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Protecting the sacrosanct – an independent, free Judiciary

A lot has been said and written on the Government’s Land and Titles Court (L.T.C.) Bills in recent weeks, and the implications it will have on democracy and the rule of law as we know it today in Samoa.

The Samoa Law Society President Leiataualesa Komisi Koria and his executive have been at the forefront of the advocacy and awareness, revealing how the legislation could have dire consequences on the daily lives of our people, if enacted by the Parliament despite widespread condemnation and calls for the proposed laws to be shelved.

Leiataualesa and his colleagues at the Law Society have bore the brunt of the Government’s backlash, Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi abandoning all forms of etiquette normally associated with the Office he is currently a custodian of, to ridicule and trivialise the counter arguments put forward by these local lawyers who have clocked many years of legal practice.

Prior to the Law Society sounding the alarm bells, members of the Judiciary led by Acting Chief Justice Vui Clarence Nelson expressed “grave concerns” about the L.T.C. bills in a letter dated April 6, 2020 to the Samoa Law Reform Commission Executive Director, Teleiai Dr. Lalotoa Mulitalo. 

But in a one-party state that is Samoa, we saw this coming: Government leaders moving quickly to quash opposition and criticism of major constitutional changes, at a time when the whole world had its eyes on the coronavirus (COVID-19) global pandemic and brought in state of emergency laws to limit the freedoms of citizens. It was the perfect cover, and unsurprisingly throughout history, other governments have used this tactic.

Tragically, for our democracy, the hill that was the L.T.C. Bills has grown into a mountain. Leiataualesa revealed in the April 30, 2020 edition of the Samoa Observer how the appointment of a Supreme Court Judge becomes untenable – if the L.T.C. legislation is passed by Parliament – as the Judiciary Service Commission will have the power to remove these learned members of the bench.

Currently, a Supreme Court Judge in Samoa can only be removed by a two-third major vote in the Parliament. But under the reforms proposed by the Government, the tenure of a Judge becomes the domain of the Judiciary Service Commission, whose membership comprises the Chief Justice, the Attorney General and a representative of the Ministry of Justice and Courts Administration. 

Leiataualesa warns that the changes will enable the executive arm of Government to have authority on the removal of a judge, as the members of the Judiciary Service Commission are appointed by the Prime Minister and the 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.” 

It is fair to say that the third arm of Government in Samoa – the Judiciary – is under assault, courtesy of these constitutional reforms being promulgated by the Government. The warnings that the Samoan Judiciary, the Law Society and its executive as well as experts have issued in recent weeks should not be taken lightly.

The principle of the “separation of powers” between the Judiciary (Court of Appeal, Supreme Court, District Court, lower courts), Legislature (Parliament) and Executive (Cabinet and Government) lies at the core of the parliamentary democracy that the Independent State of Samoa chose when it gained independence on January 1, 1962.

Meddle with that principle of Samoa’s Constitution and you literally throw this nation’s democracy under the bus. It is why other neighbouring democracies like New Zealand and Australia put in place constitutional provisions to protect their Judges and maintain their independence. 

The security and tenure of our Judges at all levels of the Courts needs to be guaranteed, if we want to give our people that level of confidence that members of our Judiciary can dispense justice without fear or favour.

In New Zealand, the Attorney General addresses Parliament and asks the House to recommend to the Governor General that a Supreme Court, Court of Appeal or High Court Judge is removed. In Australia, a special procedure (Section 72) under the Australian Constitution is invoked in order for a Federal Court judge to be removed, which includes an address being made in the Lower and Upper Chambers of the Australian Parliament.

Therefore, 58 years after independence, we see the rationale behind the wisdom of our Forefathers back in the days. They drafted similar constitutional provisions for our Parliament to be the final adjudicator of a Judge’s tenure in office, in order to protect what is considered sacrosanct, and identifies us as a free people, able to truly enjoy the fruits of our democracy. 

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