The L.T.C. the last bastion against reform?

By The Editorial Board 16 December 2021, 12:17AM

In these pages yesterday, we marked the anniversary of the controversial Land and Titles Court (L.T.C.) bills hasty passage through the end of parliament last year.

We remembered that historic day, on which bills were rammed speedily through Parliament, over and above the opposition from the entire judiciary, eminent international experts, local communities and even - and ultimately most consequentially for the previous Government - within the Human Rights Protection Party (H.R.P.P.) itself. 

The bills’ 41-4 passage reflected the political climate in which they were created, one of self-assuredness from this Parliament and into the next. 

But what about the future for this newly independent and empowered judicial silo?

We have been given the earliest of previews and it does not bode well for a future of a court in which justice is dispensed evenly and thoughtfully. 

A tendency towards such injudiciousness was built into the enabling legislation of the L.T.C. itself. The greatest offence in the previous Government’s judicial overhaul was to split this country’s judicial system into two. 

Samoa’s legal system, like all those in credible countries do, previously had a court endowed with the ultimate authority; the last word on what  the rule of law. 

But the Frankenstein-like creation designed by the previous Government and the drafters of its legislation breaks that principle, and with it, centuries of judicial custom for no obvious reason.

It was an offence against the principles of democracy and is an attempt to undermine the judicial branch by carving out domains of life that are no longer subject to the appeal of the highest court in the land. 

Instead we have a very pale facsimile of a functioning judicial system by seeking to create a self-contained and autonomous court, with its own Court of First Instance, a High Court and a Court of Final Appeal and Review.

That the authority of the country’s Supreme Court should be chipped away at like this by a Prime Minister instantly raised concerns about what else might be done. 

So far we have not seen very many clues about how laws are being applied in this self-contained judicial silo. 

But last week’s attempt to appoint a Deputy President to the court - a position that does not exist and which was never advertised - was a glimpse into the culture that seemed to be taking root in the L.T.C. And it does not make for encouraging viewing. 

Let us not forget that there have been question marks hanging over the L.T.C., that its President, Fepulea'i Attila Ropati, should have been allowed by a narrow vote of the parliament, to continue in his job despite having pleaded guilty to intentional bodily harm in 2019. 

If you change the Government you change the country, so the old saying goes.

But despite Fa'atuatua i le Atua Samoa ua Tasi (F.A.S.T.)’s victory and growing majority in parliament, the L.T.C. lies as one piece of our democracy that has been designed purposefully as a holdout against any change.

Setting aside issues of policy and land (as was too often done by the preceding Government) one of the most significantly displeasing aspects of the previous administration’s approach to Government was its culture.

Designed to erode accountability and corrode integrity, we saw a system where exceptions to the rules were repeatedly carved out when they were to the benefit of the previous Government.

A phenomenon on such a scale is difficult to describe but it was at its most observable earlier this year after the H.R.P.P. repeatedly refuse to accept its election loss or convene parliament despite orders to do so.

An inveterate critic of our previous Government, the former Attorney-General,Taulapapa Brenda Heather-Latu, memorably described episodes where the rule of law was abused in such a fashion as “things that go bump in the night”.

She described a system where decisions were made behind closed doors and the democratic norms and laws, respect for which they purported to have, were actually used as mere window-dressing. 

An example of such decision-making behaviour, she noted, was on particular display when the now outgoing Electoral Commissioner, Faimalomatumua Mathew Lemisio, made a late night announcement about the addition of another H.R.P.P. woman M.P. to Parliament in what many took as a calculated move to spoil F.A.S.T.’s announcement the following day that it had successfully brokered a majority in Parliament. 

“The timing of the Electoral Commissioners ‘pre-emptive strike’ on the outcome of an otherwise well run electoral process, stinks to high heaven,” Taulapapa wrote.

This was a symptom of a system in which the checks and balances of democracies played second fiddle to the commands of the ruler.

That vestiges of such culture were alive and well in the court, were made clear when the very same Faimalo, was announced as the L.T.C.’s new Deputy President this month. 

The position was not advertised for, the Minister of Justice was not advised of the impending appointment and nor was the C.E.O. of the Ministry of Justice and Courts Administration across the details of how and why the position was being filled. 

Speaking on Tuesday, the Attorney-General, Su’a Hellene Wallwork, noted attempts to appoint Faimalo so suddenly skimmed over deep problems and what should have been seen as roadblocks. 

“The powers to appoint [the deputy president] lies with the Komisi [o Faamasinoga o Fanua ma Suafa] but the difficulty we have right now is the legal and financial requirements are not yet finalised,” she said. 

In the case of the attempted appointment of Faimalo we get a whiff of the old way of doing things, where due process appears to have been an afterthought to a decision already made by someone wielding power.

The last election shone a light on the many ways in which Samoa's political culture was failing us and made promises of change. 

Watching to see how the L.T.C. behaves, possibly as a self-insulated bastion against much-needed reform, will be one of the new year’s most pressing tasks.  

By The Editorial Board 16 December 2021, 12:17AM
Samoa Observer

Upgrade to Premium

Subscribe to
Samoa Observer Online

Enjoy unlimited access to all our articles on any device + free trial to e-Edition. You can cancel anytime.