Government cautioned over Land and Titles Court plan
Two senior lawyers have expressed concerns about the Constitutional Amendment Bill 2020, which proposes to setup an independent Land and Titles Court.
One of the senior lawyers has suggested that instead of separating the L.T.C. from the Courts, he said marrying the Samoan customs and traditions into the Constitution will unite the system and not separate it.
Leulua’iali’i Tasi Malifa said he disagrees with the proposed changes to separate the Courts. While he agrees that the Constitution is silent on the Samoan culture referring to the Constitution Convention debate 1960, he said Samoa's forefathers did not integrate the two.
He added discussion on the Supreme Law had focused primarily on democracy while the forefathers had left customs on the side as they had understood it well.
But as time changes, Leulua’iali’i argued that love can only be born from marrying the Constitution and Samoan customs, instead of divorcing them.
“You marry the Constitution and our Samoan customs and a baby is born out of that love,” said Leuluaiali'i.
“We want love not a separation. What we don’t want to see is one Babylon [referring to Courts] here and another on the other side doing its own thing. Separating the Courts will only separate the [judiciary] system in two, we want unison and love but the amendment bills will only do the opposite...”
Leulua’iali’I urged Parliament to pursue a Constitution Convention similar to the one that was done for the establishment of the Constitution for a constructive feedback from the public on the Constitution bill.
The three bills in question are the Constitution Amendment Bill 2020, the Land and Titles Bill 2020 and the Judicature Bill 2020.
Tabled in parliament last month by Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, the proposed changes will create a parallel and independent judicial structure including an L.T.C. High Court and Court of Final Appeal and Review.
The amendment will remove the option of appealing any L.T.C. decisions to the Supreme Court amongst other changes.
Another senior lawyer, Unasa Iuni Sapolu, raised concerns over the proposed changes, questioning the timing of the bills being tabled in Parliament.
Unasa also queried which branch of government will the independent L.T.C. Court fall under, saying that Samoa follows the West-Minister system.
“It’s unclear where this Court will be under; executive, Parliament or judiciary but according to how I read it it’s not going to be part of the judiciary,” she said.
Unasa said it appears that the L.T.C. Court will be under the Executive arm which she claims will make it a non-Court.
“It’s terrible how it was brought in," she said. "It’s almost to say it's fraudulent how it was brought in with people’s mind occupied with coronavirus and the lockdown. The timing is wrong and these are serious breach of fundamental rights of the people…”
Furthermore, she said if people lose a matter in the L.T.C. Court and are unable to appeal it in the Supreme Court, the “Constitutional rights of people are eroded.”
Unasa added that in a case that breaches the rights of a person in the L.T.C. Court, the proposed change will limit their access to another avenue to challenge such breach of fundamental rights.
“Where will people go to for such grievances and what is the remedy,” she asked.
“If this Court goes under the executive then where do people go to if a disputed customary land claimed to be registered under one of the government entities like.
“There was the civil Court but under these changes you that is no longer the case it stays here with L.T.C.”
Unasa said a referendum needs to be done by Government before it pushes further with the proposed changes.
She also criticised the Samoa Law Reform Commissioner for not exercising caution in submitting the proposed changes.
Attempts to get a comment from S.L.R.C. Executive Director, Teleiai Dr. Lalotoa Mulitalo, were unsuccessful.
Her office was contacted to schedule an appointment with her last week but she was in a meeting and was unavailable.
A follow-up email with questions were also sent to Teleiai on email.
The Samoa Observer also reached out to former Chief Justice, Patu Tiava’asue Falefatu Sapolu for a comment on the issue.
He declined to be interviewed.
Other senior lawyers such as former Attorney Generals’ Taulapapa Brenda Heather Latu and Aumua Ming Leung Wai, former District Court Judge Tauiliili Harry Schuster, Ruby Drake, Kirsten Kruse, Fepuleai Patrick Fepuleai and Fuimaono Sarona Ponifasio were contacted for a comment.
Several lawyers whose views were sough said the Samoa Law Society is putting together a submission for the Parliamentary Select Committee where they preferred their concerns to be addressed in and compiled together.
Others could not comment pointing out they had not read through the amendment bills to provide a constructive opinion.
Meanwhile, Prime Minister Tuilaepa insists the proposed changes will address the many issues raised by members of the public at his office and to their Members of Parliament concerning the L.T.C. Courts.
He told the national 2AP radio station that the proposed independent L.T.C Court will be part of the judiciary when asked if the proposed Court will make up a fourth estate separate from judiciary.
Tuilaepa explained the Criminal Court will deal with criminal matters and the L.T.C. Court looks into customary lands and title cases the Courts it remains as one entity.
“In the L.T.C. Court once a title belonging to your family is lost the impact of it will be lasting for your relatives living overseas and future generation who will no longer have a say to any land and titles,” he said.
Speaking about the letter from the Judges raising grave concern to the proposed changes, Tuilaepa said their opposing views came “too late”.
The Prime Minister is referring to a letter signed by the Judges of the Courts not including the L.T.C. Judges to the S.L.R.C. Executive Director Teleiai dated 16 April 2020.
The letter was signed by Acting Chief Justice, Vui Clarence Nelson, Justice Niava Mata Tuatagaloa, Justice Fepuleai Ameperosa Roma, Justice Tafaoimalo Leilani Tuala – Warren, Justice Leiataualesa Daryl Clarke, Judge Alalatoa Rosella Papalii, Judge Loau Donald Kerslake, Leota Raymond Schuster and Judge Talasa Atoa Saaga.
Tuilaepa pointed out the Judges were given an earlier opportunity two years ago in 2017 to appear before a Commission of Inquiry to make submissions on the issue but had opted not to.
He maintained that the proposed changes were good intentions from Government to address grievances from the public who have lost rights to sacred customary lands and titles because of Court decisions.
In addition, Tuilaepa said there continues to be questions as to why the rights of an individual is more important than the rights and decisions passed down by village council.
He said often the answer is because the Constitution protects the individuals rights and does not take into account the Samoan culture.
“The reason is because of the palagi’s that inserted this [in the Constitution] and our forefathers didn’t understand it…” he said.
Tuilaepa also assured that the Judges will be summoned to share their views before the Committee.
The proposed bills have been referred to the Parliamentary Select Committee where members of the public and stakeholders have been asked to make submissions.
According to Tuilaepa, this is the last opportunity for submissions to be made before the bills go on its third reading in parliament “in the near future” and eventually passed in parliament.
Once the Constitution Amendment Bill 2020 goes to parliament, it is required by law that two third of Members of Parliament must vote in support of it before it is passed.
Tautua Samoa Party President, Luagalau Dr. Wood Salele said considering the Human Rights Protection Party (H.R.P.P.) dominates the seats he has no doubt the changes will be passed regardless of any opposing views.
Luagalau said he feels for the Judges and the lawyers who have raised valid reasons of why the proposed changes should be reconsidered.
“But unless the Prime Minister agrees to the changes then I don’t see bill being withdrawn or any major changes to it,” he pointed out.
“The question is at what cost.
“Who will pay for all these changes, it’s the people that will fork out the millions to pay for these separations.
“How many reforms have we had where entities were separated and merged again our people silently bared the costs for the decisions the Government are making.”
The President is urging the Prime Minister to review the structure of L.T.C. to address the concerns from people instead of an overhaul on the justice system.
In his opinion, Luagalau made the comparison that God’s judgement of everyone is the same and Samoa should follow the same, having one justice system.
“Our God is a God of justice,” he said. “We are all the same before his eyes and he judges all of us accordingly. Similarly to every country there is one justice system and Samoa should also keep to one justice system.”