POHNPEI LAW REPORTS
VOL. 3
 
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ALTERIO ROSARIO,
Plaintiff

v.

PETER LOHN (as ELECTION CHAIRMAN,
SOKEHS MUNICIPALITY),
Defendant

Pohnpei Civil Action No. 214-87

Appellate Division of the Pohnpei Supreme Court

May 26, 1988

     Action by plaintiff for a declaratory relief against the defendant as Election Chairman of Sokehs Municipality for failure to enter plaintiff's name on the ballot as a candidate for election to the office of Chief Magistrate of Sokehs Municipality. The refusal to place the plaintiff's name on the ballot was based on the Election Chairman's interpretation of Article 7, Section 2, of the Constitution of Sokehs Municipality which makes a person convicted of a felony ineligible to serve as a Chief Magistrate of the Municipality. The plaintiff argued (1) that the defendant's interpretation and application of Article 7, Section 2, of the Constitution of the Sokehs Muncipality was erroneous and violative of the Equal Rights provision of the Constitution of Pohnpei; (2) that the proscription of a felon as contained in Article 7, Section 2, of the Constitution of the Sokehs Municipality applied only to one serving (or to serve) as Chief Magistrate but not to one who wanted to run as a candidate for that office; (3) that Article 7, Section 2, of the Constitution of the Sokehs Municipality was vague and should not be applied retroactively; and (4) that the retroactive application of Article 7, Section 2, of the Constitution of the Sokehs Municipality violated the Ex Post Facto provision of the Constitution of Pohnpei.

     The Appellate Division of the Pohnpei Supreme Court, PER CURIAM, affirming the Election Chairman's interpretation of Article 7, Section 2, of the Constitution of the Sokehs Municipality, held (1) that the defendant correctly interpreted and applied the provisions of Article 7 Section 2 relative to felony

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conviction.; (2) that Article 7, Section 2, did not violate the Equal Protection provisions of the Constitution of Pohnpei; (3) that the constitutional prohibition made no distinction and applied to persons both serving (or to serve) as Chief Magistrate as well as those attempting to run as a candidate for that office; (4) that Article 7, Section 2, was unequivocally clear, and that the prohibition applied retroactively; (5) that retroactive application of Article 7, Section 2, did not violate the Ex Post Facto provisions of the Constitution of Pohnpei.

1.      Constitutional Law - State and Municipal Constitutions - Construction
The provisions of Article 7, Section 2, of the Constitution of the Sokehs Municipality that "a person convicted of a felony is ineligible to serve as Chief Magistrate"of the Municipality does not violate the Equal Rights provisions of the Constitution of Pohnpei.

2.      Constitutional Law - Municipal Constitution - Construction
The constitutional prohibition in Article 7, Section 2, of the Constitution of the Sokehs Municipality, that "a person convicted of a felony is ineligible to serve as Chief Magistrate" of the Municipality, makes no distinction and applies to a person serving ( or to serve) as Chief Magistrate as well as to a person attempting to run as a candidate for that office.

3.      Constitutional Law - Municipal Constitution - Construction
The Constitutional prohibition in Article 7, Section 2, of the Constitution of the Sokehs Municipality, that "a person convicted of a felony is ineligible to serve as Chief Magistrate" of the Municipality, is unequivocally clear, and applies retroactively.

4.      Constitutional Law-State and Municipal Constitutions- Construction
The retroactive application of Article 7, Section 2, of the Constitution of the Sokehs Municipality which prohibits "a person convicted of a felony from serving as Chief Magistrate" of the Municipality, does not violate the Ex Post Facto provisions of the Constitution of Pohnpei.

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5.      Constitutional Law - Constitution - Construction - Aids to Construction
The relative Standing Committee Report of a Constitutional Convention may be resorted to as an aid to the construction of a constitutional provision.

6.      Constitutional Law - Municipal Constitution - Chief Magistrate Qualification
A person convicted of a felony is ineligible to serve as Chief Magistrate of the Sokehs Municipality irrespective of whether he has subsequently received a letter of pardon restoring his civil rights.

7.      Constitutional Law - Municipal Constitution - Constitutional Prohibition - Courts - Enforcement
The constitutional prohibition against an ex-felon to serve as Chief Magistrate as prescribed in the Sokehs Municipality Constitution is an expressed will of the citizens of the Sokehs Municipality, and the Court is to give efficacy to that expressed will.

8.      Constitutional Law - Municipal Constitution - Operation
Where the citizens of the Sokehs Municipality by their own decision make the provision of Article 7, Section 2, which prohibits "a person convicted of a felony from serving as Chief Magistrate" of the Municipality, run retroactively the Court is without legal authority to change that policy decision.

9.      Municipal Governments - Independence
In order to assure the independence, peace and tranquility of the municipalities, their power to prescribe the qualifications of their own officers, including the time when certain qualifications are attached, the tenure of their offices, the manner of their election and the grounds for which such elections may be contested as well as the grounds for removal of such officers, should be exclusive and free from external interference, except so far as plainly provided by

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the Constitution of Pohnpei.

10.      Constitutional Law - State and Municipal Constitutions - Construction
There is no inconsistency between the provision in Article 7, Section 2, of the Constitution of the Sokehs Municipality that "a person convicted of a felony is ineligible to serve as Chief Magistrate" of the Municipality, and the Equal Rights provision of the Pohnpei Constitution.

11.      Constitutional Law - State Constitution - Construction
While the Equal Rights provision of the Constitution of Pohnpei proscribes discrimination against persons on account of gender, race, ancestry, national origin, religion, language, or social status, there is no mention of ex-felons as constitutionally protected persons.

12.      Constitutional Law - Municipal Constitution - Constitutional Prohibition - Civil Rights of Citizens of Pohnpei
The provision of Article 7, Section 2, of the Sokehs Constitution which bans a person convicted of a felony from serving as Chief Magistrate does not abridge the privileges or immunities of citizens of the State of Pohnpei; hence an interpretation and application of the provision so as to bar an ex-felon from standing as a candidate for election as Chief Magistrate does not violate the Equal Protection clause of the Constitution of Pohnpei.

13.      Election
The election process being foreign to Pohnpeians, the social and political systems of Pohnpei require that Pohnpeians look to foreign sources for assistance in formulating their own rules which are suitable to their situation.

14.      Public Office - Election - Eligibility and Qualification - Determination of Time
The question as to the time when the eligibility of a person for election to a public office must exist, whether at the time of

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election, the commencement of the term, or the induction into office is ascertained from the language used in the constitution or statutory provision declaring the qualifications for the office, which time the constitution or statute may expressly or by necessary implication specify.

15.      Public Office - Election - Eligibility and Qualification - Determination of Time
Where the time when the eligibility of a person for election to a public office has been specified by a constitutional provision or statute, there can be no question but that the candidate must possess the necessary qualifications at that time. (63 Am Jur. 2d., Public Officers and Employees S.40.)

16.      Constitutional Law - Municipal Constitution - Construction
The felony conviction as a prohibition against eligibility under. Article 7, Section 2, of the Constitution of the Sokehs Municipality is static and permanent.

17.      Constitutional Law - Constitutions - Operation
It is a generally accepted doctrine that a constitution cannot operate retroactively.

18.      Constitutional Law - Constitutions - Construction
Inasmuch as every fundamental constitution has borrowed some of its elements from the instruments of other nations, foreign decisions interpreting such basic documents when an issue arises for the first time in a jurisdiction with a new constitution interpreting a provision in pari materia with that of some other jurisdiction may be freely referred to, but "it will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which [the Court] has to construe." But where a constitutional provision is adopted from a foreign constitution, it may reasonably be assumed that the Constituent Assembly in

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adopting the provision was aware of its content as delimited by judicial interpretation in the foreign courts and recourse may therefore be had to the authorities of the superior courts of the foreign jurisdiction for a guide to interpretation of the constitutional provision.

19.      Constitutional Law - Constitutional and Statutory Provisions - Public Office - Qualifications of Eligibility
The conditions or qualifications of eligibility to public office as prescribed by constitutional and statutory provisions and the consequent disqualification relate generally to such matters as age, citizenship, suffrage, property ownership and payment of taxes, crime or misconduct, prior removal or suspension from office, failure to file election expenses, and the holding of an incompatible office.

20.      Constitutional Law - Constltutlonal and Statutory Provisions - Public Office - Qualifications of Eligibility
Among other matters which, by express provisions of the law, may disqualify persons from being chosen for or from holding public offices, or particular offices, the appointing officer may be prohibited from appointing persons related to him, or the law may prohibit the holding of a particular office by the same person for a stated number of consecutive years or terms. (63AmJur2d,Public Officers and Employees, Section 44.)

21.      Constitutional Law - Constitution - Ex Post Facto Provision Definition of Ex Post Facto
Ex post facto has been defined as
  (1)      every law that makes an act, done before the passing of the law, and which was innocent when done, criminal, and punishes such action;

  (2)      every law that aggravates a crime, or makes it greater  than it was when committed;

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(3)      every law that changes the punishment, or inflicts a greater punishment than the law annexed to the crime when committed;

(4)      every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender.

            All these, and similar laws, are prohibited by the constitution; but the law may be ex post facto, and still not be amenable to this constitutional inhibition. That is, provided it mollifies, instead of aggravating, the rigor of the criminal law. (Black's Law Dictionary, 4th Ed. 1968);

(5)      an "ex post facto law" includes every law that creates and punishes a criminal offense that, when done before the passing of the law, was innocent, and every law that aggravates a crime or makes it greater than it was when committed, and every law that inflicts a greater punishment than was attached to the crime when committed.

22.      Constitutional Law - Constitution - Ex Post Facto Provision
While ex post facto deals principally with crimes and punishment of crimes, the qualification or disqualification of a candidate for the office of Chief Magistrate of the Sokehs Municipality deals with political privilege.

23.      Constitutional Law - Constitution - Suffrage
Municipalities, including Pohnpei, may deprive a person who has been convicted of a felony of the right of suffrage. (PNI Constitution, Art. 6, Sec. 1)

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24.      Constitutional Law - Constitution - Public Office
Municipalities, including Pohnpei, may deprive a person who has been convicted of a felony of the right to hold public office. (PNI Constitution, Art. 8, Sec 4, Art 9, Sec.3 and Art. 10, Sec 6.)

25.      Constitutional Law - Constitutional Provisions - Purpose
The manifest purpose of the provisions of the Pohnpei Constitution under which a person who has been convicted of a felony may be deprived of the right of suffrage or the right to hold public office is to preserve the purity of elections and to uphold the trustworthiness of public officers of Pohnpei and not to invoke a punishment or penalty. Additional purposes are to be found in Article 7, Section 2, of the Sokehs Municipality Constitution, namely "Pwukoh en Chief Magistrate... me kesempwal, karehda en irairdi ong sooun doadoahk me likilikoh kopworopwor oh sohte ad sowed kihla mwekid sowed ehu me kauwehla soare oh likilik rehn aramas."

26.      Constitutional Law - State and Municipal Constitutions - Right to Vote or to Hold Public Office
The presumption is that one rendered infamous by conviction of a felony or other offense indicative of moral turpitude is unfit to vote (PNI Constitution, Art 6, Sec 1.) and likewise, he is unfit to hold the office of Chief Magistrate (Sokehs Constitution, Art 7, Sec. 2),and the exclusion constitutes the withholding of a privilege, not the denial of a personal right, and the law making such exclusion is not an ex post facto law or a bill of attainder.

Counsel for Appellant:    Ioanis Kanichy
                                          Trial Counselor
                                          Kolonia, Pohnpei

Counsel for Appellee:     Randy M. Boyer, Esq.
                                          State Attorney
                                          Pohnpei State Government
                                          Kolonia, Pohnpei

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CORAM:        Edwel H. Santos, Chief Justice  
Carl Kohler, Associate Justice  
Yoster Carl, Associate Justice  
Judah C. Johnny, Associate Justice

EDWEL H. SANTOS, Chief Justice
     The plaintiff brought this action for declaratory relief against the defendant as Election Chairman of the Sokehs Municipality for the latter's refusal to enter plaintiff's name on the ballot as a candidate for the office of Chief Magistrate of the Sokehs Municipality, the election of which was scheduled for November 10,1987. The defendant's refusal to place the plaintiff's name on the ballot was based on the former's interpretation of Article 7, Section 2, of the Constitution of the Sokehs Municipality which makes a person convicted of a felony ineligible to serve as Chief Magistrate. We affirm the determination of the Election Chairman.

II.  BACKGROUND INFORMATION
     The plaintiff filed on September 30, 1987, his nomination petition with the defendant in his capacity as Election Chairman for the Sokehs 1987 General Election for the seat of Chief Magistrate. The Sokehs General Election was scheduled to be conducted on November 10, 1987, the same day the entire State of Pohnpei

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scheduled her General Election. The defendant, in pursuance of his duties and authority reviewed the qualifications of the plaintiff to serve as Chief Magistrate pursuant to the Constitution of the Sokehs Municipality and found that the plaintiff, Alterino Rosario:

     1) On September 12, 1969, was convicted of a felony, namely, assault and battery with a dangerous weapon, in the Court of the Trust Territory in Ponape; and

     2) Article 7, Section 2, of the Constitution of Sokehs proscribes a person convicted of a felony from serving as Chief magistrate.

     Based upon the above findings, the Election Chairman wrote on October 9, 1987, informing the plaintiff that his name could not be placed on the ballot for the Chief Magistrate election.

     The plaintiff on October 16, 1987, wrote to the Election Chairman requesting the Election Chairman to reconsider his October 9, 1987, decision in the light of the following reasons:

     1) the Sokehs Municipal Constitution came into force on July 10, 1985, whereas the plaintiff's felony conviction took place on September 30,1969, or 18 years earlier; [Actual conviction date was September 12, 1969]. Both Constitutions of the State of

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Pohnpei and of the Federated States of Micronesia proscribe ex post facto law. Thus Article 7, Section 2, of the Constitution of Sokehs became operative on July 10, 1985, and the prohibition against felony conviction operates against one convicted on the said date and thereafter.

     2) the prohibition based on felony conviction as prescribed by Article 7, Section 2, applies only to one serving (or to serve) as Chief Magistrate, but it does not apply to one seeking to be a candidate for that office.

     The defendant Election Chairman of Sokehs sustained his earlier decision, and the plaintiff brought this action for a declaratory judgment from this Court.

     Because of time constraint, the defendant was allowed to appear to defend this cause without filing a written response (Rule 19, PNI App. Rules).

     The constitutional issues raised by this action are of first instance, thus necessitating the action of the Appellate Division of this Court.

     Oral argument was heard on Saturday, November 7, 1987, en banc, and upon consideration of the arguments presented by

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counsel and the evidence adduced, a brief opinion was orally presented denying the relief sought by the plaintiff, thus affirming the determination of the Sokehs Election Chairman. This writing memorializes the opinion of the Court.

III.  ISSUES PRESENTED
     The plaintiff raised the following issues, and the holdings of the Court follow:

     A. Whether defendant's interpretation and application of Article 7, Section 2, (particularly that,"a person convicted of a felony is ineligible to serve as Chief Magistrate",) of the Constitution of the Sokehs Municipality was erroneous and violative of the Equal Rights provisions of the Constitution of Pohnpei.

     [1] Court holding: We hold that the defendant correctly interpreted and applied the provisions of Article 7, Section 2, relative to felony conviction, that the said provisions do not violate the Equal Right provisions of the Constitution of Pohnpei.

     B. Whether the proscription of a felon as contained in Article 7, Section 2, applies only to one serving (or to serve) as Chief Magistrate, but not to one who wants to run as a candidate for the office of Chief Magistrate.

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     [2] Court holding: We hold that constitutional prohibition makes no distinction and applies to both: one serving or (to serve) as Chief Magistrate as well as to one attempting to run as a candidate for that office.

     C. Whether Article 7, Section 2, is vague and should not be applied retroactively.

     [3] Court holding: We hold that Article 7, Section 2, is unequivocally clear, and the prohibition applies retroactively.

     D. Whether retroactive application of Article 7, Section 2, violates the Ex Post Facto provision of the Constitution of Pohnpei.

     [4] Court holding: We hold that retroactive application of Article 7, Section 2, does not violate the Ex Post Facto provisions of the Constitution of Pohnpei.

IV.  REASONING
     A.  Article 7 Section 2 - Interpretation

     Article 7, Section 2, of the Constitution of Sokehs reads as follows:

Sohte me kak wiahla Chief Magistrate lao a mahkier sounpar silihsek (30) ni ahnsou me ah dien doadoahk pahn tepda, wia tohn wehi mehlel en Weipokon en Pohnpei erein sounpar rieisek (20) oh wia tohn wei mehlel

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en Wein Sokehs sounpar eisek-limau (15). Chief Magistrate men pahn kin usuhsda sang pali moron en tohn usuhs mehlel en Wein Sokehs nan usuhs lap ehu en weliepe kan. Aramas emen me dipekihda dip toutou sohte kak en wiahla Chief Magistrate. Chief Magistrate men sohte kak ale ehu pwukoah tohrohr likin ah pwukoah. (Kakehlepen lokaia kapatapatehng)

Translated into English:

No person is eligible to become Chief Magistrate unless he has attained the age of thirty (30) years when his term of office commences, been a citizen of the State of Pohnpei for twenty (20) years and has been a citizen of Sokehs Municipality for fifteen (15) years. Chief Magistrate will be elected by majority of the registered voters of Sokehs Municipality in a general election called for the election of (Sokehs) representatives. A person convicted of a felony is ineligible to serve as Chief Magistrate. A Chief Magistrate may not accept any other employment (function) other than that of Chief Magistrate. (Emphasis supplied.)

     The plaintiff contends that the Election Chairman's interpretation of Article 7, Section 2, which deprived plaintiff's right to have his name placed on the ballot for the Chief Magistrate election of 1987 was erroneous and violated the Equal Rights provisions enshrined in the Constitution of Pohnpei. We do not agree with plaintiff's contention. In support of our holding, a comparative analysis of the similar constitutional provisions prescribing eligibility of elected or appointed officers found in the constitutions of the Federated States of Micronesia, State of Pohnpei and the Munici-

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pality of Sokehs is in order.

1.  Constitution of the Federated States of Micronesia.
The Constitution of the Federated States of Micronesia prescribes the qualifications of members of Congress as follows:

A person is ineligible to be a member of Congress unless he is at least 30 years of age on the day of election and has been a citizen of the Federated States of Micronesia for at least 15 years, and a resident of the state from which he is elected for at least 5 years. A person convicted of a felony by a state or national government court is ineligible to be a member of Congress. The Congress may modify this provision or prescribe additional qualifications; knowledge of the English language may not be a qualification. FSM Const, Art. IX, Sec. 9. (Emphasis added).

Under the Executive article we note the following qualifications for
the President:

A person is ineligible to become President unless he is a member of Congress for a 4-year term, a citizen of the Federated States of Micronesia by birth, and a resident of the Federated States of Micronesia for at least 15 years. FSM Const., Art. X, Sec. 4.

It should be noted that the qualifications prescribed for members of Congress also apply to the President and Vice-President as they must be members of Congress for a 4-year term before they can be elected President and Vice-President, respectively.

     Qualifications of the Justices of the Supreme Court of the Federated States of Micronesia are prescribed pursuant to Art. XI,

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Sec. 5, FSM Constitution, and are enumerated as follows:

A person nominated to the position of Chief Justice or Associate Justice of the Supreme Court shall:

             (1)      be at least thirty years of age at the time of nomination; and

                                     (2)      be a graduate from an accredited law school and be admitted to practice law in any jurisdiction, or be a person of equivalent and extraordinary legal ability obtained through at least five years of experience practicing law.

(P.L. 1-31 Sec. 7; 4 FSMC 107).

     Relevant to the issue before us are the qualifications of a person to become a member of Congress, hence to become President and Vice-President of the Federated States of Micronesia. More specifically the prohibition: "A person convicted of a felony by a state or national government court is ineligible to be a member of Congress." To understand more fully what this constitutional provision entails, we refer to the journal of the Micronesian Constitutional Convention. We find the three paragraphs quoted below to be explicit as to expound the true intent of the framers respecting the prohibition against ex-felons.

"This section also prohibits any person convicted of a felony by any court in Micronesia from election or appointment to the Congress, but allows room for the Congress by law to change this absolute prohibition. The Committee considered first the type of provision

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normally found in American state constitutions which prohibits felons from becoming members of Congress, but also allows them to become legislators if they receive an executive pardon. The Committee was wary of the executive pardon power, feeling that it might be abused by the executive branch for political reasons.

The Committee therefore decided to eliminate the normal pardon power language from this section prohibiting felons from becoming legislators. At the same time, the Committee did not wish to forever prohibit a man or woman from becoming a legislator because he or she had made a minor mistake early in life, if that person had later become an honest and law-abiding citizen. Some felonies are more serious than others. If a person has committed a felony which is not considered by the community to be highly offensive, and the person has long since become a law-abiding and respected member of the community, perhaps he or she should be eligible to become a member of the Congress.

Because it is not now known what crimes will be felonies under the new government, and because community values and morals may change from time to time, the Committee felt that it should be left to the Congress itself in the future to define circumstances under which a convicted felon might be eligible to become a member of Congress. The Committee has therefore decided to make convicted felons ineligible for the time being, but to allow flexibility for Congress by law to provide future exceptions to such ineligibility."

SCREP. No. 36 FSM Con. Con. Journal, Vol.II, at p.845.

     The drafters of our National Constitution intended that "if a person is convicted of a felony, in any court in Micronesia, he is ineligible to become a member of Congress,or to become Presi-

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dent or Vice-President. "Whether a convicted felon had subsequently received an executive pardon or whether that conviction took place early in life, a phrase which we interpret to include the period of one's life even prior to the effective date of the constitution, is immaterial. He is forever ineligible to become a member of Congress or to become President or Vice-President once a felony conviction is attached to his name. That intention was ratified by the people of our nation. The duty of the Court is to give efficacy to that Constitutional intent.

     Under the Constitution of the Federated States of Micronesia, as we note above, a person who has been convicted of a felony, regardless of the grade of the felony, and whether or not that person has subsequently been pardoned by the chief executive, is ineligible to become a member of Congress, hence ineligible to become President or Vice-President.

     This policy decision provides the first link of a chain which hangs down through the State to the local level of our Government structure, as will be seen below.

2.  The Constitution of the State of Pohnpei
A state shall have a democratic constitution, Art. VII, Section 2,

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FSM Constitution. In consonance with this constitutional call and acting under the authority of State Law 2L-131-82 (The Act Creating Constitutional Convention in and for Pohnpei), the Pohnpei Constitution was drafted by the delegates elected for that purpose, and the draft constitution was voted upon and ratified by the people of the State of Pohnpei. It came into force on November 8, 1984. Article 8, Section 4, prescribes the qualifications of members of the Legislature as follows:

No person is eligible to serve as a member of the Legislature unless he is at least twenty-five years of age at the time his term of office commences; he has been a citizen of a local government [state] of Pohnpei for at least twenty five years at the time his term of office commences; and he has been a citizen of the local government that he represents for at least three years. A person convicted of a felony is ineligible to serve as a member of the Legislature unless he has received a pardon restoring his civil rights at least sixty days before he is elected. The Legislature shall be the sole judge of the qualifications of its members. (Emphasis added.)

     The qualifications of the Governor and the Lieutenant Governor are as follows:

   (1)    No person is eligible to become Governor or Lieutenant Governor unless he is a citizen of Pohnpei by  birth; he is at least thirty-five years of age;  and he has never been convicted of a felony.

   (2)    No person may serve more than two consecutive  terms as Governor, except that a person who serves

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as Governor less than two years during a term to which another person was first elected, may serve two full consecutive terms thereafter. (Emphasis added.)

Pohnpei Constitution, Art. 9, Sec. 3.

     The qualifications of justices of the Pohnpei Supreme Court are prescribed by the Constitution as well as by the Pohnpei Judiciary Act (S.L. No. 2L-160-82), and these qualifications are:

No person is eligible to serve as a justice of the Pohnpei Supreme Court unless he is at least thirty-five years of age. A person convicted of a felony is ineligible to serve. ( Emphasis added.)

Pohnpei Constitution, Art. 10, Sec. 6.

     Statutory qualifications include:

             (1)      be at least 35 years of age at the time of nomination;

                         (2)      be a graduate from an accredited law school and be admitted to practice law in any jurisdiction, or be a person of demonstrated legal ability obtained through at least five years of experience practicing law or as full-time judge of the Trust Territory District Court; and,

                          (3)     have been a citizen and resident of (Pohnpei State) for at least 10 years and 5 years immediately preceding his appointment.

S.L. No. 2L-160-82, Section 4.

Note the minor variance with respect to the age requirement. The Constitutional qualification states "at least thirty-five.years to serve as a justice" while the Statute calls for at least 35 years of age "at

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the time of nomination." The Constitutional provision prevails over that of the statute. Pohnpei Constitution, Art. 2.

     The qualification restriction with respect to "felony conviction" bans one from becoming a member of the Legislature, unless he has received a pardon restoring his civil rights at least sixty days before he is elected. The normal pardon language is eliminated from the Executive and the Judiciary articles of the Pohnpei Constitution as is eliminated from the legislative provision in the FSM Constitution. One may ponder whether this exclusion means that "once a person is convicted of a felony he is ineligible to serve as Governor, Lieutenant-Governor, or a Justice of the Pohnpei Supreme Court," regardless of whether that person had subsequently received an executive pardon for his felony conviction. We resort to the Pohnpei Convention record for aid in determining the true meaning of this constitutional provision.

     [5] Standing Committee Report No. 56, relating to the Executive Branch Article, (filed by the Committee on State Functions and Structure) states in part the following:

Sapwelimomwi Koamidi kamehlele me aramas emen me dipekidahr dihp toutou ieu sohte pahn kak wia Kepina de Keriauhn Kepina, mehndahte ma a aledier mahk (pardon)

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mwurin eh dipadahr. Aramas emen me dipekidahr dihp toutou ieu pahn kohkohlahte sohte mweiong en wia Kepina de Keriau en Kepina.

The English version of the same report translatesthis portion of the report as follows:

Your committee believes that a person who has once been convicted of a felony is not qualified to hold the high office of Governor or Lieutenant-Governor, irrespective of his subsequently being pardoned. A person so convicted will thereafter remain ineligible for those offices.

Standing Committee Report No. 56 Re: Executive Article, p. 1 (Emphasis supplied).

[5] In Standing Committee Report No. 75 Re: Judiciary, we note the following explanation with respect to the qualifications of justices of the Pohnpei Supreme Court:

Iretikitik 6, koasoanehdi iren kak riau me pahn kareieng aramas emen en kak wia sounkopwung en Mwoalen Kopwung Ileile:

               (1)      sounpere lelehr sounpar 35;
               (2)      sohte dipekihda dihp toutou ieu .

Met wewehki mehndahte ma aramas emen dipekihda dihp toutou ieu oh ih alehdi mahkpe (pardon) met sohtehte pahn mweidohng en kakala wia sounkopwung. Ire wet sohte irehdi Pwihn en Kou Kosonned ren pil kak kapataieng, ni kosonned, ire kak teikan me pahn konehng aramas en Wein Pohnpei.

Standing Committee Report No. 75 (Judiciary), Pohnpei Con. Con., at p. 3.

     The above paragraphs are translated into the English language as follows:

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Section 6 prescribes two qualifications required of the justices of the Pohnpei Supreme Court:

               (1)    he [sic] must have attained the age of 35;
               (2)    he [sic] never been convicted of a felony.

Regardless of whether one has received an executive pardon for his felony conviction, that executive pardon still does not make him eligible to serve as a justice.

This provision does not limit the authority of the Legislature to prescribe by statute additional qualifications as may be necessary for the citizens of Pohnpei.

SCREP No. 75 (Judiciary), p. 3, Pohnpei Con. Con. Record.

     It is therefore clear from the above quoted paragraphs that under the Constitution of the State of Pohnpei:

a person convicted of a felony can not become a member of the Pohnpei Legislature, unless he has received an executive pardon at least 60 days before he is elected; and

a person convicted of a felony can not become the Governor Lieutenant Governor, or Justice of the Pohnpei Supreme Court, regardless of whether he has received an executive pardon which restores to him his civil rights. He is forever banned.

It could be argued as unjustified for a people whose Christian principles seem to dominate their daily affairs and whose custom of apology and pardon is so highly respected, to adopt such a policy in their Constitution which in essence has the effect of "not accepting" one's apology sincerely tendered. Unjustified as it may seem, our duty is to declare what the law is and to ensure that it is

[3 PN.L.R. 148]

upheld. We proceed therefore to examine the Sokehs Constitution.

3.   The Constitution of the Municipality of Sokehs.
Sohte me pahn kak iang wia candidate ong nan usuhs en weliepe de idihdda ong nan Pwihn en Kauada Kosonned lao a pahn mahkier sounpar rieisek-limau (25) ni ahnsou me ah then doadoahk pahn tepda, e wiaier tohn wehi manaman en Pohnpei sounpar rieisek (20), wia tohn Wein Sokehs sounpar limau (5) oh wiahier tohn lopidi me a pahn usuhs loale sohte mwotomwotasang sounpar ehu (1). Aramas emen me dipekihda dihp toutou sohte kak towehda Pwihn en Kauwada Kosonned lao a pahn alehdi mahk me pahn kapwurehiong ah pwuhng rahn weneisek (60) mwohn usuhs. Pwihn en Kauwada Kosonned kelehpw me ahneki manaman en koasoanehdi oh wia sown tenek ong kak en towe kan.

Iralaud 6, Iretikitik 3 en Sokehs Constitution. Translated into English,

No person is eligible to be a candidate for the office of Councilman unless he is at least twenty-five (25) years of age at the time his term of office commences, he has been a citizen of the State of Pohnpei for at least twenty (20) years, he has been a citizen of Sokehs Municipality for five (5) years, and a resident of the section he intends to represent for not less than one (1) year. A person convicted of a felony is ineligible to serve as a member of the Council unless he has received a pardon restoring his civil rights at least sixty (60) days before he is elected. The Council shall be the sole judge of the qualifications of its members.

[3 PN.L.R. 149]

Sokehs Constitution , Art. 6, Sec. 3.
Sohte me kak wiahla Chief Magistrate lao a mahkier sounpar silihsek (30) ni ahnsou me ah then doadoahk pahn tepda, wia tohn wehi mehlel en Weipokon en Pohnpei erein sounpar rieisek (20) oh wia tohn wehi mehlel en Wein Sokehs sounpar eisek-limau.(15). Chief Magistrate men pahn kin usuhsda sang pall moron en tohn usuhs mehlel en Wein Sokehs nan usuhs lap ehu en weliepe kan. Aramas emen me dipekihda dihp toutou sohte kak en wiahla Chief Magistrate. Chief Magistrate men sohte kak ale ehu pwukoah torohr likin ah pwukoah.

Sokehs Constitution, Iralaud 7, Iretikitik 2. (Emphasis supplied).
No person is eligible to become Chief Magistrate unless he has attained the age of thirty (30) when his term of office begins, been a citizen of the State of Pohnpei for twenty (20) years and has been a citizen of Sokehs Municipality for fifteen (15) years. Chief Magistrate will be elected by majority of the registered voters of Sokehs Municipality in a general election called for the election of (Sokehs) representatives. A person convicted of a felony is ineligible to serve as Chief Magistrate. A Chief Magistrate may not accept any other employment (function) other than that of Chief Magistrate.

Sokehs Constitution, Art. 7 Sec. 2 (Emphasis supplied).
Sohte aramas men kak en wia Soun Kopwung lao a mahkier sounpar silihsek-limau (35) oh wiahier towe mehlel en Wein Sokehs sohte mwotomwotasang sounpar eisek (10). Aramas emen me dipekihda dihp toutou sohte kak en wiahla Soun Kopwung.

Sokehs Constitution, Iralaud 8, Iretikitik 3.
No person is eligible to become Judge unless he has attained the age of thirty-five (35) years and has been

[3 PN.L.R. 150]

a citizen of Sokehs Municipality not less than ten (10) years. A person convicted of a felony is ineligible to serve as judge.

Sokehs Constitution, Art. 8, Sec. 3.

[5] What is of concern to us in the instant case is the statement: A person convicted of a felony is ineligible to serve as Chief Magistrate." What is the scope and meaning of this statement, as employed in the Sokehs Constitution. The Sokehs Constitutional Convention record relating to the Article on Executive states in part at page 15:

" . . Pwukoah en Chief Magistrate wia pwukoah kesempwal, karehda en irairdi ong soun doadoahk me likilik oh kopworopwor oh sohte ad suwed kihla mwekid suwed ehu me kauwehla snare oh likilik rehn aramas. Aramas emen me dipekidahr dihp toutou ehu sohte kak wia Chief Magistrate, mehndahte ma epil aleier kisin likou en mahk me kapwureiong ih a pwuhng kan."

". . . The Office of the Chief Magistrate is a respectable office warranting a person who possesses the character that can be trusted and is reliable; a person with a reputable character that the people can trust. A person convicted of a felony is ineligible to serve as Chief Magistrate, irrespective of whether he has subsequently received a letter of pardon restoring his civil rights."

[6] By means of their Constitution, the peoples of Sokehs have placed more emphasis on the prohibition against persons con-

[3 PN.L.R. 151]

victed of a felony to serve as Chief Magistrate. The statement found in the Convention record, "A person convicted of a felony is ineligible to serve as Chief Magistrate, irrespective of whether he has subsequently received a letter of pardon restoring his civil rights" suggests strongly that the will of the peoples of Sokehs is that they do not want to have someone already convicted of a felony to serve as their Chief Magistrate. A subsequent pardon which restores to that someone his civil rights does not erase the fact from the minds of the peoples that that someone's reputation has been tainted with felony conviction. This is an attitude common to the peoples of our Micronesian communities, and the purpose for which it serves is to preserve the purity and respectability of the office of the Chief Magistrate.

     It should be remembered, however, that the plaintiff in this action did not raise any issue regarding the effect of an executive pardon. No record was made known to the Court that the plaintiff had been pardoned in the past.

     The plaintiff's basic argument is that a person convicted of a felony prior to the effective date of the Sokehs Constitution is

[3 PN.L.R. 152]

eligible to run as a candidate for the office of Chief Magistrate: In view of the foregoing analysis, coupled with the express will of the people of Sokehs as reflected in their Constitutional Convention record, we find it difficult to honor plaintiff's first argument.

[7] The constitutional prohibition against an ex-felon to serve as Chief Magistrate as prescribed in the Sokehs Constitution is an expressed will of the citizens of Sokehs Municipality. The duty of the Court is to give efficacy to that expressed will. Accordingly, the Election Chairman's refusal to place the plaintiff's name on the ballot was proper.

[8-10] We next address the question embodied in the first issue; to wit, whether the classification of ex-felons violates the Equal Rights provision of the Pohnpei Constitution. The plaintiff raised this question in his argument and referred the Court to Paulus v. State of Pohnpei, 2 P.S.Ct.R 481, as the authority supporting his contention. The facts in Paulus are different, and Paulus is distinguished here. In fact it was held in Paulus that classification against one convicted of a felony is not suspect within the classifications permitted under Section 3, Article 4, of the Constitution of

[3 PN.L.R. 153]

Pohnpei. (Paulus, p. 8). The plaintiff may have misread the portion of Paulus in which the Court discussed the rule developed in the United States relating to the prospective effect of decisions of courts. The Court said at pages 18-19,"... the accepted rule today is that in appropriate cases the Court may in the interest of justice make the rule prospective." (Citation omitted). In the instant case the decision to make the provision in Article 7, Section 2, in issue here run retroactively was made by the citizens of Sokehs. This Court is without legal authority to change that policy decision. It is obviously essential to the independence of the municipalities, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers, including the time when certain qualifications are attached, the tenure of their offices, the manner of their election, and the grounds for which such elections may be contested as well as the grounds for removal of such officers, should be exclusive and free from external interference, except so far as plainly provided by the Constitution of Pohnpei. The local governments may establish their own constitutions not inconsistent with the Constitution or the laws of Pohnpei. Pohnpei Consti-

[3 PN.L.R. 154]

tution, Art. 14, Sec. 2. We find no inconsistency between the provision in question in Article 7, Section 2 of the Sokehs Constitution and the Equal Rights provision of the Pohnpei Constitution. [11-12j The Equal Rights provision of the Constitution of Pohnpei proscribes discrimination against persons on account of gender, race, ancestry, national origin, religion, language, or social status, Art. 4, Sec. 3. There is no mention of being an ex-felon as a constitutionally protected trait. The provision of the Sokehs Constitution which bans a person convicted of a felony from serving as Chief Magistrate does not abridge the privileges or immunities of citizens of the State of Pohnpei. Hence, the Election Chairman's interpretation and application of Article 7, Section 2, did not violate the Equal Protection clause of the Constitution of Pohnpei.

     B. Whether the restriction against one convicted of a felony as contained in Article 7, Section 2, applies only to a person who is to serve as Chief Magistrate and not to one who is running as candidate.

     The plaintiff's contention was that under the provision of the Sokehs Constitution at issue here, a person who is convicted of a

[3 PN.L.R. 155]

felony could file his candidacy and run in a Chief Magistrate's election, and if he wins such election the next course of things to take place is for him to not accept the position. This is too absurd a contention, let alone the loss of time, effort and money that may be involved in the process, including the running of a by-election.

[13] The election process is something quite foreign to us, and the adoption of this process into our social and political systems invite us to look to the foreign sources for assistance in formulating our own rules, most suitable to our situation.

[14] It has been said that "to hold a public office, one must be eligible and possess the qualifications prescribed by law, and an election or appointment to office of a person who is ineligible or unqualified gives him no right to hold the office." 63 Am Jur 2d Public Officers and Employees, S. 38 (Eligibility and Qualifications). The Courts are frequently called upon to determine the question as to when the conditions of eligibility to office must exist, whether at the time of election, the commencement of the term, or the induction into office. In ascertaining this matter, the language used in the constitutional or statutory provision declaring the

[3 PN.L.R. 156]

qualifications is to be considered. It may expressly or by necessary implication specify the time when the required eligibility must exist. Where such is the case, there can be no question but that the candidate must possess the necessary qualifications at that time. (63 Am Jur 2d., Public Officers and Employees, S. 40 (time as of which eligibility is to be determined).

[16] The conditions of eligibility attached to the office of Chief Magistrate of the Sokehs Municipality pursuant to Article 7, Section 2, indicate clearly that some of the conditions are attached at the commencement of the office, others at the time of the election, still others during the term of the office as follows:

           (1)    at time of commencement of office:

i.      30 years of age;
ii.     citizen of Pohnpei for 20 years;
iii.    citizen of Sokehs Municipality for 15 years;

(2)    at time of election.

i.      be elected by majority of eligible voters in a general election;
ii.      not convicted of a felony;

            (3)    during term of office:  

shall not accept other employment

[3 PN.L.R. 157]

The felony conviction as a prohibition against eligibility under Article 7, Sec. 2, is static and permanent. It should be emphasized that even an executive pardon does not operate to remove this prohibition.

     We hold therefore that the prohibition against felony conviction under Article 7, Sec. 2, applies also to a person running as a candidate to the office of Chief Magistrate.

     C. Whether Article 7, Section 2, particularly the provision: A person convicted of a felony is ineligible to serve as Chief Magistrate is vague and should not be applied retroactively.

[17] It is a generally accepted doctrine that a constitution cannot operate retrospectively. However, as it is well known, there is no "original" or "unique" constitution.

[18] Every fundamental constitution has borrowed some of its elements from the instruments of other nations. What effect should be given to foreign decisions interpreting their own basic documents when an issue arises for the first time in a jurisdiction with a new constitution interpreting a provision in pari materia with that of some other jurisdiction? The Indian Supreme Court, while

[3 PN.L.R. 158]

referring freely to decisions of other countries, including particularly the United States, has said, "it will be improper to import into the question of construction doctrines of democratic theory and practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which we have to construe." Babulal Parate v. State of Bombay. A.I. R. 1960 S.C. 51 (quoted in Harry E. Groves' Comparative Constitutional Law Cases and Materials, Oceana Publications Inc. Dobbs Ferry, New York, 1963 at p. 3 ). But the Indian Supreme Court has also said, "Article 14 of the Constitution of India is adopted from the last clause of S. 1 of the 14th Amendment of the Constitution of the United States of America, and it may reasonably be assumed that our Constituent Assembly when it enshrined the guarantee of equal protection of the laws in our Constitution, was aware of its content delimited by judicial interpretation in the United States of America. In considering the authorities of the superior courts in the United States, we would not therefore be incorporating principles foreign to our Constitution, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence

[3 PN.L.R. 159]

developed by a society whose approach to similar problems on account of historical or other reasons differs from ours." Ibid, p. 34, see also Paulus v. State of Pohnpei, 2 P.S.Ct.R 481. In dealing with constitutional issues arising in our local constitutions, this Court finds the view expressed by the Indian Supreme Court quite relevant.
 
     The people of the Sokehs Municipality drafted their Constitution after the Constitution of Pohnpei had been ratified. Some of the delegates to the Pohnpei Constitutional Convention were delegates also to the Sokehs Constitutional Convention. It is without question that those delegates when they employed the provision "A person convicted of a felony is ineligible to serve as Chief Magistrate" were aware of its meaning and purpose as employed in the Pohnpei Constitution. The explanation found in the Constitutional Convention record, to wit, "Pwukoah en Chief Magistrate wia pwukoah kesempwal, karehda en irairdi ong soun doadoahk me likilik oh kopworopwor oh sohte ad suwedkihla mwekid suwed ehu me kawehla snare oh likilik rehn aramas. Aramas emen me dipekidahr dihp toutou ehu sohte kak wia Chief

[3 PN.L.R. 160]

Magistrate, mehndahte ma a pil aleier kisin likou en mahk me kapwureiong ih ah pwuhng kan." leaves no doubt in the mind of the Court that the prohibition in question attaches to a person once he is adjudged guilty of a felony. No issue was raised as to whether the felony conviction should be had at certain specified court. Finally, the phrase "mendahte ma a pil aleier kisin likou en mahk me kapwureiong ih ah pwuhng kan" found in the Convention record facilitates our holding that this prohibition operates against a person who has been convicted of a felony in any court at any time even before the effective date of the Sokehs Constitution.

[19] The conditions or qualifications of eligibility to public office as prescribed by constitutional and statutory provisions and the consequent disqualification relate generally to such matters as age, citizenship, suffrage, property ownership and payment of taxes, crime or misconduct, prior removal or suspension from office, failure to file election expenses, and the holding of an incompatible office.

[20] There are other matters which, by express provisions of the law, may disqualify persons from being chosen for or from holding

[3 PN.L.R. 161]

public offices, or particular offices. Thus they may prohibit the appointing officer from appointing persons related to him, or prohibit the holding of a particular office by the same person for a stated number of consecutive years or terms. 63 Am Jur 2d Public Officers and Employees, Sec. 44 (Particular Qualifications or Disqualifications). Hence, the plaintiff's third contention falls to the ground.

     D. Whether retroactive application of Article 7, Section 2, violates the Ex Post Facto provision of the Constitution of Pohnpei.

[21] Ex post facto has been defined as:

 (1)      Every law that makes an act, done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

 (2)      Every law that aggravates a crime, or makes it greater than  it was when committed.

 (3)      Every law that changes the punishment, or inflicts a greater punishment than the law annexed to the crime when committed.

 (4)      Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender; all these, and similar laws, are prohibited by the constitution; but the law may be ex post facto, and still not be amenable to this constitutional inhibition: that is, provided it molliffies, instead of aggravating, the rigor of the ciminal law.

[3 PN.L.R. 162]

Black's Law Dictionary, 4th Ed. 1968.

Another interesting definition:
     An "ex post facto law" includes every law that creates and punishes a criminal offense, when done before the passing of the law, was innocent, and every law that aggravates a crime or makes it greater than it was when committed, and every law that inflicts a greater punishment than was attached to the crime when committed. State v. Pleason 218 N.W. 154, 155.

     Ex post facto deals principally with crimes and punishment of crimes. The issue before us deals with political privilege. Municipalities, including Pohnpei, may deprive a person who has been convicted of a felony of the right of suffrage, Pohnpei (PNI) Constitution, Art. 6, Sec. 1; Lassiter v. Northampton County Board of Elections, 360 U.S. 45, 3 L. Ed. 2d. 1072, 70 S. Ct. 985; Davis v. Beason, 133 U.S. 333, 33 L. Ed. 2d 637, 10 S. Ct. 299; and the right to hold public office, PNI Constitution, Art. 8, Sec. 4, Art. 9, Sec. 3, and Art. 10, Sec. 6. The manifest purpose of such restriction is to preserve the purity of elections and to uphold the trustworthiness of our public officers. It is not to invoke a punishment or

[3 PN.L.R. 163]

penalty. As noted in Article 7, Section 2, Sokehs Constitution, certain other purposes are added, "Pwukoh en Chief Magistrate. . . me kesempwal, karehda en irairdi ong soun doadoahk me likilik oh kopworopwor oh sohte ad suwed kibla mwekid suwed ehu me kauwehla snare oh likilik rehn aramas." The presumption is that one rendered infamous by conviction of a felony or other offense indicative of moral turpitude is unfit to vote, Art. 6, Sec 1, PNI Const., and likewise, he is unfit to hold the office of Chief Magistrate, Art. 7, Sec. 2, Sokehs Constitution. The exclusion constitutes the withholding of a privilege, not the denial of a personal right, and it is not an ex post facto law or a bill of attainder. Washington v. State, 75 Ala. 582; State ex rel. Atty. Gen. v. Irby, 190 Ark. 786, 81 S.W. 2d. 419; 25 Am Jur 2d., Elections, S. 94 (Commission or Conviction of Crime).

     The foregoing discussion of the law disposes of the issues before us. Plaintiff's contention 4 must fail.

     Ordered Affirmed.
                                                                                                                                                                                                                                                                                                           
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