The former Samoa Attorney General, Savalenoa Mareva Betham Annandale has been ordered to pay WST$5,000 (US$1,803) to Prime Minister Fiame Naomi Mata’afa as her claim of unlawful dismissal was dismissed.
Presiding Justice Harrison’s decision was delivered Tuesday.
The former Attorney had been appointed as Attorney General by the HRPP government from July 2020 for a fixed term of three years.
Within a month of the FAST Party becoming the Government in July 2021, and just over one year into her term, she was suspended then removed by the Head of State acting on the advice of the new Prime Minister.
Her termination stemmed from the unprecedented constitutional crisis which followed the uncertain results of the 09 April 2021 general election.
That crisis generated extensive litigation between the two rival political factions – the Human Rights Protection Party, the Government in power before the election, and Fa’atuatua i Le Atua Samoa ua Tasi (the FAST Party) and was compounded by a series of public attacks on the integrity and independence of the Samoan judiciary led by the former Prime Minister, Tuilaepa Sailele Malielegaoi and his supporters.
In a letter to the former Attorney General of 4 August 2021, the Prime Minister said “the fundamental duty of any Attorney General to uphold and defend the independence of the judiciary, and hold safe its members against attacks of this kind, any kind. Despite the exceptional nature of these attacks and the clear risk to public order, I am not aware of any step that you may have taken to date in accordance with that duty.”
The Prime Minister also requested the former Attorney to advise what steps she had taken for that purpose including filing or preparing proceedings for contempt of Court and what steps she would now take within the next 48 hours. She asked for a written response by 4.00 pm that day.
The former Attorney did not provide a substantive reply to that 04 August 2021 letter. Nor did she take any steps to prosecute for contempt the former Prime Minister or any other party responsible for the preceding public attacks on the judiciary or those which continued over the next 14 days.
It was against this background that the Prime Minister sent the suspension letter, received the former Attorney’s response and then sent the removal letter on 02 September 2021.
At the heart of the former Attorney’s claim is that in the absence of an express constitutional or statutory power, on what ground could the Prime Minister have lawfully advised the Head of State to remove the Former Attorney from office?
She applied for a judicial review of the Prime Minister’s decision on the grounds of unlawfulness, unreasonableness, improper purpose and breach of natural justice.
She also claims the decision was a malicious abuse of power or conspiracy with other Cabinet Ministers to injure which rolls on to a compensation claim.
In his conclusion, Justice Harrison said: “I have been conscious when writing this judgment that the acute constitutional crisis which Samoa endured for those three months after the April 2021 general election would have been well beyond the Former Attorney’s foresight or expectation when she accepted appointment to the office of Attorney General in July 2020. Nor was the Former Attorney ever likely to have foreseen that she would become a central figure in the events which unfolded.
“I acknowledge that her experience was most unlikely to have equipped her for carrying out the demands which the crisis placed upon the skill and resources of her office. Its magnitude was unprecedented in Samoa’s post-independence history.
“I have allowed for that reality in accepting Harrison’s invitation to apply a stringent standard when reviewing the validity of the Prime Minister’s removal decision. I have subjected it to careful scrutiny.
“In concluding that the decision was right or correct I have found that the Former Attorney failed to perform her core constitutional functions in a number of material respects.
“Her removal from office was justified as a result.
“The significant legal challenges which the Former Attorney faced throughout those three critical months were all capable of prompt and effective resolution in two elementary ways.
“The first was by applying well settled principles of law with the standard of skill, competence and independence expected of a senior lawyer in Samoa.
“The second was by displaying unquestioned respect for the authority of this Court and courtesy to its Judges, a requirement which was heightened by the level and ferocity of the attacks to which the judiciary was subjected.
“I am satisfied that the Former Attorney’s serious failures in both respects coupled with her failure to discharge her constitutional duty to uphold the dignity of the judiciary and the rule of law showed her inability to maintain the necessary degree of professional independence and demonstrated her unsuitability to retain the office of Attorney General.”
The former Attorney’s claims for both judicial review and damages are dismissed. Judgment is entered for the Prime Minister on both claims.
The former Attorney is ordered to pay the Prime Minister’s costs in the sum of $5000 (US$1,803) together with usual disbursements.
