Attorney General's Office releases "explainers" on new laws
The Office of the Attorney General has published a series of explainers on various elements of the new Land and Titles reforms, including how the Judiciary is structured today and whether customary land is at risk because of the new laws.
In three press releases sent out through the Government Press Secretary on Thursday 24 December, the A.G.’s office on behalf of the Government of Samoa seeks to “provide the general public with information and clarification” about the new laws.
They cover the Judiciary, Judicial Review, and Alienation of Customary Land – three areas hotly debated in the lead up to Parliament passing the bills on Tuesday 15 December.
The Land and Titles Act, Constitution Amendment Act, and Judicature Act were passed by Parliament earlier this month in the face of widespread and insistent opposition from the legal fraternity, judiciary, and experts both local and international.
Opponents, including the Samoa Law Society and all but two members of the current judicial bench, have said the new Constitution Amendment Act weakens the judiciary and its independence, because of changes to how judges are appointed and dismissed.
In its press release, the A.G. confirms that Judges of the Supreme Court can be removed by the Head of State, who is acting on the advice of the Judicial Service Commission (a body of largely public servants tasked to handle appointments, dismissal and complaints against judges).
This is a radical departure from the former text of the Constitution, which protected Supreme Court Judges from dismissal except by a two thirds majority vote from Parliament, a privilege now reserved only for the Chief Justice.
In defending this change, the Attorney General writes that the two-thirds vote mechanism is “but one” way to remove judges, not the only way.
Citing a Commonwealth Secretariat report on best practices on appointment, tenure, and removal of judges, they state a majority of Commonwealth countries in fact use an independent body, not Parliament, to remove judges.
“The Appointment, Tenure and Removal of Judges under Commonwealth Principles: A Compendium and Analysis of Best Practice” Report 2015 notes that only 16 per cent of Commonwealth countries use this particular mechanism for the removal of Judges.
“It is therefore not unique for Judges to be removed by the Head of State on the advice of the Judicial Services Commission. This is the current process followed for the removal of District Court Judges.”
After the bills were passed, Samoa Law Society member and chair of its committee to investigate the three acts Taulapapa Brenda Heather-Latu maintains these changes weaken the judiciary’s independence.
“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,” she said.
“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.”
Former Deputy Prime Minister Fiame Naomi Mata’afa, a vocal opponent of the bills, also has her concerns with the new judiciary, and said she is concerned that the ruling party is moving to control as many houses of power as they can.
“There is a clear hold on the executive, there is a clear hold in Parliament because of the pure numbers. I understand Governments and power but I also understand when that power overtakes when there are no controls over it,” she told the Samoa Observer in October.
“I think there is a clear demonstration through the development of these various bills that essentially are moving away from the rule of law, and it all has to do with that power.
“They have the power to do it and it’s unrestrained.”
The press release also goes on to explain the current makeup of the Judicial Service Commission under the new act.
“The members are; the Chief Justice who remains the Chairperson (current member of the JSC), the Attorney-General (current member of the JSC), a community member appointed by the Minister of Justice (current member of the JSC), the Ombudsman (a new member), and a retired Supreme Court Judge (current member) who is appointed by the Head of State on the advice of Cabinet in consultation with the Chief Justice,” the release explains.
“The Ombudsman replaces the President of the Land and Titles Court, who was formerly a member. The Attorney General and Ombudsman are constitutional appointments and are members by virtue of the office and not for any other reason.”
Critics of the new legislation have said that by increasing the number of people on the J.S.C., and making the new member a public servant, the risk is that the Government will have extra influence on how that body makes its decisions.
Of the membership, the Chief Justice, the Attorney General and the Ombudsman are in the employ of Government, while the community member and retired Supreme Court judge are not necessarily.
Former Chief Executive Officer of the Ministry of Justice and Courts Administration, Papali'i John Taimalelagi has said that as well as issues over independence, this body needs to be more representative of Samoa as a whole.
In May he spoke to the Samoa Observer about his submission on the then-bills to the Parliamentary Committee.
“The J.S.C. must be a watchdog of certain fundamental values and principles namely; independence of the judiciary; protection of judicial pluralism; role of the judiciary as the custodian of fundamental freedom and rights,” he said at the time.
“The concern has been on the need for the J.S.C. to be more representative of the wider society and the need to dispel the view, real or otherwise that the J.S.C.’s are beholden to the Head of State and Cabinet by virtue of these being the appointing authorities of all the J.S.C. members.”
Fiame agrees, and warned the changes under the new legislation dissolve the separation of powers between the Executive (Government), Legislative (Parliament) and the Judiciary (the Courts).
“Essentially this is the executive branch moving into the judicial branch,” she said.
“It’s essentially about influence and how judges can be influenced by the government of the day.”
In a second press release, the A.G. attempts to dispel any confusion that the three new Acts are related to the Land and Titles Registration Act 2008, something that was oft-repeated during the consultation period.
“The Government wishes to reiterate and reassure the people of Samoa that the 3 Acts do not, in any way, affect ownership of and rights to customary land,” the release states.
“The 3 Acts will not result in the alienation of customary land to foreigners nor do the 3 Acts refer to the Land Titles Registration Act 2008.
“To be clear, the 3 Acts have nothing to do with the LTRA 2008.
“Customary land has always been, and will continue to be protected under the Constitution of the Independent State of Samoa.”
According to the A.G.’s office, Article 102 of the Constitution protects customary land from alienation – alienation meaning the sale or mortgage of customary land.
An Act of Parliament may authorise a lease or license of customary land, or the taking of customary land for public purposes. The Government maintains none of the three acts have authorised either of these options.
Meanwhile, Article 102 may only be changed under the provisions of Article 109, which says a plebiscite or poll of electors voted by a two-thirds majority to make that change.
This is a “further constitutional safeguard” of customary land, the press release states.
“There is no need for the Constitution Amendment Act 2020 to be subject to a poll of electors as provided for under Article 109, as it does not seek to amend, repeal or add to Article 102 as it currently stands.”
Some of the concerns on customary land revolve around a provision that allows the Land and Titles Courts to open closed cases even 100 years old.
This would give families the power to revisit decisions and upend the principle of finality – that after judgments and even appeals are made, a court decision is final and cannot be overturned.
The L.T.C. is also now empowered to use not only the common law as a basis for decision making but also an undefined custom and usage jurisprudence. This has many critics concerns that decisions will not be made fairly.
Fiame, who herself has been responsible for the Land and Titles Court as a former Minister of Justice, said the idea is “random,” and not done anywhere else in the Commonwealth.
“Where the decisions are printed out, at the bottom of the page it says the decisions of the court are final. Mautu ma mausali,” Fiame said.
“There is the principle of finality in the law, that a matter does need to be concluded at some point having gone through due process.
“People will be very angry.
“These matters relate to title, to land. Essentially it will have a disruptive impact on how people had resolved their issues, had begun to live their lives, settled land, buried people, held titles, and if a decision turns that around you can imagine it will have a massive impact on peoples’ lives.”
A third press release explains the new structure of the Land and Titles Court and the new system of Judicial Review, and has been released only in Samoan.
A fourth press release, sent out on Friday 18 December, explains why the limit on high chief titles (initially proposed to be five per family) was removed.
“After the public consultation, the majority voiced objections to proposed limitation imposed on the number of Matai Sa’o, as many felt the number of Matai Sa’o was the prerogative of the suli and aiga,” the release states.
Instead, a new amendment was drafted to replace it, which says matai Sao should be residing in Samoa and in their village to carry out their expected duties.
“The new section 13 of the Land and Titles Court Act 2020 sets out principles to assist in protecting the integrity of the Matai Sa’o, however the decision on the appointment and the number of Matai Sa’o remains the prerogative of the suli and aiga,” the A.G.’s office states.
The release says the idea came from public consultation, where people allegedly told the Special Parliamentary Committee conducting the consultation that high chiefs should be “present in Samoa to take care of the family and make decisions as to family matters.”
Throughout the consultation period, media were barred from sitting in on consultation sessions in the villages the committee visited.