PEOPLE OF 2020: Guardians of the Constitution

By Sapeer Mayron 31 December 2020, 9:00AM

When future generations of Samoans look back on 2020 to see what shaped the conversations in this country, four names will undobtedly stand out in Samoa’s collective memory: Fiame Naomi Mata’afa, Justice Vui Clarence Nelson, Taulapapa Brenda Heather-Latu, and Leiataualesa Komisi Koria.

While the inescapable the coronavirus pandemic loomed large on everyone’s minds, it is clear that the biggest issue this year has been the radical changes to the Courts, the Judiciary, and the Constitution. The Land and Titles Courts reforms contained in three bills were passed in Parliament in December, but they did not get to their third reading without a fight.

Fiame, Vui, Taulapapa, and Leiataualesa led the charge against the proposed reforms, often at a personal cost to them.

For Fiame, the fight cost her not only her relationship with the ruling Human Rights Protection Party but her position in Government. The former Deputy Prime Minister railed against her former party’s pièce de résistance to the point where she felt forced to resign from the H.R.P.P.

“It may be after the fact but people need to be asking the questions of Government, of its motivations and why they are putting this up and why now,” Fiame said at the time, asked what should happen if the bills were passed.

“If people do determine they have been hard done by, by these laws, that they will utilize their power of the vote.

“This [may be] one issue, but it’s an important issue and it affects everyone, it’s not one of those kinds of legislations that might only affect a part of the community.”

She has stopped at nothing to take this message to Samoa, touring rural villages and spending hours in crowded halls explaining flaws in the legislation and answering as many questions as it takes for citizens to understand.

And to pay for all this effort, a team of best friends turned campaigners have been selling her name on a hot pink tee shirt to eager buyers both local and abroad. 

The Land and Titles Bill, Judicature Amendment Bill, and Constitution Amendment Bill’s driver and endorser this year has been Prime Minister Tuilaepa Dr. Sailele Malielegaoi. And true to his fashion, he did not mince words when lashing out at his opponents.

For her rejection of the bills, his party, and even himself, Tuilaepa disparaged Fiame’s time as Minister of Justice between 2010 and 2015 and blamed her for Samoa even needing the legal reforms proposed.

Though a lone voice at times, Fiame was joined in her fight against the bills by independent M.P. Olo Fiti Vaai and fellow former H.R.P.P. members Faumuina Wayne Fong, and Laauli Leuatea Schmidt who went on to start a new political party to build an opposition that might one day run the Government. 

In September Tuilaepa issued his worst attack yet: calling out each and every opponent of the bills as “not Samoan,” while speaking in Parliament.

When the entire Judiciary wrote to the Samoa Law Reform Commission calling the bills unworkable and cautioning against letter the Constitution becoming “the play-thing of politicians,” any remaining doubts about the issues in the bills should have been cast aside.

Then-Acting Chief Justice Vui Clarence Nelson, Senior Justice Niava Mata Tuatagaloa, Justice Tafaoimalo Leilani Tuala-Warren, Justice Leiataualesa Daryl Clarke, Justice Fepulea'i Ameperosa Roma, Senior Judge Talasa Atoa-Saaga, Judge Alalatoa Rosella Papalii, Judge Leota Ray Schuster and Judge Loau Donald Kerslake signed the letter.

The letter was followed up with a 64-page submission to the Special Committee dealing with the bills, that not only criticised the content of the bills but also argued no one got enough time to consider them before they were tabled in Parliament.

“Considering what is at stake, the Judges are a loss to understand the “rush,” they wrote.

While the judges were making their issues with the bills known, the highest seat of the Judiciary remained unfilled, with Acting Chief Justice Vui at the helm of the bench’s opposition to the bills.

So it was unsurprising when, in late March, New Zealand based lawyer Satiu Simativa Perese was appointed Chief Justice while both New Zealand and Samoa were under strict lockdowns and his return to the homeland uncertain (he finally arrived in June and was sworn in on the 12th).

Judges, by the nature of their job, typically don’t speak out on national issues lest it risk their presiding over any court cases. But the risks posed in the three bills were simply too important to remain silent.

In fact, the signatories may have all made themselves ineligible to hear any incoming legal challenges against the bills, leaving just two current members of the bench (the Chief Justice and retired but recently sworn in Justice Lesatele Rapi Va'ai) able to hear the petitions.

In response to the Judiciary’s letter, Tuilaepa told TV1 in April that judges and lawyers have no place intervening with Parliament business.

“Once a legislation [sic] is passed, it's then passed on to the Courts to make rulings [based on it],” he said. 

“Lawyers and judges interpret the law passed by Parliament. We make the laws that keep the country in order and they interpret the law.  Judges and lawyers should know this.”

He also derided them for writing in English instead of Samoan, accused some judges of co-signing the letter without reading it, and repeated an incorrect claim that Judges had not taken advantage of an earlier opportunity to comment on reforms after a Commission of Inquiry in 2016.

(The Commission of Inquiry and its subsequent report dealt with issues in the Land and Titles Court but did not recommend changes to the Constitution and Judiciary as seen in the three bills tabled in March.)

Among the most vocal opponents are the President and members of the Samoa Law Society, who have given dozens of interviews explaining various clauses, fact-checking defences by others and made their own submission to the Parliament Committee on the problems in the reforms and in their own consultation practices.

They have been able to speak up where the Government’s own lawyers in the Attorney General’s office have been told to keep quiet.

The Samoa Law Society has publicly explained every nuance of the bills, and laid out their worries in black and white. They have spoken to media, to villages at the invitation of community leaders, to church groups and to Parliamentarians and maintained a strong opposition to the bills all the while.

President Leiataualesa Komisi Koria became President in 2018. In theory, he probably planned to spend his tenure much like his predecessors did: guiding the legal fraternity through collegial issues, offering training and legal education where needed and upholding standards for lawyers across Samoa.

Instead he has been thrust into a spotlight, where he has been urgently leaned on to provide clarity on these pieces of legislation. Leiataualesa responded to this attention with grace and dignity, and never shirked from his responsibility to not only his fellow lawyers, but to the Samoan people.

Chair of the society’s committee on the bills Taulapapa Brenda Heather-Latu has probably read the bills more times, and with the most attention to detail than anyone else.

Through her efforts, she has learned the intentions of the bills back and front, and can speak to every clause and explain why it is problematic and needs attention. 

When the bills were passed in the erroneous way they were, she spent the rest of the week studying the amendments, the draft bills and the original legislation to identify exactly what had happened and what it means for the law in totality.

All their work on these bills has been for free, while the work that actually pays the bills – legal expertise – had to continue too.

For their endeavours, Leiataualesa and Taulapapa have been acknowledged by the Prime Minister in his own way.

In April, he told Radio 2AP the society members “need medical assistance” and offered to send them overseas for treatment, suggesting perhaps they had “the COVID-19.”

He accused them of not understanding the purpose of the bills and said they are too “palagi” to understand why culture and tradition need to be protected in the law in this way.

“I must say that the law they are fighting for are (palagi) modern laws but we also need to consider our culture and traditions.

“That is why they need to think like Samoans, instead of being palagi all the time.”

And in October he said that S.L.S. is “embarrassing itself” by “acting too hastily” to “play nice with the English speakers,” and specifically lashed out at Taulapapa for allegedly disrespecting the office of the Attorney General.

“[She] does not understand anything anymore, and yet she is still being acknowledged as a former Attorney General of the Government,” he said.

“She should have crawled to give their submissions, to acknowledge and respect the work of the office she used to head, but this reflects the large issue in there. She should have remembered that.”

Undeterred, Leiataualesa and his colleagues pressed on.

“Sadly, this type of behaviour from our leaders is a hindrance to any meaningful public discourse on what are seriously flawed Bills,” the President said in response to the Prime Minister’s insults.

Behind Fiame, Viu, Taulapapa and Leiataualesa, the cavalry came.

In New Zealand, the local Law Society President, Samoan lawyer Tiana Epati stuck her neck out to say the new bills are not the right solution to fix an ailing court system, and that without proper consultation the Constitution should not be amended.

Without missing a beat, the Prime Minister told Ms. Epati to mind her “overseas presidential business,” and accused her and the Law Society of lecturing and interfering with Samoa’s “democratic processes.”

The Law Council of Australia soon joined the chorus against the bills, adding a note of concern that the bills were tabled in March, when there was no Attorney General or Chief Justice.

Despite the Prime Minister’s disdain for the opinions of Samoans overseas, a young organisation the Samoan Scholars Network made their own submission against the bills which was signed by 17 Samoan academics across several countries.

They even offered their expertise and time to help the Government achieve their desired outcomes without the radical and potentially damaging changes proposed in the drafts. 

Another paramount voice was the former Head of State, His Highness Tui Atua Tupua Tamasese Efi, who delivered a paper titled Anava a le Fuesuavai to the Prime Minister on the three bills in May. 

He detailed his concerns with the legal reforms and the changes to the Constitution, which he believes should have waited for a plebiscite of the Samoan people.

Again the Prime Minister lashed out, saying the former Prime Minister and Head of State needs “professional help to determine what is wrong with him,” after Tui Atua talked about the bills at a graduation ceremony in December.

“He’s retired and should remain retired.”

Fiu Mataese Elisara, Aiono Telei'ai Dr. Sapa Saifaleupolu, Associate Professor Togialelei Dr. Safua Akeli Amaama, and Leasiolagi Dr. Malama Meleisea each took the time to write extensive reviews of the bills, detailing their issues with them.

Even Former Chief Executive Officer of the Ministry of Justice and Courts Administration, Papali'i John Taimalelagi cautioned against changes to the Judicial Service Commission and weakening the judge’s independence.

Legal experts To’oto’ooleaava Dr. Fanaafi Aiono-Le Tagaloa, Mauga Precious Chang, Leulua’iali’i Tasi Malifa, former Supreme Court Justice Lautalatoa Pierre Slicer, Dr. Tamasailau Suaalii-Sauni, Fuimaono Dylan Asafo, and Auimatagi Ken Ah Kuoi each made their case in well researched and in-depth analyses of the bills.

Others who spoke up include Pacific focused researchers and Constitutional law experts like Dr. Anna Dziedzic, Dr. Bal Kama, and Professor Petra Butler of the legal organisation the Institute of Small and Micro States.

Overseas heavyweights soon joined the discussion too: Amnesty International, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, the International Bar Association’s Human Rights Institute, and separately its co-chair Justice Michael Kirby. 

Veteran public servant Ombudsman Maiava Iulai Toma wrote a lengthy submission to the Special Parliamentary Committee, offering much needed historical context to the debate and suggesting that simpler reforms to religious freedoms in the Constitution could well solve much of the alleged problems at hand.

And senior lawyer Salma Hazleman detailed how the way the bills were drafted and consulted on breaches the Government’s own rules on lawmaking, a trend which wouldn’t be bucked even on the day the bills were passed (by way of a list of amendments in a Committee report, instead of redrafted legal bills). 

The Congregational Christian Church of Samoa and Church of Jesus Christ of Latter-Day Saints also raised their concerns with the bills and were met with yet more derision from the country’s leadership.

They too got the Tuilaepa treatment.

“I will call them out and remind them they are now playing politics instead of sticking to their calling, and that is to serve the Lord,” Tuilaepa said in October during a routine interview with Radio 2AP.

All these people and many more stood by the courage of their convictions and spoke out against radical reforms that could genuinely harm each and every Samoan inside and out of this country.

They did not shy away from the fight, or back down when it got hard. And for their bravery they will be remembered by the next generation of Samoans as the people who spoke up for them and defended their fundamental rights in the face of a leader who would not be denied his vision.

What happens next remains to be seen, with a series of legal petitions filed against the new laws. But we know that until the laws are fixed or repealed, the Guardians of the Constitution will not rest.


Fanua ma Suafa
By Sapeer Mayron 31 December 2020, 9:00AM

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