ARTICLE 5
Tradition

     Section 1.  Customs and Traditions.
     This Constitution upholds, respects, and protects the customs and traditions of the traditional kingdoms of Pohnpei.

Case annotations:  The court must try to apply the Court Rules of Civil Procedure in a way that is consistent with local customary practice. Hadley v. Board of Trustees, 3 FSM Intrm. 14, 16 (Pon. S. Ct. Tr. 1985).

Judicial decisions, including interpretations of rules of civil procedure, should be consistent with the Constitution and with the Pohnpeian concept of justice.  Hadley v. Board of Trustees, 3 FSM Intrm. 14, 16 (Pon. S. Ct. Tr. 1985).

The Pohnpeian custom of "Ke pwurohng omw mwur," according to which one reaps the fruit of one's misdeed, requires the lessor to bear the consequences of his failure to repossess the rented vehicle from the lessee.  Phillip v. Aldis, 3 FSM Intrm. 33, 38 (Pon. S. Ct. Tr. 1987).

Customary law takes precedence over the common law, according to Pon. Const. art. 5, 1; 1 TTC 103; 1 F.S.M.C. 203.  Phillip v. Aldis, 3 FSM Intrm. 33, 38 (Pon. S. Ct. Tr. 1987).

The Pohnpei Supreme Court may look to Pohnpeian customs and concepts of justice when there are no statutes governing the subject matter, but it may also draw from common law concepts when they are appropriate.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 64 (Pon. S. Ct. Tr. 1986).

The common Pohnpeian custom of assisting a person in need should not be dispensed with in order to allow the defense of contributory negligence or assumption of risk to be raised.Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 67 (Pon. S. Ct. Tr. 1986).

According to the Pohnpeian view of civil wrongs, if one damages another's property, he must repair or replace it; if one injures another person, he must apologize and provide assistance to the injured person and his family; if one kills another person, he must provide the assistance that the victim would have provided and may have to offer another person to take the place of victim in his family.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 70-71 (Pon. S. Ct. Tr. 1986).

The Pohnpei Supreme Court declines to adopt the "collateral source" rule, according to which alternative sources of income available to a victim are not allowed to be deducted from the amount the negligent party owes, because it does not want to discourage customary forms of family restitution.  Koike v. Ponape Rock Products, Inc., 3 FSM Intrm. 57, 74 (Pon. S. Ct. Tr. 1986).

Under Pohnpeian state law after confirmation of a customary separation or divorce under 39 TTC 5, the court may order custody and child support under 39 TTC 103.  Pernet v. Aflague, 4 FSM Intrm. 222, 225 (Pon. 1990).

Although under historical Pohnpeian customary law only the husband had rights over the children of the marriage, now both parents have rights and responsibilities in connection with a marriage and the court should take this into consideration in determining child custody rights and support payment obligations in cases of customary divorce.  Pernet v. Aflague, 4 FSM Intrm. 222, 225 (Pon. 1990).

The doctrine of comparative negligence is more consistent with life in Pohnpei in that the doctrine recognizes that injuries and damages are often caused through a combination of errors and misjudgments by more than one person.  Nothing in Pohnpei custom absolves a party who caused injury to another from the customary obligations of apology and reconciliation because the injured party's negligence contributed to the injury.  Alfons v. Edwin, 5 FSM Intrm. 238, 242 (Pon. 1991).

The Pohnpei court system has to be extra cautious applying the foreignly developed concepts of criminal justice into its own, so that in adopting or applying such concepts it does so without doing injustice to Pohnpeian culture and traditional values.  Pohnpei v. Weilbacher, 5 FSM Intrm. 431, 449 (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).

      Section 2.  Protection of Customs and Traditions.
     The Government of Pohnpei shall respect and protect the customs and traditions of Pohnpei.  Statutes may be enacted to uphold customs or traditions.  If such a statute is challenged as violating the rights guaranteed by this Constitution, it shall be upheld upon proof of the existence and regular practice of the custom or tradition and the reasonableness of the means established for its protection, as determined by the Pohnpei Supreme Court.

     Section 3.  Family Obligations.
     (1)   To strengthen and retain good family relations in Pohnpei, as needed, this Constitution recognizes and protects the responsibility and authority of parents over their children.

     (2)   This Constitution also acknowledges the duties and rights of children in regard to respect and good family relations as needed.
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