Former Chief Justice supports proposed Judiciary changes

Former Chief Justice, Patu Falefatu Sapolu, has expressed his support for the Government's plan to change the Constitution and reshape the judiciary by making the Land and Titles Court independent of the Supreme Court. 

Patu made his views known when he featured in a TV1 programme called "Sasa'a le Fafao" aired on Sunday and Tuesday night. 

The former Chief Justice, who is preparing to run as candidate in the upcoming General Elections, had declined to comment when the Samoa Observer had contacted him for his thoughts on the Constitutional Amendment Bill 2020, Lands and Titles Bill 2020 and the Judicature Bill 2020.

But during the TV programme, Patu delivered a historical view of the Judiciary in Samoa, insisting that since the beginning, the Land and Titles Court and the Supreme Court have always been two separate entities.

He also weighed into the debate about palagi laws versus Samoan laws as well as the issue of individual rights versus village rights. 

From his experience, Patu said every time a matter is raised in the Supreme Court involving village rights and individual rights, the rights of the Village Council often suffered what he described as a "technical knock out."

That's because the Constitution favours individual rights over communal rights, Patu said.

Looking at other proposed changes to Samoa’s judiciary, he said the new system of how matters will be trialled and handled promises to be a lot more efficient, quicker and cheaper for Samoan families.

“At the moment, you come from [Court of First Instance], then you go into the Leave to Appeal Court, you go into Supreme Court and then again to the Court of Appeal. So there are two times when the plaintiff may use a lawyer’s service,” Patu explains.

“In my opinion, this new change is cheaper as you only need a lawyer once if you’d like.”

The fewer Court proceedings also means families flying in spend less money, noted Patu.

“If there is a case, it will only be the Court of First Instance and then L.T.C. Court of Final Appeal and Review; these people will only have to fly in twice,” said Patu.

“But at the moment, they fly in for the Court of First Instance, fly in for the Leave of Appeal Court case and when the matter is under review in the Supreme Court and again when it makes it to Court of Appeal.

“It is expensive. In my opinion, not only is the new court system quicker, but it is also cheaper in comparison to the current system.”

This comes after President of the Samoa Law Society, Leiataualesa Komisi Koria claimed that the three bills will create new major legal cost increases for families.  

In the current Court system, a lawyer cannot argue matters before the Lands and Titles Court on behalf of a family unless it is referred to the Supreme Court for an appeal. 

"Under the bills, one of the key changes is that lawyers will now be able to argue matters on behalf of families before the Lands and Titles Court at First Instance. Although this is good for lawyers to create business, it’s not good for our people,” said Leiataualesa.

“Obviously this is going to create added costs to families to take matters before the Land and Titles Court. 

“If one family brings a lawyer to argue on their behalf it will create a need in the other family to get their own lawyer to argue on their behalf so they don’t feel they are at a disadvantage.”

Under the proposal, the L.T.C. would be a parallel and independent judicial structure, including its own High Court and Court of Final Appeal and Review.

The L.T.C. Court of Final Appeal and Review is established under Article 104C and has jurisdiction to hear appeals from the L.T.C. Court of First Instance and the L.T.C. High Court.

The Court of Appeal will have jurisdiction to grant the remedy sought as well as prerogative writs or an injunction.

Patu explained that unlike the current system, one may have more than one chance to appeal a decision from the L.T.C. Court of First Instance.

“Should this new change be accepted, you have two chances to appeal a decision. You may question the decision by the judge in the Court of First Instance in the L.T.C. High Court, and another chance to right of appeal to the .T.C. Court of Final Appeal and Review,” he said.

“So which one is best? Would you rather have a system which grants you two chances to file an appeal or the current system with only one [chance]?”

The proposed changes to the L.T.C. Courts may also grant the chance for a judicial review of any L.T.C. court cases, noted the former Chief Justice.

“The only time when someone is able to request a Judicial Review of an L.T.C. decision is when a fundamental right has been affected, in the Supreme Court,” he said.

“[But under the proposed changes], not only can you request to review the processes of the Court of First Instances but you may also request to review the decision of the L.T.C. High Court.

“A judicial review is something very big. Under this new bill, the door has been opened wide for anyone to request for a Judicial Review for any reason possible under this process.

“It will not be limited to fundamental rights under the Constitution. So which one is best?”

Patu also highlighted that four judges will preside over L.T.C. Judicial Reviews.

“Usually there is only one, but under the new bill, there will be four in the L.T.C. Court of Final Appeal and Review,” he said.

“The Chairman of this four maybe someone who has retired from Supreme Court, the others would be a judge from the Supreme Court, a former and retired Vice President of the LTC and a judge of the LTC High Court.

“So the question is if you have a matter you want to bring to the L.T.C. Court of Final Appeal and Review, would you rather have it overseen by only one, or would you rather have it reviewed by four judges?”

The Former CJ also provided clarification on concerns regarding the removal of the option to appeal L.T.C. decisions to the Supreme Court.

“It is not being removed. Under the condition that matters will now be in a different Court. There is still a right for Judicial Review,” said Patu.

“The only difference is, it will not be heard in the Supreme Court where there is only one judge who presides. Instead, it will be in the L.T.C. Court of Final Appeal and Review where there will be four Judges.

“The concerns say the authority for the Supreme Court to conduct Judicial Review for LTC cases will be taken away. It’s true, but it will not be taken away and left out. No, these requests will be taken into the third court of L.T.C.”

Patu also assured the general public on the bills potential effect on customary lands, saying nowhere in the three bills does he read of any chances of customary lands being affected under the proposed changes.

“I do not see in these bills any clause that may affect customary lands. There is no clause in these bills enabling the selling of customary lands of Samoa,” the Former CJ says.

“For the sake of concerns by the public, I personally testify that there is no way customary lands are being threatened under these three bills.”

The TV1 programme Sasa'a le Fafao is in its fifth week of discussing the proposed bills to the public with a guest panel each week varying from government officials to village chiefs and the Samoa Law Society.

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