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Kanai challenges judges’ authority to render decision in appeal case

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by December 6, 2016 Top Stories

By: L.N. Reklai

(Koror, Palau) Bisure Kanai, a petitioner, had filed a petition challenging Justices Kathleen Salii and Lourdes F. Materne, questioning their rights and authority to issue a decision in a Civil Appeal Case No. 15-026.

In his petition, Mr. Kanai argues that Associate Justices Kathleen Salii and Lourdes Materne, both Associate Justices of the Trial Division of the Supreme Court have no authority to decide on his case filed with the Appellate Division. [restrict]

He asks the Court to declare the decision issued on November 23, 2016 void and to award attorney’s fees and other relief as deemed fair.

The case stems from the opinion issued on November 23, 2016 by Associate Justice Kathleen Salii and Associate Justice Lourdes Materne and Chief Justice Ngirakelsong affirming the decision of the Trial Division stating that Mr. Kanai was liable for gross receipt taxes on the rental income of his land in Ngaraard that he leased out in 2007 for a lump sum of $1.3 million dollars for essentially 99 years.

In August of 2015, after hearing oral arguments and testimonies, the Trial Division presided by Associate Justice Pate entered a judgment for the Republic and against Mr. Kanai for $547,133 for taxes owing from the land lease transaction.

Kanai appealed the Trial Division’s order in Civil Appeal No. 15-026 to the Appellate Division of the Palau Supreme Court. The court affirmed the Trial Division’s order on November 23, 2016, ordering Kanai to pay taxes for rental income received from the lease agreement.

Contesting the court action, Kanai filed for declaratory relief, stating that Associate Justices Kathleen Salii and Lourdes Materne are Associate Justices of the Trial Division and therefore have no authority to render decision on an appeal case in the Appellate Division.

Asserting that OEK passed a law to provide funding for the separation of the Appellate division and Trial Division of the Supreme Court in February of 2016 and President Remengesau Jr. had appointed Associates Justice Barry Michelsen and Associate Justice John K. Rechucher to the Appellate Division around October 2016. Associate Justices Kathleen Salii and Lourdes Materne have no authority to issue decision on his appeal case.

The named justices have 20 days to respond.  Nonetheless, under the current rules and regulations of the Supreme Court, Chief Justice has the authority to assign justices from one division to another.

Under RPPL 9-55 passed in February 2016, it states, “the Chief Justice shall implement the separation of the Justices of the appellate division and provide rules and regulations therefore.”

The Rules and Regulations Restructuring the Supreme Court promulgated and adopted this year states under Section 2, “The Supreme Court is a Court of Record and shall have appellate jurisdiction. The Supreme Court shall be composed of a Chief Justice and not less than two (2) Associate Justices. All appeals shall be heard by at least three justices. No justice may hear or decide an appeal of a matter heard by him in the trial court.”

Furthermore it states, Section 12, “The Chief Justice of the Supreme Court shall be the administrative head of the unified judicial system. He may assign judges from one geographical department or functional division of a court to another department or division of that court and he may assign judges for temporary service in another court.”

The named Justices have 20 days to respond to this petition. [/restrict]

 

 

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