Law Society hits back at "unfounded" defences of L.T.C. bills
The President of the Samoa Law Society, Leiataualesa Komisi Koria, believes two major claims in defence of the three bills in Parliament have no basis in fact.
The President of the Samoa Law Society offered the view in light of former Chief Justice Patu Falefatu Sapolu speaking up in favour of the bills last week.
During the TV1 programme Sasa’a le Fafao, Patu said the new bills – the Land and Titles Bill, the Judicature Bill and the Constitution Amendment Bill – will make court proceedings cheaper and faster for families.
And not only that, the new structure of an autonomous Land and Titles Court (L.T.C.) separate from supervision of the Supreme Court, would stop the rights of Village Councils suffering a “technical knockout,” because the new court will honour communal rights, or the faaSamoa over individual rights.
He claims this is unlike the Supreme Court which has to carry out the laws of the Constitution, which honour the fundamental rights belonging to the individual and have been the basis for contentious Supreme Court decisions overturning L.T.C. decisions under Judicial Review.
But Leiataualesa said there is no foundation for this claim, nor is there reason to use Acts of Parliament to differently define or bolster the faaSamoa.
In its own review of all relevant decisions of the L.T.C. and the Supreme Court sitting on judicial review cases, the S.L.S. could not find a basis for these claims.
“That study shows that there is no basis for the often touted claims that the faa-Samoa or pule faa-matai (often misnamed as “communal rights”) are being suppressed by fundamental human rights; and there is no foundation for the claim that these two things need to be defined, upheld or bolstered via Acts of Parliament.”
As well as Patu, Prime Minister Tuilaepa Dr. Sailele Malielegaoi has claimed the three bills will give the faaSamoa more, and much needed, recognition.
He went as far as to say the Samoan writers and architects of the Constitution did not understand what their palagi counterparts were writing into the founding document of Independent Samoa and so the bills are an attempt to right the imbalance.
But Leiataualesa said this claim is potentially misleading, especially as there has been no research or evidence found to prove this is issue exists and requires solving.
“The view that an autonomous L.T.C. will benefit Samoans is not borne out by empirical evidence, facts and statistics. Instead, these claims appear to be supported by anecdotal evidence and claims that are purely academic and therefore debatable.
“The only proper inquiry that has ever been cited as a forming the basis or justification for these bills is the Parliamentary Select Committee investigation of 2016,” he said.
“But as many people now know, the bills simply do not reflect the recommendations that were made by that Committee. The issues highlighted in that report and the resulting recommendations make no mention whatsoever of a need to increase the recognition of our culture in law.”
He said the concerns of the law society have been shared by a host of credible individuals and organisations in and out of Samoa.
The Judiciary of the Supreme Court, the District Court and the Judges of the Land and Titles Court, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Amnesty International, the Commonwealth Lawyers Association, the International Bar Association, the New Zealand Law Society, the Law Council of Australia, the Bar Council of England and Wales and several world-renowned jurists have all written publically or to the Prime Minister to express their views.
“It would be extremely dangerous and irresponsible to dismiss these concerns as being irrelevant to the current dialogue on the bills,” Leiataualesa said.
Some of those critics, including Amnesty International and the International Bar Association Institute of Human Rights have warned passage of the three bills could result in a loss of standing in the international eye and potentially exclusion from the Commonwealth.
But on TV1, Patu dismissed those fears entirely calling them “nonsense” and “hard to believe.”
With two other Commonwealth countries also having separate courts, Malaysia and Brunei, there is no reason for Samoa to lose its Commonwealth status, he argued.
The two have separate Sharia Courts which preside over Islamic law.
“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?”
Leiataualesa cautioned against comparing Samoa to either of the two nations, with well documented problems stemming from their particular dual court systems.
Between Malaysia’s two courts not actually being parallel systems as they are intended to be and Brunei’s absolute monarchy system that has not had an election since 1962 and whose Legislative Council was suspended in 1984 after which the Sultan ruled through emergency degree, the Law Society was not impressed with the association.
“These are hardly jurisdictions that Samoa should be emulating in any way. Malaysia and Brunei are not nearly as reliant on foreign aid as Samoa is, so why is this something we should risk without proper consideration, consultation and a more in-depth analysis of our realities?”
“Samoa’s membership in international organisations such as the Commonwealth and the United Nations has been raised not by SLS, but by commentators outside of our jurisdiction who have considered the bills. Again, why would we not take those seriously?
“The dismissal of these concerns by the promoters of the bills is dangerously flippant.”
The S.L.S. has five key concerns with the bills, and argues that they stem from the language used in the documents themselves, unlike the claims defenders of the legislation are making.
“The actual provisions in the bills that give rise to these concerns can be highlighted, circled and underlined on the page,” Leiataualesa said.
They are that:
The Constitutional Amendment Bill 2020 and the Judicature Bill 2020 will erode the rule of law in Samoa by undermining the independence of the judiciary from other arms of Government (namely the Executive).
The Constitutional Amendment Bill 2020 and the Judicature Bill 2020 will undermine the ‘separation of powers’, which is a lynchpin of any functioning democracy.
The Constitutional Amendment Bill 2020 and the Land and Titles Bill 2020 will remove the Constitutional protection of fundamental human rights from any person/party who has a case before the Land and Titles Court.
The Constitutional Amendment Bill 2020 and the Land and Titles Bill 2020 create a new justice system in which there are two separate and potentially competing Court structures.
The Constitutional Amendment Bill 2020 and the Land and Titles Bill 2020 give Government an increased role in the customs, traditions and affairs of Samoan villages and families and seek to legislate important parts of the Samoan culture.