Bills risk undermining human rights treaties: lawyer

Samoa’s commitments to several international human rights treaties could be undone if three bills for overhauling the nation’s Land and Titles Court (L.T.C.) pass Parliament, a senior lawyer has warned. 

The three bills in question would create an independent Land and Titles Court: the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020. 

In an interview with the Samoa Observer, senior lawyer Muriel Lui alleged that removing fundamental rights from L.T.C. litigants, no longer able to seek Supreme Court review of decisions, breaches international conventions.

She pointed out that Samoa is a member of the United Nations, which is guided by the United Nations Declaration of Human Rights (U.N.D.C.H.R.). 

Ms. Lui said that, since independence, Samoa has ratified a wide range of human rights conventions that oblige it to meet their requirements and listed a total of seven which could conflict with the creation of an autonomous L.T.C.

“The most relevant international obligations affected by these changes are the U.N.D.H.R. and the [International Covenant on Civil and Political Rights (I.C.C.PR.]. which prescribe the human rights that are currently recognised in our Constitution,” she said. 

A complete list of conventions the legislation would potentially undermine includes: the Convention on the Elimination of all Forms of Discrimination Against Women (C.E.D.A.W.); the Convention on the Rights of the Child (C.R.C.); and the I.C.C.P.R.

The Rome Statute of the International Criminal Court (I.C.C.); eight fundamental conventions of the International Labor Organisation (I.L.O) and the International Convention for the Protection of All Persons from Enforced Disappearance would also be affected, she said. 

Samoa acceded to the I.C.C.P.R. on 15 February 2008. 

“Therefore Samoa has made a decision, and untaken the necessary internal processes, to accept and abide by the rights prescribed under this convention,” said Ms. Lui. 

“Our accession and ratification of the Covenant imposes specific legal obligations which we have agreed to abide by and enforce.” 

But the Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, has dismissed the concerns, saying he sits in the United Nation General Assembly and the Commonwealth Ministerial Action Group. 

During his weekly programme on 2AP radio, Tuilaepa said he made it clear during his speeches that the Government’s proposed Land and Titles Court changes will not undermine individual rights. 

He said the legislation currently being reviewed by a Special Parliamentary Committee gives equal privileges to individual rights and communal rights. 

“The only change is to include in the Constitution the recognition of communal rights for village councils and churches just like individual rights,” he said. 

“That is the only thing that the United Nations is interested in is individual rights, and we are not removing those rights, it still remains where communal rights will also be recognised.” 

Earlier this month, the International Bar Association’s Human Rights Institute warned that the laws could pave the way for a further drift away from international human rights law and expulsion, even, from the Commonwealth. 

However, Ms. Lui said the removal of the fundamental rights from L.T.C. litigants not only deprives them of their Constitutional rights, but also breaches our State obligations under I.C.C.P.R.

“Ramifications may include the loss of our international reputation as a safe democratic nation, which would mean we could lose support from UN member states,” she pointed out. 

“We could lose funding and support from international organisations, or we could face sanctions from the UN for breaching our obligation under the I.C.C.P.R.”

 In relation to the I.C.C.P.R. the lawyer believes that it has treaty obligations which Samoa is required to uphold and enforce in national legislation.

“For example, Article 14 of the I.C.C.P.R. provides, [among other things], that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law,” she said. 

“This is recognised in our constitution as Article 9. 

“Therefore when we remove this right from L.T.C. litigants, we are breaching our obligation under the I.C.C.P.R.”

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