Independent legal opinion, transparency and accountability. What’s the big secret?

The Government’s decision to seek an independent legal opinion on three bills, which have been the subject of much public debate and disagreement during the past few months, is a good sign.

It is an indication that perhaps Prime Minister, Tuilaepa Dr. Sa’ilele Malielegaoi, and his Government are willing to admit that the bills’ current form are not fit to be proceeded any further in Parliament. It is also a sign that the concerns of numerous legal experts and members of the public who have been speaking out and continuing to sound the alarm bells about the implication of these bills are having an impact of some sort.

That said, it’s a bit premature to draw any concrete conclusions from what we see unfolding before us. What we can say is that the debate about the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020, which are before a Special Parliamentary Committee currently soliciting public views about the changes being proposed, is not new.

Both sides of the story have been covered in detail on the pages of your newspaper and in other media forums. Whereas the Government claims that the bills are designed to ensure the Samoan culture; village and communal rights are preserved and protected, ensuring that Samoans decide customs and usage, matters they say only Samoans understand and can comprehend, not everyone is convinced – including many Samoans.

The Judges of the Courts for instance have cautioned that the bills are extremely dangerous and they threaten to “destroy” the rule of law in Samoa.  Many villages have objected to the Government’s attempt to limit the amount of mata’i sao a family can have, saying that is none of the Government’s business.

Some of the most brilliant lawyers in Samoa have called the bills “defective, dysfunctional” and at worst “racist.” They have warned that the bills would change the foundations upon which the justice and judicial system rests. Even worse, they have called it the “most extensive and incoherent attack” on Samoa’s founding document, the Constitution, which shows the Government’s total lack of respect for Samoa’s ancestors and forebears.

But the concerns do not stop there.  One of the world's most respected human rights lawyers and Judges, Michael Kirby, has cautioned that Samoa’s reputation regionally and globally will be tarnished if the Land and Titles Court (L.T.C.) is immune from the Supreme Court’s scrutiny.

 “It is not possible to have the rule of law if some of the organs of government (such as the Samoan Land and Titles Court) are placed outside the scrutiny and supervision of the general courts, and in particular the Supreme Court of the country concerned,” Justice Kirby has warned.  “Once Governments and legislatures begin carving out exceptions to effective legal scrutiny of the exercise of government power, there is no saying where this exceptionalism will end up.”

Even the United Nations Human Rights Council through the Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, says the bills threaten to break international standards of judicial independence and will demolish Samoa’s reputation as a democratic society.

We can go on, because there is so much more international and local experts have said about the bills, but we believe the examples we have highlighted above are sufficient to demonstrate the level of feeling and concern that exists in the community – locally and internationally - about what the Government is proposing to do.

Which provides the backdrop to our view that the Government’s decision to seek an independent legal opinion is reassuring to a certain degree.

In confirming the decision, Prime Minister Tuilaepa of course couldn’t help himself, turning on the messenger, as he does. He accused the President of the Samoa Law Society and the Samoa Observer of publishing “numerous wrong things” from the lawyers whom he accused of “misinterpreting, or wrongly bending the bills.”

What else did we expect Prime Minister Tuilaepa to say? Of course he would ridicule and accuse anyone who dares to stand in his way? Which is fine, we are used to it.

But even that is beside the point? The real question is, who has been given the so-called “$100,000 tala contract”? And aside from merely seeking an independent legal opinion for the sake of it, what is it really intended for?

“I don’t want to talk about that stuff,” Tuilaepa said when he asked, “but whoever it is, it is based on merits and expertise. With a lot of our lawyers, they are qualified but little common knowledge.”

Well, that’s really unnecessary for the Prime Minister to say about members of the legal fraternity. Here’s the thing, whether you’re a legal expert or someone with “little common knowledge”, everyone deserves a Government that is transparent and accountable. Speaking of which, was this legal contract ever tendered? And why is the Prime Minister so secretive about telling the country the lawyer or lawyers who have been awarded it?

Have a great Thursday Samoa, God bless!







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