Former Chief Justice appears before Parliamentary Committee

The former Chief Justice, Patu Tiava'asue Falefatu Sapolu, has presented his views on three bills before a Special Parliamentary Committee hearing public views on the Constitutional Amendment Bill 2020, Lands and Titles Court Bill 2020 and Judicature Bill 2020.

Patu appeared before the Committee chaired by Senior Member of Parliament, Gatoloaifaana Amataga Gidlow, on Tuesday 12 May 2020, according to a draft transcript of the discussion between the Committee and Patu. 

Other Committee members include Namulauulu Sami Leota, Sulamanaia Tuivasa Tauiliili, Faaulusau Duffy Stowers, Fuimaono Teo Samuelu, Leaana Ronnie Posini and Ili Setefano Ta’ateo.

Patu argued that tension between individual rights and village authority has existed since Samoa's independence.

“There is [always a] contention between individual rights under the Constitution and the authority of the village council,” the draft transcript quote the former Chief Justice as saying. “And the [individual’s] rights will always prevail.

Patu’s submission refers to the 1981 approval by Parliament of the Lands and Titles Act. 

“The current law [...] is the same [... as a] law implemented by the New Zealand Government in 1934,” he said. 

“The law says that under 1981 Act that the jurisdiction of the Lands and Titles Court is exclusive to lands and title matters. 

“This means the Supreme Court and the District Court cannot preside over Lands and title matters.” 

According to Patu, the decisions of the Lands and Titles Court cases are finalised and no other courts can question its decision. 

“I know that not many know this [but] a court case in 1982, between Tariu Tuivaiti and Sila Faamalaga or Lupematasila from Matautu Falelatai, [... establishes when] there is contention between individuals’ rights under the Constitution and the authority of the Village Council and individual right will always prevail,” he told the Committee.

The former Chief Justice believed such tensions had confronted advisers on the framing of the nation’s Constitution, such as Professor James Wightman Davidson, from the outset of its drafting. 

He said that the Constitutional Convention Debates refer specifically to issues of titles, communal land and the Lands and Titles Court. 

“On article 103 [of the Constitution] Professor Davidson said: now come to the Article 103, the working committee fully recognises that questions relating to the composition and functioning of the Lands and Titles were once [of] great importance and [...] difficulty,” Patu said. 

“And therefore the provision in the Constitution is merely empowering one to enable the Legislative Assembly in the future to take whatever action necessary by way of legislation in regards to the composition and functions of the Lands and Titles Court. 

“And that’s what Professor Davidson noted [in their review] as the Committee for Convention.

Patu also pointed out that under the current Lands and Titles Court Act, contempt of court can be an issue arising from hearings in that Court. But this becomes a matter under the jurisdiction of the District Court because disobeying a Court order is a criminal offence. 

“The contempt of court is a criminal offence and yet the L.T.C. is not a criminal court. The Supreme Court covers criminal and civil matters,” Patu said. 

The former Chief Justice said that Samoa’s colonial past had left behind a “legacy” in the structuring of the nation’s judiciary. 

“While these governments have moved on from colonising the Pacific and Africa, they will always leave a mark in the Judiciary,” he said. 

“During colonial times, colonisers would adopt their foreign legal system into the country, despite Samoa already having its own legal system in place.

“It’s as if we did not have our own legal system, such as the Village Councils, however the colonisers came with their legal system which we are now being subjected to in this life.  And this is called legal pluralism [...or]  a country with two legal systems.” 



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