FSM 4 Intrm. 320-329

The appellate division of the Supreme Court of the FSM may accept direct filing of a case and an expedited briefing schedule may be established where there is limited time available and prompt resolution of the issues in the case is decidedly in the national interest. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 324 (App. 1990).

The Supreme Court of the FSM has the constitutional power and obligation to review legislative enactments of Congress and to set aside national statutes to the extent they violate the Constitution. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 324 (App. 1990).

The fixing of voting requirements is a uniquely political task and falls within the purview of the political arms of the government, so long as no legal rights are violated by a particular method selected. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 324 (App. 1990).

Consideration of the general plan of the Constitution and the institutions created thereunder may be helpful in determining the proper interpretation of specific language within the FSM Constitution. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 326 (App. 1990).

The National Constitutional Convention is given broad authority to revise the very foundation of government, and every institution and office of government may come within its reach. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 326 (App. 1990).

The nature of a constitutional convention as authorized by the FSM Constitution, with direct control of the people over the identity of convention delegates, and ultimate acceptance of the products of the convention's efforts, and the fact that the framers views a constitutional

convention as a standard and preferred amendment mechanism, preclude congressional control over the convention's decision-making. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 327 (App. 1990).

Congress has no power to specify voting requirements for the Constitutional Convention and therefore any attempt to exercise this power so as to uphold tradition is also outside the powers of Congress under article V, section 2 of the Constitution, which is not an independent source of congressional power but which merely confirms the power of Congress, in exercising national legislative powers, to make special provisions for Micronesian tradition. Constitutional Convention 1990 v. President, 4 FSM Intrm. 320, 328 (App. 1990).

The petitioner in this case, the Constitutional Convention, 1990, of the Federated States of Micronesia, seeks a declaratory judgment that the Convention is not bound by the enabling legislation enacted by the Congress of Federated States of Micronesia insofar as that legislation purports to establish the procedures which the Convention must follow in proposing amendments to the FSM Constitution.

The issue presented is whether the Congress of Federated States of Micronesia, in adopting legislation to implement a decision of the electorate that a convention to revise or amend the Constitution shall be held, may limit the discretion of the Constitutional Convention in determining how to adopt proposals for amendment.

At least every 10 years, Congress shall submit to the voters the question: "Shall there be a convention to revise or amend the Constitution?". If a majority of ballots cast upon the question is in the affirmative, delegates to the convention shall be chosen no later than the next regular election....

Accordingly, Congress enacted legislation providing for the election of delegates and the holding of a constitutional convention to "convene in Palikir, Pohnpei State, at the National Capital in July of 1990 and ... continue in session there ... up to a total of 45 calendar days." Pub. L. No. 6-24, § 6 (6th Cong., 1st Spec. Sess. 1989). This legislation also prescribes the number of delegates to be elected from each state, section 2, the date and manner of their election, section 3, and the methods for filling vacancies, section 4. The act calls for a preconvention committee to organize the convention, section 5. It specifies procedures to be followed, section 6, and powers and immunities available to the constitutional convention, section 7. Payments of stipends and reimbursements of expenses for delegates and staff are also authorized, section 9.

No objection has been raised to any of the provisions referred to above. However, section 6(4) of Public Law 6-24 has engendered concern in that it purports to require, as a condition to adoption of a proposal, that all four state delegations approve the proposal on final reading. It reads:

The Convention shall adopt its own rules of procedure not inconsistent with this act; PROVIDED, however, that no amendment to the Constitution of the Federated States of Micronesia shall be proposed by the Convention unless the proposed amendment shall have passed two readings on separate days, a quorum being present. To pass first reading the affirmative votes of not less than three-fourths of all of the delegates shall be required. On final reading the affirmative votes of all of the four state delegations shall be required.

The bill became national law on October 31, 1989. On that day, President John Haglelgam wrote to Speaker Jack Fritz of the Congress of the Federated States of Micronesia expressing his concerns "regarding both the constitutionality and policy of the consensus approach adopted in Section 6(4) of the Act." The President told the Speaker that because of these concerns he had decided not to sign the Act but had merely allowed it to become law without his signature. He also advised the Speaker of his plan "to introduce a proposed amendment to this section in the upcoming Congress Session."

At the next session of Congress, during December, 1989, section 6(4) was reconsidered in response to an amendment proposed by Senator Yleizah. The Yleizah amendment, which would have reduced the requirement for final reading from four to only three states, was rejected. The legislation remained intact as originally enacted.

Shortly after convening, the Convention decided to challenge subsection 6(4). First, the rules were amended to require an affirmative vote of only three-fourths of the state delegations on final reading. Constitutional Convention Rules of Procedure, Rule 56. Next, on July 19, the Convention adopted Resolution 1-9 authorizing the Convention's legal staff to seek a judicial determination of the validity of Rule 56. On July 23, a petition was filed by the Constitutional Convention initiating this action against the President of the Federated States of Micronesia.

There is limited time available to the Constitutional Convention to carry out its work, and prompt resolution of the issues in this case is decidedly in the national interest. Therefore, proceedings in this case have been accelerated. The Court has accepted direct filing of the case with the appellate division and an expedited briefing scheduling has been established, all in accordance with the reasoning set forth in Olter v. National Election Commissioner, 3 FSM 123, 128 (App. 1987).

The primary issue presented by this case is whether section 6(4) of Public Law No. 6-24 is valid or whether that provision insofar as it purports to require approval of all four state delegations as a prerequisite to the Convention's proposal of constitutional amendments, is itself unconstitutional.

This marks the first time the appellate division of this Court has been asked to exercise powers of judicial review over legislation enacted by Congress. No party has expressed any doubt that this Court has such power, but we have nonetheless carefully considered the question. For the reasons set forth in Suldan v. FSM (II), 1 FSM Intrm. 339 (Pon. 1983), we conclude and hold that this Court has the constitutional power and obligation to review legislative enactments of Congress and to set aside national statutes to the extent they violate the Constitution.

We also emphasize what the Court is not addressing. It is neither the task nor the right of this Court to decide how many votes, of delegates or of states, are required in order for the Convention to propose an amendment. Fixing of voting requirements is a uniquely political task and falls within the purview of the political arms of government, so long as no legal rights are violated by a particular method selected.

As we have said on numerous occasions, analysis of constitutional issues must begin with the words of the Constitution. Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982). The constitutional language concerning amendments is as follows:

An amendment to this Constitution may be proposed by a constitutional convention, popular initiative, or Congress in a manner provided by law. A proposed amendment shall become a part of the Constitution when approved by 3/4 of the votes cast on that amendment in each of 3/4 of the states.

The respondent argues that the words "in a manner provided by law" in the first sentence of this section give Congress the full power to provide for all aspects of a constitutional convention by law. Resp't Br. at 9. The petitioner concedes that these words "grant Congress broad power," Pet'r Br. 7, but argues that the phrase does not permit Congress to fix the Convention's voting requirement for this "is at the very heart of the purpose of the Convention." Id. at 7.

The pertinent constitutional history is sparse. The only language brought to our attention is in a report of the Committee on Government Provisions: "The Committee on Government Provisions was of the opinion that the future national legislature should be empowered to establish the mechanics by which amendments are proposed. The text of our Constitution should not be burdened with these detailed procedures." SCREP No. 10, II J. of Micro. Con. Con. 777, 778.

We find the constitutional language, even when considered in the light of these references in the committee report to "mechanics" and "detailed procedures," insufficient to establish conclusively whether the framers intended for the Convention to determine its own voting methods or whether the words, "in a manner provided by law," were intended to consign this power to Congress.

Where it is apparent that language within the FSM Constitution was drawn from constitutional language elsewhere, the Court has often looked to interpretations under the other constitution as a guide to the likely intended meaning of the framers in adopting the FSM Constitution. Alaphonso v. FSM, 1 FSM Intrm. at 216. However, there is no suggestion or contention that the language in article XIV, section 1 has been borrowed from any other constitution.

We therefore turn to the general plan of the Constitution itself and the institutions created thereunder. Within the constitutional framework, a constitutional convention is a unique institution, the sole purposes of which are to review the existing Constitution and to propose amendments. These are heavy responsibilities which extend the Convention's reach to the most basic premises and principles and to the most powerful governmental institutions of the nation. The Convention' mission demands the wise and thoughtful exercise of judgment.

Pointedly, the tasks of the Convention are not assigned to the Congress or to any other previously existing governmental institutions or officials. Instead the Constitution provides that shortly after an affirmative answer to the article XIV, section 2 plebiscite question, delegates for a constitutional convention will be specially selected at a special election or at the next regular election. FSM Const. art. XIV, § 2.

Thus, although the Convention is given broad authority to revise the very foundations of government, and every institution and office of government may come within its reach, it is not part of the functioning government itself.

This constitutional design leads to several conclusions. First, since the very purpose of a constitutional convention is to review the Constitution and to exercise judgment concerning possible changes, it seems unlikely that another person or organization would be authorized to tell the members of the Convention how to exercise their judgment. Second, since the Convention is intended to consider all aspects of the existing governmental framework, it would be anomalous for any of the existing institutions of government to be given control over the constitutional convention's decision-making processes. Thus, the nature of the Convention's mission seems to preclude control over the exercise of its judgment by any outside mechanism. Moreover, if some such check were intended, it seems unlikely that the restraining mechanism would be placed in the hands of the Congress or any existing national government branch, department or agency.

Finally, the Constitution establishes a direct relationship between the delegates, their work and the people of the nation, and the framers apparently looked to that relationship to assure that the delegates would respond to the will of the people. Voters are given a full opportunity to select delegates on the basis of their political views and their qualities of judgment. That the task for which this selection is made is well-defined and subject of accomplishment within a short period of time furnishes additional protection against the possibility that delegates might stray from the wishes of the people.

Moreover, upon completion of their work, the delegates must report back to the people. The proposals produced by the convention are placed before the people and will be given legal effect only if approved by three-fourths of the

voters in three of the four states. FSM Const. art. XIV, § 1. This constitutional design suggests that the framers relied on the direct relationships between the people, the identity of the delegates, and the products of the conventions' efforts as a full and adequate safeguard against irresponsible action by the convention.

Our confidence that the framers of the Constitution did not intend to enlist the effort of Congress to supplement the role of the general electorate in protecting the nation against untoward actions by constitutional conventions is bolstered by the fact that they obviously took a tranquil view of the role and potential impact of constitutional conventions. The Committee on General Provisions, which proposed the methods for amending the Constitution, assured the 1975 Constitutional Convention that, "The constitutional convention is the method most frequently used in writing new constitutions and in revising old ones. It approaches the desired goal of popular control of the constitution-making power because delegates are specifically chosen by the people for the express purpose of revising the constitution." SCREP No. 10, supra, at 777.2

The requirement of article XIV, section 2 that the voters be asked every ten years whether a constitutional convention should be held confirms that the framers thought of a constitutional convention as a standard and preferred amendment mechanism, certainly not as a potentially destructive force, the powers of which should be carefully circumscribed.

Our conclusion that the nature of constitutional conventions authorized by the Constitution of the Federated States of Micronesia precludes congressional control over the conventions' decision-making requirements is not inconsistent with the thinking reflected in the treatises concerning constitutional conventions which have been brought to our attention. L. Orfield, The Amending of the Federal Constitution 47 (1942) ("Congress's control would seem to be limited to fixing the date and place of elections and meeting, and to determining the mode of representation, whether by states or by the nation.... The Convention should not be hindered from selecting its own officers, fixing its own rules of procedure, passing on the qualifications

and elections of its members, and from proposing any alterations it chooses."); J. Jameson, The Constitutional Convention 352-53 (3d ed. 1873)("[I]t would seem to be the duty of a legislature, in calling a Convention, to avoid hampering it in its proper business, which is, to overhaul the existing Constitution, ascertain its defective or obsolete provisions, and to recommend amendments thereto....In short, it is in general the right and the duty of a legislature to prescribe when and where and how a Convention shall meet and proceed with its business, and put its work in operation, but not what it shall do.") (emphasis in original).

The words "in a manner provided by law", in article XIV, section 1 of the Constitution, as supplemented by the constitutional journal's references to "mechanics" and "detailed procedures," fit in easily with this understanding of the constitutional design. Obviously, before a constitutional convention can come into existence and act in its own behalf, some extremely significant decisions and actions concerning the convention must occur. This includes determining how many delegates will be selected nationally, and how many will be selected by each state, as well as decisions as to the duration, facilities and budget of the convention. Article XIV section 1 designates Congress as the body to direct these "mechanics" and "detailed procedures" which must be carried out so that the convention may begin its work. We conclude that these words do not authorize Congress to control the constitutional convention's voting requirements.

Finally, the respondent contended in his brief that even if article XIV, section 2 does not permit Congress to set voting requirements for the Constitutional Convention, the necessary authority is supplied by article V, section 2 of the Constitution, which says, "The traditions of the people of the Federated States of Micronesia may be protected by statute. If challenged as violative of Article IV, protection of Micronesian tradition shall be considered a compelling social purpose warranting such government action."

This section applies, the respondent argues, because in requiring consensus, or unanimity, among the state delegations, Congress was attempting to assure that the Convention would reach decisions in the Micronesian way.

The Constitution expressly delegates certain powers to the national government and generally leaves the rest to the states. See FSM Const. art. VIII. If article V, section 2 were seen as an independent grant of power to the national government, this would permit the Congress to usurp the powers of state and local governments and control purely local matters, so long as Congress acts in the name of protecting tradition.

We conclude that article V, section 2 is not an independent source of Congressional power. Instead the section merely confirms the power of Congress, in exercising national legislative powers furnished to it under article IX of the Constitution or elsewhere, to make special provisions for

Since we have concluded that neither article XIV, section 2, nor any other provision of the Constitution, give Congress the power to specify voting requirements for the Constitutional Convention, it follows that the attempt to exercise this power so as to uphold tradition is also outside the powers of Congress.

We conclude that the constitutional convention has the power to fix its own voting requirements for proposing constitutional amendments and that the Convention's Rule 56 therefore is valid. We also hold that, to the extent section 6(4) of Public Law 6-24 is inconsistent with Rule 56, section 6(4) is invalid. A declaratory judgment to that effect will issue.

We have been assured by the attorney general, on behalf of the respondent, that the President will comply with the judgment of this Court and will certify proposals adopted pursuant to the Convention's Rule 56 without the issuance of a writ of mandamus. Therefore the writ will not be issued.

1. Three of the four states of the Federated States of Micronesia voted in favor of the constitutional convention. The greatest majority was in Pohnpei with some 80 percent saying Yes, followed by Chuuk with 71 percent and then Yap with 58 percent. A majority, 56 percent, of the voters of Kosrae voted No, but throughout the nation about 71 percent of the citizenry voted for a convention.

2. This benign characterization of constitutional conventions was drawn almost verbatim from a briefing paper prepared for the Committee. Inexplicably, the briefing paper pointed to actions of states of the United States, rather than to practices of other nations, as a guide for the Federated States of Micronesia. The briefing paper failed to note that, although many states have had constitutional conventions, the United States itself has never had a national constitutional convention in two hundred years of constitutional government. Nor did the paper point out any differences between national conventions, where all national concepts may be brought into question, and state conventions, where matters such as national unity, fundamental rights guaranteed by the national constitution and the supremacy of the national constitution cannot be decided upon and are not placed at risk.