Supreme Court Justices have ruled for the Executive Branch to provide supporting staff to immediately resume the work of the Judges of the Lands and Titles Court.
In addition, the Court noted, “the determination is reasonably attributed to Parliament as its a matter for [them] now to consider how to take these matters forward.”
Also, the President and Judges of the LTC who were appointed under the 1981 LTA do not have the authority to exercise jurisdiction under any of the provisions of the LTA 2020.
The decision was handed down today by the Supreme Court, by Chief Justice His Honour Satiu Simativa Perese, Senior Justice Vui Clarence Nelson and Nia’ava Mata Keli-Tuatagaloa.
President of the LTC Fepulea’i Atilla Ropati filed an application to the court as they are unable to carry out their operations as the Executive has prohibited the Ministry staff from providing administrative support and reminding the Executive of the Principles of Judicial Independence.
The LTC has not had any hearings since its final sitting in December 2021.
The Justices noted the Attorney General’s office on behalf of the Minister of the Justice and Courts Administration, Matamua Vasati Pulunfana appears to acknowledge the administrative services are not being provided to the Judges but the Minister maintains she has not breached the principle of judicial independence because she has not tried to influence the Judges ability to act in an impartial and fair way.
The 23-page ruling states the Minister of Justice’s concerns focused on advice she had received to await the Committee’s report and findings, as it has been brought to her attention the appointment of the President, Vice President and Judges of the LTC were all appointed under the LTA 1981 which were all resolved on 15 March 2021 when the LTA Act 2020 was enforced.
The President rejected the Minister’s request.
Furthermore, the Justices noted the protection of the independence of the Judiciary is a matter of considerable public interest, by way of example the availability of judicial immunity in civil proceedings is acknowledged to be founded on the existence of public interest in the protection of judicial independence and the court.
“The Judiciary of Samoa is not fiscally independent never has been.
The Judges rely on the Executive who controls the Budget and its allocation to fund the work of the Judiciary. Given this fiscal control, the Executive must observe both parts of the institutional independence equation in observance of the principle of judicial independence.”
The Justices ruling indicated the particular relevance to this matter is the introduction of statutory protections or Judges in the LTA 1981whereas section 26D provided that a Samoan Judge of the Supreme Court under Article 68 of the Constitution.
“On the other hand, Samoan Judges under s.29(4) were able to be removed by the Head of State acting on the advice of the Judicial Services Commission for inability or misbehaviour.
“Both these protections guard against arbitrary remove without cause and undoubtedly support judicial independence.”
The Justices noted the LTC Judges continue to be paid and enjoy the benefits of office, they also continue to have access to the Court building their offices and to secretariat services.
“Without reservation, we accept the Minister has acted in good faith to protect the integrity of the new judicial system for this we commend her. The Applicant needs to be commended for his strong defence of the Principles of Judicial Independence.”
The Justices considered the judicial appointments made under the LTA 1981 continue to have jurisdiction only insofar as expressly saves and provided for under 67(2) LTA 2020 with respect to petitions filed before the commencement of the LTA 2020 and pursuant to s. 67(4) with respect to a claim, titles, interest, instrument or document created or vested under the LTA 1981.”
The President and Judges of the LTC who were appointed under the 1981 LTA do not have the authority to exercise jurisdiction under any of the provisions of the LTA 2020.
DECISION
“We grant declaratory relief in the following way:
“The Applicant is entitled to immediate relief from the Executive by their provision of support services, such services to resume immediately, to enable the Applicant and Judges of the LTC to carry out their normal business in accordance with the above referred transitional provision of the LTA 2020.
“Given the significance of the issues in this case, and recognising each party was partially successful in their respective claims, we cosier that costs should lie where they fall. We thank Counsel for their helpful submissions.”
