Taking a bold stand on the theory and praxis of the rule of law, the decision is a juridical statement of uncompromising legal principles and justice according to the law (non-negotiable, politically neutral).
As such, it stands squarely within the Mandate from Samoa’s Constitutional Convention 1960, namely, the separation of judicial and political authority:
We are being careful not to intermingle the political matters of the country with the judicial side … the difference between the political side of the country and the judicial … and also for the judicial side to be as free as possible from Government interference. The judgment of the Court must be given with absolute confidence of there being no political influences.
(Verbatim; Records of the Constitutional Convention Debates 1960,
Volume I, page 89; italics added)
Called Samoa’s law/politics divide, it is an absolutely essential state of affairs with a clear descriptive and normative justification.
- 1 Samoa’s Judiciary must be free of/from political influence. Judicial independence is accordingly guaranteed by, en trenched in, and securely protected within Samoa’s constitutional design.
- 2 Not only independent, but impartial. Together, judicial independence and impartiality engender judicial integrity, and all are integral to judicial legitimacy.
- 3 Judicial independence (never without its cognates: impartiality, integrity and legitimacy) is (a) the cornerstone of Samoa’s separation of powers which (b) goes to the rule of law wherein (c) judicial independence from political influence is indispensable, and which is (d) predicated upon the essential separation of judicial and political authority, i.e. Samoa’s law/politics divide.
- 4. This separation of judicial authority from the political institutions of the State is thus the guarantee of judicial independence. “The judgment of the Court must be given with absolute confidence of there being no political influences.”
Our public discourse too must move beyond inter-subjectively created, morally repugnant, a priori attributions of guilt (home brewed in Samoa, then widely published in Australia and elsewhere by certain Samoan lawyers and academics as evidence-based truths).
This issue? Intellectual and moral honesty, and publicly defusing the polemical hostility of this hitherto untested, unsubstantiated (distorted) thesis that, after the April 2021 election, certain Samoan High Offices were conspiring to defeat Samoa’s rule of law and eclipse its judicial independence.
Pray, consider the following matters. Samoa’s law/politics divide entails, as a concomitant corollary, a line of demarcation between law and politics (elsewhere, they now call it “mega politics” as in national elections, campaign financing, party-hopping laws, and so forth).
In accordance with the reasoned justification above, and to avoid proven injuries to democracies elsewhere (gaping injustices, democratic deficits, and legal vacuums), the wise rule remains constant: please “don’t”cross over,conflate, or confuse.
Questions? Has Samoa ever crossed the line, knowingly and willingly? Or was it really the case of Samoa being made (by whom?) to cross the line from politics into law (call it “judicializing/constitutionalizing mega politics”) and consequently suffer fateful consequences?
And, perhaps, seeking to continue this dangerous “judicializing/constitutionalizing” bashing, should we now expect the law to openly cross the line into politics (call it “politicizing the judiciary”), and to do so without question, hesitation, or objection?
Most certainly, long before this Court decision, WE – in all good sense and conscience – should have learnt from the very wise counsel of Hon. Elizabeth Aitken J in Faapo v Cabinet/Caretaker Government [2016] WSSC 23, concerning the violation of Samoa’s law/politics divide (paragraph 31):
These proceedings should never have been brought and there are valuable lessons for all counsel and the Law Society that arise. The following remarks are intended to assist in ensuring that this Court is not used for such obvious political motives.
(Italics added)
Question. What say we about Samoa’s rule of law “thing” today? Well, Logic’s contrary oppositions more easily define what the rule of law “is” by what it “is not”. Accordingly, the rule of law IS NOT“the rule of power” (H. Arendt 2007). As the enemy of the rule of law, “the rule of power” IS THIS (and so much more):
- The rule of primitive passions, blind prejudices, and extreme desires as in “immortal hatred” (W. Hazlitt 1826) sleeping with Hitler’s “messiah complex” (J. MacCurdy 1942), promoting extreme hostility towards a shared enemy. The saviour/murderer disorder usually lurks somewhere in the background.
- The rule of unbridled ambition as in the abuse of public offices and exercising public powers in the ruler’s own interest, not “in the interest of the ruled”, namely, the entire citizenry or the majority thereof.
- The rule of naked power without reason and conscience, totally ignorant that the root of this narcissistic lust for power is “weakness”, not strength (E. Fromm 1942).
- Lawless, “the rule of power” ultimately ends up in the tyranny of cruel, oppressive, irrational, arbitrary rule. Usually, there are threats and intimidation. Sooner or later, there are guns as well.
- And there is the “power rule over” human beings who, being consistently repressed, eventually cease to be “human subjects” and are ultimately reduced to “mere slaves”, deprived of both mind and conscience by their rulers.
And being “slaves”, they are controlled by the gun and/or through a scheme of relentless sociopathic/psychopathic lying and deceit. Trapped into believing, they would then throw themselves into the “Stockholm syndrome” (1973) wherein they not only worship their oppressors but pray for more manipulation (the “please fool me some more” syndrome).
So for more reasons than one, this brave Supreme Court decision timely stands for the rule of law and justice according to the law, not the “the rule of power” in Samoa.
With the Speaker’s intended appeal of the Supreme Court decision, one hopes that this Parliament – after everything it has committed so far – would not swallow “Dicey” (the hailed author of Westminster’s parliamentary sovereignty) undigested and undiluted.
Fact? Parliament is Samoa’s supreme lawmaker. BUT, Samoa’s Constitution 1960 does not authorize Our Parliament to order the murder of “all blue-eyed babies” (L. Stephen 1882), re-enact Nazi Nuremberg Laws 1935 against Jews and others, or commit similar unlawful lawmaking.
Nor should Parliament violently push back against the Court decision. It would only lead Samoa into the UK’s “bipolar sovereignty” camp of institutional fragmentation, and further divide an already polarized Samoa, already suffering from an unwanted socio-political bipolar disorder since April 2021.
No doubt, on the other side of Tiafau, Our Learned Court is well aware of the Court of Appeal wisdom in Samoa Party v Attorney General [2010] WSCA 4 (7 May 2010). The Court, too, must take special care lest it places itself “in breach of the Constitution” (paragraph 55, italics added). Notably, in its July 2023 ruling, the Supreme Court neither revised the Constitution nor legislated from the bench.
The decision is thus fully in line with the Convention 1960’s constitutional ordering, theoretical framing, and empirical grounding of Samoa’s Constitution.
On the horizontal axis, the Constitution disperses State powers amongst the three branches in a linear manner and, at the same time, places All State branches, officials, and citizens as well under, and subject to, the Constitution as supreme law. This Article 2 constitutional supremacy is really the supremacy of the law, and hence the rule of law (I. Salevao 2005) which happens to be the other main (and counterbalancing) pillar of Dicey’s parliamentary sovereignty.
Going up on the vertical axis, we find a hierarchy: from State institutions below the Constitution to We the People of Samoa above the Constitution; above We the People (in principle, the creators and therefore owners of the State and its Constitution, according to the last Recital of the Preamble), there is nothing but the Creator, “the Almighty”, “the Ever Loving” (apolitical) God of the Constitution 1960.
Dr Iutisone Salevao
(Academic lawyer, researcher, author)
AUSTRALIA