Lawyers' concerns nothing to scoff at

By The Editorial Board 24 April 2020, 11:50PM

When politicians and lawyers fight, democracy wears the injuries.

The Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi, in his sweeping response to concerns raised by lawyers about proposed changes to the Land and Titles Court (L.T.C.) and the Constitution treads on dangerous ground for Samoan democracy.

As the front page of the Friday edition of this newspaper made clear, Tuilaepa could not have been more dismissive of this nation’s legal minds and their peak representative body (“P.M. scoffs at Samoa Law Society objection”).

The Law Society, though yet to formally tender its submission on the substance of the Government’s bills relating to the L.T.C. has made critical comments about the process followed by the introduction of these bills.

“Every Samoan has the right to ask the question: ‘Why the rush?’,” Leiataualesa Komisi Koria told the Samoa Observer last week. 

The Prime Minister saw fit to respond to these questions about democratic procedure by suggesting that the leadership of the body representing the nation’s lawyers may be physically or mentally impaired to make decisions. 

“What is happening now? I don’t know about the Law Society whether they are alright or what. Maybe they need medical assistance?,” Tuilaepa told his Radio 2AP programme on Thursday.

The Prime Minister’s response raises two very important issues.

The first is the casual way in which he has dismissed and insulted an essential part of democracy in the legal system. 

The second is the claim that the Law Society has changed its position on the issue of L.T.C. reform and its objections are merely the misguided opinions of “new and young lawyers”.

Neither of them is encouraging for Samoan democracy. 

The Prime Minister’s tendency to simply demean and dismiss those who question or disagree with him such as those he calls “cheeky”, “idiots” or “fools” has become so commonplace that it has lost all power to shock.

The way a person with the Prime Minister's office resorts so readily to such language demeans public life in Samoa. 

It makes daring to suggest an opinion alternative to the Prime Minister’s and his administration’s licence to be subjected to personal insult. In fact successful democratic Governments should be encouraging of debate and the submission of views on matters such as these and seek to represent them. 

We find for lawyers’ opinions to have been dismissed so casually by the Prime Minister and for them to have been spoken to in such a tone of voice troubling. 

Turning now to the substance of the Prime Minister’s criticism, suggesting the Law Society has been inconsistent in its approach to this Bill, it is painfully clear that his criticism is at, characterised as generously as possible, shallow. 

He suggested that the Law Society had been entirely in favour of a 2016 Commission of Inquiry into the Land and Titles Court (L.T.C.) and its many problems. 

For them to change their mind now, Tuilaepa said, was evident of a lack of unity among its members and the opinion of “new and young lawyers”. 

“The President [at the time] has a Samoan heart,” he said. 

“They gave testimonies and made submissions before the Commission and they were in support of the changes at the time.”

Let us examine these remarks more closely. 

The 2016 Inquiry to which the Prime Minister referred was purely about the many administrative issues that had befallen the L.T.C. such as waiting times for decisions; real and perceived conflicts of interests; and adequate resourcing of the courts. 

These were issues of administration. This was not a consultation about changing this nation’s constitution.

In fact, to that very inquiry, the Law Society submitted that the Supreme Court’s power to conduct judicial review of cases heard by the L.T.C. would be an essential component of guaranteeing it functioned well into the future.

The inquiry obviously found this point persuasive. Retaining this oversight of the L.T.C. by the Supreme Court was among the 30 recommendations produced by the inquiry. 

The new L.T.C. changes, of course, would remove Supreme Court oversight altogether and create an entirely insulated and independent L.T.C.

The 2016 inquiry and the legislation before Parliament currently are of an entirely different species. 

To suggest that support for the changes recommended in 2016 is equal to supporting the fundamentally different is, at best, disingenuous. 

That speaks to a much bigger problem: the regard with which the courts are held in Samoa. 

By The Editorial Board 24 April 2020, 11:50PM

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