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An appeals court ruling found that the position of interim special prosecutor (ISP) is not unconstitutional and confirmed that the position does not require presidential appointment or Senate confirmation.
“An ISP is not an officer of the state under the Appointments Clause. Therefore, the position of ISP does not require appointment by the President with the advice and consent of the Senate and the Act’s provision for the position of ISP is constitutional,” the three-judge bench’s ruling stated.
The ruling was in response to two criminal appeals that challenged the constitutionality of the ISP’s role as a violation of Article VIII, Section 7(3) of the Constitution of the Republic of Palau. The appeals claimed that the position should be appointed by the President and confirmed by the Senate.
The Office of the Special Prosecutor was established by Law RPPL 9-24, which was amended in 2014 after several failed attempts to appoint a permanent Special Prosecutor. The amendment allows the Attorney General to appoint a temporary Special Prosecutor without Senate approval under certain conditions. These conditions include if the President’s nominee for Special Prosecutor is not approved by the Senate, or if the position remains vacant for six months (regardless of whether a nominee has been nominated).
The interim special prosecutor has similar powers to the special prosecutor but reports to the attorney general, who also has the power to remove an ISP for cause.
The Court of Appeal upheld the trial court’s decision, noting that the ISP “is not a state officer because the position is temporary, occasionally established, and supervised by another executive office.”
Earlier, interim special prosecutor Tamara Hutzler said the special prosecutor’s office currently has 80 cases pending pending the outcome of this appeal, raising questions about the legitimacy of her position.
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