Cite as FSM v. Mudong, 1 FSM Intrm. 135 (Pon.1982)

[1 FSM Intrm. 135]












Before Edward C. King
Chief Justice

April 28, 1982
Ponape, Caroline Islands 96941


For the Plaintiff(s): Frederick Canavor
Chief Litigator
State of Ponape
Ponape, Caroline Islands 96941
For the Defendant(s): Maketo Robert
Public Defender
State of Ponape
Ponape, Caroline Islands 96941

[1 FSM Intrm. 335a]


Custom and Tradition

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).

Custom and Tradition

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).

Criminal Law and Procedure - Dismissal; Custom and Tradition; Settlement

Customary settlements do not require court dismissal of criminal proceedings if no exceptional circumstances are shown. FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982).

Criminal Law and Procedure - Dismissal

After prosecution has been initiated, the court may dismiss litigation if there is no probable cause to believe that a crime has been committed. FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982).

Criminal Law and Procedure - Prosecutors

The decision to initiate, continue, or terminate a particular criminal prosecution is, with limited exceptions, within the prosecutor's discretion. FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982).

Criminal Law and Procedure - Dismissal; Criminal Law and Procedure - Prosecutors; Custom and Tradition

The prosecutor does not have authority to dismiss an existing prosecution on the basis of customary law but the court does have power to respond to a prosecutorial suggestion for dismissal because of customary considerations. FSM v. Mudong, 1 FSM Intrm. 135, 141 (Pon. 1982).

Custom and Tradition

The burden of proof is on a defendant to establish effect of customary law; the effect of customary apology ceremony on court proceedings is not self-evident. 11 F.S.M.C. 108(3). FSM v. Mudong, 1 FSM Intrm. 135, 141-43.

Custom and Tradition

Customary law and the constitutional legal system perform different roles; they may mutually support each other. Neither system controls the other. FSM v. Mudong, 1 FSM Intrm. 135, 145 (Kos. 1982).

Criminal Law and Procedure; Custom and Tradition

The FSM Supreme Court is required by the National Criminal Code to recognize generally accepted customs and to determine the applicability and effect of customary law in a criminal case; it is not authorized to develop new customary law. 11 F.S.M.C. 108. FSM v. Mudong, 1 FSM Intrm. 135, 146-47 (Pon. 1982).

Criminal Law and Procedure - Sentencing; Custom and Tradition

Custom is more properly considered during sentencing than at other stages of a criminal prosecution. FSM v. Mudong, 1 FSM Intrm. 135, 147-48 (Pon. 1982).

* * * *

[1 FSM Intrm. 136]

These are separate criminal prosecutions for assault with a deadly weapon. The cases are considered resolved through Ponapean customary settlements. The Ponape State Attorney's Office refused earlier requests by the defendants that the prosecutions be terminated in deference to the customary settlements, and these motions to dismiss are also opposed by the prosecution. For the reasons discussed the motions are denied.

[1 FSM Intrm.137]

Factual Background

Affidavits have been submitted in support of the motion to dismiss in each case. These suggest that the alleged actions of the defendants were a part of more generalized hostilities involving several persons. Each dispute, it seems, had the potential of spreading through the families of the principal antagonists.

In Criminal Action No. 1981-512, Albert Mudong is accused of attacking and cutting Ketson Manasa with a machete. Affidavits show that Kein Sailas, a relative of Ketson Manasa, was a victim too but at some undisclosed time also "chopped" Mudong in the arm with a machete.

About one week after the criminal proceedings were initiated, some 100 people, including the families of Messrs. Mudong, Manasa, and Sailas, gathered at Nanpahlap in Madolehnimw to discuss the "friction" between the families. Affidavit of Osinasi Sailas. At the meeting, the families offered and accepted apologies. Then, "to solemnize the occasion and to purge the bad feeling, both sides sat together and shared cups of sakau, something very important in the Ponapean tradition." Id. Osinasi Sailas, uncle of Ketson Manasa and Kein Sailas, also states that "it is the consensus of both sides that bad feelings be put to a stop, and that further prosecution of the criminal case may hinder that goal." The affidavit goes on to say that "for that reason, both sides agreed that request has to be made to the proper authorities to dismiss the case ... "

[1 FSM Intrm.138]

In Criminal Action No. 1981-517, defendant Miller Benjamin"s attorney has filed an affidavit stating that several leaders of Uh Municipality, including Nahnmwarki Moses, Welter John, sixth in line to the Nahnmwarki, and Nason Adalbert, second in line to the Nahnken, met with the families to "arbitrate the problem." Affidavit of Maketo Robert.

The Robert affidavit also represents that "it was the consensus of the families on both sides, as well as that of the traditional leaders that the problems should be settledthrough the social mechanism rather than through the criminal grinding process."

Legal Principles

Prior to establishment of the constitutional government of the Federated States of Micronesia, customary law was inferior in legal status to written law promulgated by the administering authority, or any official or legislative body in the Trust Territory, including United States and Trust Territory law, Secretarial Orders, orders of district administrators and municipal ordinances. See 1 T.T.C. §§ 101 and 102. Under these statutory provisions, the Trust Territory High Court disregarded, or considered void, any custom or customary law in conflict with written law. Ngirasmengesong v. Trust Territory, 1 TTR 615 (App. 1958); Ngirachelbad v. Merii, 2 TTR 631 (App. 1961). Specifically, customary forgiveness could not preclude or affect criminal prosecutions. Trust Territory v. Lino, 6 TTR 7 (1972).

[1 FSM Intrm.139]

The question is more difficult under Federated States of Micronesia law. Customary law is not placed in an exalted or overriding posture under the Constitution and statutes of the Federated States of Micronesia, but neither is it relegated to its previous inferior status.

Article V of the Constitution provides protection for custom and tradition, saying "the traditions of the people of the Federated States of Micronesia may be protected by statute." 1 Congress took special care to provide for custom in the National Criminal Code, Public Law No. 1-134.

Customary Law. For purposes of administration and enforcement of this act:

(1) Generally accepted customs prevailing within the Federated States of Micronesia relating to crimes and criminal liability shall be recognized and con-sidered by the national courts. Where conflicting customs are both relevant, the court shall determine the weight to be accorded to each;

(2) Unless otherwise made applicable or given legal effect by statute, the applicability and effect of customary law in a criminal case arising under this act shall be determined by the court of jurisdiction in such criminal case;

11 F.S.M.C. 108. Congress has set aside the previous assumption that customary law must always yield to specific statutory provisions. The National Criminal Code holds out the possibility

[1 FSM Intrm.140]

that, in appropriate circumstances, unwritten customary law may assume importance equal to, or greater than, particular written provisions in the National Criminal Code. ThisCourt has the affirmative obligations to "recognize and consider" customs relating to crimes and criminal liability and to determine the "applicability and effect of customary law in a criminal case."

Customary Settlements and Constitutional Courts

The Court has therefore given serious consideration to defendants' requests that these cases be dismissed because of the customary settlements. Even so, we have concluded that, as a general proposition, customary settlements should not be seen as requiring court dismissal of criminal proceedings. In these particular cases now before the Court, we see no exceptional circumstances calling for dismissal. These conclusions are based on the following lines of thought.

Prosecutorial Discretion - Under the constitutional legal system, a decision as to whether to initiate, continue or terminate a particular criminal prosecution is, with limited exceptions, within the discretion of the prosecutor. Nix v. Ehmes, 1 FSM Intrm. 114 (Pon. 1982). After prosecution has been initiated, the Court may dismiss litigation if there is no probable cause to believe that a crime has been committed or that the defendant has committed it. See FSM v. Carl, 1 FSM Intrm. 1 (Pon. 1981). Here, no one contends that probable cause is lacking.

[1 FSM Intrm.141]

As explained in Nix, the broad prosecutorial discretion is based upon important considerations of public policy and separation of powers. We are reluctant to encroach upon that discretion either, as in Nix, to force the prosecutor to initiate criminal procedures, or as here, to order the termination of criminal proceedings.

Indeed prosecutorial discretion may be particularly suited to give effect to custom and customary law. A prosecutor can legitimately consider customary law, and reconciliation between aggrieved parties, in determining whether to initiate criminal proceedings. Bale, Whether Or Not To Prosecute, reprinted in Pacific Courts and Justice, 93-94 (1977). The National Criminal Code does not grant the prosecutor authority to dismiss an existing prosecution on the basis of customary law but, if the prosecutor's inherent authority is insufficient, plainly does authorize this Court to respond to a prosecutorial suggestion for dismissal because of customary considerations.

Here, the prosecution has not recommended dismissal but instead has opposed the motions. Dismissal here, then, would be contrary to the policy considerations giving prosecutors broad authority to determine whether to initiate and continue prosecution.

Burden of Proof - The "customary" effect upon court proceedings of a customary forgiveness is not self-evident, and the defendants have offered no evidence to establish that dismissal of a court proceeding is one of the "customary"

[1 FSM Intrm.142]

results invariably flowing from an apology ceremony. 2

Other reasons, wholly aside from a desire to terminate court proceedings, could motivate a customary settlement. These might include the wish of the family or clan of the accused to reduce likelihood of retaliation by the family of the victim, desires of all concerned to terminate conflict and hostilities, and the interest of traditional leaders inrestoring community harmony.

We have been unable to locate any writings of jurists, anthropologists, social scientists or local citizens, discussing carefully the relationship between customary settlements and court proceedings. The few oblique references we have found suggest that profound changes in the effects of customary settlements have occurred during the past century.

Surely long ago customary law determined all aspects of the relationships among Ponapeans when a "crime" had been committed. In those times, 100 or more years ago, a customary settlement presumably disposed entirely of any rights or responsibilities of the disputants. At least as early as German times though, at the beginning of this century, outside powers oversaw and limited the powers of customary

[1 FSM Intrm.143]

leaders to respond to criminal activity. See Roger Ward Working Paper, Ponape Apology Rituals: Elaborations Of The Apology Pattern in Modern Ponape at 7 (1974).

The Japanese also maintained a court system for serious criminal cases. Annual Report to the League of Nations on the Administration of the South Sea Islands Under Japanese Mandate 27-30 (1937). See also Albert O. Momm, Ponape: Japan's Island In The Eastern Carolines 17, 20-24 (1974). Finally, customary law was subservient to written law under American rule, and customary forgiveness was not regarded by the courtsas having any effect on their proceedings. Supra, page 138. Against this background we may not merely assume today a viable principle of customary law to the effect that a customary settlement mandates dismissal of criminal court proceedings. Proof is required.

The prosecution does not concede any relationship between a customary settlement and a court proceeding as a matter of customary law, and the relationship has not been established to the satisfaction of this Court. Congress has wisely provided a rule of evidence to be applied in such a situation:

Where there is a dispute as to the existence or effect of customary law applicable to a criminal case arising under this act, the party asserting applicability of customary law has the burden of proving by a preponderance of the evidence the existence, applicability and customary effect ofsuch customary law.

Pub. L. No. 1-134, ยง 108(3) [11 F.S.M.C. 108(3)]. The defendants here have not fulfilled their burden of proof.

[1 FSM Intrm.144]

Customary Law and Court Proceedings Perform Different Functions. One should Not Control The Other - Custom and customary law play an important role relative to disputes, violence or wrongdoing in a Ponape community. This is likewise true of criminal proceedings in the constitutional legal system. It is often the case that customary activities and criminal proceedings will both be undertaken in response to the same occurrence or set of events. In most instances, many of the same people participate in both.

We should not assume from this however that one or the other of the systems is superfluous or that one is malfunctioning or in improper conflict with the other if they yield different results.

Micronesian custom, and the constitutional legal system established by the people of the Federated States of Micronesia, flow from differing (not necessarily inconsistent) premises, and traditions. They serve different purposes.

Ponapean customary law flows from an island tradition of interdependence and sharing. It de-emphasizes (compared to the constitutional legal system) notions of individual guilt, rights and responsibility, and places greater stress on the groups to which the individual accuseds and victims belong. Guy Powles, Court Systems of the South Pacific, reproduced in Pacific Courts and Justice, at 5 (1977). Families, clans and community groups are the principal subjects and objects of customary law. Major purposes of a customary forgiveness

[1 FSM Intrm.145]

are to prevent further violence and conflict, to soothe wounded feelings, and to ease the intense emotions of those most directly involved so that they can go about their livesin relative harmony.

The constitutional legal system, paradoxically, concentrates upon both smaller and larger units than those intermediate groups emphasized by customary law. This legal system's procedures are calculated to focus upon the individual accused. Grounded upon a premise of individual responsibility, the court system seeks to pinpoint one particular act or series of actions and to determine whether an individual accused is guilty of the crime.

At the same time, the constitutional legal system also must consider the more generalized interests of the larger society. The Court should respond to and implement this nation's more abstract notions of justice, applying the criminal law to preserve order and respect for law throughout the state and the Federated States of Micronesia. The view of the constitutional legal system is to be toward and from all of society, not just the communities of the defendants and the victims.

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

[1 FSM Intrm.146]

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

The Court May Only Apply Existing Customary Law, Not Create New Customary Law - The Court has considered the option of dismissing these proceedings in deference to the customary settlements, despite lack of any showing that customary law requires dismissal. Making court proceedings responsive to customary settlements might encourage more such settlements. However, this would violate the principle that neither the customary system nor the constitutional court system should control the other.

Moreover, such a course is not authorized by the National Criminal Code. This Court must apply the statute written by Congress. The Code, in 11 F.S.M.C. 108, requires the Court to recognize "generally accepted customs" and determine the "applicability and effect of customary law." This language does not permit the Court to refrain from enforcing written

[1 FSM Intrm.147]

criminal law provisions to encourage development of newcustom, as distinguished from recognizing existing customary law. In other words, our primary obligation is to enforce the specific provisions of the National Criminal Code, including those calling for recognition of existing custom. We are not authorized to digress from that purpose to encourage or develop customary law.

We note also, in passing, that if we were to set out to encourage more customary settlements, it is not altogether clear how we could best do so. The family of an accused might find possibility of termination of court proceedings a powerful incentive to enter into a customary settlement. The other side of the coin is that the family of the victim might be more willing to resolve its dispute and enter into a customary settlement with the family of the defendant, if the victim's family is confident that the constitutional legal system will deal with the defendant.

The National Criminal Code Contemplates That Customary Law Will Be Considered In Sentencing - The National Criminal Code and our own sense of appropriate procedure suggest that time to combine custom and court proceedings concerning law is in sentencing. Section 1003 of the National Code provides as follows:

Section 1003. Custom in Sentencing. In determining the sentence to be imposed, the court shall apply Subsection 6 of Section 1002 wherever appropriate, and shall otherwise give due recognition to the generally accepted customs prevailing in the Federated States of Micronesia.

[1 FSM Intrm.148]

This specific reference to custom in the National Criminal Code's sentencing provisions suggests that the Congress of the Federated States of Micronesia felt, as does this Court, that emphasis upon custom might more properly occur in sentencing than at other stages of a criminal prosecution.

If there are convictions in these cases, the parties to the customary settlements will have an opportunity to apprise the Court of their understandings and desires concerningsentencing. At that juncture the Court can usefully consider, and respond to, the fact that disputes between the parties have been resolved and that the victims and their families are not demanding revenge or harsh punishment.

For the above reasons, the motions to dismiss are denied. The Clerk is instructed to set dates for further proceedings in these cases.

So ordered this 28th day of April, 1982.

/s/ Edward C. King

Chief Justice
Supreme Court of the Federated
States of Micronesia
Trial Division



1. We note that the Trusteeship Agreement contains a somewhat similar provision stating that the administering authority shall "give due recognition to the customs of the inhabitants in providing a system of law for the Territory ..." Article 6.1. This was given no legal effect on grounds that the Trusteeship Agreement was not self-executing and was unenforceable in courts. Trust Territory v. Lopez, 7 TTR 449 (App. 1976); Alig v. Trust Territory, 3 TTR 603 (App. 1967). But see People of Saipan v. Department of Interior, 502 F.2d 90 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975).

2. Although the emphasis here is upon the effect of a customary settlement, counsel is reminded that it will also typically be necessary to establish that the acts carried out do in fact constitute a customary settlement.