Proposed Judge appointments worries Groups

Two non-profit groups have raised concerns that the Government could propose to appoint retired Judges without “legal expertise" under a major proposed overhaul of the Land and Titles Court (L.T.C.). 

The concerns were part of the submissions delivered by representatives of the Samoa Solidarity International Group (S.S.I.G.) Global and the Tali-i-Lagi Incorporated last week before the Special Parliamentary Committee examining the bills which together constitute the overhaul.  

The groups collectively oppose the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and the Judicature Bill 2020 in their submissions.   

Concerns include the possibility of the effects of a new addition to Clause 4 of the Constitution, relating to the establishment of the Court of Appeal, which would propose to appoint retired Judges of the Supreme Court of Samoa under the age of 75 to the Court of Appeal. 

“It raises concerns with us because firstly, the appointment is not subject to good character or good health, secondly it discriminates against judges younger than 68 and thirdly it allows for preferential recruitment based on age and being retired and not on personal merits and legal expertise," the groups' submission reads. 

“It opens the door to an unfair preferential advantage that would allow a retired Judge who may not have qualified to be appointed to the Appeal Court at age 67 years 11-month to immediately qualify at age 68 but for this proposed provision.

“This be a farce and would compromise the integrity of the judiciary locally and internationally. Retired Supreme Court judges’ eligibility to apply for vacancies at the Appeal Court should be subject to same professional standards and personal merits as everybody else. 

“The current jurisdiction of the Appeal Court in respect of fundamental rights under Article 81 of the Constitution will be completely removed if the proposed provisions under Part VI become law. This is an indictment on our human rights and civil liberty and must not be allowed.”

The groups further argued that there were plans to introduce new amendments that undermined human rights.  

“The rest of the proposed amendments in Part 4 do have a direct impact on the role and functions of Civil and Criminal Courts, yet the judiciary and legal sector do not appear to have been consulted and given the opportunity to input into this bill," they write. 

“It is absolutely imperative that these proposed reforms are independently and judicially scrutinised to lend it legitimacy and credibility is must have. We therefore unreservedly support the call to withdraw this bill and embark instead on genuine consultations.

The groups also criticise Clause 13 of the proposed law Matai Sa’o. (1) and (2) in which no family is allowed to have more than five paramount chief. 

"The state should not dictate what the descendants and extended family’s right in terms of decisions based on customs and usage, and their circumstances from time to time," the submission reads. 

“It was political interference primarily to election purposes that lead to the proliferation of matai titles in the first place.   

“The current jurisdiction of the Appeal Court in respect of fundamental rights under Article 81 of the Constitution will be completely removed if the proposed provisions under Part VI become law.  This is an indictment on our human rights and civil liberty and must not be allowed.   

“We therefore unreservedly support the call to withdraw this Bill and embark instead on genuine consultations with all stakeholders including the judiciary, the Samoa Law Society and the general legal fraternity.”

“We emphatically object to and reject this amendment as it proposes to remove the right of a citizen to apply to the Supreme Court (and the Appeal Court under Article 81) to enforce their fundamental rights".

The group said a previous 2016 inquiry into the L.T.C. had not recommended its dissolution in response to problems of alleged incompetence and poor case management. 

Another part of the Groups' submission included a challenge to the Committee to a simple exercise if the H.R.P.P. Government chooses to ignore the voices of the people and proceed to return these Bills to Parliament for third.

The Committee was advised to look at pages 4 to 8 of the Constitution of the Independent State of Samoa 1960 and see if you recognised any of the names listed there. 

“Those are some of our forefathers who fought for the rights and freedoms which these proposed provisions now seek to take away. We are here today asking you to withdraw these Bills and uphold these rights.  It is the right thing to do. 

“In closing we want to remind each and every one of your Committee members about the Oath of Allegiance you took on the proud day you were sworn in Parliament accompanied by your family, nuu male itumalo [village and district] who elected you and who you swore to serve: ‘I......., swear by almighty God that I will be faithful and bear true allegiance to the Independent State of Samoa and I will justly and faithfully carry out my duties as Member of Parliament of Samoa. So help me God.

“You swore allegiance to the Independent State of Samoa (i.e. the people) and promised God you will justly and faithfully serve them (i.e. the people) in your office as a Member of Parliament. Ask yourself, ‘How can I justly and faithfully serve the people I swore to God to serve?’ James 4:17 gives you the answer.”

Papali'i Malietau Malietoa and Tuiloma Sonnya Sanft Ah-Tune presented the submissions on behalf of the two groups.

S.S.I.G. Global is a non-government and non-profit organisation established in 2017. 

It was setup by Samoan expatriates as an international advocate and lobbyist body against the alienation of customary lands and the protection of Samoan Culture and Heritage. 

The S.S.I.G. Global and Tali-i-Lagi representatives represented 12,000 or so members and supporters around the globe who are Samoan expatriates, their descendants, families and friends.

The groups have no affiliation and is separate and independent from a local organisation with a similar name, S.S.I.G. Samoa Inc. or S.S.I.G. Samoa and these submissions do not therefore purport to represent the views of that organisation.

The S.S.I.G. Global has branches in Australia, United States of America, New Zealand and Japan while Tali-i-Lagi is the branch of S.S.I.G. Global recently established in Samoa. 

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