Judicial reforms a "joke": Law Society

The Samoa Law Society (S.L.S.) has blasted the Prime Minister’s justifications for restructuring Samoa’s democratic system as a “joke” that will risk Samoa’s international reputation among its democratic allies.

Three bills creating an independent Land and Titles Court, amending the constitution, and enabling the executive to remove Judges from the Supreme Court were passed into law by Parliament on Tuesday.

The chair of an S.L.S. committee tasked to investigate the bills, Taulapapa Brenda Heather-Latu, told the Samoa Observer she believes the Government has displayed contempt for a system of Government that Samoa “once held dear.”

She and other legal experts believe the bills - the Land and Titles Court Bill, Judicature Amendment Bill, and the Constitution Amendment Bill - will dismantle the rule of law and long-held principles of the separation of powers in Samoa. 

All three were passed with just four dissenting votes. The vote followed a national consultation that visited villages across the nation run by a Special Parliamentary Committee which concluded its work in October.

The Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, repeatedly defended the bills in the face of opposition from the legal fraternity in Samoa and abroad.

The Prime Minister has argued they correct a perceived imbalance between the rights of the individual and those of villages and collective organisations in the constitution. 

“There is a really strong suggestion that anything which is not aganuu (Samoan culture) is bad. And that is the way these bills were sold, that we are taking back control of Samoan customs and traditions,” Taulapapa said during an interview this week. 

“Things that we once held dear like the system of Government we chose to adopt are suddenly offensive to the fa’aSamoa (Samoan way).”

Taulapapa strongly disagrees with Tuilaepa’s justification for overhauling the legal system. 

She says the framers of the constitution were wise enough to devise a foundational legal document that protected Samoans and their fundamental human rights.

As the Land and Titles Court (L.T.C.), constitution and judiciary reforms were passed into law, Tuilaepa said on the floor of Parliament that the three bills reflect the intentions of the Constitution’s framers.

“Why? Because it has been 60 years since our forefathers have wanted us to do this; to protect our country through the village council and also our lands and chiefly titles,” the Prime Minister said. 

He said deliberations concerning Article 103 of the constitution, which deals with the L.T.C., were momentous because the nation’s founding fathers realised that notions of individual rights could come into conflict with Samoa’s culture and its emphasis on collective rights.

But Taulapapa said Tuilaepa’s contention was a “joke” and argued that Samoan custom and tradition have not been written into laws because they are defined by how people live, not by legislation.

“It’s a joke. It wasn’t prescribed by our forefathers because you live that,” she said.

“You don’t have to put it in a piece of law because that is how you live […] no piece of paper tells our alii and faipule and our families how to live their lives. They don’t. They never have.

On Tuesday, Tuilaepa said that a total of 160 chiefs around the country played a role in the forming of the Constitution. 

“I want to make this clear, because of reports that only a few individuals had a hand in the forming of our Constitution,” the Prime Minister said. 

“In my constituency [of Lepa] four high chiefs were part of the discussion and there were a lot of disagreements during the negotiations for our [independence] over the rights of individuals clashing with our customs and culture.

“They concluded to leave it [...to] future parliamentarians who will create laws that will give the power to the Lands and Titles Court to address these issues.”

But Taulapapa said that underlying the Prime Minister’s actual justification for the changes were disparaging views of Samoa’s constitutional framers. 

“There is also a strong [sentiment that] they were fools then and we are smart now,” she said.

“Boy oh boy, were they smart then. In the 1960s they put in [protections] from the [international] Convention on Human Rights, Part II to guarantee our protection and our rights in the future and after 59 years that has worked. 

“Suddenly in 2020 we are smarter than they are? I don’t buy that. They had wisdom beyond wisdom. 

“The fact that we have a peaceful nation, and a prosperous nation is because of them, not because of these people.”

Taulapapa said Samoa’s choice of Parliamentary democracy includes laws that protect people’s influence over their Government.

And in choosing democratic values, she argues, Samoa participates in a global community of democratic nations which follow the rule of law and hold each other accountable.

This system needs the three branches of power – the legislative (Parliament), executive (the head of the Government) and judiciary (the Courts) – to be independent of each other to function well.

“The separation of powers is that everybody does its job but doesn’t attempt to control the other branch,” Taulapapa said.

“We have an independent judiciary so that if we have to go to the court either for civil matters or we are charged with a crime, that we have a group of judges who will make their decision based on the facts and evidence, and not about who you are.

“Those people are protected from inappropriate influence by politicians, rich people, by prominent people so that they make their decisions according to the law and what evidence is in front of them.

“The legislative branch passes the laws but if they pass laws that breach our constitutional rights, the judicial arm can say that is unconstitutional and that law is invalid. That is the only time they cross over.”

The senior lawyer, who was previously Samoa’s Attorney General, said she is concerned that the international community - and especially Samoa’s donor partners - may lose respect for the country if it does away with democratic traditions. 

Without those democratic values in common, Governments of countries such as New Zealand and Australia may not be as eager to spend money in Samoa, she says. 

“I would expect a donor would have to have a look at that and ask what are we funding? Are we funding Samoa’s road to authoritarianism or tyranny?,” she asked, 

“We were the darlings of the Pacific, and we were proud of always doing things first. Well yeah, we are really doing things first now: we started being democratic and now we are slipping into a “new democracy” apparently that has no democratic values.

“What sort of country is that? What is the country that we are leaving for our children?”

 



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