Government power "unrestrained": Fiame
The Government has been acting with “unrestrained” power, the former Deputy Prime Minister, Fiame Naomi Mata’afa, has said in her most revealing comments yet about her resignation last month.
Speaking to the Samoa Observer on Tuesday, Fiame said her chief concern with her old party, the Human Rights Protection Party (H.R.P.P.), has been about how much power it has accumulated and is willing to use to meet its political goals.
“There is a clear hold on the executive, there is a clear hold in Parliament because of the pure numbers. I understand Governments and power but I also understand when that power overtakes when there are no controls over it,” she said.
Fiame would not be drawn specifically on recent revelations about irregular tender processes and contract awards made in the construction of the Vaia’ata Prison in Savaii.
But said she hoped the government systems would have “sufficient restraint” on potential misuse of funds or power.
“One would hope that there is sufficient restraint within the ranks, but obviously there is not,” she said.
“That is fundamentally my concern, it is about that power.”
(The Government has had to reverse its plan to have the Vaiaata Prison in Savai’i built without a permit, a contracted company’s help nor a tender process. Instead, the project will be returned to the Tenders Board and eligible companies will be invited to bid on constructing the rest of the prison with whatever is left of the $800,000 allocation in the budget.)
She said the three controversial bills which would restructure the judiciary and Samoa’s court systems exemplify this brazen use of power by the ruling H.R.P.P.
“I think there is a clear demonstration through the development of these various bills that essentially are moving away from the rule of law, and it all has to do with that power.
“They have the power to do it and it’s unrestrained.”
Fiame said as an often lone concerned voice in Cabinet, she was not always able to affect the decisions she criticised.
“One of the things I have been able to do is speak up. I don’t speak up that often but I do in Cabinet, sometimes in caucus, but if you are only one voice…,” she said.
“You might voice your concern, and then there would be some effort to at least get the procedure right or something like that.”
She revealed that one early sign that she had to “move out” of H.R.P.P. was when the Parliament voted by a two-thirds majority to reinstate Fepulea’i Atilla Ropati as President of the Land and Titles Court.
He made it back to his role on the slimmest margin, a vote of 21 against his reinstatement to 18 in favour.
“For me, looking back, especially with these three bills following on, it all led to my making the decision to step out,” Fiame said on Tuesday.
“I think the issue on the removal of the President of the Lands and Titles Court last year was a pretty tough issue for me within the caucus because of the support for retaining the president.
“I was at least able to ensure that the Government did what it was required to do by the law, which was to move the motion.
“I couldn’t influence sufficiently the numbers to carry the two thirds that was required.”
The vote followed Fepulea’i being both placed on special leave and then suspended from his position having been convicted for causing actual bodily harm with intent on a courthouse security guard Saili Leota in 2018.
As well as his conviction, the President was fined $7,000, but he was not given any prison time.
But that the Government looks to be ready to pass the three bills relating to the Land and Titles Court (L.T.C.) despite widespread criticism of them in the months since they were tabled is a worrying sign, she continued.
Ultimately, Fiame describes this as the final straw in her decision to quit the political party.
“They feel that the degree of the hold of power they have [means] they can do that, by changing laws,” she said.
“When you get to the point where you can change laws to do the wrong things, then I think we are in a very dangerous space.”
Fiame has been a Member of Parliament and a member of the H.R.P.P. since she was 27, when she was first elected to represent Lotofaga.
She said for her entire career she has considered what might force her to leave her party, which both her parents were members of too.
“Ever since I became a Member of Parliament, I have always had this question in my mind about when and what issues might lead me to do what I have done now, step away from the party,” she said.
“For me this [the L.T.C. bills] was the breakaway point.
“Fundamentally this is a move away from the rule of law.
“I am a legislator, we make the laws, I sit in my position because of the law and if I condone these kinds of laws that are being made now it contradicts why I am here and what I do.”
Fiame tendered her resignation the day after making critical comments about the L.T.C. bills to a Special Parliamentary Committee which visited her constituency for Lotofaga
"In our view, and in my view as a Member of Parliament, the bills have not been well prepared," Fiame said, noting she had not been able to speak to the bills during their first reading in Parliament.
The following day she tendered her resignation to the Cabinet and the H.R.P.P.
Disagreement on decisions made by Cabinet or the party caucus is common, the inveterate Parliamentarian said, and mostly that is “political life”.
“Most of the time you can live with it but these ones, I can’t,” she said.
“Essentially, if I can’t change it then I have got to change myself. So I changed myself and I moved out.”
Under the proposed changes to the Land and Titles Court, the court would be an independent structure separate to the jurisdiction of the Supreme Court.
It would then have its own Judicial Services Commission (J.S.C.), which would be responsible for appointing and removing judges, and possibly giving them five-year terms instead of lifelong ones.
The new J.S.C., responsible for the independent L.T.C., will have the power to remove Supreme Court judges from office, taking the power of a two-thirds majority of Parliament instead.
That body will be made up of officials appointed by the Prime Minister and Cabinet, which has others like Fiame worried judges will be influenced by their employers.
“Essentially this is the executive branch moving into the judicial branch,” she said.
“It’s essentially about influence and how judges can be influenced by the government of the day.”
Fiame said the question of executive influence over the courts came up when the current Chief Justice Satiu Simativa Perese was appointed.
Though a prolific lawyer in his own right, Justice Satiu’s appointment raised eyebrows for his being based in New Zealand and not having worked in Samoa’s courts yet.
Fiame said Samoa needs a more comprehensive consultation process on the appointment of important roles like the Chief Justice. The Constitution currently says that the Prime Minister advises the Head of State on their preferred appointee, but Fiame believes that choice should come from more research than currently done.
The Judicial Services Commission and the legal fraternity, for example, should be consulted on the job.
“I think we need to be looking at a more comprehensive and inclusive process of consultations where we would arrive at a point where the Prime Minister can advise the Head of State of who might be appointed,” she said.
Earlier this month, Justice Satiu had to be flown to New Zealand for medical treatment, and appointed Supreme Court Judge Mata Keli Tuatagaloa as Acting Chief Justice in his absence.
The appointment allegedly contracts the Constitutional provision that says “the senior” judge may be appointed as the Acting Chief Justice. The appointment has given rise to debate about the interpretation of Constitutional provisions relating to the choice of Acting Chief Justice.
Justice Satiu defended his choice in an email to the Samoa Observer, saying the Constitution “does not define what is meant by the term ‘the senior Judge of the Supreme Court.’”
“In the initial issue of the appointment of the Chief Justice it was quite shocking to the judicial sector and to some of the country who might be interested, that all the local judges were overlooked, the senior among them being Judge Vui [Clarence Nelson],” Fiame said.
“I think in this case Judge Vui has also been overlooked.
“But as a small country these things are very present and the questions arising out of it.
“But more importantly too, there was a point where we finally were able to appoint Samoans, and not only Samoan but local. I think it raises a lot of questions.
“And where I accept the current Chief Justice made his call, it still harks back to the original [appointment] where the consideration wasn’t made.”
Fiame says between this decision and the radical changes to the Judiciary proposed within the three bills, Samoa’s justice sector is in “disarray”.
“One thing is for sure, this whole sector is very much in disarray because of what is being proposed under these bills with new appointments,” she said.
“I expect it is going to be very unsettled. I don’t think it’s a good situation for the country to be in.
In April, the entire Judiciary wrote to the Samoa Law Reform Commission detailing their “grave concerns” with the suite of proposed legislation, signed by nine judges.
One of their biggest concerns is that the Bills propose to split the court system in two, saying doing so is “flawed, unworkable and carries significant inherent risks”.
“The provision represents a serious and significant risk for increased litigation and legal argument with entirely unknown consequences,” she said.
“What is not broken does not require fixing.”
Fiame said the proposed parallel structures in the courts could wreak havoc for locals and foreigners in Samoa a like, saying it is not clear which jurisdiction a given issue or misdemeanour might fall to.
And if, as proposed, the independent Land and Titles Court would not have to follow the common law of the Supreme Court, it is not clear how decisions will be made.
“If business things happen on customary land does that mean the Land and Titles Court will handle those issues?
“What will be the comfort of those investors that their matters will be handled in this cultural court that has no proven jurisprudence? There will be no confidence at all.
“[What about] Samoans themselves developing their businesses on their customary lands, even misdemeanours?
“If you misbehave, murder someone in the cultural context, which jurisdiction will take that on? There are no clear lines, it just appears to be one big mess.”
The matter of the missing legal replacement for common law jurisprudence in the new Court has Fiame very concerned. She said the answer cannot be, as proposed, for judges to have discretionary power to decide on matters as they personally see fit.
This is especially worrying as the Bills propose that the new court should be allowed to reopen closed cases up to 100 years old, with few conditions over which cases and why.
Fiame, who herself has been responsible for the Land and Titles Court as a former Minister of Justice, said the idea is “random,” and not done anywhere else in the Commonwealth.
“Where the decisions are printed out, at the bottom of the page it says the decisions of the court are final. Mautu ma mausali,” Fiame said.
“There is the principle of finality in the law, that a matter does need to be concluded at some point having gone through due process.
“People will be very angry.
“These matters relate to title, to land. Essentially it will have a disruptive impact on how people had resolved their issues, had begun to live their lives, settled land, buried people, held titles, and if a decision turns that around you can imagine it will have a massive impact on peoples’ lives.”
Another major change proposed in the Bills is to limit families’ abilities to bestow more than five high chief titles (sa’o) per family. Fiame said the issue of setting rules around title bestowal limits has never been discussion nationally.
“I am not sure legislation is necessarily the way to go, but if it is then I think it needs to happen after a sufficient period of consultation on what the customary practice is,” she said.
“Essentially this is the mandate of families.”
Within the Land and Titles Court, Judges have not forged a consensus over whether to rule in accordance with the authority of the matai or the heirs of a family, Fiame said.
“They do this pendulum thing,” she said of the court.
“At one point they seem to be all going towards the authority of the head of the family, and in other instances, they seem to all go towards the authority of the heirs.
“It’s a constant issue before the court and even up until now there is no determination or definitions by the courts about how they treat the whole issue of pule or authority.
“If I am thinking cynically, the limiting of sa’o to five was probably just thrown in there to see what kind of reaction they would get knowing very well they would get a reaction.
“It demonstrates that this is the kind of power the court can have. People need to be very careful, and understand the power that the court has.”
Fiame said with the Bills wanting to extend the Land and Titles Court’s mandate from “tangible” issues to include “custom and usage,”
“Someone is a titleholder and you have a piece of land. Currently the courts have evidence of genealogy which is one of the cornerstone pieces of evidence, and land is tied to title,” she said.
“But defining custom and usage, which is essentially about human behaviour, which changes depending on who is behaving, that is very hard to codify.
“And then, there is the whole discussion around whether it can be codified or whether it should be? All those elements, because we haven’t had these discussions, it’s difficult to present these bills without that foundational stuff being in place.”
The brief and unplanned consultation period the Bills are currently undergoing was a result of the harsh criticism levelled against the Government and the three Bills.
Fiame said this is no way to pass legislation.
“We have a Samoan expression: ‘tuli tamo’e’, which is to run and chase,” she said.
“It appears it is that kind of situation, where they are running and chasing to get this issue through, to do things on the run.
“I don’t think that is a good approach to take. I think a lot of submissions have been made to the Committee to recommend returning the bills to Government to properly work on them again and I think that would be the best outcome.
“Doing things on the run will not necessarily address all the concerns or do it in a comprehensive way.”
The Samoa Observer quizzed Fiame about the Vaiaata Prison case and other recent instances of irregular tendering, such as the payment of a $500,000 contract for tents and outdoor equipment that did not go through Cabinet.
Government-run projects to either build or buy goods and services that are projected to cost more than $500,000 must be procured by a tender process and then approved by Cabinet, the Tenders Board, and the relevant public body’s Board of Directors.
Projects which cost less than $150,000 need to go through a quotation request and restricted bidding process.
But the former Deputy Prime Minister declined to get into specific detail about Government projects, noting that other M.P.s were currently playing that role.
M.P.s including Olo Fiti Vaai, Faumuina Wayne Fong and La’auli Leuatea Schmidt (the founder of Samoa’s newest political party Faatuatua ile Atua Samoa ua Tasi) have been vocal in their criticism of projects such as the prison and the Ti'avea Airport.
“The other boys [are talking about it and that will do,” she said.
“I would rather not comment.”
The Minister of Police and Prisons, Tialavea Tionisio Hunt, previously insisted the $800,000 project had not gone to tender as it did not involve any corporate entity and would be built by prisoners themselves. He also admitted to having allowed the project to proceed without a permit by the Planning and Urban Management Agency.
But earlier this week, Tenders Board Chair Sili Epa Tuioti said the Vaia’ata Prison Project “should have been tendered in the first place,” and while he could not set a date confirmed it will be tendered “as soon as possible.”
Asked why the Tender board did not “honour” procurement laws, Sili said they had “good reason” to allocate funding to the prisoners to construct the jail block.
“There was an immediate need to build a block or actual jail cells for the prisoners in Savaii,” he said.
“It makes sense to upgrade the jail blocks and build an office. Also we have seen the police officers office, where they eat and sleep and it’s unhealthy.”