The restoration of the court structure where a unified judiciary is headed by the Chief Justice is the best way forward to deal with the parallel system created by the former administration.

This would end the many wrongs that need to be righted when the controversial law was passed in 2020.

To date the former administration who remain in opposition believe that the two-headed judicial system is workable. It would be interesting to hear what the judges would comment on plans to disestablish the Land and Titles Court of Appeal and Review.

These are matters highlighted in a letter from the Chief Executive Officer for the Ministry of Justice Court and Administration (M.J.C.A.), Papalii John Taimalelagi dated 23 April 2024 to Chief Justice Satiu Simativa Perese. 

Prime Minister Fiame Naomi Mata’afa, Minister for M.J.C.A. Matamua Vasati Pulufana and Attorney General Su’a Hellene Wallwork were also copied in the letter.

Papalii referred to a Cabinet Directive in December 2023 that approved the Ministry to progress amendments to the Constitution and the Land and Titles Act 2020 (L.T.A.) to reverse some of the major changes brought about following the enactment of the Constitution Amendment Act 2020 (C.A.A.), L.T.A. 2020 and Judicature Act 2020.

The C.E.O. wrote that the Ministry is now in the process of preparing a Policy Paper for submission to the Cabinet drawing on relevant, publicly available documentation, reports, articles, and submissions as well as drawing on feedback from public consultations that the Ministry conducted in the last half of 2023.

The proposed changes being considered are for a unified court structure, enforcement and protection of fundamental rights, and disestablishment of L.T.C.A.R.

In terms of the court structure, the courts will revert to a unified court structure with the Chief Justice as head of the Judiciary (and President of the Court of Appeal).

“There will no longer be a parallel Land and Titles Court system that is completely separate from and outside the supervisory/revisionary jurisdiction of the Supreme Court and Court of Appeal,” the letter stated.

“Enforcement and Protection of Fundamental Rights: The jurisdiction to provide remedies for enforcement of fundamental rights under Part II, including judicial review proceedings arising from decisions and proceedings under the LTC, will revert to the Supreme Court.

“Individuals' rights to seek redress in the Supreme Court for breaches of their fundamental rights, including breaches arising from decisions and proceedings in the Land and Titles Court will be reinstated.”

In 2020, the government was warned about the repercussions of the two-headed judiciary. The government was warned that the proposed amendments undermined judicial independence and the fundamental separation of powers that are vital to the rule of law.

They were told that by placing the LTC outside of the scrutiny and supervisory jurisdiction of Samoa’s Supreme Court would create two parallel and potentially competing court systems within Samoa’s legal framework. That is exactly what has happened.

The government was warned that this move would adversely affect the rule of law, the position of the Chief Justice and the supervisory jurisdiction in the hierarchy of courts in Samoa. Those warnings are coming true.

In January of last year, the current government backtracked from its election promise to repeal the LTC Act and instead said they would fill in the gaps in the law to make it work. Sadly, that has not happened, the gaps in the law remain and create more problems for the people seeking justice through the judicial system.

If there is no intention to repeal the LTC then it has to come under the Supreme Court. The two-headed system cannot exist as it will continue to create problems for people, judicial officers, and judges. If this system continues, the violation of human rights will also continue as people will continue to be deprived of their rights to justice which is fair.

In reality, not everything has gone according to plan, since the former administration bulldozed legislative changes in late 2020, and got the Legislative Assembly to vote in favour of amendments that made the country’s Land and Titles Court autonomous.

Ignoring the pleas of a large cross-section of local and international legal experts, institutions of jurisprudence, and global human rights organisations in the mid to latter part of that year, the votes in favour of the amendments restructured Samoa’s Judiciary by removing Supreme Court oversight over the L.T.C.

It is good to see the Ministry of Justice doing work on reversing this decision. While consultations are being done and reflective of a proper process, time is not on the side of many whose matters are stuck before the court because the parallel court system still exists.