Committee's tardiness reflects an unclear purpose
News the Parliamentary Committee consulting on Land and Titles Court (L.T.C.) reforms is running behind schedule is another reminder of the lack of purpose and process that have troubled it from the beginning.
A story carried on the front page of Tuesday’s Observer (“Parliament Committee to seek extension”) revealed that far from being ready for Parliament’s rising this week, it remains only halfway through consultations across Upolu.
On Wednesday Parliament immediately granted the committee an extension until October when it had previously been given only until August to complete its task.
But that they have run behind their deadlines reflects not only the haphazard fashion in which the committee has approached its work but that it was tasked with impossible aims in the first place.
The committee’s job has essentially been to make up for the failure of the Government to adequately consult on the legislation before the bills were introduced to Parliament.
The need for thorough consultation is acute when these pieces of legislation represent, as they do, some of the most significant changes to Samoa’s constitution and system of Government in the 58 years of this nation’s independence.
As this nation’s entire judiciary has noted, there is a usual and proper process that is required to be followed before all bills - let alone those affecting the Constitution and the populace so profoundly - and it was simply not conducted prior to these bills’ introduction to Parliament by the Cabinet.
The bills, which were tabled before Parliament in March, almost concomitantly with state of emergency measures in response to the coronavirus pandemic, passed their first and second readings before consultation was thought of.
Let us quickly dispense with the argument that consultation for a change to the judiciary of this sort has been going on for years.
This is a notion first put about by the Prime Minister, Tuilaepa Dr, Sailele Malielegaoi; it was echoed last week by the newly appointed Attorney-General, Savalenoa Mareva Betham-Annandale.
But it is simply wrong to say that adequate and necessary consultation took place before these bills reached the Parliament.
And the Government knows it, too.
If it truly believed that consultation had been undertaken, why then, did it even bother to create the Special Committee to seek the public’s opinion?
If the Government really believed its own rhetoric it would never have made the consultation trips being made by the committee a precondition of the bills passing through the third reading stage.
The argument that earlier consultations conducted for an 2016 Commission of Inquiry into the Land and Titles Court count as consultations simply do not hold water.
Let us look at the recommendations of that 2016 Commission of Inquiry’s final report, which was principally concerned with administrative matters of the court, but also concluded as follows: “That the Judicial Review persevere as part of the Supreme Court to adhere to the fundamental rights of all Samoan citizens.”
This stands in direct opposition to the purpose of the three bills currently before the Parliament which seek to do away with judicial review by the Supreme Court and instead create an entirely autonomous L.T.C.
In other words the 2016 Inquiry and the 2020 bills were starting from different first principles and reaching different final conclusions.
And we would respectfully disagree with comments made by the new Attorney-General, Savalenoa, in recent days that an L.T.C. overhaul has long been a topic of discussion in this country and that consultation has therefore not been rushed.
“The issues addressed in these bills are issued that have been discussed since our law school days,” Savalenoa said in an exclusive interview with the Samoa Observer this weekend.
The former President of the Samoa Law Society said the issues had been discussed widely during her tenure at the top of that organisation.
That informal discussion does not, in our view, rise to the level of consultation appropriate for legal changes of this magnitude.
There is a formal process that must be followed in order for a bill to be introduced before lawmakers and, in this case, it simply was not.
We note that the former Attorney General, Taulapapa Brenda Heather-Latu, took a different view on the preparation and drafting of three bills currently before Parliament, saying:
“I feel deeply offended by the manner in which these Bills have been drafted and then fast tracked through Government corridors”.
Those views were backed by senior lawyer Salma Hazelman who noted that there are 17 steps that go into drafting an Act, one of the most crucial of which is consultation and that was skipped in the case of the L.T.C. bills.
Ms. Hazelman got it exactly right when she said the Parliamentary Special Committee has essentially been given an impossible task to make up for the failure of consultation that should have come before the bills came into Parliament.
“This is the largest review being done to our Constitution and the very fact that there was no consultation process prior to the Select Committee they are now given this difficult task,” she said.
“I feel for the Select Committee, it means they are given the extremely difficult task to try and listen to concerns, ideas and grievances of different stakeholders within our community which really should’ve happened at the beginning.”
Ms. Hazelman’s words have proven prophetic.
The committee’s tour of the villages was always designed to be a process to gauge the public opinion, not an exercise in persuasion.
But from the presentation of "pasese" (fares) to villagers to the making of promises to villages on behalf of an entire Parliament that the legislation will be amended, the committee process has been flawed.
Most evidently, many villages have been giving support to the bills but only in a qualified manner.
For many, their support has been contingent that a provision limiting the number of matai Sao [paramount chiefs] is removed from the bill. (Other provisions such as the ability to challenge court decisions from decades ago have also proven controversial).
And so consulting with a village only to find they support the proposals has required the committee to make promises that goes beyond its reach.
Take, for example, the village of Tufulele, where a high chief, Ai'atele Aletaseta Luatuanu'u, said:
"About the limit [to] the number of paramount chiefs (matai sa'o), they (the Committee said they [would] remove that part so we are happy with it,” Ai'atele told the Samoa Observer.
"It would be sad if they decide not to walk the talk and follow [through with] what they've told us.”
That this committee is running late, then, is perhaps the least of its problems.