Former Justice C.E.O. cautions against change
The Government's plan to have members of the Judicial Service Commission (J.S.C.) for the Lands and Titles Court as ex-officio members appointed by the Head of State and Cabinet will have an impact on the independence of the Judiciary.
That's the opinion of the former Chief Executive Officer of the Ministry of Justice and Courts Administration, Papali'i John Taimalelagi, in a submission he has presented before the Parliamentary Committee reviewing the three bills in relation to the Lands and Titles Court.
The submission by Papali'i is made as a matai from Sapapali’i Savai’i.
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.
Papali’i, who has been a matai for over 20 years, said the core principle as usual behind the establishment of the J.S.C. is to address the challenges of lack of transparency, in the appointment, retention and removal of judges, which in turn have an impact on the independence of the Judiciary.
“The idea in establishing the J.S.C. therefore was to place the appointment, determination of condition of service and dismissal of judges as well as the management of the judiciary in an independent body," he said.
“It has been noted that the J.S.C. must be a watchdog of certain fundamental values and principles namely; independence of the judiciary; protection of judicial pluralism; role of the judiciary as the custodian of fundamental freedom and rights. Also the development of the judicial review of the constitutionality of laws."
His 24-page submission points to the compromising of the J.S.C. if members are not appointed in a transparent manner that allows them to exercise their functions without undue influence or interference.
“My concern is all members of the Judiciary are ex-officio members appointed by the Head of State and Cabinet," he said.
“The issue however has not been the suitability of these office bearers to be members of the J.S.C.
“The concern has been on the need for the J.S.C. to be more representative of the wider society and the need to dispel the view, real or otherwise that the J.S.C.’s are beholden to the Head of State and Cabinet by virtue of these being the appointing authorities of all the J.S.C. members.”
He said that it has been noted in this regard that although independence might be enshrined in the Constitution and other laws.
“It is the visible fact of independence that will give security to those seeking justice and ensure the effective operation of laws.
“In that regard, the representatives and openness in the appointment process for the J.S.C.s gives the much needed security and confidence to the generality of the population.”
According to Papali’i the International Commission of Jurists in 2013, has recommended that it is preferable that the J.S.C. be broadly representative of the major stakeholders in the administration of justice and that it functions in a transparent manner.
“They further recommend that generally, the J.S.C. should include representative of the Judiciary, the Executive, the legislature, the legal profession, law teachers and civil society.
“Whilst it is not possible for all major interest groups to be represented in the J.S.C.s, the presence of independently appointed individuals plays an important role in injecting the much needed public confidence in the J.S.C. and ultimately in the Judiciary itself,” said Papali’i.
Currently the J.S.C. members for the Judiciary are the Chief Justice; President of the Lands and Title’s Court; Attorney General and retired Judges.