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[Context]

The following texts are quoted from a set of discussion threads on the facebook page, Yap’s Development, originally initiated by Mr. Henry Norman. We re-post parts of the discussions here—particularly those focusing on the definition of “defamation,” and the conversation between Mrs. Kattinow Gisog and Mr. Clement Yow Mulalap pertaining ETG’s proposed “Master Plan.” Please visit the source page for the whole discussions. http://www.facebook.com/photo.php?fbid=10151225142994634&set=o.404462399564440&type=1&relevant_count=1&ref=nf

[Discussions]

Henry K.O. Norman

Maybe you can help explain the “defamation” issue to Kattinow Gisog, Mr. Clement Yow Mulalap? I think she may have not quite understood the difference between stating a fact and “making an accusation”…

Clement Yow Mulalap

Siro.

My apologies, Mr. Norman, for not commenting sooner.

Defamation is a somewhat complicated legal concept. For one thing, there are two types of defamation–slander (which involves spoken defamation) and libel (which involves written or broadcast defamation)–and each type has its own elements and consequences. For another, the law on defamation differs from jurisdiction to jurisdiction, and it is difficult to know which jurisdiction’s law applies to a particular alleged instance of defamation—especially when the purported defamation allegedly takes place online and involves nationals of different countries. Also, in some jurisdictions, the law treats certain people differently than other people when it comes to having the right to sue for defamation, usually because of the “public” statuses of the persons allegedly being defamed. (For example, in some jurisdictions, a reputation-harming statement directed at a public official or other public figure cannot be deemed defamatory unless there is “actual malice” involved in the statement, which usually means that the person making the statement knows or should know that the statement is patently untrue.) Finally, as far as I can tell, there is no case law in the FSM regarding defamation, and so any sort of legal charge of defamation filed in the FSM will likely be a legal issue of first impression that may involve resorting to outside jurisprudences (particularly the United States’s) for guidance. (Of course, if a charge of defamation is brought somewhere other than in the FSM and the US, then different law will apply.) In light of all those complexities, and given the development-oriented nature of this Facebook group, I do not wish to delve too deeply into discussing those complexities. I apologize.

I will, however, note that the general rule on defamation (whether it is slander or libel) in the United States—whose jurisprudence usually furnishes guidance for courts in the FSM and elsewhere in the world that encounter legal issues of first impression—is that the truth is the best defense to defamation. What that basically means is that if someone publishes (i.e., disseminates) a statement—whether orally, through writing, or in some sort of broadcast—that is not obviously untrue, then the statement cannot be deemed defamatory, even if the statement paints a particular person or entity in a negative, reputation-harming light.

From what I understand of the conversation between Mr. Norman and Kattinow, the issue here is whether Mr. Norman’s recent post on bribery (see here: http://www.facebook.com/groups/404462399564440/permalink/506438656033480/) can be considered defamatory toward ETG. The answer to that question depends, in part, on whether Mr. Norman’s assertions in the post are obviously untrue. In his post, Mr. Norman does reference the Yap State Code’s provisions on bribery, so it can be argued that Mr. Norman’s assertions of bribery are not pulled out of thin air and devoid of truth, but are instead based on actual law as applied to actual facts (i.e., ETG’s promised gaming payouts to Yapese citizens and the Yap State Government, as stated in ETG’s promotional brochures and as cited by Mr. Norman in his post). In that case, then, it can be argued that Mr. Norman’s assertions are not “obviously untrue.” Whether Mr. Norman’s application of law to facts is erroneous is not really the issue, in my opinion; as long as people are basing statements on facts and law (as well as on other objective indicators) rather than on baseless malice, then there should be no grounds for defamation. I must stress, though, that this is my personal (albeit professionally-grounded) opinion, and I do not profess to be correct in my assessment. I welcome supplementary/contrary opinions.

On a related note, I hope that people in this group do not use this platform to needlessly and baselessly tar and insult group members as well as (and perhaps particularly) those who are not members of this group. At the same time, I hope that people in this group feel free to express their views on the many issues that this group discusses, and that people are not threatened into being silent because of accusations of legal impropriety. There should be no baseless malice in our discussions, but there should also be no deliberate attempts to chill free speech and stifle people’s willingness to speak their minds and hearts in reasonable and appropriate ways. Let’s please be respectful toward each other, and let’s please let each other speak and listen to each other, even if we disagree with each other. I am very sorry if my comments come off as scolding or condescending. I have no right to lecture anyone here. These are just my opinions.

Kam’magar, ma siro.

Kattinow Gisog

lol, kammagar gow. Henry’s comments were not on my mind at all when i made my comment. i’m really refferring to all kinds of talk and accusations going around here in yap..people got to verify the things they say, not just base it on ‘so and so told me so, so it must be true’…and if somebody has got that much conviction in what they believe then there must be some way to prove it — make a case for it. we really cant afford government corruption so if we truly know something, take it to court and get these people out permanently. let it set precedence and be a lesson. using it as reason to stop this investment before it’s barely scratched the surface, before anything concrete has materialised, is not the way to go.

there’s all kinds of things that we’re concerned about. for myself, i’m concerned about the economic prospects of this state. i’m concerned about the substantial umemployment that we currently face. i’m concerned about the level of outmigration we’re experiencing that has brought this country to negative 0.3 population growth rate. i’m concerned about the aging workforce we have coupled with the emgiration of our youth by the droves. i’m also concerned bout rising prices we experience over and over each year and yet our wages have virtually remained as they were since the 1980’s. i’m concerned about the fast diminishing value of the dollar here in Yap. i’m concerned about how we continue expect our government to provide the public services to the degree we’ve become accustomed to with no regard to the fact this second amended Compact does not have same economic provisions that allowed us such amenities. i’m concerned about what i believe is a desperate situation we are in. and i’m concerned about our attitude of ‘business as usual’ to unproductivity and inefficiency here in Yap. i’m concerned about ‘yapese time’, ‘only in Yap..’ and ‘yigo arogon e pinir’ – i’m concerned about how we can be so spirited in voicing our opposition against this investment, but be completely apathetic about the way we live and work. i’m concerned about the how the whole world is trying to get a piece of this very market, yet we are rejecting it before we even understand it. and i’m concerned that we dont even have any other alternatives to work with.

Clement Yow Mulalap

Siro.

Kattinow,

Thank you very much for your comment. You raise extremely important issues to consider, and I hope that this group takes the time to discuss them with the sort of thoughtfulness and concern that you have exhibited.

If you will let me, I will address a few of the points you raise right now. I hope to address the rest of your points in due time. I strongly encourage others in this group to do the same.

I’m not entirely sure I agree with your assertion, Kattinow, that “we don’t even have any other alternatives to work with.” Is it your contention that ETG’s proposed Project is the only means of sustainable economic development available to Yap? I find that a little hard to believe. As numerous posts in this group have shown, Yap has development potential aside from whatever it may offer as a tourist attraction: aquaculture, focused agriculture, call center services, fisheries, textile manufacturing, and so forth. I am not an economist by trade, but I have tried to keep up with various economic discussions impacting Yap, and I can’t subscribe to the notion that tourism is the only thing that Yap has to offer to the world. I realize that some of the economic activities that I identify above have already been attempted, but that does not mean that they were attempted properly and will not bear economic fruit if implemented and managed appropriately. I think you have better insight into alternative development plans than I do, though, so I very much welcome your input.

I also don’t think I agree with your assertion, Kattinow, that “[no]thing concrete has materialised” yet regarding ETG’s proposed Project in Yap. On the contrary, ETG has already wrangled the State of Yap into signing an actual Cooperative Investment Agreement with ETG, one that binds the State of Yap to a host of actions that the State has never bound itself to performing for any other foreign investor in Yap’s history. That’s concrete. ETG also has an office in Yap, from which ETG continues to seek land leases for its proposed Project, despite strong public opposition to ETG’s presence in Yap. That’s concrete. ETG also has a foreign investment permit and a business license from the State of Yap, documents which give ETG actual legal authority to pursue its investment activities in Yap. Those are concrete.

Now, if you’re saying that nothing concrete has materialized because ETG has not presented a Master Plan, then would you, Kattinow, and perhaps the rest of your Y.A.P. group, agree to push ETG to hold off on seeking land leases for the time being so that it can first present a Master Plan to the people of Yap? ETG insists that it cannot produce a Master Plan before it leases enough land, but I think you realize how fearful people are in Yap about allowing ETG to lease land from private Yapese landowners before people have a concrete idea of what ETG hopes to do in Yap, am I right? Would you want the people of Yap to blindly lease their land to ETG without first knowing what ETG plans to do on the land (as well as on the land of the lessors’ neighbors, since the development of the neighboring land will likely impact adjacent land)? Perhaps ETG cannot present an iron-clad Master Plan with full certainty, but it can at least present to the people of Yap a vision of what ETG intends to do in Yap. It seemed like ETG did exactly that with its various promotional brochures, but ETG seems to have distanced itself from them, and so now the people of Yap are thoroughly confused about what ETG plans to do. If you are insistent on having something “concrete” materialize before Yap accepts or rejects ETG’s development activities in Yap, then are you also in favor of having ETG present its Master Plan first before pursuing land leases in Yap? Wouldn’t that be concrete? Or should we wait until ETG has snapped up land and built large edifices and impacted our natural environment before we can finally say that there is something “concrete” for Yap to judge?

(By the way, this would be an excellent time for Mr. Gang Yang to participate in our discussions.)

Kattinow, again, you raise some extremely important issues and concerns, but to date, ETG has not explained how it will work to address your issues and concerns, even though ETG has had plenty of time to do so. The two main sets of documents that ETG has produced regarding its proposed Project in Yap are ETG’s promotional brochures and the signed Investment Agreement. However, as I have stated, ETG has largely backed off from, and essentially disowned, those promotional brochures, so they are pretty much worthless now, at least according to ETG’s statements here on Facebook and statements from various Yap State Government officials. Also, as for the signed Agreement, I have posted in here and in the Yap State Youth Facebook group about how the Agreement does not actually impose iron-clad obligations on ETG to perform the various social benefit/improvement programs that ETG insists that it will perform under the signed Agreement (let alone perform them to the extent necessary to alleviate the host of concerns you raise, Kattinow). And so, we are left with no clear and binding obligations on ETG, and no clear vision from ETG, regarding ETG’s proposed Project in Yap. Should the citizens of Yap be criticized for supposedly not waiting for anything “concrete” to materialize before rejecting ETG’s proposed Project, or should the criticism be directed at ETG, which has refused to present (and obligate itself to) anything “concrete” despite being in Yap and operating for as long as it has?

Kattinow, ETG has been in Yap for a good while now, but ETG has operated mostly in silence, content to snap up land first before it does any public outreach to the general Yapese public. It is only because there has been tremendous public outcry about ETG and its behavior that ETG seems to finally be reaching out to the Yapese public–but even then, it’s mostly through Facebook and through (for the first time) separate meetings with private citizen groups. Why the wait? Why was this not done a long time ago? Where was ETG’s openness and transparency when public outcry began? ETG’s current outreach attempts may very well be too little, too late.

It seems to me that there is one question that we need to ask ourselves: Based on what ETG has presented so far, on how ETG has behaved so far, on how some of our Yap State Government officials and community leaders have acted so far, on the availability of alternative sustainable development alternatives for Yap, and on Yap’s commitment to preserving her customs, traditions, natural environment, and communal peace, is ETG’s proposed Project the right project for Yap at this time? In my opinion, I think we have enough information to answer that question, but obviously, others disagree.

Thank you again, Kattinow, for your very important contributions to this discussion. I appreciate your passion and your honesty and your concern for Yap. I hope I exhibit similar qualities in your eyes.

Kam’magar, ma siro.

Rachel CutrerJohnson

The reason why so many Yapese people are now equipped with a lot of insight into this whole ETG/Yap issue is due to the fact that ….we all have a difference of opinion. Which is great because it allows each the ability to debunk, defuse, etc. It also allows an opportunity to educate the younger generation. A person could probably earn a degree based on the information that has bounced around on this page. It is extremely important that regardless of how much we may disagree on another’s comments……that we still welcome it in a way. Because had the statements not have been made, the questions and research wouldn’t have probably followed. Can’t have one person lifting up all the rocks to look underneath.

Jay Sulog

I can’t agree more Yow, keep it up. I think the younger generation should do more gardening, fishing, etc,etc you know the local ways of living. To slow down watching too much movies.

Kattinow Gisog

gogngomew Yow, nggu tab i bookmark nag e post rom nga dabgu pagtilin gin kug taw nga…you write so long!!

okay, lets see…when i said ‘nothing concrete’, sorry, i’m not really looking at those things, just the project itself. it’s true they’ve situated themeselves here (office and all) but they would have to. as an investor considering to unload billions of dollars somewhere, its only prudent to establish an office in that country and work from there. the proposed project is a sizeable one, i should think it is also prudent for our government to enter into an investment agreement to establish some regulatory framework, exchange of benefits/costs, and general rules of play (although there are some things in there i dont agree with). i haven’t ran thru the entire yap state code, but i dont think we have the existing laws yet that can regulate this specific project. all investors and local business only must abide by the existing laws to operate. if we left ETG simply to that, i believe we could get ourselves in a mess. whether or not the investment agreement is voided, our state needs to come up with the proper regulations to manage a project like this. LAWS are clear and binding. and of course, they would apply to all business as i dont think we make special laws for one particular person or entity.

what i actually meant by ‘concrete’ is that they dont yet know where their project is to be located, the exact scale of it, the exact laborforce they need and where to pool it from, the specific residents that will affected, the resources that will be affected and to what degree — there isnt anything really concrete yet. they have their vision and we have our speculations but that’s about all we got right now..its too early to tell how this thing is going to pan out.

you’re almost correct in saying i’m in favor of ETG producing a Master Plan before pursuing any land — the only part you’re wrong in is the ‘pursuit’. what i want is for ETG to produce a master plan before any land is OBLIGATED. they have to pursue land leases in order to know where they can have their project and to what scale. this is why i asked you sometime ago bout the clauses in lease agreement that states any actual transaction would be pending the presentation of a master plan and agreement on it between landowner and ETG..but those things are on US. its OUR responsibility to protect ourselves and i encourage any landowner to do so. our government can help in this area by setting up some land office directed by a lawyer to negotiate on behalf of landowners. our government should also think of some regulations to address any adverse effects of this project and see to its enforcement because they WILL be there. that is the job of the state. — regulation and strategic management is also dependant on a master plan and even more dependant on US.

as for other alternatives, everybody got ideas, except for the most part (as far as i know) they are NOT on the table…its not something we are working with. until someone says ‘this is what i’m gonna do’, then we got something to work with. you can front up the money yourself for a project or you can debt-finance. as far as i know, i’m only aware of one fishing project in works right now aimed for export. i dont know much about that project so i cant comment on its feasibility or impact. there isnt anything else tht i know of besides your run of the mill stores, laundromat, apartment, etc. – these profiitability of these projects are more and more stretched given the existing demand and economic conditions. for agriculture, the cost installation, operation, limited resources and coupled with our susceptability to storms and typhoons is what i believe discourages investment in this area. for acquaculture, the regulations around this industry also discourages investment. our government has tied up this industry with so much regulation in the interest of proecting marine life (which is good) but do not have the capacity to assist investment. i’ve worked with locals wanting to debt finance projects in these areas, and after research and assessment, if they were not already discouraged, i’ve had to discourage them from it. and it was for THEIR protection. the acquaculture projects could’ve been viable if both investor and govt can work together. so this is what i know so far about alternatives that are currently on the table – there isnt much. business ideas are great, but enterprise involves a degree of risk and as long as somebody out there stands up, willing to take those risks – we can actually include it as an option. otherwise, we just talking ya’ll.

as for ETG’s public relations — i cant comment much on that. i encourage everyone to dialogue with both govt and ETG to get a better understanding of their project. but coming at them wtih apprehension, suspicion, and accusations might not make for productive dialogue. i dont believe they were secretive tho. before even anything on the investment agreement, public hearings, and all this commotion – they were out trying to meet with public and various group – chamber of commerce, COM, and others. from what i was told, possible misunderstanding of a resolution passed stopped tehm from further public outreach for a while. but even when they were conducting these meetings, people were told that a master plan wasnt developed yet even tho government officials were already demanding it. i believe we ought to take responsibility for much of the confusion surrounding this issue. and that was my whole point of starting YAP…but politics must be more exciting than education, because there is also some resistance in understanding. for ETG, i think they greatly underestimated Yap’s resistance and were ill-prepared for it, and i should think they are reorganising their plan of action. but we can all agree that Yap is exceptionally resistant to change, it is sometimes even a source of pride for us….but alot has already changed and continues to change. and yes, we have things we really must protect. we need to find a balance. and we need to WORK in order to do that.

thanks for the ear ya’ll, i gotta get to work now.

Kattinow Gisog

btw, Yow, i do believe you are honest and carry yourself with much integrity. i hope those in actual positions of power (as opposed to people like us, lol) do the same.

Clement Yow Mulalap

Siro.

Kattinow,

Thank you very much for your comments. I apologize for being such a long-winded writer–must be the lawyer curse!–but I really appreciate you taking the time to respond to me and share your thoughts with the group.

I will fully respond to you in due time. For now, I just want to say that I find much in your response that I agree with. Not everything, of course, but enough to know that this is a very fruitful discussion.

Kam’magar, Kattinow.

Martina Gisog

Yow, I do not mind the ‘long-winded writer’, I am learning a lot from both of you and comments from others too. We just have to keep open mind and try to see from all angles so we can have better understanding of we are going.

Jay Glee Henry

I’m “enightened” by all these concerns and yet a little baffled by the lack of in-put from ETG.I wish for more tangible information from ETG since they’re the investing party,like their plan and the scope of such project.Most of my concerns are regarding infrastructures and the ecological impact any big project has on our small society….

Clement Yow Mulalap

Siro.

Kattinow, I apologize for not responding to your comment sooner. I continue to believe that you raise some very important points, many of which I agree with. However, I feel somewhat unqualified to discuss development-related matters at great length, especially since my primary purpose for participating in this group’s discussions is to analyze legal aspects related to ETG’s proposed Project in Yap. If you don’t mind, then, I would like to take some more time to think about your comment and perhaps do more research on my part.

Before I leave, though, I do want to alert you to a statement made by ETG (perhaps by Mr. Gang Yang, although I am not certain–please confirm, Mr. Gang Yang) on the Yap ETG Paradise Islands Facebook page. You can find the statement here:

http://www.facebook.com/etgyap/posts/450772864968856?comment_id=4835306&offset=0&total_comments=11

Please let me quote the statement in full:

———————————–

Once ETG signed the lease agreement with landowners, ETG will start to pay the lease to the landowners. ETG will submit the plan for the leased actual land to Government for approval. If ETG’s plan has been disapproved, ETG has to show alternative plans for that piece of land to Government for the approval. If Government always disapproves the plans for certain piece of land. The lease agreement on the certain piece of land between ETG and landowners maybe will be voided, because ETG can not do any project on that piece of land. This is my personal thinking, I have to ask our lawyers to confirm this.

———————————–

Kattinow, in one of your comments above, you state the following:

———————————–

you’re almost correct in saying i’m in favor of ETG producing a Master Plan before pursuing any land — the only part you’re wrong in is the ‘pursuit’. what i want is for ETG to produce a master plan before any land is OBLIGATED. they have to pursue land leases in order to know where they can have their project and to what scale.

———————————–

Kattinow, if I understand you correctly, your position is that ETG should not finalize any land lease agreement with a private Yapese landowner unless and until ETG produces a Master Plan; ETG, according to your preference, should be allowed to seek land leases, but just not finalize them without presenting a Master Plan first. Does your position conflict with the statement made by ETG above, Kattinow, and if it does, are you and/or Y.A.P. willing to ask ETG (perhaps in the group’s meeting with Mr. Gang Yang) to agree not to finalize land lease agreements with private Yapese landowners unless and until ETG first formulates and presents a Master Plan? It seems to me that ETG intends to sign land lease agreements before submitting a Master Plan (or at least a “plan for the leased actual land”) to the Yap State Government for approval, so I wonder if there is any way to reconcile ETG’s intent with your position, Kattinow. (I could be misreading your and/or ETG’s positions, though, in which case, I definitely welcome any corrections.)

Thanks again, Kattinow, for your contributions to this discussion. I really appreciate them, and I apologize for not being able to respond to your comments as thoroughly as you have to mine, at least not yet.

Siro.

Kattinow Gisog

Yow, kammagar, i’d be glad to include your question into today’s meeting.

and yes, i would say my position conflicts a bit with this only because i dont understand how would we deal with a situation where money has already exchanged based on an agreement and subsequently, the agreement is then voided. transactions are basically exchanges between parties. if the agreement is voided, i’d assume the landowner must return the money..that would cause a problem if the money has already been spent. my comment above is what i’m in FAVOR of, it’s what i think should happen. if i owned any land, its something i would put in my lease agreement. but i dont own any land, period, so i dont really have a right to dictate how it should go. my comment is really a suggestion hoping it would get those that DO own land thinking about protecting their interests. From what I gather from ETG’s comment, they’re not too certain how these leases are going to be negotiated so there is room to work on it to the benefit of both parties.

We absolutely CANNOT sit and expect ETG or the government or anybody to lay everything out all neatly for us – we must take some initiative on our part. i’m hoping groups like CCG and YAP (which are essentially interest groups) motivate people to do so. i see all kinds of questions and scenarios thrown around – some of them may be directed to ETG but we also must direct some our own government and to our ourselves. we asked government officials about this project – we’re given the runaround and told ‘i dont know’, ‘yes, i know, i’m wondering too’, ‘dont ask us, ask them’ — what is this?? is that a satisfactory answer?? — we ought to work with our government, our communities and with this investor to protect our interests and see to it that we do realise the benefits we are hoping for and mitigate the disadvantages that we are afraid of. i urge everyone to ask yourselves what you can do toward this objective because as much we are debating this, we are still nowhere near addressing the economic realities we face. 11 years is NOT a long time.

Clement Yow Mulalap

Kam’magar, Kattinow. I again find myself agreeing with much of what you’re saying. Thank you for your response, and good luck during today’s meeting.

(Original Link)

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