MARSHALL ISLANDS TERMINATES

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SERVICE OF ANOTHER CHIEF JUSTICE

By David M. Strauss Marshall Islands Bar Association

The Marshall Islands lost its third Chief Justice in the last four years on June 1 when Minister of Justice Hemos Jack notified Marshall Islands High Court Chief Justice Daniel N. Cadra that the RMI Cabinet was terminating his services five months short of his term. Cadra was hired as an Associate Justice in 1995 and became Chief Justice in 1996 following the resignation of High Court Chief Justice Witten T. Philippo, which followed the resignation of Supreme Court Chief Justice Clinton R. Ashford, who resigned citing continued interference with the judiciary by the executive and legislative branches of the Marshall Islands government.

Cadra had earlier informed the Cabinet that he would be leaving the Marshall Islands at the expiration of his contract in November, 1999, to take a judicial position in Palau. However, the Cabinet "accepted" Cadra’s "resignation effective June 18." The Cabinet indicated that they would pay Cadra the amount remaining on his contract. The Marshall Islands Constitution allows the removal of a judge only by a resolution of at least 2/3 of the Nitijela and only on certain specific grounds.

Judge Cadra, who was lauded by the local bar for his judicial intellect and temperament, handled numerous controversial cases during his tenure:

In 1995, Cadra denied the election challenges brought by three majority party members, including Evelyn Konou, the sister-in-law of President Imata Kabua, who had lost their Nitijela seats to opposition members.

In 1996, Cadra dismissed a land case filed by the Konou family, who failed to comply with numerous court orders or prosecute their case for several years, during which time the sole expert witness for the defendants died. This dismissal was unanimously upheld on appeal to the Supreme Court. Judge Cadra and the Supreme Court Judges were publicly and severely criticized by the Konou and Kabua families in the Marshall Islands Journal for their respective decisions.

President Kabua’s sister-in-law, Rosalie Konou, as head of the RMI Legal Aid Office, refused to turn over certain documents to the Auditor General who was trying to conduct an audit on her office. Judge Cadra ordered Konou to comply with the subpoenas issued by the Auditor General. This decision was also unanimously upheld on appeal to he Supreme Court.

In 1998, Cadra ordered the Bank of the Marshall Islands to turn over bank records of RMI Ambassador to China, Carl Heine, and his wife to the Nitijela’s Public Accounts Committee which was investigating alleged fraud and corruption in the Marshall Islands passport sales program. The Judge was again publicly and severely criticized by the Ambassador in a letter to the editor of the Marshall Islands Journal.

In late 1998, Cadra ruled that President Kabua and his Cabinet Ministers violated the Constitution and their oaths of office by boycotting the Nitijela sessions in order to avoid a vote on a motion of no confidence. He also declined to determine whether such vote should be by secret ballot or roll-call, stating that this was an internal matter involving procedure for the Nitijela to determine and it would be a violation of the separation of powers doctrine for the court to interfere. The Cabinet, through Special Counsel to the Presidential and Cabinet David Lowe, provided a press release to the Marshall Islands Journal for publication and to the government controlled radio station for broadcast in which they launched a scathing attack on Judge Cadra’s ruling. The ruling is currently on appeal to the Supreme Court.

Also in late 1998, Cadra dismissed, for lack of personal jurisdiction, 23 of 28 tobacco-related defendants from a lawsuit filed in the Marshall Islands by the RMI Government and their Texas-based attorneys. Earlier the government amended numerous RMI laws in order to obtain jurisdiction over these companies. A motion to dismiss the remaining five defendants was scheduled to be ruled on by Judge Cadra on July 29.

In 1999, in finding probable cause at a preliminary hearing on a criminal case involving the RMI passport sales program against the former Chief of Immigration, Una Watak, and then accepting a plea bargain agreement disposing of the matter, Cadra remarked that it seemed unfair for the government to single out one defendant for prosecution when there appeared to be evidence of illegal activity by several other members of the government involved in the passport program.

The Marshall Islands has an unfortunate history of interference with the judiciary:

In the 1980s, Supreme Court Chief Justice Harold Burnett’s contract was not renewed after he reversed a High Court judgment that favored then-President Amata Kabua and currently President Imata Kabua in a dispute with their cousin Iroij (Paramount Chief) Kabua Kabua over the ownership of certain northern lands, including Kwajalein.

In 1989, High Court Chief Justice A. D. Tennekone resigned citing the Cabinet’s attempt to undermine the independence of the court system as a threat to the foundation of the country’s democracy. Tennekone stated "I have noticed that people acting through ignorance, or insatiable greed for material wealth or unbridled lust for power, lose sight of justice and fairness." At the time of his resignation, Tennekone warned judges and attorneys that judges must be prepared to overcome attempts to jeopardize their independence.

In 1990, prominent Tasmanian attorney Bruce Piggott resigned as Chairman of the nuclear Claims Tribunal, citing interference from the Nitijela (parliament) in the form of an investigation of the Tribunal commenced by a Senator from one of the nuclear-affected atolls which halted the work of the Tribunal. Piggott also sharply criticized the Nitijela for what he said were repeated attempts to amend the claims tribunal law to fit the whims of elected leaders.

In 1990, the Nitijela enacted a law that, in one paragraph, effectively ordered the High Court to dismiss the pending case filed by Kabua Kabua against Amata and Imata Kabua, concerning the ownership of the northern lands. In 1991, High Court Chief Justice Philip Bird ruled that "to the extent that that section can be said to direct this Court to enter an order of dismissal, that section invades the province of the judiciary, and to that extent is unconstitutional." The Chief Justice was then impeached by the Nitijela and subsequently resigned.

In 1995, High Court Chief Justice Witten T. Philippo, the only Marshallese to hold the position of High Court Judge, entered an order in a Probate matter which involved allegations of fraud against the administrator of the estate and his attorney, Rasalie Konou. On an extraordinary writ, Supreme Court Chief Justice and prominent Honolulu attorney Clinton R. Ashford upheld the ruling of Judge Philippo. The Cabinet then notified Judge Ashford that he had no power to act on the petition and disqualified him from re-hearing the petition. The Cabinet then informed Judge Ashford that a resolution seeking his resignation would be introduced in the Nitijela. Citing "intolerable interference with the judiciary in a pending case," Judge Ashford resigned in February, 1996. The following month, Judge Philippo resigned.

The Marshall Islands government’s interference with the judiciary has been noted for the last several years in the U.S. Department of State Marshall Islands Country Report on Human Rights Practices.

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