An Appellate Court ruling has determined that the position of Interim Special Prosecutor (ISP) is not unconstitutional, confirming that the role does not require presidential appointment or Senate confirmation.
“The ISP is not a national officer under the Appointments Clause. Accordingly, the ISP position does not require appointment by the President with the advice and consent of the Senate, and the Act’s provision for the ISP position is constitutionally valid,” stated the decision, issued by a three-judge panel.
The ruling came in response to two criminal appeals challenging the constitutionality of the ISP role, arguing that it violated Article VIII, Section 7(3) of the Constitution of the Republic of Palau. The appeals claimed that the position should require presidential appointment and Senate confirmation.
The Office of the Special Prosecutor was established under law RPPL 9-24, amended in 2014 after several unsuccessful attempts to appoint a permanent Special Prosecutor. The amendment allows the Attorney General to appoint an Interim Special Prosecutor without Senate confirmation under certain conditions. These conditions include scenarios where the President’s nominee for Special Prosecutor is not confirmed by the Senate, or if the position remains vacant for six months, regardless of whether a nominee has been put forward.
The Interim Special Prosecutor holds similar authority to the Special Prosecutor but reports to the Attorney General, who also has the power to remove the ISP for cause.
The Appellate Court upheld the Trial Court’s decision, noting that the ISP is “not a national officer because the position is occasional, temporary, and supervised by another executive office.”
Earlier, Interim Special Prosecutor Tamara Hutzler stated that 80 cases were pending in the Office of the Special Prosecutor, awaiting the outcome of this appeal, which questioned the legality of her position.