L.T.C. Bills a threat to Judges
The Judiciary Service Commission will soon have the power to remove a Supreme Court Judge from office.
Under the current practice, a Supreme Court Judge can only be removed by a two third majority vote in Parliament.
The proposed change is one of several amendments in the Constitution Amendment Bill 2020, which supports two other bills, the Lands and Titles Court Bill 2020 and Judicature Bill 2020.
But the President of the Samoa Law Society, Leiataualesa Komisi Koria, that the proposed change means the Supreme Court Judges will no longer be able to conduct their work without fear.
If the changes are approved, the executive arm of Government will now have the authority to remove a Judge. Such a significant change to the security of the Judge's tenure, he said, is dangerous.
He reminded that the majority of those sitting on the Judiciary Service Commission comprise of officials appointed by the Prime Minister and Cabinet.
“What is going to happen when the bill gets passed, that decision will no longer be within that arm of Parliament where there is checks and balances it would be made by executive arm of government,” he said.
“When there is that level of influence by the executive on the work of judiciary then there is a huge danger.
“You will have members of the Supreme Court who can no longer operate without fear and without favour because there is another arm of government that can make a decision whether they can remain in their position or not.”
Leiataualesa said that proposed change will affect all citizens “because there is so much opportunity for abuse of that change in the future”.
“We could have a judicial system, a Court system which is influenced by the executive and that is a terrible thing.”
Currently under the Constitution, a Supreme Court Judge can only be removed through a Parliament vote of two-third majority.
Leiataualesa said every Samoan benefits from having a justice system that would be fair and impartial.
“We have that protection now because we have a strong and independent judiciary and all of our Judges they swear to carry out their duties without fear and without favour, that is in the judiciary oath,” he said.
“The way we setup our constitution and our laws and standing orders in parliament, they are all drafted in a way that protects the Judges, and that allows Judges to operate without fear and without favour.
“There is a standing order where it prohibits Member of Parliament from speaking disparagingly of a judge in parliament and there is a reason for that because it protects the independence and the respect between the different arms of government.”
Another senior lawyer and member of Samoa Law Society, Muriel Lui, agrees.
She pointed out the prescription of the removal of Supreme Court Judge gives room for Government of the day to control the judiciary.
“With the separation of powers, each three arms should be independent and one should not have an arm reach into the other to control,” she said.
She added the proposed change will threaten the impartiality of decisions delivered by the Judges.
“For example if government has a case before the Judge and doesn’t find it favour of the Government the Government through J.S.C. has a huge advantage to remove this Judge.”
In terms of the Judicature Bill 2020, Ms. Lui said it mainly deals with administration and resourcing structure of the Courts.
She explained that the current bill before parliament proposes to take out half of the existing Judicature Bill and entrench those house-keeping matters in the Constitution.
The lawyer, who is a partner of Lui and Chang law firm, said when housekeeping matters are entrenched in the Constitution it undermines the Supreme Law.
“When you put administrative matters there [in the Constitution] it totally undermines that,” she said.
“The other practical effect of that, we all know with housekeeping matters they need to change in accordance with the circumstances of the time
“So every time you want to change something on administrative matters you have to amend the Constitution that requires two third of majority vote in parliament.
“It doesn’t make sense putting it [administrative matters] in the Constitution and not only that it undermines it.”
An example she used is the proposed clause in the Constitution Amendment Bill that only retired Judges of the Supreme Court will sit on the L.T.C. Court of Appeal.
Ms. Lui said given that there are only three retired judges in Samoa who already have other commitment, and would mean the Constitution will have to be amended again to address the issue.
Prime Minister, Tuilaepa Dr. Sailele Malielegaoi had not directly addressed the issues on the removal of Judges and retired Supreme Court Judges sitting on the L.T.C. Court
However, the Prime Minister had emphasised the proposed change will finally recognise the rights of villages.
He said the current “palagi system” only values the individual rights over the communal rights of the village council.
“That is because it is what the Constitution written by the palagi and observed by the whole world says,” he said.
“It was done by papalagi who have no customs and culture like Samoa.”