Why the Government needs to tread carefully on revisiting past
Amidst the ongoing debate about the three bills tabled before Parliament as a package to reshape and reform the judiciary, there is probably one aspect the opponents and proponents would agree to. That is the backlog in overdue decisions from the Land and Titles Court affects everyone.
It has been a problem for as long as many of us can remember and most Samoans can attest to and identify with this struggle. It is against this backdrop the Government claims it was forced to act, hence the Constitution Amendment Bill 2020, Judicature Bill 2020 and Land and Titles Bill 2020.
Prime Minister Tuilaepa Dr. Sa’ilele Malielegaoi has repeatedly said the bills is the Government’s response to countless complaints from members of the public about the delay in decisions.
So in 2016, a Special Inquiry Committee of Parliament looked into the work of the Land and Titles Court and zeroed in on the nature of the complaints and grievances from members of the public. What they found was quite astounding.
Aside from concerns about excessive delays in the hearing of petitions and receiving decisions, some 80 per cent of people who fronted the Inquiry expressed their lack of confidence in the honesty, integrity and ability of Land and Titles Court judges to give fair, balanced and correct decisions.
This certainly raised alarm bells, as it should have. As leaders, they have a job to respond to the needs of the people and the Government did just that with regards to these concerns, which we cannot fault them for trying.
But here therein lies the crux and perhaps the heart of this debate. The problems identified at the Lands and Titles Court did not emerge overnight. They have manifested as a result of years of neglect and lack of attention.
Which means the solution would have been very simple. All that’s needed is for the Land and Titles Court to be adequately resourced and administered to allow it to perform its role effectively, efficiently which will go a long way to restore the faith of the public in its work. Aside from the need for more Judges, there is obviously the urgent need to train them properly to do their work to assuage fears expressed by members of the public about their credibility and reliability.
Of course there would be many other areas that could be improved. In a nutshell, however, this should have been the solution.
We doubt the divisions that have been created since this debate started would have surfaced if this was done.
But the nature of the Constitution Amendment Bill 2020, Judicature Bill 2020 and Land and Titles Bill 2020, pitting communal rights against palagi thinking as the Government has been espousing, raises the possibility of a serious legal and Constitutional crisis. The status and unbridled power given to the new Land and Titles Court to have dominion over all Samoans in anything raises serious fundamental questions about Constitutional rights and freedoms.
This is why opinions are divided over the bills. The issues have been well detailed on the pages of your newspaper since the bills were introduced and we will not delve into them again in this piece.
What we do want to briefly talk about is another major change that is being proposed where the Land and Titles Court will have the power to revisit cases up to 100 years old. The Minister of Justice and Courts Administration, Fa’aolesa Katopau Ainu’u, and Prime Minister Tuilaepa have stoutly defended the proposed change, which makes absolutely no sense at all.
On Monday, a former District Court Judge, Lefau Harry Schuster, described the proposed amendment a “gross abuse” of law.
“You don’t know the circumstances in those matters and how it was dealt with,” he said. “They saw the witnesses and had assessed [witnesses] themselves and made those decisions so how do you revisit a 100-year-old decision and on what basis?”
Let’s also not forget the critically important concept of finality, which basically means some lawsuits must be settled where no further appeal may be taken, and from which no collateral proceedings may be permitted to disturb that resolution.
“Once a decision like that is revisited…it can cause injustice in the sense that a decision delivered 100 years ago will be reviewed but with what proof and on what legal basis?” Lefau asked. “It is an injustice for the parties that won that case and if it’s revisited on whatever those grounds are there is that human interference and that is injustice in the law.”
Lefau makes a lot of sense. We cannot understand why the Government is even thinking about going down this path. Even worse, have they actually sat down and thought about the consequences?
Think about hundreds and thousands of land disputes that could be revived. Think about the matai titles fights that would be given a new lease of life. Think about the relationship between villages who have been fighting over land boundaries and how that will immediately deteriorate.
What the Government is proposing brings a real risk of even more divisions among families, villages and constituencies. Be careful about digging up old graves, you are asking for trouble. Let sleeping dogs lie.