Was July 9, 2013 Palau’s 34th or 33rd Constitution Day?

The following article was published on July 11, 2013 issue of Tia Belau as a Contributed Commentary.

By Talobak Victorio Uherbelau —-

There is an ongoing controversy even in the highest circles as to what anniversary people of Palau commemorated on Tuesday, July 9, 2013. In an effort to clear the air on this issue a youthful female public servant posed the question to me the other day.  And I asked her, “why me?”  Her reasoning was because only was I one of the 38 delegates who wrote the 1979 first ever nuclear-free constitution, but I also was 1 of the 7 original framers to serve in the 25-member 2nd Palau Constitutional Convention in the summer of 2005 that recommended constitutional amendments that were voted on in the November 4, 2008 constitutional referendum.

And to my surprise this senior congressional staffer also remembered I chaired the JGA Committee of the 7th Palau District Legislature (January 1 – December 31, 1980) which floor-managed the enactment of milestone national laws.  Most significant of these were:

(i) Legislation implementing Palau’s Constitution; (ii) the installation of ROP’s 1st constitutional government on January 1, 1981; (iii) Resumption of future political status negotiations under a new political leadership; (iv) Designation and adoption of the Republic’s flag; (v) Adoption of Palau’s national anthem, and most importantly, (iii) Resurrection of the 1979 Original Constitution by statutory means.

I will attempt, against the foregoing backdrop, to recount from memory specific anecdotes of Palau’s recent political history, and hopefully put into proper perspectives what in fact did occur in the year immediately preceding the birth of our tiny island nation over some 30 years ago.  And it will also be made clear that whether we observe the 33rd or 34th Constitution Day in turn depends on whether we count from the July 9, 1979 or the July 9, 1980 constitutional referendum.

The elder amongst us will recall that Palauan voters were called to the polls three times in a span of one year – JULY 9, 1979 through JULY 9, 1980 — with an intervening 2nd constitutional referendum on October 23, 1979—to finally ratify their supreme law of the land!

(1) The Original Constitution initially was ratified at the July 9, 1979 constitutional referendum by a resounding victory of 92% vote.   

With only a few session days left to wrap up the challenging task of the January 28 – April 2, 1979 that Convention was presented with an unsolicited telegram from the Washington’s Office of Future Political Status Negotiations.  The message essentially voiced US federal government’s concerns over provisions of three articles of the draft constitution ready for adoption on third and final reading.

(a) Article I – Territory— (i) use of archipelagic baselines (extending from Ngeruangel to Hatohobei) from which to measure the breaths of Palau’s maritime zones, and (ii) potential infringement on the rights of innocent passage and the international freedom of the high seas;

(b) Article II(1) – Sovereignty & Supremacy –and Article XIII (6) – General Provisions – requiring 75% approval vote on the Compact of Free Association if it contained nuclear provisions, and

(c) Article XIII (7) – confining the exercise of government power of eminent domain (taking private lands for public use) to Palau’s own public use; not for the benefit of foreign nations or corporations.

To properly address US Government’s reservations, the Convention called a short recess and allowed the General Provisions’ Subcommittee on Territorial Jurisdiction and Sovereignty time to study them and report back their findings.  The Convention went along with Subcommittee’s recommendations by refusing to make changes to (i) the ¾ approval vote, or (ii) the use of the government’s power of eminent domain.  The Convention, however, heeded US warnings by agreeing to effecting major changes by (iii) incorporating a caveat in Article I subjecting Palau’s use of archipelagic regime to applicable provisions of the United Nations Convention on the Law of the Sea (UNCLOS) when the Republic became a State Party to it, and (iv) by adding a new Section 4 to Article I guaranteeing international freedom of the high seas and allowing innocent passages through Palau’s 200 nm Exclusive Economic Zone (EEZ).

(2) 6th Palau District Legislature declined to certify the 92% results of the July 9, 1979 Constitutional Referendum and created instead its own “Constitution Revision Commission”.   

As the 1979 Constitutional Convention was of its creation, the 6th Palau District Legislature resorted to the maxim:  “The power to give is the power to take away!”  So it refused to officially certify the results of the 92% popular vote; repealed a series of Palau laws that had established the Convention and by law created a Commission of its own specifically mandated “to revise” the Original Constitution.  (But this unusual legislative manoeuvring was in fact an attempt to appease the US political status negotiation team in Washington against the clearly expressed wishes and desires of the Palauan voting public.)       

 In the meantime, “The People’s Committee”, comprising of Original Constitution supporters and led by soft-spoken late Alfonso Oiterong, sued the 6th district legislature compelling to proceed with the certification process.  And while the lawsuit was lingering before the TTPI Court, the so-called “Revised Constitution” was put to a vote in the 2nd constitutional referendum and was rejected by an overwhelming 70% negative vote on October 23, 1979.

(3) Elected in November 1979 to take office on January 1, 1980 for a year, the 7th Palau district legislature was to statutorily resurrect the Original Constitution, and sponsor the 3rd Constitutional Referendum to this effect.  

As already mentioned above, the 7th Legislature was faced with a myriad of challenges amongst which were enactments of laws, of utmost importance of which was to find creative way of restoring, reviving or otherwise resurrecting the Original Constitution.

Consequently, a bill designed to effect technical, non-substantive amendments to the Constitution was successfully enacted by the 7th District Legislature and approved into law by then TTPI High Commissioner William Norwood on Saipan. And so on July 9, 1980 the Palauan registered voters, for the third time running, trouped to the polls to ratify by 78% vote two technical changes but of far-reaching significance.  Article XV – Transition—in Sections (1) and (2) the initial January 1, 1980 effective date of the Original Constitution was changed to January 1, 1981; and likewise, the initial  January 1, 1980 installation date of Palau’s first constitutional government was also changed to  January 1, 1981.

(N B Thus incidentally July 9, 2013 also marked the 32nd and half anniversary of the Constitutional Government of the Republic of Palau!    

Furthermore, a word to the wise is sufficient here!   The foregoing vitally significant changes in dates were inadvertently not made to the version of Palau’s Constitution published as Appendix A of the HISTORY OF PALAU, Heritage of an Emerging Nation.  This otherwise an excellent high school textbook on Palauan History has been used as teaching material in the high school classrooms since its publication in October 1997. And it’s never too late for the secondary school curriculum staff in the Ministry of Education not only to make the correction and but to also alert high school graduates as well to point out the error  to the future high school student).  

(4) Tribute to fellow delegates of the 1st and 2nd Palau Constitutional Conventions.

On the occasion of July 9, 2013 Constitution Day Anniversary, we especially the surviving former delegates to the two Palau Constitutional Conventions, must bow our heads in silent prayer in remembrance of and in tribute to our former colleagues who have departed.

(a) 1979 1st Palau Constitutional Convention:

The living:

(i) HE President Kuniwo Nakamura; (ii) HE President Johnson Toribiong, Esq.; (iii) former Education Minister Masa-Aki Emesiochel; (iv) former Speaker of the House of Delegates, Honorable Carlos Hirosi Salii, Esq.; (v) former Dean of the Senate and former Ambassador to Compact Review, Honorable Joshua Koshiba; (vi) former Presidential Chief of Staff and incumbent Ambassador to Compact Review, Reverend Billy Kuartei; (vii) former Presidential Assistant for Maritime and International Affairs, Talobak Victorio Uherbelau, Esq.; (viii) former Minister of Finance and former Budget Oversight Adviser, Haruo Ngiraked Willter; (ix) former Ngaraard State Delegate, OEK Senator and incumbent Ngaraard State Governor Laurentino Ulochong; (x) former Ngeremlengui State Delegate to OEK, Hon. Blau Skebong; (xi) Sonsorol State Delegate, Hon. Mariano Carlos, Esq.; (xii) former Ngarachelong Senator and Hospital Administrative Adviser, Hon.  Masayuki Adelbai; (xiii) former Ngiwal State Delegate to OEK, Hon. Hideo Termeteet; (xiv) former Peleliu State Governor, Hon. Yukiwo Shmull, and (xv) sole Lady Delegate, housewife, and energetic farmer, Ms Fuana Rengulbai.

The departed:

(i) President Haruo Ignacio Remeliik; (ii) Interim President and first popularly elected Vice President & first Minister of State, Alfonso Rebechong Oiterong; (iii) President Lazarus Eitaro Salii;

(iv) Hatochobei State Delegate Pablo Kyoshi; (v) Airai State Delegate Baules Sechelong; (vi) 1st OEK Senate President Kaleb Ungilbesul Udui, Sr., Esq.; (vii) 6th Palau District Legislature Speaker Sadang Ngiracherang Silmai; (viii) Land Court Judge Andres Demei; (ix) Ngardmau Elementary School Principal Ignacio Ngiraiwet; (x) 7th Palau District Legislature Speaker Tosiwo Nakamura; (xi) Father Felix K. Yaoch, SJ; (xii) 1st OEK Senator & Kayangel State Delegate Hank Takawo; (xiii) 5th OEK Senate President Peter Lawrence Sugiyama; (xiv) 6th OEK Senate President Johnny Reklai; (xv) Presidential Assistant Raymond Uluchong; (xvi)Chief of Mental Health Dr. Anthony Polloi; (xvii) Judge Singiichi Ikesakes; (xviii) Aimeliik State Delegate Masami Seksei; (xix) 1st OEK Senator Victor Rehuher;

(xx) 2nd HOD Speaker Santos Olikong; (xxi) Ngchesar State Legislator Moses Ramarui; (xxii) 1s OEK Senator John Sadao Tarkong, Esq., and (xxiii) former Presidential Chief of Staff and Ngchesar State Governor Remengesong Bonifacio Basilius.

(b) 2005 2nd Palau Constitutional Convention:

The living:

(i) former President Johnson Toribiong, Esq.; (ii) former Health Minister Stevenson Kuartei, MD;

(iii) Education Administrator Sinton Soalablai; (iv) former Senate President Seit Andres; (v) Ngaraard State Governor Laurentino Ulochong; (vi) Senator Arnold (Raynold) Oilouch, Esq.; (vii) former Vice President Mrs. Sandra Sumang Pierantozzi; (viii) Ngarchelong State Delegate Marhence Madrangchar; (ix) former Ngardmau State Delegate Rebluud Kesolei; (x) former Vice Presidential Chief of Staff Warren Umetaro; (xi) Senator Hokkons Baules; (xii) Senator Mark Rudimch;

(xiii) former Ibobang High School Principal Valentino Emesiochl; (xiv) former Ngiwal State Delegate Hideo Termeteet; (xv) former Kayangel Elementary School Principal Hans Takawo; (xvi) Hatohobei State Delegate Heimong Sebastian Marino; (xvii) former Presidential Assistant, Maritime and International Affairs Talobak Victorio Uherbelau, Esq.; (xviii) Palau Community College President Dr. Patrick Tellei, Ed.D; (xix) former Finance Minister & Budget Oversight Adviser Haruo Ngiraked Willter; (xx) former Sonsorol State Delegate Mariano Carlos, Esq.; (xxi) Airai State Delegate Frank Kyota; (xxii) former Melekeok State Delegate Francisco Kazuo Asanuma; (xxiii) former Ngaremlengui Governor John Skebong, and (xiv) Senator Surangel Whipps, Jr.

The departed:  (i) Former Presidential Chief of Staff and Ngchesar State Governor Remengesong Bonifacio Basilius.

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