Former Chief Justice claims questioned

A senior lawyer and former Attorney General, Taulapapa Brenda Heather-Latu, has "regretfully and respectfully" disagreed with claims by the former Chief Justice, Patu Falefatu Sapolu, that an autonomous Land and Titles Court will benefit Samoa.

She also questioned claims by the Government and supporters of the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020, that the proposed legislations are solely for the protection of Samoan culture and that it provides an additional right to appeal.

"These two benefits are positive but the cost at which they are being provided, in the Law Society’s view, are just  too high, too dangerous and too destructive, to the stability of our existing justice system, and the importance of protecting the Rule of Law as applying equally to all Samoans and all those living in this country," Taulapapa said.

"It is those aspects of the Bills which are the most critical and the most important to our future lives."

Taulapapa, who is Chairing a Samoa Law Society’s sub-committee reviewing the bills, says it is only when the General Election is looming that enforcement of communal rights has now taken menacing significance.

"The new benefits under the Bills (are said by the supporters)  will transform the Lands and Titles Court system, and support (and some have said strengthen) the authority of Alii and Faipule. But this is simply not true and in fact it is this one Appeal and Review Court whose powers will be strengthened and be unlimited, with  the same Court  having  Supreme Authority over Samoan customs and traditions, instead of the people who live their lives according to such traditions.

"What is carefully omitted by the supporters of the Bills,  is the simple fact that the new Appeal Court will be popped on top of the existing L.T.C. system with the exact same people, doing the exact same things and which are likely to cause even more delays than the ones people have already been experiencing over the past 20 years in simply getting a hearing date or a decision from L.T.C."

Consultation has been taken out to the village by Special Parliamentary Committee on the bills. The proposed changes were tabled in the midst of the global coronavirus pandemic and restricted measures for mass gatherings and meetings. 

One of the major changes in the Constitution amendment bill is to create a Court of Final Appeal in the L.T.C. giving the Court exclusive jurisdictions to deal with customary matters.  Those changes also means that the L.T.C. Court can interpret the Constitution that currently only the Supreme Court has the exclusive jurisdiction to do so. 

Former Chief Justice Patu says the additional Court in the L.T.C. is good because it allows Samoans to have additional rights to appeal. 

But Taulapapa disagrees.

“Another layer of Court does not actually address the specific deficiencies identified in the 2016 Parliamentary Committee findings (even though they were hampered by the prohibition on L.T.C. judges to give evidence and offer their views, and the refusal of the Attorney General to assist them citing a conflict of interest).”

The report form the Parliamentary Committee in 2016 cited issues of delays in having cases heard, delays in receiving decisions with some parties waiting up to 30 years.  It also identified the lack of confidence in the independence, competence and integrity of the L.T.C. staff and judges. 

The former Attorney General reminded that all of the issues are simply not addressed in any of the bills being debated. 

“Yet their recommendations (which have not been implemented) were to properly resource L.T.C., recognising the volume of cases and to strengthen the training of the lay L.T.C. judges as a means to improve their [work] and the Courts performance,” she said. 

Taulapapa says what is addressed in the bills and is considered abhorrent by local and international legal fraternity and jurists, is the “attack on the independence of the Judges” which is “artfully ignored by supportive commentators”. 

“[The attack on] The independence of the judiciary in the way they are appointed and removed which has been made more exposed to political interference under the Bills, which those who work in the law can see as a threat to the stability of the justice system and the strength of the Rule of law to limit the powers of a strong Executive and a Parliament ‘muted’ by their obligations to a Political Party rather than the best interests of the people who voted for them.”

Furthermore, Taulapapa also pointed out the attack on the removal of access to the Supreme Court by all L.T.C. litigants to protect their existing human rights guaranteed under a Constitution. 

The Constitution, she says, that was agreed by leaders of Samoa in the 1950s/1960s “who will be wholly reliant on the new appeal Court to decide their land and titles matter sitting above a L.T.C. system already declared inadequate by 2016Committee”. 

“…And without the Constitution to limit and test its boundaries and without the independent and supervisory role of the current superior Supreme Court which under the Bills will have its powers and authority downgraded.” 

The former A.G. says the proposed changes weakens fundamental pillar of the democratic government: the Executive, Legislative and Judiciary.

She says under the three bills the branches will “no longer [be] effective in limiting the role and responsibility of the other [pillar] particularly when the Executive can impose its will on the Judicial branch by controlling who is appointed and who can be removed."

“The classic path to tyranny and the growth of authoritarianism when dissent and opposition is prohibited and discouraged and all are required to tow the ‘party line’ – it is the Constitution and its protection of the human rights to enjoy and have protected the freedom; of movement, association, speech, and thought; right to life; freedom from inhumane treatment or forced labour; freedom from discriminatory legislation all which are there to safeguard human freedom and dignity and which limit the coercive power of Government…” 

Taulapapa also dismissed the comparison of the proposed changes to that of Malaysia’s judiciary system. 

She says that the dual but not fully defined Court structure in the bills in an “ethnically homogenous country like Samoa” is not like Malaysia that is multi-cultural and multi-ethnic. 

She says Malaysia by virtue of its 40,000 year old history is predominantly Muslim and in that context has a dual Court system which applies Shariah law for family, religious matters alongside the Civil Courts.

However, the differences she says, is that Malaysia still has one “Highest Court - the Federal Court of Malaysia, unlike the two headed Court created by the Bills”.

Patu had recently used the example of the Court system in Malaysia to compare to the proposed changes in L.T.C. that it can run in parallel to the main judiciary system. 

He also says similarly with Brunei, there are two parallel justice systems, the Common law system presided over by the Supreme Court and the Islamic system presided by Sharia Courts. 

He says should the bills be passed Samoa will not be the only country with two separate Courts and therefore has no risk on the country’s membership in the Commonwealth. 

“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,” says Patu. 

Taulapapa also says the uncertainty created by the extension of L.T.C jurisdiction over any aspects of Samoa customs in any context is ambiguous and will create considerable uncertainty in the Courts. 

The jurisdiction extension of the L.T.C. Courts on Samoan customs and traditions, she says, can potentially include business and commercial matters. 

The Former A.G. also addressed issues on communal rights raised by Patu and the Government. 

Patu says that the bills is to recognise the authority and decisions of the village council in the Constitution that often suffers technical knock-out when its up against individual rights. 

Taulapapa disagrees with the argument that village fono are being overwhelmed by claims of fundamental rights over village decisions. 

Instead, she says, those village decisions “protects a strategy often used to force electors in a village to only vote for the one candidate decided by the Fono and not anyone else”. 

“…And then is used to fine and banish those they believe voted for someone else. 

“The right to vote for all those over 21 years brought the right to freely choose who to vote for and it is often when a general election is looming that the enforcement of communal rights takes on great and menacing significance.”

In addition, she says, as the country looks forward to the general election in April whether those communal rights are a proper use of collective power is another issue not addressed by the Bills.

“Development has brought change and the recording of village By Laws and Rules,” says Taulapapa. 

“That project which has brought clarity into the Fono process include the requirement that before they decide on someone’s fate, that person needs to have the opportunity to speak and explain their side.

“These changes to the Village Fono Act have been intended to make their decision making process fairer and also recognise the interests of people who may be punished by the village.”

According to the former A.G. these changes recognise the right of people to have a fair trial and should produce fairer and more consistent decisions. 

She says this is drawn from the right to a fair trial in the Constitution. 

Claims that the amendment does not remove individual rights but recognises both rights including communal rights is nonsense says Taulapapa. 

“The removal of peoples access to remedies in the Supreme Court to protect the rights under the Constitution which they have enjoyed since 1 January 1962 in section 2 of the Constitutional Amendment Bill 2019 makes that claim a nonsense,” she argues.

She says that human rights are not merely foreign ideals but “they have their roots within Samoan culture” as stated in the State of the Human Rights Report for Samoa 2015. 

“Both rights have existed together since Independence Day 1962 and need to in any country where human rights are valued and upheld,” she says.

Taulapapa says Samoa is no longer an isolated island.

“Before Covid 19 we travelled freely (and for most public officials frequently) and so we are part of a global community and as such there exist accepted core values about how we treat and deal with each other which in the past valued and upheld respect, politeness, kindness and grace. 

“Samoa adopted those human norms and standards of behavior when we incorporated aspects of the Universal Declaration of Human Rights in our draft Constitution in 1959 and the leaders then referred to the limitations on liberty during the Mau under N.Z. rule as one of the reasons why it was so important to include these rights and freedoms for the new and independent Samoa. 

“If anything we need the protection of those rights more than ever, and the wisdom and foresight and grace of those great and mighty men have created the foundation for the peace and stability which we have enjoyed in our land for these past 58 years.” 

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