ARTICLE 4
Fundamental Rights

Case annotations:  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).

The right to governmental employment in Pohnpei is not a fundamental right, constitutionally protected, requiring invoking a strict scrutiny test.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987).

     Section 1.  Freedom of Speech.
     No government action may deny or impair the right of every person to speak, write, and publish freely on any subject and the right to receive information on all subjects.  A person may be held responsible for untruthful statements injuring other persons without privilege, and for statements creating a clear and immediate danger of unlawful conduct or substantial injury to the public.

Cross-references:  See Declaration of Rights in the FSM Constitution.

     Section 2.  Freedom of Association and Petition.
     The right of all people peaceably to assemble, to associate, to consult for their common interests, and to petition the government may not be abridged.

     Section 3.  Equal Rights.
     No law or other government action may deny or impair the equal rights of all persons on account of gender, race, ancestry, national origin, religion, language, or social status.  No person may be denied the equal protection of the law.

Case annotations:  A classification of ex-felons currently under sentence is not suspect within the suspect classifications of section 3, article 4 of the Constitution of Pohnpei.Paulus v. Pohnpei, 3 FSM Intrm. 208, 216 (Pon. S. Ct. Tr. 1987).

Where the legislature has a rational basis for a statutorily non-suspect classification, the court will not inquire into the wisdom of that statute.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 218 (Pon. S. Ct. Tr. 1987).

Section 14(1) of the State Public Service System Act of 1981 (2L-57-81) is impermissibly arbitrary and irrationally unfair in its blanket prohibition of employment of any person who has been convicted of a felony and is currently under sentence; such statutory prohibition fails to tailor its impact to those convicted felons who otherwise lack the habits of industry. Consequently, the section of the statute is violative of the Equal Rights Clause of the Pohnpei State Constitution by failing to demonstrate that the exclusion of all felons under sentence is necessary to achieve the articulated state goal.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 220 (Pon. S. Ct. Tr. 1987).

Discrimination as it is experienced in the United States is not the same as is experienced in Pohnpei.  Therefore, the decisions of this court will consider decisions of the United States and other common law jurisdictions, but the court will only apply them as may be appropriate in the individual circumstances.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 215 (Pon. S. Ct. Tr. 1987).

     Section 4.  Due Process of Law.
     No person may be deprived of life, liberty, or property without due process of law.  Private property may not be taken except for a public purpose with just compensation.

Case annotations:  The Pohnpei State Government has discretion in hiring or firing employees, but that discretion does not carry with it the right to its arbitrary exercise.Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987).

Substantive due process relates to the constitutional guarantee that no person shall be deprived of his life, liberty or property for arbitrary reasons.  Such a deprivation is supportable constitutionally only if the conduct from which the deprivation flow is prescribed by reasonable legislation.  The legislative shall be enacted within the scope of legislative authority and be reasonably applied for a purpose consonant with the purpose for which it was enacted.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 221 (Pon. S. Ct. Tr. 1987).

Procedural due process relates to the requisite characteristics of proceedings tending toward a deprivation of life, liberty, or property and thus makes it necessary that a person whom it is sought to deprive of such a right must be given notice of this fact.  An individual must be given an opportunity to defend himself before tribunal or office having jurisdiction of the cause, and the problem of the propriety of this deprivation, under the circumstances presented, must be resolved in a manner consistent with essential fairness, in accordance with the Pohnpeian concept of justice.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 221 (Pon. S. Ct. Tr. 1987).

A statute providing that any person who has been convicted of a felony and who is currently under sentence shall be terminated from public employment, constitutes an unconstitutional deprivation of procedural due process by allowing for an affected individual's termination without a hearing, and thus must be struck down.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 221-22 (Pon. S. Ct. Tr. 1987).

Working for the Pohnpei State Government, whose policy of public service is based explicitly on the merit, is merely a privilege which can be withheld subject to the due process of law.Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987).

The Pohnpei State Government has discretion in hiring or firing employees, but that discretion does not carry with it the right to its arbitrary exercise.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 217 (Pon. S. Ct. Tr. 1987).

Section 14(1) of the State Public Service System Act of 1981 (2L-57-81), prohibiting any person who has been convicted of a felony and is currently under sentence from being considered for any public employment or from continuing to hold any previously attained public service position, operates to effect double punishment on persons classified as felons, by preventing such individuals' attempts at rehabilitation, and as such this statute does not support Pohnpei State Government's policy of rehabilitating persons who are convicted of crimes.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 219 (Pon. S. Ct. Tr. 1987).

Section 14(1) of the State Public Service System Act of 1981 (2L-57-81) is impermissibly arbitrary and irrationally unfair in its blanket prohibition of employment of any person who has been convicted of a felony and is currently under sentence; such statutory prohibition fails to tailor its impact to those convicted felons who otherwise lack the habits of industry. Consequently, this section of the statute is violative of the Equal Rights Clause of the Pohnpei Constitution by failing to demonstrate that the exclusion of all felons is necessary to achieve the articulated state goal.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 220 (Pon. S. Ct. Tr. 1987).

A statute providing that any person who has been convicted of a felony and who is currently under sentence shall be terminated from public employment, constitutes an unconstitutional deprivation of procedural due process by allowing for an affected individual's termination without a hearing, and thus must be struck down.  Paulus v. Pohnpei, 3 FSM Intrm. 208, 221-22 (Pon. S. Ct. Tr. 1987).

The Due Process Clause of the Pohnpei State Constitution, art. IV, 4, guarantees the right of due process articulated in the governing law.  Micronesian Legal Services Corp. v. Ludwig, 3 FSM Intrm. 241, 244 (Pon. S. Ct. Tr. 1987).

A statute does not violate the Pohnpei constitutional safeguards of due process if the provisions of the statute are reasonably clear and give fair notice of what acts or omission are prescribed.  Hadley v. Kolonia Town, 3 FSM Intrm. 267, 269 (Pon. S. Ct. Tr. 1987).

Whether statutory language is so unreasonably vague as to violate the Due Process Clause of the Pohnpei State Constitution is a question of degree, and when the law in question is a municipal ordinance greater leeway should be given to the municipality in recognition of the members' lack of prior training or experience in law or statutory drafting.  Hadley v. Kolonia Town, 3 FSM Intrm. 267, 269-70 (Pon. S. Ct. Tr. 1987).

Under Pohnpei state law, owners of the land adjacent to the lagoon do not have sufficient property rights in the reef and the lagoon as to entitle them to monetary compensation or other relief for damage to the reef caused by unauthorized dredging activity in the lagoon near their land.  Damarlane v. United States, 7 FSM Intrm. 56, 59-60 (Pon. S. Ct. App. 1995).

Under Pohnpei state law persons simply possessing a permit in the lagoon do not have sufficient property rights in the reef and the lagoon as to entitle them to monetary compensation or other relief for damage to the reef caused by unauthorized dredging activity in the lagoon near their land unless there has been some affirmative action such as prior written approval from the appropriate authority and effecting some development in the area in question.  Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995).

Under Pohnpei state law, if a reef is damaged by persons carrying out dredging activities authorized by state officials for a public purpose, adjacent or nearby coastal landowners are not entitled to a payment of just compensation for the depreciation of the value of the reef and fishing grounds.  Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995).

Under Pohnpei state law, if a fish maii [trap] is damaged by persons carrying out dredging activities authorized by state officials for a public purpose, adjacent or nearby coastal landowners are entitled to a payment of just compensation for the damage to a fish maii which they had constructed in the lagoon, if the fish maii was constructed pursuant to the dictate of customary law as a joint enterprise of the villagers, supervised by the village chief, managed, maintained and owned in common by the villagers; or, if an individual constructed the fish maii, prior written permission from the District Administrator, now the Pohnpei Public Land Board of Trustees, was obtained.  Damarlane v. United States, 7 FSM Intrm. 56, 60 (Pon. S. Ct. App. 1995).

The rights of citizens of Pohnpei in areas below the high watermark are prescribed by 67 TTC 2.  Damarlane v. United States, 7 FSM Intrm. 56, 63-64 (Pon. S. Ct. App. 1995).

Cross-references:  See Declaration of Rights in the FSM Constitution.

     Section 5.  Contract Rights.
     No law may impair an existing contractual obligation, except for the protection of an essential public interest.

     Section 6.  Imprisonment for Debt.
     No person may be imprisoned solely for failure to discharge a debt.

     Section 7.  Ex Post Facto and Attainder.
     No person may be held criminally liable for an act that was not a legally recognized crime at the time of its commission.  An increased penalty for a criminal act shall not apply to an act committed before the increase.  No person may be found guilty of a crime or be punished for a crime except by a court of law.

     Section 8.  Searches and Seizures.
     (1)     The right of all people to be secure in their persons, houses, papers, and property against unreasonable searches and seizures may not be violated.

     (2)     No warrant may be issued except upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

     Section 9.  Rights of the Accused.
     (1)     In all criminal prosecutions the accused shall be presumed innocent until proven guilty beyond a reasonable doubt.

     (2)     The accused shall be promptly informed of the nature and cause of the accusation; he shall have the right to counsel; he shall have the right to a speedy, public, and impartial trial; he shall have the right to be confronted with the witnesses against him and to examine them fully; he shall have the right to compel the obtaining of evidence and the attendance of witnesses in his favor; and he shall not be compelled to testify against himself.

Case annotations:      Speedy Trial

In considering an issue of constitutional interpretation of an accused's right to a speedy trial in the light of Pohnpei's experience, manner and usage, and the concept of justice of the peoples of Pohnpei, it is helpful to review the application and development of the constitutional right to a speedy trial in other parts of the world.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 435 (Pon. S. Ct. Tr. 1992).

Differences in procedure, history, customs and practice do not require similar construction and application of the rights to a speedy trial in Pohnpei as the clause is construed and applied in other jurisdictions.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 449-50 (Pon. S. Ct. Tr. 1992).

The Pohnpeian customary practice of quickly resolving conflict resulting from the commission of an act is closely related to, if not the counterpart of the Western concept of a speedy trial.Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 450 (Pon. S. Ct. Tr. 1992).

Under the Pohnpei Constitution an accused's right to a speedy trial is not violated if the delay was necessary to afford the accused the opportunity (if he chooses to exercise the customary practice) of pacifying hostilities arising from the criminal conduct between the defendant and his victims; or if the delay was necessary for the prosecutor to prepare for trial, given the complexity and other circumstances of the case; or if the delay was the result of certain excusable neglect by any agency involved in the criminal process.  It is a violation of an accused's right to a speedy trial if the delay was employed by the prosecution to subject the accused to undue oppression.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 450-51 (Pon. S. Ct. Tr. 1992).

The right to a speedy public and impartial trial attaches either when an information or complaint has been filed with the court and service of that information or complaint has been effected upon the one named as the accused; or when an accused has been arrested by means of an arrest warrant or other process issued by a judicial officer.  "Other process" includes summons, writ, warrant, mandate or other process issuing from or by the authority of the court to have the defendant named therein appear before it at the appointed time.  It does not refer to a warrantless arrest.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 451-53 (Pon. S. Ct. Tr. 1992).

The statute of limitations begins to run from the commission of an offense, or when the crime is complete.  Once prosecution has been commenced the statute of limitations period is no longer available to the prosecution who must then face the task of bringing the defendants to a prompt trial.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 454-55 (Pon. S. Ct. Tr. 1992).

A delay in bringing to trial caused by a "subsisting agreement" between the government and the Public Defender's Office that was not clear as to how service of the criminal process was to be effected on defendants was excusable neglect and thus not a violation of the right to a speedy trial.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 455 (Pon. S. Ct. Tr. 1992).

The Pohnpeian concept of justice and Pon. Crim. R. 48 both allow the court to dismiss a criminal case for delay even when the defendant's constitutional right to a speedy trial has not been violated.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 456 (Pon. S. Ct. Tr. 1992).

     (3)     No person may be put in jeopardy more than once for a single offense.

     (4)     Excessive bail may not be required, nor excessive fines imposed.

     (5)     Cruel or unusual punishment may not be inflicted.

Cross-references:  See Declaration of Rights in the FSM Constitution.

     Section 10.  Habeas Corpus.
     The privilege of the writ of habeas corpus shall not be suspended except in accordance with law when the public safety requires during insurrection, rebellion, or invasion.

     Section 11.  Death Penalty.
     No crime may be punished by death.

     Section 12.  Slavery and Involuntary Servitude.
     Slavery is prohibited.  Involuntary servitude is prohibited except to punish crime after conviction in accordance with law.

     Section 13.  Freedom of Movement.
     Subject only to the requirements of public health, order, and safety all persons have freedom of travel and movement.

     Section 14.  Military Action.
     (1)     In time of peace, no soldier may be quartered in any house without the consent of the owner and occupants, nor in time of war except in a manner prescribed by statute.

     (2)     Just compensation shall be provided for the use, taking or destruction of the property of the people, and for personal injury and death arising from military action.  Such compensation shall be the responsibility of the military force causing such damage.

Case annotation:  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).

Cross-references:  See Declaration of Rights in the FSM Constitution.
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