Amnesty International has condemned Samoa’s proposal to create a fourth branch of Government, saying it undermines the rule of law, separation of powers and the right to a fair trial.

The global human rights advocacy group’s Pacific Researcher, Kate Schuetze, said Samoa’s reputation as a model country in the region with respect for human rights – including having the leading Ombudsman in the Pacific – is at stake should the proposed changes become law.

She said the suite of three bills tabled in Parliament in March would set the stage for malicious powers to threaten judicial independence, fair trials and worse.

“I am not suggesting this government has malicious intent but you have to make the best laws for when the worst government is in power,” Ms. Schuetze told the Samoa Observer.

“The reason you protect and uphold the independence of the judiciary is you don’t want a government or any individual to come along and erode that independence by going ‘I don’t like what that judge said, I don’t like his decision in this case, I am going to get rid of that person.’

“If you allow the powers to do that now it means that in the future every judicial officer has that hanging over their head when they decide a case.”

Three bills – the Land and Titles Bill, Constitution Amendment Bill and Judicature Bill were tabled in Parliament in March and have passed their first and second readings. They are now undergoing select committee hearings before a third reading is scheduled.

Among other changes, the bills include having the Judicial Services Commission rule on removing judges from office instead of the current system of requiring a two thirds majority vote in Parliament.

Ms. Schuetze said judges and lawyers must be independent, and that their independence is protected by the separation of powers: the division of authority amongst the executive (government), the legislative (Parliament) and the judiciary (the courts).

Without it, no one is guaranteed their right to a fair trial, which is a breach of a fundamental human right.

Though Samoa is a party to international conventions on human rights, this alone does not bind the country to upholding these obligations, Ms. Schuetze said, because of the universality of human rights.

“There is a United Nations (U.N.) Special Rapporteur on the independence of judges and lawyers,” she added.

“If Samoa is very confident that the laws are consistent with international human rights law they would not be afraid to invite the special rapporteur to visit and comment on those issues and ensure those rights are protected and upheld.”

The current Special Rapporteur is Peruvian Judge, Diego Garcia-Sayan, who was President of the Inter-American Court of Human Rights for two terms, and was the Minister of Justice during the democratic transition in Peru.”

The bills would also remove the right of appeal to the Supreme Court from the Land and Titles Court (L.T.C.) and instead form a court of appeal and court of final review for L.T.C. appellants. 

This would drastically undermine human rights as enshrined in international human rights law, but also in Samoa’s Constitution, Ms. Schuetze told the Samoa Observer.

“Every state has obligations to uphold the right to a fair trial and that is a system that protects innocent people from going to jail, which is a very serious human rights violation,” she said.

“When you have two separate court systems it is very hard to ensure that there is equality before the law because you are separating those jurisdictions and the outcomes someone might get in one jurisdiction is different to another.”

The bills have been drafted for several reasons but chief among them is a desire by the Government to give more weight to custom in the courts, which Prime Minister Tuilaepa Dr. Sailele Malielegaoi said have been underprivileged in favour of ‘palagi’ individual rights.

Ms. Schuetze said claiming individual rights are not Samoan is offensive to the very people the statement hopes to protect.

“Human rights are so universal and interconnected that that it’s offensive to Samoans to say these human rights were imposed on us by outsiders; they are not a core part of our beliefs. 

“Samoa’s Constitution was made under a U.N. mandated vote and it had a lot of local support at the time it was passed.”

But regardless, human rights laws have to trump custom where customary law discriminates or harms an individual, because unfortunately customary laws can and do harm individuals.

“The reality is that where custom undermines human rights under international law the Government has an obligation on them to reform those customs.

“Certainly if Samoa passes these laws there could be further international scrutiny and there is a range of mechanisms through the U.N. which would trigger investigations or it could trigger communications with the Samoan government asking them to explain the laws that are being considered here.

“Samoa has been touted as what a Pacific island nation should be in terms of maintaining judicial independence, the rule of law and the separation of powers. They lose a lot of that credibility and standing on the international stage, and its ability to influence and engage from the moral high ground when it is conducting its relationships with other Pacific islands as well.”