Supreme Court to consider constitutionality of FSM decision to close down borders during pandemic

By Bill Jaynes

The Kaselehlie Press 

February 26, 2021

Pohnpei—Representing 13 clients, Attorney Marstella Jack today filed a complaint for declaratory judgment at the FSM Supreme Court asking the court to consider the issue of whether or not President David Panuelo’s action to close FSM borders is Constitutional.

The case names President Panuelo in his official capacity and the Government of the Federated States of Micronesia.  Plaintiffs are Maria Ligohr, Lina Wilson, Merlance Amor, Darleen P. Alexander, Lorenzo David, Senolida Robi, Connie Julio, Memorina Yesiki, Herman Joel, Marcey Joel, Kimberly Lebehn, Dora Rasuo, and Victoria Braie, all of whom are citizens of the FSM who aggregately reside in each of the four FSM States.

All of the plaintiffs traveled to the United States or to the US Territory of Guam prior to March 2020 to attend to important family matters, or for medical treatment but were prevented from returning to the FSM because of President Panuelo’s decision to close the FSM borders.

“The issuance of the said declaration was not based on any solid medical finding or fact,” the plaintiffs’ filing alleged.  “Instead, the issuance of the declaration by President Panuelo was based simply on President Panuelo's sheer unfounded fear of Covid-19, which was occurring not in the FSM, but in other parts of the World several thousands of miles away from the FSM, or completely outside of the jurisdiction of the Federated States of Micronesia.”

The allegation is one that the plaintiff’s will have to defend in a hearing along with their other assertions, including that the President’s action to close the borders was unconstitutional.

Plaintiffs quote Article X, Section 9(a) of the Constitution of the FSM,  which vests in the President the power to declare a state of emergency under certain conditions.  “Specifically, Section 9(a) expressly directs that ‘if required to preserve public peace, health, or safety at a time of extreme emergency caused by civil disturbance, natural disaster, or immediate threat of war, or insurrection, the President may declare a state of emergency and issue appropriate decrees.’”

Plaintiffs claim that none of those conditions existed then, and they don’t exist as of the date of the filing.

“The Plaintiffs were never informed in advance of Defendant President Panuelo's decision to close down the FSM borders. Plaintiffs are entitled to be informed of the President's decision to close down the FSM borders in order that they may exercise their rights to travel back to their home states in the Federated States of Micronesia prior to the date of closure of the national borders, and thus, Plaintiffs were never given an opportunity to travel back to their home states in the FSM prior to the date President Panuelo closed down FSM borders,” the complaint say. The same holds true for several thousand other FSM residents “wrongfully” barred from return, the plaintiffs say.

The plaintiffs claim that the emergency powers vested in the President were not designed to protect FSM citizens residing within FSM borders against other FSM citizens residing outside of FSM borders. The power is intended to protect all FSM citizens and is not intended to be applied in a discriminatory manner.

Plaintiffs claim that Palau’s example serves as an example of “less drastic alternative measures” that were available and could have been used by the President which would have protected the rights of FSM citizens residing outside of the FSM to travel freely back into the FSM. “The Government of the Republic of Palau did not close down their borders from their Palauan citizens travelling back to Palau simply because Palau leaders organized a successful quarantine program which enabled Palau's citizens to freely travel between Palau and United States of America, which is still keeping their country a free Covid-19 place,” the complaint says.

The complaint was only just filed today at the FSM Supreme Court and has not yet been reviewed by the Court.

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