Will referendum decide

Palau

By Ed Rampell

AS baseball player/philosopher Yogi Berra once said: “It’s deja vu all over again.” Thirteen is an unlucky number.

and for the 13th time in about 13 years, November 9 (the anniversary of Jack the Ripper’s last brutal murder) a national referendum was scheduled at the Repub lic of Palau (ROP). Palauans voted on a

proposed Compact of Free Association (COFA) between the Western Pacific Island and the United States.

The Compact would phase out a 46-year-old US administered UN trusteeship, replacing it with a new political status. At stake is the world’s first national nuclear free zone. The clash between the US defence requirements of the Compact and the anti-nuclear con stitution has resulted in the Pacific’s record number of plebiscites and Micro nesia’s bloodiest political conflict. Since 1979 there have been five referendums on Palau’s constitution and seven Compact referendums. The COFA approval pro cess has been as controversial as the treaty itself.

The Compact vote has always been overwhelming favourable, ranging from 72 per cent-60 per cent (in the last COFA referendum February 6, 1990). COFA proponents say the majority has been held hostage by a minority. They contend the accord will give Palau autonomy and hundreds of millions of dollars in US aid. This will provide for self government and economic develop ment of a tiny, remote archipelago with limited resources. US defence commit ments will protect Palau from military invasion. Palau will be able to unravel its status deadlock and emerge from politi cal limbo as the world’s last UN trustreeship. Compact promoters virtu ally claim COFA will be like manna falling from heaven.

Compact critics a significant min ority regard COFA as a disguised military agreement because it requires Palau to abandon its staunch nuclear free constitution, which conflicts with US military policy to neither confirm nor deny nuclear presence. The Compact also gives the Pentagon an option on 33 per cent of the strategically located island chain’s land (Babeldaob is the second largest island in Micronesia after Guam, where the US military owns 33 per cent of the land). Furthermore, at the end of the Compact’s 50 year term, both governments must agree to close US military installations at Palau, which means that if Koror wants the Yankees to go home but Washington wants them to stay, the US can deploy troops there against Palau’s will for eternity.

Oppositionists maintain COFA’s 50 year term is too long. Due to the IPSECO power plant fiscal fiasco and other reasons, they believe the Compact is underfunded and that Free Association has been a disaster where it has been applied in the Federated States of Micronesia (FSM) and the Republic of the Marshall Islands.

Despite the support of most voters, the majority has repeatedly been unable to

prevail because the Compact required a

75 per cent vote in order to override the Republic’s nuclear free constitutional stipulations. Presidents Haruo Remeliik and Lazarus Salii denied this consti tutional reality; both died of mysterious gunshot wounds, consumed by the Com pact cause. COFA and its ratification procedures have generated reigns of terror, as well as numerous law suits.

Dramatic court cases filed by the oppo sition have repeatedly defeated the

Compact.

Palauans are Oceania’s kings of liti gation, and it is no surprise that there were several court cases oppositing the Compact and its ratification process. The appeals to April 1992 and July 1993 high court decisions were consolidated by agreement of both sides and considered jointly by a three judge panel of the ROP

Supreme Court’s appellate division

(Edward King, the FSM’s former chief justice, sat on the panel).

The law suits contended, among other things, that the ballot language for the November 4, 1992 constitutional amend ment misinformed voters and that less than 25 per cent of the electorate had signed the petition seeking the amend' ment. This referendum aimed at amend ing Palau’s framed rules and its hazard ous substances prohibitions so that Com pact approval would require a simple majority, instead of a 75 per cent vote.

A key complainant was Ibedul, High

Chief Yutaka Gibbons, co-represented by Ann Simon off the Manhattan-based Center for Constitutional Rights, a human rights group led by William Kunstler (who defended the Chicago 7 and now represents Muslim fundamen talists charged with bombing New York’s World Trade Center). In 1986 Simon represented Ibedul when he challenged the February 21, 1986 Compact refer endum, insisting that the pact could not be passed with only 72 per cent of the vote. Simon marched up to the judge then and declared that she’d prove Palau was still nuclear free and did just that,

defeating the Compact in a stunning

courtroom triumph.

But the outcome was different this time.

On October 29, the ROP court ruled against the appeals and reaffirmed the November 9 referendum date, declaring: “We find no grounds to undo at the courthouse what the people of Palau have done at the voting booth/’ The court found that the plaintiffs had failed to produce “a single witness who was misled by the language” or “present a single person to testify that his name had been forged or procured by fraud or coercion of any kind” on the constitutional amendment petition.

The court rulings are redolent with

irony. In the name of democracy, the ROP constitution has been used in order to cannibalise itself by amputating the anti nuclear clause that offends a superpower.

The latter of the law may have been carried out but are its spirit and the intent of its

framers preserved?

But there still may be hope on the horizon for the anti-nuke, anti-Compact cause. Another suit brought by anti nuclear activists has been filed in the US District Court in the Northern Marianas, a US Commonwealth. It contends the US

has not provided Compact implementation

assurances mandated by Palau’s congress in

the Compact Implementation Assurance

(RPPL No. 3-76). These improvements

include stipulation that America will only exercise its military land use rights in case of hostilities and crises (which are unde fined), that Palau will not be exempt from US federal programs, that Washington will assume responsibility for any nuclear acci dent taking place in Palau, etc. The

plaintiffs charge that the only “assurance”

Palau has received regarding these im provements is a May 6, 1993 letter (initially unsigned) from U.S. Secretary of State Warren Christopher to ROP PresidentKuniwo Nakamura agreeing to the desired changes. Critics insist a mere letter is not legally binding and that the US Congress has not enshrined the assurances

in legislation.

But the status of this suit is unsure, as of this writing as it is uncertain as to whether or not the plaintiffs’ attorney, Martin Wolff, is licensed to practice law in Saipan.

Furthermore, upon returning from the CNMI to Palau, on October 22 Wolff was charged with possession of firearms, a criminal offence that carries a 15 year sentence in Palau. According to a press release from President Nakamura’s office, Wolffs Filipina maids told authorities about the alleged weapons after he allegedly marched them naked through Ngeschar State, where Wolff lives with his Palauan wife.

Wolff, who first came to Palau in the mid-80s, is noted for controversy. Dubbed “Air Wolff’ for his confrontational man ner, Wolffs jeep was firebombed in 1986; he has been a Jimmy Swaggert proselytiser and a staunch Compact promoter.

Now that a constitutional amendment has struck down the need for Compact ratification by a super-majority of Palauan Voters, COFA adherents feel the Novem ber 9 referendum is the best chance since the Palau constitution was passed in 1979 and the first Compact plebiscite took place in 1983 for the accord to finally gain passage. And in the late 1980 s, the US

Congress already set aside COFA funding,

so there is no need for new monies to be allocated for the Compact.

But time and again in Palau, just when the anti-nuclear constitution seemed doomed, at the last minute, what seems to be divine providence has rescued the charter and snatched Palau’s nuclear free status from the jaws of defeat. While the US Congress has not legislated the assurances ROP enabling legislation demands before the Compact can go into effect, the US Congress has passed a law stipulating that the Compact can not go into effect until all outstanding relevant law suits have been resolved. Tnis requirement grew out of the terrorism targeting Palauan COFA dis senters in the late ’Bos, which, among other things, forced Palauan plaintiffs to drop an

anti-Compact law suit (which they

subsequently won when their case was reinstated). In other words, even if COFA gains 51 per cent of the ballots, should a

single Palauan legally challenge the Com

pact again, it may be years (if ever at all) before there’s Free Association between Palau and America (the “democracy” that can’t take “no” for an answer). President Nakamura is reportedly seeking an ad ditional $2 million from Washington for legal fees, and Palauans have petitioned the UN to postpone the plebiscite.

In Yogi Berra’s words: “It ain’t over till it’s over for nuclear free Palau. □