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Embracing the Ombudsman's insights to avoid pitfalls

They say Rome was not built in a day, that is the development of a nation will always be a work in progress, so long as citizens and the leaders who govern them agree to take the journey together.

Sadly, the three Bills to amend Samoa’s Constitution to restructure the Judiciary and to make the Land and Titles Court autonomous, are hallmarks of a Government recklessly determined to take the journey alone without input from its citizenry.

Public consultation is an important tool of democracy as it allows for the gathering of a variety of views. The plurality of views – even those that clash with and do not represent that of the majority – are important for public policy formulation.

Individuals, organisations and experts have in recent weeks risen up to the occasion to step forward to express their views, on the potential implications of the Constitutional Amendment Bill 2020, Land and Titles Bill 2020 and the Judicature Bill 2020 on the lives of citizens, including their fundamental rights.

The Ombudsman and Head of the National Human Rights Institution, Maiava Iulai Tomai, has become the latest expert to add to a growing chorus of high profile Samoans who oppose the proposed constitutional amendments. 

In an article titled “Ombudsman opposes changing the Constitution” published in the Sunday Samoan May 17, 2020 edition, Maiava suggested that the Government focus instead on religious freedom.

"National Human Rights Institution Samoa does not support drastic amendment of the Constitution. It does not consider this necessary to remedy the problems experienced in the past," the submission reads. "National Human Rights Institution Samoa suggests instead, Parliamentary consideration of legislation under Article 11(2) of the Constitution."

According to his Office’s submission to the Special Parliamentary Committee, the root of unrest between the village fono and the Supreme Court – on which the suite of three Bills are based – is decades of L.T.C. decisions being overturned on matters of religious freedom.

Instead of the three Bills, which would have “injurious consequences” on fundamental freedoms, Maiava recommends the Government pays closer attention to provisions of the Constitution relating to religious freedom. 

It is not surprising to see the Ombudsman reaching the same conclusion with that of the Samoa Law Society and other legal experts including Judges: that the proposed constitutional amendments will impact on citizens’ fundamental rights.

His revelation of religious freedom being one of the main points of contention for appeals against L.T.C. decisions to the Supreme Court, adds a new dynamic to the debate surrounding the three Bills. It also raises questions as to whether the Government was privy to these details of L.T.C. proceedings (of appeals on religious freedom matters to the Supreme Court) and if they (Government) have ulterior motives in their haste to legislate?

And why are we not surprised that the Ombudsman is of the view that the Government’s proposed laws would be in breach of the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights which Samoa ratified as well as its own Constitution?

The submission by the Ombudsman and the Head of the National Human Rights Institution confirms the flaws that exist in the three Bills and its wider implications on Samoan society and its standing in the international community if passed into law.

The decision by the Government recently to get the Special Parliamentary Committee to visit villages in the rural community to get their views on the L.T.C. Bills – when the legislation in question has already passed the second reading – shows contempt for our democratic ideal of public consultation which authorities failed to invoke prior to the tabling of the legislation in Parliament.

Reports of the forced resignation of the Member of Parliament for Urban West, Faumuina Wayne Fong, allegedly on the orders of the Human Rights Protection Party (H.R.P.P.) top brass is a cause for concern as the countdown starts to the L.T.C. Bills returning to the House in August for the third reading and final vote.

Faumuina has a reputation for speaking his mind on Government policies, which has often put him at odds with the position of the Parliament-dominated H.R.R.P. over the years. But then, as an M.P. he has every right to question Government policy on behalf of his constituency, who gave him the mandate to represent their interest.

Ultimately, the Parliament should represent the aspirations of all citizens, and everything we dream of as a progressive nation. 

To continue to trivialise observations by individuals, organisations and experts of what lies ahead, and to push ahead with the proposed reforms, disrespects the democratic foundations built by our forefathers and the rule of law we now enjoy.

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