FSM Government moves to dismiss complaint on the legality of FSM border closure

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Category: News

Published: Thursday, 08 April 2021 05:27

Written by Bill Jaynes

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By Bill Jaynes

The Kaselehlie Press

March 15, 2021

FSM—This evening, the FSM Department of Justice (DOJ) filed a motion at the FSM Supreme Court to dismiss the complaint of 13 Plaintiffs who had asked the Court for declaratory judgment that the FSM Government’s emergency declaration that sealed its borders after the world wide COVID-19 outbreak was unconstitutional.  The plaintiffs in the case each reside in one of the four FSM states and had traveled outside of the FSM’s borders before the President acted to seal the country’s border.  They were each directly affected by the action of the government and for the last year, they have been unable to return to their homes as is the case for many FSM citizens, residents, and even members of the diplomatic corps.

The DOJ motion’s first argument for grounds for dismissal of the case was for failure to name indispensable parties. It argues that each of the State governments also should have been named since each of the four States also issued their own emergency declarations.  The argument specifically names the Pohnpei State Government as one of the authorities in the nation that was adamant about its declarations that refused disembarkation of passengers at its port.  “Although the FSM state of emergency covers borders control measures, the FSM States remains adamant in the disembarkation of persons from international travels,” the motion says. The motion to dismiss says that failure to name indispensable parties in a civil action is sufficient grounds for dismissal. 

However, within the heading discussing that matter, the Assistant Attorney General that filed the motion then diverged from the main argument saying, “This is an extreme circumstance where members of the society is (are) divided in their views. While some plea for the FSM borders to open, some demand the closure to continue. It is understood that certain rights may be impaired at times like this. The society are (is)

invoking their (its) civil rights, and no rights is(are) paramount than(over) others. Everyone is affected without one being singled out. There is a vital balance for rights and life in this circumstances (sic). This is a balance that only the government is constitutionally delegated to implement.”

The motion to dismiss then introduces its argument that the issues raised by the plaintiffs are “non-justiciable political questions”, the legal doctrine that an issue is so politically charged that the court which is typically reviewed as the apolitical branch of government, should not hear the issue.  The FSM court will need to decide whether or not the long-debated doctrine that relates to separation of powers of the branches is applicable in this case.  The DOJ is asking the court to consider in advance of hearing arguments on the matter whether or not there is a “textually demonstrable commitment of an issue to a coordinate branch of the government”.

Taken to its extremes, the doctrine of non-justiciable political questions would mean that no government action taken by any official operating under a law empowering the government to do so could ever be questioned or reviewed in any court and no action could ever be declared to be illegal. It’s part of the reason that the doctrine itself has been so heavily debated within the legal community and within case law.

“In this present matter, the issue is whether or not FSM National Government or the President exercised its delegated constitutional powers over and beyond the scope of authority provided under Article X, Section 9 of the FSM Constitution,” the DOJ motion to dismiss says.

That is precisely what the plaintiffs are asking the court to do.

The motion then diverges from its discussion of non-justiciable political questions with a discussion of its estimation of the validity of the decisions made regarding COVID-19.

“Constitutional rights or civil rights are fundamental, but not absolute. Lives matter. Imagine what the FSM would face without the lock down of the FSM borders,” it says. “Imagination can be easily confirmed or drawn by referring to the statistical report by World Health Organization or other globally recognized Health Organizations or Agencies. This is not a fiction story. Lives are at stake globally, and the society is relying on the Government to react swiftly and sharply. FSM National Government is doing exactly that, and in accordance with the constitutional provisions. Article X, Section 9 of the FSM Constitution demands a joint role from both the Executive and the Congress. That provision clearly and demonstrably textually commits the preservation of public peace, health, or safety, at times of extreme emergency caused by, inter alia, natural disaster to the President and the FSM Congress. The fundamental factor taking into consideration in the textually demonstrable commitment is the preservation of the public peace, health, and safety in this country.

“The FSM is still fortunate to remain COVID-19 free to this day. This is not the result of good fortune or luck, but a result of the state of emergency issued by the FSM Government or the President. Countries that have spiked numbers of COVlD-19 cases are also the result of inability to combat the virus due to lack of preparedness and political reactions. Border closure is necessary at times like this. This is a good policy, which is pivotal towards preserving public peace, health and safety.”

At press time, the FSM Supreme Court had not yet ruled on the government’s motion to dismiss.