THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as Tosie v. Tosie, 1 FSM Intrm. 149 (Kos. 1982)

TRIAL DIVISION-STATE OF KOSRAE

HERMIS TOSIE and STANDY EDWIN,
Petitioners,

vs.

WILLIAM TOSIE,
Respondent.

CRIMINAL ACTION NO. 1982-516

OPINION

Before Edward C. King
Chief Justice
July 8, 1982
Ponape, Caroline Islands 96941

APPEARANCES:

For the Petitioners:		John A. Brackett
Chief Public Defender
Office of the Public Defender
Federated States of Micronesia
Ponape, Caroline islands 96941

For the Respondent:		R. Barrie Michelsen
Chief Litigator
Office of the Attorney General
Federated States of Micronesia
Ponape, Caroline Islands 96941

[1 FSM Intrm.149]

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

TRIAL DIVISION-STATE OF KOSRAE

HERMIS TOSIE and STANDY EDWIN,)
Petitioners,

vs.

WILLIAM TOSIE,
Respondent.

OPINION

This is another case arising out of the interplay between the National Criminal Code, Public Law No. 1-134 (lst. Cong., 4th Sess. and Title 11 of the Trust Territory Code.  Specifically, we are required to consider the effect of the Criminal Code's repeal clause, Section 2, upon the parole rights of these petitioners, seeking a writ of habeas corpus, who are imprisoned for crimes committed before the effective date of the Code.

The petitioners interpret the National Criminal Code's repeal clause as repealing the former power of the President to consider and act upon their requests for parole.  They assert that the repeal violates their rights of due process and equal protection and also the ex post facto clause of the Constitution of the Federated States of Micronesia.

[1 FSM Intrm.150]

The National Government agrees that Section 2 of the National Criminal Code has repealed the power of the President to consider the petitioners' request for parole consideration. The Government further concedes that such a repeal would have the effect of violating the ex post facto clause of the Constitution.  Accordingly the Government suggests that petitioners' writ for habeas corpus be granted but risks that the respondent, the Chief of Police for the State of Kosrae, be permitted to continue the detention of the petitioners provided that their parole requests are now processed promptly.

This Court reads the National Criminal Code differently than do the parties, although we do agree that the petitioners may be given parole consideration.  This decision is grounded not upon the constitutional rights of the petitioners but upon a determination that the National Criminal Code preserves the President's pre-existing power to consider and grant parole for persons imprisoned or prosecuted for offenses committed before the Code's effective date.

Before the effective date of the National Criminal Code, Title 11 of the Trust Territory Code as amended by Public Law 1-69 (lst Cong. 2d Sess.) authorized the President to grant parole:

Section 1501.  Pardons and Paroles.

(1)(A) Any person convicted of a crime in the Federated States of Micronesia may be pardoned  or paroled by the President of the Federated States of Micronesia upon such terms and conditions as he shall deem best.

[1 FSM Intrm.151]

* * *

Prior to enactment of Public Law 1-69, the power to  grant paroles had long been vested in the High Commissioner.1

Both petitioners in this case were convicted of offenses which occurred considerably before July 12, 1981.  When those crimes were committed, 11 T.T.C. § 1501 existed either in its previous form or as amended by Public Law No. 1-69.2 Thus, the law at the time of their offenses authorized the responsible official to consider and act upon their requests for parole.

Thereafter, on January 7, 1981, President Nakayama signed the National Criminal Code into law.  The Code contains, at Section 2, a broad repeal of Title 11 of the Trust Territory Code.

[1 FSM Intrm.152]

Section 2.  Trust Territory Laws Repealed.
Title 11 of the Trust Territory Code is hereby repealed to the full extent of National Government jurisdiction in all matters covered by the provisions of law contained therein.

The National Government interprets this section as a total repeal of any of the President's former parole powers under 11 T.T.C. § 1501.  The President so informed Hermis Tosie, by letter dated March 12, 1982, in response to Mr. Tosie's petition for parole.

At the outset we must recognize that if the National Criminal Code erased the previous possibility of parole consideration for persons who had committed offenses before the Code, this would create a serious possibility of violation of the ex post facto clause of Article IV, § 11 of the Constitution of the Federated States of Micronesia.

As this Court has pointed out previously, the provisions in the Constitution's Declaration of Rights are to a substantial degree patterned upon comparable provisions in the United States Constitution.  See Federated States of Micronesia v. Tipen, 1 FSM Intrm. 79 (Pon. 1981).  Most provisions in the Constitutions' Declaration of Rights have counterparts in the Bill of Rights in the United States Constitution.

Although the ex post facto clause in Article IV, § 11 of the Constitution of the Federated States of Micronesia, is not traceable to the Bill of Rights but instead to Article I, § 9 of the United States Constitution, this does not alter the basic proposition that we should consider carefully decisions of the United States Courts interpreting

[1 FSM Intrm.153]

the United States counterparts in order to establish the meaning and proper application of provisions in the Declaration of Rights in the Constitution of the Federated States of Micronesia.

There are other indications that direct us toward United States interpretations for purposes of understanding the framers' intended meaning of the ex post facto clause.  The words of the clauses in the two constitutions are almost identical:  "No Bill of Attainder or ex post facto Law shall be passed."  United States Const. art. I, § 9, cl. 3.  The Constitution of the Federated States of Micronesia, at Article IV, § 11 states, "A bill of attainder or ex post facto law may not be passed."

The history of the Constitutional Convention also  directs us toward the United States Constitution and its interpretations as a source of guidance for the meaning of our Constitution's ex post facto clause.  The inclusion of the ex post facto clause in the Declaration of Rights was suggested by the Committee on Civil Liberties in its October 2, 1975 report.  II J. of Micro. Con. Con. 793.  In its discussion of the "concept of ex post facto" the Committee's report drew exclusively on the landmark ex post facto decision of the United States Supreme Court in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).  Id. at 801.

The Committee's report confirms that ex post facto prohibitions were seen as applying to various kinds of legislation, including that which "increases the punishment

[1 FSM Intrm.154]

for a crime and applies the increase to crimes committed before the enactment of the laws."  Id.

If the National Criminal Code indeed abolished parole rights of persons who had committed crimes earlier, this would certainly raise a question as to whether that abolition "increased the punishment" for those earlier crimes.

Decisions in the United States under that ex post facto clause strongly suggest that legislative action after the commission of a crime, reducing availability of parole to the earlier offender, does "increase the punishment," for the earlier crime and therefore is an ex post facto violation.  In Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981), the court set aside a Florida statute as violative of the ex post facto because the statute, which reduced the availability of "good conduct" reductions of sentences, was applied to prisoners for offenses committed before its enactment.  See also Welsh v. Mizell, 688 F.2d 328, 30 Crim. L. Rep. 2345 (7th Cir. 1982).

Obviously, the discretion of the President under Public Law No. 1-69 is broad.  The language does not appear to create in any particular prisoner either an absolute right to be considered for parole or a right of parole at any specified time.  Still, abolition even of that broadly discretionary Presidential power to parole prisoners who had already committed crimes cannot be accomplished without raising serious ex post facto questions.

There are two reasons for this.  First a vested right of parole is not necessary.  The question for ex post facto

[1 FSM Intrm.155]

purposes is whether the subsequent legislative action affects the consequences of earlier criminal misconduct in such a way as to be to the disadvantage of those who have already committed the offenses.  When the petitioners here committed their crimes, the law provided for them at least a possibility of being considered for parole.  The President had the power to parole them.  The loss of that possibility of parole consideration, and abolition of the Presidential power to grant parole plainly would be to the disadvantage of the petitioners.

Moreover, petitioners have made representations suggesting that, pursuant to the power granted under 11 T.T.C. § 1501, the President had established policies concerning parole so that, up until July 11, 1981, there was a substantial likelihood, not just a mathematical possibility, that parole would be granted to offenders.3  

We need not here conclusively determine whether the National Criminal Code's abolition of the President's parole power would constitute ex post facto legislation applied to prisoners for offenses committed before the

[1 FSM Intrm.156]

Code's effective date.  It is sufficient to recognize that such an abolition of parole would raise grave constitutional issues and to recall that, when interpreting a statute, courts should try to avoid interpretations which may bring the statute into doubt.4

We are enjoined to review carefully the language of the National Criminal Code to determine whether that language is subject to a construction which does not raise serious possibilities of violation of the ex post facto clause.  In other words, we should consider whether the Code is susceptible of a reading which does not repeal the President's parole power for those charged with committing offenses before the date of the National Criminal Code.

Such a reading is not only possible but appears inescapable.  As we've already recognized, the National Criminal Code contains a broad repeal of Title 11 of the Trust Territory Code "to the full extent of National Government jurisdiction in all matters covered by the provisions of law contained therein."  Pub. L. No. 1-134, § 2 [11 F.S.M.C. 109].

[1 FSM Intrm.157]

Section 3 provides that the Code is to take effect on July 12, 1981.  Without more, this language would appear to abolish entirely the President's parole power under 11 T.T.C. § 1501 as of July 12, 1981.

There is more however.  Section 102 spells out the fact that the Code is not intended to apply to offenses committed before its effective date.

Section 102.  Applicability to Offenses Committed Before and After the Effective Date

1)  Except as provided in Subsection (2) of this Section, this Code does not apply to offenses committed before its effective date.  For purposes of this Section, an offense is committed before the effective date if any of the elements of the offense occurred before that date.

(2)  Prosecutions for offenses committed before the effective date are governed by the prior law, which is continued in effect for that purpose, as if the Code were not in force.

This subsection, especially the first sentence of Subsection 102(1), establishes that Congress did not intend that substantive rights of persons who had committed offenses before the effective date of the act would be altered by passage of the National Criminal Code.  With the exception of Section 102(2), which authorizes prosecutions for earlier offenses, the Code has no application to earlier offenses.

Section 102(1) preserves intact the President's parole powers for offenses committed on or before July 11, 1981. The repeal of parole powers applies only to offenses committed
on July 12, 1981 and thereafter.  The petitioners' rights to parole consideration therefore have not been affected by the National Criminal Code.

[1 FSM Intrm.158]

The Court holds that the President retains his former 11 T.T.C. § 1501 to consider and grant parole requests for offenses committed before July 12, 1981.  We recognize that the President has refrained from considering parole requests for those earlier offenses under the belief that all of his parole powers had been revoked.  We find that the National Criminal Code only repeals the President's power to grant parole for offenses committed after the Code's effective date.

While we find that the President has the power to consider petitioners' requests for parole consideration, this does not amount to a finding that their continued detention is unlawful.  It is up to the President to determine whether the petitioners should be granted parole, under standards at least as favorable as those that were being applied before the National Criminal Code became effective and when the offenses of the petitioners were committed.  Further, the Court assumes that the President is fully willing to exercise any parole powers he does have and will proceed to do so in light of this opinion.  The President therefore should be given a reasonable opportunity to extend parole consideration to the petitioners.

The petition for writ of habeas corpus is therefore denied and dismissed, but without prejudice to petitioners' right to refile their petition at a later time, at least 30 days after issuance of this order, if petitioners are then being denied parole consideration consistent with this opinion.

[1 FSM Intrm.159]

So ordered this 8th day of July, 1982.

 /s/ Edward C. King
Chief Justice
Supreme Court of the Federated
States of Micronesia
Trial Division

[1 FSM Intrm.160]

1. Public Law 1-69 became effective on December 19, 1979. Its predecessor contained exactly the same words except the official named was the Trust Territory High Commissioner rather than the President of the Federated States of Micronesia.
The High Commissioner's parole powers presumably devolved immediately to the President at the inception of constitutional self-government on May 10, 1979.  This would have been by virtue of the Constitution's transition provisions, FSM Const. art. XV, § 1, various agreements between the Trust Territory and Federated States of Micronesia Executive Branches for the transfer of functions, and the broad delegation of former executive functions of the Trust Territory Government to the Executive Branch of the Federated States of Micronesia in Section 2 of Secretarial Order 3039.  In any event, Public Law 1-69 confirmed that, beginning December 19, 1979, the 11 TTC § 1501(1) parole powers resided in the President.

2. Petitioners have failed to establish the dates of commission of the offenses for which they have been convicted and are now imprisoned.  There is no doubt the offenses occurred before the July 12, 1981 date of the National Criminal Code though for petitioner Tosie began serving his jail term on September 5, 1979 and Standy Edwin's term began on February 5. 1980.

3. Among other things, petitioners point to Administrative Directive 69-7 (Release 67-134) adopted by the High Commissioner under 11 T.T.C. § 1501 in 1969.  This directive provided detailed procedures for parole consideration.  Petitioners indicated their belief that the President had adopted and was implementing this Administrative Directive or some variation of it when the National Criminal Code went into effect.  This representation was not denied by the Government.

4. This is a "cardinal principle" of statutory construction.  See Johnson v. Robinson, 415 U S. 361, 366-67, 94 S. Ct. 1160, 1165, 39 L. Ed. 2d 389, 398 (1974), United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S. Ct. 1400, 1404, 28 L. Ed. 2d 822, 830 (1971); Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 296-97, 76 L. Ed. 598, 619 (1932).