The principle of the “separation of powers”, inherent in Samoa’s Constitution as a parliamentary democracy, is among a number of issues at the heart of the current debate surrounding proposed Government legislation to restructure the judiciary.

Judges who currently sit on the Supreme Court bench in Samoa, a former Judge, former politicians, legal and political experts, lawyers as well as political parties have warned of the dangers the legislation poses to the rule of law and democracy in Samoa.

The Government-supported Constitution Amendment Bill 2020, the Land and Titles Court Bill 2020, and the Judicature Bill 2020 have been tabled in Parliament and will go for a third reading before a vote, following the completion of public hearings which started last Friday and is led by a Special Parliamentary Committee.

Over the weekend, a letter dated March 9, 2020 that the Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi wrote to the Ministry of Justice and Courts Administration (M.J.C.A.) Chief Executive Officer, Moliei Simi Vaai was published in the Sunday Samoan.

The Prime Minister had asked the C.E.O. to explain the court process when it came to bail applications by criminal defendants, and specifically highlighted a decision by the Supreme Court to give bail to the accused Malele Paulo (King Faipopo) and Lemai Faioso Sione.

The pair, who were granted bail in February, have pleaded not guilty to a plot to assassinate the Prime Minister.

 “The Police informed me that a Judge granted bail to Lema’i and King Faipopo without any money being paid?" a translation of Tuilaepa's letter reads.

“They could’ve at least paid $2 tala but there was not even a snot, the mind screams with amazement about such comical decision making. What is the policy in terms of bail?"  

The Acting Chief Justice Vui Clarence Nelson; the President of the Lands and Titles Court, Fepulea’i Atilla Ropati and Supreme Court Justice, Tafaoimalo Leilani Warren Tuala, were copied in the letter.

Justice Tafaoimalo presided over the matter of King Faipopo, and Lemai Faioso Sione’s bail hearing in which she ruled for them to be released on bail.

Under the “separation of powers” doctrine, the Prime Minister’s letter to the M.J.C.A. Chief Executive Officer would be deemed to be inappropriate and out of line, as Samoa’s Judiciary should be independent and the letter makes reference to a pending court matter in which Tuilaepa is also a party.

The mere fact that the Prime Minister has expressed an opinion, and questioned the judicial proceeding of a matter in which he is a main party is a big worry, especially when juxtaposed against the concerns expressed in recent weeks about Samoa’s Courts becoming vulnerable to the Politicians through the proposed judiciary reforms.

It makes you wonder if this is the new norm that the country is heading towards if and when the three bills are passed by the Parliament?

Tuilaepa then goes on to ask why the two accused were released on bail without any form of payment, and further questioned the rationale of the Court to adjourn the matter to November this year. 

“Also the matter has been postponed to November; eight months from now. Why is this matter being postponed so far out to November?”

He also questioned whether the Court has many other cases, saying: “Does the J.S.C. (Judicial Service Commission) have a say in what’s happening? Please explain.”

But there is no need for the Prime Minister to write directly to the M.J.C.A. Chief Executive Officer querying administrative issues, which can be raised with the Justice Minister Faaolesa Katopau Ainu’u, who can then bring to Moliei’s attention.

And if Tuilaepa is unhappy with the judicial proceeding currently on foot, in which he is also a party, his lawyer can return to Court to make an application for an expedited hearing on the grounds of national security.

Suffice to say, there are systems and processes in place to address the Prime Minister's concerns, as the Head of the Executive, it is considered inappropriate for him to directly question the inner mechanics of the Judiciary's processes. 

His letter gives the public the impression of a Government attempting to exert influence on a judicial proceeding, and this very act does not augur well for the rule of law in our democracy.

Ultimately, his actions could lead to ordinary citizens losing confidence and respect in the impartiality of the Courts, which is too much of a price to pay for our nation.

The “separation of powers” doctrine protects the three arms of government, and gives the Judiciary, the Legislature and Executive independent powers to ensure each one of them has checks and balances on the other. 

The last thing Samoa wants is a domineering Executive, dictating the terms of governance to reduce the Legislature to mere spectators, and to bring an imbalance in the scales of justice that would disempower citizens.