Marshall Islands 1979 Constitution (reviewed 1995)

ARTICLE VI. THE JUDICIARY

Section 1. The Judicial Power

1. The judicial power of the Republic of the Marshall Islands shall be independent of the legislative and executive powers and shall be vested in a Supreme Court, a High Court, a Traditional Rights Court, and such District Courts, Community Courts and other subordinate courts as are created by law, each of these courts possessing such jurisdiction and power and proceeding under such rules as may be prescribed by law consistent with the provisions of this Article.
2. Each court of the Republic shall have power to issue all writs and other processes, make rules and orders and promulgate all procedural regulations, not inconsistent with law, as may be required for the due administration of justice and the enforcement of this Constitution.
3. The authority granted in paragraph (2) of this Section shall include, in the case of the Supreme Court and the High court and such subordinate courts as are created by law, the powers to grant bail, accept forfeit security therefor, make orders for the attendance of witnesses with or without documents, make orders for the disposal of exhibits, and punish contempt of court.
4. Unless otherwise provided in the Constitution, every judge of the Supreme Court or of the High Court shall be a person with qualifications prescribed by or pursuant to [an] Act; shall be appointed by the Cabinet acting on the recommendation of the Judicial Service Commission and with the approval, signified by resolution, of the Nitijela; may, pending such approval, discharge the duties of his office until the expiration of 21 days after the commencement of the next ensuing session of the Nitijela; and shall hold office during good behavior until reaching the age of 72 years unless, in the case of a judge who is not a citizen of the Republic, the judge has been appointed for a term of one or more years, or in the case of a sitting judge in another jurisdiction, for a particular session of court.
5. Until the Nitijela prescribes by Act the qualifications for judges of the Supreme Court and of the High Court, such judges must be persons qualified by education, experience, and character to discharge judicial office.
6. No judge shall take part in the decision of any case in which that judge has previously played a role or with respect to which he is otherwise disabled by any conflict of interest.
7. The compensation of the Chief Justice and any other judges of the Supreme Court and of the Chief Justice and any other judges of the High Court shall be specifically prescribed by Act.
8. A judge of the Supreme Court or of the High Court may be removed from office only by a resolution of the Nitijela adopted by at least two-thirds of its total membership and only on the ground of clear failure or inability faithfully to discharge the duties of such office or for the commission of treason, bribery, or other high crimes or abuses inconsistent with the authority of his office.
9. If the Nitijela is not in session, the Cabinet may suspend any judge of the High Court or of the Supreme Court until the expiration of 21 days after the commencement of the next ensuing session, but only for such cause as would justify removal of the judge by the Nitijela.
10. Whenever the office of any judge of the Supreme Court or of the High Court, having previously been filled, is temporarily vacant, or any such judge is disabled from performing the duties of this office, the Cabinet, acting on the recommendation of the Judicial Service Commission, may appoint as an acting judge to discharge the duties of that office for the duration of such vacancy or disability, a person qualified within the meaning of paragraph (5) of this Section.

Section 2. The Supreme Court

1. The Supreme Court shall be a superior court of record, shall consist of a Chief Justice and such number of other judges as may from time to time be prescribed by Act, and shall have appellate jurisdiction, as to both law and fact, with final authority to adjudicate all cases and controversies properly brought before it, in accord with this Constitution and other applicable laws of the Republic of the Marshall Islands.
2. An appeal shall lie to the Supreme Court
   1. as of right from any final decision of the High Court in the exercise of its original jurisdiction;
   2. as of right from any final decision of the High Court in the exercise of any appellate jurisdiction, but only if the High Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of the Constitution;
   3. at the discretion of the Supreme Court, subject to such conditions as to security for costs or otherwise as the Supreme Court thinks fit, from any final decision of any court.
3. The High Court may, on its own motion or on application of any party to the proceedings, remove to the Supreme Court any question arising as to the interpretation or effect of the Constitution in any proceedings of the High Court, other than proceedings set down for trial before a bench of 3 judges.
4. In any case in which a question has been removed to the Supreme Court, it shall determine that question and either dispose of the case or remand it to the High Court for disposition consistent with the Supreme Court’s determination.

Section 3. The High Court

1. The High Court shall be a superior court of record having general jurisdiction over controversies of law and fact in the Republic of the Marshall Islands; shall consist of a Chief Justice, and such number of other judges as may from time to time be prescribed by Act, shall have original jurisdiction over cases duly filed in the High Court; and shall have appellate jurisdiction over cases originally filed in subordinate courts; and, unless otherwise provided by law, shall have jurisdiction to review the legality of any final determination by a government agency at the behest of any party aggrieved by such determination.
2. At any time when the judges of the Supreme Court and of the High Court number 4 or more, any judge of the High Court may convene a bench of 3 judges to decide any case in the High Court’s jurisdiction, if the convening judge has determined that the case involves either a substantial question of law as to the interpretation or effect of a provision of this Constitution or any other matter of public importance; and, if an insufficient number of judges of the High Court is available, then, without, prejudice to the appellate jurisdiction of the Supreme Court in relation to that case, the remaining members of the bench shall be judges of the Supreme Court.

Section 4. The Traditional Rights Court

1. The Traditional Rights Court shall be a court of record; shall consist of panels of 3 or more judges selected so as to include a fair representation of all classes of land rights, including, where applicable, the Iroijlaplap, Iroijedrik, Alap and Dri Jerbal; and shall sit at such times and places and be chosen on such a geographical basis, as to ensure fair and knowledgeable exercise of the jurisdiction conferred by this Section.
2. The size, membership and procedures of the Traditional Rights Court shall be consistent with paragraph (1) of this Section, and shall be determined by the High Court unless and until the Nitijela makes provision for those matters by Act.
3. The jurisdiction of the Traditional Rights Court shall be limited to the determination of questions relating to titles or to land rights or to other legal interests depending wholly or partly on customary law and traditional practice in the Republic of the Marshall Islands.
4. The jurisdiction of the Traditional Rights Court may be invoked as of right upon application by a party to a pending judicial proceeding; but only if the court in which such proceeding is pending certifies that a substantial question has arisen within the jurisdiction of the Traditional Rights Court.
5. When a question has been certified to the Traditional Rights Court for its determination under paragraph (4), its resolution of the question shall be given substantial weight in the certifying court’s disposition of the legal controversy before it; but shall not be deemed binding unless the certifying court concludes that justice so requires.

Section 5. The Judicial Service Commission

1. There shall be a Judicial Service Commission which shall consist of
   1. a Chairman, the Chief Justice of the High Court, or if his office is vacant, a person qualified by legal training, experience and temperament, appointed by the Cabinet to act during the period of the vacancy;
   2. the Attorney General or, if for any reason the Attorney General is unable to act, the Chairman of the Public Service Commission;
   3. a citizen of the Republic of the Marshall Islands, who is neither a member of the Nitijela nor an employee of the Public Service, appointed from time to time by the Cabinet.
2. No business shall be transacted by the Judicial Service Commission unless three members are present; and all questions proposed for decision by the Commission shall be decided by a majority of the votes of those members.
3. The Judicial Service Commission shall
   1. make recommendations on judicial appointments on its own motion or at the request of the Cabinet;
   2. recommend or evaluate criteria of qualification for judges on its own motion or at the request of the Speaker or the Cabinet;
   3. appoint and remove judges of the subordinate courts, and of the Traditional Rights Court if authorized to do so by Act;
   4. exercise such other functions and powers as may be conferred by law.
4. In the exercise of its functions and powers, the Judicial Service Commission shall not receive any direction from the Cabinet or from any other authority or person, but shall act independently.