L.T.C. appointment saga uncovers flawed law

By The Editorial Board 07 December 2021, 11:43PM

It is not surprising it has only taken 11 months before the wheels started falling off from one of the former government’s most controversial legislations, which got passed last year despite local and international opposition. 

At the height of the Lands and Titles Court Bills saga, legal and human rights experts warned the Human Rights Protection Party (H.R.P.P.) administration of the long-term implications of the draconian legislation.

The L.T.C. Bills, upon enactment after their signing by the Head of State, would amend Samoa’s Constitution and restructure the Judiciary to make the L.T.C. sit outside the remit of the Supreme Court. There were human rights and rule of law implications for Samoa in terms of how the Court disbursed justice.

But the former Prime Minister Tuilaepa Dr. Sa'ilele Malielegaoi and his government were unperturbed by the public outcry and on 15 December last year voted 41–4 to pass the three-piece legislation (Constitutional Amendment Bill 2020, Land and Titles Bill 2020 and the Judicature Bill 2020).

A year after the three bills’ passing and with the H.R.P.P. defeated in this year’s general election to be replaced by the Fa’atuatua i le Atua Samoa ua Tasi (F.A.S.T.) Government, the public are now witnessing the unravelling of one of the three L.T.C. laws, the Land and Titles Act 2020 and its questionable features. 

The Minister of Justice and Courts Administration, Matamua Seumanu Vasati Sili Pulifana, has raised red flags about the law and pointed to a “drafting error” that she says should be rectified through legislative amendments.

Matamua expressed her concerns in a letter dated 2 December 2021 to the Ministry of Justice and Courts Administration (M.J.C.A.) Chief Executive Officer and Registrar of the Land and Titles Court Moliei Simi Vaai, following recent reports of the appointment of the outgoing Electoral Commissioner Faimalomatumua Mathew Lemisio as the new L.T.C. Deputy President.

According to the Minister, the Land and Titles Act 2020 does not have “appointment” provisions which would cater for the appointment, removal or suspension of the Deputy Vice President, Vice President or any Judge of the Land and Titles Court.

Consequently, the C.E.O. of the M.J.C.A. has now been directed by the Minister to ensure “no further preparations” are made to progress the appointment of a Deputy President or any Judges of the L.T.C. until the matter is rectified.

The ministerial directive now means Faimalo will not be able to take up his appointment at the L.T.C. in the foreseeable future, as the second in charge to the current President Fepuleai Atilla Ropati.

We believe the outgoing Electoral Commissioner has a responsibility to the people of Samoa to complete his management of the 2021 General Election. This includes looming electoral petitions following the 26 November by-elections and a lawsuit by the F.A.S.T. questioning the rationale behind the decision of his office to invoke constitutional provisions, which led to the selection of two H.R.P.P. women candidates to make up the six women M.P.s in the Legislative Assembly.

And if he is to be appointed to a publicly-funded position in the future, then his competency for the job should be appraised based on how he performed in his last public position, which is as Electoral Commissioner of Samoa.

Going back to the defective Land and Titles Act 2020, which the Justice Minister now intends to review, it confirms the dangers of using the parliament like a rubber stamp without following proper legislative processes to scrutinise legislation before they are tabled for debate and voting.

If the H.R.P.P. had listened to the legal experts and acknowledged the pleas of various communities in Samoa at that time for the bills to be shelved, the contentious legislation would not have seen the light of day and the country wouldn’t find itself in this embarrassing position of passing and enacting laws that failed to tick the box in terms of democratic governance.

But history shows that the former ruling party stuck to their guns and pushed ahead with the L.T.C. Bills and seven months later found itself out of the government and on the opposition bench in the parliament following the general election.

No doubt, a miscalculation on the part of the party, on how it thought the voters would react in a general election after seeing the one-party government run amok in the Legislative Assembly overriding parliamentary procedures and decorum.

And a sombre warning to Samoa’s future governments to treat the people’s Fono with care and respect and for the Members to remind themselves that they are only custodians.

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By The Editorial Board 07 December 2021, 11:43PM
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