Court Rules Employment Suit Against SPREP Can Go Ahead

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Regional organization’s claim of diplomatic immunity dismissed

By Lorraine Bowan

APIA, Samoa (Samoa Observer, Oct. 12, 2014) – The Chief Justice, Right Honourable Patu F. M. Sapolu, dismissed a motion to strike out an action against the Secretariat of the Pacific Regional Environment Programme (S.P.R.E.P.) for breach of contract brought by former employee, Pauline Johnson.

The way is now clear for Mrs Johnson, represented by Ruby Drake, to put before the court the circumstances of her dismissal and invoke her constitutional and human rights on an equal footing with S.P.R.E.P.

Appearing for S.P.R.E.P. Semi Leung Wai sought to have Mrs Johnson’s claim struck out on the grounds that S.P.R.E.P. had diplomatic immunity.

The Certificate of Immunity was signed by the Deputy Prime Minister, Fonotoe Pierre Lauofo, ten days after notice of Mrs Johnson’s suit was served on S.P.R.E.P. despite the organization having been established in Apia since 16 June 1993, and not having been included in the 1998 Order listing all designated International Organizations with statutory diplomatic immunity and privileges.

When the question was directly put to Mr Leung Wai whether the granting of diplomatic immunity was in response to this case being brought against S.P.R.E.P. he declined to answer.

In making his ruling, the Chief Justice said, "Mr Leung Wai, given what the plaintiff has said, I am not sure that this is a hopeless case. The strike out principle only applies where it is obvious that there is no possibility it can succeed."

He declined the motion, "because of the complexity of the issues under the constitution."

In his determination, the Chief Justice upheld the principle of equality of arms, which is inherent in the right to fair trial, a human right guaranteed by the International Bill of Rights and the Samoan Constitution.

Although commonly invoked in criminal trials, the European Court of Human Rights first articulated the principle in a civil case such as this.

The equality of arms principle recognizes the imbalance of power between litigants, and the courts have long protected the rights of parties when the power and resources marshaled against them are disproportionate enough to undermine the principle that all are equal before the law.

The cornerstone of democratic government, the separation of powers, requires that the executive and legislative branches of government do not interfere with the judicial branch and may not influence the outcome of cases before the courts through legislative or regulatory acts.

Legal debate hinged on the waiver clause in the Diplomatic Immunity and Privileges Act leading the Chief Justice to conclude, "If the plaintiff is right, then the Order is unconstitutional and it will have to be declared unlawful because it breaches the constitution."

The significance of the decision is that the case and the constitutional arguments will now be heard in court, rather than being silenced. If contractual rights between lone individuals and powerful organizations are not upheld in the nation’s courts, it reflects negatively on the rule of law.

The case is adjourned until 20 October.

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