L.T.C. overhaul could undermine prison punishment, says retired Justice
Retired Supreme Court Judge, Justice Lautalatoa Pierre Slicer, has warned that the bills proposing to overhaul the judicial system, which are expected to be discussed in Parliament this week, could lead to traditional punishments replacing prison sentences for serious crimes.
Judges of the Civil and Criminal Court collectively signed a submission critical of the bills proposing to overhaul the nation’s legal system.
The bills would create an autonomous Land and Titles Court (L.T.C.), amend the constitution and seek to change the balance between collective and individual rights in the legal system.
The Judges’ submission to a Special Parliamentary Committee soliciting feedback into the bills suggested that among the risks they posed were an increase in traditional, non-custodial punishments replacing prison sentences for crimes.
“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,” the Judges’ submission, made in May and obtained by the Samoa Observer reads.
“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.”
That analysis by the judiciary drew the ire of the nation’s Attorney-General, Savalenoa Mareva Betham-Annandale, who rejected the Judges’ analysis out of hand.
“Nothing in the Bills will affect the criminal justice system let alone prison sentences for serious offences,” Savalenoa said.
But in an email interview with the Samoa Observer, Justice Lautalatoa disagreed the Judges’ argument was baseless, when presented with a full copy of the 84-page submission and asked about its legal implications.
“It could be possible for a person who has committed a crime such as blood feud to seek recourse to Customary Law and thus avoid the Statute Law (laws passed by Parliament),” he said. “If that be the case criminal punishment would be left open under the proposed legislation.”
Justice Lautalatoa’s conclusions were the result of a detailed legal opinion that drew on the history of English law and crime and punishment in jurisdictions such as India, Nigeria and Papua New Guinea.
“It could be argued that where there are competing provisions in the Constitution of a nation state which permit recourse to customary law separate from other Statutes that recourse could be had to custom and as such might permit criminal conduct to be determined, in some circumstances by the customary court,” he said.
“To that extent, the observations expressed by the Judges could have merit.”
Justice Lautalatoa is also an eminent jurist in Australia has served on the Supreme Court in the Australian state of Tasmania and was awarded a Queen’s Counsel.
But Justice Lautalatoa noted that the ultimate potential downside of the passage of the L.T.C. bills was the uncertainty they would create.
Last week Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi said the Judicature Bill 2020, Lands and Titles Bill 2020 and the Constitutional Amendment Bill 2020 would be on the agenda when Parliament convenes on Tuesday.
Justice Lautalatoa noted that one of the most serious consequences of the bills, which would create an independent L.T.C., the decisions of which would be beyond review by the Supreme Court, was on judicial independence.
“There remains a problem of uncertainty,” he said of the bills, which contain a proposed amendment to the constitution.
“The Constitution is the bedrock of a nation-state and in the case of Samoa requires two-thirds of the Parliament to alter.
“The proposed amendment might in future permit a simple majority to pass legislation permitting access to the custom court for the operation of that court which could include jurisdiction over defined forms of criminal conduct.
“No issue is taken in relation to existing powers of a village to impose certain sanctions on improper conduct. No issue is taken with existing sanctions but a future Parliament could, in accordance with the Constitution, prescribe or enlarge those powers. This would lead to a conflict between the existing court and a customary court without recourse to appeal.
“The current [judicial] model clearly protects the citizens of Samoa through a system permitting review. It is undesirable that a simple majority of a future Parliament could permit use of custom to override the rule of law permitting judicial review by way of appeal.”
Justice Lautalatoa Q.C. served on the Samoan Supreme Court for four years, ending in 2014.
He was honoured with a matai title by the Village of Satua and awarded an Order of Australia for his services to the Pacific and jurisprudence.
In April, one month after the bills’ tabling in Parliament, he spoke out about their potential impact to “destroy” the rule of law in Samoa.
“[The bills] would give to an elite the power of land and status and destroy the concept of the rule of law,” he told the Samoa Observer at the time.
Justice Slicer’s comments were subsequently echoed by several other leading international experts in law, including former Australian High Court Justice Michael Kirby and the United Nations’ Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán.
The Judges’ submission to the Parliamentary committee ultimately recommends that the bills be withdrawn for further analysis and national consultation.
“We submit that given the issues, risks and concerns raised in these Submissions, 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.