Law Society prepares submission to court overhaul bills

Members of the Samoa Law Society will table their submission before a Special Parliamentary Committee on Friday to oppose three pieces of legislation to create an independent Land and Titles Court. 

Since the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020 were tabled in Parliament many of the nation’s legal fraternity and its Judges have expressed grave concerns about the proposed changes. 

In recent weeks, the Samoa Law Society (S.L.S.) has been raising public awareness to translate the proposed changes into everyday language to inform people of the impact of the bills. 

Spearheaded by former Attorney General, Taulapapa Brenda Heather – Latu, the S.L.S. is urging the Government to reconsider the bills and to hold consultation on the significant changes. 

Following the three bills being tabled in Parliament, the lawyers association had set up a sub-committee to conduct research on the proposed changes and identify “problematic areas”. 

Vice President of S.L.S., Su’a Hellene Wallwork, said some of the proposed changes to be affirmed by the Society among the Constitutional changes is that court files cannot be removed. 

“The Samoa Law Society is not saying that everything about these three bills [is] wrong,” said Su’a. 

“We have just identified the problematic areas and these are the aspects that we are just asking the Government to reconsider. 

“Some of the changes in the bill are good and now it will be confirmed in the Constitution that no one can remove Court files, or court records.”

Su’a said some of the aspects relating to how people’s rights are going to be presented in Court is of major concern. 

She added the S.L.S. sub-committee have garnered the view of other senior lawyers and are only asking the Government to allow them to have an input so they can achieve what is best for the country.  

One the Constitution amendments that had raised concerns is the removal of rights of any person to seek remedies for breach of their fundamental rights in the Supreme Court. 

The proposed changes seek to establish a new Court structure where there are two separate and independent Courts and the Supreme Court no longer has any jurisdiction over the L.T.C.

The Society claims that the amendment means that the Supreme Court will no longer have the exclusive jurisdiction to interpret the Constitution. 

It argues that once the bills become law, people are no longer able to seek appeal on decisions from the L.T.C. that infringes Constitutional rights of a person. 

The proposed change will mean the L.T.C.’s jurisdiction will be expanded to also interpret the Constitution, say the S.L.S. 

Another matter raised by the Society in the bills is that the proposed change will destroy the separation of powers for the three branches of Government. 

One of the constitutional 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 about the interpretation on the effect of any provision arising from the Land and Titles Court of Appeal and Review Court for its opinion on any question so referred to it.   

But the S.L.S. says this is a “slap of the face” to the separation of powers principles. 

It pointed out this simply means that the Prime Minister can interpret the Constitution on issues to L.T.C. and it defeats the whole purpose of having an independent judiciary. 

Furthermore, S.L.S. has also pinpointed that one of the proposed changes that will give the Judiciary Service Commission the authority to remove a Supreme Court Judge will be a threat to the Judges. 

The Society warned that the Supreme Court Judges will no longer be able to conduct their work without fear if the proposed change becomes law. 

Such significant change to the security of the Judges tenure, said the Society, is dangerous. 

S.L.S. President Leiataualesa Komisi Koria pointed out the majority of those sitting on the Judiciary Service Commission are officials appointed by the Prime Minister and the Cabinet. 

“What is going to happen when the bill gets passed, that decision will no longer be within that arm of Parliament where there are checks and balances, it would be made by the executive arm of government,” he said.

 “When there is that level of influence by the Executive on the work of [the] Judiciary then there is a huge danger.  

“You will have members of the Supreme Court who can no longer operate without fear and without favour, because there is another arm of Government that can make a decision whether they can remain in their position or not.”