Pago Pago, AMERICAN SAMOA — The Senate unanimously passed in third reading Monday morning, two bills introduced by Senator Togiola T.A. Tulafono. The first bill changes the official date of the swearing-in ceremony for the Governor and Lieutenant Governor of American Samoa from January 3rd, to January10th, while the second bill specifies causes for which the Governor and Lieutenant Governor can be impeached.

Last Friday, a public hearing was held for the second bill where four individuals appeared before the Senate Government Operations Committee.

Governor's Legal Counsel, Barry Fundt, was the first to testify and he told Committee Chairman Senator Togiola T.A. Tulafono, that in principle, the governor does not oppose the bill as it is presented.

However, he raised concerns regarding the impeachment language in the bill, noting that it mirrors the wording in the Constitution. This similarity, he warned, could lead to potential conflicts in court interpretation. Fundt proposed modifying the impeachment language to provide greater clarity in interpreting the constitutional amendment.

The amendment, as referenced in the bill's Preamble, specifies the grounds for impeaching the Governor or Lieutenant Governor. These include malfeasance in office, corruption, dereliction of duty, or other high crimes and misdemeanors.

The impeachment process outlined in the bill mirrors the procedure practiced by the Federal Government.

Specifically, the House of Representatives holds the exclusive authority to introduce articles of impeachment, requiring a vote of no less than two-thirds of its entire membership. The Senate is vested with the sole power to conduct impeachment trials, presided over by the Chief Justice. Conviction, however, necessitates the concurrence of at least two-thirds of the Senate's entire membership.

That is, the House of Representatives has the sole power to bring Articles of Impeachment upon a vote of at least 2/3rd of the entire membership. The Senate has the sole power to try impeachment with the Chief Justice presiding and may not convict unless at least 2/3rd of the entire membership concurs.

Senator Utu Sila Poasa sought clarification on whether the impeachment process is explicitly detailed in the Constitution. In response, Counsel Barry Fundt explained that the Constitution only outlines the right to impeachment, while the Fono is responsible for establishing the rules to regulate that process.

Senate President Tuaolo Manaia Fruean expanded on Fundt's explanation, emphasizing to the senators that the right of impeachment is indeed enshrined in the Constitution. He further underscored that the bill under review serves to define the rules and criteria governing the impeachment process.

The second witness to testify was Apelu Mann, a senior at Tafuna High School who was accompanied by teachers Taveuveu Kolose Ili and Tolu Sanitoa.

"I strongly believe that the impeachment process is a critical part of our constitutional system," Mann began. "This bill is designed to hold the Governor and Lt. Governor accountable for their actions. While we acknowledge the potential for misuse and the challenges and limitations that come with impeachment, we believe that it is absolutely necessary for ensuring fair and accountable democracy."

Mann proceeded to elaborate on the strengths and limitations of the proposed bill, emphasizing the importance of ensuring that all citizens of American Samoa fully understand its implications.

He then highlighted the key fundamental principles that make impeachment an essential mechanism in governance.

First and foremost, he emphasized the necessity of upholding the rule of law. Mann asserted that a cornerstone of democracy is the principle that no one—whether citizens, lawmakers, or even the Governor and Lieutenant Governor—is above the law.

To support his argument, he cited historical examples, including the 1998 impeachment of President Bill Clinton for perjury and obstruction of justice, as well as the more recent impeachment of President Donald Trump for abuse of power and obstruction of Congress.

These cases, he argued, demonstrate the critical role of impeachment in ensuring accountability. He recommended the adoption of impeachment measures in the Territory to hold leaders accountable for any misconduct.

Secondly, Mann emphasized that impeachment is a vital mechanism for maintaining checks and balances within the government, enabling the Legislature to effectively oversee both the Executive and Judiciary branches. He noted that the proposed bill plays a crucial role in preventing conflicts of interest between the Executive Branch and the Attorney General's Office.

Furthermore, Mann highlighted the deterrent effect of impeachment, arguing that the mere possibility of such proceedings can discourage misconduct. To illustrate his claim, he said that it was the looming threat of impeachment which likely influenced President Nixon's resignation in 1974, before formal proceedings could commence.

Thirdly, he asserted that impeachment plays a critical role in preserving public trust by providing a mechanism to remove officials who betray the public's confidence. This, he argued, helps sustain faith in government institutions and ensures the continuation of peaceful transitions of power.

Mann further contended that many countries currently grappling with domestic instability, civil wars, and ongoing power struggles often lack clearly defined provisions within their constitutions or legal systems for impeachment. He said this hinders the ability to facilitate orderly and peaceful transfer of power, resulting in political turmoil.

"While impeachment is a vital tool for upholding the law, ensure checks and balances and preserving public trust, it also comes with concerns that need to be carefully addressed," Mann emphasized. "As informed citizens, we must acknowledge these concerns and understand their impact on our democratic system. And we hope that such concerns can be taken into consideration for the potential revision of the bill at hand."

Firstly, he identified the potential for political abuse. A significant concern is that impeachment could be wielded as a political weapon rather than a means of delivering justice. He said even lawmakers can pursue impeachment for personal motives rather than addressing genuine misconduct. Such actions could result in the will of the Fono diverging from the true will of the majority of American Samoa's constituents.

Moreover, Mann argued that frequent impeachment proceedings could be highly time-consuming, potentially diverting the Fono's attention from addressing more urgent matters affecting the Territory.

He further noted that the impeachment process has the potential to disrupt government operations, diminishing its capacity to effectively meet the Territory's needs. Additionally, Mann expressed concerns about the impact on public perception and national unity, cautioning that initiating impeachment proceedings might escalate political divisions and intensify existing tensions within the Territory.

Mann also addressed the challenges associated with interpreting constitutional language used in legislation and amendments. He specifically cited the term 'malfeasance' on page 1, line 17 of the proposed bill, noting its potential for debate over what truly constitutes an impeachable offense.

"Despite these concerns, I strongly support this bill because impeachment is essential for upholding the law, maintaining checks and balances, and preserving public trust in our government," he summed up his presentation.

"While there are challenges, the benefits far outweigh the risks and I believe that this bill will help ensure our leaders are held accountable for their actions. I firmly believe that this bill is necessary for the continued health of our democracy and the future of American Samoa. Thank you," Mann concluded.

Committee Chairman Senator Togiola T.A. Tulafono thanked Mann for his presentation and elaborated on the term 'malfeasance.'

"Malfeasance pertains to actions that may not result in criminal convictions but are just as bad and warrant consideration in addition to other offenses," Togiola explained. "So the Governor doesn't have to be convicted of the offense but commits acts that are unethical and just bad behavior, like appointing his relatives to high and important positions of government.

"If a Governor under this bill was convicted of 34 felonies like President Trump, that would be grounds for impeachment under this law. The process begins with the House of Representatives who will review the charges and if they find sufficient violations that warrants impeachment, then they send the Articles of Impeachment to the Senate. The Senate will then hold the trial, with the Chief Justice presiding, and the decision will be made by the 18 senators."

Togiola once again acknowledged the Tafuna High School senior for his testimony and encouraged him and his peers to continue learning about and familiarizing themselves with the workings of government. He emphasized the importance of becoming informed and engaged citizens, ensuring that they are prepared and well-versed in civic matters by the time they assume leadership roles in the future.

He also praised the teachers for their dedication to nurturing the Territory's future leaders by educating and encouraging students to understand the workings of government. Togiola assured that students would be informed about upcoming public hearings, providing them with opportunities to voice their opinions on proposed legislation and actively participate in the democratic process.

Private attorney David Wiesner testified next and stated that the proposed bill is a slight modification of the existing statute. He noted that it doesn't change any procedure but simply adds a few more grounds for impeachment. Wiesner stated that he didn't see any problems with the actual language of the bill.

Recounting a brief history of the issue, he stated that the Revised Constitution of American Samoa was amended in 1977 when the Governor and Lt. Governor were elected for the first time by popular vote.

So naturally he said, the impeachment statute A.S.C.A. Section 4.0109 was passed the same year and sub-paragraph (e) of the statute states, "At the appropriate time and in the appropriate manner, this section or its substance should be considered as a Constitutional Amendment to the Revised Constitution of American Samoa."

In 2022 during the Constitutional Referendum, five amendments were passed including the amendment calling for the inclusion of the impeachment process for the Governor and Lt. Governor. However, Wiesner recalled that there was never any explicit language contained in the ballot form used by voters that stated what the constitutional amendment procedure was going to be.

He said that to his knowledge, since the vote was passed and approved by DOI on January 16th, there has never been a new Constitution published or issued stating that the amendment has been added.

Wiesner than raised a critical question regarding compliance with the Constitutional Amendment process, given that it has not yet been written or approved by the Department of the Interior.

In response, Senator Togiola stated, "We believe the Constitution has authorized the process. While the language submitted and approved may be somewhat vague, it does provide that the Governor and Lieutenant Governor can be impeached, but there is no process."

He was referring to Section 4.0109 of the American Samoa Code Annotated (A.S.C.A.) which reads;

(a) The Governor and the Lieutenant Governor are subject to impeachment and, upon conviction, shall be removed from office.

(b) The Legislature shall provide for the manner, procedure, and causes for impeachment including for conviction of felonies and for a course of conduct amounting to a gross abuse of power, as defined by law.

In his testimony, Wiesner had noted that the grounds for impeachment stated in the A.S.C.A. was somewhat limited, and Togiola responded that the proposed bill expands on that. He expressed his belief that the Fono has the authority to set not only the criteria for bringing charges and the charges attending thereto.

He also argued that it does not necessarily conflict with the Constitution because the Constitution provides the very broad framework and the authority to do that.

"If the Constitution which authorizes the election of the Governor and Lt. Governor did not permit the impeachment, we may not be able to do that," Togiola argued. "They may just ride off their four-year term and there's nothing anybody can do."

James McGuire, a legal practitioner at the Lands and Titles Court, was the final individual to testify. He began by expressing his gratitude to the Senate for posting their sessions and hearings on social media, a practice that keeps both local and off-island residents informed about critical issues and legislation impacting the Territory.

He referred to past Constitutional Conventions saying that a lot of important issues don't get passed because people are not educated enough in local politics to make informed decisions. However, the recorded coverage of Senate proceedings and the fact that a high school student testified at the hearing was a big step forward.

He also voiced hope that the House of Representatives would embrace greater transparency by adopting similar practices to the Senate. However, McGuire expressed his reservations about the role the House of Representatives plays in the impeachment process.

He argued that it was unfair for elected officials to investigate and review charges against the Governor and Lieutenant Governor—who are also elected—and to ultimately decide their fate if impeachment is deemed warranted.

In response, Togiola clarified that the impeachment procedure outlined in the bill mirrors the process used at the federal level. He then invited suggestions for an alternative body that could assume the role currently assigned to the House of Representatives.

Following this discussion, McGuire retracted his opposition, instead emphasizing that the House should strive for greater transparency in its proceedings.

The hearing concluded with a discussion on the bill aimed at amending the statutory provisions governing the inauguration of the Governor and Lieutenant Governor of American Samoa. The proposed changes focus on establishing an official swearing-in date to ensure a seamless transition of executive authority.

Togiola clarified that the primary objective of the bill is to address the recurring issue where the inauguration ceremony for the incoming Governor and Lieutenant Governor coincides with the swearing-in ceremony for members of the Fono. This scheduling conflict prevents Fono members from attending the Governor's inauguration, as both events are held simultaneously.

The former governor emphasized that, although unintentional, this time clash reflects poorly on the Fono. He noted that it creates the impression that members are either not invited to the inauguration or are being disrespectful by not attending. To resolve this, Togiola proposed holding the Legislature's swearing-in ceremony on January 3rd and scheduling the inauguration of the new administration on January 10th.

Senate President Tuaolo Manaia Fruean suggested an alternative solution: adjusting the start times of both ceremonies while keeping them on the same day.

However, Togiola disagreed, pointing out that the swearing-in ceremony for Congress occurs on January 3rd, while the Presidential inauguration is held on January 20th. He explained that the separation of these events is intentional, as Congress is responsible for organizing the Presidential inauguration, ensuring no scheduling conflicts arise.

He explained that this allows for the seamless transition of executive authority.

According to the bill, "The first elected Governor and Lieutenant Governor shall serve terms of 3 years each from 12 noon on 3 January 1978 until 12 noon 3 January 1981 and until their successors are elected and qualified.

"All succeeding Governors and Lieutenant Governors shall serve terms of 4 years each commencing at 12 noon on 10 January next after their election and terminating at 12 noon at 10 January 4 years later, and until their successors are elected and qualified."