A.G. dismisses Judges' submission

The Attorney General, Savalenoa Mareva Betham-Annandale, has dismissed claims by criminal and civil Judges that proposed bills to overhaul Samoa's Courts will undermine prison punishments.

The Saturday edition of this newspaper carried the Judges' criticism of the proposed laws saying they could undermine the most basic concepts of the rule of law.

The piece was based on a submission made by the Judges to a Special Parliamentary Committee soliciting public feedback on the impact of three pieces of proposed legislation.

But Savalenoa rejected the Judges' warnings that traditional non-custodial punishments could replace prison sentences for serious crime as inaccurate.

“Nothing in the Bills will affect the criminal justice system let alone prison sentences for serious offenses such as murder and rape," the Attorney-General told the Samoa Observer on Saturday.

"The argument that the proposed amendment may result in prison terms being replaced by faa-Samoa (traditional Samoan) penalty is incorrect and inaccurate."

Savalenoa was responding to one of several aspects of the Judges' submission to the Special Parliament’s Committee, that is being published by the Samoa Observer.

The package of bills are to be raised in Parliament on Tuesday. They are designed to amend the constitution to emphasize collective rights and create an independent Land and Titles Court (L.T.C.) is set to come before Parliament on Tuesday.

The Judges’ submission argued the bills were hastily compiled and had the potential to undermine fundamental aspects of existing crime and punishment procedures.

The Judges argue that could go as far as having imprisonment for serious crimes replaced by village-based sanctions and norms for resolving crimes.

However Savalenoa said the Crimes Act 2013 clearly sets out the appropriate penalties for all offending including such serious offences.

“Right now the Criminal Courts can, and do take into account ifoga (apologies), but only as a mitigating factor for sentencing purposes," she said.

“The statement that [rapists] and murderers will only have to follow the faaSamoa (the Samoan way) to go free" is not only incorrect in law but also highly irresponsible and inaccurate, and stretches beyond reality the impact of the proposed Bills."

The Samoa Observer sought comment from the Government on the submission earlier last week but did not receive a response.

But Prime Minister Tuilaepa Dr. Sailele Malielegaoi subsequently laughed off the submission, which he described as "misleading", "politicised" and "stale".

In comments published by the Samoa Observer Tuilaepa also suggested the Judges did not understand the proposed laws.

A key motive of the laws is to redress what its proponents see as the overemphasis on individual over collective rights in the constitution.

The Judges' 84-page submission, obtained by the Samoa Observer argues this could overturn long established practices in criminal law:

“A challenge to laws that impose ‘imprisonment’ or a sentence of imprisonment may be raised on the basis that imprisonment is not a traditional form of Samoan customary punishment.

“It may also be argued that imprisonment is a form of our subjugation by our former colonisers from colonial times that has continued to today, and therefore should be rejected as it is not a customary form of punishment and is a relic of colonial oppression.

“It is unconstitutional, it may be argued.

“So therefore we should do away with imprisonment as it is a non-Samoan penalty. So therefore we should close our prisons.”

The submission was made in May, 2020 by Judges of the country’s Criminal and Civil Court.

The Judges join the Samoa Law Society and various international bodies and eminent jurists on the massive impact of the Judicature Bill 2020, Lands and Titles Bill 2020 and the Constitutional Amendment Bill 2020, if they pass into law.

“In requiring the Court to take into account custom in all matters in all Courts in this way, we have no doubt that this clause will be raised to argue against any institution, proceeding, agreement or body that is not recognised by custom," the submission states.

“Similarly, if your family member is raped or murdered by a person and he [or] she is tried and convicted and an ifoga is performed, accepted and a village fine imposed.

“On sentencing of the perpetrator, as an ifoga has been performed and a village fine has been paid, on the basis of custom and the forgiveness shown, a non-custodial sentence is therefore appropriate."

The bills are set to be discussed in Parliament next Tuesday.

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