Tia Belau Editorial, December 12, 2011 —-
The basic foundation of every orderly society is a rule of law and its effective enforcement to maintain peace and orderly community. The effective enforcement of rule of law is the equal application and enforcement without any preference or discrimination.
We live in the world where we are dictated by the laws we create to discharge our authorities, carry out our functions and responsibilities in the community. That is our modus operandi. It is no longer up to an individual leader to exercise his or her discretion on how our society should be run. So often in times our politicians want to suspend the rule of law to address the issues which they believe requires urgent attention and consideration and while that may be an easy way out to handle problems the down side of that is a step toward a dictatorial regime. No matter what we do, our action must be sanctioned by the rule of law at all times – in time of crisis or in normalcy.
Recently, President Toribiong declared the State of Emergency after the power plant of Aimeliik was burned. In rushing to declare the State of Emergency, he erroneously cited wrong constitutional authority, Article IX § 14 of Palau Constitution. That the provision of the Constitution that provides for the establishment of Olbiil Era Kelulau and how it legislate laws. It states, inter alia, that: The Olbiil Era Kelulau may enact no laws except by bill. Each house of the Olbiil Era Kelulau shall establish a procedure for the enactment of bills into law…”
The correct constitutional authority that President should have invoked is Article VIII § 14. It states the following: “whenever war, external aggression, civil rebellion, or natural catastrophe threatened the lives or property of significant number of people of Palau, President may declare state of emergency and temporary assume such legislative power as may be necessary to afford immediate and specific relief to those lives and property threatened…”
Clearly the rule of law was misapplied by the President but what is worst about it is the fact that 29 members of the Congress proudly passed the resolution to approve the State of Emergency in a total defiance of the constitutional mandate upon which they took the oath of the office to protect and defend.
There are 16 members of the House of Delegates and 13 members of the Senate. In total there are 29 members of the Congress. Each one of them has two eyes. Thus combines all the eyes in the Congress, there are 58 eyes to review and consider any measures before the Congress. How could 58 eyes failed to detect the erroneous constitutional authority President Toribiong invoked to declare the State of Emergency? The talk in town is that only the “eyes” from Kayangel State that Delegate Noah Kemesong possess noticed the constitutional defect but when he attempted to discuss it during the consideration of the State of Emergency Speaker Noah Idechong maneuvered to have him keep his mouth shut from decontaminating the minds of the members of the House about the constitutional defect as by then the members have had shut their sense of reasoning as they were ready to jump to President’s call regardless of how deep they would fall.
Few weeks ago Island Times Editorial questioned the Senate Majority as to whom they represent, is it the people or the President. That is a legitimate question that should be asked until the election day but it should be rephrased to include all the members of the Congress. They have disregarded the rule of law as bedrock foundation of our society and government and forgone the check and balance responsibility of the Congress and have allowed it to be treated and used by the Executive Branch as one of its agencies, boards or commissions to rubber stamp what the Executive Branch dishes out. Had they maintained check and balance role and responsibility, perhaps, at least one of the 58 eyes would have detected the constitutional defect and blunder and took appropriate measure to correct the declaration on the State of Emergency before it was adopted and disbursed to the world as an embarrassment.
Citing a wrong constitutional authority by the President rendered the Presidential Declaration 11 – 15 on the State of Emergency void and nullity. It cannot be cured by “erratum” as President attempted to do on the following day it was issued. “Erratum” could only be used to correct clerical or technical mistake, i.e., typo, misspelled, and all. It cannot be used to cure constitutional defect. Any member of the Congress should know or should have had known that a void document is a document that does not exist and because it does not exist, it cannot be salvaged by “erratum” or by any other excuses of technicalities. “Erratum” does not and would not bring into life a document that is void ab initio. General rule is that a void document does not exist and if it does not exist common sense tells us that it cannot be modified by erratum or amended to make it legally binding and enforceable.
In the book and in the movie, “All the President Men,” President Nixon advised his Watergate plumbers that if FIB investigators asked them for their role in the break of the Watergate Hotel, they should say that “ it was a comedy of error.” But the action of the members of the Congress to pass a resolution to approve declaration of the State of Emergency that is against the constitutional mandate upon which they took an oath to defend and protect is not a comedy of error but a comedy of stupidity.
