Trial Division

IN RE: Application of Martin Jano
 for a Writ of Habeas Corpus

PCA No. 34-93


     Ms. Shirley M. Paiz, Public Defender, FSM Office of the Public
     Defender, for the Petitioner.

     Mr. Kevin P. Shea, Pohnpei Asst. Attorney General, Office of
     the Attorney General, Pohnpei, for Pohnpei State.
     Mr. Micheal Brady, Asst. Attorney General, Office of the
     Attorney General, FSM, Co-Counsel.

     The application of Martin Jano for a writ of habeas corpus came before this Court for hearing on Friday, January 29, 1993. At the hearing of the application, counsel were quite hostile to each other, but as the hearing progressed, they both presumably realized that they were arguing in a different setting the concepts and doctrines of foreign law of which practically one hundred percent of the people of the Federated States of Micronesia are without any knowledge, nor have they any experience in what an extradition proceeding is all about. Consequently, however, both counsel regained their composure and acted quite cooperatively, thus mutual consent of both counsel was reached for an Order for the Release of the Petitioner under certain conditions. Accordingly an order to that effect was forthwith entered on January 29, 1993, and Martin Jano was released unto and was placed under the supervision of the Nanmwarki of Kitti.

     This opinion is to memorialize the facts giving rise to the application herein presented and to highlight the issues that deserve the attention of all concerned with the foreign concepts of habeas corpus and extradition proceedings as they are made part of the laws of our young nation, and finally to identify some areas whereby our local customs and traditions and the concepts of the received laws can be merged or blended together to form a more meaningful scheme regulating our social affairs.

     Martin Jano, applying from the Pohnpei Jail on January 28, 1993, for a writ of habeas corpus , stated that he was placed in the Pohnpei Jail on January 22 upon a warrant of arrest issued by Associate Justice Amaraich of the FSM Supreme Court in connection with an extradition proceeding pending before the FSM National Government. Martin Jano stated that he and his attorney requested bail hearing before they could prepare for an evidentiary hearing, and that Martin Jano's attorney was not adequately prepared to proceed with an evidentiary hearing without prior preparation. The applicant stated that Justice Amaraich denied to him the right even to a bail hearing and proceeded to hear evidence from the Attorney General's Office to determine whether the extradition papers were legally authentic to be certified to the Secretary of External Affairs. Notwithstanding the applicant's attorney's request for a bail hearing which he alleged to have been denied by Justice Amaraich, and notwithstanding the applicant's attorney's request for a continuance to give her time to prepare for the evidentiary hearing, Justice Amaraich ordered the applicant be placed in the Pohnpei State Jail. Justice Amaraich then left for Chuuk* .

     The applicant here requests a writ of habeas corpus claiming that his detention is in violation of Article 4, Section 4, of the Constitution of Pohnpei to wit, no person may be derpived of life, liberty, or property without due process of law, that the action of the FSM Supreme Court in confining the applicant and denying him his right to a bail hearing violated the Constitution of Pohnpei and also 12 FSMC 218 (5) to wit, "In any case of arrest, or arrest for examination, as provided in subsection (4) of section 211 of this chapter, it shall be unlawful to: . . . fail to either release the accused or to bring him before a court, judge, or judicial officer for a bail hearing within a reasonable time, which under no circumstances shall exceed twenty-four hours after his arrest, unless the location of the nearest court makes such appearance impossible . . . ."

     At the hearing attorney for the applicant verified to the satisfaction of the Court that she appeared before the FSM Supreme Court on January 25 for a bail hearing, not for an evidentiary hearing. She requested bail hearing, and the court proceeded to conduct evidentiary hearing called for under Section 1402 of Public Law 5-22. She requested continuance of the evidentiary hearing because she was not prepared for such hearing to effectively represent the defendant, and that another attorney Mr. Hamilton (spelling ?) who is stationed in Yap, was more knowledgeable in the extradition proceeding, and that the said Mr. Hamilton had been designated to represent Martin Jano in the extraditon proceeding. Attorney Paes stated the FSM Court allowed her approximately two (2) hours to study the extradition papers which contained more than 100 pages before Justice Amaraich proceeded with the evidentiary hearing.

     Mr. Brady argued lack of jurisdiction and that this Court should refrain from interfering in an action that is already pending before the FSM- Court. While--these--are--legitimate---arguments, the circumstances of the case demand that I proceed with the hearing to determine whether Martin Jano's detention was in violation of the Constitution of Pohnpei and 12 FSMC 218 (5).


     The language of Pohnpei's due process clause reads as follows:

No person may be deprived of life, liberty, or property without due process of law.
Art. 4,sec. 4, PN Const.

     Under the command of the due process clause, Martin Jano claims that 12 FSMC 218 (5) affords him the right to a bail hearing under the circumstances. 12 FSMC 218 (5) provides in pertinent part:

Sec. 218. Rights of persons arrested. In any case of arrest, or arrest for examination . . . it shall be unlawful to:
(1). . .
(2) . . .
(3) . . .
(4) . . .
            (5) fail to either release the accused or to bring him before a court, judge, or judicial officer for a bail hearing within a reasonable time, which under no circumstances shall exceed twentyfour~ftftUr-hTSs~-unhess--the-toeatiwn-o-f-the-nearest-court makes such appearance impossible. When the location of the court makes such appearance impossible, the municipal or community court judge [State Court Justice] for the area where the person was arrested shall be immediately notified by the arresting person or officer and shall set any conditions for the release of the person that the judge [justice] believes will protect the public and will insure the presence of the person when transportation to the nearest court becomes possible. The person arrested shall be transported to the nearest court without unnecesary delay.
(6) . . .
(7) . . . . (12 FSMC 218).

     When we read the language found in Title I, Article VII, sec. 175, et seq., of the Compact of Free Association between the Federated States of Micronesia and the United States and Title Two (Extradition) Compact of Free Association and Related Agreements Between the Federated States of Micronesia and the United States of America (Oct. 1, 1982), there is nothing in there to suggest that an FSM citizen, when arrested for an extradition proceeding, is not entitled to bail as provided under 12 FSMC 218.

     FSM Public Law 5-22 which came into force on November 6, 1987, is an offspring of 18 USC, Chapter 209 (Extradition). Section 1402 (Fugitives from foreign country. to Federated States of Micronesia) of PL 5-22 is an exact copy of 18 USC 3184 (Fugitives from foreign country to United States).

     At the opening of the habeass corpus hearing the Court emphatically stated that the matter of extradition is a newly introduced subject to the FSM; and the case involving Martin Jano is practically the first of its kind ever to be experienced in the entire FSM nation. And because this matter is new to all of us in the FSM it is highly imperative that the officials of our FSM nation charged with the duty of handling extradition matters proceed with caution, especially when the subject of extradition relates to a citizen of the FSM.

     In order to assist us in the process of extraditing a member of our own citizenry, we need to understand how the extradition laws of the requesting countries operate. In the instant case, the requesting Government is the United States, thus it is appropriate for us to take time out to learn and understand how the law of extradition is applied, in the United States. For example, under an extradition proceeding pursuant to Section 3184 of Title 18 of the United States Code, (cf. Sec. 1402, PL 5-22) "an alleged fugitive must receive judicial hearing, of preliminary nature, regarding the propriety of extradition." Sayne v. Shipley, 418 F2d 679, (1969), cert den 398 US 903, 90 S.Ct. 1688. In another case, Peroff v. Hylton (1977, CA4 Va) 563 F2d 1099, the Court said,

     "The purpose of extradition hearing is to inquire into the presence of probable cause to believe that there has been violation of one or more of criminal laws of extraditing country, that alleged conduct, if committed in United States, would have been violation of our criminal law, and that extradited individual is the one sought by foreign nation for trial on charge of violation of its criminal laws; hearing is of character of those preliminary examination which take place before committing magistrate for purpose of determining whether case is made out which will justify holding of accused to ultimately answer to indictment."

     And as to the right of an offender to be released on bail, a number of US Courts determined that bail is available but the matter of bail "should be approached with caution and bail should be granted only upon showing of special circumstances. Beaulieu v. Hartigan (1977, CA1 Mass) 554 F2d 1. Court should admit person to bail "where it would be wholly unjust to the accused to refuse bail". R e Mitchell (1909, DCNY) 171 F 289. Courts have power and duty, pending determination of habeas corpus on merits, to admit  petitioner to bail. 56 ALR 2d 668.

     Recognizing that these US case laws are not binding precedents in our jurisdiction, it is important for us in the FSM to know and to understand that in the United States, the Courts there allow a person' who has become the subject of an extradition proceeding the right to be heard and the right to a bail hearing.

     The question this poses to us is: Isn't it humanly fair and appropriate for us in the FSM to also accord similar rights to our own citizens when they become the subject of an extradition proceeding? I urge that our leaders in the FSM and in the various States (both  governmental and traditional leaders) need to address this issue with the, utmost care and sympathy.

Customary Considerations

     Here in Pohnpei, a Nanmwarki of a Municipality is considered as the paramount "father" of his subjects. Godlieb v. Welten. 1 TTR 175. Nanmwarkis, with the help of the Nanikens, serve many functional roles, one of which is the function of protectors for their subjects. At times they provide refuge to one in need of help. The Nanmwarki of Kitti, the Wasahi of Nett and the Naniken of Nett were among the high traditional leaders who were present in the courtroom during the Friday afternoon hearing. When inquired by the Court if anybody would be willing to supervise Martin Jano, the attorney for Martin Jano responded stating that they had discussed the matter with the Nanmwarki and the Nanmwarki had shown his interest and willingness to take custody and supervision of Martin Jano. Recognizing the functional roles of our Nanmwarkis and Nanikens, it seems highly appropriate that when we (in the Government) come to deal with matters of foreign origin, e.g. issues of extradition or habeas corpus, especially as they affect our customary and traditional social relationships, consideration ought also be given to our local leaders to participate in the process, particularly so where they show an interest in the matter in hand and a will to be involved.By doing this, we in Govermnet will be breathing the breath of life into the provisions of Article. V, sec. 1 of the Constitution of the FSM, which reads;

Nothing in this Constitution takes away a role or function of a traditional leader as recognized by custom and tradition, or prevents a traditional leader from being recognized, honored, and given formal or functional roles at any level of government as may be prescribed by this Constitution or by statute.

     Granting that the attorneys who argued the habeas corpus petition before me were able to recognize the importance of this working relationship, and granting that they were able to agree that the applicant be released unto the custody of the Nanmwarki of Kitti under certain agreed conditions, this Court need not say more but simply to congratulate the three attorneys for their effort and understanding, and the willingness on their part to help this Court in its quest to merge and blend the received laws with our local customs and traditions to form a system of jurisprudence most appropriate and understandable by our citizens.

     So Ordered, 3 February 1993.

                                        Edwel H. Santos
                                        Chief Justice

Filed: February 4, 1993

Clerk of Court

*Cf. In Re: Iriarte I and Iriarte II, 1 FSM Intrm 239 and 255, respectively.
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