(& <i A A A PALAU A A Challenge to the Rule of Law in Micronesia M Report of a Mission by William J. Butler, Esq. The Honorable George C. Edwards The Honourable Michael D. Kirby, C.M.G A w The American Association for i;»jj • j1 U. The International Commission of Jurists, New York rJ fl!ll A The International Commission of Jurists, Geneva a r,f. .1*1 J, A j . A Members of the Board of Directors Eli Whitney Debevoise, Chairman Emeritus George N. Lindsay, Chairman of the Board William J. Butler, President P. Nicholas Kourides, Treasurer Harvey]. Goldschmid, Secretary Robert P. Bass, Jr. Matthew Nimetz Donald T. Fox Stephen A. Oxman Conrad K. Harper William J. Schrenk, Jr. Peter S. Heller Jerome J. Shestack Sheila McLean Peter O.A. Solbert Richard H. Moore Edward Hallam Tuck Andre W. G. Newburg Directors Emeriti: Dudley B. Bonsai Whitney North Seymour (1901-1983) Benjamin R. Shute (1911-1986) Bethuel M. Webster The American Association for the International Commission of Jurists, Inc. is a non-profit membership corporation. All contributions are tax-deductible. In addition to the Association’s Newsletter, members are entitled to receive The Review and the IC J Newsletter, published, respectively, biannually and quarterly, by the International Commission of Jurists. PALAU A Challenge the Rule of Law in Micronesia PALAU A Challenge to the Rule of Law in Micronesia Report of a Mission on Behalf of The International Commission of Jurists and The American Association for the International Commission of Jurists William J. Butler, Esq. Attomey-at-Law, New York and Chairman, Executive Committee International Commission of Jurists, Geneva The Honorable George C. Edwards Senior Judge, United States Court of Appeals for the 6th Circuit, Cincinnati, Ohio, U.S.A. The Honourable Michael D. Kirby, C.M.G. President, Court of Appeal, Supreme Court of New South Wales © 1988 American Association for the International Commission of Jurists Library of Congress Cataloging in Publication Data Main Entry under title: Butler, W illiam]. (William Joseph) 1924— PALAU, A Challenge to the Rule of Law in Micronesia. 1. Rule of Law— Palau. 2. Palau— Constitutional Law. 3. Civil Rights— Palau. 4. Courts—Palau. 5. United States— Foreign Relations— Palau. 6. Palau—Foreign Relations— United States. I. Edwards, George C. (George Clifton), 1914— II. Kirby, M.D. (Michael Donald), 1939— III. International Commission of Jurists (1952— IV. American Association for the International Commission of Jurists V. T itle. Law 340.11 88-16657 ISBN: 0-916265-04-8 CONTENTS I PREFACE i II HISTORICAL PERSPECTIVE 4 Palau 1508-1944 4 1944-1947 7 III THE TRUST TERRITORY 1947-DATE IV A NUCLEAR-FREE CONSTITUTION 1 V COMPACTS OF FREE ASSOCIATION IN MICRONESIA 17 The First Referendum 18 The Second Referendum 20 The Third Referendum 20 The Fourth Referendum 21 The Fifth Referendum 22 VI THE AUGUST 1987 REFERENDA 23 Events Leading Up To Legislative Process 24 The Legislative Sessions of July 1987 25 The August 1987 Referenda 28 Threats and Acts of Violence Denying Palauan Citizens Access to Legal Institutions 2 9 VII FINDINGS AND CONCLUSIONS 39 Independence of the Judiciary and the Legal Profession 42 VIII RECOMMENDATIONS 49 APPENDIX i. Ordre de Mission ii. Letter of Legislators to Chief Justice iii. Letter of Legislators to President Salii iv. Petition of “Furloughed Government Employees” v. Map of Pacific and Palau PREFACE he International Commission of Jurists (ICJ) and its T affiliated Sections throughout the world has, since its founding in 1951, been primarily concerned with the es­ tablishment of Rule of Law coupled with an independent Judiciary, as an indispensable ingredient in the cause of Human Freedom. Our principles on the Independence of the Judiciary and the Legal Profession have been approved by the General Assembly of the United Nations and now form part of the international norms and standards expected of civilized na­ tions. In the fall of 1987 the ICJ was informed by the Amer­ ican Association for the ICJ (AAICJ) of an alleged break­ down of the Rule of Law in the Republic of Palau, part of the strategic Trust Territory of the United Nations admin­ istered by the United States of America. Because of the se­ riousness of the events leading to the denial of Palauan cit­ izens access to their legal institutions, the AAICJ and the ICJ decided to co-sponsor a mission to Palau to inquire into a challenge to the Rule of Law in Micronesia, which is the subject of this report. The mission took place the week of January 17, 1988. Its terms of reference were to inquire into the status of the Rule of Law in Palau since its formation by a constitutional convention in 1979. More particularly the Ordre de Mis­ sion (Appendix i) was to inquire into the facts and circum­ stances which required the holding of six referenda on the Compact of Free Association with the United States, to­ gether with four referenda on the constitution itself and the denial, through acts of intimidation and violence, of access by Palauan citizens to their duly constituted legal institu­ tions. The members of the mission were: the Honorable George C. Edwards, of the United States Court of Appeals for the Sixth Circuit, Cincinnati, Ohio, USA, the Honorable Michael D. Kirby, C.M .G., President of the Court of Ap­ peal of the Supreme Court of New South Wales, Sydney, Australia and William J. Butler, Esq., a New York lawyer and Chairman of the Executive Committee of the Inter­ national Commission of Jurists in Geneva. During the course of their stay in Palau, the members of the mission were cordially welcomed by the President, the Chief Justice and other distinguished members of the Judiciary, senior members of both houses of the Palauan National Congress, high government officials, the Ibedul (Paramount Chief), officials of the Palauan Bar Associa­ tion, leading lawyers, and prominent citizens who acted as plaintiffs in constitutional litigation, as well as the repre­ sentative of the United States Department of State resi­ dent in Palau. The mission was given full cooperation by all segments of the Palauan government and its branches. Prior to its departure the mission was briefed by several United States agencies, including the Department of the Interior, the Department of State, the United States House Committee on Interior and Insular Affairs as well as several non-gov­ ernmental organizations interested in Human Rights in the Pacific Area. We are particularly grateful for the help and assistance given to the mission by the governments of Palau and the United States, which gave such a warm welcome to the mission and to the Frederick W. Richmond Foundation of New York, and the World Division of the General Board of Global Ministries of the United Methodist Church, which generously provided the resources which made the mission possible. The report is both critical and optimistic— critical in that it complains of a denial of access by Palauan citizens to its judicial institution through threats of intimidation and acts of violence coupled with threats to the integrity of that institution— optimistic in its confidence that, if its rec­ ommendations are accepted by the United States, as the Administering Power and the Government of Palau, the fundamental rights and freedom of Palauan citizens will be protected and the integrity of the Palauan Constitution sustained. Hon. Andres Aguilar Mawdsley President, International Commission of Jurists New York April 1988 HISTORICAL PERSPECTIVE alau (earlier Pellew; orse. Belau) is part of the cluster P of the Pacific Islands known geographically and eth­ nically as Micronesia. Micronesia also includes the Mar­ iana, Marshall and Caroline Island chains. As the attached map shows (Appendix v), Palau is on the Western perim­ eter of this collection of islands. Although described col­ lectively as Micronesians, the people of Palau, like those of other island groupings in the region, present ethnic, cul­ tural and linguistic variety, inhabiting more than 100 is­ lands set amidst a three-hundred mile chain of reefs and atolls, in the vast emptiness of the Pacific Ocean. To the visitor, Palau has many of the appearances of Paradise. The surrounding water, never far distant, is blue and glistens in the almost constant sunlight. The people appear gentle and soft-spoken. The vistas of bays and inlets are of great beauty. The land appears lush and green. Flora of every variety grow in abundance. The air is rich with the fragrance of plumerias. However, Palau has had more than its fair share of con­ stitutional challenges and legal problems in the past three years. Its first president, Haruo Remeliik, was assassinated in July 1985. Repeated constitutional referenda failed to resolve the question of the infant republic’s new relation­ ship with the United States of America, trustee for the is- lands, designated as such by the United Nations. And then, on 9 September 1987, an Associate Justice of the Supreme Court of Palau (Robert A. Hefner) published a memoran­ dum, 1 which will be described at length below, stating that certain persons who had commenced proceedings in that court may have discontinued their proceedings “as a result of intimidation through the use of violence.” These pro­ ceedings were designed essentially to test the legality and effect of the most recent constitutional referendum. It was that memorandum (which was promptly contested by the government of Palau) that became the occasion, although not the cause of the interest of the International Commis­ sion of Jurists (ICJ) and resulted in this mission. Even before the recent events, the ICJ, its American Section, as well as various committees of the Congress of the United States of America, the Trusteeship Council of the United Nations, and many Palauans, had evinced an interest in the strength and viability of the constitutional institutions of Palau and the health in Palau of the Rule of Law, the respect for Human Rights and the independence of the Judiciary.