A fortnight ago a story ran on the front page of the Samoa Observer that revealed the Government’s plans to retain the Land and Titles Act and only “fix gaps in the law” which led to the restructuring of Samoa’s Judiciary.

The article (Government has no plans to repeal L.T.C. laws) published in the Wednesday 4 January 2023 edition of this newspaper was based on an interview this newspaper did with the Minister of Justice and Courts Administration, Matamua Vasati Pulufana.

The Minister told the Samoa Observer early this month that the Fa’atuatua i le Atua Samoa ua Tasi (F.A.S.T.) Government will make more amendments to the Act to "fix gaps in the law" – instead of repealing the suite of laws that the now ruling party campaigned vigorously against prior to the 2021 General Election. 

Matamua was asked about her party’s campaign prior to polling in 2021 to throw out the three laws that they strongly opposed. The laws – which were rushed through the legislative process by a Human Rights Protection Party-dominated parliament and passed in December 2020 – are the Constitution Amendment Act 2020, the Land and Titles Act 2020 and Judicature Act 2020.

According to the Minister, Parliament had approved amendments to the L.T.A. 2022 which mainly focuses on the appointment of Samoan judges, and there are further proposed changes that are still needed.

“The true spirit of why we wanted to repeal the L.T.C. laws at the time were because of the flaws in the amendment which some of those gaps have now been filled,” Matamua said in an interview. 

“From my own perspective there is no difference in repealing the laws and using it but filling the missing gaps that we did not agree with.

“What F.A.S.T. advocated for is being implemented through amendments and had prioritised amendments on judges' appointments to ensure there is no further delay in Courts operation…”

However, a New Zealand-based Samoan law academic with Auckland University, Fuimaono Dylan Asafo told this newspaper last Thursday that the three Acts are “a real threat to fairness and justice in Samoa’s court system”. 

“In my view, it is critically important that all 53 MPs in Parliament come together to repeal (or at least significantly amend) these three Acts as soon as possible. This is because these Acts post a real threat to fairness and justice in Samoa’s court system,” Fuimaono said in an email response to questions sent by the Samoa Observer.

“The main parts of the Acts that need to be taken out by Constitutional amendments are the ones that remove the ability of the Supreme Court of Samoa to hear appeals from the Land and Titles Court where they can apply fundamental human rights laws to customary law claims where necessary.

“It is crucial that the people of Samoa have the ability to challenge and appeal decisions of the Land and Titles Court to the standard Supreme Court because are best placed to hear appeals and apply fundamental human rights where necessary.”

So how do the voters in Samoa feel about the Government’s decision not to fulfil its election promise, to repeal the suite of laws that a lot of citizens three years ago felt should have no place among our enacted laws, due to their long-term ramifications on the rule of law and Samoan democracy in general?

To jolt your memory, let’s take a walk down the path of what can now be categorised as Samoa's contemporary history. It wasn’t long ago, in fact just three years ago, when details first emerged of the former Administration’s plans to introduce the L.T.C. Bills to restructure the Judiciary. 

It triggered a public uproar with even Justices of the Courts and eminent jurists and legal scholars including the Samoa Law Society, as well as international human rights organisations such as the United Nations appealing to the former H.R.P.P. Administration to abandon its plan to restructure the Judiciary. 

Fast forward to January 2023 and it appears to be business as usual for the F.A.S.T. Government, now that it has entrenched itself in power, having navigated the turmoil and the challenges that came with the 2021 Constitutional Crisis.

Funnily enough, if not ironically, even the Samoa Law Society has stayed quiet after the Minister's statement despite being a vocal critic of the suite of legislation in 2020. 

So here we are – entering a new year that should hold a lot of promise and opportunities for a fresh start for the citizens of this nation – until you take a look at Sections 56-57 of the recently enacted Land and Titles Act 2020 and you realise how we’ve digressed as a society by agreeing to remove Supreme Court oversight on all L.T.C. matters with the stamp of approval from the XVII Legislative Assembly.

Let’s take a closer look at Sections 56-57 of the above mentioned law:

56. Decisions and orders not reviewable by other Courts: (1) Subject to Part IX of the Constitution and this Act, no decision or order of the Land and Titles Court of Appeal and Review, Land and Titles High Court or Land and Titles First Court shall be reviewed or questioned in any other Court by way of appeal, or prerogative writ or otherwise whatsoever. (2) A decision of the Land and Titles Court of Appeal and Review is final, pursuant to Article 104C(9) of the Constitution. 

57. Supreme Court and Court of Appeal Decisions not binding: (1) The decisions of the Supreme Court and Court of Appeal are not binding on the Land and Titles First Court, Land and Titles High Court or Land and Titles Court of Appeal and Review. (2) All decisions of the Supreme Court and the Court of Appeal on matters the subject of the jurisdiction of the Land and Titles Court issued and delivered prior to the commencement of the Constitution Amendment Act 2020 and this Act, shall not bind the Land and Titles First Court, the Land and Titles High Court and the Land and Titles Court of Appeal and Review. (3) All rights or interests created or vested by the decisions referred to in subsection (2) shall subsist.

As a voter don’t you feel betrayed at how the F.A.S.T. Government has handled this issue and given this controversy a new twist that even the powers-that-be on the Opposition bench are rubbing their hands with glee?

Fine, we accept that the Government with its 31 Members of Parliament lacks the two-thirds majority needed to repeal the L.T.C. Acts. But can Prime Minister, Fiame Naomi Mata’afa lead negotiations with individual H.R.P.P. Members to vouch for their support when and if the proposed bill to repeal the laws is tabled before Parliament?

How about making a public appeal to the different constituencies whose Members are in Opposition to ask them to pressure their Members to vote for the bill if it is tabled in the House? Or did the Government throw in the towel simply because they believe they couldn't muster the numbers if the vote is put to the House?

Nonetheless, the analysis by Fuimaono and his call for the Acts to be repealed makes a lot of sense – and we don’t look forward to the day when families feel their rights being trampled upon – due to the decision by the current Parliament to give its blessings to a set of laws that are draconian in nature, and don’t deliver justice following the removal of Supreme Court and Court of Appeal oversight.

Again, it is a new year and where do we go from here as a nation that believes in the rule of law and a democracy that upholds fundamental human rights? It is time this Government delivers on its election promises by beginning the process to remove these laws and not take the people for a ride.