Cite as In re Iriarte (II),
1 FSM Intrm. 255 (Pon. 1983)


[1 FSM Intrm. 255]




Before the Honorable Edward C. King
Chief Justice
February 16, 1983
Ponape, Caroline Islands  96941

     For the State of Ponape:   Frederick C. Canavor
                                                  Chief Litigator
                                                  State of Ponape
                                                  Ponape, Caroline Islands 96941

     For the Petitioner:              John Brackett
                                                  Chief Public Defender
                                                  Federated States of Micronesia
                                                  Ponape, Caroline Islands 96941


                                                  Mike Powell
                                                  Public Defender
                                                  State of Truk
                                                  Truk, Caroline Islands 96942

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     This Court on Sunday, February 13, 1983, issued an opinion in response to a petition of Salvador Iriarte for a writ of habeas corpus.  [In re Iriarte (I), 1 FSM Intrm. 239 (Pon. 1983).]  That opinion held that petitioner's confinement in Ponape jail under two orders of commitment, one dated January 28 and one dated February 9, was violative of due process.  To permit the Trust Territory High Court and the Ponape Municipal court an opportunity to proceed further with their criminal contempt charges against petitioner Iriarte, this Court's order did not require petitioner's immediate release but instead stated that he was to be released at 10:30 A.M. on Monday, February 14 unless "a further order of confinement is issued in compliance with the requirements of due process" before that time.

     Counsel for petitioner on February 14 filed a "Motion to Enforce Order of Release" asserting that due process requirements still have not been met and requesting this Court to order petitioner's immediate release pursuant to the terms of the February 13 order.

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A hearing was held on petitioner's motion at 1:30 P.M.  on Tuesday, February 15.  Papers filed, and representations made by counsel during the February 15 hearing, are the source for the following brief factual summary and update.

     Shortly after issuance of this Court's February 13 opinion, Municipal Judge Mikel Diana issued his second order of commitment dated February 13, 1983 but purporting to amend "nunc pro tunc"1 his January 28 order.

     Judge Diana's second order recites, among other things, that:

... on January 28, 1983, at approximately 9:30 a.m. in the actual presence of the court, SALVADOR IRIARTE did knowingly and unlawfully abuse, threaten and call the court names, to witt (sic): "You smell like shit," while the court was in actual session, and ordered all persons to leave the court, resulting in the court closing for that day and remaining closed until the present day.

That February 13 order further contains a certification that the court,

... saw and heard these actions of SALVADOR IRIARTE and that SALVADOR IRIARTE exited the courtroom before the court had an opportunity to advise him that he was in contempt of court, and orders these facts entered in the record.

     The February 13 order, like the January 28 and February 9 orders before it, directed that Salvador Iriarte be detained and required to serve a term of 15 days in prison for contempt of court, to be effective immediately upon apprehension.  The

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order further recited that Mr. Iriarte had been found in summary contempt" under Rule 23 of the Trust Territory Rules of Criminal Procedure.

     Approximately 30 minutes after issuance of Judge Diana's February 13 summary contempt order, on Sunday after noon at about 4:30 P.M., a proceeding involving the petitioner was convened by the Trust Territory High Court.  A complaint charging the petitioner with some six counts of misdemeanor violations was presented.  Bail for those charges was set in the amount of $1,500.

     The status of the contempt charge was somewhat less clearly defined. Counsel for the parties are in substantial agreement about what occurred during the proceedings although there is disagreement as to the legal status and effect of those events.

     At the outset, the trial court asked Mr. Iriarte if he  desired a hearing on the contempt charge.  Petitioner's counsel requested a hearing but, contending that there had not been sufficient advance notice to permit adequate preparation, asked for a later hearing date.  This request was granted and the criminal contempt hearing was set for February 21.

     Subsequently, during the February 13 hearing, after setting bail on the misdemeanor charges, the High Court denied bail on the contempt charge. The net effect was that, even if the petitioner could produce the $1,500 for the misdemeanor offenses, he would nevertheless be required to remain in confinement until the time of the contempt hearing.      

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     After completion of the proceeding, counsel for the petitioner moved the High Court for an immediate hearing on the contempt charges.  That motion was made approximately 30 minutes after conclusion of the court proceedings already mentioned, and after most persons had already left the vicinity of the Ponape courthouse.

     In any event, defense counsel's motion for an immediate hearing on the contempt charges was heard on Sunday evening at about 6:30 p.m. in the chambers of the High Court Chief Justice.  The motion was denied, but the time of the contempt hearing was advanced from February 21 to February 18, the afternoon of Chief Justice Munson's return from his current session in Kosrae.  That is the state of affairs as this Court considers petitioner's motion.
Due Process
     My review of the facts and the law persuades me that the present confinement of petitioner Iriarte violates his rights under the Constitution of the Federated States of

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     As stated in the February 13 opinion, certain basic procedures are normally required in criminal proceedings.  Criminal contempt charges such as that pending before the High Court against petitioner Iriarte are normally considered to be criminal cases because they expose the defendant to the possibility of imprisonment.  Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968).  Therefore, in the vast majority of criminal contempt cases, the defendant is given substantially those procedural rights normally accorded to defendants in other criminal cases.  The constitutionally required procedures would normally include, as a minimum, the right to receive reasonable notice of the charges, a right to examine any witnesses against the defendant, to offer testimony, and to be represented by counsel. In re Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507-08, 92 L. Ed. 682, 694 (1948); Taylor v. Hayes, 418 U.S. 488, 498, 94 S. Ct. 2697, 2703, 41 L. Ed. 2d 897, 907 (1974).

     Because the trial judge must be able to maintain order in a courtroom, there has been established one narrow exception to the requirement that there be normal notice and hearing procedures in a contempt case.

     That exception, allowing a trial judge to convict a defendant through "summary contempt" procedures, that is immediately without prior notice or a hearing, can be used where the accused disrupts courtroom proceedings and the judge must act immediately to restore order.  Ex parte Terry, 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed. 405 (1888).  The

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judge generally must act without delay to exercise this power to hold a person in contempt without prior notice and hearing.  In a few cases courts have been permitted to exercisesummary contempt powers shortly after the contemptuous conduct occurred. Delay has been permitted where necessary for a transcript to be prepared to substantiate the contempt charge, or where the disrupting person is an attorney representing a client and immediate contempt proceedings before completion of the trial might prejudice the jury or result in a mistrial.  Sacher v. United States, 343 U.S. 1, 72 S. Ct. 451, 96 L. Ed. 717 (1952).

     Even these cases permitting summary contempt, however, recognize that summary proceedings involve a great risk of overzealous prosecution by the courts invoking the power, and must be viewed "with disfavor".  Id.  Courts have been at pains to assure that the summary contempt power is not used as a bludgeon.  Those rights "basic in our system of jurisprudence" are observed.3

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     Speaking of the "unexpressed limits" to the summary contempt powers available under Rule 42(a) of the Federal Rules of Criminal Procedure, Justice Frankfurter said:

Among the restrictions to be implied, as a matter of course, are two basic principles of our law--that no judge should sit in a case in which he is personally involved and that no criminal punishment should be meted out except upon notice and due hearing, unless overriding necessity precludes such indispensable safeguards for assuring fairness and affording the feeling that fairness has been done. Observance of these commonplace traditions has its price.  It sometimes runs counter to public feeling that brooks no delay.  At times it seems to entail a needlessly cumbersome process for dealing with the obvious.  But as a process it is one of the cherished and indispensable achievements of western civilization.

Sacher, 343 U.S. at 29-30, 72 S. Ct. at 465, 96 L. Ed. at 734 (Frankfurter, J., dissenting).4

     In this case, Judge Diana's second order was issued two weeks after the alleged contempt, when the defendant already was in custody, subject to the jurisdiction and control of the Trust Territory High Court on various criminal charges.  No need then existed for the exercise of extraordinary court powers without the procedures normally mandated by the constitution.

     When the necessity for immediate action ended, so too  did the court's power to employ summary contempt.

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The summary power is, after all, nothing more than a weapon which the courts are given to use in their own defense, and the need for the court to defend itself must be clear before the weapon may be used. If a killer starts shooting, a policeman may shoot back, and he may shoot to kill.  But if the killer is captured alive the policeman may not then get revenge by shooting the prisoner.  Instead the killer must be given a trial before he may be punished for his misdeeds.

It is the same way with the summary contempt power.  The power is at an end when the need for its use is ended.

3 C. Wright, Federal Practice and Procedure 707 n.90 (1969).

     Other leading jurists have taken essentially the same view.5

I would go as far as any man in favor of the sharpest and most summary enforcement of order in court and obedience to decrees, but when there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law deals with other illegal acts.

Toledo Newspaper Co. v. United States, 247 U.S. 402, 425-26, 38 S. Ct. 560, 566, 62 L. Ed. 1186, 1196 (1918) (Holmes, J., dissenting).
The historic power of summary contempt grew out of the need for judicial enforcement of order and decorum in the courtroom and to compel obedience to court orders.  I believe the idea of judges having unrestricted power to by-pass the Bill of Rights in relation to criminal trials and punishments is an illegitimate offspring of this historic coercive contempt power.

Sacher, 343 U.S. at 22, 72 S. Ct. at 461, 96 L. Ed. at 730 (Black, J., dissenting).  See also 8B J. Moore, Moore's Federal Practice 42.04[2] (1981).

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     I conclude then that Judge Diana's February 15 attempt to exercise summary contempt power, two weeks after termination of the actions complained of, cannot be given legal effect.

     The emergency having ended, normal constitutionally required notice and hearing procedures should have been followed.  They were not.  The petitioner has now been confined in jail for several days but still has not had a hearing or an opportunity to respond to the charges.

     The Government contends that the petitioner should have been prepared to proceed with the contempt hearing on Sunday afternoon and that by asking for a postponement of a hearing offered by the High Court at that time, the petitioner lost or waived his right to a hearing.  If the loss of a right to hearing were considered appropriate at the time, this would have to be accompanied by a clear and unmistakable warning by the court that, if they did not proceed with the hearing immediately, petitioner would be deemed to have lost his right to a hearing.  This Court expresses no opinion here as to whether the High Court might properly have required petitioner to proceed immediately with the hearing, or to face the loss of his right to a hearing.6  In the absence of

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any such clear warning, it can not merely be assumed or declared, in retrospect, that the right to a hearing has been waived or lost.  See Weiss v. Burr, 484 F.2d 973, 987 (9th Cir. 1973) and cases cited therein.

     Thus, petitioner still has not received the hearing to which he is entitled on the criminal contempt charges and he can not have been convicted on those charges.

     There also appears no justification for the refusal to set bail.

     As the United States Supreme Court has pointed out, relief in a case involving a charge that bail has been improperly set or denied

... must be speedy if it is to be effective .... This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.  See Hudson v. Parker, 156 U.S. 277,
285 (1895).  Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

Stack v. Boyle, 342 U.S. 1, 4, 72 S. Ct. 1, 3, 96 L. Ed. 3, 6 (1951).

     A person who has received the title of Nahniken in Nett Municipality has, by definition, deep ties to Ponapean society. A Nahniken surely can be expected to appear to stand trial only five days from the date of the bail hearing and to submit to sentence if found guilty.  The near certainty that the petitioner will appear for the Friday, November 18 hearing and will submit to sentence if found guilty is enhanced here by the willingness of the Nahnmwarki, the primary traditional leader in Nett Municipality, to assure

[1 FSM Intrm. 266]

the appearance of the petitioner at further proceedings.  As a practical matter too, the High Court's requirement of $1,500 bail as a condition for release on the misdemeanor charges, which is in no way affected or reduced by the ruling of this Court, should serve as a strong reminder to the petitioner that it is essential for him to submit to the orders of the High Court.

     Under these circumstances, I conclude that the confinement of the petitioner without a prior conviction, coupled with absolute denial of bail for the contempt charges, is unjustified and violative of the petitioner's constitutional right of due process under Article IV, 3.
Exhaustion of Remedies
     This Court's February 13 opinion noted petitioner's contention that he had exhausted High Court remedies before petitioning this Court.  There are several reasons why I believe that here too petitioner has exhausted his remedies so that it is necessary for this Court to consider his constitutional claims.

     First, the petitioner has no recourse to further High Court proceedings within the Federated States of Micronesia.  The High Court trial division has considered and rejected petitioner's requests here for a hearing prior to confinement or, in the alternative, for bail to be set.

     An appeal from that High Court trial decision would necessitate a petition to the Appellate Division of the High Court in Saipan.  As a practical matter, with the difficulties

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of transportation and communication extant throughout Micronesia, it would have been impossible to obtain consideration of an appeal prior to confinement.  In any event, the Constitution of the Federated States of Micronesia surely does not contemplate that citizens here must first petition any person or body outside of the Federated States of Micronesia as a condition to consideration of their constitutional claims by courts established under this Constitution.

     Second, the High Court is an anomalous entity operating on an interim basis within, or adjacent to, a constitutional framework.  It does not derive its existence from theConstitution or the people of the Federated States of Micronesia. Instead, the High Court is the creation of an administrative agency, the United States Department of the Interior.  Personnel of the High Court are selected by the United States Department of the Interior without election, or any of the standard advice and consent procedures necessary for judges of the United States and the Federated States of Micronesia.  They are selected by Interior officials unilaterally without prior consultation with government officials of the Federated States of Micronesia.  Paid in amounts, and acting under the terms and conditions established for administrative officials within Interior, High Court appointees enjoy few if any of the protections normally established for judges as a matter of course pursuant to the constitutional separation of powers doctrine.

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     These factors serve to make the High Court an unusual judicial institution. The same considerations point toward the propriety and necessity of vigilance by the Supreme Court of the Federated States of Micronesia to assure that the constitutional rights of citizens of the Federated States of Micronesia are upheld.

     Third, the Trust Territory High Court, in its interim role within the constitutional government of the Federated States of Micronesia, remains subject to the provisions of the Trusteeship Agreement.7

     This, in turn, means that the High Court must promote constitutional self-government as a primary duty.  It therefore may not act in a manner contrary to the Constitution of the Federated States of Micronesia, which embodies the "freely expressed wishes of the people" of the Federated States of Micronesia.  Trusteeship Agreement  6.1. This Supreme Court, as the constitutionally established arbiter and protector of rights under the Constitution, is entitled and required to assure that the High Court, exercising governmental powers within the Federated States of Micronesia, does not violate the constitutional rights of citizens here.

     Fourth, if we were to consider this Court precluded from passing on the constitutionality of High Court actions

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at the trial level, the possibility exists that the litigation would proceed to the High Court Appellate Division and an ostensibly final decision, without this Court having an opportunity to address the issue.  Such a result seems irreconcilable with the constitutional mandate of this Court.8

     It should be noted that while the Trust Territory High Court continues to serve to fill the void existing because of the absence of the State Courts, it is not a State Court.  As pointed out previously, the High Court is unique.  It was established, and is administered and controlled in a way not contemplated by the Constitution of the Federated States of Micronesia.  This Court's duties with respect to the High Court must be determined with an eye toward these administrative and governmental realities as described above.

     Decisions of this Court concerning our responsibilities toward litigants before the High Court therefore may have little, if any, application to future cases brought by litigants before the courts of the various States within the Federated States of Micronesia.

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     Upon establishment of State Courts, any need for intervention by this Court at the trial level will be greatly reduced, or erased, by the fact that all judges of the State Courts will be sitting within the Federated States of Micronesia. Presumably, appeals can be made available immediately on an emergency basis within the States Courts without resort to this Court.  Of course, the State Courts established pursuant to constitutions within the Federated States of Micronesia will be answerable to the citizens of the states in the manner prescribed by their respective constitutions.  There will be a comparable diminution in the necessity that this Court actively protect against constitutional violations.

Traditional Titles and the Law
     "Nahniken" of Nett is a paramount traditional title  which naturally bestows upon its bearer the respect of the people of Nett, Ponape, and the entire Federated States ofMicronesia.  This high title, presently borne by the petitioner on behalf of the people of Nett Municipality, also carries with it grave responsibilities.  High traditional leaders have customarily brought honor to their titles and earned the respect of the people by fulfilling their traditional responsibilities and conducting themselves with dignity and sensitivity.

     It is shocking then when a traditional leader is accused of abusing a fellow citizen who holds the important position of municipal judge.  One can well understand and appreciate the strong impulse to protect the victimized judge and court and to assure prompt punishment for any such offenses.

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     Yet, we must gird ourselves against such impulses.  Even those accused of the most serious and outrageous crimes are entitled to a fair hearing and an opportunity to defend themselves.  While traditional leaders are not above the law, they also do not forfeit the rights of other citizens of the Federated States of Micronesia.  Due process of law is at the very heart of our constitutional legal system. The Constitution demands that we provide fair trial procedures impartially for rich and poor, powerful and weak, titled and untitled alike.

     One other point perhaps heightens this Court's obligation to assure that proceedings involving holders of traditional titles be conducted with meticulous care.  The Constitution of the Federated States of Micronesia, at Article V, refers directly to traditional rights and traditional leaders.  Under the Constitution and statutes enacted by the Congress of the Federated States of Micronesia (e.g., the National Criminal Code, 11 F.S.M.C. 108, 1003), custom and tradition have a special place and may demand special consideration.

     In short, the constitutional government seeks not to override custom but to work in cooperation with the traditional system in an atmosphere of mutual respect.  FSM v. Mudong, 1 FSM Intrm. 135 (Pon. 1982).

     These considerations do not suggest that governmental officials and the legal system should hesitate to apply the law including criminal prosecutions to holders of traditional titles.  They do confirm the obligation to conduct proceedings

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involving traditional leaders with scrupulous care and sufficient sensitivity to avoid diminishing unnecessarily the stature of any traditional title.

     Thus a Nahniken, just as any ordinary citizen, is entitled to bail and due process.  The Nanmwarki has offered to accept responsibility for custody and supervision of the Nahniken while the parties await a court hearing. This Court accepts that offer.

     While this Court concludes that the Constitution mandates the petitioner's release pending further hearings, release must be conditioned upon terms which will assure there is no future contempt of court and which will avoid intruding unnecessarily in the actions of the Trust Territory High Court. Therefore, it will be ordered that neither the petitioner nor any of his agents, family, or persons under his direction or control shall have any kind of contact or communication, directly or indirectly, with Judge Mikel Diana.  Further, petitioner shall not enter the Nett Municipal building where Judge Diana's court is located nor shallhe enter Judge Diana's home, nor his land.

     Finally, it will be required that the petitioner remain on the Island of Ponape and that he present himself before the Trust Territory High Court at the next hearing set by the High Court for any proceedings in which he is named.  This order will expire immediately and automatically upon the beginning of any such further hearing or proceedings of the Trust Territory High Court.

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     The Court's order  today should not be seen as cause for celebration by any who hope that unlawful acts may go unpunished.  The Court is action is motivated by respect for the law.  That same motivation demands firm and unswerving application of the criminal law to all.

     Those who violate our criminal law or seek to disrupt  our legal system must be punished, but punishment may not be carried out until guilt is proven in a fair hearing and those accused are given an opportunity to protect themselves.

     It is my understanding that the Trust Territory High Court has set February 18 as the date for further proceedings in this case.  Nothing said here should be seen as prejudicingor reflecting on the power of the High Court to conduct that hearing or such further proceedings in the contempt and various misdemeanor charges as the High Court may consider appropriate.

     In the meantime, however, upon payment of the $1,500  bail requirement imposed by the High Court in the misdemeanor cases, and until the High Court hearing set for 3 P.M. on Friday, February 18, the petitioner shall be released 2:00 P.M. today on his own recognizance, into the custody and under the supervision of the Nanmwarki of Nett.

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     So ordered on the 16th day of February, 1983.

 /s/ Edward C. King
Chief Justice
Supreme Court of the Federated
States of Micronesia

     Entered this 18th day of  February, 1983.

/s/ Emiliana J. Kihleng
Acting Clerk of Court


1. This Latin phrase can be translated into English as "now for then."

2. Except for this Court's February 13 opinion in these same habeas corpus proceedings, there are no previous cases decided under the Constitution of the Federated States of Micronesia discussing "due process" in contempt proceeding's within the meaning of Article IV, 3 of the Constitution. It is therefore appropriate to review decisions of United States courts, especially those in effect when the Constitution here was approved in the Micronesian Constitutional Convention and the ratifying plebiscite, to determine the content of the words "due process" in the Declaration of Rights of the Constitution of the Federated States of Micronesia.   FSM v. Alaphonso, 1 FSM Intrm. 209 , 214-17 (App. 1982).

3. Even where summary punishment for contempt is imposed during trial, "the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution."  Taylor v. Hayes, 418 U.S. at 498, 94 S. Ct. at 2703, 41 L. Ed. 2d at 907 (quoting Groppi v. Leslie, 404 U.S. 496, 504, 92 S. Ct. 582, 587, 30 L. Ed. 2d 632, 639 (1972)).  If no citation is entered when the offense is committed, a summary contempt conviction may not later be rendered by a judge who has become "personally embroiled with the petitioner."  Offutt v. United States, 348 U.S. 11, 17, 75 S. Ct. 11, 15, 99 L. Ed. 11, 18 (1954); Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767 (1925).

     It appears also that the generally accepted procedure is to grant bail pending appeal even where there has been a summary contempt conviction.  See, e.g., Johnson v. Mississippi, 403 U.S. 212, 91 S. Ct. 1778, 29 L. Ed. 2d 423 (1971) (trial judge required $2,000 bail pending appeal).  Pennsylvania v. Local Union 542, 552 F.2d 498 (3d Cir. 1977) (petitioner released on his own recognizance).

4. Trust Territory High Court Criminal Rule 23(a), under which petitioner was apparently held in contempt in Judge Diana's order of February 13, is drawn from, and nearly identical with, Federal Rule 42(a).  See also In re Gustafson, 619 F.2d 1354, 1356 (9th Cir. 1980); Fernos-Lopez v. United States District Court, 599 F.2d 1087, 1092 (1st Cir. 1979).

5. Justices Holmes and Black each were dissenting from decisions which subsequently have fallen into disrepute. Their dissenting views have now become prevailing law.  See Pennsylvania v. Local Union 542, 552 F.2d 498 (3d Cir. 1977); Jessup v. Clark, 490 F.2d 1068, 1071 (3d Cir. 1973).

6. The facts set out in this Court's February 13 opinion suggest the strong likelihood that the petitioner had long been aware of the nature of the contempt charges which Judge Diana sought to level against him and the facts upon which those charges were to be based.  Further, it stretches credulity to believe that when petitioner and his counselheard that the Trust Territory Chief Justice was convening a hearing on the case on Sunday afternoon, they were less than certain that a purpose of the hearing was to proceed with the contempt charges.

7. Trusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, 61 Stat. 3301, T.I.A.S. No. 1665, FSM Code at 895.

8. This problem has been eased somewhat by the adoption by both the High Court and this Court of Joint Order No. 1, a rule designed to assure that this Court will be permitted to exercise its constitutional mandate and determine the scope of its own jurisdiction.  The problem might be alleviated further were the High Court to adopt a procedure of certifying questions requiring "interpretation of the Constitution, national law, or a treaty" to the appellate division of the Supreme Court.  See FSM Const. art. XI, 8.