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Motions and counter motions continue in question of COVID-19 border closure constitutionality

Motions and counter motions continue in question of COVID-19 border closure constitutionality

By Bill Jaynes

The Kaselehlie Press

April 8, 2021

Palikir, Pohnpei, FSM—Motions in Civil Action 2021-007, the complaint for declaratory relief in the matter of the Constitutionality of FSM President David Panuelo’s emergency declaration that closed the borders are continuing. On February 26, 2021, 13 plaintiffs who are FSM citizens, each affected by the border closure and representing each of the four FSM States, filed the suit for declaratory judgment.  As covered in The Kaselehlie Press, on March 15, the government defendants filed a motion to dismiss, alleging failure to name the FSM States as indispensable parties and a non-justiciable political question.

On March 26, the plaintiffs filed an opposition to the defendants’ motion to dismiss.  The Court has not ruled on either motion and on April 5, Associate Justice Larry Wentworth set the hearing time for Wednesday April 21 at 10:30 a.m.  Today, the defendants filed a motion in opposition to the plaintiffs’ motion in opposition of the motion to dismiss.  Usually a motion of that type would be called a reply in support of motion to dismiss.

In their opposition to the motion to dismiss the civil action, defendants argued that since the power to regulate immigration is expressly delegated to the national government, it is a national power and not a State power.  “In other words, the FSM States did not close down the national borders because the FSM States are without any proper constitutional authority to do so,” the defendants argued.

Government defendants countered plaintiffs’ argument.  “It is…necessary to note boldly the responsibilities extended to the FSM States by the resolutions of the FSM Congress. The resolution provides the direction for a creation of an FSM COVID-19 Taskforce, which entails the combination of essential offices from both the National and State Government. The task to try and tackle COVID-19 is a complicated issue as it does not affect any one state within the FSM but the Nation as a whole. No one state can claim sovereignty and jurisdiction over their handling of the COVID-19 Pandemic as possible conflicts can result

within the Nation and it of those not a party would not satisfy a complete relief: Such a judgment will invites (sic) others similarly situated to file similar complaint against the defendants,” they argued.

Defendants argued against the governments claims that the Court is excluded from hearing the case because it is a non-justiciable political question. “…the Plaintiffs have asserted the violation of their constitutional rights protected under the FSM Constitution. And the FSM Constitution delegates the power to determine what the law is belongs to the FSM Supreme Court by Article XI Section one of the FSM Constitution. To hold otherwise would mean ‘government's actions could never be questioned or reviewed’,” their opposition motion said.

The defendants countered plaintiffs’ argument.  “…the Plaintiffs’ claim of constitutional violation is misplaced and ignores the good policy that the people of this nation carved into the Constitution when ratified. If this is not a good policy, the most appropriate solution are those processes provided as well under Article XIV of the FSM Constitution. Needless to re-emphasize that Plaintiffs ignores to understand Section 9(6) of Article X of the FSM Constitution, which states.·· ... A civil right may be impaired only to the extent actually required for the preservation of peace, health, or safety:· The civil rights impairment that FSM citizens and residents are witnessing is a temporary one. An absolute necessity for the safety, peace and health of all. It is also critical to understand that the fundamental rights enshrined in the Constitution are not absolute, rather are subject to the laws.”

From their statement on the matter, it appears that defendants are arguing that laws can suspend the Constitution rather than the Constitution governing the establishment of laws. They appear to be arguing that the Supreme Court has no role in determining where a law is constitutional or not.