Parliament Clerk says lack of consultation Justice's fault

The lack of public consultation on the Land and Titles Bill 2020 falls on the shoulders of the Ministry of Justice and Court Administration, the Clerk of the Legislative Assembly, Tiatia Graeme Tualaulelei says. 

“They should have conducted public consultation prior to submitting the bill to Parliament which has led to heavy criticism by the public directly to the Office of the Legislative Clerk," said Tiatia.

“The legislative process and Parliament has no affiliation with Ministries' public consultation [during the] drafting stage of Bills."

The Clerk said that Parliamentary process is only initiated when legislation is introduced into the Parliament and referred to Parliamentary Committees for scrutiny. 

The Chief Executive Officer of the Ministry of Justice and Courts Administration (M.J.C.A.), Moliei Simi Vaai, did not respond to an emailed request for comment on Saturday. 

The Samoa Law Society did not criticise the Ministry specifically but raised broader concerns about the absence of public consultation for two Bills intended to change the constitution and create an independent Land and Titles Court (L.T.C.). 

“In the absence of any public consultation we had no notice that the bills were going to be tabled at the last Parliament sitting.  It was purely by chance that we were alerted,” said the society's President, Leiataualesa Komisi Koria, in an interview with the Samoa Observer on Saturday. 

He said that the Law Society had found out about the bill the day they were going into second reading. 

“We [still] haven’t been formally approached to provide a comment,"  said Leitaualesa. 

“But we’ve notified the clerk of the Legislative Assembly of our intention to make a detailed submission [to the Parliamentary Committee].

"We’re awaiting his advice on the date. No one [among] the Law Society Council had been informed or approached for comment before the Bill came before Parliament.

"Without pointing to any particular agencies, the process that we would expect to be followed has been ignored. 

"There’s a very clear process that needs to be followed and when it comes to matters of the constitution those processes have not been followed."

He stated the normal process for legislation is for it to be drafted in conjunction between the Attorney General's Officer and the relevant Ministry; a process that mandates consultation takes place. 

“They have a manual that says in black and white that there needs to be consultation before you’ve even tabled a piece of legislation before Parliament," the President said. 

“There has also been involvement of the Law Reform Commission. If you look at what they have described as their process for drafting laws they have also to undergo consultation.

“If you look at how these bills have been taken to parliament, we were in the midst of a crisis, basically a global pandemic, the whole populace was concerned with how we were going to deal with it. 

“There was no urgency to put these bills through at a time when we should have been focused perhaps exclusively on our response. 

“Those circumstances raise [the question]: why the rush. Every Samoan has the right to ask the question: Why the rush?”

In earlier reports the Samoa Law Society will run public consultations on three bills currently pending before Parliament that proposes major changes to the constitution and the judiciary.

Leiataualesa said they are concerned about the bills and want to do public consultation to discuss the proposed legislation as well as educate the public on the potential ramifications if they are passed by the Parliament.

According to the Lands and Titles Bill 2020 the L.T.C. would become independent from other courts under a total reshaping of Samoa's Judicial system. 

The Bill would create a Land and Titles Court independent from the M.J.C.A. 

The L.T.C. would run as a parallel and independent judicial structure, including an L.T.C. High Court and Court of Final Appeal and Review, removing the option to appeal L.T.C. decisions to the Supreme Court. 

The Bill seeks to amend the Constitution and to replace the current Land and Titles Act 1981. It includes a maximum limit on the number of Paramount Chiefs allowed in a family. 

As reported earlier, advocates say that the creation of a specialist court would speed up dispute resolutions and create a judicial institution specialising in the preservation of Samoan culture. 

But a prominent opposition Member of Parliament, Olo Fiti Vaai, has previously said the reforms were unduly hasty and would disempower Samoan families. An accompanying memorandum of the proposed measure details the framework for the plan. 

Under the Bill the C.E.O. of the Ministry, also known as the Court Registrar, will be the Registrar of the Land and Titles Court. 

“Through the new framework, Samoa attempts to further emphasise the importance and uniqueness of Samoa’s tu ma aganu’u (culture and tradition) and her customary land and Matai titles, by affording it the specialist nature it was intended to have,” the memorandum reads. 

But Olo expressed concerns over the new Bill’s ramifications and its similarity to another piece of legislation currently before a parliamentary committee. 

“What happened to the [similar] Bill that was tabled in Committee in 2018?,” he said. “This is a whole new Bill and it seems to me, this [new proposed] measure was rushed before Parliament.” 

But Prime Minister Tuilaepa Dr. Sailele Malielegaoi dismissed the claims and said this new Bill was not introduced hurriedly.

He noted a Commission of Inquiry had been held into the work of the Land and Titles Court after numerous complaints were made about its workings four years ago. The proposed changes are a result of the Commission’s recommendations, Tuilaepa said at the time. 

*James Robertson contributed reporting to this story.