Attorney General's material "propaganda": Fiame
Fiame Naomi Mata’afa has described the Attorney General’s publication of a defence of three new laws that will reshape the nation's legal system fundamentally as "propaganda".
Speaking to the Samoa Observer on Wednesday, Fiame said in the three weeks since the bills were passed, Parliamentarians were yet to see a complete copy of the new laws.
The Land and Titles Court Bill 2020, Constitution Amendment Bill 2020, and the Judicature Amendment Bill 2020 passed into law on 15 December. A total of 41 M.P.s voted for the legislation; only four opposed it.
Since then, the Office of the Attorney General has been releasing a series of explainers on the new legislation.
“It is propaganda to the extent that there is no text to go with it. Unless you have a text you can’t say if it’s right or not right,” Fiame said at a Faatuatua i le Atua Samoa ua Tasi (F.A.S.T.) party campaign event.
“They are actually backtracking on a lot of stuff that they said, but we can’t say that for sure because we haven’t seen the body of the law.”
The laws amend the constitution and create an autonomous Land and Titles Court (L.T.C.) beyond the scope of the review of the Supreme Court. They would also increase the Prime Minister’s power to determine the composition of the judiciary.
The Attorney General was contacted for comment on Wednesday.
The legislation became the official law of the land on Tuesday after they were assented to by the Head of State, His Highness Tuimalealiifano Va'aletoa Sualauvi II.
Despite this, the legislation has not been published online for public viewing or made available to Members of Parliament by the Office of the Legislative Assembly.
Fiame said without access to a copy of the laws in their entirety it is difficult to discuss the new legislation.
“I don’t have the body of the new legislation in one document so I can actually see what has been changed,” the former Deputy Prime Minister said.
“No one has seen that, so unless we see that it’s hard to have a proper discussion. They (the Attorney General) are picking at things, and that is all very well but that is the first step that needs to be taken.”
The leader of the F.A.S.T. party, La’auli Leuatea Schmidt, said it is not right that the Attorney General has time to read and process the new laws when even the M.P.s who voted them into law have not.
“We were trying our best during the last reading to get a detailed explanation but that didn’t happen,” he said, referring to repeated requests for more time being rebuffed by the Speaker of the House Leaupepe Toleafoa Faafisi.
“The Attorney General has her own opinion. But the whole Parliament does not understand what is going on. There was no time for us to read them, there was no time for us to discuss them.
“The Attorney General has the time to read and go through them. But the Attorney General doesn’t sit inside the Parliament to pass the laws, we do. And we weren’t given the time.”
In the latest of these explainers, Attorney General Savalenoa Mareva Betham-Annandale said despite criticism of the legislation, the new laws “do not remove” judicial review of L.T.C. decisions.
According to Savalenoa, review of the court’s decisions can be sought through the newly established Land and Titles Court of Appeal and Review.
But L.T.C. decisions will be beyond the scope of review by the traditional venue for reviewing legislation and determining its constitutionality: the Supreme Court.
“You can’t have two [courts],” Fiame said on Wednesday. “What happens if they clash?”
“You have two courts and one Constitution. [What] if they don’t agree, and if there is conflict in the court system on interpretation?
“We all want some finality from the courts […] the interpretation needs to say who makes the last call.”
Under the new laws, the L.T.C. will become an entirely self-sustained legal structure and have its own First Court and High Court for appeals.
Until now, the Supreme Court only dealt with L.T.C. matters when breaches of the constitution were alleged.
Fiame, and legal scholars both in and out of Samoa, have been arguing that no judicial body other than the Supreme Court should have such authority.
The former Assistant Attorney General and prosecutor Muriel Lui said in April, shortly after the legislation was first proposed, that the new Land and Titles Appeal and Review system will not have experts in the law or in interpreting the Constitution at its helm.
“It [the Constitution] is under the ambit and protection of the Supreme Court, at the jurisdiction of the Supreme Court,” she said.
“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 published by the Australian think tank 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.”
By shifting judicial review from the Supreme Court to the new autonomous L.T.C. system, the Attorney General maintains “no right has been removed.”
The final Parliament sitting before it is dissolved is Tuesday 19 January.
The full explanation of the role of judicial review of L.T.C. decisions published by the Attorney General is reprinted verbatim below.