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The “secret whisper”, Chief Justice Satiu and Judges letter to the Government

Let’s see. After a long wait, Prime Minister Tuilaepa Dr. Sa’ilele Malielegaoi finally received the “secret whisper” last month. And having informed the Head of State, His Highness Tuimaleali’ifano Vaaletoa Sualauvi II, as he is required to do by the Constitution, the appointment of Satiu Simativa Perese as Samoa’s Chief Justice, was officially announced on 20 March 2020.

If the gap from the time the former Chief Justice Patu Tiava’asu’e Falefatu Sapolu retired to the new appointment felt like an eternity, that’s because it was.

Why did it take so long? Whether it was island time or perhaps the lack of divine inspiration, what we do know is that the “secret whisper” took eleven months. But then Tuilaepa, as we know him, is a man with an answer for anything and everything.

“These appointments, as I said earlier, it takes time to seek God’s face and turn to the Bible for guidance,” he said. “There were five applicants, two local applicants and the rest from overseas. We concluded to appoint a High Chief from Fagaloa, Satiu Simativa Perese.”

Well let’s congratulate Satiu for being chosen. It’s a proud moment for him, his families, church and villages. It is not everyday that someone is appointed to the highly esteemed position in the Judiciary of any country, let alone in Samoa where Patu had occupied the chair for nearly 27 years.

Still, Tuilaepa’s musings are interesting, aren’t they? Perhaps it explains why the “secret whisper” took so long to arrive.

With due respect to Satiu, in the eyes of many Samoans, he would not have registered as a front-runner for the role and understandably so. Looking at the caliber of Justices and Judges of the Courts at Mulinu’u, one would probably not need a “secret whisper” to appoint one of them as Chief Justice.

Without being too technical about it, it would be natural to think that someone in Samoa with years of experience on the bench and understanding of the dynamics of the judiciary and the politics at work would have been preferred.

Indeed, there is a lot to be said about the decision to appoint a Samoan from outside Samoa given all the legal expertise in Samoa’s jurists. We find it difficult to believe that with all the Judges and lawyers in Samoa, that not one of them was considered a suitable replacement for Patu.

Which is why it will be interesting to find out who these so-called five applicants were since the Chief Executive Officer of the Ministry of Justice and Courts Administration herself has gone on the record to say they were “unaware” of the position being advertised.

But then what do we know? We are after all talking about a “secret whisper” right? It’s so “secret” that even Satiu himself appeared mystified about the process. Two weeks ago when the Samoa Observer contacted him for a comment, Satiu said he thought the position would have been filled a long time ago.

“I had assumed when the previous Chief Justice retired that an appointment would be made quickly thereafter,” said Satiu.  “It wasn’t as if his retirement came as a surprise and I had expected that an appointment was going to be made shortly after that but it wasn’t.”

In any case, Satiu said that when he knew the Chief Justice position was still unoccupied, he felt that a priest’s homily about “knocking on the door and being intentional about your service” was speaking to him.

“Which is why the next day I sent out the expression of interest to Samoa for the job and discussions thereafter were positive. At no time did I know that I would be successful.” So much so Satiu said he was one of the last ones to find out about it.

He said he understood that Prime Minister Tuilaepa was going to email him on 20 March 2020 regarding the position. But his email had been down the whole day and he had only received the message from the Prime Minister at midnight and by that time, the news was already out and widely shared.

The rest as they say is now history.

In the meantime, Satiu said he is looking forward to assuming his new role, when he will take over from the Acting Chief Justice Vui Clarence Nelson who has been holding the fort for nearly a year now. When that is we don’t know. It will all depend on when the coronavirus pandemic border shutdowns are lifted.

But Satiu’s appointment comes at the critical juncture for Samoa, especially the Judiciary. Among many interesting and controversial developments at the halls of justice during the past few years, the new Chief Justice is walking into a battle between the Judiciary and the Government over the demarcation of duties, responsibilities and the separation of powers.

At the heart of it are “grave concerns” expressed by the Judiciary about the risks of proposed changes to the make up of the Courts by the Government, including the creation of an independent Lands and Titles Court (L.T.C.).

These concerns were expressed in a letter signed by the Acting Chief Justice Vui and eight other Judges to the Executive Director of the Samoa Law Reform Commission, Teleiai Dr. Lalotoa Mulitalo, dated 6th April 2020. They have cautioned against the splitting of the nation's court system, and also highlighted the need to safeguard the Constitution and the wisdom with which Samoa's ancestors wrote it.

"Any structure that separates the interpretation and protection of Constitutional rights between two Court systems is in our respectful view flawed, unworkable and carries significant inherent risks," the Judges wrote.

“This is a slippery slope and we are sure the Government does not want the Constitution to become the plaything of politicians".

The Judges went on to recommend the complete withdrawal of the Constitution Amendment Bill 2020; and The Judicature Bill 2020 until their consequences can be considered fully - including wide ranging consultations. They say the proposal is “dangerously” ill-considered given its potential far-reaching effects on the nation’s Courts.

 “What is not broken does not require fixing.”

The letter from the Judges said a lot more and we encourage you to get a copy and read it. They are legitimate concerns about monumental changes to this country’s founding document, the Constitution, which would have enormous ramifications on all Samoans. The timing could not be more compelling.

The question is, do these proposed changes by the Government have a connection to the “secret whisper” and how long it took for it to finally arrive? Are we missing something? Tell us what you think!

Have a safe Thursday Samoa, God bless!

 

 

 

 

 

 

 

 

 

 

 

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