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Bar Assn. looks at Constitutional amendment on CJ appointment

Tapa’au Dan Aga
Local appointment of the Chief Justice focuses on what happens in appellate cases

Pago Pago, AMERICAN SAMOA — Senior lawyer Charles Alai’ilima said it is premature for the Governor to appoint a Chief Justice and Associate Justices when there is a more pressing issue at hand when it comes to appellate cases.

He made the comments as one of the panelists during a forum hosted by the American Samoa Bar Association and the Department of Youth and Women’s Affairs held last week.

Other panel members were the Executive Director of the Constitutional Convention office, Tapa’au Dan Aga and Deputy Attorney General Roy Hall.

The moderator for the forum was Lornalei Meredith, president of the American Samoa Bar Association.

The first proposed amendment to the Constitution is for the Governor to appoint the Chief Justice and Associate Justices and the question posed was “how do other States and territories select and appoint their justices and judges?”

 Alaiilima said that states have different ways of making their selections, depending on their Constitutions.

“Some States elect Justices, others do it by appointment. Some may have a dual way of doing it; initially by appointment and then by an election subsequently. So there are many different ways in which you can structure but the important thing in the states is that it is done at the state level and there is no Federal involvement in the selection process.”

He said as a practical matter down here in America Samoa, Justices have been appointed by the Secretary of Interior.

“The area that I would have concerns about is what we do when there are appeals. 

“When you do the appeals the Secretary of Interior has been appointing Acting Associate Justices. Usually in the past they brought them down from the States to sit with maybe one of the local appointed judges who did not handle the trial and those justices make the appeal decisions.

“And I think it's very important that when we deal with appeals, especially in the appeal section that we do get independent judges that are not from here to hear these appeals. Because we are a small bar association and in the sense if you say Associate Justices can only be brought here we then end up with an appeal system that is very [limited].

“Meaning that there are a few lawyers here to create a very independent review process; so I think at the level of the selection of the Chief Justice and Associate Justices that are going to be actually doing the trial work and a few works here that might be OK.

“I think it's very important however that when you go to the upheld level you have independent judges reviewing. 

“And I think until we do get that structure in place I think that it would be a little premature to announce that the Governor appoints the Chief Justice,” said Alailima.

Deputy Attorney General, Roy Hall said the issue on appeal was not brought up at the Constitutional Convention.

Adding that what hasn’t changed in the law is that in American Samoa's code annotated section 3.0220 the Appellant division composition — the Secretary of Interior is still involved.

“I would add to that is — it doesn't stop our legislature from creating a Supreme Court or a high appellate court by statute to be able to resolve problems concerning appeals,” said Hall.

Another question posed is what are the advantages and disadvantages of the current method of doing things versus this proposed amendment pertaining to the appointment of the Chief Justice by the Governor?

Tapa’au emphasized the word “process” in how the Secretary of Interior selects the Chief Justice for the territory.

“I was reminded the other day that we have Samoan judges and what this proposed amendment makes us look at is the process when you ask about the advantages of this proposed amendment; I would start by asking the question — advantages for who? ... And it would be an advantage for the people of American Samoa; because it would put our people in the driver's seat as far as selecting out own Chief Justice.”

He said it is a scary thought that the Secretary of Interior has been appointing the Chief Justice since 1951 and it’s somewhat the norm and no one questions this process.

“But previous Constitutional Conventions have brought this up in different ways, in 2010 it was finally made explicit that American Samoa wants a process that allows the local government to appoint its Chief Justice.

“If you look at the Constitution Article 3 about the judicial branch, it's pretty scarce I mean it's three sections and I think this is one way of telling us that we haven't really developed this... what we need to do to appoint our Chief Justice locally.”

He cited the concerns raised by Alailima on the appeal process and from what he’s read there is no answer to that question.

“But by an advantage I think we need to build our local capacity by engaging our people in a process to set qualifications for Chief Justice and if they choose so, to set term limits.”

He cited how Guam conducts their selection of the Chief Justice. “For the first seven years the Governor appoints and their legislature confirms the appointment of the Chief Justice, but in the second term they elect their Chief Justice.”

He reiterated the lack of public knowledge of the process used by the Secretary.

“I know that the Secretary of Interior appoints our Chief Justice now but it's not really a well-known process; maybe to the inner circle of people who might be interested in applying or a few attorneys but it's not a process that's really accessible to the public.

“So [there is] this whole process of developing qualifications even setting background checks,” said Tapa’au.

He pointed to how India conducts its selection.

“They have a totally different process a collegium and examining the previous rulings of applicant and I don't know if that is a capacity we've really built up.

"What rulings has this candidate made? Is the candidate racist? What is the candidate’s financial background? Does the candidate sponsor local companies?

“So you know those are some of the advantages of what we can do. The disadvantage is can a Chief Justice selected in this local process, make independent decisions? 

“And I think everyone knows what I'm suggesting because we're a small island; people are related and people related to other people and their relatives and so many of our people do have that concern and so what safeguards can be put into place?

“I know there's a recusal process but we probably need to assure our people that there will be an independent process not only in the application process; in the decision process but by our own judges,” said Tapa’au.

More from the forum in tomorrow’s edition.