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Lack of consultation on L.T.C. a breach of more than process

Much has been said about the potential future harms of changes to the Land and Titles Court (L.T.C.) to democratic lawmaking in Samoa. 

But what about those already done?

A story on the front page of yesterday’s Samoa Observer (“L.T.C. Consultation flawed: lawyer”) makes plain just how many law-making procedures have already been simply ignored in these bills’ passage to Parliament. 

According to the Government’s own requirements, senior lawyer Salma Hazelman noted, once a bill is drafted, the Government is required to consult firstly with its own Ministry and secondly relevant stakeholders. 

As Ms. Hazelman makes apparent, these requirements for drafting legislation appear to have simply been cast aside in an apparent rush to have the bills to create an independent court through Parliament.

The procedure for drafting legislation in Samoa is intended to follow a strict process that involves the relevant Ministry for any bill carrying out consultation with people likely to be affected by the bill or, in legalese, “relevant stakeholders”.

When it comes to the bills transforming the L.T.C. into an autonomous new body, a change that requires altering the fundamental document on which Samoa itself is built, almost every Samoan must be considered a “relevant stakeholder”.

According to its own Legislative Drafting Requirements manual, the Ministry should instruct the drafter to incorporate this feedback into a bill before it goes to Cabinet and onto Parliament. 

But according to Ms. Hazelman, of the 17 steps required to be followed before a bill even reaches Parliament, we are only now at step 15, having missed all the preceding critical steps.

Instead, the three bills in question have reached their second reading stage at Parliament being on the verge of passage after a third reading speech. 

The surprise and protest with which the L.T.C.-related bills were met: by judges, members of the legal fraternity and the Samoa Law Society is itself testament to the degree to which these changes were rushed through without consultation. 

The Government has attempted to anticipate this criticism by saying that an earlier 2016 inquiry into the Land and Titles Court was the time for consultation on the Court and its issue.

This is not true.

The 2016 inquiry did not even approach the degree of fundamental change the current bills propose. That conclusion is supported by a simple reading of its recommendations, particularly number 16: that judicial review of L.T.C. cases by the Supreme Court continue.

The current bills, of course, would create a court whose decisions cannot be appealed by the Supreme Court. 

To say that the 2016 inquiry served as consultation for the proposed changes of 2020 is absurd. 

Given the scale of the Government’s proposed changes to the Supreme Court and its potential impact on Samoa, its system of Government and its international reputation, it is simply shocking that the Government neglected its own obligations. 

In the last week alone we have been warned that the bills, if passed, would severely damage Samoa’s reputation including its membership of organisations such as the Commonwealth. 

The way in which the Government’s changes would create a new branch of Government and so undermine the judicial principle of having decisions reviewed by the Supreme Court, has also earned us a rebuke from Amnesty International.

More importantly, though, the proposed bills would alter the very foundation on which Samoa is built: its constitution.

This gives us a penetrating insight into the Government’s regard for procedure but also the opinions of others, including its own citizens, even when it comes to something so fundamental as constitutional change. 

The need for external consultation is heightened hugely by the near-total absence of opposition in the Parliamentary chamber. The sheer dominance of the Human Rights Protection Party in the Legislative Assembly means that it cannot be an effective mechanism for providing scrutiny or feedback on legislative change. 

In the wake of the controversy, the move to introduce these bills has provoked the Government to now insist that it is pursuing a thorough consultative process.

But this casts in a revealing light how much importance it ever really placed on seeking and incorporating others’ views when pursuing its agenda, even when it is as significant as this. 

The Government believes that by having a Parliamentary Select Committee travel across Samoa soliciting opinions on the bills that it will silence those critics who accuse it of not giving the public a say on a bill that will change the fabric of this nation.

“The bills can’t go through to the third reading without going through this [consultation] process,” the Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi says. 

“Ninety days, that’s three months. This was one of the concerns from the [Law Society] that there was not enough time for any consultation.”

We believe that, ironically, it does the opposite and shows the consultation for what it is: an afterthought designed to keep up appearances rather than seek public input.

As Ms. Hazelman says: “I feel for the Select Committee, it means they are given the extremely difficult task to try and listen to concerns, ideas and grievances of stakeholders within our community which really should’ve been happening at the beginning.”

What is more, the consultations currently being pursued are not binding. Even if the Select Committee meets with overwhelming opposition in the villages, Parliament is not bound to respond to or incorporate its recommendations into the legislation. 

The L.T.C. reforms are an example that raises questions about how often the Government is ignoring its own guidelines for the legislative process. 

But as proposed changes to the nation’s Constitution, it is clear that these pieces of legislation must meet a higher standard than is normally expected: they can only result from a process that is beyond reproach or even the suggestion that improper process was followed. 

The only reasonable course of action for the Government to take from here is to withdraw these bills and follow its own processes to the letter. 

These bills raise issues of infinite complexity and which will forevermore change the nature of this nation.

Legislative change of such significance to Samoa as a nation was always going to demand a corresponding amount of public feedback and debate, before it even reached Parliament.

To bring such change to the brink of passage in Parliament without it is not only a breach of its own procedures but the very principles of representative Government.

* This story has been amended to correct the spelling of Salma Hazelman's name. 

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