Govt's Constitution claim disputed
The Samoa Law Society has objected to claims by the Government that there are limited provisions in the Constitution to protect Samoan customs and usage.
The Government makes the point in a handout they distribute to villagers prior to their appearance before a Special Parliamentary Committee tasked to consult members of the public about the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020. The Committee met more than fifty villages in Savai'i before they moved to Upolu last week.
The Samoa Observer obtained a copy of the handout being given to the villages, which outlines the Government's selling points for the three bills.
Among the points being raised include the claim that only seven per cent of the Constitution covers customs and traditional practises. The handout points to only eight of 124 provisions in the Constitution. It claims that the rest of the Constitution talks about other matters.
But the President of the Samoa Law Society (S.L.S.), Leiataualesa Komisi Koria, said the claim is unfair and doesn’t give the ordinary person an understanding of what is actually in the law. He reaffirmed that from the seven per cent provision highlighted by the Committee, the Articles are short but are the most powerful sections in the Supreme Law.
“You can’t just say there are only seven per cent provisions in the Constitution that reference Samoan culture in it and it’s a problem,” he said.
Leiataualesa said the effect of the seven per cent provisions has to be explained further and it’s important as it talks about the core of Samoan identity or fa’aasinomaga. Those identity is defined by customary lands and matai titles that are being protected in the Constitution, he said.
“People are saying it’s not enough because there is only seven per cent that talks about Samoan identity, but I can say even with seven per cent there is enough protection,” said the President.
“If you look at Article 100 of the Constitution it talks about matai title can only be held in accordance with Samoan customs and usages which means you can’t take away matai title from someone or give or change unless its in accordance with our culture.
“The Constitution, which is palagi law according to parliament, says that you can only deal with matai title in accordance with our culture.
“Is that not protecting our matai title to say that no laws can change our matai title and it can only be dealt with in accordance with what our village and families say you can do with it.”
Article 100 is only two and a half line in the Constitution and Leitaualesa said it is also the few of some powerful lines in the Supreme Law.
He also made reference to Article 101 and 102 that says when dealing with customary land it is in accordance to customs and usage.
“Again our Supreme Law which can only be changed with two third majority in parliament, it says we can’t make another law to change the way we deal with our customary land, only in accordance to our customs and usage,” he explained.
“And our village people, our families our community makes those customs and usage, we don’t need to come to parliament to change the way we deal with our customary land.
“Again, 101 and 102 are just two short paragraphs in the Constitution but it’s powerful and it takes away the power from parliament and Cabinet and leave that power to deal with customary land and titles in the hands of our people.”
About Article 102 that deals with how you can alienate customary lands, Leiataualesa said the Constitution says it is forbidden to be sold and can only be leased.
He said the entrenchment protection that is specifically provided for under the Constitution for customary lands makes it clear that even a two third majority in parliament cannot change it.
“If you want to change this Article with alienation of land you have to have vote of all of Samoans to change it,” said the President.
“This is part of that seven per cent that the committee says it’s not enough but the Samoa Law Society is saying that this entrenchment that exists for this provision is enough and more protection than the whole of the Constitution for our customs and practices.”
Leiataualesa was disappointed that these crucial Articles in the Constitution are not being relayed to villagers going to consultations.
“They’re just being told that seven per cent is not enough, which means that our forefathers only cared seven per cent about our land and matai titles,” he said.
“When in fact if you look at the words in that percentage in our view is more than enough to protect our culture…”
Article 103 in the Constitution also stipulates there shall be a Land and Titles Court that has jurisdiction relating to customary land and matai when disputes arise.
In reference to the current Land and Titles Court established since 1981, Leiataualesa said the Court structure is in place to deal with customs disputes and it’s another form of protection for Samoan customs.
He argued that respectfully they have concerns about the new L.T.C. Bill 2020 that will now replace the L.T.C. 1981 Act proposed by parliament.
Looking back at the beginning of issues raised by the L.T.C. in a Commission of Inquiry in 2016, Leiataualesa said it identified internal inconsistency that should be rectified and revisited.
Those recommendations that provided for that Commission f Inquiry still haven’t been implemented,” he said.
“The caution from Samoa Law Society is before we go change the law and change whole new structure under new bill, what we should be doing first is reviewing recommendation and seeing whether we have implemented it effectively enough.
“We may have already have good structure in place, but we need to resource the court better, put more qualify people there and provide with training so they can provide better service to people of Samoa.”
The President emphasised that was the only criticism of the Court and its not because there were not enough appeals and protection of individual rights.
“The only thing that came out [of C.O.I.] is the quality of decision was not good enough,” he said.
“The Samoa Law Society has always been saying this is not the way to fix the Land and Titles Court by changing the act and completely changing the Court structure.
“What we need to do is resource the Court better and training for judges, registrar, and implement all recommendations and identified those haven’t been done.”
Following the 2016 Commission of Inquiry into the works of the Land and Titles Court, the parliamentary committee made several recommendations to parliament that are yet to be enforced.
Three years after the report was tabled in parliament, the Ministry of Justice Courts and Administration tabled a Land and Titles Court Bill 2019
In that proposed legislation, it seeks to create a Court of Appeal to be named Court of Final Appeal and takes into consideration recommendations from the Inquiry.
According to the bills explanatory memorandum, the L.T.C. Bill 2019 seeks to consider rules and procedures of the L.T.C. that discourages adjournments of cases in the Court.
However, in April this year, the L.T.C. Bill 2019 was withdrawn by the Minister of Justice, Faaolesa Katopau Ainuu and replaced with the three controversial bills.
The Clerk of the Legislative Assembly, Tiatia Graeme Tualaulelei had previously confirmed that there was no public consultation before the L.T.C. Bill 2019 was tabled in parliament.
Tiatia said the 2016 L.T.C. Inquiry into the work of L.T.C. was unable to carry out the public consultation process due to request from the Attorney General’s Office.
“There was a notice for people to come and make submissions [at the time] on the Land and Titles Court Inquiry report [dated 2016],” he said in a previous interview.
“The Committee did not continue its public consultation work to go out in the community because the Attorney General’s Office had informed us that there are new bills that will replace that bill [L.T.C. 2019].
“It is still in the consultation stage where all the witnesses [from 2016 L.T.C. Inquiry] will give evidence again as there are difference in the initial bill [L.T.C. 2019] from what is being tabled.”
Prime Minister, Tuliaepa Dr. Sailele Malielegaoi has previously claimed that there have been consultations in the past referring to the L.T.C. Commission of Inquiry.
He added that the bills are only proposed legislations and there is a second consultation being undertaken for people to attend and raise their concerns about the three bills.
However, Leiataualesa said if it wasn’t for the concerns raised by the legal fraternity, international bodies including the public the parliament would not have “reacted” with the current consultation.
He said the problem with the Committee’s reaction to the situation is it creates a lot of opportunities for mistakes to be made and things to be rushed.
“Things are not done properly so we can achieve the purpose of getting good laws based on the needs identified by our people,” he said.
“What is happening now and obvious to me, is that the Select Committee’s function now is to make it simply look like they got the support of people before its back to third reading in parliament.
“It’s absolutely impossible for anyone to go in there for an hour and a half to form a proper understanding of the three bills.”
Having carried out public consultation on previous legislations, the President said it was not practical to consult a group of people on three bills for less than two hours or even a day.
He pointed out that for one legislation, it would take half a day to explain it and people are then given time to think about it before they can return with feedback.
“What’s happening to the select committee and the scheduling of consultation of 1 ½ hour for villages, they simply asked whether they support it or not after that,” he said.
“It’s impossible, you are dealing with three bills and one of the bills is to amend the Constitution.
“This process is just a pretend process to make it look as though the bill has the support of the people…”
He also criticised the limited materials being presented to people appearing before the Committee saying the handout only represents 5 per cent of what people should know.
Looking at the materials, Leiataualesa said he is absolutely disappointed with the way the information is being framed.
“It’s one sided, its superficial and it doesn’t provide anywhere near the coverage of bills that people deserve,” he said.
“It’s unfair to expect people to have a view on this based on the work done by the Select Committee.
Lastly, Leiataualesa noted that there are several other major concerns raised by the society considered far more important than what was presented in the consultation.
He said none of the materials being distributed talks about the removal of human rights for people going before L.T.C.
“It also doesn’t talk about practical problems that will arise if you have two separate structure, the Land and Titles Court and the ordinary Court [Criminal and Civil],” he stated.
“It does not discuss what will happen when those two structure make decisions that is conflicting to each other and the bills don’t tell us, the Constitution can’t provide clarity on that either.
“There is also no discussion in the removal of independence of judiciary, a key change and huge problem with the bills that people are not being told about.”
The President said the Committee also failed to inform people or ask for their thoughts on the changes undermining the separation of powers that is protected under the Constitution.
“The people are not being asked of what they think about an unstable Samoa and democracy that doesn’t even mean anything in Samoa,” he said.
“I don’t know why it’s not being discussed, could be that they did not have enough time.
“Maybe it’s the incompetent of people presenting the information, and it’s disappointing to see materials and information being handed out with those issues not being included.”
He said that people should be made aware that the new Court structure will be a lot more expensive and will be a lot more lengthy and twice as long when its taken up to the end.
In addition, he said what’s not being told the people is that the qualification for Judges in the L.T.C. has changed under the bills making it easier for anyone to sit on the bench.
Asked to explain, Leiataualesa said that any person can qualify to sit on the bench without having to have a good character.
“Under new qualifications that is removed and you don’t have to be a person of good character to preside matters,” he said.
“This is crucial because a lot of complaints from people in the Inquiry is to do with those presiding the cases and the decisions being passed down…”
Majority of the villages that appeared before the Parliamentary Committee this week in Upolu’s consultation expressed their approval of the three bills.