Judges of Supreme and District Court present submission

Judges of the Supreme and District Court have presented a submission to the Special Parliamentary Committee in relation to proposed changes to reshape Samoa's judiciary.

Former Acting Chief Justice, Vui Clarence Nelson, confirmed this but did not want to comment when he was approached on further information about their submission. 

He also declined to comment on the decision by the former Chief Justice, Patu Falefatu Sapolu, to publicly declare his support for the planned changes to establish a parallel and judicial structure for Land and Titles Court. 

“We made our submission to the Committee,” said Justice Vui when he was asked if he agrees with the views of former Chief Justice Patu. 

President of Samoa Law Society, Leiataualesa Komisi Koria, has also been queried on claims made by the former Chief Justice.

There was no response from Leiataualesa by press time. 

Patu had recently revealed his support for the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020.  

During the TV1 programme Toe Sasa’a le Fafao, Patu spoke about debates of the palagi laws versus the Samoa laws and individual rights versus communal or village fono rights. 

He said the new system of how matters will be dealt with promises to be a lot more efficient, quicker and cheaper for Samoan families.

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,” he said. 

“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 L.T.C. Court of Final Appeal and Review.

“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, said 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.”

Patu also said that the proposed change will be cost effective where you can only use the service of a lawyer once instead of the current system where you pay for lawyers twice in the Supreme Court and then in the Court of Appeal. 

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

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.

In April, a “collective view” from the judiciary penned in a letter to the Samoa Law Reform Commission, Teleiai Dr. Lalotoa Mulitalo expressing grave concerns about the risks of proposed changes. 

The letter was signed by then Acting Chief Justice, Vui Clarence Nelson, Senior Justice Niava Mata Tuatagaloa, Justice Tafaoimalo Leilani Tuala-Warren, Justice Leiataualesa Daryl Clarke, Justice Fepulea'i Ameperosa Roma, Senior Judge Talasa Atoa-Saaga, Judge Alalatoa Rosella Papalii, Judge Leota Ray Schuster and Judge Loau Donald Kerslake.

The juries said the amendments are premised on the very wrong and erroneous assumption that the Courts of General Jurisdiction; the Supreme Court and Court of Appeal somehow “control and interfere” with decisions of L.T.C. 

However, the Judges pointed out that even L.T.C. must obey the Constitution. 

“And if in the exercise of their functions to interpret uphold and apply our customs and traditions, and because their Judges are not legally trained and are not legal or Constitutional experts, they infringe the Constitution – for example as to a person’s right to be heard in matters affecting his matai title or matai rights or customary land, then the Courts of General Jurisdiction must intervene and correct any resulting injustice.

“These courts do not do this of their own motion, they only intervene on the application of an aggrieved party or parties from the Land & Titles Court proceeding.”

The Judges argue that if some injustice has been done, they return it to the Land and Titles Court to rehear it. 

“Again, this is recognition of the supremacy by law of the Land and Titles Courts on matters of customary land and titles,” the letter stated.

“It is misleading and inaccurate to promote these amendments as being to set up an “Independent Land and Titles Court”.

In matter of tu ma le aganu’u fa’a-Samoa, the Land and Titles Courts are already and have always been independent.”

In addition, the Judges stressed the importance of a unified Court system with one judiciary recognizing two separate streams of a single system. 

“The establishment of a separate Judicial Service Commission is unnecessary duplication and will serve only to split the Judiciary. 

“The President of the Land and Titles Court is presently a member of the Judicial Service Commission as is the Chief Justice and their representation on that single Commission has proven over the last twelve months to be very effective and satisfactorily addresses the needs of both Court structures. 

“The President has not raised any concerns or problems over this arrangement. What is not broken does not require fixing.”

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