Disregard for judiciary a worrisome glimpse into Samoa's future

By The Editorial Board 08 May 2020, 11:00PM

This week we have seen a glimpse of a future in which the Land and Titles Court and judiciary is remade entirely with the Prime Minister looming large over it. And it makes us worry for the future of the nation. 

On Thursday the Prime Minister, Tuilaepa Dr. Sailele Malielegaoi displayed, yet again, a total disregard for the principles of the separation of powers between the Prime Minister (executive) and the legal branches of Government. 

In March the Prime Minister wrote about a decision to grant bail to Malele Paulo, also known as King Faipopo, and Lemai Faioso Sione, as “comical”.

While addressed to the Ministry of Justice and Courts Administration C.E.O. Moliei Simi Vaai, crucially, it was also copied to the Acting Chief Justice Vui Clarence Nelson; the President of the Lands and Titles Court, Fepulea’i Atilla Ropati and the Supreme Court Justice, Tafaoimalo Leilani Warren Tuala.

(The two men have pleaded not guilty to attempting to assassinate the Prime Minister).

That the Prime Minister chose to personally intervene by copying onto the correspondence the Judge presiding over a matter in which he is involved as the complainant beggars our belief.

It also speaks volumes about his regard for an independent rule of law. 

No other person we are all equal - could have sought to intervene in a case to which they are a party by writing directly to the Judge. 

As Justice Tafaoimalo noted earlier this week, when deciding to grant bail to Lema’i: ”Such correspondence has the potential to undermine confidence in the justice system, the integrity of the criminal process and can prejudice an accused’s right to a fair and impartial trial”.

But Tuilaepa on Thursday attacked Justice Tafaoimalo and accused her of leaking his letter.

“I did not write to the Judge. I wrote to the C.E.O. of the Ministry as I can under my authority as the head of the Executive. It is also clear that this Judge does not understand my role as the head of the Executive and any public servant is under my directive,” he said during the radio program.

“Also, she should have never said anything about this [in Court] and so this means that she leaked out the letter and she should have been extremely careful.”

The Prime Minister did, in effect, write to the Judge. By sending her a copy critical of her decisions that may not have been addressed to her personally,what was nonetheless exposed to the letter’s contents. In so doing, the Prime Minister’s correspondence had the effect of creating a perception of the possible bias over her decision in Lema’i’s application for bail 

It would have been a dereliction of Justice Tafaoimalo’s duty to fail to mention that she had received such correspondence before ruling on the case. 

(Notably, she never mentioned from whom she had received the correspondence).

But failure to disclose her receipt of the letter would have been a complete failure of her role as an independent Judge. The necessity of jurists to disclose conflicts of interest - real and perceived - has been a cornerstone of judicial codes of conduct in every court system in history.

For Tuiilaepa to suggest that Justice Tafaoimalo ought to have never disclosed receiving a copy of his letter shows either his ignorance or total disregard for these basic principles. 

For the Prime Minister to continue criticising the Judge onto his letter and failing to acknowledge it risked the proper application of criminal procedure and risk of respect for the rule of law altogether. 

The Prime Minister got it precisely backwards when he said: “She should have never said anything about this [in Court] and so this means that she leaked out the letter and she should have been extremely careful.”

By failing to disclose that a party in a case had contacted her - even indirectly through a carbon copy - Justice Tafaoimalo would have failed in her obligation to meet the basic standards of judicial disclosure expected of any Judge in any functioning judicial system. By not doing so, she could have put the entire criminal proceedings at risk. 

The Prime Minister also gets it wrong when he said it was his prerogative to have written to the Chief of the Ministry of Justice, Molei Vaai: “My role [is] as the head of the Executive and any public servant is under my directive,” 

Mrs. Vaai agreed with the Prime Minister that it was his prerogative to ask such questions. She believes he did not overstep his bounds by doing so. 

"The P.M. is entitled to ask questions for clarification," she said. "He had valid concerns so why shouldn’t he?"

We respectfully part ways with Mrs. Vaai on this point. IIf the Prime Minister had genuine questions about the conduct of Judges, or was seeking clarification on the nature of judicial reasoning we might see fit to agree. Why he did not instead seek the counsel of the Attorney-General is but one question we can set aside for now. 

The Prime Minister’s questions to the Justice Ministry’s chief were framed as an attack on the conduct of the judiciary and its policy for granting bail as “comical”. The comments were disparaging. The judiciary was compared to a joke. Implicit in that letter was an intervention from Tuilaepa criticising the conduct of the judiciary.

That is, in our view, highly inappropriate behaviour for the Prime Minister

For hundreds of years and across different countries there have been conflicts between the executive and the judiciary. These tensions will continue to exist. 

But they can be reduced. 

The best way for this to happen is for the Executive and Judiciary to recognise, in the words of the former Australian High Court Justice Michel McHuigh, that each has a role to carry out and each is to start from the assumption the other better to carry it out than the other.

For the good of our people it is best for each of the arms of Government to not conduct themselves as combatants but rather as working together for the best interests of the people. 

These issues rise above the regular level of concern for Tuilaepa’s habit of writing to express disfavour with branches of Government coming, as they do, against the backdrop of massive constitutional change.

If passed, a reform to the Land and Titles Court current before Parliament would powerfully strengthen the hand of the executive vis-a-vis the judiciary, 

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. 

Decisions on bills being passed will no longer be made in Parliament and in a chamber with checks and balances. They will be made by the Prime Minister, the executive, who will loom large over the judiciary. 

Members of the Supreme Court will no longer be able to operate without fear that if their decisions annoy the Prime Minister they cannot have confidence that they will retain their position. 

The Prime Minister has shown his preparedness to act in an interventionist way towards the judiciary, before even these powers are bestowed upon him.

How he will behave after they are vested in him is a great concern. 

By The Editorial Board 08 May 2020, 11:00PM

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