The Office of the Special Prosecutor (OSP) received a report that the Ngarchelong State Assembly (NSA) requested national President, Tommy E. Remengesau, Jr., to administer the oath of office for its state members. To ensure the President acted within the boundaries of his official powers, the Special Prosecutor took legal action.
On or about September 30, 2020, the Ngarchelong State Assembly (Assembly) passed Assembly Resolution 19-033 adding the President to the list of positions that could administer the oath of office for new members. Prior to this resolution only the “Chief Justice or his designated Representative” were permitted to swear in Assembly members.
After review of the matter including the resolution and existing National and State laws, the OSP believed the President’s plan to swear in members of the Assembly would be unlawful and beyond the scope of his powers. Given little time to act, the Special Prosecutor drafted an Emergency Motion for a Temporary Restraining Order (TRO) seeking to prevent the President from acting outside of his authority.
Prior to filing this order, the Special Prosecutor contacted the Office of the President and spoke with his Senior Legal Counsel who relayed the information to the President. The Special Prosecutor informed the President, who was the adverse party in this matter, through his counsel, that she would be filing the TRO if he insisted on administering the oaths, which ceremony was scheduled for 9 a.m. the next morning. A question came back from the President’s Senior Legal Counsel as to who we thought should administer the oaths of office in this matter. We replied “the Chief Justice or his designee. Not a national President reaching down to a State government.” The President’s attorney asked for time to discuss it with the President, and the OSP waited to file its Emergency Motion. After 30 minutes, the President’s Senior Legal Counsel informed SP Cripps that he (the President) had been asked to swear in the State officials, and that he wanted to do it. Therefore, with less than 15 minutes left to file the Emergency Motion, the OSP filed its motion, the supporting affidavit, and a copy of the aforementioned resolution. The purpose of filing the TRO was not to cause damage to the President’s reputation, but to prevent him from engaging in a possible abuse of power.
Presiding Justice Kathleen M. Salii, Palau Supreme Court Trial Division, granted the Special Prosecutor’s Temporary Restraining Order at 5:19 P.M., October 8, 2020. The Order, Emergency Motion, and Supporting Affidavit were served on the President by the Supreme Court Marshals, and the OSP delivered a courtesy copy to the Ngarchelong State satellite office that same evening while also informing the President’s Senior Legal Counsel it had been filed.The next afternoon, Justice Salii vacated her own order stating that “the Office of the Attorney General (OAG) received no notice of the impending TRO” and that the OSP did not state why no notice was necessary.
As set forth above, prior to filing the Emergency Motion, the Special Prosecutor contacted the President, who is the “adverse party,” through his Senior Legal Counsel within the Office of the President and provided them time at their request to discuss it before filing the Emergency Motion. At the time the adverse party was contacted, the Attorney General was not a party in the case as the TRO had not yet been filed. The OSP maintains there was no need to involve the OAG prior to filing the TRO as the adverse party had, in fact, been notified through the President’s Senior Legal Counsel with whom the President discussed the intended action.
Judge Skebong administered the oaths of office in Koror for members of the Ngarchelong State Assembly, instead of the President, and the issue is now moot (the matter is ended). There exists no reasonable path to correct a record or argue points of law on a moot issue. Our mistake, if there was any, was not as to the merits of the case that caused us to file the matter, but in not adding these additional details into the Emergency Motion for TRO that would have clarified for the Court that we had contact with the adverse party and his attorney prior to the TRO being filed. The OSP maintains the Court was correct in issuing the original TRO on the actual merits of the Emergency Motion.