Constitutional change demands answers

Ask the average Samoan about the proposed changes to the Land and Titles Court (L.T.C.) and you’re likely to receive a shrug in reply.

Debate on this issue has been waged between the country’s political and judicial elite and far above the people the changes will affect most. 

Last week, we saw a letter from Samoa’s judiciary outlining the risks and dangers of hastily changing the nation’s constitution. 

In yesterday’s edition of this newspaper we saw the Prime Minister’s response (“PM responds to Judge’s letter"). 

“The [Parliament] Committee will summon them to explain this [the letter],” the Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi, said. 

The language of this statement is as telling as it is concerning. For the Prime Minister to “summon” the judiciary like this speaks volumes about the regard he holds for a branch of Government that is his equal.  

For the judiciary to be treated in such a way for proposing a check on the power of Parliament runs against the most basic democratic thinking. 

Not only do the Prime Minister’s actions raise questions about his views on the checks and balances meant to be the foundation of our political system, it’s unclear what this exercise is intended to produce.

The nation’s Judges have outlined their objections plainly and thoroughly. What, then, is appearing before a Parliamentary committee intended to achieve?

Aside from its many cogent arguments against creating a new branch of Government, the Prime Minister ought to have paid attention to the closing paragraph of the Judges' letter: 

“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,” it reads.

The importance of such consultation cannot be overstated.

While Members of Parliament are elected to represent the interests of their constituents, when nations seek to change the fabric of their political systems they do so by reaching out beyond Parliament and engaging citizens, be it through a referendum or otherwise. 

The absence of consultation is particularly worrying in a Parliament with a dearth of opposition M.P.s; it is not a chamber suited to debating or scrutinising the implications of changes of this magnitude. 

When we refer to the Constitution of Samoa we read in its opening paragraph to whom this nation and its institutions ultimately belong and must be accountable:

“Whereas sovereignty over the Universe belongs to the Omnipresent God alone, and the authority to be exercised by the people of Samoa within the limits prescribed by God’s commandments is a sacred heritage.”

At such an advanced stage of its consideration before the Parliament when have people been involved in public debate or consultation about the Constitution Amendment Bill 2020 and The Judicature Bill 2020? They have not. 

The ostensible justification for an autonomous L.T.C. is that it would better uphold Samoan culture and tradition.

We have to ask why this is considered the responsibility of any arm of Government. 

Our culture lives in our villages; in our homes; in our families; and in our hearts. Samoans are uniquely steeped in culture and we begin to become so from the time we start to walk and talk.  

That these reforms would seek to dictate what families can and cannot do with their titles, inheritance and treasures exposes just one of many ironies underlying the Government’s justification for the reforms. 

But not only are there contradictions in the Bill’s cultural justifications it is also proposing a major constitutional overhaul as a fix for mostly simple administrative problems. 

The major issues facing the L.T.C. in recent years have been backlogs and delays. 

Responsibility for these failings is far more likely to be found with the Government that has presided over the administration of our courts, rather than the nature of Samoa’s political system itself. 

Better reasons are required for changing a judicial system that has served this nation since its independence. These can only be elicited through public engagement and debate. 

In any other democracy a proposed change of this significance would have been preceded by public consultation long before it was even tabled before the Parliament. 

That such proposals have come this far without public engagement and consultation is unacceptable.

When Tuilaepa said that people should be called in to account this week he was, in fact, half right.

But it is not the judiciary from whom we should be seeking answers.

It is the Prime Minister and his administration. 

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