There will be no rule of law if the Land and Titles Court (L.T.C.) is immune from the Supreme Court’s scrutiny, one of the world's most respected human rights lawyers Michael Kirby argues.

“It is not possible to have the rule of law if some of the organs of government (such as the Samoan Land and Titles Court) are placed outside the scrutiny and supervision of the general courts, and in particular the Supreme Court of the country concerned,” he told the Samoa Observer. 

“Once Governments and legislatures begin carving out exceptions to effective legal scrutiny of the exercise of government power, there is no saying where this exceptionalism will end up. The attempt must be nipped in the bud.”

If the legislature does not reject the amendments seeking to remove the L.T.C. from the Supreme Court, Samoa’s reputation regionally and globally will be damaged, Mr. Kirby said.

It could mean investors, and the international market more broadly could look unfavourably on Samoa, which could affect the economy long term. 

“This could not only damage the reputation of Samoa in the Pacific region and the international community,” he said.

Mr. Kirby, who was the longest serving judge on Australia's High Court when he retired in 2009, said without the Supreme Court’s supervision, the basic principle of human rights cannot be observed.

“It could also affect the perspective of the international community of Samoa and its observance of the rule of law. In turn, this could have an impact on the decision of investors and of the international market that are important to the prosperity and stable economy of Samoa in the long run.

Mr. Kirby is the Co-Chair of the International Bar Association Human Rights Institute, which works with the global legal industry to protect human rights, and ensure the legal profession remains independent. 

He said the proposed bills on the Land and Titles Court, Constitution and Judicature would be “inconsistent” with the rule of law, and with the Universal Declaration of Human Rights and international human rights law.

The Constitution Amendment Bill 2020, the Lands and Titles Bill 2020, and the Judicature Bill 2020 were tabled in Parliament in March, and are currently undergoing a Select Committee hearing process before they are scheduled for their third reading.

Together they will create an entirely autonomous L.T.C. as parallel and independent judicial structure, including its own High Court and Court of Final Appeal and Review.

Unsuccessful parties before the L.T.C. would not have the option to appeal its decisions to the Supreme Court, currently a possibility only when a decision is alleged to have breached fundamental rights enshrined in the Constitution.  

The explanatory memorandum for the Land and Titles Bill 2020 states the goal is to give the L.T.C. the respect it deserves for being the court in which Samoan custom is ruled on.

“Through the new framework, Samoa attempts to further emphasise the importance and uniqueness of Samoa’s tu ma aganu’u (culture and tradition) and her customary land and Matai titles, by affording it the specialist nature it was intended to have.”

Speaking to the proclaimed intentions of the bills, Mr. Kirby said advancing the court’s status and the weight given to Samoan custom should not come at the cost of protecting human rights.

“Every court, government department, officeholder and person exercising governmental power must be subject to the scrutiny of the general court system (ultimately the Supreme Court) so that governmental power can be constantly checked and scrutinised against the Constitution and other laws of the land,” he said.

“This is just a basic principle of modern government, democratic administration and observance of the rule of law.

“There is no reason why the Samoan Land and Titles Court could not be created as an independent court of high status, but it must be subject to legal and constitutional review in the highest general court, the Supreme Court of Samoa.”

Mr Kirby was a member of the Eminent Persons Group on the future of the Commonwealth of Nations from 2011 until 2012, and was the President of the International Commission of Jurists in Geneva from 1995 to 1998.