03 May 2024

Susuga Papalii John Afele,

Chief Executive Officer

Ministry of Justice and Courts Administration

MULINUU

Susuga Papalii John Afele,

We refer to your letter dated 23 April 2024 to the Honourable Chief Justice requesting the views of the Judiciary on Cabinets decision to reverse some of the changes brought about by the Constitution Amendment Act 2020, Land & Titles Act 2020 and the Judicature Act 2020.

As the Chief Justice takes a different view to us Judges, we are responding separately on what we have always considered a very important and fundamental issue.

The Judges of the Civil and Criminal Courts of Samoa have consistently maintained that there was no need in 2020 to (a) restructure the Lands & Titles Court and the Lands & Titles Court of Appeal ("LTC); and (b) remove the supervisory jurisdiction of the Supreme Court in respect of breaches of the Fundamental Rights of al citizens of Samoa protected by PartII of the Constitution.

This jurisdiction extends to protection of those rights before al courts, organizations, tribunals, etc including in the Lands and Titles Courts of Samoa. It has never been the law of the land or the practice of the Supreme Court that, in implementing its protective mandate pursuant to the Constitution, the Supreme Court would over-rule or substitute its view for that of the LTC on matters concerning customary land.

It would only investigate and adjudicate on alleged breaches of Constitutional rights in the LTC and if found substantiated, to remit the matter back to the LTC to deal with properly and with due regard to the Constitutional rights of all parties.

This was the basis of our strong and public opposition to the changes sought to be implemented in 2020 to the structure of the Supreme Court and the Lands and Titles Courts. It was our view then and is our view now that in accordance with the Westminster style of democratic government which Samoa espouses to follow, when Executive government and Parliament seek to alter the fundamental nature of the Judicial arm of the State and its Constitutional mandate ot protect the people, then the Judiciary is required ot take a stand and become involved in any proposed changes.

We therefore unequivocally support the proposal to return matters to their pre-2020 status quo without modification as outlined in your correspondence and thank you for the opportunity to comment.

On the issue of what to do with cases before the legislated but never-constituted Lands and Titles Court of Final Appeal and Review, of which we understand there are some 60 plus cases pending, we express no view. We consider that a matter entirely for the Executive and Parliament which changed the system in the first place to rectify.

We do however urge the problem be addressed expeditiously and in accordance with established principles of law. We are aware the Honourable Chief Justice has his own views on your correspondence and no doubt His Honour will convey those in due course.

We are copying those to whom your original correspondence was copied, including in our case the Honourable Chief Justice.

Faafetai mole avanoa.

Male agaga fa’aaloalo.

Vui Clarence Nelson

Senior Supreme Court Justice

Niava Mata Tuatagaloa

Supreme Court Justice

Leiataualesa Daryl Michael Clarke

Supreme Court Justice

Fepuleai Ameperosa Roma

Supreme Court Justice

Talasa Saaga

Senior District Court Judge

Alalatoa Rosella Viane Papalii

District Court Judge

Loau Donald Kerslake

District Court Judge

Matautia Raymond Schuster

District Court Judge