Laws dismantle justice, attack freedoms: former A.G.
A year on from the introduction of three controversial bills into Parliament aimed to overhaul the judiciary, the former Attorney-Generalm Taulapapa Brenda Heather-Latu, believes justice in Samoa has been “decisively dismantled.”
In a letter to this newspaper sent on Saturday, Taulapapa said the initial threat posed by the rule of law by the Land and Titles Court Bill 2020, Judicature Bill 2020, and Constitution Amendment Bill 2020 very real, but became even worse after they were passed into law last December.
She says having fully reviewed the three Acts, which were passed in one Parliament sitting in late December to include recommendations in a Parliament committee report, she believes they do more damage to the rule of law than was ever anticipated:
“[These laws are] the most direct and egregious attack on our Constitutional freedoms," she writes.
“Why then has this occurred? The widespread public debate was only created and public opposition to the measures activated because of the arrogance and the calculated ‘overreach’ of a party too long in power and contemptuous of the rights and freedoms of its citizens."
Independent M.P.s complained significant changes had been inserted into the bills "hot off the press" on the day of their passage into law, not allowing Parliament adequate time to scrutinise their impact.
In her letter, she lists the new changes to the three Acts, which were not included in the initial draft bills and circulated for public consultation, which Taulapapa says breaches “every Legislative convention and Parliamentary process known to democratic Governments.”
The changes include restricting new Matai Sa'o from living outside Samoa, expanding the scope of the Land and Titles Court (L.T.C.) beyond land and title matters to any village council decision. The newly autonomous and parallel L.T.C. court, she argues, upends the hierarchy of the court, leaving its judgments beyond judicial review by the Supreme Court.
“The past Court of Appeal decisions as appellate level decisions, have been decided by the most senior judges of our own and neighbouring jurisdictions whose systems of justice we once subscribed to, and are without exception decisions of great practical significance which have set the Constitutional boundaries between law and custom since independence and have addressed issues such as: banishment; the exercise of the freedom of religion; and the validity of matai suffrage,” she said.
She said the Acts also now allow any Samoan to attempt to appeal any old L.T.C. decision, even if they were not a party to the case.
“The right to re-litigate old L.T.C. decisions raises enormous issues about the certainty of law and the re-opening of decisions which are decades old, possibly by people who were not present or even alive during the earlier hearings, yet now can seek to challenge those findings with very little guidance as to the criteria which will be applied to allow this ‘special right of appeal’,” she said.
The final Acts do not offer any method to resolve potential conflicts among the different courts, she continues.
Another change, to limit the Court of Appeal panel to only one non-Samoan judge where previously the Chief Justice had the discretion to choose, Taulapapa calls “yet another example of the ‘inward and backward’ looking policy currently enforced within government, which sees public officials refusing to speak in English at press conferences and meetings, when they are speaking on matters which have been largely funded by English speaking international donors.
“The level of public abuse and personal denigration faced by all those who expressed concern and opposition to the Three Bills was unrelenting and vicious.”
Last year Taulapapa led a Samoa Law Society committee dedicated to investigating the three bills and their impacts on Samoa.
When the three bills were passed in December she attempted to piece together the final results when no such bill was tabled to be voted on, but instead, a list of recommended amendments was approved instead.
In her letter, she says the Acts in their now legal form dismantle the choices of Samoa’s leaders that helped make it the first independent Pacific nation.
“Samoa is a country which was blessed by strong yet humble leaders, whose wisdom and humility led us to Independence (the first in the region), and then made the decision to include a suite of fundamental rights and freedoms in Part 2 of our Constitution, based on the Universal Declaration of Human Rights," she writes.
“The new Acts dismantle those actions, and the promise of freedom and peace guaranteed by a Constitution adopting the Westminster system of Parliamentary democracy with three branches of Government, separate and independent, overseen by the Rule of Law, all made possible by the foresight of our cultural, religious and commercial leaders of the time, now sadly denigrated after 59 years.
“From today’s leaders, we seek inspired guidance not based on personal gain or profit, but for the common good. We should demand contracts which are properly tendered, resources which are used for the benefit of many (not just the special few), choices made not for political or personal gain and for shameless ‘pork barrelling’ but because they’re the best we can do.”
Taulapapa’s letter is printed in its entirety below:
Justice …. Eventually and Decisively Dismantled
By Taulapapa Brenda Heather-Latu
It is almost a year to the day when comment and concern started to filter into the public arena, about the contents of the ‘Three Bills’, and the detrimental impact which their passage into law would have upon the fabric of Justice and the proper administration of a legal structure which we had inherited from England (via its former dominion: New Zealand), and then have modified over a 59 year period (since independence) to suit our own needs.
Led by a normally (and conventionally) silent Judiciary, the chorus of disquiet soon became a flood of opposition, to measures which according to the Law Society would:
‘…replace the entire Court and Justice system in Samoa with a ‘twin tower’ structure, whose foundations substitute the Rule of Law (as provided for in the Constitution) with Samoan custom and usage – however defined and decided by the new Land and Titles Courts – with those Courts becoming the ‘Supreme Authority’ for all matters of Samoan custom and usage, and also given Constitutional status'
The points of major concern for both the national and international commentators on the Three Bills as they were originally drafted included:
The removal of the right of access for all litigants with a Land and Titles matters to their Constitutional right to refer their decisions to the Supreme Court where they considered their right to a fair trial had been breached in any manner including where the Land and Titles Court had acted illegally or without legal authority;
The expansion of the jurisdiction and authority of the new Land and Titles Court to areas of commerce, family and village life which was unjustified and unwarranted, yet without any apparent limits or controls, other than the discretion of the President of the Land and Titles Court, thus effectively replacing the traditional authority of the Chief Justice of the country over all the Courts, as the Head of the Judiciary;
The deliberate weakening of the status of the Supreme Court in the hierarchy of Courts as a Superior Court able to offer a Constitutional ‘check and balance’ to the conduct of the only specialist Court (being the Land and Titles Court ‘LTC’) consisting predominantly of non-legally qualified judges with expertise in matters cultural, but not legal;
The lack of any justification for such a massive change to the Constitution and the Court system, which was not recommended in the 2016 Parliamentary Special Inquiry Committee Report, whose recommendations focused on strengthening the LTC through targeted resources and attention to case management and their processes, and maintaining the role of the Supreme Court;
The inappropriate use of laws to dictate the affairs of Samoan Matai and their families best illustrated by the statutory limit imposed of 5 Matai Sa’o (senior matai) per family;
The lack of any proper public consultation prior to, and in the course of, preparing the Three Bills.
In response to the increasing public criticism, a Special Parliamentary Committee was specially appointed, chaired by a senior Member of Parliament, but otherwise populated by a group of first term MP’s from the ruling party (with the exception of one independent member who has subsequently registered with the ruling party), deliberately given a platform to prove their loyalty and fealty to the ‘Party of One’.
In collusion with lawyers paid from the public purse and taking direction from the Party of One (rather than the Rule of Law), a never before seen Parliamentary Roadshow of Committee members and a large supporting cast of officials from 4 Government entities (together numbering 20 people or more), would descend on most villages or districts, over a four month period (also funded by the public purse), not to listen to the views of the people (as is the usual function of Parliamentary Committees), but to strongly advocate for the passage of the Three Bills citing the need to restore the importance and significance of ‘Aganu’u Samoa’ (Samoan custom and tradition) which has been undermined by a ‘palagi’ Constitution and laws, and delicately avoiding the concerns expressed by local and international jurists .
And then in a remarkable feat, not previously undertaken or tried by any other Pacific Parliament, Samoa’s Legislative Assembly then passed three Bills in December 2020, sight unseen, by simply passing the recommended amendments to the original three Bills (as contained in the Special Parliamentary Committees Report to Parliament), without tabling or distributing any actual Bills to the Speaker or any Members of Parliament.
In fact, the Three ‘Acts’ were not available to the public until January 2021, and when closely examined not only included the amendments proposed in the Report but, outrageously (but not surprisingly), included new provisions not in the original Bills OR the Parliamentary Committee Report, suggesting that provisions were only drafted or added after Parliament had purported to pass three Bills which were not physically before it, (perhaps during the Christmas break), and in doing so, breaching every Legislative convention and Parliamentary process known to democratic governments.
What then are the new additions not in the previous Bills?
The three Acts continue with most of the original provisions with some changes. The Matai Sao issue (which caused a great deal of opposition in the villages) was addressed by removing the arbitrary limit of 5 per family, but has been replaced by a much broader prohibition which prevents Matai Sao from being domiciled ie resident, outside Samoa, so families no longer have the right to choose or have Matai Sao who live overseas. This has far ranging and extensive implications for many families who have senior and influential Matai who live in New Zealand, Australia and the United States especially, and once again has been dictated by law and will be regulated by the LTC, rather than being a matter for the sole discretion of each individual family group.
The creep of the Land and Titles Court jurisdiction beyond just customary land and Matai titles is clearly authorized under the Acts and allows the LTC to decide on any matter determined by the Village Fono or affecting Samoan custom and tradition and potentially exposes all Fono decisions to their oversight ie on the proper distribution of fines, or matters internal to the village.
Further alarming provisions in the version of the Acts finally released in January 2021 are:
The fact that any and all past decisions of the Supreme Court and Court of Appeal ‘are not binding’ on the three new Land and Titles Courts, which means that they don’t need to be followed and can be ignored by the new LTC including the decisions of our highest Court – the Court of Appeal. The rejection of the doctrine of precedent, where lower courts must follow the decisions of higher Courts has effectively dismantled our jurisprudence (legal system) by stating in law, that all past decisions on matters relating to the (now very) broad jurisdiction of the LTC, are effectively of no further use, application or benefit to the new LTC legal system, which is now free to decide, and also free ‘to err’ with impunity. This measure attacks the hierarchy of Courts which were established as the framework of our system of justice, and leaves the standard now to be applied by the new LTC and all Courts, the ‘undefined’ and some would say ‘indefinable’ concept of ‘Samoa custom and usage’. The past Court of Appeal decisions as appellate level decisions, have been decided by the most senior judges of our own and neighboring jurisdictions whose systems of justice we once subscribed to, and are without exception, decisions of great practical significance which have set the Constitutional boundaries between law and custom since independence and have addressed issues such as: banishment; the exercise of the freedom of religion; and the validity of matai suffrage, to name but a few of the issues decided by the once highest Court of the land;
The fact that the Act now allows any person or the Alii and Faipule of a village to claim a customary interest in any freehold land (or any land where its’ status is in doubt) and file a petition with the Land and Titles Court for an Order declaring such land to be customary land, which may be granted if the person registered as the owner consents to such Order;
There is now the ability of any Samoan (not appearing to be limited to a party to the decisions) to request Special Leave to Appeal any past decision of LTC made under the Land and Titles Act 1981 (or earlier if recognized under that Act) and given a 12 month period (from last month) to make such a request. The right to re-litigate old LTC decisions raises enormous issues about the certainty of law and the re-opening of decisions which are decades old, possibly by people who were not present or even alive during the earlier hearings, yet now can seek to challenge those findings with very little guidance as to the criteria which will be applied to allow this “special right of appeal;
The changes to the manner in which Judges are appointed, suspended or removed which are not independent or separate from the Executive branch of Government, with greater involvement of political actors and appointees in such decisions, effectively undermining the security of tenure for all judicial officers, who no longer enjoy the necessary safeguards against inappropriate political influence in Court proceedings and decisions;
The lack of any means in the new Acts to resolve the inevitable and potential conflict in jurisdictions ( which Court Rules ?) eg. where the Supreme Court has powers to decide a civil matter, which also may have a Land and Titles aspect, and where the Supreme Court are required to enforce LTC Orders which they have not made and have had no involvement in, yet are expected to exercise the coercive powers of the Supreme Court (which include imprisonment and financial penalties) for the benefit of LTC decisions which may be legally defective;
A direct departure from the custom where Samoa appointed Senior Judges from around the Commonwealth (previously at the discretion of the Chief Justice), to sit on our Court of Appeal, which gave credibility and enhanced the status of our legal system, which has now been limited by law to only one non Samoan judge, which is far less than we had before. This appears to be yet another example of the ‘inward and backward’ looking policy currently enforced within government, which sees public officials refusing to speak in English at press conferences and meetings, when they are speaking on matters which have been largely funded by English speaking international donors….How this possibly supports our international relations is unknown, but reflects great insecurity and perhaps a brand of jingoistic nationalism found in a few other countries led by Parties of One….
In fact the events of the previous year have been confounding, when considering the behavior of senior public officials meant to act in the best interests of the community from whom they draw their purpose, their legitimacy and status and, of course their salaries).
The level of public abuse and personal denigration faced by all those who expressed concern and opposition to the Three Bills was unrelenting and vicious.
The object of opposition was the contents of the Three Bills, which many of us considered last year to have been the most direct and egregious attack on our Constitutional freedoms. Little were we to know that the actual Acts passed in breach of Parliaments own Standing Orders would be worse.
Why then has this occurred? The widespread public debate was only created and public opposition to the measures activated because of the arrogance and the calculated ‘overreach’ of a party too long in power and contemptuous of the rights and freedoms of its citizens.
Like the attempt to eject two validly elected MP’s from Parliament, Parliamentary Democracy still owes its legitimacy to the people who elected the MP’s, and the limits imposed by the Rule of Law, which late last year was applied by the Supreme Court to correct the actions of the Speaker and a vote of the otherwise mute Parliament.
The three Bills awoke and inflamed a long simmering sense of injustice and embarrassment, by the citizens of a country once known for the respectful nobility of its people, who practiced its often proclaimed Christian values and who respected its cultural traditions and customs.
That we have allowed Crude, Rude and Graceless politics and politicians to define Who we are as a nation, and to Direct the way we behave, is a decline for which we are all responsible ,whether by our delight and laughter in hearing the crude language and the politics of abuse, or by our willingness to adopt the same behavior in our communications in social media, where the faceless and nameless keyboard warriors in their brave anonymity, dismantle the people who cross their paths with abuse, torrents of ill will and the basest of human behavior or by not speaking up when we know something is wrong.
Internationally, we currently co-chair the ‘Bullies of the Pacific’ sub-group along with our close neighbor Fiji.
In respectfully acknowledging my ‘Tainui’ whakapapa, I am reminded of a Maori saying :
E toa ai a Whiro, me noho puku noa a Kou tāngata—all that evil needs to triumph is for good people to do nothing.
We deserve more.
Samoa is much more than just a poker table where the winner takes all and then gets to decides (along with his close and extended family members and his stable of ‘simpering sycophants’) how we all will live….
Samoa is a country defined by the skill and art of the navigators who first settled this paradise; it is defined by a system of social values which have at its very core, wise and respectful care for its people;
Samoa is a country which was blessed by strong yet humble leaders, whose wisdom and humility led us to Independence (the first in the region), and then made the decision to include a suite of fundamental rights and freedoms in Part 2 of our Constitution, based on the Universal Declaration of Human Rights.
The new Acts dismantle those actions, and the promise of freedom and peace guaranteed by a Constitution adopting the Westminster system of Parliamentary democracy with three branches of Government, separate and independent, overseen by the Rule of Law, all made possible by the foresight of our cultural, religious and commercial leaders of the time, now sadly denigrated after 59 years.
Fortunately we still have a free press, which have, across all media platforms, remained vigilant and expressive, and have continued to do their jobs of informing the public, even in the wake of threats and constant abuse, and not so long ago, represented the only public opposition to the excesses of government power. The free press in all its forms are fundamental to the ability of the public to make informed choices and decide what is good for themselves they are critical for democracy. We are grateful they are still able to operate although restrictions have been applied.
From today’s leaders we seek inspired guidance not based on personal gain or profit, but for the common good. We should demand contracts which are properly tendered, resources which are used for the benefit of many (not just the special few), choices made not for political or personal gain and for shameless ‘pork barreling’ but because they’re the best we can do.
We should oppose measures which limit our ability to vote also called ‘voter suppression’ so much in the news in the United States, but also here in Samoa where no one has been able to explain why some of us must travel to our Savaii and rural electorates, to cast our votes given the detailed checks undertaken over the past 5 years to ensure we are eligible to be registered there as a voter.
We need political leaders who manifest the ‘Fruits of the Holy Spirit’ in all they do (ie when you allow the Holy Spirit to guide your life, as drawn from the Book of Galatians) and where their actions are led by: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness and self-control, in order to defeat selfishness, corruption, greed, nepotism, arrogance, pride and the absence of love, and the separation from God through sin.
At this time when we remember and commemorate the Crucifixion and Resurrection of our Lord Jesus, we so need the guidance and help of the Holy Spirit to guide each of us: both the leaders and the led, through these trying days.
May God Bless Samoa and
May His hand of Grace lead us in peace and prosperity.