Attacks on the Judiciary mirror implications of L.T.C. Bills

By The Editorial Board 11 December 2020, 5:20AM

You only have to read yesterday’s edition of the Samoa Observer to see what is at stake for our democracy and how the Supreme Court – as the last bastion of the rule of law and protector of the Constitution – hangs by a thread.

And we are not talking about foreign threats to our sovereignty as a nation, but rather verbal assaults from within, instigated by the custodians of the Executive arm on the third arm of the Government in the Judiciary, in blatant disregard of the principle of the separation of powers with worrying undertones of a despotic regime.

Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi has never shied away from publicly attacking the Judiciary over the years, despite the existence of systems and processes to address public grievances, and the appointment of a Justice Minister within his Cabinet who has ministerial oversight over the administration of justice.

Free speech, while not absolute, is guaranteed to citizens under Article 13 (1)(a) of the Constitution. But it takes a whole new meaning when it is being uttered by the head of the Executive lambasting the Judiciary, as it could potentially raise questions in the minds of the people about the integrity of these institutions, and lead to a loss of confidence in the Bench by the public.

The Prime Minister didn’t name the Judge in a story published in the 10 December 2020 edition of this newspaper, and used his weekly TV1 programme on Wednesday to criticise the judge for allegedly making a “verbal ruling” without giving a written judgement.

“That is one major issue from the [election petition] cases that was recently dealt with in [the Supreme Court] over the nomination of election candidates,” Tuilaepa said.

“This does not relate to Judges that have rendered decisions and also prepared written rulings but there is one specific Judge who hasn’t done that."

But the viewers of the television programme on Wednesday were not privy to the details of the court proceedings that the Prime Minister made reference to, and are therefore unable to make an informed decision on where they stand in relation to the conduct of the judicial officer.

But the Prime Minister’s frequent attacks targeting the Judiciary should not be brushed aside as another bad day in the office by the head of the Government, especially when there are systems and processes in place to address and mitigate shortcomings in government policy or even the application of the law.

The increasing criticism by Tuilaepa – as the current custodian of the highest office in the land – confirms how vulnerable the Judiciary and Members of the Bench will become to the whims of the Executive arm of the Government if the suit of Land and Titles Court (L.T.C.) bills are passed by the Parliament.

Lest we forget correspondence dated 9 March 2020, which the Prime Minister himself penned and addressed to the Chief Executive Officer of the Ministry of Justice and Court Administration (MJCA), that sought an “explanation” over the Supreme Court’s decision to grant bail to accused Lema’i Faioso Sione and Paulo Malele. 

The duo are two of three accused of conspiring to murder Tuilaepa. 

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

But by the mere act of writing to the CEO of the MJCA – using the Office of the Prime Minister’s letterhead to question pertinent details of a judicial process already on foot relating to one’s own case – would and should raise alarm bells in any thriving democracy.

It is no wonder details of the 9 March 2020 letter to the MJCA Chief Executive re-emerged in Parliament early this month, but this time in Australia’s Federal Parliament in Canberra, when Australian Senator Janet Rice made reference to the infamous correspondence.

The Australian M.P. expressed concerns about attempts by the Samoa Government to extradite Brisbane-based Talalelei Pauga, who has also been accused of conspiring to assassinate the Prime Minister, and cited the 9 March 2020 letter as evidence of Tuilaepa’s intervention in the judicial process.

We do not blame Australian politicians for expressing reservations about the actions of the Prime Minister, as they are aware of the implications that their actions could have on the rule of law in their country, if they chose to go down the same path.

Close to nine months after initially raising their concerns on the long-term impact of the L.T.C. bills on the independence of the Judiciary and the rule of law, in a 6 April 2020 letter to the Samoa Law Reform Commission, details of a submission by the Judges and Justices of the Civil and Criminal Courts to the Special Parliamentary Committee were finally published in the 10 December 2020 edition of the Samoa Observer.

The 84-page written submission was submitted in June this year by Justice Vui Laulusā Su’a Thomsen-Nelson, while he was the Acting Chief Justice. The submission was addressed to the Chairperson of the Committee, Gatoloaifaana Amataga Alesana-Gidlow and Committee members.

One of the many flaws the esteemed Judges and Justices highlighted in the proposed legislation is the creation of two parallel apex court systems, which they warn would be detrimental to a functioning judicial system.

They also refuted suggestions that the current structure of the Judiciary did not recognise communal rights and our tu ma aganuu fa’a Samoa. 

A lot has been said and written about these suits of proposed legislation that will return to the floor of the Legislative Assembly for debate and the third reading next Tuesday when the House sits for the last time this year.

Ultimately, the conduct of our leaders in recent years and how they used their powers without respect for the democratic institutions that define us as a nation, should worry all citizens. 

The passage of the L.T.C. bills could come at the expense of citizens’ freedoms, an independent Judiciary and the rule of law.

By The Editorial Board 11 December 2020, 5:20AM

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