New laws weaken Judiciary, opponents argue

A raft of changes to the Constitution passed by Parliament last Tuesday make it easier for the Government leadership to remove a Chief Justice from their post, and weakens the independence of the Judicial Service Commission (J.S.C.). 

Opponents, Fiame Naomi Mata’afa, Olo Fiti Vaai, Faumuina Wayne Fong and La'auli Leuatea Schmidt maintain the Constitution Amendment Act 2020, alongside the Judicature Amendment Act 2020 and the Land and Titles 2020, are damaging to the rule of law and democracy in Samoa.

The Samoa Law Society has undertaken to establish exactly how the new bills look, after Parliament tabled a report containing new amendments to the draft bills, and passed the report without integrating those changes into new draft bills.

This is contrary to law writing procedures, and standing orders of Parliament, they argue.

Based on their findings, several changes already passed weaken the independence of the Judicial Service Commission (J.S.C.), and simplifies the process of removing a Chief Justice from office.

They claim the Head of State can now suspend the Chief Justice on advice of the Prime Minister, which was previously not possible. 

Before these changes, the Head of State could only suspend a Judge of the Supreme Court, on the advice of the Prime Minister who is meant to act according to advice from the Judicial Service Commission.

Reasons for removing a Chief Justice from office have also been expanded in the amended Constitution. “Infirmity of body” has now been added as grounds to remove a Chief Justice, a criteria previously only in the Constitution for Supreme Court Judges. 

Now under the new Constitution, a Chief Justice – previously not fireable – can be removed because of infirmity of mind, infirmity of body and “stated misbehaviour,” which are all terms defined by the Constitution. 

Rules around assigning an Acting Chief Justice have been amended. Instead of “the senior Judge of the Supreme Court” being eligible to act as Chief Justice (when authorised to by the Head of State), the amendment allows the Head of State of appoint any senior judge on the advice of the Chief Justice.

When it comes to acting judges in the Supreme Court, the J.S.C. no longer has the power to appoint senior judges, Supreme Court judges or the Chief Justice to be temporary Supreme Court Judges.

The J.S.C. membership has been expanded to include more public servants. Today the Commission, which is tasked to manage appointments, dismissals and complaints against judges, 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 from time to time by the Minister of Justice.”

The Constitution currently 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.

Under the amended Constitution, the J.C.S. will also include the Ombudsman, a retired Supreme Court judge and a representative of the community nominated by the Minister of Justice.

The Court of Appeal has been revamped under the new amendments too.

In the Constitution, the Court of Appeal is made up of the Chief Justice and Supreme Court Judges.

Now, retired Supreme Court judges (under age 75) and other people with 10 years of practice on the bar are also eligible to sit on the Appeal bench.

Another new amendment has reduced the number of years required at the bar for judges, down to 10 years instead of 15.

The original draft bill had required barristers to have been practicing for minimum 15 years before being appointed as a judge.  This was a near doubling of the detail in the original Constitution, which only required eight years of practice.

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