age of thirty (30) when his term of office
begins, been a citizen of the State of Pohnpei for twenty (20) years and
has been a citizen of Sokehs Municipality for fifteen (15) years. Chief
Magistrate will be elected by majority of the registered voters of Sokehs
Municipality in a general election called for the election of (Sokehs)
representatives. A person convicted of a felony is
ineligible to serve as Chief Magistrate. A Chief Magistrate may not
accept any other employment (function) other than that of Chief
Magistrate.
Sokehs Constitution, Art. 7 Sec.
2 (Emphasis supplied).
Sohte aramas men kak en wia Soun Kopwung lao a
mahkier sounpar silihsek-limau (35) oh wiahier towe mehlel en Wein Sokehs
sohte mwotomwotasang sounpar eisek (10). Aramas emen me dipekihda dihp
toutou sohte kak en wiahla Soun Kopwung.
Sokehs Constitution, Iralaud 8,
Iretikitik 3.
No person is eligible to become Judge unless he has
attained the age of thirty-five (35) years and has been
[3
PN.L.R. 150]
a citizen of Sokehs Municipality not less than ten
(10) years. A person convicted of a felony is ineligible to serve as
judge.
Sokehs Constitution, Art. 8,
Sec. 3.
[5] What is of concern to us in
the instant case is the statement: A person convicted of a felony is
ineligible to serve as Chief Magistrate." What is the scope and meaning of
this statement, as employed in the Sokehs Constitution. The Sokehs
Constitutional Convention record relating to the Article on Executive
states in part at page 15:
" . . Pwukoah en Chief Magistrate wia pwukoah
kesempwal, karehda en irairdi ong soun doadoahk me likilik oh kopworopwor
oh sohte ad suwed kihla mwekid suwed ehu me kauwehla snare oh likilik rehn
aramas. Aramas emen me dipekidahr dihp toutou ehu sohte kak wia Chief
Magistrate, mehndahte ma epil aleier kisin likou en mahk me kapwureiong ih
a pwuhng kan."
". . . The Office of the Chief Magistrate is a
respectable office warranting a person who possesses the character that
can be trusted and is reliable; a person with a reputable character that
the people can trust. A person convicted of a felony is ineligible to
serve as Chief Magistrate, irrespective of whether he has subsequently
received a letter of pardon restoring his civil rights."
[6] By means of their
Constitution, the peoples of Sokehs have placed more emphasis on the
prohibition against persons con-
[3
PN.L.R. 151]
victed of a felony to serve as
Chief Magistrate. The statement found in the Convention record, "A person
convicted of a felony is ineligible to serve as Chief Magistrate,
irrespective of whether he has subsequently received a letter of pardon
restoring his civil rights" suggests strongly that the will of the peoples
of Sokehs is that they do not want to have someone already convicted of a
felony to serve as their Chief Magistrate. A subsequent pardon which
restores to that someone his civil rights does not erase the fact from the
minds of the peoples that that someone's reputation has been tainted with
felony conviction. This is an attitude common to the peoples of our
Micronesian communities, and the purpose for which it serves is to
preserve the purity and respectability of the office of the Chief
Magistrate.
It
should be remembered, however, that the plaintiff in this action did not
raise any issue regarding the effect of an executive pardon. No record was
made known to the Court that the plaintiff had been pardoned in the
past.
The
plaintiff's basic argument is that a person convicted of a felony prior to
the effective date of the Sokehs Constitution is
[3
PN.L.R. 152]
eligible to run as a candidate
for the office of Chief Magistrate: In view of the foregoing analysis,
coupled with the express will of the people of Sokehs as reflected in
their Constitutional Convention record, we find it difficult to honor
plaintiff's first argument.
[7] The constitutional
prohibition against an ex-felon to serve as Chief Magistrate as prescribed
in the Sokehs Constitution is an expressed will of the citizens of Sokehs
Municipality. The duty of the Court is to give efficacy to that expressed
will. Accordingly, the Election Chairman's refusal to place the
plaintiff's name on the ballot was proper.
[8-10] We next address the
question embodied in the first issue; to wit, whether the classification
of ex-felons violates the Equal Rights provision of the Pohnpei
Constitution. The plaintiff raised this question in his argument and
referred the Court to Paulus v. State of
Pohnpei, 2 P.S.Ct.R 481, as the authority supporting his contention.
The facts in Paulus are different, and Paulus is distinguished here. In
fact it was held in Paulus that classification
against one convicted of a felony is not suspect within the
classifications permitted under Section 3, Article 4, of the Constitution
of
[3
PN.L.R. 153]
Pohnpei. (Paulus, p. 8). The plaintiff may have misread the
portion of Paulus in which the Court discussed the rule developed in the
United States relating to the prospective effect of decisions of courts.
The Court said at pages 18-19,"... the accepted rule today is that in
appropriate cases the Court may in the interest of justice make the rule
prospective." (Citation omitted). In the instant case the decision to make
the provision in Article 7, Section 2, in issue here run retroactively was
made by the citizens of Sokehs. This Court is without legal authority to
change that policy decision. It is obviously essential to the independence
of the municipalities, and to their peace and tranquility, that their
power to prescribe the qualifications of their own officers, including the
time when certain qualifications are attached, the tenure of their
offices, the manner of their election, and the grounds for which such
elections may be contested as well as the grounds for removal of such
officers, should be exclusive and free from external interference, except
so far as plainly provided by the Constitution of Pohnpei. The local
governments may establish their own constitutions not inconsistent with
the Constitution or the laws of Pohnpei. Pohnpei Consti-
[3
PN.L.R. 154]
tution, Art. 14, Sec. 2. We find
no inconsistency between the provision in question in Article 7, Section 2
of the Sokehs Constitution and the Equal Rights provision of the Pohnpei
Constitution. [11-12j The Equal Rights provision of the Constitution of
Pohnpei proscribes discrimination against persons on account of gender,
race, ancestry, national origin, religion, language, or social status,
Art. 4, Sec. 3. There is no mention of being an ex-felon as a
constitutionally protected trait. The provision of the Sokehs Constitution
which bans a person convicted of a felony from serving as Chief Magistrate
does not abridge the privileges or immunities of citizens of the State of
Pohnpei. Hence, the Election Chairman's interpretation and application of
Article 7, Section 2, did not violate the Equal Protection clause of the
Constitution of Pohnpei.
B.
Whether the restriction against one convicted of a felony as contained in
Article 7, Section 2, applies only to a person who is to serve as Chief
Magistrate and not to one who is running as candidate.
The
plaintiff's contention was that under the provision of the Sokehs
Constitution at issue here, a person who is convicted of a
[3
PN.L.R. 155]
felony could file his candidacy
and run in a Chief Magistrate's election, and if he wins such election the
next course of things to take place is for him to not accept the position.
This is too absurd a contention, let alone the loss of time, effort and
money that may be involved in the process, including the running of a
by-election.
[13] The election process is
something quite foreign to us, and the adoption of this process into our
social and political systems invite us to look to the foreign sources for
assistance in formulating our own rules, most suitable to our
situation.
[14] It has been said that "to
hold a public office, one must be eligible and possess the qualifications
prescribed by law, and an election or appointment to office of a person
who is ineligible or unqualified gives him no right to hold the office."
63 Am Jur 2d Public Officers and Employees, S. 38 (Eligibility and
Qualifications). The Courts are frequently called upon to determine the
question as to when the conditions of eligibility to office must exist,
whether at the time of election, the commencement of the term, or the
induction into office. In ascertaining this matter, the language used in
the constitutional or statutory provision declaring the
[3
PN.L.R. 156]
qualifications is to be
considered. It may expressly or by necessary implication specify the time
when the required eligibility must exist. Where such is the case, there
can be no question but that the candidate must possess the necessary
qualifications at that time. (63 Am Jur 2d., Public Officers and
Employees, S. 40 (time as of which eligibility is to be
determined).
[16] The conditions of
eligibility attached to the office of Chief Magistrate of the Sokehs
Municipality pursuant to Article 7, Section 2, indicate clearly that some
of the conditions are attached at the commencement of the office, others
at the time of the election, still others during the term of the office as
follows:
(1) at
time of commencement of office:
i. 30 years of
age;
ii. citizen of Pohnpei
for 20 years;
iii. citizen of Sokehs
Municipality for 15 years;
(2) at time of
election.
i. be elected by
majority of eligible voters in a general election;
ii. not
convicted of a felony;
(3) during
term of office:
shall not accept other
employment
[3
PN.L.R. 157]
The felony conviction as a
prohibition against eligibility under Article 7, Sec. 2, is static and
permanent. It should be emphasized that even an executive pardon does not
operate to remove this prohibition.
We hold
therefore that the prohibition against felony conviction under Article 7,
Sec. 2, applies also to a person running as a candidate to the office of
Chief Magistrate.
C.
Whether Article 7, Section 2, particularly the provision: A person
convicted of a felony is ineligible to serve as Chief Magistrate is vague
and should not be applied retroactively.
[17] It is a generally accepted
doctrine that a constitution cannot operate retrospectively. However, as
it is well known, there is no "original" or "unique"
constitution.
[18] Every fundamental
constitution has borrowed some of its elements from the instruments of
other nations. What effect should be given to foreign decisions
interpreting their own basic documents when an issue arises for the first
time in a jurisdiction with a new constitution interpreting a provision in pari materia with that of some other
jurisdiction? The Indian Supreme Court, while
[3
PN.L.R. 158]
referring freely to decisions of
other countries, including particularly the United States, has said, "it
will be improper to import into the question of construction doctrines of
democratic theory and practice obtaining in other countries, unrelated to
the tenor, scheme and words of the provisions which we have to construe."
Babulal Parate v. State of Bombay. A.I. R.
1960 S.C. 51 (quoted in Harry E. Groves'
Comparative Constitutional Law Cases and Materials, Oceana
Publications Inc. Dobbs Ferry, New York, 1963 at p. 3 ). But the Indian
Supreme Court has also said, "Article 14 of the Constitution of India is
adopted from the last clause of S. 1 of the 14th Amendment of the
Constitution of the United States of America, and it may reasonably be
assumed that our Constituent Assembly when it enshrined the guarantee of
equal protection of the laws in our Constitution, was aware of its content
delimited by judicial interpretation in the United States of America. In
considering the authorities of the superior courts in the United States,
we would not therefore be incorporating principles foreign to our
Constitution, or be proceeding upon the slippery ground of apparent
similarity of expressions or concepts in an alien
jurisprudence
[3
PN.L.R. 159]
developed by a society whose
approach to similar problems on account of historical or other reasons
differs from ours." Ibid, p. 34, see also Paulus v. State of Pohnpei, 2 P.S.Ct.R 481. In
dealing with constitutional issues arising in our local constitutions,
this Court finds the view expressed by the Indian Supreme Court quite
relevant.
The
people of the Sokehs Municipality drafted their Constitution after the
Constitution of Pohnpei had been ratified. Some of the delegates to the
Pohnpei Constitutional Convention were delegates also to the Sokehs
Constitutional Convention. It is without question that those delegates
when they employed the provision "A person convicted of a felony is
ineligible to serve as Chief Magistrate" were aware of its meaning and
purpose as employed in the Pohnpei Constitution. The explanation found in
the Constitutional Convention record, to wit, "Pwukoah en Chief Magistrate
wia pwukoah kesempwal, karehda en irairdi ong soun doadoahk me likilik oh
kopworopwor oh sohte ad suwedkihla mwekid suwed ehu me kawehla snare oh
likilik rehn aramas. Aramas emen me dipekidahr dihp toutou ehu sohte kak
wia Chief
[3
PN.L.R. 160]
Magistrate, mehndahte ma a pil
aleier kisin likou en mahk me kapwureiong ih ah pwuhng kan." leaves no
doubt in the mind of the Court that the prohibition in question attaches
to a person once he is adjudged guilty of a felony. No issue was raised as
to whether the felony conviction should be had at certain specified court.
Finally, the phrase "mendahte ma a pil aleier kisin likou en mahk me
kapwureiong ih ah pwuhng kan" found in the Convention record facilitates
our holding that this prohibition operates against a person who has been
convicted of a felony in any court at any time even before the effective
date of the Sokehs Constitution.
[19] The conditions or
qualifications of eligibility to public office as prescribed by
constitutional and statutory provisions and the consequent
disqualification relate generally to such matters as age, citizenship,
suffrage, property ownership and payment of taxes, crime or misconduct,
prior removal or suspension from office, failure to file election
expenses, and the holding of an incompatible office.
[20] There are other matters
which, by express provisions of the law, may disqualify persons from being
chosen for or from holding
[3
PN.L.R. 161]
public offices, or particular
offices. Thus they may prohibit the appointing officer from appointing
persons related to him, or prohibit the holding of a particular office by
the same person for a stated number of consecutive years or terms. 63 Am
Jur 2d Public Officers and Employees, Sec. 44 (Particular Qualifications
or Disqualifications). Hence, the plaintiff's third contention falls to
the ground.
D.
Whether retroactive application of Article 7, Section 2, violates the Ex Post Facto provision of the Constitution of
Pohnpei.
[21] Ex post facto has been
defined as:
(1) Every
law that makes an act, done before the passing of the law, and which was
innocent when done, criminal, and punishes such action.
(2) Every
law that aggravates a crime, or makes it greater than it was when
committed.
(3) Every
law that changes the punishment, or inflicts a greater punishment than the
law annexed to the crime when committed.
(4) Every
law that alters the legal rules of evidence, and receives less or
different testimony than the law required at the time of the commission of
the offense, in order to convict the offender; all these, and similar
laws, are prohibited by the constitution; but the law may be ex post
facto, and still not be amenable to this constitutional inhibition: that
is, provided it molliffies, instead of aggravating, the rigor of the
ciminal law.
[3
PN.L.R. 162]
Black's Law Dictionary, 4th Ed.
1968.
Another interesting
definition:
An "ex post facto law" includes every law that
creates and punishes a criminal offense, when done before the passing of
the law, was innocent, and every law that aggravates a crime or makes it
greater than it was when committed, and every law that inflicts a greater
punishment than was attached to the crime when committed. State v. Pleason 218 N.W. 154,
155.
Ex post facto deals principally with crimes and
punishment of crimes. The issue before us deals with political privilege.
Municipalities, including Pohnpei, may deprive a person who has been
convicted of a felony of the right of suffrage, Pohnpei (PNI)
Constitution, Art. 6, Sec. 1; Lassiter v.
Northampton County Board of Elections, 360 U.S. 45, 3 L. Ed. 2d. 1072,
70 S. Ct. 985; Davis v. Beason, 133 U.S. 333,
33 L. Ed. 2d 637, 10 S. Ct. 299; and the right to hold public office, PNI
Constitution, Art. 8, Sec. 4, Art. 9, Sec. 3, and Art. 10, Sec. 6. The
manifest purpose of such restriction is to preserve the purity of
elections and to uphold the trustworthiness of our public officers. It is
not to invoke a punishment or
[3
PN.L.R. 163]
penalty. As noted in Article 7,
Section 2, Sokehs Constitution, certain other purposes are added, "Pwukoh
en Chief Magistrate. . . me kesempwal, karehda en irairdi ong soun
doadoahk me likilik oh kopworopwor oh sohte ad suwed kibla mwekid suwed
ehu me kauwehla snare oh likilik rehn aramas." The presumption is that one
rendered infamous by conviction of a felony or other offense indicative of
moral turpitude is unfit to vote, Art. 6, Sec 1, PNI Const., and likewise,
he is unfit to hold the office of Chief Magistrate, Art. 7, Sec. 2, Sokehs
Constitution. The exclusion constitutes the withholding of a privilege,
not the denial of a personal right, and it is not an ex post facto law or
a bill of attainder. Washington v. State, 75
Ala. 582; State ex rel. Atty. Gen. v. Irby,
190 Ark. 786, 81 S.W. 2d. 419; 25 Am Jur 2d., Elections, S. 94
(Commission or Conviction of Crime).
The
foregoing discussion of the law disposes of the issues before us.
Plaintiff's contention 4 must fail.
Ordered Affirmed.