Samoa 1962 Constitution (reviewed 2017) - Page 6 of 16

Table of Contents

PART VI. THE JUDICIARY

65. Constitution of the Supreme Court

There shall be a Supreme Court of Samoa, which shall be a superior court of record and shall consist of a Chief Justice and such number of other Judges as may be determined by Act.
The Chief Justice of the Supreme Court shall be appointed by the Head of State, acting on the advice of the Prime Minister.
A person shall not be qualified for appointment as a Judge of the Supreme Court unless
1. he possesses such qualifications as the Head of State, acting on the advice of the Judicial Service Commission, may prescribe; and
2. he has been in practice as a barrister in Samoa, or in an approved country, or partly in the one and partly in the other, for a period of, or periods amounting in the aggregate to, not less than eight years.
In computing, for the purposes of subclause (b) of clause (3), the period or periods during which any person has been in practice as a barrister, any period or periods during which he has held judicial office in a court of superior or subordinate jurisdiction in Samoa or an approved country shall be included.
For the purposes of this Article or of clause (4) of Article 75 or of both of them, the Head of State, acting on the advice of the Judicial Service Commission, may designate as an approved country any country which, in the opinion of the Commission, has a legal system similar to that existing in Samoa.

66. Powers of Judges of the Supreme Court

Each Judge of the Supreme Court or any two or more Judges may, in any part of Samoa and at any time or place, exercise all the powers of the Supreme Court.

67. Oath of office

Every Judge of the Supreme Court shall, before assuming the functions of his or her office, take and subscribe before the Head of State an oath in the form set out in the Third Schedule.

68. Tenure of office

Except in the case of an appointment made under the provisions of clause (2), a Judge of the Supreme Court shall hold office until he reaches the age of 68 years:Provided that the Head of State, acting (in the case of the Chief Justice) on the advice of the Prime Minister or (in the case of any other Judge of the Supreme Court) on the advice of the Judicial Service Commission, may extend the period of office of a Judge who has reached the age of 68 years.
Any person of any age who is not a citizen of Samoa and who is qualified for appointment under the provisions of clause (3) of Article 65 may be appointed to hold office as a Judge of the Supreme Court for a term of years.
Nothing done by a Judge of the Supreme Court in the performance of his or her functions shall be deemed to be invalid by reason only that he has reached the age at which he is required by this Article to retire or that his or her term of office has expired, as the case may be.
A Judge of the Supreme Court may resign his or her office by writing under his or her hand addressed to the Head of State.
A Judge of the Supreme Court shall not be removed from office, except by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of Members of Parliament (including vacancies), praying for his or her removal from office on the ground of stated misbehaviour or of infirmity of body or mind.
The Head of State, acting (in the case of the Chief Justice) on the advice of the Prime Minister or (in the case of any other Judge of the Supreme Court) on the advice of the Judicial Service Commission, may at any time when the Legislative Assembly is not meeting suspend a Judge of the Supreme Court from his or her office, and such suspension, unless previously revoked, shall continue in force until the end of the next ensuing session and no longer.

69. Salaries of Judge of the Supreme Court

The salaries of Judges of the Supreme Court to whom clause (1) of Article 68 applies shall be determined by Act and shall be charged on the Treasury Fund. The salaries of such Judges shall not be diminished during their period of office, unless as part of a general reduction of salaries applied proportionately to all persons whose salaries are determined by Act.

70. Acting Chief Justice

While any vacancy exists in the office of Chief Justice or during any absence from Samoa of the Chief Justice, the senior Judge of the Supreme Court shall have authority to act as Chief Justice and to perform the functions of the office of Chief Justice.
Wherever by reason of illness or any cause other than absence from Samoa the Chief Justice is unable to perform the functions of the office of Chief Justice, the Head of State, acting on the advice of the Prime Minister, may authorise the senior Judge of the Supreme Court to act as Chief Justice until the Chief Justice resumes those functions, and, during that period, to perform those functions.
The authority conferred on the Acting Chief Justice under the provisions of this Article shall not include power to preside over the Court of Appeal unless he is qualified by virtue of his or her seniority to preside thereover under the provisions of clause (3) of Article 75.

71. Acting Judge of the Supreme Court

If the office of any Judge of the Supreme Court (other than the Chief Justice) is vacant or if any such Judge is unable to perform the functions of his or her office, the Head of State, acting on the advice of the Judicial Service Commission, may appoint a person qualified under the provisions of clause (3) of Article 65 to be temporarily a Judge of the Supreme Court:Provided that a person may be so appointed notwithstanding that he has attained the age of 68 years.
Any person appointed under the provisions of clause (1) to be temporarily a Judge of the Supreme Court shall hold office for the period of his or her appointment or, if no such period is specified, until his or her appointment is revoked by the Head of State, acting on the advice of the Judicial Service Commission:Provided that he may at any time resign his or her office by writing under his or her hand addressed to the Head of State.

72. Judicial Service Commission

There shall be a Judicial Service Commission, which shall consist of:
1. the Chief Justice, as President:
2. the Attorney-General or, if for any reason the Attorney-General is unable to act, the Chairman of the Public Service Commission:
3. a person nominated from time to time by the Minister of Justice.
No business shall be transacted by the Judicial Service Commission unless three members are present, and all questions proposed for decision by the Commission shall be decided by a majority of the votes of those members.
The power of appointing, promoting and transferring any judicial officer, other than the Chief Justice, and of dismissing any judicial officer, other than a Judge of the Supreme Court, is hereby vested in the Head of State, acting on the advice of the Judicial Service Commission.

73. Jurisdiction of the Supreme Court

The Supreme Court shall have such original, appellate and revisional jurisdiction as may be provided by Act.
Without prejudice to any appellate or revisional jurisdiction of the Supreme Court, where in any proceedings before another court (except the Court of Appeal) a question arises as to the interpretation or effect of any provision of this Constitution, the Supreme Court may, on the application of any party to the proceedings, determine that question and either dispose of the case or remit it to that other court to be disposed of in accordance with the determination.
The Head of State, acting on the advice of the Prime Minister, may refer to the Supreme Court for its opinion any question as to the interpretation or effect of any provision of this Constitution which has arisen or appears likely to arise, and the Court shall pronounce its opinion on any question so referred to it.

74. Subordinate courts

There shall be such subordinate courts possessing such jurisdiction and powers as may be provided by Act.

75. Constitution of Court of Appeal

There shall be a Court of Appeal of Samoa, which shall be a superior court of record.
Subject to the provisions of this Part, the Judges of the Court of Appeal shall be:
1. the Chief Justice and the other Judges of the Supreme Court:
2. such persons, possessing the qualifications prescribed under the provisions of clause (3) of Article 65, as may be appointed from time to time by the Head of State, acting on the advice of the Judicial Service Commission.
The Chief Justice shall be President of the Court of Appeal, but, in his or her absence, the senior Judge of the Court present at the appeal or, if the Judges so present are of the same seniority, a Judge designated by the Chief Justice shall preside.
Judges of the Court of Appeal shall take seniority according to the respective dates of their first appointment as Judges of a superior court in Samoa or in any approved country.
An appointment under the provision of subclause (b) of clause (2) shall be for a period of time or for the trial or hearing of particular causes or matters, as may be specified in the instrument of appointment.

76. Number of Judges

Any three Judges of the Court of Appeal may exercise all the powers of the Court:Provided that the Court may have its judgment delivered by any one of its members who is also a Judge of the Supreme Court, and if there is no such member then through the Registrar of the Court of Appeal.
The judgment of the Court of Appeal shall be in accordance with the opinion of the majority of the Judges present.

77. Judges not to sit on appeals from own decisions

A Judge of the Court of Appeal shall not sit on the hearing of an appeal from any decision made by him or her or by a court on which he sat as a member.

78. Oath of office

Any person appointed under the provisions of subclause (b) of clause (2) of Article 75 to be a Judge of the Court of Appeal shall, on first appointment, take and subscribe before the Head of State an oath in the form set out in the Third Schedule.

79. General jurisdiction of Court of Appeal

Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to hear and determine such appeals (including proceedings removed by order of the Supreme Court to the Court of Appeal) as may be provided by Act.

80. Jurisdiction on constitutional questions

An appeal shall lie to the Court of Appeal from any decision of the Supreme Court in any proceeding, if the Supreme Court certifies that the case involves a substantial question of law as to the interpretation or effect of any provision of this Constitution.
Where the Supreme Court has refused to give such a certificate, the Court of Appeal may, if it is satisfied that the case involves a substantial question of law as to the interpretation or effect of any provision of this Constitution, grant special leave to appeal from that decision.
Where such a certificate is given or such leave is granted, any party in the case may appeal to the Court of Appeal on the ground that any such question as aforesaid has been wrongly decided and, with the leave of that Court, on any other ground.