FSM Department of Justice Responds to Tadasy Wainit

During the course of the Chuuk Independence initiative, Mr. James T. Stovall, noted legal expert and legal counsel to the FSM embassy in D.C. submitted a memorandum to the FSM's President, Manny Mori. The memorandum cited 8 points, or 8 facts if Chuuk were to secede and what that would mean for Chuuk's association with the USA through the compact.

In response to Mr. Stovall's 8 points, Mr. Tadasy Wainit presented his counter arguments. Shortly after Mr. Wainit's rebuts were made, the FSM's Department of Justice released their responses to Mr. Wainit's arguments.

Follow along to see interpretations on both sides of this argument.


 April Dawn Skilling, Secretary of the Department of Justice; Joses Gallen, Assistant Attorney General.

April Dawn Skilling, Secretary of the Department of Justice; Joses Gallen, Assistant Attorney General.

The FSM Department of Justice shares their views on Tadasy Wainit’s rebuttal of the referenced memorandum by James Stovall.

DJ = Essentially, Article XIII of the FSM Constitution states that “[i]t is the solemn obligation of the national and state governments to uphold the provisions of this Constitution and to advance the principles of unity upon which this Constitution is founded (emphasis added). The Micronesian Constitutional Convention Journal of 1975 supports unity of the nation without secession. Mr. Wainit ignores this Constitutional requirement, making assumptions that are not supported by the current law of the FSM

JS = James Stovall
TW = Tadasy Wainit
DJ = FSM Department of Justice

JS = 1. FACT: “ The Compact will terminate automatically for Chuuk at the moment of secession from the FSM.”

  • TW = Please be informed that secession is a political process and not a “date” on which the withdrawal of a state or a part of a Nation shall automatically take place upon the affirmative result of the plebiscite as you claimed but rather it is a long process which has a beginning and an ending through which shall begin with the affirmative result of a plebiscite in which the people of Chuuk would have affirmatively decided to withdraw and terminate their political status, affiliation and relationship with the FSM by their own God given free will of self-determination through a democratic process or plebiscite. The affirmative result of the plebiscite is the first step in the process.
  • DJ = It is true that the first step in finding out whether the population of the State of Chuuk wish to seek secession from the FSM is by asking the question being put forth in the March 3, 2015, plebiscite. However, a positive response of the population on the plebiscite does not mean the State of Chuuk is seceding from the FSM. There are further legal steps that must be followed before secession becomes a reality, i.e., the FSM Constitution would need to be amended to remove the State of Chuuk from the territory of the FSM.
     
  • TW = second step in the process is the passing of legislation by the Chuuk State Legislature calling for the establishment of a Constitutional Convention to write the proposed New Constitution of the newly established Independent Nation of Chuuk.
  • DJ = We disagree. The second step in the process on the road to secession would be to seek an amendment of Article I of the FSM Constitution removing the State of Chuuk from the territory of the FSM. The steps to amend the FSM Constitution are contained in Article XIV of the Constitution and in Title I of the FSM Code. This includes the drafting and acceptance of a proposed amendment through a constitutional convention, congressional act, or a popular initiative, plus a positive vote of 75% of the votes cast on the proposed constitutional amendment in 75% of the four states.
     
  • TW = The third step in the process is the ESG (Education for Self-Government) to our people on the draft Constitution and its ratification, and …
  • DJ = We disagree. The third step will not even legally occur unless the FSM Constitution is amended to allow for secession.
     
  • TW = [T]he fourth step in the process is again the passing of legislation establishing our Negotiation Team to start talking with the United States, please keep in mind that at this juncture or critical time, Chuuk is still a part of the FSM as a state while it is now preparing and undertaking its foreign affairs with the outside world most especially with the United States for a smooth transition into a new Compact of Free Association with the United States in order to protect Chuuk’s invaluable relationship with the United State covering its Immigration Status and other benefits for its Chuuk citizens now living abroad in the United States.
  • DJ = This is not correct. First, any steps by the State of Chuuk to form an independent government while it is part of the FSM would be unlawful because it would violate the FSM Constitution and the FSM Code establishing the authority of the FSM national government’s exclusive jurisdiction over foreign affairs, immigration, etc. See, FSM Constitution, Article X, Sections 2, 3, and 8. Second, the FSM national government would not stand by and allow the State of Chuuk to undermine the FSM government’s responsibilities and obligations under the FSM Constitution, the FSM Code, and its international treaties, conventions, and other legal agreements.
     
  • TW = The fifth step in the process is the election of the new officials and officers of the new Government of the newly established Independent Nation of Chuuk.
  • DJ = See the FSM response to the fourth step, above. In addition, these steps may only legally occur if and when the FSM Constitution is amended to allow for secession.
     
  • TW = [T]he sixth and final step in the process is the effective date of Independence for the New Nation of Chuuk and its separation from the FSM.
  • DJ = See the FSM responses above.
     
  • TW = So as you can see, secession is not an automatic end of the state of Chuuk with the FSM. As I said, it may take several years to go through this process to achieve total and complete independence and separation from the FSM and those Chuuk officials involved in the process must make sure that everything is done right gradually toward the end of the secession process, and it is not true that once secession is passed in the plebiscite, ‘the Compact will terminate automatically for Chuuk,” and therefore, Fact No. 1 is FALSE.
  • DJ = Mr. Wainit misconstrues the points of James Stovall. The Compact will indeed terminate automatically for Chuuk following secession for the reasons stated by Mr. Stovall, who by the way is the leading expert on the FSM Compact of Free Association. The vote on March 3rd by the State of Chuuk asking whether the population wants to secede is merely a question. A positive vote just answers the question – it does not mean that the State of Chuuk can lawfully secede thereafter without following the legal pathway leading to an amendment of the FSM Constitution. It is not unconstitutional to ask a question – in fact, freedom of speech is guaranteed in the FSM Constitution. Without asking the question, how else could anyone seek to amend the FSM Constitution without knowing whether anyone wanted to do so? 
     
  • TW = Furthermore, the State of Chuuk shall continue to function as a state in the FSM despite the fact that its future political status, not its present political status, has already been decided if it were to be passed and shall continue to receive its Compact funding through the FSM, and remain with the rest of the FSM States during the remainder of its secession process which may last for 3 to 5 years or even up to the end of the FSM Compact II and shall continue to be entitled to receiving all Compact II funding and all other existing Compact benefits including Immigration Status with the United States until it shall be smoothly transiting into its own new Compact of Free Association with the United States with all current and newly negotiated Compact benefits on a one-to-one relationship of its own with the United States.
  • DJ = First, if the State of Chuuk secedes, whether or if the State of Chuuk is entitled to any Compact funds held in trust by the FSM government (of which the State of Chuuk would no longer be a part) will be a question to be determined by the FSM national government, not by an independent State of Chuuk. Second, again, the FSM national government is not going to stand idle, continuing to support the State of Chuuk through FSM national funding if the State of Chuuk does not follow the legal pathway amending the Constitution to allow for secession. If the State of Chuuk legally secedes, a transitional process would need to be worked out between the two governments, i.e., the FSM national government and the new Republic. This would not be an easy or quick process, involving not only funding, but also immigration issues, status of former Chuukese citizens within and without the FSM, division of boundaries, etc.

    Perhaps a better question to be asked is that while all this time is being spent on separating Chuuk from the FSM, what is happening to the Chuukese people and to the nation of the FSM? Are we really better off spending time dividing instead of using the same time and effort to build our nation and solve our problems?


JS = 2. FACT: “Compact Funding to former Chuuk State would not transfer to the Republic of Chuuk. This would be an automatic consequence of the fact that the Republic of Chuuk is not a party to the Compact. Any changes to the Compact funding structure or amount would require US Congress legislation.”

  • TW = Please be informed that even with the affirmative result of the Chuuk Plebiscite in March, 2015, the State of Chuuk shall continue and remain as still one of the four (4) States in the FSM and shall have entitlement to all Compact funding as usual just like the other sister states, there is no effect whatsoever of the affirmative result from the Plebiscite, and therefore, FACT NO. 2 is FALSE.
  • DJ = The State of Chuuk will continue to be a state as long as the FSM Constitution is not amended to allow for secession. However, Mr. Stovall is absolutely correct that if legal secession actually occurs, the new Republic will not be entitled to FSM Compact funding because the new Republic will not be a state of the FSM.


JS = 3. FACT: “US Federal Programs in Chuuk pursuant to the Compact would be withdrawn.”

  • TW = We have to remember that until all the legal formalities and legal steps through the political process have been executed and finalized, secession for Chuuk is not complete and materialized until at the end of the process and Chuuk shall still be a part of the FSM and therefore shall continue to be treated as such just like the other three States and shall receive all benefits and bear its share of financial and political obligations to the FSM. And therefore, FACT NO. 3 is FALSE.
  • DJ = In addition to the FSM responses above, the State of Chuuk will not be able to form its own government while it is still an FSM state. It cannot simply phase out the FSM government over time without a change to the FSM Constitution first. If successful, a transitional plan would then need to be developed and agreed to by the FSM national government and the Republic. Since secession is not currently allowed under the FSM Constitution, any action to unlawfully secede by the State of Chuuk could result in economic and legal sanctions.


JS = 4. FACT: “Compact Immigration status of Chuuk citizens in the U.S. would terminate automatically upon secession.”

  • TW = Yes, you are right, Compact Immigration status of Chuuk citizens in the U.S. would terminate not automatically upon approval of secession by the people in the plebiscite, but on the effective date upon which the secession process shall have been completed and Independence of the new Nation of Chuuk shall have been formally and legally effective as the date on which Chuuk shall exit and terminate its political status as a state in the FSM.
  • DJ = Agreed. The plebiscite results, if positive, do not equate to secession – only a change in the FSM Constitution will legally provide for the State of Chuuk to secede from the FSM. The Compact immigration status of FSM citizens from Chuuk would change. How the US will treat Chuukese citizens who are no longer FSM citizens will have to be determined by the US after a legal determination by the US is made.
     
  • TW = That is why Chuuk needs a transition period of several years through which Chuuk can gracefully negotiate with the United States its own Compact through which Immigration status of Chuuk citizens living in the United States shall not be abruptly terminated but gracefully and smoothly transit from one Compact to the next Compact.
  • DJ = The response by Mr. Wainit assumes that a new Compact with the US is possible and will be approved by the US Congress. It is important to note, however, that a financial assistance agreement under the Compact between the US and Palau signed in 2010 and introduced to the US Congress has still not been approved by the US Congress although Palau has an established relationship with the US, unlike the new Republic. A new Compact with the US is not a guarantee, nor are the favorable terms currently in the FSM Compact with the US such as those involving immigration, employment, and school attendance, guaranteed to remain the same. It is also important to note that the majority of FSM citizens currently being deported by the US back to the FSM are Chuukese. This most certainly will factor in to any future Compact negotiations with the US should they occur.
     
  • TW = Can you imagine how devastating such a problem would have been to our people if that would happen? No, the Immigration status of our Chuuk citizens living in the United States shall not be automatically terminated upon the affirmative result of the plebiscite, and therefore, FACT NO 4 is FALSE.
  • DJ = Mr. Wainit misconstrues what Mr. Stovall stated. Mr. Stovall stated that the immigration status of Chuukese citizens living in the US would terminate upon secession under the Compact (emphasis added), not immediately following the results of the plebiscite.


JS = 5. FACT: “Title Three of the Compact, delegation of Security and Defense Rights to the U.S. would no longer apply in the territory of the new Republic of Chuuk.”

  • TW = Again, Please be informed that until Chuuk has officially and formally withdrawn and terminated its existing political status with the FSM through legal means, not just through a show of hands through a plebiscite, but through a formal declaration of Independence with an effective date in its Constitution or other legal means, Chuuk shall remain a part of the FSM, and all Security and Defense Rights delegated to the United States through the Compact with the FSM shall remain in effect for Chuuk until Chuuk has its own Compact with the U.S which shall also spell out the delegation of Security and Defense Rights to the United States which is so vital to the United States for its own military power and defense and its Government shall never take a chance to allow the newly Independent Nation of Chuuk to not have such Security and Defense Rights given to the United States. and therefore, again, FACT No. 5 is FALSE.
  • DJ = Mr. Wainit again misconstrues what Mr. Stovall wrote – i.e., the Compact between the FSM and the US applies to the FSM and its citizens. Once and if the State of Chuuk legally secedes from the FSM, the Compact terms would no longer apply to the State of Chuuk as it would no longer be part of the FSM. The US obligations under Title III of the Compact runs with the Compact.


JS = 6. FACT: “Chuuk’s entitlement, if any, to assets of the Compact Trust Fund would be difficult and time-consuming to quantify.”

  • TW = You’ve got to be kidding! Are you talking about Rocket Science here which no Chuukese may be capable of understanding not to mention calculating?
  • DJ = Mr. Stovall’s response is absolutely correct. Many factors would be involved in making a legal determination of state entitlement to the assets of the Compact Trust Fund, including whether or not the legal pathway to secession, i.e., changing the FSM Constitution to allow for secession, is followed. Sarcasm by Mr. Wainit does not change the underlying complexities of this issue.
     
  • TW = Becoming an Independent nation, Chuuk would not do it over night, the transition for Chuuk from being a state with the FSM to becoming an Independent nation has to go through the legal process which I stated above which may take anywhere from 3 to 5 years or even up to the end of Compact II, and even if the question were to be affirmatively decided during the up-coming plebiscite, Chuuk is still a part of the FSM and shall continue to be entitled to all Compact funding including its allocation of the Trust Fund Assets until the last day on which Chuuk shall officially terminate its political status and relationship with the FSM, and again, therefore, FACT NO. 6 is FALSE.
  • DJ = These arguments presented by Mr. Wainit against Mr. Stovall’s facts, and the FSM responses, are already addressed in Facts 1, 2, and 3, above.

JS = 7. FACT: “A variety of benefits extended to FSM not in the Compact but in US Public Law 108-188 (The Amended Compact Act) would no longer be extended to Chuuk.”

  • TW = Let it be clear that even if the affirmative result of the plebiscite were to be made public in March of this year, the fact remains that Chuuk is still a state in the FSM, nothing shall change, and Chuuk shall continue to be entitled to all financial assistance benefits including things IDF, EDA, USDA, RUS, Small Business Administration Assistance and all others, just like the other three (3) states, and therefore, FACT No. 7 is FALSE.
  • DJ = Mr. Stovall’s response is absolutely correct. If the State of Chuuk ultimately secedes through a legal process under the FSM Constitution, the current financial benefits (federal program services) it enjoys under the Amended Compact Act would not be available to the Republic, as the State of Chuuk would no longer by part of the FSM. If the State of Chuuk fails to address secession in a legal manner, as noted above, economic and legal sanctions could be imposed that would hinder the current financial assistance provided to the State of Chuuk.

JS = 8. FACT: “ Negotiations by a Republic of Chuuk for a separate relationship with the United States and with other countries would be time-consuming, based on past experience.”

  • TW = It is true that all negotiations take time because they are meant to produce the best possible arrangements which are vital and necessary as the results of carefully thought out and mediated “Give and Take” Agreements between two sovereign nations to meet the vital needs of their people, in this case, it would be the well and best thought out needs of the people of Chuuk, and the people of the United States of America.
  • DJ = The US has a long and integrated relationship with the FSM states from the initial Trust Territory days up to now. Much of that relationship turns on the security needs in the region. The FSM has been regionally recognized and held up as an example in the Pacific for its law enforcement efforts and contributions to regional security. It would be naïve to believe that this relationship is not being affected by the current movement in the State of Chuuk to secede. It has taken years for the FSM to achieve its current status. Given all the factors mentioned in the responses above, how much time will it take for the new Republic to achieve a similar status – or will it ever achieve it on its own? The State of Chuuk benefits from the combined efforts of all the states working together as a unified nation. The people of the State of Chuuk must carefully consider this positive aspect of being a member state of the FSM before they decide to throw it aside. All the arguments of Mr. Wainit are based upon an unsupported belief that a new and equally beneficial arrangement will be developed with the US or other regional and international partners.
     
  • TW = We are talking about not so much the wellbeing of our present generation but the future of our future generations and the future of our progeny and their future is our most important concern and undertaking right now, and that is why we want to make use of the remaining life of this Compact II as our transition period to give Chuuk ample time and the necessary time table that it needs to carefully shape and prepare our future to meet the needs of our people and leave our future generations a legacy of prosperity, freedom and happiness to be enjoyed by all generations in the future and forever. 2017 is just a tentative date for a referendum on a draft constitution for the newly established Independent Nation of Chuuk, if the result of the plebiscite were to be affirmative, but the time table can be several years from today, and therefore, FACT No.8 is not impossible, may be achievable within a shorter period of time.
  • DJ = the current secession movement in Chuuk to break away from the FSM is spending much time and money. Why throw the baby out with the bath water? Why not, instead, spend Chuuk’s much-needed resources on fixing the problems that currently exist in Chuuk starting with Chuuk’s internal issues that preclude development such as the lack of state land, wasted resources (as noted in the recent Public Auditor’s Report), transparency in financial dealings, and the reforms promised when the FSM national government bailed Chuuk out of its financial difficulties in 2007 and before. Not once has the Chuuk State Political Commission called on the President of this nation to discuss its issues or officially inform the President of its intent to seek secession. Over and over again through recent discussions with Chuukese citizens in the US and within the FSM, the question has been raised “pwata atapwanapwan” (what’s the rush) and “sipwe poraus” (let’s talk). Isn’t talking the Chuukese way – the Micronesian way? Good questions that should be answered!
     
  • TW = Thank you for giving me the opportunity to clarify your misunderstandings in the most crucial and important political endeavor for Chuuk to move ahead instead of continuing to remain with the status quo which has been responsible for Chuuk’s loss of great opportunities to move ahead to attain prosperity, economically, socially, and politically during the past 28 years now.

    o Just take a good look at the rate or exodus of our people leaving Chuuk to find a better life abroad and sooner or later our beautiful islands would be empty and inhabited with only the disabled remaining behind if nothing can be done to avert the onslaught of exodus of our people leaving our islands.

    o There is no place like home but home now is second best because of our debilitated social and economic conditions in Chuuk right now.

    o It is now or never that Chuuk should take a bold stance to find the right path to avert depletion of our populations by bringing back our people back home.

    o Independence for Chuuk is the only solution and option viable to bring about positive economic and social stability and prosperity to our people back home in the near future, and forever.
     
  • DJ = It is important to look historically at secession movements throughout the world. Such movements not always been successful or without great hardship, and in many cases harm to people on both sides of the equation have occurred. Is this really what the people of the State of Chuuk desire for themselves, their families, their future generations, and their fellow FSM friends and relatives?

    If this movement has been positive in any way, it is that now people are talking and speaking up about their needs, their fears, and their desires for responsible government at all levels. Why not use the momentum of speaking up and talking to one another as a momentum to solve our current problems and realize the dreams of our founding fathers, not only by Chuuk but by all of us who ratified the Constitution, to “…affirm our common wish to live together in peace and harmony, to preserve the heritage of the past, and to protect the promise of the future.”