The Attorney General insists the new Land and Titles Courts reforms do not remove Samoan’s rights to have their decisions looked at by a judicial review, after a protesting political group claimed they did.

Last month Samoa Solidarity International Group (S.S.I.G.) took their concerns over the bills to the Head of State’s residence, pleading with him not to assent the three new bills into law despite him having no real power to do so.

Representative and lawyer, Unasa Iuni Sapolu said S.S.I.G. will take their concerns with the Land and Titles Court Act, Judicature Amendment Act and Constitution Amendment Act all the way to the United Nations next.

The group believes the L.T.C. laws breaches articles in the Constitution by removing individual rights to seek remedy in the Supreme Court. 

Before the changes were passed in Parliament in mid-December, the L.T.C. had its own appeal court for the substance of decisions, while the Supreme Court had jurisdiction over breaches of fundamental human rights. 

For example, someone who believed they had not had a fair trial in the Land and Titles Courts could seek a Judicial Review in the Supreme Court to test whether their trial had been conducted fairly.

Judicial Review is different to an appeal, where the actual decision made by the judge is questioned. But if a Judicial Review finds a trial was not conducted correctly a complainant may have grounds for a retrial.

There is been no way to appeal L.T.C. decisions to the Supreme Court because the former has exclusive jurisdiction over land and title matters.

Today under the new Land and Titles Court structure which is removed from the authority of the Supreme Court and given its own Appeal and Review Court (L.T.C.A.R.), individuals can review their decisions in the Land and Titles First Court and High Court.

“So that means, any person wishing to judicial review a decision of the Land and Titles Court is still able to file a judicial review with the L.T.C.A.R., a Court presided by legally qualified judges with revisional and appellate jurisdictions,” Attorney General Savalenoa Mareva Betham-Annandale explained in a statement issued on Tuesday evening.  

“The new changes will also introduce the use of common law grounds of judicial review for L.T.C.A.R. matters - such as procedural impropriety, illegality, rationality- a wider scope compared to what has been available.

“No right has been removed […] and as such the S.S.I.G. claim is misleading and deliberate [sic] endeavours to misinform the public.”

However critics of the three laws, which were passed in Parliament with just four votes in opposition, have long said removing the Supreme Court’s authority from the L.T.C. is problematic.

Replacing that right of review with a court other than the Supreme Court is not a solution, they say.

This is because the Supreme Court is the highest court of Samoa and is the protector of Samoa’s Constitution. Only the Supreme Court can rule on breaches of the Constitution, including breaches of fundamental rights.

The right to a fair trial is enshrined in Samoa’s Constitution.

“This removes an important protection for Samoans who feel that their constitutional rights (such as the right to a fair trial) have not been observed in the L.T.C.,” Samoa Law Society President Leiataualesa Komisi Koria said in April 2020.

Former assistant Attorney General and prosecutor Murial Lui said doing this contradicts the Constitution. 

“It [the Constitution] is under the ambit and protection of the Supreme Court, at the jurisdiction of the Supreme Court,” Ms Lui said in April.

“However, if you remove that and have these rights enforced by a court that is resourced by people with no legal background, you will have these people who have no legal training interpreting the Constitution and deciding your Constitutional rights.”

Lawyer Fiona Ey explained in an article for the Lowy Institute that: “by removing the Supreme Court’s supervisory jurisdiction, the proposed changes would abolish the application of fundamental human rights from customary matters. 

“In the past, certain actions claimed to be taken on behalf of the community, such as beatings or house burnings, have been declared by the Supreme Court to violate fundamental rights.

“The removal of Supreme Court oversight of the L.T.C. would effectively leave village fono with decision-making power unfettered by human rights considerations.”

In her statement on Tuesday, Savaleno said the views of S.S.I.G. are “misconceived,” and that the new laws offer wider grounds for judicial review than only breaches of fundamental rights.

“The S.S.I.G.’s claim that the 3 Acts will take away individual rights to take their grievances to the Supreme Court, is misconceived.

“The grounds that are now available are wider than the ground of a breach of a fundamental right under Part II of the Constitution that has been available. 

“Therefore, the new changes introduced by the Constitution Amendment Act 2020 and the Land and Titles Act 2020 will continue to provide the right to judicially review decisions of the Lands and Titles Court on wider common law grounds for judicial review.”

However lawyers have said this does not go far enough to protect what is enshrined in the Constitution, nor does it do what proponents of the Acts insist it will do, which is fix the problems outlined in a 2016 review of the court.

“Another layer of Court does not actually address the specific deficiencies identified in the 2016 Parliamentary Committee findings (even though they were hampered by the prohibition on L.T.C. judges to give evidence and offer their views, and the refusal of the Attorney General to assist them citing a conflict of interest),” former Attorney General Taulapapa Brenda Heather-Latu said in June.

The report from the Parliamentary Committee in 2016 cited issues of delays in having cases heard, delays in receiving decisions with some parties waiting up to 30 years.  It also identified the lack of confidence in the independence, competence and integrity of the L.T.C. staff and judges.

Taulapapa said these issues are not solved by the new L.T.C. structure, and may even be worsened by it.