Lawyer calls on Head of State to "leave an impact"

The Head of State should make a point of refusing to sign the three controversial bills passed in Parliament last week, a Constitutional law expert, Leulua’iali’i Tasi Malifa, says.

In an opinion piece published in the Samoa Observer, the lawyer says that while the Head of State, His Highness Tuimalealiifano Va'aletoa Sualauvi II, cannot actually refuse to sign the bills into law, he ought to try anyway.

He is nearly three and a half years into his five year term, and should “leave an impact,” Leaulua’iali’i said.

“There is really no harm in him refusing his assent to laws that the majority of the people have shown to be of no good to them,” he said.

“The point is: he must leave an impact – a legacy that his own children and all of the country shall remember - He Made A Difference.  

“The constitutionality of his powers aside, the humanity of these laws remain the dictatorial measure to our liberty, to our cultural freedom into the next 100 years!”

The three bills - the Constitution Amendment Act 2020, Judicature Act 2020 and Land and Titles Act 2020 were tabled in March where they immediately passed their first and second readings, and would have gone to their third reading 90 days later had the Government not been pressured into launching a national consultation on the proposed changes.

On Tuesday 15 December proposed changes to the bills were tabled in Parliament in the context of the consultation report, and 41 Members of Parliament voted to accept the changes and pass all three bills into law (this is not how bills are traditionally passed – typically they are withdrawn if changes are made and start the legal process again).

Now they go to the Head of State for his signature of assent, which he must give according to the Prime Minister’s advice. If he refuses, the Prime Minister can, in seven days, authorise the bills passage into law regardless.

“It appears the Head of State cannot act by his own integrity. He has no discretion to assent or not, but unavoidably, to follow political manoeuvrability,” Leaulua’iali’i said.

And based on the last Head of State who denied the Prime Minister his laws, why should His Highness Tuimealealiifano?

“Needless to say, it cannot be imagined that His Highness would refuse His assent to these bills,” the lawyer continues.

“We all know what happened to former Head of State Tuiatua Tupua Tamasese Tupuola Efi when he collided with the Prime Minister some time ago because of these same bills and other matters, and the allegations and accusations the Prime Minister hurled at him.

“But the former Head of State having spoken his mind - which of course, all of us have a right to - the Prime Minister showed his dictatorial colours, and slammed the former Head of State to the wall! To say again, it was most alarming!

“And a Prime Minister doing that to a former Head of State he and his [Human Rights Protection Party] government party had recommended to the Legislative Assembly? One recoils in alarm at the dictatorship of the man!”

Leaulua’iali’i says the Head of State is into “his final five year term.” At the end of it, he is eligible for a single single renewal, capping his total potential time at 10 years. But this is contingent on Parliament voting him back into the role.

“In the unlikely event he refuses assent and therefore did not and had not accepted the advice of the Prime Minister or Cabinet or a Minister “as the case may be”, the Head of State would be killing himself, as of course, evident in the former Head of State, Tuiatua Tupua Tamasese Tupuola Efi,” the lawyer explains.

The Ministry of Prime Minister and Cabinet has not yet confirmed whether His Highness Tuimealealiifano has in fact signed the bills, eight days after the bills were voted on and passed.

In the wake of the bills’ passage, the Office of the Attorney General released a proud defence of the new legislation, describing it as Samoa’s unique form of democracy.

Leaulua’iali’i disagrees, saying Samoa already had its own kind of democracy, a cultural democracy defined by its people with its central government.

“It is one not formulated in piece meal fashion by pieces of legislation and amendment laws – as these three pieces of legislation and amendment laws are - that the Attorney General is grounding her thesis in,” he said.

“Samoa’s cultural democracy is constitutional mainstream. It is established, formulated and formed by the people through their representatives as were in the Constitutional Convention Debates back in August 1960.”

Samoa’s cultural democracy has already undergone several evolutions. Initially only matai were eligible to vote, and to stand for election. Today, anyone of age can vote, and candidacy is still limited to matai who meet a particular monotaga requirement.

“The validity of the argument of ‘Samoa’s own form of democracy’ as formulated in these amendment laws shows the fragmented way in which our cultural identity and national ideology is tossed about freely by political expediency and manoeuvrability. 

“And the Attorney General purporting to explain that away as intended to establish Samoa’s own form of democracy is, we all know, a form of political expediency and manoeuvrability itself.”

Just as Samoa held a national referendum to decide on whether to become independent from New Zealand, Leaulua’iali’i said these three bills and their implications should have been voted on this way too.

Whether Samoa should have a autonomous and independent Land and Titles Court, separate from the Supreme Court and its powers of judicial review and upholding of the Constitution, should be a matter decided on by each person, he argues.

“After 60 years of being a political free nation, we are a mature people to be able to make our democracy Samoan.

“…and aside from these laws alone, a whole new regime is now required to be set up and establish in order to implement this ‘Samoa’s own form of democracy’, especially being one purported to be done in piece meal fashion by piece meal amendment legislation. Is that sign of 60 years of maturity?  

Leulua’iali’i has made his concerns about the three bills and the Special Parliamentary Committee working on them before.

In April, he told the Samoa Observer that the bills seek to divorce Samoan custom from the Constitution instead of “marrying” them.

“Separating the Courts will only separate the [judiciary] system in two, we want unison and love but the amendment bills will only do the opposite,” he said.

And in August, he told E.T. Live that the Parliamentary Committee’s consultation was more like a public persuasion, and was not being impartial.

Responding to claims that the Committee was telling villages they would change problematic elements of the drafts, Leulua’iali’i said the M.P.s in the group have no such power.

They should only listen and not make any comments about the views and reactions from the villagers, he said.

“I have heard [...] that other villages who have rejected the bills have changed their minds due to these (persuasive responses by the Committee).

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