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OPINION | The lack of maturity in the political development of the CNMI

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The following is from the author’s “talking points” for the Marianas Agupa radio talk show on Aug. 1, 2020.

THE establishment of the House of Representatives ad hoc committee on fiscal investigations of the executive branch is a positive step, but it is just a single step in a positive direction.

A single positive step in our exercise of self-government does not signify political maturity for the Commonwealth. When you weigh all of the negative publicity that our leaders (both elected and appointed) have engaged in of over the past forty-two years, our positive experience at self-government still falls short. Over the years, so many of our public officials have been accused of corrupt activities while in office, and many have been convicted and sentenced to serve time in federal prison.

From the hiring of ghost employees, to the bribery of public officials in federally funded projects, to corruption in the expenditure of public funds, to the impeachment and resignation of a CNMI governor, and to the conviction of a lt. governor, CNMI public officials still have a lot to learn in terms of good governance.

As all of us know, we have three branches of government— t he executive, the legislative and the judicial branches. All of our elected officials took an oath to uphold and defend the Constitution and laws of the Commonwealth. Our Constitution sets forth their duties and responsibilities. Their primary role is to serve all the people of the CNMI. Yet when they assume office, many of them forget about the people who voted them into office and a number of them start acting to benefit themselves or their friends and cronies.

One of the most glaring examples of self-dealing between our elected leaders and their business cronies was the enactment of the exclusive Saipan casino gaming legislation about five years ago. That legislation was rushed through the CNMI legislature at the insistence of our executive officers and the interested investor. The potential consequences of such “private legislation” were fully not considered. Indeed, the exclusive casino gaming legislation was enacted against the wishes of a large majority of the people of the CNMI. Still, our lawmakers went ahead and passed this exclusive casino license legislation.

Today, the exclusive casino gaming scheme appears to be unraveling in real time before our very eyes. As all of us are aware, the casino licensee’s construction project has literally stopped for almost two years now. And the apparent reason for the standstill in the construction project is that the exclusive casino licensee has apparently run out of money. The exclusive casino licensee, five years ago, publicized that it had $7.1 billion to invest in the Saipan casino industry. It is now apparent that the company never had this huge amount of money, from the beginning.

So in terms of the political maturity of our government, I must sadly say that our elected officials, for over the last 15-20 years, are like the “gang that couldn’t shoot straight.” We still have a lot of “growing up” to do. And quite clearly, we still have a long way to go towards achieving political maturity.

The grounds warranting impeachment of a CNMI executive officer

Only the CNMI Legislature has the power to impeach and remove from office a CNMI executive branch or judicial branch officer. As we know, it is an extremely serious matter to impeach and remove from office an elected executive officer or judicial officer. But this is one of the areas that the legislative branch has constitutional authority over.

At least two-thirds of the members of the House of Representatives must vote to impeach (i.e. to formally accuse) an executive officer or a judicial officer for committing any of the specified constitutional grounds for impeachment.

And at least two-thirds of the CNMI Senate must vote to convict and remove from office an executive or judicial officer.

The grounds for impeaching an executive officer (i.e. the governor or lt. governor) are for: treason, commission of a felony, corruption, or neglect of duty.

The grounds for impeaching a judicial officer (i.e. justices and judges) are for: treason, conviction of a felony, corruption, neglect of duty, or for conviction of a crime involving moral turpitude.

There are no “minimum violations” of these grounds, in order to be impeached and removed from office. You are either guilty of corruption (e.g. bribery), or not. You are either guilty of treason (i.e. betraying your country to the enemy), or not. Or you are either guilty of neglect of duty (i.e. failing to carry out your official duties and responsibilities), or not.

With respect to a judicial officer, he or she has to be actually convicted of a felony; and, he/she must be convicted for any crime involving “moral turpitude.” It may be only for a misdemeanor (i.e. an offense punishable by not more than one-year imprisonment.

As a co-equal branch of government, the CNMI judiciary is not ‘obligated’ to provide ‘guidance’ to the two other branches of government

The duties and responsibilities of the judicial branch are spelled out in the CNMI Constitution. It has been called the “least dangerous branch” because it is not a political branch. The courts are established to decide cases between individuals, and between parties or entities including the CNMI government. It may, however, conduct legal education seminars for incoming lawmakers, in terms of the CNMI Constitution, the Covenant, legislative procedures and rules pertaining to the enactment of CNMI laws, and so forth; but the judiciary has no obligation to do so.

The Office of the Attorney General, similarly, could also conduct an education program for members of the legislature, but it is not obligated to do so. Further, because the legislature is an independent branch of government and the AG (although now an elected office) is a part of the executive branch, it is probably not wise for the AG to be instructing the Legislature on what it can or cannot do.

The best guidance that the legislative branch can get is from reading the CNMI Constitution and laws, and the rules of the House or the Senate, or they may seek the advice of their legislative counsel.

Recommendation to CNMI government leaders with respect to fiscal management

The best recommendation that I could give to CNMI public officials or to anyone with respect to fiscal management is the adage “to live within your means.” You cannot spend money that you don’t have. You should not incur a debt obligation that you cannot repay. This is especially true for the CNMI government. If the CNMI is to borrow money, it must be for something that is permissible under the CNMI Constitution; is critically important for the general public; and the government must have the ability to repay the debt.

When the government unwisely or intentionally misspends public funds and, now, wants to borrow money in order to provide essential public service, the legislature has an obligation to carefully scrutinize the proposed authorization to borrow money before allowing such public indebtedness.

As the branch of government with the exclusive power over “the public purse,” the legislative branch has a fundamental obligation to scrutinize carefully and in detail all expenditure of public funds. The annual budget passed by the legislature must be adhered to by every public official having the expenditure authority in the CNMI government.

Finally, I believe that there should never be a 100% reprogramming authority given to any public official with the expenditure authority in the CNMI government, including the legislature. Such unfettered reprogramming authority invites the misuse and abuse of public funds by the official that is given such reprogramming authority.

One of the most problematic areas for public officials with authority over the expenditure of public funds relates to the so-called “discretionary funds” that is given key officials of the three branches of government. These discretionary funds, for example, are given to the governor and lt. governor, the heads of the judiciary and the heads of the legislative branches. Such discretionary funds should be used for official functions and events only, and not for entertaining friends and cronies, or for paying the drinks of friends at a restaurant or bar.

Further, the official functions and events where discretionary funds could be used must be spelled out clearly in the laws and regulations that govern such discretionary funds and their uses. When there are no clear restrictions on the use of such discretionary funds, there is always a temptation to abuse or misuse such discretionary funds by the public official given the expenditure authority over such funds.

The writer is the CNMI’s first Supreme Court chief justice.

 

 

 

November 2020 pssnewsletter

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