It might be a foregone conclusion that the Government’s proposed Judicial reforms – through three contentious bills that are currently before the Parliament – will be passed after the third reading in August this year. 

The absence of an Opposition bench in the Parliament over the years, and the domineering of the Human Rights Protection Party (HRRP) over Samoa’s political landscape over the last two decades, has cleared the path for Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi to push ahead with the reforms despite heightened concerns by local and international legal and political experts.

In a thriving democracy, a Westminster system of government ensures that the Executive is responsible and accountable to the Parliament.But those checks and balances in Parliament to keep the Government accountable are absent in Samoa. 

This vacuum in accountability and transparency at the Legislature explains why the Ministry of Justice and Courts Administration was not taken to task for not undertaking public consultation on the three Bills, prior to their tabling in Parliament, and the bypassing of several stages of a 17-stage drafting process for all Acts of Parliament as the Government hastily tabled the draft legislation.

In a democracy, as our forefathers envisioned over 58 years ago, any amendments to the Constitution will be dealt with carefully, be subject to an exhaustive public consultation process, and undergo rigorous debate and examination in the Parliament before a vote is taken. It would be normal for bills not to go beyond the first reading, for failing to meet the aspirations of the people, whose interests and welfare the Parliament should be representing as elected public officials.

Today – close to three months after the Constitutional Amendment Bill 2020, the Land and Titles Bill 2020 and the Judicature Bill 2020 were first tabled in the Parliament – their viability and long-term impact on citizens and the rule of law in Samoa now rests with the Prime Minister.

It would be morally wrong for Tuilaepa, as the leader of the H.R.P.P. and the Head of the Government caucus in the Parliament, to force Members of Parliament to tow the party line and not vote on conscience.

Despite the Prime Minister’s defense of the three Bills in the last three months, he cannot deny that the legislation bypassed proper scrutiny in line with our parliamentary processes, and only sanctioned the engagement of the Special Parliamentary Committee following widespread criticism.

To restore the integrity of this term of Parliament, it is only fair that all Members of Parliament be allowed to vote on conscience, and in line with the wishes of their constituencies who gave them the mandate.

Senior lawyer and former Attorney General, Taulapapa Brenda Heather–Latu, recently raised concerns about the gagging of Members of Parliament from expressing their constituency’s voice in the Legislative Assembly.

And the option of voting on conscience was also raised this week by the leader of the Tautua Samoa Party, Afualo Luagalau Dr. Salele, who called on the Prime Minister to allow Members of Parliament to go down that path.

“We believe that while all this fuss is made, the decision has already been made by Tuilaepa,” he told the Samoa Observer. “This is just for the sake of formalities but the decision has been made so it’s a waste of taxpayers’ money for the Parliamentary Committee going out to fulfil the obligation of [consultation], but the decision had already been made.

“So if Tuilaepa and his administration are really true to their word, then they should be able to call a conscience vote.”

At the end of the day the custodians of the law in Samoa – the Supreme Court Judges supported by the Samoa Law Society and international legal experts and jurisprudence institutions – have in recent months publicly warned of a future that awaits this nation if the Bills are passed.

Surely, our Members of Parliament would not want to leave a legacy behind for a society, which would be bereft of freedoms and rights that we enjoy today.

The debate on the L.T.C. Bills compels us to be reminded of a quote by 18th-century Irish philosopher Edmund Burke: “Liberty does not exist in the absence of morality.”

That is we should be cautious of those who say new laws can guarantee newfound freedoms, as changing laws without applying a moral compass can only lead to the weakening of our basic freedoms.