Village worried by bills' impact on the courts
The strong influence of the executive on the courts is one concern driving the village council of Gautavai Savaii’s opposition to three bills proposing a reshaping of the Land and Titles Court [L.T.C.].
In their submission to a Special Parliamentary Committee into the three bills - wrapping up its consultations in Savai’i - the villagers accused the Government of trying to overrule other branches of power.
Gautavai village council says the proposed changes indicate an intention from the executive arm to encroach on the courts and to erode their independence which is guaranteed under the Constitution.
“It appears these changes show the executive arm will have a lot of influence over the Government branches trinity by ruling and dictating its three branches of Government,” the village council’s submission said.
“This is not a good sign as we have witnessed this happening to other countries where there is no peace and harmony amongst people and giving rise to conflict between families and villages.
“The truth is the changes are rushed and the question is why.”
To support their submission on the influence from the executive over the judiciary, the village council of Gautavai made reference to the appointment and removal of the Chief Justice and Supreme Court Judges.
The Chief Justice is appointed by the Head of State on the advice of the Prime Minister as stipulated under the Constitution.
The removal of the Chief Justice or a Judge of the Supreme Court may only result from a vote of more than two-thirds of Members of Parliament.
“It appears from these sections that the Prime Minister – from the executive makes the appointment of the Chief Justice and when removed the Parliament makes the decision,” the village council argued.
“This is an example of the inconsistency in terms of decisions made by the Government and it can create doubt over the appointment or removal because of the different branch of government that makes the decisions.
“The usual practice is whoever makes the appointment also terminates the service of the appointee and that is the way it should be.”
The village council says it is their recommendation that the two arms of Government should each contribute to the decision of the appointment of the Chief Justice.
“Should this be amended, the Parliament should appoint the Chief Justice on the advice of the Prime Minister and signed by the Head of State,” said the village.
“This will avoid misusing the name of the Head of States in these kinds of appointments.”
In addition, the village raises concerns over the contradictory role played by the Judicial Service Commission [J.S.C.] under the reforms.
They cite the example of the Chairman of the Public Service Commission [P.S.C.] being a member of J.S.C.
The village says the P.S.C. Chairman is responsible for all public servants and their affiliation with the J.S.C. could possibly have an impact on public servants appearing before the courts for cases.
“There is a big contradiction of [their] role in the P.S.C. and role in the [J.S.C.] Commission.
“The additional duties for the Chairperson of P.S.C. means more work for him while neglecting what he was appointed to do as the Chairman of P.S.C.
“The P.S.C. Chairman should be independent and should not be involved in any Commission or Committee outside of his role.”
The village believes that the seat occupied by the P.S.C. Chairperson and another member appointed by the Minister on the J.S.C. should be replaced with a member from the Samoa Law Society and a public representative.
The submission also suggested that the Legislative Assembly should decide on the appointment of those appointed to the J.S.C. because of the important role they play.
The three bills before the committee include the Constitution Amendment Bill 2020, the Land and Titles Court Bill 2020 and Judicature Bill 2020. In their second reading stage of Parliament, together they seek to overhaul the judiciary system and recognise communal rights under the Constitution.
Amendments would make the L.T.C. independent and have special jurisdiction and supreme authority over subjects relating to Samoan customs and usages. Its decisions would not be subject to judicial review or oversight by the Supreme Court.
However, the village of Gautavai disputes the supreme authority given to the L.T.C. to interpret Samoan customs and usages, saying it will be a major challenge.
It is the village's belief that different villages have different customs and cultural practices and it will cause a lot of confusion amongst individuals and village councils.
“This can be misleading for the village council especially when those leading the village changes over time,” says the village of Gautavai.
“The law also does not make clear of the authority of the Village Fono Act and its boundary once the proposed changes are implemented.”
The Constitution Amendment Bill seeks to establish a Land and Titles Court of Appeal and Review Chaired by a retired Samoan Supreme Court Judge, a retired Vice President of L.T.C. and another person eligible to be appointed as Supreme Court Judge.
But the village of Gautavai claims that the proposed structure will only create a backlog of cases in the Court as opposed to the current situation at Mulinuu.
“Not only this, the changes will be expensive and time-consuming,” the village argues.
“The only benefit is the families and villages will think twice about resolving their internal disputes to avoid going to the Court because it will cause more conflict once the changes are passed.”
The village council added the new structure would create nine steps until a matter reaches the Court of Final Appeal. They say it will take a long time until families and villages can receive the final decision in a case.
The removal of mediators from the proposed changes was also questioned by the village, which argued they provided sound advice in case of court disputes.
The village of Gautavai also objected to the removal of reference to the centuries-old body of common law when guiding the court’s decisions.
“The removal of the use of reference to the common law of England to help the court in its decision making shows the foolishness of those that advise to remove it,” says the village.
The village pointed out that decisions passed down by the village council are based on ancient events and important messages of how that decision was reached:
“The removal of this crucial part will only make it difficult for the Court to pass down decisions when there are limited references they can refer to – to arrive at a decision, and the truth is the decisions delivered will be incomplete.”
In opposing the bills, the village council also disagrees with the requirement of the minimum age of 21 for a person before they can be bestowed with a matai title.
According to Gautaivai, 21 is too young and the recipient of the title should have served their village and church for more years to show that they are qualified to carry a title.
A proposed limitation on the number of matai titles registered to five was also opposed by the village, saying there are no good reasons to support the proposed limits.
Lastly, Gautavai advised the Parliamentary Committee to consider their submission to ensure proper and appropriate changes are implemented.
“The advice from the village is the decisions from the committee based on the consultations will be remembered by the country in the future especially if you consider our recommendations,” the submission states.
Gautavai and the Gataivai of Palauli I Falefa constituency have maintained their opposition to the proposed changes.
The M.P. for Palauli I Falefa, Faumuina Tiatia Liuga, has decided to support the bills despite the objection from several villages in the constituency.
Faumuina said he has supported the bills because he knows it is for the good of the country and his constituency may not know it now but will realise in future the benefits of the proposed changes.