AG Clarifies Amendments to JSC and how Supreme Court Judges are Removed

29 December 2020, Apia Samoa. The Office of the Attorney General has today issued a statement that clarifies recent amendments passed by Parliament under three controversial Bills still being challenged by members of the public including the Samoa Law Society and former Attorney General Taulapapa Brenda Heather-Latu.

The Attorney General clarifies that the Chief Justice remains the Head of the Samoa Judiciary overlooking all Courts including the Lands and Titles Court now mandated to also consider communal rights in their decisions.

The Attorney General confirms that changes have been made to the process of removing a Supreme Court Judge. Previously this was by a 2/3 majority vote by Parliament, however, it is now by the Head of State upon the recommendation of the JSC – Judicial Services Commission. The composition of the JSC has changed slightly with the addition of the Ombudsman and a retired Supreme Court Judge, and the removal of the Lands and Titles Court President.

The Statement from the Office of the Attorney General is published below in verbatim:

THE CONSTITUTION AMENDMENT ACT 2020, LAND AND TITLES ACT 2020 AND THE JUDICATURE ACT 2020

This Press Release serves to provide the general public with information and clarification in relation to public statements and queries about the Constitution Amendment Act 2020, Land and Titles Act 2020 and the Judicature Act 2020 (“3 Acts”).

Head of the Judiciary and the Judicial Services Commission:

1. Pursuant to the Constitution Amendment Act 2020 (“CAA”), the Chief Justice remains the Head of the Judiciary.

2. The reforms amend the composition of the Judicial Service Commission (“JSC”) constituted under Part VI of the Constitution, by substituting the ‘President of the Land and Titles Court’ with the ‘Ombudsman’. The members of the JSC are; the Chief Justice who remains the Chairperson (current member of the JSC), the Attorney-General (current member of the JSC), a community member appointed by the Minister of Justice (current member of the JSC), the Ombudsman (substituting the President LTC) and a retired Supreme Court Judge who is appointed by the Head of State on the advice of Cabinet in consultation with the Chief Justice (current member of the JSC). The Attorney General and Ombudsman are constitutional offices and are thus members by virtue of the offices held.

Procedure for the removal of Judges of the Supreme Court:

3. The removal of the Chief Justice remains to be by the Head of State on an address of two–thirds (2/3) majority of Parliament.

4. The change introduced by the Constitution Amendment Act 2020 (“CAA”) is that the Judges of the Supreme Court will be removed by the Head of State on the advice of the JSC, rather than a 2/3rd majority of Parliament.

5. The removal by a 2/3rd majority of Parliament of Supreme Court Judges, is but one mechanism to remove Judges. The Commonwealth Secretariat “The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice” Report 2015 notes that only 16% of Commonwealth countries use this particular mechanism for the removal of Judges, while the majority of countries utilise an independent body or other constituted bodies (such as the Judicial Service Commission) or an ad hoc committee set up for this purpose.

6. It is therefore not unusual for Supreme Court Judges to be removed by independent, ad hoc or other constituted bodies. In these reforms, Samoa has joined the rest of some 84% Commonwealth countries that remove Supreme Court Judges by means other than a 2/3rd majority of Parliament, i.e. by the Head of State on the advice of the Judicial Services Commission.

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