Judges' L.T.C. pleas misunderstood, stale: P.M.

Prime Minister Tuilaepa Dr. Sailele Malielegaoi has rubbished a call by Civil and Criminal Court Judges to withdraw bills proposing to overhaul the nation’s Judiciary and amend its constitution.

Speaking on state-owned radio the Prime Minister accused the Judges of not understanding their duties by commenting on the legislation, which will come before Parliament on Tuesday. 

“All the laws are approved by Parliament and they have the sole authority to make laws for the courts and lawyers to interpret and follow,” the Prime Minister said on 2AP. 

“And for a certain Judge to seek a withdrawal of the [proposed] laws, [shows] the Judge does not understand their role and duties. 

“All they need to do is await the law to be implemented and obey the laws that are approved by the Parliament.”

The Prime Minister’s comments were made in reference to a submission by the Judges and Justices of the Civil and Criminal Courts to a Special Parliamentary Committee soliciting feedback on bills proposing changes to the nation’s judicial system. 

The Judges warned that a package of bills designed to create an autonomous and parallel Land and Titles Court (L.T.C.) and change the procedure for Judges’ dismissal would “effectively destroy the Independence of the judiciary”.

The Lands and Titles Bill 2020, Judicature Bill 2020, and Constitutional Amendment Bill 2020 (C.A.B.) are set to be discussed in Parliament next Tuesday.

The Judges argue they will bring the Supreme Court directly under the control of the Executive branch of Government by giving the Judiciary Service Commission to remove Supreme Court Judges from office. 

The Judges argue the case against the bills in a comprehensive 84-page written submission provided to the Special Parliamentary Committee earlier this year. 

A copy of the full submission, addressed to the Chairperson of the Committee, Gatoloaifaana Amataga Alesana-Gidlow and Committee members, has been obtained by the Samoa Observer.

It was submitted by Justice Vui Clarence Nelson, earlier this year, in June while he was the Acting Chief Justice.

“This Parliamentary Committee should in its Report to Parliament recommend the withdrawal of all Bills from further consideration until extensive further proper and appropriate national consultation accompanied by competent Constitutional and legal advice with all relevant parties is undertaken,” the submission reads. 

Tuilaepa said the submission by the Judges carried on the front page of Thursday’s edition of the Samoa Observer was stale news. 

“The submissions [to the Special Committee] were views of the Judges and Justices of the Civil and Criminal Courts, but it does not include the Judges of the Lands and Titles Court,” the Prime Minister said while laughing off the report’s contents. 

“At that time, [Justice] Vui was the Acting Chief Justice that was submitted to the Special Committee which is not a public submission; however Vui decided to publicise it. 

“And in my view this submission is relatively old, which has just been publicised by the Samoa Observer to mislead the public. 

“I thought it’s something new, but it’s old and stale and this is all to garner the interest of the public and sell papers.”

Earlier on the Prime Minister said the Judges need to stick to their job descriptions: “The [Judges] and lawyers' job is to interpret the law”.

He then referenced the Judges as the “tail” while the Legislative is the head.

“The tail does not tell the head what to do,” said the Prime Minister. 

He added the Parliament will consider the recommendations, but said the report leaking out to the Samoa Observer was a mistake. 

He then accused Justice Vui of playing politics with the forthcoming legislation. 

“It is forbidden for any Judge to politicise [his position] and if that is the case, then [Justice Vui] should come and contest in the general election,” said the Prime Minister. 

The submission's synopsis highlighted the Judges’ concerns, and their reasons for asking that the bills be withdrawn.

"There has been no consultation with the public, relevant stakeholders or the Judiciary on these Bills. Importantly, these Bills will also bring about significant changes to the role and structure of the Civil and Criminal Courts, amongst many other significant changes," the Judges submitted. 

"At no time have we as Judges of these Courts been consulted on these proposed changes. As we have earlier said, we were not invited to appear before the 2016 Parliamentary Inquiry into the Land and Titles Court."

The Judges also noted that the bills deal with many matters that were not the subject of the 2016 Parliamentary Inquiry.

"The C.A.B. also goes against one of the key recommendations in the Parliamentary Inquiry Report, that is recommendation 16 which is for the Supreme Court to continue to exercise supervisory jurisdiction of the Constitution in Land and Titles Court matters,” the Judges’ report says.

If the bills pass into law next week, decisions by the L.T.C. will not be subject to judicial oversight by the Supreme Court. 

"Recommendations by 2016 Parliamentary Inquiry administrative in nature,” the Judges’ submission argues, denying it in any way provided the basis for the changes currently before Parliament. 

The Judges also took exception with the Samoa Law Reform Commission reports which informed the formulation of the bills in question, saying they were based on a "flawed assumption” that the 2016 inquiry recommended amending the constitution. 

 "The Parliamentary Inquiry Report however did not recommend the Constitutional amendment,” the report reads. 

“The result of this is that the foundations upon which these Bills are built are wrong."

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