Law Society unconvinced by "new democracy"
What the Prime Minister has called Samoa’s “new democracy,” the Samoa Law Society calls tyranny, after three controversial bills were passed in Parliament this week despite mass opposition.
Chair of the Samoa Law Society’s committee investigating the three bills, Taulapapa Brenda Heather-Latu, told media on Thursday that the bills “butcher” Samoa’s Constitution and leave Samoans with little protection of their fundamental rights.
And while proponents of the bills, including Prime Minister Tuilaepa Dr. Sailele Malielegaoi, have called the bills the dawn of a new era for Samoa’s democracy, the Samoa Law Society maintains they are deeply flawed.
“We have people touting the ‘new democracy.’ Well, the new democracy is called tyranny,” Taulapapa said.
“If you have made such a change to undermine the ability of people to exercise constitutional freedom then actually you have moved from democracy to something else.”
In the coming weeks, Latu Lawyers and another as-yet-unknown law firm will lodge legal petitions against the three bills, on the basis that they remove Samoan people’s fundamental rights to have their cases heard by the Supreme Court.
There will be one interesting complication, however: all but two judges of Samoa’s courts have signed letters expressing their disappointment and dismay with the contents of the three original draft bills.
This may disqualify them from hearing the constitutional challenge, Taulapapa said.
“There are two judges that are available, the Chief Justice [Satiu Simativa Perese] who is away, and Justice [Lesatele Rapi] Vaai, who are the only two judges who are not signatories to the submission by the Judges to the Select Committee. “
Taulapapa said it is too soon to say whether the Government may try and have either of them recused from hearing the case too, and whether that will require Samoa to seek a judge from overseas.
“If either of them can’t hear this case, then obviously we will have to go overseas. It is ironic,” she said. “But everything about this has been ironic.”
Even with several changes to the bills (which are still being identified), the core provision that the Samoa Law Society and others take issue with remains.
“In some ways they are even worse than the things we were looking at before,” she said.
“Taking away […] being able to go to the Supreme Court, undermining the independence of the judiciary, basically destroying our court system, that is still there.
“We generally have an idea that nothing was changed in the bills since they were first [read] but ultimately we need to be able to see the bills with all the amendments and we need the opportunity to look through them.
“That opportunity hasn’t been given by the people sitting in Parliament and that is ultimately how you need to prepare before you launch a constitutional challenge […] but the bits that were the most offensive are still in there.
Another major complication is the way the three bills were passed this week, with no fully amended drafts or copies in English made available to the Members or interested parties.
After two days of piecing together the changes made to the bills passed on Tuesday, Taulapapa said even top legal minds will be having trouble understanding exactly what the new bills mean for everyone.
What she is sure of is that when they are finally amended properly, the new legislation will not resemble the three draft bills that passed their first and second readings in March, and were taken around the country by a Special Parliamentary Committee tasked with seeking feedback.
Instead, they will be brand new pieces of legislation that in Taulapapa’s reading of the law should have gone back to the first stage of law-making.
“We don’t know the full impact because the Parliamentarians never had a copy of the bills, they were just looking at proposed amendments,” she said.
“The [rules] say that if there are substantial changes then bills have to be withdrawn and the process starts again, because what was introduced at the first reading, what was referred to the committee and what was then introduced at the third reading are completely different documents.
“Particularly if you are going to amend the Constitution, there is a provision that says there is a 90-day gap between the second reading and the third reading. The purpose of that is a stand down period which forces Government to look at whether they need to amend the Constitution.”
Taulapapa said that because the bills were not presented in a final draft format, but rather Parliamentarians only saw an isolated list of amendments, no Member could be expected to understand the effects of the amendments on the bills.
Not only that, but they had less than a full hour to look at an 80-page report from the Committee containing the amendments before being asking to vote on them.
“I don’t know how you can make a sensible decision about whether or not you agree with amendments when you don’t see them in a whole bill. That is the problem,” she said.
“I don’t know how you can expect anybody to consider what is in a report and comment on it, let alone pass legislation when you have had no time to look at it. But that is what happened on Tuesday.”
And in spite of what the law requires, the report and amendments were only tabled in Samoan, instead of in both Samoan and English.
This is another spanner in the works of clients intending to challenge the bills in court, because they need to wait for both copies before they mount their cases.
“No one has had enough to time to consider what the implications are. We have tried but it has been deliberately made difficult for people to work out what exactly we are left with.
“This is amending our primary document, which is our Constitution, and that is how it is done? It is not how it is done.”
Taulapapa said Parliament’s discussions on Tuesday were a show of the Human Rights Protection Party’s power over its caucus.
Despite the gravity of the changes being proposed, very few people spoke up in the debate, and they were either against the bills or on the Committee and defending them.
“Parliament is controlled by the rules of H.R.P.P. Why?
“I want my M.P. to put their hand up and say ‘I am bit concerned about this provision,’ but the party rules say you can’t speak on anything that has been decided by the Caucus or by Cabinet. What sort of Parliament is that?
“What happened on Tuesday was just a symptom of what we have, where there is total control of the Parliament, there is total control of public servants, there is fear that nobody steps out of line or makes comments that aren’t in accordance with the leader.”
Among her concerns with the draft legislation, a major one appears to still be in the bills: the independence of judges is threatened with the Prime Minister gaining new powers to dismiss the Chief Justice through the Head of State.
The new bills also rearrange the Judicial Service Commission to include more public servants than before, weakening its independence from the Executive branch of power.
“There are some real challenges to the independence of the court now because of the way these bills have been laid out. It’s easier now to get rid of judges than it ever was before.
“[Judges] need to be insulated from influence, and that is what all those provisions are about: making sure [the J.S.C.] is an independent committee that recommends appointments and deals with complaints.
“If you undermine that by allowing a politician to be the person who recommends something then you are pretty much putting judges under pressure to do the thing that is popular and not what is right.”
If Samoa’s judges are not independent, and if all courts are not under the jurisdiction of the Supreme Court, then everyone’s right to a fair trial is at risk, she continued.
“On Monday, I had the right to go to the Supreme Court to protect my right to a fair trial in my Lands and Titles matter. On Tuesday, that was taken away, and it’s as simple as that.”
The three bills are not officially made law until they are signed by the Head of State. It is not known exactly when this will occur.
Widespread opposition to the bills included fears about their effects on the rule of law, the separation of powers and the independence of judges in Samoa. International and local legal experts said the bills threaten Samoa’s reputation abroad and could pose problems for donors and bilateral partners.
But the Parliamentary Committee reports that 84 per cent of Samoans surveyed by its national consultation supported the contents of the bills, but had issues with proposed limits to high chief titles per family. This provision has been removed.
Taulapapa said this was done as a “crowd pleaser,” and that further changes to the provision limit high chief titles only to those residing in Samoa.
“That is a slap in the face for every Samoan who has a title who lives outside Samoa, and it is absolutely consistent with how little their contribution to this society is valued.
“What an insult to my parents, my uncles and aunties and all the people who have migrated outside of this country to find a better life for the families that live inside this country. What an insult.”
The Samoa Law Society are not hanging up their gloves yet, Taulapapa assured.
“There comes a time in everybody’s life when you see something that is so wrong that you have to put your hand up. That is the sense the Law Society has.”