Govt. standing firm on L.T.C. reform
Despite warnings from local and international jurists about the dangers of amending the Constitution and reconfiguring the court system, the Samoan Government yesterday showed its full support for the measures.
The objective of the proposed legislation is to create an autonomous Land and Titles Court (L.T.C.) which would not make its decisions reviewable by the Supreme Court.
A comprehensive statement issued by the Government's two most powerful legal bodies on Friday, the Attorney General’s Office and the Samoa Law Reform Commission, defended the reforms in the strongest possible terms.
“The Court with specialist and exclusive jurisdiction to hear and determine matters particular to Samoans and the Samoan context, inclusive of ‘tū ma aga’ (customs) of Samoan families, villages, the Alii and Faipule governance and the communal context of Samoa," the statement said.
A Select Committee is currently soliciting public opinion on the three bills that would enable the change: Constitution Amendment Bill 2020; Land and Titles Bill 2020 and the Judicature Bill 2020 is to re-establish the autonomy of the Land and Titles Court. The bills are at the second reading stage before Parliament.
But despite reports from Parliament's Legislative Clerk that the bills had received negative feedback in Savai'i, the submission from the Government's peak legal bodies makes no concessions to critics of the bill.
The statement says that currently, although the Preamble of the Constitution says Samoa is founded on God, and on ‘tū ma aga’ faa Samoa (culture and traditions), the Constitution has very limited references to the Samoan context; only some eight out of 124 Articles of the Constitution make reference to Samoan matters.
“The incorporation of the Land and Titles Court into the Constitution continues its autonomy as it was traditionally, where decisions of the Land and Titles Court are final and cannot be reviewed by any other Court due to its specialist jurisdiction,” the submission says.
“The judicial review of Land and Titles Court decisions that affect constitutional rights are currently heard before the Supreme Court. It is proposed that these judicial review matters be heard before the proposed Land and Titles Court of Appeal and Review.”
The statement points to the pool from which judges can be drawn from includes a retired Samoan Supreme Court Judge; a current Samoan Supreme Court Judge; a retired Vice President of the Land and Titles Court; and a Samoan person eligible to be appointed a Supreme Court Judge.
“The opportunity to enforce constitutional rights against a decision of the Land and Titles Court is therefore not removed under these reforms, but rather, shifted, from the Supreme Court, to the proposed new tier in the LTC structure, the Land and Titles Court of Appeal and Review,” the statement argues.
“There is nothing in these reforms that affect the Fundamental Rights embedded in Part II of the Constitution of Samoa.
“For the L.T.C. Bill 2020 this is a replica of the Land and Titles Bill 2019.
“It also repeats the bulk of Land and Titles Act 1981 provisions. This Bill supports and provides the details for the LTC structure proposed to be placed in the Constitution of Samoa. The new provisions outside of the 1981 Act provide the details for the proposed new 3rd tier, the Land and Titles Court Final Court of Appeal and Review (L.T.C.A.R.).”
The L.T.C.A.R. sits for judicial review of L.T.C. cases and offers a second chance of appeal to decisions.
But by creating an independent branch of the judicial system several eminent jurists such as former Australian High Court Judge Michael Kirby and the United Nations Human Rights Commission have said that Samoa risks undermining the rule of law.
But the joint statement argues otherwise. It says that the bills will have the effect of updating Samoa’s legal foundations.
“This is an opportunity to remove duplications and [...] revise this law to bring it into the current (modern) context of Samoa’s laws,” the statement said.