The passage of legislation radically overhauling Samoa’s judiciary came as a disappointment to customary lands advocate Fiu Mataese Elisara, who says public consultation on the proposals was overlooked.

He argued that the months-long public consultation process that led up to Tuesday's legislative changes “failed” to solicit meaningful public feedback. 

On Tuesday, when the changes were passed into law, a motion to discuss the findings of a Special Parliamentary Committee report detailing public feedback on the changes was denied.

Fiu along and another senior Samoan chief, Aiono Telei'ai Sapa Saifaleupolu, made a submission to the committee expressing concern that changes to the constitution and the judiciary were being rushed without due process.

Fiu and Aiono said they have previously been outspoken about inadequate changes to the Human Rights Protection Party (H.R.P.P.) Government’s approach to reforms before. They cited process that preceded the 2008 overhaul of Samoa’s road rules mandating driving on the other side of the road. 

Despite the two expressing general support for the changes, Fiu said he was disappointed in the lack of opportunity given to people to discuss their concerns about the legislation. 

The legislation will create an independent Land and Titles Court (L.T.C.), not subject to review by the Supreme Court, and enhance the Executive’s power to select Supreme Court Judges. 

“The outcome of all of this gave us little or no clarity on many of our concerns and issues raised in our 14-page submission ranging from role of sui-ole-nuu (village mayors) [...] saofa'i (chiefs entitled to confer ceremony), matai sa'o (paramount chiefs), [and the] increasing number of Ministers [and] selection of Judges,” Fiu said.

The submission covered issues relating to the bills’ passage ranging from the role of churches in grievance mechanisms; balancing individual and communal rights; public land issues; and the effect on past court decisions. 

The three bills passed on Tuesday were the Lands and Titles Bill 2020, Judicature Bill 2020, and Constitutional Amendment Bill 2020.

Fiu said Parliament’s discussion of the bills in Tuesday’s session was rushed. 

“The committee took some eight or so months since May 2020 [...] I would have naturally expected adequate time [be] given to the Committee and its members to comment briefly on the process,” he said.

“[Discussion should have been held on how] their mission was received, what substantive concerns [were] raised,” he said.

He said that any organised consultation process should include a systematic recording of the public’s views and a response to concerns raised. 

“The [missed] opportunity to have the committee accord the country its response informing them through a summary of the consultation process and [stating] their findings failed the test for meaningful consultation,” he said.

“Unfortunately the perception is too powerful that the seemingly suppressed and rushed nature of the Parliamentary discussion was dictated by an attempt to meet some time frame,” he added. 

“That ignored fundamental principles of accountability to all those the committee engaged in their eight months of discussion.”

Prime Minister Tuilaepa Dr. Sailele Malielegaoi and the Speaker of the House Leaupepe Toleafoa Faafisi have both rejected accusations that the Bills were rushed through the House.

They have instead argued that comments about the L.T.C. have been open to critics and supporters alike since a 2016 inquiry into court was held. 

The bills are based on the recommendations of that inquiry, the two have long previously argued.

But Fiu and Aiono, said they were not convinced legislative change is the answer to problems relating to the L.T.C. raised in the inquiry and say the bills go further than its terms of reference. 

A new structure to the L.T.C. would not necessarily solve problems such as the courts' slow time to resolve cases and a lack of confidence in L.T.C. judgments.