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Pacific lawyers' court interference warning

Multiple Pacific legal associations have made their opposition known to the proposed changes to Samoa's judiciary and the Land and Titles Court (L.T.C.).

The South Pacific Lawyers' Association (S.P.L.A.), LAWASIA and the Commonwealth Lawyers Association (C.L.A.) have now condemned three bills before Parliament aiming to drastically change Samoa's judicial system and create an independent L.T.C. as a "grave threat" to judicial independence.

The S.P.L.A. represents the views of 17 different legal associations across Pacific nations. 

The three bills in question are Constitution Amendment Bill 2020, the Judicature Bill 2020, and the Lands and Titles Bill 2020.

Should the bills be approved the Executive arm of Government would gain the power to remove a Judge via a committee it appoints.

Speaking to the Samoa Observer on Friday, Gordon Hughes, the S.P.L.A. President said their primary concern is that judicial independence will be undermined if the Judicial Services Commission, rather than the Parliament, has the authority to dismiss judges.

"A judge’s tenure should never be subject to political or populist pressure," he said.

"It is fundamental to the rule of law that judges are able to act independently of political interference.  They must not be compromised by the prospect of dismissal in the event, for example, that they make rulings adverse to the interests of the Government.

"The Pacific-wide lawyers association said this level of independence cannot be maintained if the power of dismissal rests with a commission whose members are appointed by the Executive."

Similar concerns were shared by LAWASIA (The Law Association for Asia and the Pacific).

"LAWASIA is concerned that the substitution of the non-partisan Parliamentary process, with a system that is wholly controlled by the Executive, [...] will diminish the security of tenure that judges currently enjoy," the Association said in a statement.

The Association said the exposure of the salaries of Supreme Court Judges to arbitrary reduction by the Executive will limit the judges' ability to act impartially in court,  particularly in determining disputes concerning the Executive.

"Judges should not be penalised or be held to ransom for discharging their duties without fear or favour, and any attempt to deprive Judges of their hitherto constitutionally protected salaries should be rejected," the statement continues.

"The independence of the judiciary is a key principle of the rule of law."

The three bills aim to establish a separate and parallel Land and Titles Court – the rulings of which will not be subject to review by or appeal to the Supreme Court but rather their own courts of appeal. 

The group emphasised that splitting up the judiciary in two will give rise to competing claims, conflicting decisions and uncertainty in the law.

"This will cause a serious erosion of the rule of law in Samoa," reads the LAWASIA statement.

The scrutiny by the regional legal associations comes after the New Zealand Law Society (N.Z.L.S.) issued a statement criticising plans to reform the L.T.C., expressing concerns that the changes will negatively affect the rule of law in Samoa, a matter of extreme interest to New Zealand which deals with Samoa frequently. 

The statement received a backlash from the Prime Minister, Tuilaepa Dr. Sailele Malielegaoi who said the N.Z.L.S. has “no place […] to try to lecture us or interfere with our country’s democratic processes.” 

Public consultation on the bills by the Select Committee began after the bill's second reading before Parliament. The committee has undertaken to consult with villages for a period of 90 days. 

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