Bill requires retired Supreme Court Judges for L.T.C. Court of Appeal
A proposed measure before Parliament to establish an independent Lands and Titles Court will require retired Judges of the Supreme Court to sit on a Court of Appeal for the Land and Titles Court.
The restructuring of Samoa’s judiciary system is proposed under the Constitutional Amendment Bill 2020, which will establish a parallel and entirely separate Court structure for the L.T.C. Part of the bill proposes to remove powers from the Supreme Court to review any appeal, or Judiciary Review, in a L.T.C. matter.
This means the L.T.C. will have its own Court of Appeal, leaving the current Court of Appeal to focus on criminal and civil appeal cases.
The bill says Judges of the L.T.C. Court of Appeal shall be retired Judges of the Supreme Court of Samoa under the age of 75 years old, or such persons possessing similar qualifications.
Judges of the Court of Appeal shall take seniority according to the respective dates of their first appointment as Judges of a superior Court, states the amendment bill.
“The Chief Justice, and in his absence, the most senior Judge of the Court of Appeal 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.”
The Constitutional amendment means that the scope of Judges that can sit on the L.T.C. Court of Appeal is limited to only those who have retired from a Supreme Court.
Currently, there are only a handful of former Supreme Court Judges that might be eligible under the amendment subject to their availability. They are former Chief Justice, Patu Tiava’asue Falefatu Sapolu, former Supreme Court Judges, Justice Vaepule Vaemoa Vaai and Justice Lesatele Rapi Vaai.
Justice Vaepule resigned in December due to health reasons while Justice Patu bowed out from the judicial system in April last year at the age of 68.
Justice Lesatele on the other hand is working for the High Court of Nauru.
Former ambassador to the United States and former Attorney General, Tuiloma Neroni Slade, had also presided as a Judge of the International Criminal Court.
The Constitutional Amendment Bill 2020 was tabled in Parliament last month and has been referred to a Parliament Committee.
The amendment received some criticisms from an anti-corruption lawyer in Australia who is the Co-Chair of the International Bar Association’s Anti-Corruption Committee for 2015 and 2016.
Robert Wyld in a previous interview with the Samoa Observer questioned if there was something wrong with the Supreme Court that has prompted the move. He questioned whether reasons intimated about the decision to separate the Courts were good enough to justify the effort and expense of creating a new court system.
He pointed out there are plenty of successful examples of specialist courts that handle unique types of cases like the L.T.C., but remain beneath the highest court.
A properly resourced Supreme Court should be able to manage all types of cases in good time, he said.
“It seems somewhat expensive. Whether it’s really necessary and whether they can’t use the existing system, I don’t know.”
But Prime Minister, Tuilaepa Dr. Sailele Malielegaoi said the Constitutional amendment is to reflect more of the Samoan context inside Samoa supreme law, the Constitution, to “make the Constitution a Samoan Constitution” in light of today’s context.
Tuilaepa had posed the question of why is the Samoan Constitution more protective of the introduced modern principles such as individuals rights as compared to the Samoan custom and usages the way of life of the Samoan people.
“In a Court room why are individual rights more powerful than Village Fono decisions,” he asked. “The answer is because the Constitution says so. In response to these challenges, Samoa through this Constitution Amendment Bill 2020 has opted to give more recognition of Samoa in our own Samoan Constitution.
“This is without removing our current rights and freedoms. In this bill we adopt the best of both the modern principles and the customary values in moving forward so that Samoan customs and usages are not lost…”