L.T.C. changes could abolish prison sentences: Judges

Bills proposing to reform the courts could undermine the most basic concepts of the rule of law, even prison sentences for serious crimes, the nation’s criminal and civil Judges have argued. 

A package of bills 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.

But the Judges’ submission to a Special Parliamentary Committee soliciting feedback into the bills said they had the potential to undermine fundamental aspects of crime and punishment. 

“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,” the Judges’ 84-page submission, obtained by the Samoa Observer, argues. 

“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.

The Judges argue not since independence has such monumental and far-reaching changes been proposed to the Constitution affecting the very legal fabric of Samoan society.

They argue the changes could threaten the protection of fundamental rights and the system of Courts charged with the administration of justice.

“Honorable Members, we must record that we are gravely concerned with the content and legal ramifications of these Bills,” the submission argues. 

“In our respectful view, these Bills carry significant risks.

“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. 

“Similarly, if your family member is raped or murdered by a person and he [or] she is tried and convicted and an ifoga (apology) 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.

“Rapists and murderers will only have to follow the fa’a Samoa (the Samoan way) to go free.

“This despite the fact that you as a Parliament have passed legislation stating the maximum penalties for such offending in Samoa is life in prison.”

The Judges say several issues of similar magnitude will need to be dealt with by the courts arising from the proposed amendment, and cites the above as just two examples. 

“These as you will no doubt appreciate may have significant public policy and community safety implications,” the Judges say. 

“We expect as those tasked with interpreting and applying these laws, that the proposed amendments will give rise to litigation in all kinds of matters. This will result in much uncertainty for people seeking to resolve their disputes, and significant costs and delays.

“This in turn will undermine people’s confidence in the legal system. It is going to occur over many years and involve significant judicial and Court resources. 

“The consequences of those cases will only be known after the Judiciary has heard the evidence, heard from counsel and considered the law and the facts.

“It is for that reason that we say that the consequences of these changes are far-reaching, and in many respects, unknown and represent a material risk to the legal and moral fabric of modern Samoan society, which the Courts have tried to uphold and protect since this country achieved the ability to self-govern at Independence.”

The Judges also expressed concerns that the Attorney-General, whose duties include upholding the rule of law, institutions of Government and the constitution has approved and signed off on legislation that attempts to split the Judiciary into two branches. 

The bills would create an entirely separate and autonomous L.T.C., independent entirely from other courts. Its decisions could not be appealed to the Supreme Court and it would have its own courts for judicial review. 

In April, the former Attorney General, Lemalu Hermann Retzlaff who assisted in the drafting of the bills prior to his resignation, stood his ground on the bills’ merits. 

As for concerns that the bills would violate the constitution, Lemalu disagreed.

“The constitutional reform does not therefore propose to revoke any of the individual freedoms that are sacredly protected in our constitution,” he said.

“On the contrary it seeks to enhance the right to a fair (substantive) trial via a new appeal avenue within the L.T.C. route; and it simply cannot by creating a specialist Court of Appeal, somehow then remove the separation of powers of the three branches of Government from the constitution.”

Lemalu, who resigned in February before the bills were tabled formally in Parliament, also defended the special committee process which allowed the Judges to make their dissent known as reflective of its democratic process. 

According to the Judges in their submission, they accept and wholly respect that the role of Parliament is to make the laws and the role of the Judiciary is to interpret and apply those laws.

“In making laws, we also have no doubt that it is the intention of the Government and every Member of Parliament to make good laws for Samoa and our people,” the Judges argue. 

“In relation to the bills, as the arm of the Tafatolu (three sides of Government) that will be tasked with interpreting and applying these laws, it is our view that these proposed amendments will generate much argument and litigation.”

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.

The Prime Minister has argued that courts have “every time” favoured individual rights when they come into conflict with village governance because of western influences on the framers of Samoa’s constitution. 

When earlier this year Prime Minister Prime Minister Tuilaepa Dr. Sailele Malielegaoi argued Samoa’s founding fathers did not understand the palagi (foreigner) drafted constitution, leading to several critics to defend their ancestors. 

Parliament will sit for the final time this year on Tuesday and Tuilaepa has confirmed the L.T.C. bills will be on the agenda.

The whip of the ruling Human Rights Protection Party, Alai'asa Moefa'auo Moananu, earlier this month said while the inquiry committee’s feedback would be crucial he believed the bills would pass. 

“I feel [with] two-thirds of [Parliament’s] members [being from the H.R.P.P.] most likely it will pass,” he told the Samoa Observer earlier this month. 




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