Since their passage more than a year ago, the content of the former Government’s reforms to the nation’s legal system have been cause for deep concern for the health of the rule of law in Samoa.

But as we learn more about the circumstances in which they were passed, it is increasingly clear that they have been a challenge to another fundamental part of our democracy: the process of creating legislation. 

As the Samoa Observer revealed in Thursday’s edition (“Missing pieces of L.T.C. laws exposed”) a comparison of the text of bills to alter the constitution and to divide the judiciary passed by parliament and that assented into law contain discrepancies. 

The differences are not massive - but their significance is enormous, 

These gaps have been uncovered through a comparative analysis by this newspaper of the second reading version of the three bills passed by Parliament in December 2020 (known commonly as the ‘L.T.C. bills’) and those which became officially listed as Acts, or laws of the land. 

Among the provisions missing from the draft laws seen by the parliament but included in the final Acts include a provision requiring the new rules take effect over a staged time frame.

Another omission relates to the recently controversial issue of the Land and Titles Court (L.T.C.) Deputy President’s position.

Those bills given to legislators to vote upon included a range of qualifications on who could become the Deputy President of that soon-to-be-made-independent court.

The bill read in parliament stated the person can qualify to be the Deputy President if they practice law for no less than 13 years, have held a matai title and rendered matai service for not fewer than 10 years. But the final act signed by the former Attorney General is silent on the question of the Deputy President appointment and their required tenure in office.

The former prime minister Tuilaepa Dr. Sa'ilele Malielegaoi, argues that criticism of such discrepancies is “politicised” or owes to a misreading of the legislation.

We simply disagree and believe moving away from the moorings of legislation passed by parliament, however much, runs against the principles of democratic Government. 

Whether these differences between bill and Act materially affect the outcome and application of what were the most significant reforms of the VXI Parliament, they have unwound the implicit trust that we should have in the legislative process. 

This had already been badly damaged by the way in which the L.T.C. reform package was handled in parliament, having been railroaded through the legislature with what opposition Members of Parliament at the time described as an undue haste. The handful of M.P.s to vote against the proposed laws described being given insufficient time to read documents that were still warm from the parliamentary printer before being distributed for what was meant to be a considered vote. 

That alone was unacceptable. 

But now we find that the text of the bills was apparently changed between their second reading in parliament, a vote by M.P.s and their final receipt of assent to be signed into law by the Head of State and Attorney-General. 

The process of a bill becoming an Act is part of an unspoken compact between voters, their democratic representatives and those at the apex of our democracy who hold symbolic power, one in which the wishes of the people are held in the highest esteem always. Changing their wishes partway through the lawmaking process undermines the highest principles of democracy.

We should be able to expect, as a matter of principle, that bills do not change, by omission or addition, in the time between their being considered by lawmakers and being given official approval.

Democratically speaking, giving assent to a bill is little more than a formality. The power to debate and change its contents lies in the hands of the people’s elected representatives in parliament. 

But now that the gap between what M.P.s voted on and what became the official law of the land has been exposed it must be remedied. 

Full answers need to be provided about how these changes were made, by whom and when. If the answer is by any one other than a majority of the nation’s elected representatives then their legitimacy should very much be under question. 

But such alterations being made at all calls into question not only the validity of this legislation itself but also the broader process of lawmaking; such a democratic  should never be allowed to happen again.