L.T.C. bills consultation "grossly inadequate": Judges

Civil and Criminal Judges have rejected Government claims that they had the chance to provide input into a major proposed overhaul of Samoa's courts, saying instead they were given “grossly inadequate” notice of the bills. 

Bills to create an entirely separate and autonomous Land and Titles Court (L.T.C.) is set to come before Parliament next Tuesday. 

The Government has clashed with the nation’s criminal and civil jurists on the matter of the bills before; the judges previously wrote critiquing the bill after its introduction to Parliament. 

But a comprehensive 84-page written submission signed on behalf of the judges - and provided in May to a Special Parliamentary Committee soliciting feedback, flatly contradicts previous statements made by the Government. 

One of the main planks of the Government’s response to the judiciary’s submission is that the jurists previously had a chance to contribute to the consultation about changes to the L.T.C. during a previous 2016 inquiry into the court. 

Instead, the judges’ submission lays out a different version of events. 

“The invitation [to contribute to the 2016 inquiry] was to the former Chief Justice as President of the Land and Titles Court and to the Land and Titles Court Judges,” the submissions reads. 

“It did not extend or was given to the Civil and Criminal Court Judges. 

“Why? Because the Parliamentary Inquiry was an Inquiry into complaints received from the public into the conduct and proceedings of the Land and Titles Court only, not into the conduct and proceedings of the Civil and Criminal Courts. 

“Hence the reason why we did not appear before the Committee or make representations to the valuable work undertaken by that Committee.” 

The Judges' concerns are outlined in a comprehensive 84-page written submission they provided to the Special Parliamentary Committee earlier this year. 

Obtained by the Samoa Observer, the submission was submitted by Justice Vui  Clarence Nelson on behalf of the Judges and Justices of the Civil and Criminal Courts. 

The Judges’ submission says they were notified of the draft laws only in the form of a letter dated 14 February 2020 from the Executive Director of the Samoa Law Reform Commission.

“We were never at any time given an advance copy of the draft legislation or an opportunity to comment thereon until that letter of 14 February 2020,” the submission reads. 

“Consequently, only six days was given for the Judiciary to respond. 

“We considered this grossly inadequate and accordingly a request was made for an extension to the timeframe, given the monumental changes these Bills propose to introduce to Samoa’s Court system, and the impact this will have on the fundamental rights of our people as protected by the Constitution. This request was denied.” 

The bills to come before Parliament (the Lands and Titles Bill 2020, Judicature Bill 2020 and Constitutional Amendment Bill 2020) will create an autonomous L.T.C. Its decisions would not be subject to independent Supreme Court review. 

According to the submission, the bills were therefore submitted to Cabinet and then to Parliament on the 17 March 2020, without the benefit of any proper consultation or input from the Judiciary and indeed, the country as a whole 

Considering what is at stake, the Judges say they are at a loss to understand the “rush”. 

“If this process takes years, then so it should for these changes are not minor and are to the Constitution, the Supreme Law of Samoa adopted by the founding fathers of this Nation upon Independence,” the Judges write. 

“We value the opportunity for the Judiciary to speak to your Committee.” 

The Judges’ submission addresses a criticism that has been leveled at them many times - that they declined to provide input into the process of reshaping the court system. 

“It has been suggested that the Judges of Samoa failed to appear before the Parliamentary Inquiry in 2016 that was conducted by another Special Select Committee of Parliament,” the document reads. 

“By failing to appear, the Judiciary failed to take the opportunity presented to it to have an input into what now appears in these Bills. 

“We have been told that the Government and Parliament cannot wait on the Judiciary and defer its work until the Judiciary is good and ready to proffer its views. 

“If this were true, we would be in complete agreement. 

“Sadly, this is far from correct”. 

The Judges of the Civil and Criminal Courts via the Court of Appeal, Supreme Court and District Court say they were not invited to appear before the 2016 Parliamentary Inquiry.

“The invitation was to the former Chief Justice as President of the Land and Titles Court and to the Land and Titles Court Judges. It did not extend or was given to the Civil [and] Criminal Court Judges,” the submission reads. 

The submission says the Parliamentary Inquiry was into complaints from the public into the conduct and proceedings of the Land and Titles Court only, not into the conduct and proceedings of the Civil and Criminal Courts. 

“Hence the reason why [Judges] did not appear before the Committee or make representations to the valuable work undertaken by that Committee,” the Judges argue. 

They further state the Bills go far beyond the terms of the 2016 Parliamentary Inquiry and the recommendations contained in the Parliamentary Inquiry Report. 

“It cannot properly be asserted that these Bills are the product of the Parliamentary Inquiry Report and the Recommendations that came out of that Report because they reach wider than that,” the Judges say in response. 

“Indeed, there has been no explanation of how and why these Bills depart so radically from the recommendations of the Parliamentary Inquiry. We will address this issue in detail later in this Submission.” 

The submission also addresses what they say is a serious misconception motivating the legislative change - that fundamental rights are foreign ideas inconsistent with the fa’a Samoa (the Samoan way or culture).

Prime Minister Tuilaepa Dr. Sa’ilele Malielegaoi has argued the bills will redress an imbalance in the nation’s constitution between the rights of individuals and those of villages, churches and organisations.

The Prime Minister has argued that courts have “every time” favoured individual rights when they come into conflict with village governance.

The Judges’ submission contains a retort to this reasoning. 

“This is incorrect and indeed, both fundamental human rights and Samoan customs and usages protect the same principles,” the submission says. 

The document cites the Ombudsman’s “State of Human Rights Report 2015” as an example of why it is a misconception to view ‘human rights’ as a foreign concept: 

“Human rights are underpinned by core values of respect, dignity, equality and security for everyone. Similarly, Fa’a Samoa or the Samoan way of life holds core values that guide social interaction such as respect, dignity, love, protection, and service, which mutually reinforce human rights.” 

In May this year, a senior lawyer raised concerns about the legitimacy of the public consultation process involving the L.T.C. bills. 

Salma Hazelman said the three bills being reviewed by a Special Parliamentary Committee have skipped several stages of 17 steps required for drafting an Act.

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