The Samoa Law Society says amendments to bills overhauling Samoa’s legal system passed by Parliament last week show the legislation is a hastily prepared "mess" that will be practically “unworkable”. 

A senior member of the society and former Attorney General Taulapapa Brenda Heather-Latu said the new legislation was now “unworkable” because of the changes.

Taulapapa referred to the Government’s apparent u-turn on the legal basis for the decisions of a Land and Titles Court (L.T.C.) newly independent from judicial review by the Supreme Court.

The Government’s original legislation - first tabled before the Parliament in March of this year - proposed to make tradition and custom the guiding principles for court decisions. 

The courts would have thrown out common law (or centuries of past judicial decisions) and equity (notions of basic fairness) as the basis for legal decision making. 

Common law began in medieval England and is the sum total of centuries worth of judges’ opinions that forms the basis for guiding the reasoning of courts in dozens of countries across the world. 

But the final draft of the bill passed by Parliament on Tuesday returned common law and equity to the L.T.C., a reversal Taulapapa argues shows decision-making was rushed.  

“They put it back in because it’s a mess, the drafts that were prepared,” she said in an interview with the Samoa Observer this week. 

“They put it back in because you can’t have judicial review without common law and equity because that is where it came from.”

The Constitution Amendment Bill, the Judicature Bill and the Land and Titles Court Bill were passed on Tuesday with just four votes in opposition. Together, the three bills create an autonomous Land and Titles Court and will strengthen the power of the executive branch of Government to shape the Supreme Court. 

The original draft of the Constitution Amendment Bill, tabled and read in March, sought to remove common law and equity as sources to be used by the L.T.C.

Drafters of the bill intended for the common law to be replaced by Samoan tradition and customs and the constitution in the L.T.C.’s decision making. 

But the absence of any written body of uniquely Samoan “common law” led many critics to believe the new L.T.C. would have no fair way to make decisions.

In their submission on the reforms, the Samoan Scholars Network said Samoa has not developed its own consistent body of judicial reasoning and so removing common law would have left the L.T.C. with a shaky foundation.

“If you are going to put on the table the notion of legal pluralism and have absolutely no mention of what that means, apart from a reference to post colonialism which in itself is problematic, then that is a clear indication that the foundation on which these bills are being put in place is so unsteady,” academic Dr. Tamasailau Suaalii-Sauni said.

“It’s just hugely problematic and irresponsible for us sitting outside to not say anything.”

Taulapapa said clearly this criticism influenced the Parliamentary Committee tasked with taking public feedback on the proposed changes to the court system, because common law was returned as the basis for L.T.C. decisions.

In its nearly 80 page report on all amendments to the three bills, an amendment to the Constitution Amendment Bill 2020, the Parliamentary committee says a proposed addition to the constitution abolishing the common law should be removed. 

The proposed addition to Article 104 of the constitution read: “The English common law and equity of England does not apply in the Land and Titles Court.”

The committee report says the common law and equity was returned to the Land and Titles Court because it is currently being used there, and by the Court of Appeals.

“It is an illustration about how poorly drafted and absolutely unworkable those things are,” Taulapapa said.

“We are going to be in a situation like we are with the Electoral Act. We are going to be going to court and amending to clean it up because it’s such a mess.”

After the changes passed on Tuesday are signed off by the Head of State, the Constitution of Samoa will formally establish a Land and Titles High Court, which will be responsible for hearing appeals from the Land and Titles Court.

This replaces the High Court and Supreme Court of Samoa, removing the option to contest a decision on the basis of constitutional breaches. 

Previously, the constitution said that “any person” could apply to the Supreme Court if they felt their fundamental rights protected by the constitution were breached.

When the bills are signed into law, the phrase “any person” will be replaced with “Export for judicial review matters arising from the proceedings in Part IX Land and Titles Courts, any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.”

This means that unless judicial review – examining whether there are administrative errors in a matter – is called for, no case from the Land and Titles Court can be appealed to the Supreme Court.

A second amendment in the draft bill on the jurisdiction of the Supreme Court further reinforces this splitting of the legal system.

The amendment reads that “except for Part IX Land and Titles Court and the laws administered thereunder,” the Supreme Court has all the power necessary to administer Samoa’s laws. 

It does not appear this amendment was changed by the report tabled by the Parliamentary Committee.