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Professor calls for independent review of L.T.C. bills

The Director of the Centre for Samoan Studies is calling for an independent research committee to review the proposals to radically alter the Land and Titles Court (L.T.C.) and the Constitution before they are passed through Parliament.

Associate Professor Togialelei Dr. Safua Akeli Amaama, a senior Professor at the National University of Samoa (N.U.S.) said if the L.T.C. is to be changed, a wide ranging, long review that includes diaspora Samoans needs to be undertaken.

This month, three Bills which would result in the severing of the L.T.C. from the Judiciary and remove Supreme Court power from its rulings were tabled in Parliament and have already reached the third reading stage, which is the final chance for debate.

The Land and Titles Bill 2020, the Judicature Bill 2020 and the Constitution Amendment Bill 2020 were all tabled in the midst of the national state of emergency resulting from the COVID-19 pandemic and have come under immense criticism.

Current and former judges on the Samoan bench, the former Attorney General and the Samoan Law Society have written lengthy and detailed letters highlighting their concerns and demand for a delay on the Bills proceedings. 

But Government leaders, in particular Prime Minister Tuilaepa Dr. Sailele Malielegaoi and Speaker of Parliament Leaupepe Toleafoa Faafisi, have hit back at the critique, arguing that the chance for discussion was in 2016 when a Special Inquiry Committee was tasked with investigation concern with the L.T.C.

“There was a Commission before, we called the Judiciary and they did not want to come before the committee to discuss this,” Leaupepe told the Samoa Observer last week.

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.

Togialelei said the 2016 review was too long ago to be considered relevant and did not include a comparative review of the L.T.C. with other contexts. 

“I am generally concerned about the proposal to separate the Land and Titles Court from the main Judiciary body,” she said.

“It is not clear which part of the ‘Samoan context’ the proposed bills seek to address.”

Furthermore, of the 30 recommendations the final report included, none have been addressed in the proposed changes in the Bills.

“There has been a lapse of four years since the report, and another circulation of public consultation, both here and abroad, would help the community engage with the proposals more deeply,” she said.

“With the current State of Emergency, movement has been restricted and access to information may not be as readily available.”

Speaking specifically on the L.T.C. Togialelei said amongst the research and reviews of the institution, it has been described as an “agent of change.”

The court was established in 1903 during the German colonial period, largely to oversee land and title disputes. After the New Zealand administration took over, the courts followed New Zealand regulations until the 1981 Land and Titles Court legislation was passed, the Director explained.

“It has greatly influenced Samoan understandings of culture, customary practices and language,” she said.  

“Since this institution is over 100 years old, a review of the process requires in-depth independent research and wide public consultations including Samoans in the diaspora.”

The Bills would include having to amending the Constitution, something Togialelei notes should be done according to a very strict process.

One component of that process includes public consultations. With a proposed change in the Bills including limiting an individual’s right to appeal decisions made in court, public consultation is important.

“The Constitution is a blend of Western liberal democratic principles and Samoan custom,” she said.

“However, the broad ‘custom and usage’ incorporated in the constitution provides broad interpretation, which shows foresight on the part of the constitution committee. 

“At the time, one of the key concerns for the founding fathers was to ensure stability after colonial rule. The discussions included universal suffrage, voting rights and land rights. However, the final draft was the broadest representation of a document which incorporated ideas and beliefs at the time.”

A major change among the proposals is the limitation of paramount chiefly titles to just five per family, from having no limit at all. 

Togialelei said this will come up against different families and their own criteria for title bestowal.

“There is the issue of who defines Fa’asamoa principles and practices. Culture is an evolving concept, and the idea of what constitutes Fa’asamoa is open to interpretation.

“Several scholars have reviewed the Lands and Titles Court such as Professor Meleisea Malama Meleisea, Professor Fui Asofou So’o, Aiono Dr Fanaafi Aiono Le Tagaloa and Tele’iai Dr Lalotoa Mulitalo and their views will help to inform these discussions,” Togialelei said.

In August 2018, N.U.S. introduced a Certificate in Customary Adjudication, largely for judges to be better prepared to serve on the L.T.C., at the request of the Ministry of Justice and Courts Administration.

It includes courses on the existing laws and policies of the L.T.C., as well as time management and the pressures of the court, the language of the courtroom and the court’s unique history and previous issues it has had.

In its first semester 25 students had already enrolled to take part.

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