Judges caution Govt. about judicial overhaul
The Judiciary has expressed “grave concerns” about the risks of proposed changes to the make up of the Courts by the Government, including the creation of an independent Lands and Titles Court (L.T.C.).
The "collective view of the Samoa Judiciary" is expressed in a letter to the Executive Director of the Samoa Law Reform Commission, Teleiai Dr. Lalotoa Mulitalo, dated 6th April 2020.
A copy of the letter obtained by the Sunday Samoan is signed by the Acting Chief Justice, Vui Clarence Nelson, Senior Justice Niava Mata Tuatagaloa, Justice Tafaoimalo Leilani Tuala-Warren, Justice Leiataualesa Daryl Clarke, Justice Fepulea'i Ameperosa Roma, Senior Judge Talasa Atoa-Saaga, Judge Alalatoa Rosella Papalii, Judge Leota Ray Schuster and Judge Loau Donald Kerslake.
The letter also claims the support of the Land and Titles Court "whom we understand have elected to respond separately."
The reaction from the Judiciary comes after plans to reshape the nation’s judicial structure were introduced by Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi in Parliament last month.
Under the proposal, the L.T.C. would be a parallel and independent judicial structure, including its own High Court and Court of Final Appeal and Review, removing the option to appeal L.T.C. decisions to the Supreme Court.
But the Judiciary cautions against the splitting of the nation's court system. They also warn about the need to safeguard the Constitution and the wisdom with which Samoa's ancestors wrote it.
"Any structure that separates the interpretation and protection of Constitutional rights between two Court systems is in our respectful view flawed, unworkable and carries significant inherent risks," the letter reads.
“This is a slippery slope and we are sure the Government does not want the Constitution to become the plaything of politicians".
The Judges recommend the complete withdrawal of the Constitution Amendment Bill 2020; and The Judicature Bill 2020 until their consequences can be considered more fully - including wide ranging consultations.
The Judges say the proposal has been “dangerously” ill-considered given its potential far-reaching effects on the nation’s Courts.
Other nations with customary courts, such as New Zealand, the Judges argue, are still subject to oversight by national Supreme Courts, the Judges write.
The Judges write the Bill has several practical limitations, including the availability of jurists and other resources for a newly parallel judiciary but they also say they are “at a loss” to understand the “rush” with which it has been introduced.
“To blithely state that the public and any other interested parties can express their views at the Parliamentary Select Committee phase demonstrates a dangerously blasé attitude to Constitutional change,” the Judges write.
“The establishment of a separate Judicial Service Commission is unnecessary duplication and will serve only to split the Judiciary.
"Any structure that separates the interpretation and protection of Constitutional rights between two Court systems is in our respectful view flawed, unworkable and carries significant inherent risks.
“The provision represents a serious and significant risk for increased litigation and legal argument with entirely unknown consequences.
“What is not broken does not require fixing.”
This is a copy of the letter:
6 April 2020
Afioga Teleiai Dr Lalotoa Mulitalo
Samoa Law Reform Commission
 Thank you for your letter dated 14 February 2020. The delay in replying has been due to the many unforeseen happenings affecting the country.
 The Judiciary has considered the drafts provided of the:
- Constitution Amendment Bill 2020; and
- The Judicature Bill 2020.
 We do not propose in the time available to respond to these draft Bills on a clause by clause basis. These comments will address the key themes of the Constitution Amendment Bill and Judicature Bill. These comments are the collective view of the Samoa Judiciary excluding the Land & Titles Court whom we understand have elected to respond separately.
The Law Reform Process:
 Firstly, we must express serious concern over the process that has been followed in the preparation of these Bills.
 The draft Constitution Amendment Bill 2020 proposes wholesale and fundamental changes to the Constitution of the country. Such significant proposals would normally require serious and detailed consideration by a wide body of experts and people. This includes not only the Judiciary but also the Samoa Law Society, the Registrar of the Supreme Court, District Court and most importantly, the Land and Titles Court; as well as other key players and stakeholders who will undoubtedly be affected by these changes.
 It is simply unacceptable that apart from one meeting with the Acting Chief Justice and Head of Bench and possibly one or two other judges for a general discussion in January this year with the Steering Committee, the usual and proper process for detailed consultation and discussion of draft provisions concerning Constitutional changes affecting the Judiciary and the protection of the Fundamental Rights of all citizens of this country was not initiated prior to the submission of these Bills to Cabinet. This was the procedure previously adopted and followed by Government. We are perplexed as to why this has now changed.
 At the meetings in January, the Acting Chief Justice voiced and made clear to your Committee his strong concerns about the proposed changes. We understand other judges did as well.
 Upon receipt of the draft Bills under cover of your letter of 14 February 2020, some six days before submission to Cabinet, the Acting Chief Justice wrote and requested more time for consideration of these developments. This request was declined. Considering what is at stake, the Judges are a loss to understand the “rush”. If this process takes years, then so it should for these changes are not minor and are to the Constitution, the Supreme Law of Samoa adopted by the founding fathers of this Nation upon Independence.
 We remind you of what is enshrined in article 2(1) of the Constitution:
“2. The Supreme Law – This Constitution shall be the supreme law of Samoa”
 Governments come and go but the Constitution remains the bedrock foundation of the country’s legal system and its laws. It has been there since Independence in 1962. It is there to regulate the conduct of past present and future governments, to provide transparency good governance and accountability and to promote a just, peaceful and stable Samoa. The Constitution should not be changed without good reason and proper consultation.
 As you are aware, effective consultation is the most important part of the law reform process. Despite the Judiciary being the arm of the Tafatolu most directly affected by these changes, and having a cadre of highly qualified and experienced judges, making them the persons best placed to comment on the legal ramifications of these amendments, your Committee has nevertheless submitted the draft Bills to Government. The Judiciary was given the Drafts 6 days in which to comment. For such significant issues involving Constitutional reform and re-organization of the structure of the courts of Samoa, including the courts of final resort and the introduction of a separate Customary Law System, such an approach cannot be justified.
 We would also direct your attention to s.6(b) of the Law Reform Commission Act requiring you “to consult with and advise the public about your work.”We do not recall such sweeping Constitutional reforms being the subject of any such public consultations. To blithely state that the public and any other interested parties can express their views at the Parliamentary Select Committee phase demonstrates a dangerously blasé attitude to Constitutional change and is with respect contrary to the specific statutory directions and mandate given by the Parliament of this country to you.
 The Judges are also concerned that the best practice to law reform approach appears not to have been followed. This involves as you know where a reference is received from whatever source, to prepare and consult on an Issues Paper. From that Issues Paper and on the basis of comments from consultations with legal experts and relevant stakeholders, in particular the matais, Alii and Faipule and people of the country, as well as comparative research on the subject area (including in relation to comparable overseas jurisdictions sharing a similar or common history and legal system), a Final Report can then be prepared with the Commission’s recommendations.
 It is this Final Report which is then tabled before the Parliament of the country, Regardless of which recommendations Parliament accepts or rejects, the fact remains that the law reform process has thus been followed and the integrity of the process is maintained.
 This process is reflected on the Samoa Law Reform Commission website a copy of which is attached to refresh your memory. This process has not been followed in preparing these Bills despite the magnitude and importance of the reform being undertaken.
Constitution Amendment Bill 2020
Dividing the Court System:
 The Constitution Amendment Bill, for the first time since Samoa gained Independence some 60 years ago, proposes significant changes to the Constitutional regime set up by our forefathers to govern the establishment and composition of the Courts of Samoa. These are momentous and far-reaching changes which will outlive all of us.
 It also proposes sweeping amendment to the role and jurisdiction of the Supreme Court and Court of Appeal of Samoa and effectively splits Samoa’s judicial system into two: the Criminal and Civil Courts on the one hand and the Courts of Samoan Custom and Tradition on the other. It separates them on criteria for selection and appointment and more significantly, in relation to questions pertaining to interpretation of the Constitution and the determination of the fundamental rights of all citizens as established by the Constitution.
 The “Judiciary” is one arm of the Government of a nation, not two as these proposed amendments will effectively create.
 The proposed structure separates the interpretation and application of the Fundamental Rights provisions of the Constitution between two entirely separate and distinct jurisdictions. The Civil and Criminal courts will have to interpret and determine Part II Fundamental Rights questions separately to the Land and Titles Court. The result will inevitably be that the interpretation of the Fundamental Rights provisions of the Constitution in the Civil and Criminal Courts will be different to that of the Land and Titles Court jurisdiction.
 No Court will have precedence over the other. Each will have a Court of Appeal of different composition but equal standing and there will inevitably arise two separate and potentially inconsistent lines of interpretations applied to the same Fundamental Rights articles of the one Constitution.
 As a qualified lawyer, you will be well versed on the critical importance of the hierarchy of Courts and the necessity for there to be a single Apex Court to resolve all issues disputes and differences, whether concerning interpretation or otherwise. Such as the Supreme Court of New Zealand, High Court of Australia, Supreme Court of the United States of America and so forth. Those countries do not have two different final courts of appeal, one for customary matters and another for all other matters. Such an approach is colonialistic and was rejected by many countries. In New Zealand from where many of our laws are derived, the Maori Land Court is a subject to oversight by New Zealand’s highest court, the Supreme Court of New Zealand.
 There is an important reason why there is a unified single Court system under an Apex Court (as currently exists), namely, to bring finality, conformity and consistency to the decisions of the courts based on precedent. It is also to avoid this very event from occurring, that is, two Apex Courts (as the Bill propose) giving rise to different interpretations and application of the one document, in this case the Supreme Law of the country. Any structure that separates the interpretation and protection of Constitutional rights between two Court systems is in our respectful view flawed, unworkable and carries significant inherent risks.
 It is not resolved by current or retired Supreme Court judges presiding in the Land and Titles Courts, even if you could recruit the necessary personnel. That is no guarantee that one court hierarchy will follow and be bound by the interpretation of the other because judges by their very nature have differing views on the law and its application. That is why there must ultimately be only one final court that resolves all matters, issues and questions.
 We also express grave reservations about whether these Constitutional amendments infringe the doctrine of the separation of powers and the whole existence of the concept of the ‘Tafatolu.’ - The Executive is creating an independent judicial branch (comprising the Lands & Titles Court, the Land and Titles High Court and the Land & Titles Court of Appeal and Review, whose appointments will be governed by a Judicial Service Commission chaired by the President of the Land & Titles Court) under the control of the President and therefore not subject to the authority of the Chief Justice. It is an unjustified splitting of the Judiciary into two separate branches, each to operate independently of the other. It is also an equivalent level even though qualifications required for the two offices are clearly not the same.
 We are equally concerned that the Attorney General whose duties include upholding the Rule of Law and Fundamental Institutions of democratic government embedded in the Constitution, has approved and signed off on legislation that clearly attempts to split the Judiciary of the country into two branches and thereby effectively create a ‘Tafa-i-Fa’.
Independence of the Lands & Titles Courts
 These amendments are premised on the very wrong and erroneous assumption that the Courts of General Jurisdiction being the Supreme Cour and Court of Appeal somehow “control and interfere” with decisions of the Land and Titles Court system. We draw your attention to what both courts have consistently stated in all of their decisions on the matter, viz., that the Supreme Court and Court of Appeal, have no power jurisdiction or legal remit to interfere with decisions of the Lands & Titles Courts on matters of tu ma aganuu fa’a-Samoa. In such matters, the Land & Titles Courts have exclusive jurisdiction and reign supreme. PACLII is littered with authorities to this effect.
 However, even the Land and Titles Court must obey the Constitution. And if in the exercise of their functions to interpret uphold and apply our customs and traditions, and because their Judges are not legally trained and are not legal or Constitutional experts, they infringe the Constitution – for example as to a person’s right to be heard in matters affecting his matai title or matai rights or customary land, then the Courts of General Jurisdiction must intervene and correct any resulting injustice. These courts do not do this of their own motion, they only intervene on the application of an aggrieved party or parties from the Land & Titles Court proceeding.
 That is a totally different proposition to saying that therefore the Supreme Court and Court of Appeal control the Land and Titles Court and are interfering in their decisions on matters of the tu ma aganuu fa’a-Samoa. Furthermore, when they do intervene, the Supreme Court and Court of Appeal do not then decide the matter. If some injustice has been done, they return it to the Land and Titles Court to rehear, this time properly. Again, this is recognition of the supremacy by law of the Land and Titles Courts on matters of customary land and titles.
 It is misleading and inaccurate to promote these amendments as being to set up an “Independent Land and Titles Court”. In matters of tu ma le aganuu fa’a-Samoa, the Land and Titles Courts are already and have always been independent.
Amendment of the Constitution
 The first comment is that these provisions are too prescriptive and this level of prescription normally avoided in Constitutional drafting. This is because the 2/3rds requirement to amend the Constitution makes such a level of prescription enshrined in a Constitution a hindrance to future flexibility to respond to changing circumstances. Thus the changes that you make today may be deemed undesirable at some future date thereby requiring that Parliament constantly revise the Constitution. As an example, the composition of the Judicial Service Commission was only changed recently and now it is again being altered. As well, a second Judicial Service Commission has now been created.
 This is a slippery slope and we are sure the Government does not want the Constitution to become the plaything of politicians.
 It is prudent and timely to examine the very document that you are seeking to amend. The Constitution of the Independent State of Samoa recites in the Preamble:
“WHEREAS the Leaders of Samoa have declared that Samoa should be an Independent State based on Christian principles and Samoan customs and traditions.
AND WHEREAS the Constitutional Convention, representing the people of Samoa, has resolved to frame a Constitution for the Independent State of Samoa.
WHEREIN the State should exercise its powers and authority through the chosen representatives of the people
WHEREIN should be secured to all people their fundamental rights
WHEREIN the impartial administrations of justice should be fully maintained
AND WHEREIN the integrity of Samoa, its independence, and all its rights should be safeguarded
NOW THEREFORE, we the people of Samoa in our Constitutional Convention, this 28th day of October 1960, do hereby adopt, enact and give to ourselves this Constitution.”
 Thereafter follow the names of all of our distinguished founding fathers beginning with their Highness Tupua Tamasese Meaole & Malietoa Tanumafili II the first Head of States of Samoa and the Honourable Prime Minsiter Fiame Mataafa Faumuina Mulinu’u II, our first Prime Minister, Afioga Tuimaleali’ifano Sualauvi II, then the only Member of the Council of Deputies, and last but not least the one hundred and sixty five (165) members and associate members of the Legislative Assembly representing all villages and districts of Samoa.
 The Constitution was accordingly the result of extensive consultations and deliberations with the whole of Samoa as a prelude to Independence. It was the end result of a process that occurred over a period of many years with the villages, districts, matai and Alii and Faipule of the country, including a national plebiscite. It was also the product of a Constitutional Convention held between August and October 1960 where the leaders of the country, customary and otherwise, extensively discussed, debated and concluded each of the individual provisions of the Constitution, methodically and with advice from constitutional law experts. It is an illuminating experience to read the Constitutional Convention Debates.
 This process is not being replicated in relation to these sweeping changes and it is doubtful it can be today without incurring significant costs. The wisdom of the matai, the Alii & Faipule and all the leaders of the day, is evident in the Constitution and its provisions. We should be extremely slow to tinker with and modify such a collective “tofā ma le fa’aūtaga” that has withstood the test of time. As an absolute minimum, a process of organized Consultation involving all relevant stakeholders and partners should be applied.
Role of retired judges
 We are also concerned that the draft provisions place an entirely new, express and significant emphasis on the role of “retired Supreme Court Judges” in Samoa’s Court system. We recommend the removal of such an express Constitutional role for retired Supreme Court Judges. The Constitution and its provisions dealing with the Judiciary and its members should be facilitative of broad options being left open for the composition of the Courts. This, as has been the case in the past, should be left to the Chief Justice and the Judicial Service Commission to make appointments based on the needs of the Judiciary at any given time and the availability of suitable persons to fill those posts. This allows for flexibility and the Chief Justice and the Judicial Service Commission are the persons best placed to assess the current and future needs of the Judiciary.
 The proposed amendments are premised on a fundamental and incorrect assumption that there would be “retired Supreme Court judges” available and/or willing to preside. The problem is retired Supreme Court judges may undertake other roles inconsistent with judicial office, they may have conflicts in terms of the matters before the Court, they may not wish to preside or sit at all, or be otherwise unfit or unavailable.
 Presently, with the exception of former Justice Vaepule Vaai who retired for medical reasons, there are in effect only three retired Supreme Court Justices available to fill these positions. These are Patu Falefatu Sapolu, Lesatele Rapi Vaai and Tuiloma Neroni Slade. Of these three, Sapolu has declared his candidature for the next general election. On his retirement, he also had a number of long outstanding judgments that are not the subject of appeals to the Court of Appeal. Vaai currently presides in the High Court of Nauru and travels there regularly for these purposes and Tuiloma Neroni Slade has not presided in a Supreme Court proceeding in over 30 years.
 Given these issues and the limited number of currently available retired Supreme Court judges, there is significant risk of the Judiciary being unable to field a retired judge to sit in such matters. If no such judge is available, this will impact on the ability of the Judiciary to undertake its newly designated now Constitutional functions.
 Furthermore, as it stands, the Court of Appeal provisions themselves do not withstand the test of time. Both Patu and Lesatele will reach the age of 75 years eventually. By that stage, Justice Vui will be the only retired Supreme Court Judge to fulfil the role envisaged by the draft Bill. Vui may reach the age of 75 in 10 years time (2030) but hey, we could be wrong! Given the current cohort of Supreme Court Judges, the next Supreme Court Judge scheduled to retire at the age of 68 will occur in 17 years time. That leaves approximately seven (7) year gap where there will be no retired Supreme Court Judge to fill any position on the Court of Appeal. What then? Another Constitutional amendment? Insufficient consideration has been given to such vital practical consideration.
 The Judiciary supports in principle the localization of the Court of Appeal of Samoa. It is inevitable. It is now the practice for a Samoa Supreme Court Justice to sit on all Court of Appeal cases. This was previously not the case. The new practice is set to continue including in the next session of the Court of Appeal now rescheduled to later in the year.
 It is also planned that retired Supreme Court judges subject to availability will join the Samoa Court of Appeal Bench of judges. These are administrative arrangements that can be put in place without Constitutional change and they enjoy the strong support of the Judiciary and our overseas judicial partners.
The Land and Titles Court of Appeal:
 The proposed Land and Titles Court structure establishes a new, parallel and entirely separate Court structure. It introduces a new court and will impose a significant work load on the Land and Titles Court Division of the Ministry of Justice and Courts Administration. This will require significant resourcing for the new Court, its staff, offices and court rooms. None of this has been budgeted for or will become available while further facilities are built, new staff are recruited and trained and other measures implementing the new legislation actioned. Establishing a new court structure requires far more than merely enacting enabling legislation.
 In the past year or so, much effort has been directed towards upskilling and training of the Land and Titles Court judges, focusing on delivering timely decisions, training of new judges and especially, clearing the extensive backlog of Land and Titles Court cases from years past. This has been slow by slow achieved despite no resources being budgeted and allocated for these purposes. In this we have managed to obtain the support of our Judicial Partners in New Zealand. The proposed structure undermines these development pursuits and have not been factored into the Land and Titles Court programme for the next 5 years.
 I have discussed earlier the importance of a unified Court system with one Judiciary recognizing the two separate streams of a single system. The establishment of a separate Judicial Service Commission is unnecessary duplication and will serve only to split the Judiciary. The President of the Land and Titles Court is presently a member of the Judicial Service Commission as is the Chief Justice and their representation on that single Commission has proven over the last twelve months to be very effective and satisfactorily addresses the needs of both Court structures. The President has not raised any concerns or problems over this arrangement. What is not broken does not require fixing.
Judicial Guidance – Customs:
 Draft article 72 of the Constitutional Amendment Bill is ambiguous in its use of the word ‘custom’ as to what it applies and as to how it is to be applied by the Courts. Furthermore, the attempt to import ‘customs’ into every aspect of Court decision making and into defining the criminal and civil rights of individuals, including in affairs of commerce and industry, is to unnecessarily superimpose our rules of custom and tradition onto an already complex system of law. And it has no place there. All the judges are matais, most of them senior matais with considerable knowledge and experience in the fa’a-Samoa. They know when our tu ma aganu’u should be applied and when it is not appropriate.
 The provision represents a serious and significant risk for increased litigation and legal argument with entirely unknown consequences. We have no doubt that it will give rise to challenges to proceedings before the criminal and civil Courts. It will also be relied on to bring Constitutional cases based on arguments about what is or is not custom and what is or is not inconsistent with custom. By doing this you are requiring the civil and criminal courts to define and interpret “custom”. It will defeat one of your primary objectives which is to keep custom and tradition within the exclusive purview of the Land and Titles Court system.
 In addition, perhaps the Executive needs reminding that all the Judiciary are matais, most of them senior matais with considerable knowledge and experience in the fa’a-Samoa. Unlike some, we were not only born but have lived and grown up in beautiful Samoa, as members of our respective villages and Village Councils, surrounded by our many family branches and connections, daily practicing and being nurtured by our culture custom and tradition. We are not ignorant uneducated children. We know when our tu ma aganu’u ma agaifanua should be applied and when it has no bearing on a matter before us.
 We strongly recommend against this provision being given Constitutional recognition in this way. It is recommended instead that you identify what customary factors are intended to be incorporated within the work of the Courts and that those be specifically considered for incorporation into legislation slowly, methodically and with proper regard to outcome. An example of this is the recognition of custom, ifoga and village penalties in the sentencing of offenders which became the subject of specific legislation in the Village Fono Act 1990 and which has been transitioned very smoothly into the court system over time.
 There are many more recommendations that the Judiciary would like to make as regards these legislations including inconsistencies in relation to certain provisions. However, this covers the key concerns we wish to raise at this point. We strongly recommend deferral of consideration of the draft amendments to the Constitution until extensive further and proper consultation with all relevant parties is undertaken.
Ma le fa’aaloalo e tatau ai,
Acting Chief Justice Vui Clarence Nelson
Senior Justice Niava Mata Tuatagaloa
Justice Tafaoimalo Leilani Tuala-Warren
Justice Leiataualesa Daryl Clarke
Justice Fepuleai Ameperosa Roma
Senior Judge Talasa Atoa-Saaga
Judge Alalatoa Rosella Papalii
Judge Leota Ray Schuster
Judge Loau Donald Kerslake
cc: Honourable Prime Minister
Honourable Minister of Justice and Courts Administration
Honouarable Gatoloai Afamasaga-Gidlow, Chairperson, Special Parliamentary Select Committee
Honourable President, Land and Titles Court
CEO, Ministry of Justice and Courts Administration
Acting Attorney General
President, Samoa Law Society