POHNPEI SUPREME COURT
APPELLATE DIVISION
Cite as Panuelo v. State Of Pohnpei ,
3 FSM Intrm. 76 (Pon. S. Ct. App. 1987).

[3 FSM Intrm. 76]

YASUO PANUELO and BRIGIDA PANUELO,
Plaintiffs,
v.

STATE OF POHNPEI,
Defendants.

CIVIL ACTION NO. 9-86

DETERMINATION OF CONSTITUTIONAL
  ISSUES SUBMITTED BY THE FSM
SUPREME COURT TRIAL DIVISION TO
THE APPELLATE DIVISION OF THE
     POHNPEI SUPREME COURT

Pohnpei Supreme Court
Appellate Division
Decided April 23, 1987

Before:
     Edwel H. Santos, Chief Justice; Carl Kohler, Associate Justice; Yoster Carl, Associate Justice; and Judah Johnny, Associate Justice.

APPEARANCES:
          For the Plaintiffs:          R. Barrie Michelsen, Esq.
                                                 Ramp & Michelsen
                                                 P.O. Box 1480
                                                 Kolonia, Pohnpei 96941

          For the Defendants:     Thomas M. Tarpley, Esq.
                                                 State Attorney
                                                 Pohnpei State Government
                                                 Kolonia, Pohnpei 96941

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HEADNOTES
Constitutional Law - Interpretation
     Whether article 7 of the Pohnpei Constitution is self-executing, creating substantive rights that individuals can seek to enforce in a court of law, will depend upon the intent of the framers, as disclosed within the four corners of the Constitution when the words are given their ordinary meaning, as well as upon the nature of the acts and the goals they are to accomplish. Panuelo v. Pohnpei, 3 FSM Intrm. 76, 80-81 (Pon. S. Ct. App. 1987).

Constitutional law - Interpretation
     The words of the Pohnpei Constitution are words in common use and are to be understood according to their ordinary meaning. Panuelo v. Pohnpei, 3 FSM Intrm. 76, 81 (Pon. S. Ct. App. 1987).

Constitutional Law - Interpretation
     The government has the power to undertake projects in the areas set forth in article 7 of the Pohnpei Constitution, but the provisions of article 7 are merely directory rather than mandatory.  Panuelo v. Pohnpei, 3 FSM Intrm. 76, 81-82 (Pon. S. Ct. App. 1987).

Constitutional law - Interpretation
     Article 4 of the Pohnpei Constitution confers fundamental rights and is mandatory and enforceable by the courts; in contrast, article 7 does not vest individuals with legal rights that they can assert in the courts.  The framers of the Constitution structured these two articles in different ways because they intended them to achieve different goals. Panuelo v. Pohnpei, 3 FSM Intrm. 76, 81-82 (Pon. S. Ct. App. 1987).

Constitutional law
     A constitutional provision is self-executing when no legislation is required to bring it into effect.  Panuelo v. Pohnpei, 3 FSM Intrm.76, 82 (Pon. S. Ct. App. 1987).

Constitutional law
     The provisions of article 7, section 4 of the Pohnpei Constitution are not self-executing because they provide general principles or policy directives without providing the means to effectuate them.  Panuelo v. Pohnpei, 3 FSM Intrm. 76, 82 (Pon. S. Ct. App. 1987).

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COURT'S OPINION
EDWEL H. SANTOS, Chief Justice:
 
A.     Introductory
     On October 6, 1986, the FSM Supreme Court, Trial Division, by the
 
[3 FSM Intrm. 78]

Honorable Mr. Chief Justice Edward C. King, authorized the parties in this case to submit to the Appellate Division of the Pohnpei Supreme Court the following questions for determination:

     1.     Are the provisions of article 7, section 4 of the Pohnpei Constitution:

          a.     Self-executing, creating substantive rights enforceable by individuals in a court of law?

          b.     General policy directives to the Pohnpei Government which do not vest individuals withlegal rights that they may assert in courts?

     2.     What factors should be considered in determining the constitutionality of a particular decision by government officials to refuse to providefinancial assistance for an operation necessary to give the patient any possibility of avoiding what otherwise would be certain death?

     By the FSM Supreme Court order if this court certifies that option l.b. above correctly characterized these constitutional provisions, there is no need to answer question 2.

     The Constitution of the State of Pohnpei provides that:  "No fewer than three justices shall hear and decide cases in the appellate division."  Pon. Const. art. 10, 5(2).  Accordingly and in view of the importance of the constitutional issues submitted for decision, the 4-member-justices of the Pohnpei Supreme Court empaneled and heard oral arguments of counsel on March 6, 1987, in the Courthouse in Kolonia, the State of Pohnpei, Federated States of Micronesia.

     We see this as a landmark case in the development of the constitutional law of Pohnpei.  We have therefore taken into our utmost consideration the impact that our determination in this case would have on this development and on our own people. We answer question I.b. first since that disposes of the second limb of question l.a.

B.     Facts of the Case
     The facts of the case occasioning the interpretation and construction of article 7, section 4 of the Pohnpei Constitution are in a nutshell as  follows.  On August 8, 1984, Elizabeth Panuelo, an infant child, was admitted to the Pohnpei State Hospital with complaints of easy bruising and decreased energy and appetite.  Local diagnostic testing supported the initial diagnosis of leukemia.  She was later sent to Tripler Army Medical Center in Honolulu, Hawaii, where it was discovered that she was suffering from severe aplastic anemia, a condition which without treatment would lead to her death.  The defendant State by its officials decided against funding a bone marrow
 
[3 FSM Intrm. 79]

transplant which would probably have saved Elizabeth's life.  Elizabeth died. Plaintiffs have, consequently, filed a suit in the FSM Supreme Court against the Government of Pohnpei and the Federated States of Micronesia for money damages for the alleged wrongful death of their child.  It is the Plaintiffs' position that Pohnpei State, by that decision, violated article 7, section 4(1) of the Pohnpei Constitution which provides as follows:

     Section 4.  Health Services

(1)     The Government of Pohnpei shall provide health     care services for the public.

     Defendant Pohnpei State has denied these allegations.

C.     Legal Analysis and Opinion
     As this particular constitutional certification raises questions    never presented to this Court before and the questions raised are of potentially great social and budgetary concern to the people and the government in this state, we deem it necessary to set forth in full the provisions of article 7 of the Pohnpei Constitution:

ARTICLE 7
RESPONSIBILITIES OF THE GOVERNMENT OF POHNPEI

Section 1.  Resources and Environment.  The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the conservation of natural resources and the protection of the environment.

Section 2.  Development.  The Government of Pohnpei shall promote economic development and shall establish and faithfully execute a development plan for Pohnpei.

Section 3.  Education.

(1)     The Government of Pohnpei shall provide educational services for the public.  Compulsory education through a grade to be set by statute shall be enforced by law.  Public education of citizens of Pohnpei through a grade as prescribed by statute shall be free of fees.  Any fees imposed for public education shall be limited to the  ability to pay.

(2) The Government of Pohnpei shall provide for the regulation of educational services.  All public and private educational institutions shall comply with minimum standards of educational achievement which shall be established by the Government of Pohnpei.

[3 FSM Intrm. 80]

(3)   The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the continual improvement of educational standards and services.

(4)   The Government of Pohnpei shall establish and  maintain a library, museum, and archives.

          Section 4.  Health Services

(1)   The Government of Pohnpei shall provide health care services for the public.

(2)   The Government of Pohnpei shall establish and faithfully execute comprehensive plans for the continual improvement in health care services.

(3)   The Government of Pohnpei shall provide for the regulation of health care services.

Section 5.  History and Culture.  The Government of   Pohnpei shall establish and faithfully execute comprehensive plans for the identification, preservation, and administration, for the benefit of the public, of places, artifacts, and information of historical and cultural importance.

          Section 6.  Public Safety.

(1)   The Government of Pohnpei shall establish and faithfully execute comprehensive plans for continual  improvement in the protection of the safety and security of persons and property.

(2)   There shall be a Pohnpei Government agency responsible for maintaining peace and order in times of crisis and natural disaster.

Section 7.  Delegation of Administration.  The Government of Pohnpei may delegate to the local government the authority to administer services described in this Article, provided that the Government of Pohnpei retains responsibility for policy and proper administration.

Section 8.  Skill Development.  The Pohnpei Government  shall have the responsibility to promote the development and evaluation of the skills of workers, as provided by law.

     The fulfillment of the government's responsibilities enumerated in article 7 is of the most vital and controlling interest to the Government of Pohnpei, to individuals and to the public at large in Pohnpei.  But the question as to whether these provisions are self-executing, creating

[3 FSM Intrm. 81]

[3 FSM Intrm. 80]

substantive rights capable of enforcement by individuals in a court of law will depend upon the intent of the framers as disclosed in the four corners of the Constitution itself giving the words their ordinary meaning, and by a consideration of the nature of the acts to be done and the general object to be accomplished.  This appears to us to be a commonsense and rational approach to the problem and is in conformity with general rules of construction.  But this, of course, is not to ignore any relevant extrinsic aids.

     We are aware that we may resort to these where the internal aids are not helpful.  We are also conscious of the fact that this jurisdiction lacks statute and case law precedent in this case but that we are at liberty to adopt as persuasive precedents from other sources where they are consistent with our concept of justice.

     As the starting point, we think the words of the Constitution are words in common use and are to be taken in their natural and ordinary meaning.  In so doing, we find that it is the intent of the framers of the Pohnpei Constitution that the Pohnpei Government as the custodian of the welfare of the people shall be empowered and charged to undertake certain specific responsibilities for the educational, cultural and health needs of the people as a whole having regard to the financial constraints of the Government.  Since the financial resources of governments all over the world are limited there is no need to say that there is a limit to which a government can provide amenities and services to the people.  To think otherwise makes no sense to us.  Howbeit the government has power to do the things specified in article 7. These provisions are directory.  We are persuaded by the view expressed in Scopes v. State of Tennessee, 154 Tenn. 105, 289 S.W. 363, 53 A.L.R. 821 (1927), that a constitutional provision that "it shall be the duty of the general assembly to cherish science" is merely directory and cannot be enforced by the courts.

     We may also observe that article 7 of the Pohnpei Constitution merely requires that certain things be done by the Pohnpei government, without prescribing the result that shall follow if those things are not done.  Any such statute is directory in character.  State ex inf. Mitchell ex rel. Goodman v. Heath, 345 Mo. 226, 132 S.W.2d 1001, 1003 (1939).

     One other feature makes article 7 directory.  It contains mere matters of direction and is not followed by words of positive prohibition.  Gomez v. Timon, 128 S.W. 656 (Tex. 1910).

     Yet another consideration that fortifies us in our view that article 7 of the Pohnpei Constitution is merely directory is the fact that article 4 deals with fundamental rights, and is prohibitive in terms whereas article 7 provisions are not.  Needless for us to say that legally prohibited acts attract some form of legal sanction and are accordingly mandatory and enforceable by the court but not so with directory acts. State v. Haun, 59 P. 340 (Kan. 1899).  Thus the contrasting formats of these two articles of the Pohnpei Constitution lead us to the view that the framers of the Constitution intended to achieve two different objects - by article 4 to confer legally

[3 FSM Intrm. 82]

enforceable rights on individuals; and by article 7 not to confer such enforceable rights.  It takes a rather strange jurisprudence to think that the effect of the two articles in the Constitution is the same.

     For the reasons stated, in our opinion, the provisions of article 7 of the Pohnpei Constitution are general policy directives to the Government of Pohnpei, which do not vest individuals with legal rights that they may assert in the courts.

     We now answer the first limb of question 1 which seeks to find out whether the provisions of article 7, section 4 are self-executing.  We consider this is a mere academic exercise since we do not see its necessity in view of our answer to question 1.b.  A constitutional provision is self-executing where no legislation is necessary to bring it into effect and where there is nothing to be done by the legislature to put it into operation unless a contrary intent is clearly shown.  Rice v. Howard, 69 P. 77 (Cal. 1902).  In our opinion, the provisions of article 7 of the Pohnpei Constitution in general and of article 7, section 4, in particular of the said Constitution lay down general principles or a line of policy directives without supplying the means by which such principles or policy are to be effectuated.  As concerns article 7, section 4 which is at issue, for example, if  the Government is to regulate the health care services, this would entail the enactment by the Legislature of the necessary legislation.  We therefore hold that the provisions of article 7, section 4 of the Pohnpei Constitution are not self-executing.

D.     Summary of Conclusions
     1.  The provisions of article 7 of the Pohnpei Constitution are general policy directives to the Government of Pohnpei.  These provisions do not vest individuals with legal rights that they may assert in the courts.

     2.  The provisions of article 7, section 4 of the Pohnpei Constitution are not self-executing.

     It is so ordered this 23rd day of April, 1987.

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