Samoa's caretaker government is continuing its attempts to undermine the judiciary.
The Human Rights Protection Party (HRPP) has written again to the Judicial Services Commission (JSC) requesting it act against the country's Chief Justice.
Chief Justice Satiu Simativa Perese at his June 2020 swearing-in with the Head of State and his Masiofo. Photo: RNZ Pacific / Autagavaia Tipi Autagavaia
The HRPP's MP for Faleata West, Leala'ilepule Rimoni Aiafi, has reiterated his concerns about Satiu Simativa Perese's expertise in his role as the head of the country's judiciary.
He's accused the Chief Justice of incompetence and not acting in accordance with the law, basic legal principles and well established precedents.
He told RNZ Pacific the Chief Justice should recuse himself from presiding over a Court of Appeal hearing tomorrow which will determine if election winner Fa'atuatua i le Atua Samoa ua Tasi (FAST) party's impromptu swearing-in on 24 May will now be recognised.
Leala'ilepule confirmed he was not satisfied with the response from his previous letter to the JSC after their convening on Tuesday so he wrote again yesterday.
He said they are meeting to discuss his concerns this afternoon.
However, sources close to the JSC told RNZ Pacific that Tuesday's meeting was a heated affair with no consensus reached among the required quorum. The five member Commission comprises the Chief Justice, the Attorney General, the Ombudsman, a former Supreme Court Judge, the Justice Minister's representative and the Justice Ministry CEO in a non-voting capacity.
Further, the source added that today's meeting was held without the Chief Justice or the former Supreme Court Judge so lacked a quorum to decide any action. The members who were present have vested interests with the HRPP government as their employer, according to our informant.
But the JSC has no authority to remove the Chief Justice.
Only the courts are able to recuse him or invite him to withdraw due to a conflict of interest. The Head of State can order the CJ's removal but only due to an infirmity of the mind, if he is physically unable to perform his duties, or due to misconduct or misbehaviour. None of these conditions apply.
The issue with the Chief Justice
Primarily, said the HRPP's Leala'ilepule, the concern is with the Chief Justice heading up tomorrow's Court of Appeal hearing when, it's claimed, he has demonstrated a bias to the FAST party.
Elsewhere, Samoa's judiciary has been lauded for its neutrality and its adherance to the Constitution and the law.
"We believe he shouldn't be presiding over the Court of Appeal tomorrow," said Leala'ilepule.
"So hopefully he will do the right thing and delegate it to other judges available."
But he added their preference would be neutral judges from a separate jurisdiction.
The HRPP's Leala'ilepule Rimoni Aiafi. Photo: Dominic Godfrey / RNZ Pacific
"As per the Constitution, we really would like to get some overseas judges to preside over that matter. The magnitude of the matter justifies some overseas judges to preside."
Judges at tomorrow's appelate court hearing meet the country's Constitutional requirement.
And the preference for foreign judges contrasts with a criticism of Chief Justice Satiu contained in his letter to the JSC, that he doesn't have the finer knowledge of Fa'a Samoa (Samoan custom and culture) to make judgements in line with the interests of Samoa and its people. Judges from another jurisdiction would possess less expertise.
It also looks like another delaying tactic to prolong the HRPP's time at the helm.
It has now been over 90 days since the April election, over twice the 45 days allowed for in the Constitution for the new parliament to sit.
Yet Leala'ilepule cites the Head of State's proclamation dated 4 July, which the Supreme Court said was unconstitutional, as reason to further delay parliament convening.
"You can't call for the parliament to be convened unless he's satisfied there is majority, there's a party that holds a majority in parliament. That's his call and we respect that."
These ongoing delays were a primary reason for the Supreme Court referring tomorrow's case to the Court of Appeal.
The appellate court is expected to give a full and final determination likely recognising FAST's impromptu 24 May swearing-in, thus clearing the way for the convening of Samoa's 17th parliament.
FAST has maintained its 26 seat majority during electoral petitions in the courts while HRPP now holds 17 of its original 25 seats, with both parties to contest eight by-elections.