Chief Justice appointment should be consistent: Tautua

The leader of the Tautua Samoa Party has called for an objective legal process for the appointment of the nation's Chief Justice, which he says currently depends on the whims of the Prime Minister. 

The Party Leader, Luagalau Dr Afuola Salele, lashed out at the Prime Minister's use of "divine whisper" biblical analogy in the appointment process, saying it mocked Samoans' Christian beliefs.

“There should be a statutory process rather than waiting on the Prime Minister’s 'divine whisper'; this is ridiculous and disappointing," he said.

"The Government should not wait on the divine whisper to make the necessary appointments and also this is literally making a mockery out of our Christianity beliefs."

He said that the new Chief Justice's appointment being announced some 10 months since the seat was first vacated was inexplicably long. 

“The operation of the Government should not wait until the Prime Minister is ready to make an appointment," he said. 

“The Appointment of the Chief Justice, article 65 (2) of the Constitution, the Chief Justice of the Supreme Court shall be appointed by the Head of State, acting on the advice of the Prime Minister.” 

At the time his Honour Satui Simativa Perese was first announced as Samoa’s Chief Justice, the Prime Minister Tuilaepa Dr. Sailele Malielegaoi said: “These appointments as stated earlier, it takes time to seek God’s face and turn to the bible for guidance. And these things take time and the whispers [from the Holy Spirit].” 

Luagalau criticised the statements: “This Government [should] not wait until such a time the Prime Minister receives the divine whisper. That is not how things work in the real world. Also he should not use God’s name in vain like that it is a sin." 

Luagalau said Samoa’s Prime Minister should follow the example of New Zealand’s Prime Minister, Jacinda Adern, after New Zealand’s Chief Justice retired in 2019.

"While there is no statutory process for this appointment, the Prime Minister has put in place a process outlined below to assist her decision," he said. 

Luagalau said the New Zealand P.M. noted the significance of the role of Chief Justice in New Zealand’s constitutional order that the appointment process is conducted against transparent criteria. 

“We should have a similar process in place,” he said. 

Luagalau also addressed a proposal by the Government contained in the Lands and Titles Court (L.T.C.) bills pending in Parliament that would create “new” requirements for the Chief Justice of the Supreme Court. 

“As indicated by the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Diego Garcia-Sayan, the Constitution Amendment Bill would not modify the procedure for the appointment of the Chief Justice, but amend slightly the requirements for the post by requiring an experience as a barrister of not less than 15 years (draft article 66 (2)," he said. 

“And this is a major concern noted by Mr Garcia-Sayan that the appointment of the Chief Justice is not in line with the principles of judicial independence and the separation of powers.” 

Mr Garcia-Sayan, in his open letter to the Government of Samoa, noted that the authorities involved in the selection and appointment of the Chief Justice vary from one country to another. 

“I cannot but notice that in the case of Samoa, the wide discretionary powers attributed to the Prime Minister, on whose advice the Head of State acts, with regard to both the definition of the necessary qualifications for the post and the actual selection of the successful candidate do not provide sufficient safeguards to prevent political interference in the selection of the Chief Justice," the letter read. 

"I am aware that in some countries, including some of the oldest democracies, the executive power sometimes has a decisive influence on the appointment of the Chief Justice. However, such systems work well in practice because the role of the Head of State or the Prime Minister is restrained by legal culture and traditions. 

"In the case of Samoa, the procedure set out in the Constitution and the criteria for the selection of the Chief Justice are not sufficiently clear to ensure that the Chief Justice is selected solely on the basis of objective factors, such as ability, integrity and experience. 

"Furthermore, the participation of other authorities in the appointment process does not render the selection process less questionable, considering the prominent role played by the Prime Minister in their appointment".

The swearing-in of His Honour Satui Simativa Perese, as Samoa's new Chief Justice, is scheduled for 10am, Friday at the residence of the Head of State, Vailele.

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