The misguided principle of dismissing experts
The Land and Titles Court (L.T.C.) overhaul will change not just the very nature of this nation’s judiciary but of its democracy.
The proposed changes to Samoa’s Constitution have provoked fierce debate.
The criticism has come from judicial organisations round the world - as well as Samoa.
Almost without exception, these experts have expressed concern for the effects of the bills: The Constitution Amendment Bill 2020, the Lands and Titles Bill 2020, and the Judicature Bill 2020.
The bills would, of course, remove Samoa’s Supreme Court as the apex level of judiciary; those who wish to appeal L.T.C. decisions to the highest court in the land denied them.
Furthermore, the Judiciary Service Commission composed of officials appointed by the Prime Minister and Cabinet would be given the power to remove criminal judges. (Previously, two-thirds of Parliament had to vote in favour of a Judge’s removal.)
The views of the Prime Minister, Prime Minister Tuilaepa Dr. Sailele Malielegaoi, the former Head of State, the judiciary, chiefly leaders, current and former Government officials, the Samoa Law Society, and many others have all been forthcoming.
But of those, Tuilaepa perhaps stands out the most when he has disparaged many of the institutions of this country. He called members of the legal fraternity as talking about the rule of law when “they don’t understand what it means.”
The Prime Minister also dismissed as “false” and designed to “mislead” the analysis of the bills by members of the Samoa Law Society.
At the heart of Tuilaeapa’s position is the ownership of the Constitution, and whether it can express Samoan custom or, in Prime Minister Tuilaepa Dr. Sailele Malielegaoi’s words, only palagi (foreign) thinking
“Individual rights are in the Constitution and they are in the constitutions of all nations governed by papalagi,” Tuilaepa said.
These comments have been taken as offensive by many of the aforesaid eminent Samoans.
A descendant of the former Head of State, the late His Highness Malietoa Tanumafili II, has told Tuilaepa that the accusation that his ancestors did not understand the Constitutional convention was offensive.
“Our ancestors who he referred to as not having any understanding of [the Constitution] were exiled and brutally attacked in their fight for Samoa’s freedom,” he said.
Eminent international figures of jurisprudents have made similar criticism.
These include Michael Kirby, a former Australian High Court Justice; legend of international international human rights law; and Co-Chair of the International Bar Association's Human Rights Institute
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.
And the New Zealand Law Society, President Tiana Epati.ined on the changes critically: "There is understandable concern that this move is likely to adversely affect the rule of law, the position of the Chief Justice and the supervisory jurisdiction in the hierarchy of courts in Samoa”.
The Institute of Small and Micro States (I.S.M.S.), a regional research organisation on legal matters, has similarly spoken critically about the changes to Samoa’s legal system.
The Prime Minister took aim at the New Zealand Law Society to make a particular criticism for using “that organisation’s name to try to lecture us or interfere with our country’s democratic processes.”
In doing so Tuilaepa’s criticism of foreigners, more broadly, has the effect of dismissing these international perspectives and experts entirely.
But in reality, these comments by Tuilaepa are a false dichotomy; they represent a misunderstanding of the elements of the Constitution of Samoa.
We value sovereignty. We recognise the place of Samoan culture in our nation’s Constitution.
But it is also undeniable that Samoa is a legal system and democracy based on the Westminster system.
Tuilaepa may dismiss these origins. But they have been elements of this country for 57 years.
They were the product of the noble founders of this nation. These were founders who crafted what was a beautiful and elegant constitution; a founding document that is unique in the world.
They sewed together a legal hierarchy that protects individual rights; a system that protects the separation of powers of our Government; but also reveres Samoa’s ancient culture and tradition.
But is to ignore experts in jurisprudence and democracy who warn us of the risk of demolishing two of the three founding principles of this nation, then, a wise idea at all?