Law has to be black and white, not grey

By The Editorial Board 20 June 2024, 10:00AM

This week the Supreme Court ordered the removal of the President of the Lands and Titles Court Letufuga Atilla Ropati 20 months ago was inconsistent with the Constitution and offended the principles of judicial independence, and was therefore unlawful.

Letufuga won his second legal battle in the Supreme Court claiming $750,000 as compensation.

The decision of the court has also brought about a predicament. What happens to the current President of the LTC Lesatele Rapi Vaai? He was appointed to the post in November 2022 soon after the removal of Letufuga.

Even though, Letufuga abandoned his challenge to the validity of President Vaai’s appointment and his consequential claim to be reinstated as the President of the LTC, this still is a tricky situation. For now he remains as President under the new law.

This is the type of situation that renews the call for laws that are clear and precise. It is a wake-up call for drafters of legislation that they have to word the legislation very clearly. Had this been done prior to the amendment of laws that allowed the establishment of the new LTC, the nation would not be at this juncture.

Accordingly, Justice Whitten found that Letufuga’s removal from office was in breach of the Constitution and therefore unlawful.

However, he said, if I am wrong about that and the Plaintiff’s removal is elsewhere held to have been lawful, then I am even more firmly of the view that the Plaintiff’s removal was contrary to the internationally recognised and accepted principles of judicial independence discussed above.

“Even if it be accepted that the revocation of his appointment as President of the old LTC was a necessary consequence of Parliament’s power to establish the new LTC, those principles clearly conferred on the Plaintiff a right either to be offered an appropriate position on the new Court or compensation. He was offered neither.”

The Court continued to note that as such, the President could only be removed by the Head of State on an address of the Legislative Assembly carried by not less than two-thirds of the total number of Members of Parliament (including vacancies).

This is a clear case of why laws should not be grey, they have to be black and white.

Once again Samoa’s laws have become a hindrance in progress. The gaps in the Judicature Act 2020 have also led to a delay in the appointment of new judges to the bench until further amendments are made by the House to fix the defective law.

Samoa needs new judges and the only thing stopping the appointment is the law itself. Isn’t this ironic?

But any plan to appoint Judges to the District Court and Supreme Court benches would have to wait until the legal document is in order as the new Judicature Act 2020 doesn’t make clear provisions to appoint Judges in the Supreme Court.

The not so clear and precise nature of Samoa laws led to the Constitution Crisis in 2021 and last year this led to the court case regarding the quota for women in parliament. The laws have to be clear, precise and not rushed.

Readability is a legal issue. One of the primary goals of drafting any document, including a statute, should be that its ultimate readers will be able to understand it. Documents and the laws that govern their lives are intelligible to them. If the laws in this country do not fulfill that purpose then it is high time things are corrected.

Nowadays, bills are too long for representatives to read, too complex for anyone to grasp, and too densely packed with alterations. Major policy changes or spending proposals are typically buried deep within bills, never to be revealed unless some enterprising aide or whistleblower should discover them and raise a fuss.

Even when these alterations are exposed, laws are often written in such opaque legal jargon that it's difficult to gauge whether such fuss is warranted. If dissenting lawmakers wish to challenge such provisions, there's no guarantee their concerns will be heard, as meaningful debate on whether the changes are justifiable as part of the many compromises and trade-offs contained in thousands of pages of legalese is nigh impossible.

In short, legislation as we know it today is far too complicated and too technical — making it a boon to lawyers but a bane of democracy.

Complex laws have not only undermined the functioning of the legislative branch, but the courts as well. Judges are often confronted with the need to "clean up" after lawmakers whenever a case involving long-winded, esoteric legal provisions raises questions of statutory interpretation.

If the lawmakers have not yet understood the need for clear and precise laws, then we will forever be in a rigmarole. 

By The Editorial Board 20 June 2024, 10:00AM
Samoa Observer

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