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[11 FSM Intrm. 275]

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      On July 8, 2002, Petitioner Joseph Paul was arrested in Foup Village, Tolensom Municipality,

after witnesses identified him as the person who had shot Keferny Luck with a metal dart from a weapon known as a "Philippine Slingshot," striking Keferny Luck in the left chest and killing him almost instantly.

     Five days earlier, on July 3, 2002, the Governor of Chuuk State had issued a Declaration of Emergency, addressing the need to create emergency response and recovery efforts in the wake of Tropical Storm Chata’an.

      Petitioner was detained at the jail in Weno from July 8, 2002, without being charged, until the hearing on his Application for Writ of Habeas Corpus was heard on September 16, 2002. At no time prior to the hearing on his petition was he brought before any court or judicial officer for an initial appearance, as is required by Chuuk Criminal Rule 5(a). Petitioner’s affidavit in support of his application states that he met with his counselor, Michael Marco on September 9, 2002, creating the implication at least that he had not been provided access to legal counsel for the first 63 days following his arrest and detention.

     On September 11, 2002, petitioner made application for a writ of habeas corpus, seeking his release from confinement. On good cause shown, the court issued its Order to Show Cause for Writ, directed to the Director of the Department of Public Safety, requiring the Director or his attorney to appear at 9:00 AM on September 16, 2002 to show cause why a writ of habeas corpus should not issue.

      At the appointed hour, a hearing was held on petitioner’s application. Petitioner appeared with his counsel of record, Michael Marco of the Office of the FSM Public Defender. The Director of Public Safety appeared by and through his counselor of record, Danny Rescue, Jr., Assistant Prosecutor from the Office of the Chuuk State Attorney General. No charges had been filed against the petitioner at any time prior to the hearing.

     At the hearing, the Assistant Prosecutor represented to the court that the reason petitioner had been detained without initial appearance or the filing of an information was due to the Declaration of Emergency issued by the Governor of Chuuk State on July 3, 2002. According to the Assistant Prosecutor, the Attorney General had opined that the Declaration of Emergency superseded any obligation to charge the petitioner, or to bring him before a Justice of the Chuuk State Supreme Court for an initial appearance. The Assistant Prosecutor provided no explanation for why the petitioner had been held without charges or appearance before a judicial officer for more than six weeks following the expiration of the Declaration of Emergency.

     Since no criminal information had yet been filed against the petitioner, the Assistant Prosecutor requested a continuance on the hearing for a writ of habeas corpus so that the Attorney General could file a criminal information against the petitioner. The hearing was continued until 2:00 PM. At approximately 1:30 PM a criminal information was filed in CSSC-CR-NO. 106-2002, alleging the crime of murder by the petitioner. The continued hearing on the application for writ of habeas corpus was combined with the initial appearance of the defendant on the crime charged in the information. The application for a writ of habeas corpus was granted, and the petitioner was ordered released upon the posting of a bail bond in the sum of $10,000.00 in the criminal case.

     In granting the application for writ of habeas corpus, the court determined that the Declaration of Emergency issued by the Governor on July 3, 2002 had no impact on the requirement of the Attorney General to bring the petitioner before the court at the earliest opportunity for an initial appearance on the charges which resulted in his arrest. In order to clarify the relationship between the constitutional due process rights of criminal defendants, and the effect on those rights of a

constitutional declaration of emergency, the court issues this memorandum of decision setting forth its reasons for the granting of the writ of habeas corpus.

A. The constitutional provisions.

     Among the fundamental rights of citizens of Chuuk State set forth in Article III of the Chuuk State Constitution is the right of due process of law. Article III, § 2 provides, in pertinent part, "No person may be deprived of life, liberty, or property without due process of law . . . ."

     In order to ensure a citizen’s right to life and liberty, Article III, § 7 also provides for the writ of habeas corpus:

(emphasis added). It is clear that only under certain limited and severely proscribed circumstances may the Governor may suspend the writ of habeas corpus, thereby affecting the rights of detainees to petition the court for their release from unlawful detention.

     Article VI, § 12 sets forth the circumstances under which the Governor of Chuuk State can issue a declaration of emergency, and what effect such a declaration has on the rights of citizens. Section 12 provides:

(emphasis added).

      The question presented, then, is whether the due process rights of criminal defendants are automatically suspended by a declaration of emergency, and if not, under what circumstances a declaration of emergency can result in a suspension of those due process rights.

B. Rules of constitutional interpretation.

      The court is guided in this examination by certain rules governing the interpretation of constitutions. The first is that: "Analysis of the constitution must start with the words of the constitutional provision. If these words are clear and permit only one possible result, the court should go no further." FSM v. Tipen, 1 FSM Intrm. 79, 82 (Pon. 1982).

The second essential rule of constitutional interpretation comes into play when the differing provisions of the same constitution must be interpreted: "[A]ny part of a constitution should be interpreted and considered against the background of other provisions of the same constitution. Cf. Innocenti v. Wainit, 2 FSM Intrm. 173, 181 (App. 1986). An effort should be made to reconcile all provisions so that none is deprived of meaning." Tammow v. FSM, 2 FSM Intrm. 53, 57 (App. 1985).

     In other words, if the wording of the constitutional provisions is unambiguous, the words should control. And where more than one constitutional provision has an effect on the question being decided, the varying provisions must be interpreted in a manner which gives effect to each provision, so that no provision of the constitution is rendered meaningless.

C. Due process rights of criminal defendants.

      It is fundamental that no person may be deprived of liberty without due process of law. Chk. Const. art. III, § 2. Due process of law, in the case of citizens accused of a crime, includes the right to be promptly brought before a Justice of the Chuuk State Supreme Court, or other judicial officer, and to be informed of the charges being brought against him.

      CSSC Criminal Rule 5(a), and 12 TTC §§ 67 and 68, are intended to ensure due process to those charged with criminal offenses. Rule 5(a) provides:

(emphasis added).

     12 TTC 67, entitled "Disposition of arrested persons by policeman" provides in part: "Persons arrested by a policeman . . . shall be brought without unnecessary delay before a court competent to try the offender for the criminal offense charged." (emphasis added).

    12 TTC 68, entitled "Rights of persons arrested" provides in pertinent part: "In any case of arrest . . . it shall be unlawful . . . (c) to fail either to release or charge such arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed twenty-four hours. (emphasis added).

     Clearly, one of the fundamental due process rights afforded to criminal defendants is the right to be brought "without unnecessary delay" before a judicial officer, and that the period of confinement prior to initial appearance cannot exceed, except in extraordinary cases, twenty-four hours. Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994).

     It is abundantly clear that Respondent failed completely to comply with the requirements of Rule 5(a) and 12 TTC §§ 67 and 68. Petitioner was held by the Respondent for not less than sixty-five (65) days prior to the filing of his Application for Writ of Habeas Corpus, and continued to be held over the next five days until the hearing on his application. No criminal information was filed, setting forth the

charges against the Petitioner, until the hearing on Petitioner’s application, seventy (70) days after his arrest.

     Such apparently wilful non-compliance with Petitioner’s rights can only be excused if the Respondent is correct that the Declaration of Emergency suspended Petitioner’s civil rights. A review of the constitutional provisions, and of the Declaration of Emergency itself, clearly indicate that no suspension of Petitioner’s civil rights occurred, and that his detention without charges was in violation of his rights.

D. Suspension of Civil Rights by Declaration of Emergency.

      Article VI, § 12(b) of the Chuuk State Constitution clearly provides that the civil rights of citizens may be impaired by a Declaration of Emergency. It is equally clear that impairment of civil rights may only occur "to the extent actually required for the preservation of peace, health or safety." The Declaration of Emergency issued by the Governor on July 3, 2002, made no reference to the suspension of civil rights, or of the need to do so to preserve "peace, health or safety." The Declaration was solely addressed to the aftermath of Tropical Storm Chata’an, and was made, according to its terms, to facilitate the creation and implementation of emergency response and recovery efforts.

      Article III, § 7 of the Chuuk State Constitution is illustrative. The writ of habeas corpus, like the civil rights of citizens, may under certain circumstances be suspended by the Governor. However, suspension of the writ of habeas corpus may only occur when "the public safety requires it in case of war, rebellion, insurrection or invasion." Chk. Const. art. III, § 7.

     It is possible to imagine circumstances short of "war, rebellion, insurrection or invasion" where suspension of the civil rights of the citizens of Chuuk State might be warranted (e.g. an epidemic requiring quarantine of large segments of the population). However, the court holds that such a suspension must require a clear and unambiguous statement of the Governor, in the Declaration of Emergency itself, to that effect. Absent such a clear and unambiguous statement, no suspension of civil rights could occur. Even if such a clear and unambiguous statement were made, the continued right of citizens to petition for a writ of habeas corpus, except in cases of war, rebellion, insurrection or invasion, would provide citizens with a remedy to any improper suspension of civil rights by Declaration of Emergency.

E. Prevention of future unlawful detention.

     The Chuuk State Supreme Court Rules of Criminal Procedure, and the aforementioned provisions of the Trust Territory Code still viable in Chuuk State, are intended to prevent the unjust detention of citizens of Chuuk State. Had the Attorney General, and the Director of Public Safety, complied with these rules and statutes, the Petitioner would not have suffered the loss of his liberty for more than two months in violation of his rights to due process of law guaranteed by the constitution.

     Another Rule of Criminal Procedure is also intended to prevent the circumstances presented in this case. CSSC Criminal Rule 46(g) provides:

     Had the Attorney General required the Director of Public Safety to provide the reports required by this rule, it is possible (although not necessarily certain) that the Attorney General, or the court, would have noticed the fact that the Petitioner had been held without charges for more than two weeks, and this problem might have been rectified in early August, 2002, rather than in the middle of September. The Attorney General is directed to take whatever steps are necessary to ensure prompt compliance with Rule 46(g), and to report to the court within thirty (30) days of the date of this memorandum of decision on his progress in ensuring future compliance with this rule.

III. Conclusion

     The right of a person arrested for the commission of a crime to due process of law, including the right to be promptly brought before a Justice of the Chuuk State Supreme Court or other judicial officer for initial appearance within 24 hours of his arrest, is a fundamental right afforded to all citizens of Chuuk State. Only under the most extraordinary circumstances, and then only with a specific, clear, and unambiguous statement, may the Governor by Declaration of Emergency, suspend this due process right or other civil rights of the citizens of Chuuk State.

     The Declaration of Emergency issued by the Governor on July 3, 2002 did not suspend the rights of the Petitioner to due process of law, and his detention without charge and without initial appearance was unlawful and in violation of his right of due process. The writ of habeas corpus was due to be, and was issued by this court. In the future, the Attorney General is expected to ensure that the Director of Public Safety is aware of his duty to protect the civil rights of those citizens in his custody, and especially of his duty under CSSC Criminal Rule 46(g) to provide bi-weekly reports of those persons in his custody or under his control to the Attorney General, for transmittal to the Chief Justice of the Chuuk State Supreme Court.

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