Speaker rejects Bill rushed
The Speaker of Parliament, Leaupepe Toleafoa Faafisi, has flatly denied the Government has tried to ram through controversial changes to the nation’s Constitution and legal system under the cover of the coronavirus.
Instead Leaupepe says that “time and tide waits for no man” when explaining the timing of the Bills, which would create a fourth branch of Government in Samoa, which he says was not strategically planned.
The Constitution Amendment Bill 2020 and the Judicature Bill 2020 – tabled in March –would create an independent Land and Titles Court from the Ministry of Justice and Courts Administration.
The overhaul has not been received well by the Judiciary and some members of the public who have condemned the process followed for their tabling before Parliament as “rushed” and not accompanied by the typically mandatory public consultation requirements to accompany such fundamental changes.
“Those who think about the benefit of their country do not wait for a certain time,” said Leaupepe.
“All times are the same. Time is time.”
The Bill would create a parallel and independent judicial structure, including an L.T.C. High Court and Court of Final Appeal and Review, removing the option to appeal L.T.C. decisions to the Supreme Court.
The absence of judicial review of L.T.C. decisions by an “apex” court, or Samoa’s Supreme Court, was singled out for criticism and in a letter signed by members of the country’s judiciary two Sundays ago.
The Bill seeks to amend the Constitution and to replace the current Land and Titles Act 1981. It includes a maximum limit on the number of Paramount Chiefs allowed in a family.
Leaupepe said the Government did not try to pick a perfect time for such matters as no such thing exists.
Over the weekend the President of the Samoa Law Society, Leiataualesa Komisi Koria, intimated that the Bill’s coinciding with the global coronavirus pandemic had insulated it from proper scrutiny,
“If you look at how these bills have been taken to parliament, we were in the midst of a crisis, basically a global pandemic, the whole populace was concerned with how we were going to deal with it,” he said.
“There was no urgency to put these bills through at a time when we should have been focused perhaps exclusively on our response [to the coronavirus pandemic].”
But Leaupepe rejected sentiments expressed by opponents of the Bill who say it has not been adequately matched with appropriate consultation with stakeholders and members of the public.
“There was a Commission before, we called the Judiciary and they did not want to come before the committee to discuss this,” he said.
“What time was that? That was before the pandemic.
“Who knew this time around there would be a pandemic? What time is a good time and which time is not good?”
Leaupepe was referring to 2017, when the Judges of the L.T.C. were asked by a Commission of Inquiry tasked to investigate their work to give submissions.
The 2017 Commission of Inquiry tasked to investigate the work of L.T.C. Judges ordered the Judges to give evidence at the time.
But the Judges did not appear before the Commission. And the former Chief Justice, His Honour Patu Tiava’asue Falefatu Sapolu, addressed issues raised by the committee in a letter.
The Inquiry was chaired by the now Minister of Agriculture and Fisheries, Lopao’o Natanielu Mua, and made several recommendations for the Court’s restructuring.
The Committee urged Parliament to appoint two Vice Presidents of the L.T.C. to assist the Court’s President.
Its recommendations, including a limited time frame for handing down decisions, formed the basis of amendments in a proposed law: the Land and Titles Court Bill 2019.
That Bill was withdrawn by the Minister of Justice and Courts Administration, Fa’aolesa Katopau Ainu’u, last month in Parliament.
Last week, the Judiciary expressed “grave concerns” about the risks of the proposed changes contained within the Constitution Amendment Bill 2020 and the Judicature Bill 2020.
As a "collective view of the Samoa Judiciary" the concerns were expressed in a letter to the Executive Director of the Samoa Law Reform Commission, Teleiai Dr. Lalotoa Mulitalo, dated 6th April 2020.
The Judges say the proposal has been “dangerously” ill-considered given its potentially far-reaching effects on the nation’s Courts.
“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.”
In response, Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi said Judges of the Court will be summoned to appear before a Parliamentary Select Committee to express their views.
Leaupepe said he hopes the Judges will this time appear before the Parliamentary Committee to offer their advice and discuss concerns which will be compiled in a report and sent to Parliament.
“And then this entire ruckus may be over and done with. Meet, that is our culture, we meet,” he said.
“It is also being done in courts, they meet, discuss and resolve.”
Under the legislation, the Legislative Assembly can summon the attendance of witnesses before a Select Committee or issue a warrant if one does not comply with such a summons.
A copy of the letter criticising the proposed amendment to the nation’s constitution obtained by the Sunday Samoan was 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.