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Former C.J. dismisses Commonwealth exit fears

The former Chief Justice, Patu Tiava’asue Falefatu Sapolu, has rejected as “nonsense” that Samoa may risk its membership of the Commonwealth by passing bills designed to create an independent Land and Titles Court (L.T.C.).

Patu further denied claims by critics that the bills, which would amend Samoa’s constitution and create a self-sustained L.T.C., would undermine the rule of law in the country and the judiciary’s independence. 

During a TV1 programme, Sasa’a le Fafao, aired earlier this week, Patu said such claims were “hard to believe.”

The Commonwealth is an international political alliance of 54 member states, making it the world's second-largest intergovernmental body behind the United Nations. 

Samoa has been a member since 1970.

The proposed changes, currently in their second reading before Parliament, include the Constitution Amendment Bill 2020, which supports two other bills, the Lands and Titles Court Bill 2020 and Judicature Bill 2020.

If passed the bills would create an autonomous and independent L.T.C. 

The International Bar Association’s Human Rights Institute (I.B.A.H.R.I.), led by co-chairs Michael Kirby and Anne Ramberg, warned that the creation of a new branch of Government could violate the principles of the Commonwealth and leave Samoa facing expulsion. 

The United Nations’ Human Rights Committee’s Special Rapporteur on the Independence of Judges and Lawyers noted that the changes would give the Executive the power to change judges salaries, potentially compromising their independence and violating Commonwealth guidelines. 

But Patu noted that should the bills be passed, Samoa would not be the only country with two separate courts.

He noted both Malaysia and Brunei have separate courts and have retained their membership of the Commonwealth. 

In Malaysia an Islamic or Sharia court runs in parallel to the main judicial system and mete out punishments for crimes against Islam. 

In Brunei, there are two parallel justice systems: the common law system, presided over by the Supreme Court; and the Islamic system, presided over by the Sharia Courts.

“These two countries are members of the Commonwealth and yet they say, what a pity, Samoa may be at risk of being ousted due to them having a separate court system from civil and criminal courts,” he said.

“These countries have separate court systems due to their religion. For us, the reason why we may have two separate courts is due to our culture, our matai system. But it is the same principle.

“If the Commonwealth is not banishing Malaysia and Brunei, how would they banish Samoa?”

The open letter by the I.B.A.H.R.I. states that the passage of the bill would threaten judicial independence and also set a “dangerous and undesirable precedent”.

Tuilaepa was reminded that as Samoa is a member of the Commonwealth, it must adhere to that body’s charter which includes commitments to guaranteeing the separation of powers and to upholding the rule of law.

The three bills are currently the subject of a Special Committee of Inquiry being conducted by the Parliament and travelling around the country.

Patu added that countries that are dismissed from the Commonwealth are due to democratically-elected governments being overthrown by military coup.

Such countries include Fiji, Nigeria and Pakistan, he said.

“Because of that, these are the countries that were ousted from the Commonwealth. But Samoa is nowhere near that situation,” the former Chief Justice said.

“And in front of me are guidelines and procedures that need to be undergone before a country is dismissed from within the Commonwealth. It isn’t something easy.

“No, there are procedures to be taken and such things have not started.”

Opposition Party Leader, Luagalau Dr. Afualo Salele, from Tautua Samoa, said the proposed changes were not worth the international ramifications Samoa would face if they were to be passed: “Are these [proposed] constitutional amendments worth jeopardising Samoa’s membership with Commonwealth?”

The same concerns were shared by the Former Head of State, Tui Atua Tamasese Efi, who said Samoa might end up being dismissed from the Commonwealth like Fiji should these three bills be passed.

In response the Prime Minister, Tuilaepa Dr. Sailele Malielegaoi said the comparison of Samoa to Fiji is “as far east is from west”.

“What happened in Fiji is the [Government was] overthrow by the army, with guns chasing away the Government while they come and rule the country,” Tuilaepa said.

“That’s the difference between Fiji and Samoa, we have no army. And this is how I know how weak his thoughts are; no such thing is happening in Samoa as the Alii and Faipule system is still very much intact.

“I feel that such a claim is only to try and validate his points.”

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