P.M's attack on Judges underscores concerns
The President of the Samoa Law Society, Leiataualesa Komisi Koria, says the Prime Minister's verbal attack against Judges exemplify their concerns with the suite of proposed changes to the Land and Titles Court, Constitution and Judiciary.
On the eve of the three Bills being brought to Parliament, the legal fraternity claim Prime Minister Tuilaepa's criticisms of Judges highlight the dangers posed in the bills to judicial independence, making it “apt for abuse” by a government.
Earlier this month, Tuilaepa said a senior Judge should be investigated for not yet producing a written decision on an electoral challenge matter.
But in response to questions from the Samoa Observer, Leiataualesa said Tuilaepa’s comments show what might happen if public servants are given the power to dismiss Supreme Court Judges, as the suite of new bills would allow.
“It remains the view of the Law Society that the new laws would give the Executive an unprecedented amount of power to influence and control the make-up of the Judiciary,” he said. “They would also create a system that would be apt for abuse by the Government of the day.
“The Samoa Law Society cautions against the passage of the three bills in question without further consultation and review to ensure that the above concerns, which are shared by several international bodies, are properly addressed.”
In early December, Tuilaepa said he intends to amend the Electoral Act 2019 and the monotaga provisions, and criticised the Judges of the Supreme Court who handled 20 election petitions over a four week period.
He said if a judge does not themselves render monotaga, they may not understand Samoan culture and tradition. He did not name any one or any case in particular.
And last week, he called for the Judicial Services Commission to investigate a judge who made verbal decisions on electoral petitions but is yet to issue their written decisions with the full rationale.
“[…] I question his integrity and the honesty of his conduct in this matter; hence the J.S.C. needs to look into the Judge,” Tuilaepa said, without naming the judge.
“In the estimation of the Law Society, the call for an investigation of the Supreme Court Judge in question is arbitrary,” Leiataualesa said.
Supreme Court Justices are given four weeks only to hear and decide electoral petitions based on the election registration period. This year there were 20 such challenges.
“Practically all of the electoral challenges that were heard involved the interpretation and application by the Courts of new legislative provisions, many of which underwent extensive amendment as recently as in September.
“The legislative requirements caused a huge disruption to the ordinary work and case load of the Supreme Court,” Leiataualesa said.
“Despite the challenges presented by the legislation and the procedural requirements, decisions were rendered in all of the cases that were heard within the four week timeframe.
“Given the very short timeframe, in many cases, the decisions were delivered orally, with written decisions to be delivered at a later date. This causes no prejudice to any of the election candidates concerned as, under the legislative framework enacted by Parliament, there is no right of appeal from the decisions of the Supreme Court in electoral challenges.”
To call for an investigation on a judge under these circumstances is “highly inappropriate,” Leiataualesa continues.
“The comments by the Prime Minister bring to the forefront one of the concerns raised by the Samoa Law Society in respect of the three Bills that are to be tabled before Parliament for their third reading on 15 December 2020.”
The Land and Titles Bill, the Judicature Amendment Bill and the Constitution Amendment Bill would, together, radically alter the structure of the country’s judicial system and experts have said they stand to threaten the rule of law in Samoa if passed.
The three bills have passed their first two readings in Parliament and undergone a Select Committee consultation process. On Tuesday 15 December they are scheduled to undergo the third reading.
Among the proposed changes is for the Judicial Service Commission (J.S.C.) – a body of public servants which advises on who to appoint or promote within the Judiciary – to have the power to dismiss Supreme Court Judges from office.
This would replace the current system, which demands a two thirds majority vote in Parliament for a sitting judge to be removed. This privilege would be retained only for the Chief Justice.
Leiataualesa said giving public servants, employed by the Government of the day, the power to fire judges will influence the judges in their work.
If a panel of individuals, funded by the Government, control their destiny on the bench, they may be unwilling to make rulings that upset the J.S.C., the Law Society warns.
“At present, the Constitution provides that only a two thirds majority of Parliament may remove a Supreme Court Judge from office, meaning that such a decision could ordinarily be voted against by the opposition of the day,” he said.
Both Amnesty International and the United Nations Special Rapporteur on Human Rights have stated their worry over this amendment too.
In June, Amnesty International wrote that if the judicial independence is at risk, so are human rights protections for Samoans.
“Amongst other things, the proposed new laws erode the rule of law and enable the executive to arbitrarily dismiss judicial officers without cause or due process.”
The J.S.C. is made up of the Chief Justice, the Attorney General (or the Chair of the Public Service Commission in their place), and a person nominated by the Minister of Justice.
The Constitution states that the J.S.C. is to advise the Head of State on the appointments, promotions and removal of judges, other than judges of the Supreme Court.
Judges of the Supreme Court hold lifetime appointments. Specifically, they hold their office until the retirement age of 68 years, unless the Head of State agrees of extend their time.
If passed, the new Constitution Amendment will mean the Chief Justice only can be removed by a two thirds majority of Parliament, leaving Supreme Court judges in the hands of the J.S.C. (see section 68 (5) in the Constitution of Samoa and section 67 (5) in the Constitution Amendment Bill 2020).