The actions of the former Attorney General in the 2021 political crisis were "a discourteous challenge to the authority of the court” and showed a loss of objectivity in conduct “at the expense of her professional obligation as an officer of the court”. 

These were the comments of the Supreme Court after reviewing the grounds that summarily dismissed the former Attorney General, Savalenoa Mareva Betham-Annandale from office. 

Following her dismissal by Prime Minister Fiame Naomi Mata’afa the former AG filed a lawsuit against Fiame alleging unlawful dismissal. 

Supreme Court Justice Rhys Harrison handed down his decision this week on the proceeding dismissing the lawsuit against the Prime Minister and ordered Savalenoa to pay $5000 to the Prime Minister. 

A removal letter penned by Fiame noted six grounds to justify her decision to remove the former A.G. related to her performance and conduct in her capacity as the senior legal officer for the government. 

One of the grounds for removal was based on Savalenoa’s conduct at the hearing before the Court on 23 May 2021 to hear an application by the F.A.S.T. party to set aside a proclamation made by the Head of State to allow the convening of Parliament. 

The court noted the seriousness of the issue and considered its importance and urgency that it should sit on a Sunday given the application concerned the maintenance of the rule of law.  

When the matter was called “the Attorney General appeared and advised the court that she did not appear for anyone but only appeared as a matter of courtesy to the court. 

“After an exchange with the bench, the AG elected to leave and did not use the opportunity afforded by the Pickwick service to listen to the application and to make submissions as appropriate to advance the interests of her clients, the government, and the Head of State”. 

Savalenoa issued a press release immediately after the court’s reasons for the Suspension Judgment were published. 

Her press release opened by emphasising the legal prohibition on formal service of court documents on a Sunday to justify her refusal to accept the documents personally delivered to her home at the Registrar’s direction. 

She referred to her protest at the hearing that she “was not there to represent anyone as I had had not been served.”

Concerning these events, the Suspension Letter recited the Prime Minister’s view that it was inconsistent with her expectations of an Attorney General. 

Justice Harrison in his discussion said the former AG's on 23 May 2021 and her subsequent press release were openly defiant and scornful of the court. 

“The Head of State had proclaimed without reason his plan to reverse his earlier decision to convene a hearing of the General Assembly the next day,” he said in his judgement. 

“He was effectively announcing his refusal to abide by an order of this court. 

“He was setting the legislature on a collision course with the courts. The risk to the rule of law in Samoa was obvious…” 

Justice Harrison continued to note the full court was entitled to assume that with the benefit of informed legal advice the Head of State would reconsider and withdraw his proclamation. 

“As this court observed in the Contempt Judgment, it was “…almost unthinkable...” that the Head of State would knowingly defy the court’s declarations. 

The court heard the former attorney’s refusal to participate in the Pickwick hearing was “an open discourteous challenge to the authority of this court”.

“Its restrained criticism of her was well justified,” said Justice Harrison. 

“It can be readily inferred that the judges would never have expected such conduct from the state’s senior law officer.

“The former AG compounded her disrespect in the face of the court by the terms of her press release. 

“She justified her actions by asserting that this court’s judgment had earlier been leaked to the media. “She sought to justify her own unprofessional conduct and by clear implication criticised the Chief Justice and his colleagues, culminating in the suggestion that they had denied her clients' natural justice."

Justice Harrison said Savalenoa had no business calling into public question the Chief Justice’s judgment.

He added “It was a highly improper statement which had the clear tendency to undermine public respect for the adherence to the judicial oath to act fairly and impartially in all proceedings.

“I am satisfied that this ground on its own was a valid basis for the Prime Minister’s decision and would have justified the former AG’s summary removal."

The second ground for removal that the court placed weight on was based on the application from the former AG to file a recusal for all the judges in the court. 

The application which was later withdrawn sought to recuse all local judges from sitting in an appeal against the Electoral Commissioner's judgement or any appeal relating to Article 44(1a) of the Constitution and asked for an overseas constituted bench to preside over it.

The recusal followed a press release published under the Attorney General’s Office and stated the ground was the judges’ potential favouritism and bias - “there is now substantive evidence before our office that questions the appearance of impartiality and integrity of our judiciary”. 

The first four paragraphs paraphrased the substance of the former AG's recusal application filed on 26 May 2021. The fifth and sixth grounds amplified a claim made in the recusal application of bias by the Chief Justice and members of the judiciary in attending the attempted opening of Parliament on 24 May 2021, suggesting that the Chief Justice’s actions “…indicate that he may be in contempt of Parliament.”

Savalenoa disclaimed all knowledge of it and asserted that it was not authorised by her office. 

She later tendered her apologies to the Chief Justice and withdrew her recusal application following the publication of the press release. 

The allegation in the press release that the Chief Justice’s conduct suggested his contempt of Parliament was a shorthand summary of the claim made in the recusal application. 

It was the former AG’s evidence that she was acting on instructions from the caretaker government when applying for recusal must be accepted for these purposes. 

However, Justice Harrison said it is not the existence of the instructions to act which was in question but the manner in which the former AG performed them. 

“The recusal application graphically manifests the former AG’s total loss of objectivity,” he concluded. 

“She had abandoned all pretence of neutral advocacy in arguing the then government’s cause. 

“Her language showed her personal adoption of her client’s partisan position at the expense of her professional obligations as an officer of the court. 

“The terms and language of the document showed that she was no longer capable of fulfilling her constitutional function of upholding the rule of law.”

Justice Harrison said that in summary, the Prime Minister’s knowledge of this sequence of events, constituting the first and second grounds for removal, may justifiably have caused her to lose trust and confidence in the former Attorney. 

“However, those consequences were incidental to the real point: in combination, the former AG’s actions manifested gross discourtesy to and disrespect for the judiciary at a time when it was under sustained and unjustified attack from the former Prime Minister and other public figures,” said the court. 

“She demonstrated her inability to discharge her fundamental duty, both as a lawyer and as entrusted to her by the Constitution, to uphold the rule of law by publicly respecting and supporting the judiciary. 

“I am satisfied that her actions were in fact designed to have the opposite effect of undermining public confidence in and the standing of the courts and judges.”

Justice Harrison upheld the grounds advanced for Savalenoa’s removal. 

The third ground for removal related to the former official’s failure to act on continuing attacks on the judiciary from the former Prime Minister, Tuilaepa Sailele Malielegaoi. 

Savalenoa argued the statements were made and protected by freedom of expression under the Constitution and noted there were already proceedings before the court pursued by the FAST party and she was a respondent. 

This was not accepted by Justice Harrison who noted the former AG’s discomfort was secondary to her constitutional duties.

He noted the description from Savalenoa of the situation as “invidious and conflicted” in which he suggested if that was so, she should have resigned without delay if she was unable to perform a critical legal function. 

“The office is always greater than its holder,” the Justice stressed. 

“It is the fact of the former Attorney’s decision to take no steps in circumstances which called for immediate and effective action, and her deeply flawed rationalisation for her inactivity, which demonstrate her inability or unwillingness to perform her critical function of upholding the rule of law by protecting the judiciary from public attack.

“I am satisfied that this ground on its own also was a valid ground for the Prime Minister’s decision and would have justified immediate removal.”