FSMC, TITLE 1.  GENERAL PROVISIONS
 
Chapter 2:  Interpretation
of Law and Code

Subchapters:
I:     Interpretation of Law ( 201-213)
II:     Code of the Federated States of Micronesia ( 220-234)
 
 
Subchapter I:  Interpretation of Law

201.    Additional laws applicable to Trust Territory.
202.    Local customs; Customary law.
203.    Applicability of common law.
204.    Repeal of Spanish, German, and Japanese laws.
205.    Land law not affected.
206.    Existing interim regulations and orders; etc.
207.    Words denoting number, etc.
208.    Words and phrases generally.
209.    English language text to prevail.
210.    Classification and arrangement of titles, etc.
211.    Construction of code.
212.    Severability of provisions.
213.    Numbering of laws.

Case annotations:  A fundamental principle of statutory interpretation is that where a statute can be read in two ways, one raising constitutional issues and the other interpreting the language as affecting matters clearly within the constitutional reach of Congress, the latter interpretation should prevail so that the constitutional issue is avoided.  FSM v. Boaz (II), 1 FSM Intrm. 28, 32 (Pon. 1981).

When interpreting a statute, courts should try to avoid interpretations which may bring the constitutionality of the statute into doubt.  Tosie v. Tosie, 1 FSM Intrm. 149, 157 (Kos. 1982).

While courts will not refuse to pass on the constitutionality of statutes in a proceeding in which such a determination is involved, needless consideration of attacks on their validity and unnecessary decisions striking down statutes will be avoided.  Legislative acts are presumed to be constitutional; where fairly possible a construction of a statute will be made that avoids constitutional questions.  Truk v. Hartman, 1 FSM Intrm. 174, 180-81 (Truk 1982).

Courts should avoid, where possible, selecting interpretations of a statute which may bring into doubt the constitutionality of that statute.  In re Otokichy, 1 FSM Intrm. 183, 190 (App. 1982).

Constitutional issues should not be decided if the statute in question may be interpreted in such a way as clearly to conform with constitutional requirements.  Suldan v. FSM (I), 1 FSM Intrm. 201, 205 (Pon. 1982).

A court should not decide a constitutional issue when there remains a possibility that an administrative decision will obviate the need for a court decision.  Suldan v. FSM (I), 1 FSM Intrm. 201, 205 (Pon. 1982).

The Constitution does not contemplate that FSM citizens must first petition any person or body outside the FSM as a condition to consideration of their constitutional claims by courts established under this Constitution.  In re Iriarte (II), 1 FSM Intrm. 255, 267 (Pon. 1983).

If construction of a statute by which a serious doubt of constitutionality may be avoided is fairly possible, a court should adopt that construction.  Suldan v. FSM (II), 1 FSM Intrm. 339, 358 (Pon. 1983).

If a dispute properly may be resolved on statutory grounds without reaching potential constitutional issues and without discussing constitutional principles, the court should do so.FSM v. Edward, 3 FSM Intrm. 224, 230 (Pon. 1987).

No clause in the FSM Constitution is equivalent to the eleventh amendment of the United States Constitution, which generally bars citizens from using U.S. federal courts to seek monetary damages against states.  Edwards v. Pohnpei, 3 FSM Intrm. 350, 361 (Pon. 1988).

When dealing with statutes, before discussing constitutional issues a court must first address any threshold issues of statutory interpretation which may obviate the need for a constitutional ruling.  Michelsen v. FSM, 3 FSM Intrm. 416, 419 (Pon. 1988).

The appellate court will not decide a constitutional issue if not raised below and because unnecessary constitutional adjudication is to be avoided.  Jonah v. FSM, 5 FSM Intrm. 308, 313 (App. 1992).

The Chapman rule, which holds that a constitutional error can be found harmless only when it is harmless beyond a reasonable doubt, is suitable for the FSM.  Jonah v. FSM, 5 FSM Intrm. 308, 314 (App. 1992).

A statute is repealed by implication by a constitutional provision when the legislature, under the new constitutional provision, no longer has the present right to enact statutes substantially similar to the statute in question.  FSM v. Jano, 6 FSM Intrm. 9, 11 (Pon. 1993).

      201.  Additional laws applicable to Trust Territory.
     The following are declared to be in full force and to have the effect of law in the Trust Territory:

              (1)     the Trusteeship Agreement;

     (2)     such laws of the United States as shall, by their own force, be in effect in the Trust Territory, including the Executive orders of the President and orders of the Secretary of the Interior;

     (3)     laws of the Trust Territory and amendments thereto;

     (4)     district orders heretofore promulgated by the district administrators of the Trust Territory and emergency district orders promulgated by the district administrators in accordance with former section 108 of title 1 of the Trust Territory Code;

     (5)     the acts of legislative bodies convened under charter from the High Commissioner when these acts are approved by the High Commissioner or otherwise become law as may be provided by charter or the laws and regulations of the Trust Territory; and,

(6)     duly enacted municipal ordinances.

Source:  TT Code 1966 20; TT Code 1970, 1 TTC 101; TT Code 1980, 1 TTC 101.

Editor's note:  Former 1 TTC 108 dealt with authority to promulgate emergency district orders.

      202.  Local customs; Customary law.
     The customs of the inhabitants of the Trust Territory not in conflict with the laws of the Trust Territory or the laws of the United States in effect in the Trust Territory shall be preserved.  The recognized customary law of the various parts of the Trust Territory, in matters in which it is applicable, as determined by the courts, shall have the full force and effect of law so far as such customary law is not in conflict with the laws mentioned in section 201 of this chapter.

Source:  TT Code 1966 21, TT Code 1970, 1 TTC 102; TT Code 1980, 1 TTC 102.

Editor's note:  The phrases "or the laws of the United States in effect in the Trust Territory" and ", in matters in which it is applicable, as determined by the courts," were contained in the 1966 edition of the Trust Territory Code, but were deleted from the 1970 and 1980 editions.

Cross-reference:  For constitutional guarantee of traditional rights, see FSM Const., art. V; for other provisions on continuation of customary law, see 114 of this title; for provisions on recognition of local custom in criminal prosecutions, see 108 of title 11 (Crimes) of this code; for provisions on local custom in criminal sentencing, see 1203 of title 11 (Crimes) of this code.

Case annotations:  Customary law is placed in neither an overriding nor inferior position by the FSM Constitution and statutes.  FSM v. Mudong, 1 FSM Intrm. 135, 139 (Pon. 1982).

Under appropriate circumstances customary law may assume importance equal to or greater than particular written provisions in the National Criminal Code.  11 F.S.M.C. 108, FSM v. Mudong, 1 FSM Intrm. 135, 139-40 (Pon. 1982).

       203 .  Applicability of common law.
     The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute and, to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Trust Territory in applicable cases, in the absence of written law applicable under section 201 of this chapter or local customary law applicable under section 202 of this chapter to the contrary and except as otherwise provided in section 205 of this chapter; provided, that no person shall be subject to criminal prosecution except under the written law of the Trust Territory or recognized local customary law not inconsistent therewith.

Source:  TT Code 1966 22, TT Code 1970, 1 TTC 103; TT Code 1980, 1 TTC 103.

Case annotations:  By its terms, 1 F.S.M.C. 203 pointing to the Restatements as a guide for determining and applying the common law applies only to "courts of the Trust Territory".  Since only courts established by the Trust Territory administration existed when the section was issued, it plainly was intended only for those courts at that time.Rauzi v. FSM, 2 FSM Intrm.8,14 (Pon. 1985).

In absence of any persuasive considerations to the contrary, it is logical to conclude that 1 F.S.M.C. 203 pointing to the Restatements as a guide for determining and applying the common law applies only to courts of the Trust Territory, not to courts of the FSM or the various states.  Rauzi v. FSM, 2 FSM Intrm.8, 14(Pon. 1985).

FSM Supreme Court can and should consider the Restatement and reasoning of courts in United States and other jurisdiction in arriving at its own decisions although it is not bound by those decisions and must not fall into the error of adopting the reasoning of those decisions without independently considering suitability of that reasoning for the FSM.  Rauzi v. FSM, 2 FSM Intrm.8, 14-15 (Pon. 1985).

1 F.S.M.C. 203, with its sweeping mandate that the Restatements and other common law rules as applied in the United States be the "rules of decision," would lure the courts in a direction other than that illuminated by the Constitution's Judicial Guidance Provisions,FSM Const., art. XI , 11, which identifies as the guiding star, not the Restatement or decisions of United States courts concerning common law, but the fundamental principle that decisions must be "consistent. with the Constitution, Micronesian custom and tradition, and the social and geographical configuration of Micronesia".  Rauzi v. FSM, 2 FSM Intrm. 8, 14 (Pon. 1985).

Common law principles may be drawn from statutes as well as court decisions.  While the common law is articulated through court decisions, it has its source in legislative action as well as court decisions.  Rauzi v. FSM, 2 FSM Intrm. 8, 17(Pon. 1985).

The Micronesian Constitutional Convention anticipated that judges in the new constitutional court system would find it necessary to draw on experience and decisions of courts in other nations to develop a common law of the FSM.  The framers recognized the desirability of such a search and amended the earlier draft of the provision to be sure to leave it open to the constitutional courts to do so.  Nonetheless, judges now are not to consider the relationship between the common law of the United States and the legal system here in the same way that relationship was viewed prior to self-government.Semens v. Continental Air Lines, Inc. (I), 2 FSM Intrm. 131, 139 (Pon. 1985).

Common law decisions of United States are an appropriate source of guidance for this court for contract and tort issues unresolved by statutes, decisions of constitutional courts here, or custom and tradition in the FSM.  Review of decisions of courts of the U.S., and any other jurisdictions, must proceed however against the background of "pertinent aspects of Micronesian society and culture".  Semens v. Continental Air Lines, Inc. (I), 2 FSM Intrm. 131, 140 (Pon. 1985).

United States statutes regarding ships' mortgages will not be adopted as the common law of the FSM, because their purposes are not applicable to the FSM and because their changing nature and complexity are not conducive to forming the basis of the common law of this nation.  Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 57, 59-60 (Truk 1989).

Where there are no directly controlling statutes, cases or other authorities in the FSM, it may be helpful to look to law of other jurisdictions, especially the U.S., in formulating general principles for use in resolving legal issues bearing upon rights of public employees and officers, in part because structures of public employment within the FSM are based upon comparable governmental models existing in the U.S.  Sohl v. FSM, 4 FSM Intrm. 186, 191 (Pon. 1990).

Statutory changes overruling previous judicial rulings may fundamentally alter the general law in the area newly governed by statute.  Federal Business Dev. Bank v. S.S. Thorfinn, 4 FSM Intrm. 367, 372 (App. 1990).

Comparative negligence, which has displaced contributory negligence in most jurisdictions in the United States, should be given careful consideration by courts even though the Restatement (Second of Torts) refers only to contributory negligence and is silent about comparative negligence.  There is reason to doubt that the FSM Supreme Court is bound by 1 FSMC 203 pointing to the Restatements as a guide for determining and applying the common law.  Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 23 n.1 (App. 1985).

       204.  Repeal of Spanish, German, and Japanese laws.
     All laws, regulations, orders, and ordinances heretofore enacted, issued, made, or promulgated by Spanish, German, or Japanese authority which are still in force in the Trust Territory are hereby repealed except as provided in section 205 of this chapter; provided, however, that nothing in this code shall change the effect of local custom which may have been included within the scope of laws, regulations, orders, or ordinances enacted, issued, made, or promulgated as aforesaid.

Source:  TT Code 1966 23, TT Code 1970, 1 TTC 104; TT Code 1980, 1 TTC 104.

       205.  Land law not affected.
     The law concerning ownership, use, inheritance, and transfer of land in effect in any part of the Trust Territory on December 1, 1941, shall remain in full force and effect to the extent that it has been or may hereafter be changed by express written enactment made under authority of the Trust Territory.

Source:  TT Code 1966 24, TT Code 1970, 1 TTC 105; TT Code 1980, 1 TTC 105.

       206.  Existing interim regulations and orders, etc.
     The provisions of this code, to the extent that they are substantially the same as prior interim regulations of the Trust Territory, are to be construed as a continuation thereof, and not as new enactments.  All interim regulations and amendments thereto, heretofore enacted or made, which are contained in this code are to be deemed to have taken effect and come into force on the date of original publication thereof or on the date expressly provided in such interim regulation or amendments thereto.  All proclamations, regulations, orders, and directives of the United States military Government, all civil administration orders (except existing district orders), and all interim regulations, amendments and supplements thereto, which are not contained in this code are hereby expressly repealed.

Source:  TT Code 1966 26, TT Code 1970, 1 TTC 106; TT Code 1980, 1 TTC 106.

       207.  Words denoting number, etc.
     As used in this code or in any Act of the Congress of Micronesia, unless it is otherwise provided or the context requires a different construction, application, or meaning:

     (1)     words importing the singular include and apply to several persons, parties or things;

(2)     words importing the plural include the singular;

     (3)     words importing the masculine gender include the feminine; and

     (4)     words used in the present tense include the future.

Source:  COM PL 4C-28 1; TT Code 1980, 1 TTC 152.

       208.  Words and phrases generally.
     Words and phrases, as used in this code or in any act of the Congress or in any regulation issued pursuant thereto shall be read with their context and shall be construed according to the common and approved usage of the English language. Technical words and phrases and such other words and phrases as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to their peculiar and appropriate meaning.

Source:  COM PL 4C-28 1; TT Code 1980, 1 TTC 153.

      209.  English language text to prevail.
     Whenever any provision of this code or any law, ordinance, regulation, document, or instrument adopted pursuant thereto shall have been translated in whole or in summary from English to a local language should there be a possible difference of interpretation between the English text and the local translation the English language text shall prevail and govern in the decision of all cases, except as provided in former section 105 of title 4 of the Trust Territory Code.

Source:  COM PL 4C-28 1; TT Code 1980, 1 TTC 154.

Editor's note:  Former 4 TTC 105 dealt with construing municipal ordinances.

       210.  Classification and arrangement of titles, etc.
     The classification of the titles, chapters, subchapters, and sections of this code, and the headings thereto, are made for the purpose of convenient reference and orderly arrangement, and no implication, inference, or presumption of a legislative construction shall be drawn therefrom.

Source:  COM PL 4C-28 1; TT Code 1980, 1 TTC 155.

       211.  Construction of code.
     The provisions of this code shall be construed according to the fair construction of their terms, with a view to effect its object and to promote justice.

Source:  COM PL 4C-28 1; TT Code 1980, 1 TTC 156.

Case annotations:  Where there is a conflict between a statute of general application to numerous agencies or situations, such as the APA, and a statute specifically aimed at a particular agency or procedure, such as the National Election Code, the more particularized provision will prevail.  This rule is based upon recognition that the legislative body, in enacting the law of specific application, is better focused and speaks more directly to the affected agency and procedure.  Olter v. National Election Comm'r, 3 FSM Intrm. 123, 129 (App. 1987).

Even if some deference is accorded to the legal judgment of an agency, the courts must remain the final authority on issues of statutory construction.  Olter v. National Election Comm'r, 3 FSM Intrm. 123, 132 (App. 1987).

Any court deference to another decision-maker on a legal question is a departure from the norm and may occur only when there is sound reason.  Olter v. National Election Comm'r, 3 FSM Intrm. 123, 132, 134 (App. 1987).

In reviewing the statutory interpretation of an agency authorized to implement the particular statute, the court should not defer but is under an affirmative duty to make its own determination as to the meaning of the statute when there is no indication that Congress intended the court to defer, when no particular scientific or other expertise is required for administration of the act, and when the interpretation does not involve mere routine operating decisions, but instead represents a fundamental policy decision having constitutional implications.  Carlos v. FSM, 4 FSM Intrm. 17, 25 (App. 1989).

       212.  Severability of provisions.
     If any provision of this code or amendments or additions hereto, or the application thereof to any person, thing, or circumstances is held invalid, the invalidity does not affect the provisions or application of this code or the amendments or additions that can be given effect without the invalid provisions or application, and to this end the provisions of this code and the amendments or additions thereto are severable.

Source:  COM PL 4C-28 1; TT Code 1980, 1 TTC 157.

       213.  Numbering of laws.

     (1)     Public laws shall be assigned a number by the High Commissioner as they become law, with or without his signature, in the order in which they become law.  Numbers of public laws enacted by the First Regular Session, 1965, Congress of Micronesia, shall be preceded by the figure "1-"; numbers of public laws enacted by the Second Regular Session, 1966, Congress of Micronesia, shall be preceded by the figure "2-"; numbers of public laws enacted by the Third Regular Session, 1967, Congress of Micronesia, shall be preceded by the figure "3-"; numbers of laws enacted by the Fourth Regular Session, 1968, Congress of Micronesia, shall be preceded by the figure "4-"; numbers of public laws enacted by the Third Congress of Micronesia shall be preceded by the figure "3C-"; numbers of public laws enacted by the Fourth Congress of Micronesia shall be preceded by the figure "4C-"F; numbers of public laws enacted by the Fifth and succeeding Congresses shall be preceded by an arabic numeral representing the number of the Congress, followed by a hyphen, such as "5-".

     (2)     Private laws enacted by the Congress of the Federated States of Micronesia shall be numbered in the same manner as public laws, as set forth in subsection (3) of this section, except that such laws shall be known as private laws and not as public laws.

     (3)     Bills enacted by the Congress of the Federated States of Micronesia shall be assigned a number by the President of the Federated States of Micronesia as they become law, with or without his approval, in the order in which they become law.  Public laws enacted by the First Congress of the Federated States of Micronesia shall be preceded by the figure "1" followed by a hyphen.  Public laws enacted by subsequent Congresses shall be preceded by an arabic numeral representing the number of the appropriate Congress, followed by a hyphen, such as "2-".

Source:  TT Code 1980, 2 TTC 164; PL 1-33 1.

Cross-reference:  The statutory provisions on the Legislature (the Congress of the Federated States of Micronesia) are found in title 3 of this code.
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