Don't pass L.T.C. Bills: academic

A University of Auckland academic says three Government-sponsored bills that propose changes to the structure of the Judiciary should not be passed by the Legislative Assembly.

Fuimaono Dylan Asafo, who is a law lecturer with the university’s Faculty of Law, told the Samoa Observer in an email response that there are issues with the legislation that will go before the Parliament next month.

He said that the current court structure ensures justice is delivered to an aggrieved party but the proposed changes will have an opposite effect. 

Currently, if the Land and Titles Court [L.T.C.] errs in its decision, plaintiffs have the option of going to the Supreme Court to appeal the decision.

“A fair system follows that if the L.T.C. makes mistakes, the Supreme Court [in having more experienced and learned judges] can later correct them. However, the proposed changes seek to end this fair system by removing the ability of parties to appeal an L.T.C. decision to the Supreme Court,” Fuimaono said.

“To illustrate this unjust law with an example, say if the L.T.C. makes an unfair decision regarding a dispute between families regarding a piece of land. The decision might be unfair because the judge might have a conflict of interest [i.e. they might be related to one of the families] or they might fail to consider all the evidence properly as they should.

“Currently, the wronged family is able to go to the Supreme Court to try to explain why the L.T.C. judge was wrong and correct their mistake. But the L.T.C. Bills will make it impossible for the wronged family to seek justice, so they will just have to live with the wrong decision forever.”

The denial of justice is unacceptable, added Fuimaono who intimated that the three bills can only be motivated by the “ill intentions” of the Government.

The three bills in question include the Constitutional Amendment Bill 2020, the Land and Titles Bill 2020 and the Judicature Bill 2020.

Fuimaono said vesting the power to remove judges in a proposed Judicial Services Committee appointed by the Government – as opposed to Parliament removing judges through a two-thirds majority vote as is currently the case – will make the bench vulnerable and enable the Executive to “influence and undermine” its independence.

“To illustrate this unjust law with an example – say if Judge X is found to have accepted money from a company in Samoa to decide a dispute in their favour. Right now without these L.T.C. Bills, Parliament is able to remove Judge X in a fair and open setting for everyone to see.”

“However, the proposed changes will mean that Parliament will be unable to remove Judge X, and that the government can decide to keep Judge X on if they please. This is an unacceptable threat to democracy that can only result in biased and unfair decision making that benefits those in Government, rather than the people of Samoa.”

When asked what should be the next course of action for the Government in light of concerns by legal experts, Fuimaono said a “decent and democratic” Government would listen to experts who find flaws in their legislation.

“To put it another way, where there is smoke - and many different people calling out that there is smoke - there is fire, and most likely a very big one. One would think the Government would want to put the fire out as soon as possible, but this is not the case,” he added.

There are ways to address the concerns that the Government has about the Judiciary, according to Fuimaono, “without promoting corruption and injustice in Samoa.”

He explained that one solution is for the judges to undergo extensive training in order for them to understand and apply customary law. Or the L.T.C. judges be invited to sit with the Supreme Court justices to “guide their decision” in relation to customary law.

Another option, emphasised Fuimaono, is for pathways to be cleared for Samoan lawyers resident in Samoa – who live and breathe custom – to become judges in the higher court.

As for concerns about the delays in court proceedings and court staff shortages, Fuimaono said the Government should just provide more resources comprising people, funding and training to ensure the system becomes more efficient rather than create a separate L.T.C. system that denies citizens their human rights. 

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