Kassi Berg
On October 17, 2012, the Supreme Court issued a fourteen page decision denying President Toribiong and Vice President Mariur’s (“Defendants”) motion to dismiss the case that was filed against them, personally and in their official capacities, by Senators Whipps, Jr., Oilouch, Baules, Remengesau, Jr. and Chin. See Senator Surangel Whipps, Jr., et. al. v. President Johnson Toribiong et. al. , Civil Action No. 12-049. The lawsuit involves the alleged misuse of the Uighur funds and alleged unconstitutional Executive Branch over-expenditures.
By this Court’s Order, this lawsuit just survived its biggest obstacle: Defendants’ motion to dismiss. In short, the Court found that the funds given by the United States to Palau for the resettlement of the Uighurs to Palau were public funds subject to use and distribution according to applicable Palau law. The Court found that the Defendants will be held accountable for their use of the Uighur funds and no Executive defenses raised in their motion shall prohibit adjudication of the suit.
First, the Court found that the doctrine of sovereign immunity does not bar this suit. As precedent, the Court cited the recent case of Seid v. Torbiong. The Court explained that the President was not acting under his “discretionary authority” when distributing the Uighur funds, since the President is bound by statute to follow the competitive biding process for the use of public funds. Defendants’ argued that the Uighur funds were not “public funds” — but rather special funds to be used for a particular purpose – – however, the Court was unpersuaded. The Court stated that “public funds” are virtually any funds held by the President in his official capacity and that the Uighur funds are very clearly public funds that “fell under the realm of the Procurement Laws.”
The Court rejected the application of the doctrine of Qualified Immunity and found that it does not require dismissal of this Complaint since a violation of the law “undercuts the protections of Qualified Immunity.” In other words, if “the President violated these laws . . . Qualified Immunity does not protect either the President or Vice President in this case.” The accusation that Defendants violated the laws are sufficient, at this time, to overcome a Qualified Immunity defense.
Defendants also protested that there is no injury in this case, since the “President effectively managed the funds and got the Uighurs into a safe location.” The Court pointed out that the potential injury is to the taxpayers for the misuse of public funds. The Court, in closing, stated that there is no need for Plaintiffs to show an “improper motive” in order to demonstrate a violation of the law.
The question of whether Defendants did, indeed, violate the laws, will be determined at a later stage.
This decision comes 19 days before Palau’s General Election in Palau wherein Defendants President Toribiong and Vice President Mariur seek re-election.