POHNPEI SUPREME COURT
APPELLATE DIVISION
Cite as Pohnpei v. Hawk,
3 FSM Intrm. 543 (Pon. S. Ct. App. 1988)

[3 FSM Intrm. 543]

STATE OF POHNPEI
Plaintiff-Appellee,
 
v.

GEORGE HAWK,
Defendant-Appellant.

APPEAL NO. 10-86

OPINION
 
Argued: October 28, 1988
Decided: December 16, 1988


[3 FSM Intrm. 544]

Before:
     Hon. Edwel Santos, Chief Justice; Hon. Carl Kohler, Associate Justice;
     Hon. Yoster Carl, Associate Justice

APPEARANCES:
For the State:                   Randy Boyer
                                           State Attorney
                                           Office of the State Attorney
                                           Pohnpei, FSM 96941

For the Defendant:           R. Barrie Michelsen
                                           Attorney at Law
                                           P.O. Box 1480
                                           Pohnpei,  FSM 96941

*       *       *       *

HEADNOTES
Criminal Law and Procedure
Jurisdiction - General
      State courts are not prohibited by article XI, section 6(b) of the FSM Constitution from hearing and determining cases where the defendants are from FSM states other than the prosecuting state.  Jurisdiction over criminal matters between the national and state governments is determined by the severity of the crime; not diversity of citizenship.  Pohnpei v. Hawk, 3 FSM Intrm. 543, 554 (Pon. S. Ct. App. 1988).

Jurisdiction - General
      "Concurrent jurisdiction" as used in article XI, section 6(b) of the FSM Constitution means concurrent jurisdiction between national courts, including the trial divisions of the FSM Supreme Court and of the four state courts.  Pohnpei v. Hawk, 3 FSM Intrm. 543, 554-55 (Pon. S. Ct. App. 1988).

*    *    *    *

COURT'S OPINION
EDWEL H. SANTOS, Chief Justice:

PROCEDURAL HISTORY
      While the issue considered on this appeal is different from those raised in the appellant's notice of appeal as the latter were abandoned, we feel it is of great importance that we set out the procedural history of the case in its entirety so that the whole matter can be considered with clarity.

[3 FSM Intrm. 545]

      Appellant was convicted on June 18, 1986, in the Trial Division of the Pohnpei Supreme Court, of the offense of statutory rape in violation of Pohnpei Criminal Statute, Chapter 8, Section 8-5 of S.L. No. 1L-3-85, and was sentenced to a term of imprisonment of 12 months, three months of which shall include incarceration at the Pohnpei State Jail.  However, in the alternative,  if the appellant paid a fine of $300.00 to the Court within 15 days (or 15 days prior to the date set for the appellant to be incarcerated), he would not be incarcerated at all for the three months but would be placed on probation for his entire 12 month sentence.  The trial court thus granted a grace period until August 22, 1986, to enable the appellant to secure the $300.00.

      The appellant did not pay the fine as ordered by the Court as the alternative sentence.  Therefore, an Order of commitment to jail was issued against him on August 22, 1986.  On the same day, however, he filed a motion for reduction of sentence to extend time for him to pay the fine.  Seven grounds in support of his motion were assigned and styled as follows:

1.  Defendant is a resident of Pohnpei.
2.  He is married with two kids.
3.  He was sentenced in this Court on August 7, 1986 andin addition to nine months suspended he is to pay a fineof $300.00 within 15 days (due on 22nd of August 1986).
4.  Defendant is to spend three (3) months in jail ifthis $300.00 is not paid within the 15 days.
5.  Defendant does not have this whole $300.00 amount nowdespite substantial efforts on his part.
6.  Defendant has $150.00 now.
7.  Defendant needs one more week to find the other$150.00 to have $300.00.

      Five days later, on August 27, 1988, the Appellant amended his motion for reduction of sentence and styled said amended motion as follows:

Comes now, George Hawk, defendant in this cause, andthrough his counsel, Ignacio R. Soumwei, requires thisHonorable Court to reduce his sentence by
 
1.  Accepting the $150.00 which defendant has;
2.  Reducing the 3 months jail term to 1 1/2 months;
3.  Granting George Hawk work release during this 1 1/2months, from 6 a.m. to 6 p.m., Monday till Friday; or anyother terms this Honorable Court finds proper.  Insupport of this humble request, defendant informs thisHonorable Court of the following:
       a.  George Hawk is from Truk;
       b.  He is married to a Pohnpeian and they have two  children;
       c.  Defendant does not own any land in Pohnpei;
       d.  Defendant works for Bismarck Weilbacher;

[3 FSM Intrm. 546]

 e.  Defendant supports his family from his income;
 f.  Defendant has no other means for supporting hisfamily;
 g.  George Hawk is willing to abide by the conditions imposed by this
      Honorable Court.

      It is important to note that since the arraignment date, May 30, 1986, the appellant made no indication on the record that he is from Truk until he filed his amended motion on August 27, 1986, stating as a ground that "George Hawk is from Truk."

      The trial judge nevertheless, denied the motion on October 17, 1986.  The appellant, then, on October 20, 1986, lodged his Notice of Appeal with the following grounds:

      1.  Burden of proof was misplaced.
      2.  There was insufficient evidence to support statutory rape.

      On the same day, appellant filed an application for release from jail and to stay execution of sentence pending disposition of the appeal.  The Trial Judge granted the motion on October 20, 1986.

      In a subsequent criminal action, Pohnpei State v. George Hawk, P. Cr. C No. 430-86, (involving the offense of criminal libel in violation of Pohnpei Criminal Code Section 5-1), the Office of the Public Defender was one of the several victims of the offense committed by the appellant in that criminal action.  For that reason, the Public Defender on December 30, 1986 filed its motion for leave to withdraw as counsel for the appellant.  On May 4,1987, the Trial Judge granted the motion, and on September 18, 1987, the Court appointed Mr. R. Barrie Michelsen to represent the appellant on the appeal, and ordered that all costs of such representation be borne by the Office of the Public Defender (in accordance with the prevailing practice when the Public Defender finds itself in conflict to represent a criminal defendant).

      Through this new counsel, the appellant then filed his opening brief on November 25, 1987, along with a motion requesting the Appellate Division of Pohnpei Supreme Court to certify the following question to the Appellate Division of the Supreme Court of the Federated States of Micronesia pursuant to article XI, section 8 of the FSM Constitution.  "Does article XI section 6(b) of the Constitution of the Federated States of Micronesia vest jurisdiction of state criminal prosecutions in the National Supreme Court when the defendant in this prosecution is a citizen of a state other than the prosecuting state?"

      The appellant thus raised as the sole issue the significance of the Diversity Clause of the FSM Constitution to his case, stating that the answer to that question is dispositive of the appeal, and that he consequently abandoned the original grounds stated in his notice of appeal.

      On the appellant's request that this Court certify the question to the

[3 FSM Intrm. 547]

appellate division of the Supreme Court under article XI, section 8, we are of the opinion that certification is not proper because we do not consider the question to be of "substantial" nature; nor that the State Court is without competence to respond to the issue raised by the appellant; and that the procedure and timing within which appellant chose to raise the issue was too obnoxious and is a calculated step for the purpose of delaying the administration of justice and to embarrass Pohnpei State's legal and judicial authorities.  We accordingly deny certification as requested and set the appeal for hearing in regular order.
 
THE APPEAL
      The issue presented and considered on this appeal was: "Does Article XI section 6(b) of the Constitution  of the Federated States of Micronesia vest jurisdiction of state criminal prosecutions in the National Supreme  Court when the defendant in that prosecution is a non-citizen of the prosecuting state?"

      Before proceeding further, we need to satisfy ourselves as to whether State Courts of the four States of our Federated States of Micronesia have jurisdictional authority to decide questions arising under our Constitution of the Federated States of Micronesia, national laws or treaties as such questions arise in cases heard by state courts.  This question was posed to both counsel at the time of oral argument and both counsel responded in the affirmative, with qualification that decisions of state courts on such issues are however subject to review by the Appellate Division of the Supreme Court of the Federated States of Micronesia on appeal.

      The Appellate Division of the Supreme Court may review cases heard in the national courts, and cases heard in state or local courts if they require interpretation of this Constitution, national law, or a treaty.  If a state constitution permits, the appellate division of the Supreme Court may review other cases on appeal from the highest state court in which a decision may be had.  FSM Const. art. XI, 7.

      Section 7 of article XI of our FSM Constitution confers jurisdiction to state courts, along with national courts, to hear and determine cases if they require interpretation of our FSM Constitution, national law, or treaties, but the state  and national courts' interpretation of such matters are subject to review by the Appellate Division of the Supreme Court of the nation.  On the basis of the above consideration, we hold that the Pohnpei Supreme Court (the only state court of the State of Pohnpei), like other state courts in our nation, has jurisdiction to decide issues arising under our FSM Constitution, national law, or treaties.

      We consider the State Court equipped with adequate resources: three Pohnpeian justices sitting on the appeal; appellant's counsel being an attorney; and the State also being represented by another attorney.  After

[3 FSM Intrm. 548]

all, our state court justices like all other states' elected and appointed officials in the nation, took the oath of office to uphold the constitutions of their respective states and of the nation.  We also are mindful of the constitutional supremacy clause providing that "An act of the Government in conflict with this Constitution is invalid to the extent of conflict."  The procedure provided in our national constitution to straighten out an act of government found to be in conflict with our national constitution is through the appellate review process provided under article XI, section 7.  This process of review ensures the unity of interpretation throughout our island nation, promotes understanding and unity under our supreme constitution, and above all, it blots out the unjustified fear expressed by Palauan delegate Johnson Toribiong that "if you allow them (the state court and local courts) to handle those cases we will have a mess on our hands." I J. of Micro. Con. Con. 492.  If the Appellate Division of the Supreme Court can "review cases heard in ... state or local courts" where the interpretation of our national Constitution, national law, or treaties is required, FSM Const. art. XI, 7, then it follows that state courts have concurrent original jurisdiction with the national courts (which are non-existent to date, with the exception of the Trial Division of the National Supreme Court), and the Trial Division of the Supreme Court in cases arising under our FSM Constitution; national law or treaties; and in disputes between a state and a citizen of another state, between citizens of different states, and between a state or a citizen thereof, and a foreign state, citizen, or subject.  FSM Const. art. XI, 6(b).  Hence we proceed to consider the issue raised on this appeal, along with the other attendant sub-issues as appearing in the order below.

      The gist of the appellant's argument in support of the issue advanced in this appeal was that article XI, section 6(b) of our FSM Constitution vests "exclusive jurisdiction" in the national courts and the Trial Division of the Supreme Court over "all disputes where there exist diversity in the citizenship of the parties," that the phrase "all disputes" includes both civil and criminal cases.  This is to say that in all cases, civil or criminal, filed in a state court where the defendant or one of the parties is not a citizen of that State, the State Court of that particular state has no jurisdiction over that case.

      The appellant made a comparative argument relating to the term "dispute" as used in the Constitution of the Federated States of Micronesia.  The national courts, including the Trial Division of the Supreme Court, have concurrent original jurisdiction in disputes between a state and a citizen of another state, FSM Const. art. XI, 6(b), and "cases" or "controversies" as used in the Constitution of the United States (the judicial power of United States shall extend to controversies between citizens of different states, etc.), U.S. Const. art. III, 2. Thus, the appellant concluded that the use of the term "dispute" in the FSM Constitution must not be limited to civil cases, but includes all litigations, civil and criminal.  In addition, the appellant argues that to interpret the term "dispute" as used in the FSM

[3 FSM Intrm. 549]

Constitution to include criminal cases would further the purpose of the diversity clause.

      The appellant then put forth a comparative definition of the terms "dispute," and "controversy' as follows: "Dispute" means "the subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined."  H. Black, Black's Law Dictionary (4th ed. 1968).

      Regarding "case" and "controversy," "the two terms can be used interchangeably, for, we are authoritatively told, a "controversy" if distinguishable at all from a "case," is distinguishable only in that it is a less comprehensive term, and includes only suits of civil nature.  C. Wright, The Law of Federal Courts 34 (2d ed. 1972).  The appellant then urged us to follow his conclusion that "therefore the framers of the FSM Constitution chose not to use the 'less comprehensive term' referring only to civil suits, but rather used the general catch-all term, disputes."

      The appellant's counsel here was attempting to show us the distinction between "case" and "controversy" as used in the United States Constitution, but then sought to mislead the Court by urging the Court to jump to the conclusion that the use of the catch-all term "dispute" in our FSM Constitution must mean differently from the term "controversy."  We pause to make a caveat here that any attempt by an attorney to mislead the courts of this state in the future will be viewed as suspect, and may be dealt with as contempt of court as the case may be.

      In response, the State argued that "the general rule" in the United States is that "state courts have exclusive jurisdiction of offenses against state law" and that "federal courts have exclusive jurisdiction of offenses against federal law," and that the criminal jurisdiction of the federal courts is only such as is expressly conferred upon them.  They take cognizance of and punish only such crimes and offenses as they are given jurisdiction of by the laws of the Congress.  36 C.J.S. Federal Courts 4(3) (1960).  The State further stated that the FSM Supreme Court has adopted the approach used in the United States as evidenced by FSM v. Hartman, 1 FSM Intrm. 43 (Truk 1981).  In Hartman, Justice Benson held that "the FSM Supreme Court only has jurisdiction over crimes specifically designated as major crimes by Congress," and that the Court did not have ancillary jurisdiction over lesser included larceny (state) charges in burglary cases.

      The use of the terms "disputes" in the FSM Constitution, and "controversies" in the U.S. Constitution, does present some difficulty as to whether the term "dispute" includes civil and criminal cases and whether the term "controversy" includes only cases of a civil nature.  This difficulty is apparent, especially to Micronesians who use the English language as a second language.  We nevertheless sought to cure this difficulty by resorting to external sources (mainly the United States) to determine the meaning of and the distinction between the terms "disputes," "cases," and "controversies," as

[3 FSM Intrm. 550]

used by judges in that country.  Of course we are mindful of the warning we stated in Alterino Rosario v. Peter Lohn, PCA 214-87, to wit:

What effect should be given to foreign decisions interpreting their own Constitution or (statute)   when an issue arises for the first time in a jurisdiction with a new constitution (statute) interpreting a provision in pari materia with that   of some other jurisdiction?  Our answer is:  It will be improper to import into the question of construction doctrines of democratic theory and practice obtained in other countries, unrelated to  the tenor, scheme, and words of the provisions which we have to construe. We must try to understand the contents of the United States Constitution delimited by judicial interpretation and in considering the authorities of the United States courts, we would not therefore be incorporating principles foreign to    our Constitution, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approach to similar problems on   account of historical or other reasons (like discrimination) differs from ours.

      We accordingly find the following definitions and distinctions:

      "Case", in a legal sense, means "suit", but in its ordinary usage it means "event", "happening", "situation", "circumstances".  A "case" arising under the Constitution, the laws of the United States and treaties made under their authority is not merely one where a party comes into court to demand something conferred on him by the constitution, or by law or treaty but consists of the right of one party as well as the other whenever its correct decision depends on the construction of either constitution, or law or treaty of the United States.  Tennessee v. Davis, 100 U.S. 257 (1880).

      "Controversy" has been defined as follows:

"A dispute arising between two or more persons.  Itdiffers from a "case" which include all suits, criminalas well as civil, whereas "controversy" is a civil, not acriminal proceeding."  1 Bouv. Law Dictionary 309.

"Mr. Justice Iredell, in Chisholm v. State of Georgia, 2U.S. 419, 431, 432, L. Ed. 440, distinguished between theword "controversies" and the word "cases" in thisconnection, by confining the former to cases of a civilnature; but this change in language from the word "cases"to the word "controversies" will be found to have beenmere matter of style, and to have no relation to anylimitation or extension of the class of questions to be

[3 FSM Intrm. 551]

adjudicated.  So long as this section of the Constitutionspeaks, especially with reference to the nature of thequestions involved, it uses the word "cases", but when it considers more particularly proceedings having relationto the existence of parties, it uses the word"controversies."  This is probably because when partiesare speaking of a raid against each other, the literarystyle suggested the change.  King v. McLean Asylum of the Massachusetts General Hospital, 64 F. 331, 336.  (Quotedfrom 9A Words and Phrases, pp. 55, 56).
 
      "Dispute" as found in Wharton's definition of the word "lis" means a suit, action, controversy, or dispute; dispute means a conflict or contest.  12A Words and Phrases, Dispute at 522; and Black's Law Dictionary (5th ed.) defines the Latin word "lis" as "a controversy or dispute; a suit or action at law."

      The term "dispute" as employed in Rev. St. S. 639, 28 U.S.C.A. 1441, 1445, 1447, declaring that any suit commenced in any state court wherein the amount in dispute, exclusive of costs, exceed the sum or value of $500, may be removed for trial in the Circuit Court, it is to be construed as exactly synonymous with the term "controversy" in the second section of the third  Article of the Constitution (of the United States), which declares that the judicial power of the United States shall extend to "controversies" between citizens of different states, etc.  In order, therefore, that for a controversy or dispute to exist, there must be a matter of either law or fact asserted on one side and denied on the other.  Thus, if the matter alleged by the plaintiff is admitted by the defendant, there is no controversy and no dispute, and therefore no case for removal.  Keith v. Levi, 1 F. 743, 745.  Id. at 524.

      A "dispute" is a verbal controversy.  Black Coal & Coke Co. v. United Mine Workers of America, 148 S.W.2d 364, 367.  Id. at 524.  See also Webster's New Collegiate Dictionary (1981).

      Our search for definition revealed to us that the term "case" applies to both civil and criminal cases, whereas the terms "dispute" and "controversy" are synonymous in meaning and apply to cases of civil nature.  The choice of the term "dispute" as used in the FSM Constitution rather than "controversy" as used in the U.S. Constitution was merely a matter of literary style.  The two terms "controversy" and "dispute" mean the same thing in relation to their definitions as used in the Constitution of the United States and of the Federated States of Micronesia, respectively.  Having the same definition and without distinction, we do not hesitate to hold that the term "dispute" as used in Article XI, section 6(b) of our Constitution of the Federated States of Micronesia applies only to cases of a civil nature, just as the term "controversy" does in the Constitution of the United States.

      The appellant's second point of argument hinged upon the proposition that "interpreting the FSM Constitution to include criminal cases would

[3 FSM Intrm. 552]

further the purpose of the diversity clause."  In support of that proposition, the appellant cites several authorities from the United States as well as from the Federated States of Micronesia.  The appellant contends that whether "dispute" is civil or criminal in nature, an FSM citizen outside his home state is an "outsider" thus arising an issue of diversity and that "a primary purpose of diversity jurisdiction is to minimize any belief of the parties that a more local tribunal might favor local parties in disputes with outsiders."  In re Nahnsen, 1 FSM Intrm. 97, 102 (Pon. 1982).

      The belief, or rather the fear, as expressed by the Nahnsen court,  though highly presumptuous, is rebuttable and runs afoul of Pohnpeian custom "aramas en pasedo (kohdo) me kesempwal."  Such custom warns a Pohnpeian to treat his visitor with respect and fairness because if he doesn't, the corresponding custom "eluwahk reirei sapwasapw" may work against him; the latter custom simply means "our living on this earth may be long and someday, somehow, you may come across me, or I may come across you, and your chances of revenge against me, or my chances or revenge against you, for whatever you had done to me, or I had done to you in the past may be much greater (to your advantage and to my detriment, or to my advantage and to your detriment).

      No party had the foresight to advise the Trial Division of the FSM Supreme Court of the existence of these important Pohnpeian customs when Nahnsen was decided in 1982.  Consequently, the FSM Supreme Court was without the opportunity to take judicial notice of these particular Pohnpeian customs, which in our opinion, and considering the effects of article V, section 2 of  article XI, section 11 of our Constitution of the Federated States of Micronesia, could have influenced the FSM Supreme Court's determination to introduce to the FSM the "foreign" concept of diversity jurisdiction as developed in the United States. Coupled with the lack of foresight on the part of the parties in Nahnsen, no party ever took the lead to advise the FSM Supreme Court of the potential effect of District Law No. 4L-97-77 et seq., which made a "will purporting to bequeath title to real property to (outsiders) void and of no effect."  Nahnsen's will of 1978 which attempted to devise real property located in Pohnpei to certain Marshallese citizens would be void under the statute and the changed political status of our islands.

      The appellant's argument was also predicated on the assumption that the concurrent jurisdiction in article XI, section 6(b), means concurrent with other national courts and not concurrent with the state courts.  This assumption may have roots from Delegate Toribiong's amendment to CP No. 24 offered which was voted favorably on November 4, 1975, at the Micronesian Constitutional Convention on Saipan, I. J. of Micro Con. Con. 492 et seq., Chief Justice Edward C. King of the Supreme Court of the Federated States of Micronesia, however, in Bank of Guam v. Semes, 3 FSM Intrm. 370, 377 (Pon. 1988) rightfully characterized Delegate Toribiong's statement when he stated:

It does seem likely that delegate Toribiong would  have preferred an absolute prohibition against    state court jurisdiction in the kinds of cases identified in Section 6(b).  He expressed an  intention "to remove state and local courts from

[3 FSM Intrm. 553]

It does seem likely that delegate Toribiong would  have preferred  an absolute prohibition against   state  court jurisdiction in the kinds of cases identified in Section 6(b).  He expressed an  intention "to remove state and local courts from handling cases arising under this Constitution, treaties, and national law because if you allow them to handle those cases, we will have a mess on our hands ...  Yet, he was the only delegate to express such an intention or understanding.  The words of one delegate concerning his own views can not be dispositive of the meaning of the Constitution.

      We find another contrary view against delegate Toribiong's intention to remove cases from state and local courts because of diversity of citizenship in delegate Hiroshi Ismael's statement made on November 7, 1975, 3 days after delegate Toribiong's amendment:

On Joint Committee Amendment No. 10 to Committee Proposal No. 24 in section 6 where it talks about diversity of citizenship -- meaning that the state   as well as the nation court could be trying all   these civil cases -- it seems to me that if we do   not adopt this proposed amendment we will, in   effect, flood our judiciary system with a great deal of these suits.  For this matter, Mr. President, I would like to urge that the Delegates consider this amendment favorably. Thank you.

I J. of Micro. Con. Con. 532.

      It is worthy to note, further, the following from the Convention proceeding on November 4, 1975, when Delegate Toribiong made his amendment to Committee Proposal No. 24, I J. of Micro. Con. Con. 492-493:

      Floor Leader Tman: "Point of Information.  I just wish to ask if this proposed amendment is consistent with the consensus reached between the Structure and Functions Committees as reflected in Joint Committee Amendment No. 10."  (p. 492).

      Delegate Toribiong: "Mr. President, during the recess I consulted with the chairman of Functions Committee and the Chairman on Judicial Structure -- that's Delegate Fritz and they seem to agree that this is the consensus of the two committees."  (p. 493).

      Hence, what we find in consulting the Journal of the Micronesian Constitutional Convention is the inescapable conclusion that the amendment, which Delegate Toribiong of Palau made on November 4, 1975, relating to diversity of citizenship of parties before our courts, agreed with the consensus reached between the Structure and Functions Committees; that the consensus so reached by said Committees was as understood and expressed

[3 FSM Intrm. 554]

unequivocally by Delegate Ismael on November 7, 1975, which was exactly one day before the Micronesian Constitutional Convention Delegates completed their historical task and had adopted the entire Constitution, that "in Section 6 where it talks about diversity of citizenship -- meaning that the states as well as the national courts could be trying all these civil cases. . . ". Given this conclusion as it relates to civil cases, we see no reasonable justification that "diversity" in criminal cases ought to be so differently treated.

      It is interesting to note that Johnson Toribiong was a delegate from Palau District and Palau District did not ratify the Constitution.  Hiroshi Ismael (presently the Vice President of the our Federated States of Micronesia), was a delegate from Ponape District to the Micronesian Constitutional Convention.  Kusaie became a separate district shortly thereafter and both Ponape and Kusaie districts ratified the Constitution.  Would it not be logical and proper that we accept the definition of the Constitutional provisions as our own delegates had defined and understood them to be rather than being bogged down with trying to understand what delegate Toribiong meant when he made his amendment?  We chose to accept the understanding expressed by our own delegates.

      Judging from the views of the Micronesian Constitutional Convention delegates, as above, relating to whether state courts are prohibited from entertaining cases where citizenship of the parties are diverse, and examining the words of the Constitution for their true meaning, and applying the plain meaning rule of construction, we hold that the concurrent original jurisdiction in article XI, section 6(b) means "concurrent with the State Courts."  We can hardly agree with the appellant that article XI, section 6(b) prohibits state courts from entertaining cases arising under the Constitution, laws, or treaties because of diversity in the citizenship of the parties.  Such would be an absurd and obnoxious holding because:

      (1)  The allocation of powers of Government to the national government is premised on (i) expressed delegation, or (ii) the power being of such an indisputably national character as to be beyond the power of a state to control. Powers not expressly delegated to the national government or prohibited to the states are state powers.  FSM Const. art. VII.  There is no language in article XI, section 6(b) to suggest a conclusion that state courts in the FSM are prohibited to entertain cases, civil or criminal, where citizenship of the parties is diverse.  To contend that article XI, section 6(b) means otherwise is to do violence to the express words and intent of those provisions.

      (2)  Although the Supreme Court has held that "the allocation of judicial authority under this constitutional system is made on the basis of  jurisdictional grants, not whether state, or national powers are at issue, Nahnsen, 1 FSM Intrm. at 108, we consider that particular holding to be an unfortunate departure from the intent of us Micronesians who voted to ratify our FSM Constitution.  We believe quite strongly that article XI, section 6(b) should be read together with article VIII of the FSM Constitution in order to arrive at a more rational and perfect conclusion that Micronesians can live by.

[3 FSM Intrm. 555]

      (3)  The allocation of power over criminal matters between the national and state government is based upon the severity of the crime, and not on diversity of citizenship of the defendant.  FSM Const. art. IX, 2; 11 F.S.M.C. 901; FSM v. Hartman, 1 FSM Intrm. 43 (Truk 1981).

      (4)  One basic reality and practicality of the situation is that the courts having concurrent jurisdiction over cases as enumerated in article XI, section 6(b) can be seen as the national courts, including the trial division of the Supreme Court being one set (system) of courts having concurrent original jurisdiction with the state courts of the four states as being one set (system) of courts.  This is more in line with Delegate Hiroshi Ismael's understanding of the diversity jurisdiction of courts as noted in the Journal of the Micronesian Constitution Convention at page 532, and it gives efficacy to section 7 of that article where decisions of the state courts on those enumerated matters may be reviewed by the Appellate Division of the Supreme Court.  Under this view, and the procedure for appeal allowed by it, the fear that "you will have a mess in your hands" expressed by delegate Toribiong of Palau will be wiped clean on appeal and uniformity of decisional law will be assured, and more importantly, "unity" among the various levels of our Government in this young nation will long endure.

      (5)  To hold that article XI, section 6(b) vests jurisdiction of state criminal cases in the Supreme Court mainly because citizenship of the defendant in such criminal cases is different form the prosecuting state is to frustrate a state's police power over criminal laws within a state's jurisdiction, and to create an undesirable classification and treatment of criminal defendants charged with violations of state criminal offenses.

      (6)  Implementation of the constitutional intent mandated to the Congress under article IX section 2(p) relating to "due regard for local custom and tradition" in dealing with crimes will better be achieved at the state level than at the national level.

      (7)  The procedure to be involved if the appellant's contention is to operate will at the end of the day be time consuming and costly to the States.

      (8)  It will create an unjustified privilege and immunity in favor of "outsiders" who violate state crimes as they might boastfully say to our police officers who apprehend such "outsiders" committing a state offense: "Touch me not, you have no jurisdiction over me."  A situation like this, when it occurs, will naturally provoke violence, and when violence ensues, that "outsider" may not like it.

CONCLUSION
      Considering the entire premises, it is our conclusion that the certification of constitutional issue as requested by the Appellant must be denied and therefore the request is denied.  It is further the conclusion of the Court that article XI, section 6(b), of the Constitution of the Federated States of Micronesia does not prohibit state courts from hearing and

[3 FSM Intrm. 556]

determining criminal cases where the defendants in such cases are from states of the Federated States of Micronesia other than the prosecuting state of the Federation; and that concurrent jurisdiction under article XI, section 6(b) means concurrent jurisdiction between national courts, including the Trial Division of the Supreme Court, and the State Courts of the four states which make up the Federated States of Micronesia.

      Accordingly the Trial Division of the Supreme Court of Pohnpei has jurisdiction over the Defendant-Appellant and its determination is affirmed.

      Either party to this case may appeal this decision to the Appellate Division of the Supreme Court of the Federated States of Micronesia pursuant to article XI, section 7, of the Constitution of the Federated States of Micronesia within 30 days following service of a copy of this decision on the parties.  If no appeal is lodged within the period so specified, the trial court shall summon the appellant for resetting of time to resume jail sentence pursuant to its original sentencing order.
                                                                                                                                                                                                                                                                                                           
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