No process for LTC Deputy President’s appointment in the Constitution

Staff Reporters

APIA, SAMOA – 15 DECEMBER 2021: The recent appointment of Faimalōmatumua Mathew Lemisio as Deputy President of the Land and Titles Court has no qualifications or any process provided under the Constitution.

This is part of the legal opinion provided by the Attorney General to the Minister of Justice and Courts Administration, Matamua Seumanu Vasati Pulufana who sought clarification to the Article 104E(4) of the Constitution following the announcement by the Komisi o Faamasinoga o Fanua ma Suafa of the Deputy Presidents appointment.

Under Article104E(4),
“The power to appoint, remove, and suspend terms of appointment of any Deputy President, Vice President, and a Judge of the Land and Titles First Court, is given to the Head of State acting on the advice of the Komisi o Faamasinoga o Fanua ma Suafa, as maybe provided by an Act.”

According to the legal opinion Talamua has viewed, “that whilst the power of appointment is clear under Article 104E(4), the Constitution does not provide for any qualifications for who can be appointed as Deputy President, Vice President or judges of the LTC nor any process to be undertaken when appointing the judges for LTC, how they are removed and so forth.

“By comparison, the qualifications for a Judge of the Supreme Court and their tenure, suspension and removal from office are clearly set out in Articles 66 and 67 of the Constitution.”

According to the records of the Office of the Attorney General, “that the intention of the phrase “as may be provided by an Act” was for an Act to be drafted to activate the powers under Article 104E(4) by providing the guide for the Komisi when exercising the power to appoint these positions.”

According to the Attorney General’s office, the 2020 Act only provided “definitions” for the Deputy President under the definitions section of the Act. However, such definitions still do not provide or address the matters of the qualifications for a Deputy President and LTC Judges, process of appointment, grounds for removal or suspension. Hence the opinion “an Act is required to provide for such matters.”

By letter dated 26 February 2021, the Law Reform Commission provided a draft Bill titled Tulafono Taufaaofi o le Komisi o Faamasinoga o Fanua ma Suafa 2021.

This draft Bill addresses the matters missing from Article 104E. According to the Attorney General’s office, the Bill has been on hold since February this year due to the general elections in April. As of now, the Bill is not ready to be tabled in Parliament as it has not been through the proper consultation process before the Attorney General’s office can do a final review and issue its certificate.

The Attorney General is of the view that the Ministry needs to carry out the consultations for the draft Bill so that it can be finalised and tabled in Parliament. The salaries for these positions also need to be appropriated.

These new positions are Constitutional appointments.

“Their appointments cannot be hastened until the legal requirements and financial requirements are all in proper order.

“Accordingly, until such an Act is passed by Parliament, it is my view that the Komisi cannot yet exercise these powers,” according to the Attorney General, Su’a Hellene Wallwork.