Judges and politics: oil and water

Former Chief Justice Patu Falefatu Sapolu swapped his black judicial robes for the blue of the Human Rights Protection Party last year. 

He withdrew from standing at the last election after being sent to New Zealand for medical treatment but all the same he firmly nailed his colours to the mast.

But recently he has been active in making pronouncements on matters that lie at the intersection of law and politics. And in doing so he highlights the problems of former members of the bench taking political stances. 

There are examples of politicians going onto careers as judges but they are old, rare and mainly from North America, where the politicisation of the judiciary has become routine.

Politicians such as Salmon P. Chase and former President William Howard Taft are both examples of politicians to the judicial branch but both cases date back more than a century.

There are doubtlessly other examples and there will surely be more in the future.

But it is worth noting that traffic almost never goes the other way. Judges seldom enter party politics and there are plenty of compelling reasons why they ought not to, many of which are highlighted by Patu’s recent statements. 

At its essence the problem relates to the issue of mixing branches of Government that are meant to be independent.

Since the passage of the H.R.P.P. Government’s radical judicial overhaul in December and the months leading up to the election, we have all been shown examples of how important the separation of powers are - and how often they are breached. 

Since his retirement in 2019, Patu is not formally breaching any separation of powers but in the courts, particularly with regard to judicial independence, tradition and custom can often be just as powerful as black letter law. 

As our longest serving Chief Justice, Patu is well versed in the laws of the land. But it is now difficult to view any of his public statements except through the lens of party politics.

Those who follow politics closely may be able to discern such subtleties. But as his opinion will invariably be reported as coming from a former Chief Justice it may well be difficult for many members of the public to tell whether he is speaking as a political partisan or legal expert. Indeed, his admixture of opinion and law make doing so a complex task indeed. 

Then there is the fact that Patu is commenting on matters currently before the court.

The principle of “sub-judice” which prevents reporting or commentary on an active legal matter generally applies to criminal matters involving jurors in case it influences a trial. It is almost never a factor in Judge-led trials on civil or constitutional matters. Judges, after all, are seen as beyond the scope of any such influence. (It is also highly unlikely that a judge would ever admit to or be cognisant of having been swayed; persuasion, after all, is an invisible process.)

But should anyone qualify as having the opinion to influence a judge it would be the man who overruled the nation’s court system for a period of more than a quarter of a century.

We make no suggestion here that Patu has set out to influence judicial opinion or that the fine minds who sit on the judicial bench are susceptible to persuasion: all signs suggest that the contrary is true. 

But the broader principle reflects how messy things can become when politics and law mingle. 

Let us take Patu’s most recent contribution to public debate on the ongoing controversy relating to our Government stalemate, his first since stepping down from the judiciary. 

He questioned whether the 24 May swearing-in of Fa’atuatua i le Atua Samoa ua Tasi (F.A.S.T.) party members was in line with good governance and stability. 

It is difficult to imagine a man who signed papers to run for the opposing party in the election saying the opposite.

Patu mixed opinions grounded in law with his own views on what was right for the future of the nation from a moral perspective - the rhetoric of a politician.

“The question is the F.A.S.T. swearing-in on Monday was it an action to promote peace, stability or good governance of Samoa?” he asked. 

“I believe everyone has their own answer and each political party has their own answer to it.”

Asked to declaratively state whether or not F.A.S.T.’s swearing-in was legal, Patu declined, citing the fact that the matter was before the court.

But his previous comments did everything but provide a black-and-white answer to that question.

Citing several articles of the constitution he made apparently definitive declarations about their meaning.

“So if the current status is not aligned with Article 44 because it does not meet the 10 per cent minimum quota of women in Parliament, then no Parliament can be ordered by the Head of State of convening,” he said. 

Reinforcing the argument advanced by the caretaker Prime Minister, Tuilaepa Dr. Sailele Malielegaoi and the political party under whose banner he was prepared to stand, Patu, using the pronoun “our”, made reference to what he said was the proper interpretation of the law. 

“So if the current status is not aligned with Article 44 because it does not meet the 10 per cent minimum quota of women in Parliament, then no Parliament can be ordered by the Head of State of convening,” he said. 

“The H.R.P.P. believe that there is still a chance that must be taken to call our appeal now on whether or not [a sixth woman M.P.] can be reinstated in her seat in Parliament or not.”

Speaking to TV1 he asserted that the Head of State had legal supremacy in political matters. 

“These authorities belong to the Head of State. He Orders to convene Parliament and he swears in the Speaker of the House,” he said.

The following day a full judgement of a meeting of the Supreme Court, held the day before F.A.S.T.’s contested swearing-in ceremony appeared to suggest the Head of State had higher loyalties and obligations - to the constitution. 

In a judgment signed by Chief Justice his Honour Satiu Simativa Perese; Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala-Warren they made no criticism of the Head of State but suggested he had been “poorly advised” about the fact that his powers were limited by the constitution. 

“The convening of the Legislative Assembly cannot be left until someone [has] decided that it is time for Parliament to meet,” they said. 

“The purported suspension [issued by the Head of State the night before] was made without any reasons or explanations.”

“The Office of the Head of State is an office created and its powers defined by the terms of the supreme law of Samoa the Constitution.”

So, was it Patu the eminent jurist or Patu the politician who was making these remarks?

Last week he made another contribution to the public debate and called for a snap, second election to solve the nation’s political stalemate.

His main argument for a second poll was based almost exclusively on political expediency rather than the law. Conspicuously absent was the legal elephant in the room: how could a snap election be called and Parliament be dissolved if it never sits in the first place? 

The constitution makes clear that only a Parliament on which no party can command confidence can be dissolved. And on the current numbers that is simply not the case. But that was glossed over.

“The difficulty facing us is that this is to be the process we must now follow, to await the completion of by-elections for only then can we determine any additional women members,” he said. 

“[Even further by-elections] could mean uncertainty and instability for Parliament and the decision making processes of our country and that is [...] troubling.”

It is precisely his status as a former Chief Justice that gives Patu a platform to make these pronouncements that he would otherwise not have were he just a lawyer. 

The more former judges use their status, be it intentionally or after being sought out by the media, to make political points the less confidence the public will have in the courts' independence.

Politically active former judges make it harder for current judges to do their job.

We do not want Samoa to go down the path of certain states in the United States of America where judges stand for election, or certain appointments are seen as a pathway to the Presidency or a Governorship.

Judges must never be at risk of being viewed as politicians cloaked in impartial clothing. 

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