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Former A.G. Lemalu defends L.T.C Bills

Former Attorney General, Lemalu Hermann Retzlaff, has defended three bills before Parliament which propose to restructure the Judiciary and establish an independent Lands and Titles Court (L.T.C.).

In response to questions from the Samoa Observer, Lemalu who is now back in Auckland said the Constitutional Amendment Bill 2020, Land and Titles Bill 2020 and the Judicature Bill 2020, are intended to improve the work of the L.T.C.

And contrary to concerns expressed by Judges of the Court and the Samoa Law Society, Lemalu, who only recently resigned from the Attorney General’s Office, said the correct channel for these concerns is the Parliamentary Select Committee hearing.

“The Constitutional role of the Parliamentary Select Committees that the Bills have now been formally referred to by the Legislature, are at risk of being unnecessarily understated,” Lemalu said.

“Their democratic purpose is to hear from the public and they then have the power to make suggested amendments to the bill for Parliament to consider. That is the current open avenue for public concerns and submissions.”

As for concerns that the bills violate Constitution, Lemalu disagrees.

 “The Constitutional Reform does not therefore propose to revoke any of the individual freedoms that are sacredly protected in our Constitution,” he said.
  “On the contrary it seeks to enhance the right to a fair (substantive) trial via a new Appeal avenue within the L.T.C. route; and it simply cannot by creating a specialist Court of Appeal, somehow then remove the separation of powers of the three branches of Government from the Constitution.”

Lemalu pointed out that the proposed measures address the issue of access to legal justice for those who lose an appeal at the Lands and Titles Court (L.T.C).

“At present in our Judicial system, once the President of the L.T.C. decides an appeal - any family that loses their cases, has no further Court to advance their grievance to,” Lemalu explained.

“Those are the affected persons that have been seeking relief for decades now, even reverting in desperation to visiting the offices of the Hon PM, Hon Ministers and Government officials asking - who they can appeal to? The answer is - there is no further Court to appeal L.T.C. decisions to in our current system.“

Lemalu went on to argue that even Judicial Review (JR) against an L.T.C. decision to the Supreme Court, can only legally deal with procedural issues as to how the hearings were conducted.

“The Supreme Court cannot otherwise deal with substantive questions and legal arguments about Fa’asamoa at all, as that has been left in the hands of the L.T.C.

“Therefore, the prospect of a new L.T.C. Court of Appeal, offers a potential avenue for affected families, to attend substantively to "tu ma aganuu" i.e. cultural arguments, that our current Westminster modelled Courts are not tasked Constitutionally to deal with.”

The former Attorney General also fears about the concept of separation of powers and the dangers of creating a two-headed Judiciary.

“I emphasise here that - that has been the separation of duties between the Westminster modelled Courts and Lands and Titles Courts in Samoa since its Constitutional Independence,” he said. “The proposed amendments would not therefore in terms of practise, initiate a sudden separation of the two in terms of their jurisdictional responsibilities – as that is already in place.”

He also dismissed claims that the bills will allow the Government to control decisions that should be made by families.

“It cannot unilaterally encroach, and tell families what to do with their Lands and Titles, as it is a Civil Court – it can only therefore, deal with cases that the public decides themselves to file for consideration and relief as it were.”

As for criticisms about the lack of consultations, including with the legal fraternity, before the bills were tabled, Lemalu said the process had been open and transparent from the start.

“In terms of Consultation, I note that these reforms originally stem from the Parliamentary Commission of Inquiry, that sat for some 10 months in 2017 - 2018, reviewing the performance of the L.T.C,” he said.

“The public at large, private citizens and all public servants were invited to take part. The proposed Court can be seen to be an attempt to deal with (inter alia) the high number of grievances families reported with reference to their matai titles and family disputed customary land during the inquiry.”

On Tuesday last week, another former Attorney General, Taulapapa Brenda Heather-Latu, said she would not have certified the bills.

In fact, the senior member of the Samoa Law Society, who co-Chaired a Committee to review the proposed measures, says the bills should never have been tabled in Parliament.

“The three Bills will change the foundations upon which our justice and judicial system rests and is the most extensive and incoherent attack on our Constitutional document which there has ever been,” she said.

 “As a former A.G., I would not have entertained the preparation and drafting of these Bills for any reason,” she said, adding that she would not have “certified the Bills as suitable to be tabled.”

She said the bills are “repugnant to the democratic balance of our Government by destroying the Judicial system” and they “undermine the Rule of Law as a means of protecting the people from arbitrary Government power.”

Taulapapa also condemned what she described as an “attack” on the independence and stature of the Supreme Court which is Constitutionally empowered to protect Samoan citizens.

“(These bills) are fundamentally defective and badly drafted, given the new justice system which is created under the Bills cannot actually work because of the enormous number of gaps and uncertainties which are not addressed in any of the Bills,” she said. “Startlingly (the bills are) racist…”

The following is Lemalu’s response verbatim:

 FORMER AG REPLIES TO SAMOA OBSERVER 

QUERIES - LTC AND CONSTITUTIONAL REFORMS

The overriding purpose of the Constitutional Amendment is to deal directly with the issue of access to legal justice for those who lose an appeal at the Lands and Titles Court (LTC). 

At present in our Judicial system, once the President of the LTC decides an appeal - any family that loses their cases, has no further Court to advance their grievance to. Those are the affected persons that have been seeking relief for decades now, even reverting in desperation to visiting the offices of the Hon PM, Hon Ministers and Government officials asking - who they can appeal to? The answer is - there is no further Court to appeal LTC decisions to in our current system.  

Even a Judicial Review (JR) against an LTC decision to the Supreme Court, can only legally deal with procedural issues as to how the hearings were conducted. The Supreme Court cannot otherwise deal with substantive questions and legal arguments about Fa’asamoa at all, as that has been left in the hands of the LTC. Therefore, the prospect of a new LTC Court of Appeal, offers a potential avenue for affected families, to attend substantively to "tu ma aganuu" i.e. cultural arguments, that our current Westminster modelled Courts are not tasked Constitutionally to deal with.

I emphasise here that - that has been the separation of duties between the Westminster modelled Courts and Lands and Titles Courts in Samoa since its Constitutional Independence. The proposed amendments would not therefore in terms of practise, initiate a sudden separation of the two in terms of their jurisdictional responsibilities – as that is already in place.

As our current domestic Westminster modelled Court of Appeal cannot therefore deal with any LTC substantive appeals, the question then arises when considering furthering LTC appeals - is the current Court of Appeal, that which should be burdened with legally defining our cultural practices i.e. appeals about Fa'asamoa from LTC decisions? The proposed amendment's answer to that question is - 'No'. It should be left as it currently stands in the hands of the LTC, and therefore - what is required is an LTC focused Samoan Court of Appeal to deal with Samoan cultural. 

Hence the need for the newly proposed Court of Appeal that continues the specific cultural ethos of work that the LTC already exclusively carries. (Such a Court must therefore be placed first within our Constitution, before the Acts to monitor its procedures, then follow)

Further, this same point explains why the two Courts can run side by side within then MJCA administration (again as they already currently do), but separately in terms of their jurisprudence (law making rulings) - because they are fundamentally dealing with two different cultural contexts in their substantive responsibilities. [Such is the bicultural duo systems of government Samoa has admirably in my humble view, balanced and journeyed with since its Constitutional independence] 

The Constitutional Reform does not therefore propose to revoke any of the individual freedoms that are sacredly protected in our Constitution; on the contrary it seeks to enhance the right to a fair (substantive) trial via a new Appeal avenue within the LTC route; and it simply cannot by creating a specialist Court of Appeal, somehow then remove the separation of powers of the three branches of Government from the Constitution. 

Further, it cannot unilaterally encroach, and tell families what to do with their Lands and Titles, as it is a Civil Court – it can only therefore, deal with cases that the public decides themselves to file for consideration and relief as it were. 

In relation to Customary Land and concerns raised re Clause 9 of the Lands and Titles Bill – I make 3 points:

  1. It is not a new provision it is a transfer over of the current s 9 of the Lands and Titles Act 1981 (an Act to be repealed as part of the reforms);   
  2. The provision does not allow in any way for the conversion of customary land into freehold land (it’s been in Samoa since 1981 and never used to do such because it cannot) – as the provision is subject in its wording to the sacred Article 102 of our Constitution removing any legal avenues to convert customary land into any other type of land; and
  3. The provision simply allows a family to confirm at LTC the registration of land into customary land only – but, only if there is evidence that its legal status is in dispute, if there is full consent of petitioning parties, and if there are no public objections.

I respectfully submit, it is not a provision that should cause concern to our community as to ownership of our customary land. 

In terms of Consultation, I note that these reforms originally stem from the Parliamentary Commission of Inquiry, that sat for some 10 months in 2017 - 2018, reviewing the performance of the LTC. The public at large, private citizens and all public servants were invited to take part. The proposed Court can be seen to be an attempt to deal with (inter alia) the high number of grievances families reported with reference to their matai titles and family disputed customary land during the inquiry.

Further, the Constitutional role of the Parliamentary Select Committees that the Bills have now been formally referred to by the Legislature, are at risk of being unnecessarily understated. Their democratic purpose is to hear from the public and they then have the power to make suggested amendments to the bill for Parliament to consider. That is the current open avenue for public concerns and submissions. My experience in appearing before these committees, is that they move in integrity, are hardworking, receive the views and opinions of the public respectfully and take them very seriously into account. 

Fa’afetai tele Mata’afa for the approach, herein above are my respectful views in reply. 

Ieova i lo tatou Va. 

 Lemalu Hermann Retzlaff 

 

 

 

 

 

 

 

 

 

 

 

 

 

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