---

FSM Supreme Court issues injunction

POHNPEI, Palikir (FSM Information Service): June 2000 - A FSM Supreme Court decision has ordered the FSM, and the FSM Department of Finance and Administration to stop disbursing any unobligated funds appropriated for Chuuk Election District number 4 that remain under Public Law number 11-27.

The decision stems from a motion for preliminary injunction filed May 26 by Udot Municipality in Chuuk State against the Federated States Micronesia, the FSM Department of Finance and Administration; Mayor Liwis Os, in his capacity as Mayor of Polle Municipality; Tolensom Authority; and James Fritz, in his capacity as executive director of Chuuk State Committee on Improvement Projects.

In the motion, Udot Municipality spoke to three public laws, public laws 10-69, 11-27, and 11-29, concerning appropriated funds to Polle and Tolensom in Chuuk State, however; the Court denied the motion to two of the laws, 10-69 and 11-29.

But because the phrasing was different in P.L. 11-27, the court granted the motion for a preliminary injunction.

P.L. 11-27 appropriates $650,000 to Election District Number 4, Faichuk, which comprises eight municipalities.

According to court papers, upon learning about P.L 11-27, the mayor of Udot requested, on April 27, the Executive Director of the Chuuk State Committee on Improvement Projects an accounting of funds already spent and the forms needed to seek disbursement.

On May 3, the mayor received a response to his request that said the Executive Director had no obligation to give an accounting and told him to ask Congress or the FSM Secretary of Finance and Administration for an accounting, according to the court document.

As far as asking for disbursement, the mayor was told to ask the Senator representing Election District Number 4, according to the court document.

The Executive Director testified that that the Senator tells him what projects are approved. He testified that this is the system and the procedure. In other words, applicants apply to the Senator representing Election District number 4 and the Executive Director carries out the decisions, according to the court document.

FSM Supreme Court Associate Justice Richard Benson wrote in his decision that this was in violation of the FSM Constitution.

Benson wrote, "The Constitution gives Congress the authority, as far as this particular matter is concerned to appropriated public funds." He went on to state that the Constitution expressly delegates to the Executive Branch the power to "faithfully execute and implement [...] all national laws."

The Judge added that he feels the Congress, not the executive, is, as applied, executing and implementing P. L. 11-27, therefore, the Judge felt the law is unconstitutional.

Benson wrote, "Public Law Number 11-27 abridges the executive's power to execute and implement national laws. Because of that conclusion, it is proper that a preliminary injunction (be) issue(d) if the requirements for an injunction are also met.

The Judge in issuing the injunction, that while there is no immediate or certain loss to Udot if a preliminary injunction is denied, if an injunction is not issued, the Executive Director would be free to obligate the remaining funds. Thus the harm, though not certain, would be that Udot would not have the opportunity during that period from possibly obtaining any of the unobligated balance of the $650,000.

Benson also said that not to issue an preliminary injunction would be to tell Udot to apply and get any appropriations that it can following the unconstitutional steps.

Benson in his decision wrote that he expects the case "will surely be decided" before the funds lapse.