Judges should never become politicians in imperial garb
Apia, Samoa, June 19, 2021
Former Chief Justice Patu Falefatu Sapolu swapped his black court robe for the Human Rights Party’s blue one last year.
He withdrew from the candidacy in the last election after being sent to New Zealand for medical treatment, but nevertheless he nailed his flags firmly to the pole.
Recently, however, he has been actively speaking on issues that lie at the intersection of law and politics. In doing so, he sheds light on the problems of former MPs who take a political stance.
Politicization of the judiciary
There are examples of politicians embarking on judicial careers, but they are old, rare, and mostly native to North America, where the politicization of the judiciary has become routine.
Politicians like Salmon P. Chase and former President William Howard Taft are both examples of judicial politicians, but both cases go back more than a century.
There are no doubt other examples, and there will certainly be more in the future.
But it’s worth noting that traffic almost never goes the other way. Judges rarely enter party politics, and there are many compelling reasons why they shouldn’t, many of which are highlighted in Patu’s recent statements.
In essence, the problem relates to the question of the intermingling of branches of government that are supposed to be independent.
Since the passage of the Human Rights Protection Party (HRPP), the government’s radical judicial overhaul in December, and the months leading up to the elections, we have all shown examples of the importance of the separation of powers and how often it is violated.
Since his retirement in 2019, Patu has not formally violated the separation of powers, but in court, especially with regard to judicial independence, tradition and customs can often be as powerful as black letter law.
As our senior chief judge, Patu is very familiar with the laws of the country. But it is difficult now to look at his public statements except through the partisan lens.
Those who follow politics closely can recognize such subtleties. However, since his opinion will always come from a former Chief Justice, it can be difficult for many citizens to tell whether he is speaking as a political partisan or as a legal expert. His blending of opinion and law makes this a complex task indeed.
Then there is the fact that Patu is speaking out on matters that are currently in court.
The principle of âsub-jurisdictionâ, which prevents reporting or commenting on an active case, generally applies to criminal cases in which juries are involved if they influence a trial.
It is almost never a factor in judicial proceedings in civil or constitutional matters.
Judges are ultimately seen as beyond the reach of such influence. (It is also very unlikely that a judge will ever admit or be aware of it; persuasion, after all, is an invisible process).
But if anyone should think they were influencing a judge, it would be the man who for more than a quarter of a century overruled the country’s judicial system.
We are not implying that Patu aims to influence judicial opinion or that the fine minds on the bench are persuasive: all the indications indicate that the opposite is the case.
But the more general principle reflects how chaotic things can get when politics and law mix.
Take Patu’s most recent contribution to the public debate on the ongoing controversy surrounding our government stalemate, his first since he stepped down from the judiciary.
He questioned whether the swearing in of members of Fa’atuatua i le Atua Samoa et al. Tasi (FAST) on May 24, 2021 was consistent with good governance and stability.
It is hard to imagine that a man who signed papers to run for the opposing party would say the opposite.
Patu mixed legal opinions with his own views of what was morally right for the nation’s future – the rhetoric of a politician.
âThe question is that the FAST swearing-in on Monday was an action to promote peace, stability or good governance in Samoa?â He asked. “I think everyone has their own answer and every political party has its own answer to it.”
When asked whether the swearing in of FAST. Legal or not, Patu refused, citing the fact that the matter was in court. But his previous comments did everything but provide a black and white answer to that question.
Citing several constitutional articles, he apparently made definitive statements about their meaning.
“So if the current status does not comply with Article 44 because it does not meet the minimum quota of 10% women in parliament, no parliament can be ordered to convene by the head of state,” he said.
In order to answer the arguments of the acting Prime Minister Tuilaepa Dr.
âSo if the current status does not comply with Article 44 because it does not meet the minimum quota of 10% women in parliament, then no parliament can be ordered to convene by the head of state. The HRPP believes there is still a chance to call our appeal now as to whether or not (a sixth female MP) can be reinstated in her seat in Parliament, âhe said.
Speaking to TV1, he claimed that the head of state had legal supremacy in political affairs.
âThese authorities belong to the head of state. He orders the convocation of Parliament and swears by the Speaker of the House of Representatives, âhe said.
The following day, a full ruling from a Supreme Court session held by FAST the day before the contested swearing-in ceremony appeared to indicate that the head of state had higher loyalties and obligations – to the Constitution.
In a judgment signed by the Chief Justice, Satiu Simativa Perese; Judges Vui Clarence Nelson and Judge Tafaoimalo Leilani Tuala-Warren did not criticize the head of state, but indicated that he had been âill-informedâ that his powers were restricted by the constitution.
âThe convening of the Legislative Assembly cannot be postponed until someone has decided it is time for Parliament to meet. The alleged suspension (pronounced by the head of state the night before) took place without giving any reason or explanation. The office of head of state is an office created by the provisions of the supreme law of Samoa, the Constitution, and its powers are defined, âthey said.
So was it Patu the eminent lawyer or Patu the politician who made these remarks?
Last week he made another contribution to the public debate, calling for an early second election to resolve the nation’s political stalemate.
His main argument for a second poll relied almost entirely on political expediency, not the law. The right elephant was noticeably absent in the room: How could an early election be called and parliament dissolved if it was not even in session?
The constitution makes it clear that only a parliament can be dissolved that no party can trust.
And that’s just not the case with the current numbers. But that was glossed over.
The difficulty we face is that this has to be the process that we now have to follow to await the conclusion of the by-elections, because only then can we designate more female members, âhe said.
“(Also further by-elections) could mean uncertainty and instability for parliament and the decision-making processes of our country and that is (…) worrying.”
It is precisely his status as former Chief Justice that gives Patu a platform to make these statements that he would otherwise not have if he were only a lawyer.
The more former judges use their status, either deliberately or after a media call, to express political arguments, the less trust the public will have in the independence of the courts.
Politically active former judges make their work more difficult for current judges.
We do not want Samoa to go down the route of certain states in the United States where judges are available for election or certain appointments are seen as a route to the presidency or governorship.
Judges must never run the risk of being viewed as politicians in impartial clothing.
The above was published as an editorial in the Saman Observer on June 19, 2021. We have reproduced it given the immense interest it would generate from our readers.