UPCOMING INITIATIVES FOR FSM CONSTITUTIONAL AMENDMENT

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THE ISLAND TRIBUNE KOLONIA, Pohnpei, Federated States of Micronesia

Guest Viewpoint February 11-24, 1999

By Lam Dang

The author is a lawyer with the FSM National Government. The views expressed here are his personal opinions and should not be construed in any way as being the official view of the National Government or any of its departments.

The history of the FSM is an epic that is too little known. From the convening of the First Congress of Micronesia in 1965, to the beginning of Constitutional Government on May 11, 1979, to the negotiation of the Compact of Free Association and final independence in 1986, crowned by the admission to the United Nations in 1991, the Nation has gone through a long and arduous path. Independence was won at the negotiation table, without a single drop of blood shed. The main result of, and probably the main contribution to that achievement, is the FSM Constitution. Unless one works with it continually, it is often hard to appreciate how finely tuned and balanced an instrument it is; something to be cherished -- although it has its imperfections-- and handled with care.

The voters, throughout the FSM, will soon have a chance to choose to change the Constitution. A trio of initiatives to amend the Constitution will be put on the ballot. In terse, legalistic language, they ask the voters to alter the territory of the FSM and the division of responsibility among the States and the National Government. To be put on the ballot at all, the initiatives had to be signed by at least 10 percent of the registered voters in at least three quarters of the States. That goal has been achieved in Yap, Pohnpei and Kosrae. But what is it that they signed and were they told what the amendments mean?

The first of the proposed amendments changes the territory of the FSM. It says that the marine resources of the Exclusive Economic Zone (a zone extending 200 miles from the shorelines) belong to the States and that the territories of the States extend all the way to the limits of the EEZ. This superficially attractive statement means in effect that the FSM as a nation no longer owns its natural resources nor its seabed. So what does that leave the National Government? The amendment is silent on that. It is silent on the fate of MA (Micronesian Maritime Authority) and the Maritime Wing of the National Police, whose task it is to patrol the EEZ; but if the EEZ does not belong to the Nation as a whole, the National Government no longer has standing to regulate and to patrol it.

The amendment is also silent on what will happen to the treaties entered into by the FSM regarding fisheries and seabed. These agreements will overnight become suspect in the eyes of the world. The responsibility for these agreements will devolve to the States, but since the States of the FSM are not countries, they cannot enter into international agreements. What we will have is a legal nightmare. Surely, if passed, this Constitutional Amendment will rank as one of the strangest contributions to the Law of the Sea in the Second Millennium.

The second proposed amendment changes the minimum States' share of national revenues from at least 50 percent to at least 70 percent. But Congress has already enacted a law which, effective October 1, 1998, gives the States 70 percent of the revenues. Is the Constitutional Amendment necessary? There is also the issue of whether the revenues from natural resources should be split. The amendment does not mention the issue explicitly. Legally, the clause in the Constitution that it purports to change just refers to taxes, not revenues from natural resources. Is this result what the proponents really intended? Is the drastic measure of constitutional amendment required, if the same result can be achieved by statute?

The third proposed amendment deals with the division of revenues from the EEZ. Recently the Supreme Court held that those revenues belong to the Nation as a whole and not to the individual States. The amendment is an attempt to go directly to the people to reverse the Supreme Court decision. This is legitimate, but one nagging question remains. It took the Supreme Court years to consider the issue. Dozens of lawyers on both sides, thousands of pages of documents, entire days of arguments were involved. Here the voters are asked to make an off-the-cuff decision, in a matter of weeks, without benefit of any explanation from the proponents of the initiative. Is that legitimate?

The three amendments are not consistent either. According to amendment 1, the National share of revenues is 0; according to amendment 2, it is 30 percent (subject to interpretation); and according to amendment 3, it is 50 percent. What if they all pass?

Anyway, I am a firm believer in democracy. I believe the people will exercise their collective wisdom and the right result will emerge.

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