With Parliament moving to pass three bills which threaten to restructure the judiciary to recognise village rights above all else, a Constitutional law expert has suggested that Government might investigate whether it wants to do away with the entire British system altogether.

Canberra-based Papua New Guinea lawyer, Dr. Bal Kama, said if the country wants to split its judiciary in two as proposed in a suite of three bills before Parliament, it may be unhappy with the entire rule of law system. 

The proposed amendments to the Land and Titles Court, the Judiciary, and the Constitution raise “fundamental questions about the value of customs in the lives of people,” Dr. Kama said.

“Colonisation and the western legal system that is implanted in our region has not provided sufficiently for custom which has defined Pacific people for thousands of years," he said. “Current leaders are struggling with their people in the villages questioning that their customs are not given enough value in the modern judicial system, so how do you balance that?”

A Parliamentary Select Committee is nearing the end of an almost six-month consultation period on a set of three bills that would radically alter the shape and structure of the Land and Titles Court, the Judiciary and even the Constitution of Samoa. 

Prime Minister Tuilaepa Dr. Sailele Malielegaoi has said the purpose of the bills is to give Samoan custom and culture its rightful place in the eyes of the law, as he believes “individual rights” have been privileged over “communal rights” of the village and village fono.

Ombudsman Maiava Iulai Toma has pointed to village fono decisions to deny new churches from being built in their villages being overturned by the Supreme Court in the name of freedom of religion as one cause for anxiety in rural Samoa. 

But the bills have been widely criticised by international and local legal scholars who believe the proposed changes threaten Samoa’s democracy, its ability to follow the rule of law, and its place in the international community.

Dr. Kama said countries all over the Pacific are wrestling with the same problem: how the implanted British system of governance that includes the three branches of power doctrine can best honour old customs. But he is unconvinced that Samoa’s current plan to fix the alleged imbalance is without its problems.

“It may be an innovative way to restructure governance in Samoa and I think that is possible but it is likely to undermine Samoa’s constitutional commitment to the separation of powers doctrine and three arms of Government,” the constitutional law scholar said. 

The separation of powers doctrine believes the Government, Parliament, and the Courts (also referred to as the Executive, Legislature, and Judiciary) should be equal to and independent of each other in the ruling of a country. 

Under the new bills, the Judiciary would be split in two, with a Land and Titles High Court with equal footing to the Supreme Court. 

The bills would also have a Government-appointed Judiciary Service Commission appoint and remove Supreme Court Judges.

Both these changes threaten to undermine this separation of powers doctrine, according to voices like the Samoa Law Society, Amnesty International and International Bar Association’s Human Rights Institute, among others.

Dr. Kama said if there are issues with how the existing Court system treats custom, there may be cause to believe the Government and Parliament have their problems too.

“You could equally ask, should Samoa also depart from the modern executive and legislative system, and create parallel traditional executive and legislature with equal authority?

“Are we prepared to raise the fono to have a coexisting role with the executive and the legislature of the modern Samoan government system?”

The three branches of government system is not a perfect one, Dr. Kama said, and it is reasonable to look for ways to better accommodate customs in modern law. 

But only tampering with one of those three branches is not enough, especially without a body of codified customary law for the newly established Land and Titles Court to use. 

In Dr. Kama’s home country of Papua New Guinea, the Government is undergoing work to codify its customs, but only those that are consistent with democracy, he added. 

This work needs to go hand in hand with training local lawyers to recognise the value of custom in their legal practice and to integrate more deeply customary laws into legal training for both lawyers and judges. 

“The people who are aggrieved in the villages, the people who are raising those issues with the Prime Minister, with the Government, are obviously seeing something missing, they are seeing that their customs are not taken adequate notice of,” he said.

“That said, at this time creating separate institutions within the judiciary, judging from legal scholars and the established thinking within constitutional law, could [possibly] undermine the judicial system if we don’t have sufficient mechanisms such as codified customs to allow the judiciary to look into.”

So far the Government has not indicated it intends to codify custom in a comprehensive manner.