While upholding the presidential declaration of public health emergency related to Covid-19, the Supreme Court of the Federated States of Micronesia has agreed to review a related policy that shut out traveling FSM citizens.
"The court dismisses the plaintiffs' complaint to the extent that the plaintiffs claim that the president lacked any authority to issue the March 2020 emergency declaration barring all persons from entering the FSM," Associate Justice Larry Wentworth stated in a May 14 decision partially dismissing a lawsuit against FSM President David Panuelo.
The lawsuit was filed in March by 14 FSM citizens, who have been stranded abroad as a result of the president's directive to close the nation's borders.
Wentworth has agreed to allow the plaintiffs "to proceed on their claims that, as applied to them as FSM citizens, less drastic measures might have been imposed to preserve the FSM's health and safety."
The public health emergency was initially declared on Jan. 31, 2020. It has since been renewed several times and remains in place today.
In challenging the president’s move to place the nation under a state of emergency, the plaintiffs argued that Covid-19 was not a natural disaster that would warrant such a declaration. “The court will not take such a cavalier attitude toward the public health and the safety of the FSM and its people,” the court's decision read.
“The court fails to understand how a raging worldwide pandemic could not be considered a natural disaster until it has started killing people in the FSM, and only then could the president issue an emergency declaration to preserve the public health and safety."
The FSM is among the few countries in the world that remain coronavirus-free.
“The court will not read the president’s emergency powers so narrowly as to render them impotent in the face of an unprecedented pandemic, that threatens to inundate our shores, and which only empowers the president to act once it has become too late to stem the tide or to have any beneficial preventative effect," Wentworth wrote.
As a result of the border shutdown, more than 200 traveling FSM citizens have been stranded abroad for more than a year. The first batch to be repatriated on May 13 were those who stayed on Guam. The next repatriation plan is scheduled for May 31, involving FSM citizens stranded in the Marshall Islands.
The court acknowledged that had the president not walled up the FSM’s entry points, the Covid-19 pandemic “would have arrived in the FSM not long thereafter and that the FSM health and medical system was ill-prepared to face it.” The plaintiffs, however, challenged the constitutionality of the border closure, arguing that “less drastic alternative measures were—and still are—available for the president to preserve the public’s peace, health and safety.”
"The FSM Constitution provides that a civil right impacted by a presidential decree issued under a declared state of emergency "maybe impaired only to the extent actually required for the preservation of peace, health, or safety," the court said.
"Since that is so, the plaintiffs' complaint, to the extent that it seeks a declaratory judgment that less drastic alternative measures should have been applied to them (and whether that might have included an advance warning of the FSM border closure) is not dismissed."