Samoa AG’s office apologizes and rescinds request to recuse judges
Apia, SAMOA — Samoa’s Office of the Attorney General, which yesterday asked the Court to recuse all of the judges from sitting on cases pending before the Court of Appeals and the Supreme Court — has now rescinded the request.
In a press release issued yesterday afternoon the AG’s office says it was not authorized to release the statement and says it “does not reflect our view of the Honourable Judiciary. We apologize profusely for this unfortunate situation. Ma le faaaloalo tele lava.”
Earlier in the day the AG’s office through the Samoa Press Secretariat advised the public that the Office of the Attorney General would be making an application to disqualify the Judges set to hear the appeal by the Electoral Commissioner and Aliimalemanu Alofa case on Monday 31 May 2021.
The release claims that given their potential conflicts of interest and potential favoritism, “it is in our respectful view that the conflicts of interest of our Judges are from the following basis:
"1. All FOUR cases between FAST and the Government all went against the Government and favoured FAST (we can make available the copies of these cases for your viewing). These are very substantive cases and the fate of a government of the day is determined by these cases. If we look at the previous trends, all the decisions favor FAST!
"2. There is now substantive evidence before our office that is questioning the appearance of impartiality and integrity of the Judiciary presiding over this matter.
"3. The Caretaker Government of the day has also relied on the 10% of women in Parliament argument in saying that Parliament cannot be called unless this question is settled. The solution proposed by the Caretaker Government is to bring overseas judges to hear this matter given the question of independence. The Judiciary have now moved this appeal forward on Monday next week for hearing. It is our concern that given the recent issues with the Judiciary having impartial overseas Judges is the best answer to ensure a fair outcome for all parties involved.
"4. The Judiciary called a special sitting called pick-wick on Sunday 23 May to issue another decision that favoured FAST, without service of documents, full, participation and appearance by the Attorney General, therefore breaching the right of the Attorney General to a fair hearing. In addition, also breaching the Civil Procedure Rules that govern the Supreme Court process. We have circulated an earlier press release to clarify our position in this matter, and our position remains.
"5. We wish to clarify that contrary to what has been stated by international media as well as many of our local media, the Swearing in ceremony conducted outside of parliament under a tent is not legitimate and is illegal under Samoa’s Constitution. It is expressly stated in Samoa’s Constitution that it is to be performed by the Head of State, if he is absent or incapacitated then it falls to the Council of Deputies, in the absence will then trigger the Chief Justice to carry out the ceremony. In this case, the swearing in by the FAST Party on Monday 23 May 2021, did not meet any of the express provisions of the Constitution – there was no Head of State, there was no Council of Deputy, and there was no Chief Justice. We believe that instead they have made a mockery of it by letting their own legal team carry out the Swearing in Ceremony. If we legitimize this, then anyone in the future can use it as a dangerous precedent to swear in a government under a tent, provided they use a notary public or their very own lawyers to carry it out.
"6. The actions of the Judiciary on Monday 24 May 2021 led by the Honourable Chief Justice in trying to open the doors of parliament despite the Notice of the caretaker Speaker of the house that Parliament will not convene is concerning. As the Chief Justice, the Caretaker Speaker and staff are not subject to Court jurisdictions as per the law. The actions of the Chief Justice indicate that he may be in contempt of Parliament. This is despite the absence of the HRPP Party, the absence of the Head of State, and the absence of a council of deputies.
"7. It is also apparent that the Leader for FAST, Fiame Mataafa is a close relative of the Chief Justice of Samoa.
"The four cases included the Application to Strike Out; Application for Court Orders to discontinue and withdraw FAST’s application after Head of State issued the writ dated 4 May 2021 for fresh elections; Motion for Stay of Execution of the Court’s decision dated 17 May 2021; and Urgent Motion to determine the Constitutional question of whether the Parliament can sit without the 6th woman member on 21 May 2021) These four (4) applications related to the determination of the application by FAST to determine the 10% minimum number of the women members in Parliament. ALL of these cases went to IN FAVOUR OF FAST.”
(Sources: Office of the Samoa Attorney General press releases)