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L.T.C. change risks Samoa's Commonwealth membership: letter

An international legal authority on human rights has written to the Prime Minister of Samoa warning that passing constitutional amendments to undermine the rule of law could threaten its membership to the Commonwealth. 

The International Bar Association’s Human Rights Institute (I.B.A.H.R.I.), led by co-chairs Michael Kirby and Anne Ramberg, have released their letter to the Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, to express their concern over the constitutional and judicial amendments.

The bills – the Land and Titles Bill, Constitution Amendment Bill and Judicature Bill – would undermine the rule of law and the independence of the judiciary in Samoa, and launch a “dangerous and undesirable precedent,” the letter states.

Mr. Kirby and Ms. Ramberg said the COVID-19 emergency should not be exploited to “push through” controversial legislation while the world is looking the other way.

 


“The I.B.A.H.R.I. is deeply concerned by the move to introduce such legislation, which would radically alter the constitution of Samoa, only a day before the country’s Covid-19 state of emergency was called,” the letter states.

And as Samoa is a member of the Commonwealth it must adhere to that body’s charter which includes commitments to guaranteeing the separation of powers and to upholding the rule of law. 

“A failure to uphold the values of this Charter could imperil Samoa’s reputation and its 50-year membership of the Commonwealth.”

The letter comes just weeks after Mr. Kirby spoke out against the bills in the Samoa Observer, saying government attempts to “carve out exceptions” to scrutiny must be “nipped in the bud.”

A key concern of the I.B.A.H.R.I. is the proposal to move the Land and Titles Court (L.T.C.) outside the constitutional and legal supervision of the Supreme Court, and instituting for it separate Courts of Appeal and Final Review.

They argue this move is a slippery slope away from the standards of international human rights law.

“Every court, government department, officeholder and person exercising governmental power must be subject to the scrutiny of the general court system - ultimately the Supreme Court - so that governmental power can be constantly checked and scrutinised against the Constitution and other laws of the land,” Mr. Kirby and Ms. Ramberg write.

“The I.B.A.H.R.I. is concerned that such a move away from the rule of law could pave the way for further serious derogations from international human rights law in the future; it is a dangerous and undesirable precedent.”

Another major issue is the proposed Judicial Services Commission’s abilities to dismiss judges without due process, a radical change from the current requirement to have a two-thirds majority vote in Parliament.

They write this unelected executive body would undermine the independence of the judiciary and caution against it:

“The [United Nations] Basic Principles on the Independence of the Judiciary uphold States’ duty to respect and observe the independence of the judiciary, which includes the right of Judges to a fair hearing before removal, and to be subject to removal only for reasons of incapacity or misconduct.

“The I.B.A. Minimum Standards of Judicial Independence upholds that in disciplinary proceedings related to judges, the executive must only participate ‘in the initiation of disciplinary proceedings, but not the adjudication.’


In his address on the legislation in Parliament, Tuilaepa said the goal of the proposed bills is to make the constitution more Samoan and to give due weight to custom in the courts.

He has since argued that the Samoan writers of the Constitution did not “understand” what the palagi authors were putting into it, which is why it allegedly privileges individual rights over collective or village rights. 

“The reason is because of the palagis that inserted this [in the Constitution] and our forefathers didn’t understand it…” he said on Radio 2AP in April.

In their letter, the co-chairs firmly disagree, saying international legal principles in the Constitution are in fact fit for Samoa.

“This legislation cannot better serve the needs of Samoans if it derogates from their human rights.

“The rule of law and the independence of the judiciary are fundamental pillars of international human rights law, and the I.B.A.H.R.I. is concerned that this proposed legislation threatens these pillars and interferes with the guarantees of fundamental rights.”

The institute urges Tuilaepa to reconsider the tabled legislation, and ask that he confirm he received their letter and that he will urgently address their concerns. 

Ms. Ramberg was until last year the first female Secretary-General of the Swedish Bar Association, a position she held from 2000, and has been a judge on the European Court of Justice.

Mr. Kirby was a Justice of the High Court of Australia for 14 years and from 2013 to 2014 was the Chair of the United Nations Human Rights Council on North Korea.

The I.B.A.H.R.I was founded in 1947 and is the preeminent organisation for international legal practitioners, bar associations and law societies and is autonomous and financially independent. 

Read the full letter to Tuilaepa from the I.B.A.H.R.I.:

His Excellency Tuilaepa Aiono Sailele Malielegaoi

Prime of Minister of Samoa

P.O.Box 1866

APIA

 Samoa

19 May 2020

Private letter to His Excellency Tuilaepa Aiono Sailele Malielegaoi from the International Bar Association’s Human Rights Institute

Your Excellency,

We are writing to you on behalf of the International Bar Association’s Human Rights Institute (IBAHRI) to express our concern over the major constitutional amendments proposed in three bills currently before your Parliament, which would greatly undermine the rule of law and the independence of the judiciary in Samoa.

The International Bar Association, established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. It has a membership of over 80,000 individual lawyers, and 190 bar associations and law societies, spanning over 160 countries. The IBAHRI, an autonomous and financially independent entity, works with the global legal community to promote and protect human rights and the independence of the legal profession worldwide.

According to reports received by the IBAHRI, the proposed legislation would alter the court system to establish the Land and Titles Court as a separate court outside the constitutional and legal supervision of the Supreme Court. This would undermine the primacy of the Supreme Court by removing the Land and Titles Court from its scrutiny. The IBAHRI maintains that every court, government department, officeholder and person exercising governmental power must be subject to the scrutiny of the general court system - ultimately the Supreme Court - so that governmental power can be constantly checked and scrutinised against the Constitution and other laws of the land. The IBAHRI is concerned that such a move away from the rule of law could pave the way for further serious derogations from international human rights law in the future; it is a dangerous and undesirable precedent.

Further to this, the IBAHRI has been made aware that these proposed changes would greatly undermine the independence of the judiciary by granting the Judicial Services Commission – an unelected executive body – the power to dismiss judges, without cause or consideration of due process. Currently, judges may only be removed by a two-thirds majority vote in Parliament on grounds of misconduct or mental impairment. The IBAHRI is deeply concerned by the move to introduce such legislation, which would radically alter the constitution of Samoa, only a day before the country’s Covid-19 state of emergency was called. The Covid-19 crisis should not be exploited as a guise under which controversial legislation can be pushed through, while international attention is diverted to fighting the crisis.

The IBAHRI contests the belief that international legal principles, as enshrined in the current Constitution, are unfit for Samoans, as expressed in your Ministerial address noting this proposed legislation. This legislation cannot better serve the needs of Samoans if it derogates from their human rights. The rule of law and the independence of the judiciary are fundamental pillars of international human rights law, and the IBAHRI is concerned that this proposed legislation, threatens these pillars and interferes with the guarantees of fundamental rights. The adoption of the Universal Declaration of Human Rights enforces the intrinsic relationship between human rights and the rule of law, as two sides of the same principle. The Declaration of the High-Level meeting of the General Assembly on the Rule of Law, adopted by the General Assembly in 2012, reaffirms international commitment to the rule of law, as the ‘foundation of friendly and equitable relations between States and the basis on which just and fair societies are built.’ 

As a member of the Commonwealth, Samoa is committed to upholding the shared values in the Commonwealth Charter. Paragraph VI secures nations’ commitment to guaranteeing the separation of powers and paragraph VII secures their commitment to upholding the rule of law as ‘an essential protection for the people of the Commonwealth’. A failure to uphold the values of this Charter could imperil Samoa’s reputation and its 50-year membership of the Commonwealth. Further to this, the IBAHRI would like to remind you of Your Excellency’s duty to defend judicial independence in Samoa. The UN Basic Principles on the Independence of the Judiciary uphold States’ duty to respect and observe the independence of the judiciary, which includes the right of Judges to a fair hearing before removal, and to be subject to removal only for reasons of incapacity or misconduct. The IBA Minimum Standards of Judicial Independence upholds that in disciplinary proceedings related to judges, the executive must only participate ‘in the initiation of disciplinary proceedings, but not the adjudication.’

The IBAHRI urges the Government of Samoa to reconsider the proposed legislation in light of its serious consequences laid out in this letter. We would be grateful to receive your assurances that you have received our letter and that our concerns will be addressed as a matter of urgency. 

Yours sincerely,

The Hon Michael Kirby AC CMG IBAHRI Co-Chair

Anne Ramberg, Advocate, Dr jur hc IBAHRI Co-Chair 

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