LTC President is appointed by the Head of State on PM’s advice says AG

By Lagi Keresoma

APIA, SAMOA – 17 MARCH 2021: The Attorney General has clarified in Court that the appointment of the President of the Land and Titles Court, is made by the Head of State on the advice of the Prime Minister.

This came out in the closing argument by the Attorney General in the proceedings of the declaratory order sought by the President of the Land and Titles Court against the Minister for Justice & Courts Administration (MJCA) on Monday this week.

The panel of Judges who heard the matter comprised of the Chief Justice Satiu Simativa Perese, Senior Judge Vui Clarence Nelson and Justice Niava Mata Tuatagaloa.

The Attorney General, Su’a Hellene Wallwork-Lamb, for the Minister of Justice, Matamua Sili Vasati Pulufana explained that once the appointment is made, the President will select a LTC Commission who in turn appoints the Judges.

“It all depends on the appointment of the President because once that is done, then everything falls in place,” Su’a clarified.

LTC Judges appointments revoked under the 2020 Act
The appointment of the LTC President followed on from the discussion of the claim that it was the Minister of Justice who revoked the LTC judges appointments.

Su’a clarified that the statutory appointments under the LTC Act 1981 were revoked under the constitutional amendment passed in December 2020 and adopted in March 2021.

She further stated that this is the legislation that the Minister is responsible for and administration of, and she is trying to preserve the status quo as much as possible until it can be remedied.

Su’a was asked if she thought the revocation of the LTC Commission under the LTC 2020 Act is unconstitutional if it removed the decisions of the judges that were duly appointed.

“The law revoked it completely without going through the process provided for by the legislation, because it affects the security of tenure that’s provided for the judges,” said Justice Tuatagaloa.

Su’a agreed but pointed out that “in this particular case the changes were made through the amendment.”

Chief Justice Perese asked (in theory), if it was possible for the Government through legislation to do the same with the Supreme Court Judges.

Su’a said it would not happen because Samoa was founded on a Constitution and it would be very difficult for elected members to do away with it.

Chief Justice Perese said there was a delay in filling the gaps of these appointments.

Su’a responded that the provision is there for the appointment of the President but there was a delay in conferring the appointment.

“The fact is there was a delay, so how do we fill up the gap in the meantime, what happens now?”

“It is now up to the Head of State to make the appointment on the advice of the PM,” said Su’a.

“And the judges?” asked Chief Justice Perese.

Su’a said once a President is appointed, he will select a Land and Titles Court Commission who in turn appoints the nominees for the appointment of Judges.

“It all depends on the appointment of the President because once that is done and then everything falls in place,” said Su’a.

Breaches of the Constitution
The Attorney General also brought up what she stated was the breach of the Constitution by the constitutional amendments previously passed by Parliament.

She clarified that it was not one or two breaches but a “whole body of cases from certain jurisdictions” and Senior Judge Nelson asked for clarification.

“There have been jurisdictions that have filed constitutional amendments later in Parliament, because there are constitutional amendments that have breached other provisions of the Constitution,” Su’a explained.

Senior Judge Nelson pointed out that those are X Files and Su’a said they are also related to the Constitution.

She informed the Court she could not elaborate much on it at the time but confirmed that there is a whole body of cases where “the Court has declared those procedural matters as unconstitutional.”

Justice Tuatagaloa then referred to what Chief Justice Perese said about Article 2 of the Constitution as the Supreme Law to void any inconsistencies.

“Should the Court file a claim for reasons under Article 2 of the Constitution, and the Supreme Court rule to void it, can we do that?” she asked.

“There is an application to certain legislations,” said Su’a.

The Supreme Court decision is reserved.