Local lawyers talk about the significance of the veto override question up for ballot

Pago Pago, AMERICAN SAMOA — The question of the Governor’s veto override by the Secretary of the Interior was one of the issues discussed at a forum hosted by the American Samoa Bar Association and the Department of Youth and Women’s Affairs on the 11 proposed constitutional amendments.

Moderator Lornalei Meredith and the panelists consisted of Senior lawyer Charles Alai’ilima  Executive Director of the Constitutional Convention office, Tapa’au Dan Aga and Deputy Attorney General Roy Hall.

Mrs Meredith asked about the advantages and disadvantages of changing the current process.

Mr Hall said allowing the Secretary of Interior to review a veto by the Governor “is just stuck there on the cloud” and the Secretary was not elected by the people of American Samoa.

“I feel the actions of the Legislature and the Governor is a local matter and it should be handled by our legislature and our governor and not be reviewed as if someone was looking over our shoulder.

“That's the advantage,” said Hall.

Tapa’au said there is a disadvantage in the present system where the Secretary has this kind of oversight over a legislative override of a governor's veto.

“And all States have this kind of with different versions where the legislature can override a governor's veto. We already have it in the Constitution just to be clear — it's what what this proposed amendment asks — is to remove the Secretary from this process.”

He said three of the 11 constitutional amendments are all in relation to the Secretary of Interior’s power and they are all about developing the local government.

“And when you ask about the advantages it's clear in the constitution where it’s  in the process of developing self-government, —the Constitution makes it clear this is an appropriate effort by the people.

“This is a way to develop local self-government, bring it to the hands of the people and so we can pass our own local laws,” said Tapa’au.

Adding currently due to the 1951 delegation of authority by the President to the Secretary; the Secretary has all civil, military and judicial powers; immense powers more than in any other Territory of the United States.

The moderator asked the reasons behind the proposed policy changes to the power given to the Secretary, including the appointing of the Chief Justice, overriding the governor’s veto and appointing Judges to sit on an appellate court.

Hall said it’s not a matter of policy rather its appeals to the people’s common sense, that as a community Samoans should be able to pass local laws and enforce them.

“We don’t need another level of review to see if we're doing it right or if we're doing wrong; even if they haven't interfered or if they haven't gotten involved, that in a way, I would say an inverse approval of what we're doing,” said Hall.

Tapa’au said it is the principle of self-determination.

Alailima said the idea of veto, judiciary rights and the governor’s authority depends on this American system of divided governace.

“At this point in time, the governor exercises the authority given the preliminary authority that the Secretary of Interior does.

“This was shown to me in a case we had when we were trying to argue that the legislature has to pass a law before creating an agency before the governor that affects private rights that the government can't do that by executive order.

“And the court here said the governor exercises can exercise legislative authority in areas where the legislature has not acted, to me that has to be clarified.

“We are going towards our own self-determination but it has to be are we going towards the self-determination within the context of an American type of governance with this three-part authority which has to be clearly identified and whether it's also going to be within the federal system,” asked Alailima.

Another issue brought up, was that if American Samoa does remove the Secretary of Interior from the equation in terms of Appellate case decisions, where will the public file their appeals?

Alailima said this is the problem with trying to do this piecemeal of constitutional amendments which is what’s happening at the moment is“taking little snippets” and trying to change and yet they have not really identified what to do in this relationship with the federal government.

“We need to define how we want to relate to the federal government before we can do these piecemeal changes to a constitution; because if we say that's just one level of appeal and that's it and you cannot go beyond that and federal laws that are applicable down here.

“At this point in time the only certain federal things are done by the federal court are done by the high court but because there is no official federal court jurisdiction down here and that creates a kind of a difficulty as to who makes these decisions when it comes to federal issues.”

Alailima said if there is no action taken on establishing a federal court in American Samoa because in the other territories there is a federal court that oversees federal issues in Guam, Marianas, Puerto Rico and the Virgin Islands.

“We don’t have that because I think the Secretary of Interior. However, if we take out the Secretary of Interior without putting in a federal review process for the federal interest down here you end up with basically all local decision-making without any recourse up to the federal level,” explained Alailima.

Hall said if this amendment is passed by voters and it goes to the Secretary of Interior then Congress approves it then it is time for the Legislature to enact legislation to create a supreme court and a high appellate court.

“So there's something that we could still create by statute and I think that step will be taken if Congress should approve this amendment.”

Tapa’au also commented on the issue and pointed to what Alailima mentioned earlier “piecemeal” referring to the proposed amendment.

“Well, that's partially true. "I mean in a perfect world and an ideal situation we could have taken a more comprehensive approach and identified all of the kinds of classes that are needed.

“However one of the benefits of going through this process is trying to figure out a coherent policy pathway to amend the Constitution of American Samoa.

“To say it very simply if we don’t do it, we'll never know how to do this and so to engage in this process and to take it to a referendum and if our people can make it to the next step which we haven't been able to since the law changed in 1983; we haven't been able to cross the proverbial river to get from the referendum to the Secretary of Interior,” said Tapaa’u.

He said that the steps taken now will not get American Samoa all the way but unless they take this first step, they won't be able to get to all the subsequent steps that are needed.

Another issue raised is the current process regarding the appeals decisions which go to the Secretary of Interior.

Hall said the issue at hand is what makes American Samoa different from any other state or territory is that the Secretary of Interior is not a judge and he’s not really a party that should be considering local appeals.

“The fact is what was the reason for us taking our appeal to a non-judicial body that's why I believe what we’re trying to do with the Constitutional Convention is to get away from that system.

Alailima said the appeal decision from the trial court goes to an appellate division consisting of three Associate Justices and two Associate Judges.

“In the past, there were two Associate Justices that were actually working down here and one that didn't handle the trial level within sitting with two other appointed Acting Associate Justices that were sent down by Interior to review the trial court's decision.

“Once that decision is made that becomes an appeal decision was made by those three Associate Justices and two Associate Judges.

“The next process is a little bit convoluted because as what happens is then you are actually having to go sue the Secretary of Interior saying that his employees did not employ the law properly; you’ll have to go then make an application to the secretary of the interior to review the decision of his Justices that were brought down here to American Samoa.

“That's really just a speed bump to us getting into federal court; you have to take the Secretary of Interior to the federal court.”