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Australian lawyers join opposition to L.T.C. Bills

The Law Council of Australia has backed the Samoa Law Society’s (S.L.S.) concerns over proposed changes to the Land and Titles Court (L.T.C.) and the Judiciary, echoing regional concerns that the changes would undermine the rule of law and judicial independence.

President of the Council, Pauline Wright, said if the L.T.C. was placed outside the supervision of the Supreme Court as proposed, it would create potentially competing court systems and undercut fundamental human rights.

She also called on the region’s law societies and bars to call out legislation that “risks undermining the principles and the protections of fundamental rights.”

Ms. Wright decried the move to create a Judicial Services Committee of Government appointees to replace the Parliamentary authority over removal of judges.


“Currently under Samoa’s Constitution, Parliament may, by a two thirds majority, remove judges based on misbehaviour or mental impairment. The amendments seek to remove this power and create a Judicial Services Committee appointed by the government,” Ms. Wright said in a statement.

“This raises the further concern that the government could influence and undermine the judiciary and render judges vulnerable to dismissal without cause or due process.”

The Council agrees with S.L.S. that there should be country-wide consultations on the amendments and urged Government to withdraw the bills until after such consultations.

“It is also disturbing that these proposed amendments have been tabled while the constitutional offices of Attorney-General and Chief Justice are vacant,” Ms Wright said.

“While Australia recognises the sovereignty of independent nations, it is imperative that all law societies and bars in our region voice legitimate concerns regarding any legislation or policy that risks undermining the principles and the protections of fundamental rights.”

Last week, the New Zealand Law Society also weighed in on the matter and how the bills would impact the rule of law, the hierarchy of the courts and the legislative process guiding it all.

“Whatever policy aims need to be achieved, it is hard to understand how such constitutional changes can be justified without the explicit support of a large majority of the people of Samoa obtained through proper consultation,” President Tiana Epati said.

The Constitution Amendment Bill 2020, Judicature Bill 2020 and Land and Titles Bill 2020 were tabled in March and are currently undergoing Select Committee Hearings before being tabled for their third reading.

Together, they would create an autonomous Land and Titles Court (L.T.C.) as a parallel and independent judicial structure, including its own High Court and appeals process.

During a civil protest outside Parliament on Friday, the Parliamentary Committee responsible for hearing submissions on the bills confirmed it would begin village consultations across the entire country.

Fuimaono Te’o Samuelu, M.P. for Falealili East, said the committee will ensure the current round of submissions will not be “the end” of the process.

“Even in Salafai (Savaii) the committee of constituencies will go around from village to village to clarify and consult with everyone.

“The Committee has decided to give the opportunity to the public to bring in their concerns and thoughts to build this law, because the bill belongs to us and not anyone else.”

The Law Council of Australia’s full statement:

The significant constitutional amendments introduced into Parliament by Samoa’s Government, without due consultation, are of great concern, said the Law Council of Australia.

If passed, the Constitutional Amendment Bill 2020, Judicature Bill 2020 and Land and Titles Bill 2020 would create an autonomous Land and Titles Court (LTC) as a parallel and independent judicial structure, including its own High Court and appeals process.

The Law Council of Australia President, Ms Pauline Wright, said that the proposed amendments undermine judicial independence and the fundamental separation of powers that are vital to the rule of law.

“By placing the LTC outside of the scrutiny and supervisory jurisdiction of Samoa’s Supreme Court, this legislation, if passed, would create two parallel and potentially competing court systems within Samoa’s legal framework,” Ms Wright said.

“This would limit the grounds of judicial review available to Samoans, with unsuccessful parties before the LTC not having the option to appeal before the Supreme Court.”

Currently under Samoa’s Constitution, Parliament may, by a two thirds majority, remove judges based on misbehaviour or mental impairment. The amendments seek to remove this power and create a Judicial Services Committee appointed by the government.

This raises the further concern that the government could influence and undermine the judiciary and render judges vulnerable to dismissal without cause or due process.

The Law Council supports the Samoa Law Society’s call for country-wide consultations on these amendments and urges the Samoan Government to withdraw the bills until these consultations have taken place and concerns raised by members of Samoa’s judiciary and legal profession have been addressed.

“It is also disturbing that these proposed amendments have been tabled while the constitutional offices of Attorney-General and Chief Justice are vacant,” Ms Wright said.

“While Australia recognises the sovereignty of independent nations, it is imperative that all law societies and bars in our region voice legitimate concerns regarding any legislation or policy that risks undermining the principles and the protections of fundamental rights.

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