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Parliamentary Committee recommends for L.T.C. President to continue

The Parliamentary Special Inquiry Committee, appointed to assess the resolution by the Judicial Services Committee (J.S.C.) to suspend the President of the Lands and Titles Court (L.T.C.), Fepulea'i Atilla Ropati, has recommended that the Legislative Assembly endorse the continuation of his services.

The recommendation was made in a report tabled before Parliament on Friday. 

The report is signed by Deputy Speaker and the Committee Chairman, Nafoitoa Talaimanu Keti. Members of the Committee include Ali'imalemanu Alofa Tuuau, Faumuina Tiatia Liuga, Ili Setefano Ta'ateo, Fuimaono Samuaelu Te’o, Faaulusau Rosa Stowers and Tole'afoa Ken Poutoa. 

"The Special Inquiry Committee has noted and accepted the Decision by the Judiciary Services Commission that it is appropriate and is made in accordance with Article 68(6) of the Constitution of Samoa," the report reads.

"Based on Article 68(5), the Special Inquiry Committee has resolved to recommend, that the Legislative Assembly endorse the continuation of the appointment of Fepuleai Letufuga A. M. Ropati as President of the Lands and Titles Court.

"The Committee recommends the Legislative Assembly uphold its decision by way of conscious vote by each individual respective Member."

That vote is scheduled to take place on Tuesday when Parliament reconvenes.

It was noted in the report that the appointment of the Special Inquiry Committee is the first of its kind in the history of Samoa's Parliament, particularly in exercising its duty mandated by Article 68(5) of the Constitution of Samoa to decide on the removal of a Judge of the Supreme Court. 

The President of the L.T.C. was suspended on 10 May 2019. Fepulea’i was convicted and fined $7,000 by the Appellate Court two months ago. This is in connection with causing actual bodily harm with intent on Saili Leota, a security guard of the Ministry of Justice and Courts Administration (M.J.C.A.).

According to the report, the Inquiry terms of reference is to consider the resolution by the J.S.C. to suspend Fepuela’i and review the Article 68(5) of the Constitution of Samoa which reflects  and provide recommendation whether to remove Fepulea’i, as President of the  L.T.C. 

“Article 68(5)- A judge of the Supreme Court shall not be removed from Office, except by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of Members of Parliament (including vacancies), praying for his or her removal from office on the ground of stated misbehaviour or of infirmity of body or mind.” 

The Committee noted that Fepulea’i had expressed remorse at what had happened.

“The Committee questioned Fepuleai, if a situation similar to this was to happen in the future, would he respond the same way? Fepuleai reassured the Committee, that this will never happen again as he has seen the toll his actions have done to his spouse and children.” 

The victim also appeared before the Committee and vowed that he’s forgiven Fepulea’i.

“In the Committee's session with Leota Saili (victim), he stated that he has genuinely forgiven Fepuleai, together with family (spouse and 7 children) and have willingly forgotten what have happened. Leota Saili also willingly expressed that he would want Fepulea'i to work again at the court. He also confirmed, the injury he had sustained from the incident has been healed.” 

Attorney General Lemalu Hermann Retzlaff, who was appointed on the Committee, declared his conflict of interest given that he’s a member of the J.S.C. that suspended Fepulea’i from his post.

“The Special Inquiry Committee also noted in the Court of Appeal's Decision which highlighted and echoed the concerns of the Samoa Law Society Executive which states that the offence was not a Lawyer-client relationship, nor the misuse of trust funds, or an offence of dishonesty.

“The offence has nothing to do with the execution of duties and responsibilities in relation to the Lands and Titles Court.

“The Court of Appeal and the District Court during their deliberations and sentencing considered mitigation factors which includes his commitment to his responsibilities as President of the Lands and Titles Court. Since Fepuleai have been appointed as President he has able to complete 360 L.T.C. Appeal cases within 18 months since presiding as President of the Lands and Titles Court. This is such an outstanding achievement for such a minimum amount of time.” 

Furthermore the Committee noted written submission by the Executive of the Law Society of Samoa, which stated that though the President was convicted of a violent offence, it does not disqualify him from applying for a practicing certificate to practice law in Samoa. 

“The Law Society also confirmed that the President's conviction is not a lawyer — client relationship or a misuse of trust funds, or an offence of dishonesty, that would not disqualify him from practicing law in Samoa. However, thus maintaining his profession as a lawyer thus enables himself to be appointed as President of Land and Titles court.” 

The Committee also considered the Attorney General's advice that was given to the Prime Minister (14 June 2019) as well as its Letter of Advice submitted to the Chairperson of the Special Inquiry Committee (17 June, 2019).

The report is printed in full below. 

INSTRUCTIONS FROM THE LEGISLATIVE ASSEMBLY

1.1. A motion by the Hon Prime Minister on the 28th May 2019 by way of a Ministerial statement appointed and established a Special Inquiry Committee so as to assess the resolution by the Judicial Services Commission (J.S.C.).

1.2. Additionally, for the Special Inquiry Committee in formation with the Court of Appeal's Decision as to guide its findings and report back to the Legislative Assembly for a final decision for Parliament to decide, on the status of the President of the Lands and Titles Court ("President").

INQUIRY TERMS OF REFERENCE. 

2.1. The main objective of the Parliamentary Special Inquiry Committee as stipulated by motion approved by the Assembly is identified by the two criteria below:-

i   Consider the resolution by the Judicial Services Commission to suspend the President of the Lands and Titles Court;

ii.   That Article 68(5) of the Constitution of Samoa to reflect as one of the criteria of the Inquiry Terms of Reference to provide recommendation as to endure or remove Fepulea’i Letufuga A. M. Ropati, from the position of President of the Lands and Titles Court.

    2.2. Article 68(5)- "A judge of the Supreme Court shall not be removed from Office, except by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of Members of Parliament (including vacancies), praying for his or her removal from office on the ground of stated misbehaviour or of infirmity of body or mind".

    2..3.  Establishment of the Committee:-

The establishment of the Special Inquiry Committee is the first of its kind
 in the history of Parliament particularly in exercising its duty mandated by Article 68(5) of the Constitution of Samoa to decide on the removal of a Judge of the Supreme Court. and

2.4. Membership:-

    NAFOITOA Mataia Valu Talaimanu Keti                                                Chairperson

    ALIIMALEMANU Momoemausu Alofa Tu'uau                                    Deputy Chair

    Hon FAUMUINA Tiatia Faaolatane Liuga                                               Member

    ILI Setefano Taateo Tafili                                                                          Member

     FAAULUSAU Rosa Duffy Stowers                                                            Member

  FUIMAONO-TAALA Te'o Samuelu Te'o                                                    Member

  TOLEAFOA Vaafusuaga Ken Poutoa                                                          Member

2.5. BACKGROUND .

  1. Judgement of the Court of Appeal, 15th April 2019;
  2. Letter by Fepuleai to the JSC (18 April 2019);
  3. Cabinet Directive FK19(14), 10 April 2019;
  4. Recommendation by the Judicial Services Commission, 3 May 2019;
  5. Deputy Registrar Letter informing JSC's decision 7 May 2019;
  6. Warrant of Suspension by the Head of State, 10 May 2019;
  7. Special Cabinet Directive FK 19(5), 27 May 2019;
  8. Hon Prime Minister's Motion in the Legislative Assembly, 28 May 2019;
  9. Hearing of Evidence, 17th June — 24th June 2019;
  10. Judicial Services Commission Decision & Article 68(5) of the Constitution.

3 PROCEEDINGS OF THE SPECIAL INQUIRY.

3.1 Committee proceedings commenced on the 13th June 2019 as directed by the Legislative Assembly in its' sitting on the 28th May 2019.

3.2 All Members were present in its first meeting except Hon FAUMUINA Tiatia
 Faaolatane Liuga due to family commitments. The Chairperson and Deputy Chairperson were elected during that first meeting which appointed NAFOITOA Talaimanu Keti as Chairperson and ALIIMALEMANU Alofa Tu’uau as Deputy Chairperson.

3.3. The Prime Minister again reiterated the instructions to the Committee that recommendation from the Special Inquiry Committee should be tabled in Parliament in its' current budget session in June.

3.4. Overall, the Committee heard 10 verbal submissions and written submissions attached.

4 DECLARATION OF CONFLICT OF INTEREST 

4.1. The Attorney General immediately declared his conflict of interest in writing, before the commencement of Committee proceedings and requested that a representative from the Attorney General attend on his behalf. The basis of his conflict of interest was that he is a member of the Judicial Services Commission who had decided otherwise on the President of the L.T.C.

4.2. The Committee also received a letter from the Assistant Attorney General on the 14th June 2019 declaring a conflict of interest due to her family connections to the President of the Land and Titles Court. The Assistant Attorney General appointed Principal Legislative Drafter Ms Leitu Moananu to represent the Office of the Attorney General to provide legal assistance for the Committee.

5 OVERVIEW OF FINDINGS. 

5.1. Committee notes that there were a number of Members of Parliament who requested to make verbal submissions to the Committee. The Committee believes that Members of Parliament will have an opportunity to speak on the issue in Parliament upon tabling of its report.

5.2. The Committee is adamant that its findings focus solely on what was put forth by the Prime Minister's motion which is to decide on the removal of the President of the Lands and Titles Court based on materials provided by the Court and the Judicial Services Commission (J.S.C).

5.3. The Committee also believes that the documents from the court and Judicial Services Commission are sufficient for its findings. The main goal of the Committee is to implement what was stated in the motion and its duties mandated by the Constitution.

6. VERBAL AND WRITTEN SUBMISSIONS.

6.1. During the course of its consideration, the Committee heard and received following evidence stated below:-

6.1.1. "The respondent is convicted of causing actual bodily harm with intent to cause actual bodily harm. He is sentenced to a fine of $5,000 and ordered to pay the complainant reparation of $2,000."

6.1.1 The Special Inquiry Committee also noted in the Court of Appeal's Decision which highlighted and echoed the concerns of the Samoa Law Society Executive which states that the offence was not a Lawyer-client relationship, nor the misuse of trust funds, or an offence of dishonesty. The offence has nothing to do with the execution of duties and responsibilities in relation to the Lands and Titles Court.

6.1.2 The Court of Appeal and the District Court during their deliberations and sentencing considered mitigation factors which includes his commitment to his responsibilities as President of the Lands and Titles Court. Since Fepuleai have been appointed as President he has able to complete 360 L.T.C. Appeal cases within 18 months since presiding as President of the Lands and Titles Court. This is such an outstanding achievement for such a minimum amount of time.

6.1.3 The Committee also received character reference from Professor Richard
Herr of the University of Tasmania and coordinator for the Parliamentary
 Law, Practice and Procedure (P.L.P.P.), which stated, "Samoa would lose more than a Public Officer if he is unable to continue to serve his country. It would lose a great Samoan". Prof Richard Herr (OAM PhD);

6.2 The suspension of the President of the Land and Titles court by the Judicial Service Commission was in accordance with Article 68(6) of the Constitution until Parliament decides on his removal as President of the Land and Titles Court pursuant to Article 68(5) thus the motion put forth by the Prime Minister.

6.3 On the 10th May 2019, a Warrant of Suspension was issued by the Head of State to suspend Fepuleai Letufuga Attila M. Ropati;

6.4 The Committee based on its findings highlighted above, (1), (2) & (3), clearly justify that the decision by the Judicial Services Commission, was in accordance with the provisions of Article 68(6) of the Constitution of Samoa, to suspend Fepuleai Letufuga A. M. Ropati;

6.5 SAMOA LAW SOCIETY;

The Committee noted in a written submission by the Executive of the Law Society of Samoa, which stated that though the President was convicted of a violent offence, it does not disqualify him from applying for a practicing certificate to practice law in Samoa. The Law Society also confirmed that the President's conviction is not a lawyer — client relationship or a misuse of trust funds, or an offence of dishonesty, that would not disqualify him from practicing law in Samoa. However, thus maintaining his profession as a lawyer thus enables himself to be appointed as President of Land and Titles court.

6.6. SUBMISSION BY THE ATTORNEY GENERAL;

Committee has considered and acknowledged the Attorney General's advice that was given to the Prime Minister (14 June 2019) as well as its Letter of Advice submitted to the Chairperson of the Special Inquiry Committee (17 June, 2019).

The Special Inquiry Committee were reminded of the essence of the rule of law and that all persons are equal before the law and entitled to equal protection under the Law.

6.7 ACTING CHIEF JUSTICE SUBMISSION.

The Acting Chief Justice justified the Judicial Services Commission's resolution to recommend the suspension of the President of the Lands and Titles pursuant to article 68(6) of the Constitution. The Acting Chief Justice also reiterated the value of integrity of Judges of the Supreme Courts. 

However, the Committee noted one of the concern raised by the Acting Chief Justice with regards to steady increase of number of Lands and Titles cases which needs immediate attention and recommends Parliament to consider this matter as a priority.

6.8. VERBAL & WRITTEN SUBMMISSION - Fepuleai Letufuga A. M. Ropati;

The Committee received Fepuleai's written submission (10 June 2019) and his verbal submission (17 June 2019 @8:30am), where he had expressed and shown remorse at what had happened however it was an effort on his part to improve the services of the Ministry. The Committee questioned Fepuleai, if a situation similar to this was to happen in the future, would he respond the same way? Fepuleai reassured the Committee, that this will never happen again as he has seen the toll his actions have done to his spouse and children.

6.9.VERBAL SUBMISSION, Leota Saili (victim)- (17 June 2019- 1:30pm);

In the Committee's session with Leota Saili (victim), he stated that he has genuinely forgiven Fepuleai, together with family (spouse and 7 children) and have willingly forgotten what have happened. Leota Saili also willingly expressed that he would want Fepuleai to work again at the court. He also confirmed, the injury he had sustained from the incident has been healed.

6.10. SUBMISSION BY FEPULEAI'S ATTORNEY.

Fepuleai's Attorney reiterated that there is no context between the conviction and tasks and responsibilities of the President as of the Lands and Titles Court.

The Committee also confirmed from the Attorney's submission that article 15 provides for equal rights that relates to descent, sex, language, religion, place of birth, family status or any other which does not irritate what Fepuleai has committed.

The Overview of Findings in Support of the Committee Recommendations.

7.1. The following recommendations is premised on its findings and examination, of written and oral submissions presented to the Special Inquiry Committee, from these sources, as noted below in No. 1 - 10;

  1. Recorded information and decision of the Court of Appeal;
  2. Recommendation by the Judiciary Service Commission;
  3. Warrant by the Head of State;
  4. Oral and written submission by Fepuleai;
  5. Oral submission by Leota Saili;
  6. Written and oral submissions by the Attorney General;
  7. Written submission by the Acting Chief Justice;
  8. Written and oral submission by the Samoa Law Society;
  9. Oral submission by Tuatagaloa Aumua Ming Leung Wai;
  10. Oral submission by Patu Tiavaasu'e Maka Falefatu Sapolu.

7.2. The Committee's main objective in undertaking a review of the presented, evidence and noted views was to assess and construct a recommendation on the continuation or termination indefinitely of Mr Fepuleai in the office of President of the Lands and Titles Court. As such, it is the belief of the Committee after intense deliberations that there is a disconnect between the crime being proven and convicted, and the functions being carried out Fepuleai in his appointment as the President, where he had the tasks/responsibilities of examining cases pertaining to lands and titles, instead of criminal cases.

7.3. The committee have been faced with the tremendous and onerous task in its considerations and findings with regards to the conflicting/and or interrelated nature of Article 15 and Article 68(5) of the Constitution. It was evident in its findings that there is no point of conflict in both articles referred to above, as it quite clear under these articles of the Constitution, that the specific principles which ought to be followed when applied are thus provided in the art: mentioned above.

7.4. The Committee is of the opinion that there is no conflict of Article 15 and Article 68(5) of the Constitution of Samoa, since both terms and conditions and parts that relates to such matters are clearly stipulated therein, and that there are legislation that governs the selection, suspension and work performance of Heads of Ministries that are under the control of the Public Service Commission. However, the selection of official appointment such as Judges of the Supreme Court and the removal from these offices are provided for under Article 68(5) of the Constitution.

7.5. The Committee noted in its deliberations and assessment that the Judiciary Service Commission had carried out its role under Article 68(6), which led them to their course of action of advising the Head of State to suspend Mr Fepuleai following his conviction by the Court of Appeal.

The Special Inquiry Committee examined the consideration in details of the decision by the District Court, whereby they submitted in their verdict of "discharge without conviction", that had been conducted by a matai who is  well versed with the Samoan culture and traditions. The Committee also found that in the course of the proceedings by the District Court, mediation took place between Mr Fepuleai and Leota Saili which noted Mr Fepuleai's heartfelt remorse, an action which ensures peace and stability as our Lord and Saviour demands that "we live in peace and harmony".

7.6. The Special Inquiry Committee also took note the reciprocated check and balances between the Three Executive Arms of Government, whereby Parliament can decide based on its 2/3 majority, the non-termination or indefinite removal of a Judge of the Supreme Court provided for by the Constitution. On the other hand, a Member of Parliament's continuation or removal as a member is determined by the Court of Law if a crime has been proven and committed.

7.7 Additionally the Special Inquiry Committee also weighed the argument and perspective of setting a precedent in certain cases which may arise that involve Appointee in Government Office, the Committee however, emphasized its detailed consideration of Article 15 and Article 68(5) of the Constitution. It was clear in its deliberation that there is no conflict in these articles of the Constitution, since Article 68(5) gives the power/authority to Parliament to make a decision on official appointment as currently evident in the cases of Judges of the Supreme Court, whereas article 15 provides for equal rights that relates to descent, sex, language, religion, place of birth, family status or any of them. Based on the principles outline in Article 68(5), the Committee believes that the reasons and grounds are clear and well specified, and therefore wishes to present its recommendations to Parliament for approval, and to be given thereafter to the Head of State for a warrant, to effect implementation of a decision that the Legislative Assembly of Samoa may arrive to.

8.                          RECOMMENDATION.

8.1. The Special Inquiry Committee has noted and accepted the Decision by the Judiciary Services Commission ( Decision — if you want to restate it in here again), that it is appropriate and is made in accordance with Article 68(6) of the Constitution of Samoa;

8.2. Based on Article 68(5), the Special Inquiry Committee has resolved to recommend, that the Legislative Assembly endorse the continuation of the appointment of Fepuleai Letufuga A. M. Ropati as President of the Lands and Titles Court.

8.3. The Committee recommends the Legislative Assembly uphold its decision by way of conscious vote by each individual respective Member.

NAFOITOA Mataia Talaimanu Keti Chairperson

ALIIMALEMANU Alofa Tuuau Deputy Chairperson                                                                  

Hon FAUMUINA Tiatia Faaolatane Liuga Member                                      

ILI Setefano Taateo Tafili Member

FUIMAONO Taala Te’o Samuaelu Te’o Member               

FAAULUSAU Rosa Duffy Stowers Member 

TOLEAFOA Vaafusuaga Ken Poutoa Member         



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