Palau Court Finds President's "Emergency" Action Unconstitutional

Hours after the hearing held on August 2, web 2012 before the Chief Justice on the matter of Alan Seid v. President Johnson Toribiong, hospital a 14-page decision was rendered finding that none of the defenses raised by the President barred Seid’s action.

During the hearing Alan Seid represented himself and spoke on his own behalf.  The President was not in attendance and was represented by Assistant Attorney General Sara Bloom.  The hearing was to resolve the Government’s motion to dismiss the suit.
At the outset of its Decision, page the Court stated that the doctrine of sovereign immunity does not preclude a suit against the President wherein the President unconstitutionally declared that the Republic was under a state of emergency as a result of the fire at the Aimeliik Power Plant.  The Court found that the President can only declare a state of emergency in a limited number of circumstances, specifically enumerated by the Constitution, including when “war, external aggression, civil rebellion or natural catastrophe threatens the lives or property of a significant number of people in Palau . . .”  Decision at p. 6 (citing Palau Constitution Article XII, Section 14).  “A fire caused by human error falls outside of the language” of the Constitution.   Id.
The President’s lawyer argued that the President acted reasonably because his predecessor, President Nakamura, appropriated millions of dollars when the K-B bridge collapsed due to poor engineering.  The Court found that the “un-litigated actions” by past Presidents who might have also violated the Constitution have no precedential value.   The Court was equally unimpressed with the argument that the OEK validated the President’s actions since “the initial declaration was invalid” the ratification of the OEK was of “no consequence.”   Decision at p. 8.
The President finally argued that Seid had no standing to sue since he “has not paid his taxes.”  The Court said that since Seid purports to be a taxpayer at this juncture the Court would not entertain any evidence to the contrary.
The Court acknowledged that although the alleged emergency had passed and that the controversy may no longer be “live” the President’s actions are “capable of repetition yet evading review” since “if a power outage may constitute an emergency [to this President] then we can expect many such emergencies given the vicissitudes of the power situation in Palau.”  Decision at  p. 11.   The Court therefore determined it is proper to adjudicate the merits of this action so that the Court can fulfill its mandated role as the interpreter of the Constitution.
Not only did Seid’s motion survive the motion to dismiss, at this early juncture the Court made clear where it is headed having already found that the President acted unconstitutionally in declaring an emergency as a result of human error and that even the Congress (OEK) cannot rehabilitate the President’s action by their ratification.  In fact, the Court ended its decision stating that the President himself “could not have reasonably believed his actions were constitutional.”  [emphasis added] Decision at p. 14.
By Kassi Berg
The President sent the following written comments to OTV on August 3, 2012:

The court at the preliminary stage of this case denied the government’s motion to dismiss, considering the plaintiff’s
allegations to be true.  Now the case shall move on to another stage, including a motion for summary judgment and the trial on the merits, even though the case is still pending.
I believe the government and the president shall ultimately prevail on the merits, since the OEK confirmed the emergency declaration and ratified the emergency funding which I made for relief efforts.  As a result of my joint efforts with the OEK, a potential disaster was immediately averted. Without my emergency declaration, it would have taken not less than five (5) days for any bill to pass in the OEK in response to the nation-wide power outage and that would have been too late. It takes three (3) readings for a bill to pass in each house, with each reading to be made on a separate day.I was relieved we were able to avert what would have been a major disaster for Palau’s environment, public health, public service and the general welfare of the people of Palau.  The plaintiffs in this case are playing Monday morning quarterback. This is a free country so let the lawyers and the court argue about the fine points of constitutional laws, as they should.   And of course, we will honor the ultimate outcome of this case. I just wonder what kind of relief the plaintiffs’ seek from the court since the OEK and president worked together at a hectic pace to bring relief to the Palauan people. Should they be punished for their success?  But of course we are a government of law, not of men, so I believe the court will ultimately make a fair and just decision on the facts as they unfold, and the Constitution and laws of the Republic of Palau.  It should be noted that the people of Palau greatly appreciated the speedy recovery of power.
–    President Johnson Toribiong