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High Court upholds Masaniai’s appointment as IP

The Trial Division of the High Court has ruled the appointment of Fa’amomoi Masaniai as Independent Prosecutor (IP) remains valid and denied Talia Fa’afetai Iaulualo's motion to dismiss his current charges.

Iaulualo, the current House Vice Speaker, is facing three counts of embezzlement for a crime he allegedly committed about four years ago when he was director of the Department of Human and Social Services (DHSS). He is currently out on bail and his criminal case was filed again in May last year, the second time IP Masaniai filed charges for this case.

The first charges were filed in 2010. In both filings (2010 and 2011) Masaniai acted in his capacity as Independent Prosecutor pursuant to a court order of June 17, 2009 appointing him IP.

In May 2010, the Trial Court ruled the IP statute was unconstitutional, following an appeal at the time by Filifaatali Mike Fuiava and Marie Ripley, both cases prosecuted by IP Masaniai.

With the IP statute declared unconstitutional, Iaulualo’s case from 2010 was “dismissed” on Oct. 8, 2010 and Masaniai didn’t appeal the dismissal, which was “not stayed”, Iaulualo's attorney Sharron Rancourt argued.

With Iaulualo’s 2010 case dismissed, “there was no longer any work for the independent prosecutor to pursue with regards to the defendant’s case,” Rancourt further argued. “As such, his appointment — and any authority… [was] terminated.”

With the authority terminated, Rancourt contends that any new prosecution initiated against Iaulualo would require a new appointment of an Independent Prosecutor.


Rancourt argued that the 2009 order appointing Masaniai as IP no longer exists.

However, the defense argued, when the Appellate Division ruled the IP statute constitutional, it remanded the matter for further proceedings in the case of Filifaatali and Ripley — while there was no “remand” on Iaulualo’s case from 2010 and this is because it was not included in any stay.


In its Feb. 15, 2012 decision, the judges address the question before them, whether the trial court’s finding the IP Act unconstitutional nullifies a prior order from the IP Appointing Division of the High Court, appointing the IP to a separate case even after the Appellate Division overturned the trial court’s ruling and finding the IP Act constitutional.

And the “answer is no,” the judges said, adding that the Appointing Division’s order assigning Masaniai as IP for Iaulualo’s case “has not been voided; it is still valid.”

Citing court rulings from off-island cases, the trial court stated that the “power to repeal or abolish a statute is beyond the power of the courts; notwithstanding a decision rendering a statute unconstitutional, the statute remains a statute unless repealed by legislative act.”

“When a court voids a statute, it does so in the sense that it is inoperative or unenforceable, not that it is repealed or abolished,” the judges say. “The statute, thusly, is not dead but instead lies dormant. Hence, any subsequent decision reviving the statute renders it valid from the date of its enactment.”

“Masaniai’s appointment as the independent prosecutor has not been severed,” the judges said, adding that its finding the IP Act unconstitutional, “did not obliterate the IP Act in any way. It merely rendered the IP Act inoperative.”

“The act, therefore, continued to exist as a legislative enactment in spite our ruling,” said judges. “Its existence, however, was that of an unenforceable/inoperative statute; it became a piece of legislation rendered dormant by judicial decree.”

“The Appellate Division revived the IP Act when it overturned our ruling and found the act constitutional. In doing so, it nullified our ruling and restored those appointments made pursuant to the act, which never truly went away,” according to the judges, saying that the defendant’s dismissal motion “is without merit” and “is denied.”

A footnote in the six-page decision says that, “Suggesting in any way that the High Court has the power to repeal or abolish a statute on constitutional grounds speaks of expanding the court’s sphere of influence into areas it does not belong.

“It would, indeed, be judicial hubris for a court to enter territory so clearly defined and belonging to another branch,” according to the decision signed by Associated Justice Lyle Richmond and  Associate Judge Mamea Sala Jr.