Senior lawyer issues caution against L.T.C. bills impact
The former Director of the National Prosecution Office (N.P.O.), Mauga Precious Chang, has cautioned the Government against the Constitution Amendment Bill 2020, warning it will weaken the Judicial system and destroy the concept of the separation of powers in Samoa.
The senior lawyer and member of the Samoa Law Society added that the proposed changes to create a “two headed” justice system will have a lasting impact on all Samoans and future generations.
The changes are highlighted in the Constitution Amendment Bill 2020, Lands and Titles Court Bill 2020 and Judicature Bill 2020 which have been tabled before Parliament.
The bills have been strongly criticised by the Judiciary and the Samoa Law Society.
One of the proposed changes in the Constitution amendment states that the Head of State, acting on the advice of the Prime Minister may refer to the Land and Titles Court of Appeal and Review for its opinion on any question as to the interpretation on the effect of any provision that arise from the Land and Titles Court of Appeal and Review Court for its opinion on any question so referred to it.
During an interview with the Samoa Observer, Mauga said the proposed clause giving the Prime Minister the authority to interpret the Constitution on issues for L.T.C. is a “slap on the face” when it comes to the separation of powers.
She pointed out that in reality, the only independent branch of Government at the moment is the Judiciary and the amendments will remove that. The three branches of Government are: the Executive, Parliament and Judiciary.
“The amendment [in Constitution] basically says that if there is an issue with interpretation of the Constitution in the part of Land and Titles Court, people can ask the Prime Minister,” she said.
“That just clearly cuts out the separation of powers with the Prime Minister deciding on whether it is a Constitution question or not.
“It is just a slap on the face on the separation of powers and it destroys that concept in practice in Samoa and will weaken the judiciary…”
The Judiciary has always been looked at as the "gatekeepers of the law.”
Mauga said given the proposed changes, that gate will be destroyed and “that is not something small that this country is going to face”.
“We all know the reality in Parliament," she said, "it is not independent anymore, we don’t have an opposition party."
“These changes that are coming in what appears to be small but big changes when added together.
“Not only will this strengthen the Government to remain in power for many years it also increases the number of Cabinet Ministers.
“In reality, our Parliament is no longer independent, so really the last independent pillar is the Judiciary and they are turning to it.”
There are 14 new proposed articles in the Constitution Amendment Bill 2020 and eight other amendments proposed for the Supreme Law.
Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi has repeatedly said the proposed changes are to reinforce Samoan customs and traditions in the Courts.
He added that the separation of the Courts to have an independent L.T.C. Court is the answer to the many grievances from members of the public.
He said aggrieved members of the public frustrated with the processes at L.T.C. had sought the assistance of the Prime Minister and Members of Parliament with the majority of grievances over lengthy delays in hearing of cases.
But Mauga says the amendments do not address the issues raised by the public and they go against what the Prime Minister is advocating about strengthening customs and traditions. She said the changes, instead, removes people’s fundamental rights.
“The protection of those rights to determine their matters within a reasonable time and the right to hear your case without bias from the Judge will be removed under the amendments,” said Mauga.
“When you go before the Court you expect the Judge to be independent and to have the right to an Independent Tribunal for example.
“Those are all checks for the Judges that we currently have but with the [proposed] changes they are free to do what they want and your rights are effectively voided.”
She explained that currently, members of the public are able to seek remedies for breach of their fundamental rights in the Supreme Court providing a checks and balance for the L.T.C. Court.