Former A.G. says L.T.C. Bills “defective, dysfunctional, racist”
Former Attorney General, Taulapapa Brenda Heather-Latu, would not have certified, let alone entertain the preparation and drafting of three bills currently before Parliament, which threaten to “destroy” the rule of law in Samoa.
The senior lawyer with 33 years experience at the bar says the Constitutional Amendment Bill 2020, Land and Titles Bill 2020 and the Judicature Bill 2020, are “defective, dysfunctional” and “racist.”
The member of the Samoa Law Society, who co-Chaired a Committee to review the proposed measures, says the bills should never have been tabled in Parliament.
“The three Bills will change the foundations upon which our justice and judicial system rests and is the most extensive and incoherent attack on our Constitutional document which there has ever been,” she said.
Taulapapa who had served as Attorney General for nearly 10 years made the points in response to questions from the Samoa Observer in a wide ranging Questions and Answer interview about the proposed measures.
She joins a growing chorus of members of the legal fraternity – including Justices and Judges of the Court – calling on the Government to reject the bills for several reasons.
“As a former A.G., I would not have entertained the preparation and drafting of these Bills for any reason,” she said, adding that she would not have “certified the Bills as suitable to be tabled.”
She said the bills are “repugnant to the democratic balance of our Government by destroying the Judicial system” and they “undermine the Rule of Law as a means of protecting the people from arbitrary Government power.”
Taulapapa also condemned what she described as an “attack” on the independence and stature of the Supreme Court which is Constitutionally empowered to protect Samoan citizens.
“(These bills) are fundamentally defective and badly drafted, given the new justice system which is created under the Bills cannot actually work because of the enormous number of gaps and uncertainties which are not addressed in any of the Bills,” she said.
“Startlingly (the bills are) racist, where the terms used in the Constitutional Amendment Bill include: ‘Samoan legal practitioner’; ‘Samoan Land and Titles Judge’ ‘An overseas non-Samoan Judge’ which likely breaches Article 15 of the Constitution as discriminatory legislation.”
Looking at the make up of the the Lands and Titles Court, which gave rise to the Government formulating the bills, Taulapapa said the Government needs to put more money and resources in the L.T.C. to ensure efficiency.
“I believe that in the current Lands and Titles Court system, we have a means to seek redress for things, which are Samoan by nature,” she said.
“However after being neglected for over 30 years, this Court needs to be properly resourced and administered, and the judges properly trained to address the public’s deep disdain which means that when they say it is the protector of our most important treasures…’e puipui tatou measina’ then resource them properly so they actually do the job….”
She added that she feels deeply offended by the manner in which these Bills have been drafted and then fast tracked through Government corridors, in such a way as to avoid every single ‘check and balance’ which exist to stop arbitrary Government action and the abuse of Government power.
Questions have been sent to the most recent former Attorney General, Lemalu Hermann Retzlaff, in relation to his role in the bills when he was in charge of the Attorney Genera’s Office. He confirmed receiving the question and he has promised a response which did not arrive before press time.
Taulapapa, 58 years old, was born and educated in Wellington New Zealand. She is a graduate of Victoria University of Wellington with a BA LLB (1985/1986).
Married to another prominent lawyer, Matafeo George Latu, she was admitted to the bar in New Zealand in February 1987 and in Samoa in 1996.
She had 10 years in practice in NZ as a legal adviser Crown Counsel with the NZ Crown Law Office and 10 years working for Samoa Government. For the past 13 years, she has been a partner in Latu Lawyers.
The following is the Q&A with Taulapapa:
Samoa Observer: As a respected member of the legal fraternity in Samoa, what are your thoughts on the bills before Parliament, especially the proposal to separate the Land and Titles Court from the Supreme Court?
Taulapapa Brenda: The three Bills and will change the foundations upon which our justice and judicial system rests and is the most extensive and incoherent attack on our Constitutional document which there has ever been. The Bills:
1. Change and undermine the framework of democratic government set in a Constitution which was approved for us by the members of our own community comprising the Tama Aiga who chaired the Constitutional Conventions in 1960, and the most prominent chiefs and orators from each corner of the country and the leaders of our business community at that time, after being drafted by another special committee in 1959 and whose deliberations form the basis of the late Lauofo Meti’s book ‘The Making of the Constitution’ published by the NUS Press in 2012.
2. Upsets the fine balance between Samoa’s Supreme Court who may intervene where there is a breach of a fundamental right or freedom, and the unique and specialist Lands and Titles Court which relies on lay Judges and assessors to bring together their refined knowledge of Samoan Custom and usage in order to decide disputes concerning customary land and matai titles. This Court, as it currently operates, was the result of a process which began in November 1974 after a Cabinet appointed committee (chaired by the late Su’a Leituposa Thomsen (the then Secretary for Justice) and with members such as Tafua Kalolo (MP) Galumalemana Namulauulu Netina Schmidt (Principal of Teachers Training College); Tofilau Eti Alesana (Chairman of BWS and former Cabinet Minister); Tuiletufuga Enele Hunkin; Toailoa Siaosi. Luamanuvae Aukuso and my grandfather Taulapapa Dr Anesi Malaefou (a Vice President of the Lands and Titles Court and former Medical Superintendent of Motootua Hospital) who supported by an adviser Mr C. Guy Powles (son of Sir Guy Powles)) prepared a report and draft Bill (after 13 months of consultations within Samoa, 6 meetings held in New Zealand and a visit to the High Court of American Samoa) which was tabled in December 1975. The draft Bill was further considered and discussed from 1975 to 1980 and was finally tabled in Parliament in March 1981 and is in force today.
3. Changes the existing system with no justification. The Land and Titles Court is unique in the Pacific but in most of the world because its decisions are made according to Samoan custom and tradition by lay judges and assessors who have been selected based upon their knowledge of custom and usage. There is a Land and Titles appeal Court but in addition all citizens have the right to seek assistance from the Supreme Court where they believe that their fundamental rights in Part 2 of the Constitution (particularly the Right to a fair trial in Article 9 have been breached by the conduct of the Lands and Titles Court.
4. Undermines the special status of the Supreme Court which is a Court whose powers and status have developed over 400 years of judicial history from Great Britain, New Zealand and the Commonwealth, and play a significant role in balancing the two other arms of Government in a well-functioning democracy, and in particular by protecting citizens from the arbitrary actions of Government and a politicized administration.
5. Allows the unlimited extension of the power and jurisdiction of the Land and Titles Court over decisions made by families and villages, for example the Land and Titles Bill limits the number of Matai Sa’o in every family to a maximum of five (5) who must be registered with the Court. Surely it is families who decide how they run their own lives and how many matai they have and not the Court? The Lands and Titles Court under the Bills will have supreme authority on ‘custom and usage’ wherever it appears in our lives and their authority and power is no longer limited to customary land and matai titles but allows them to decide appeals from decisions of the Village Fono.
6. Removes our Constitutional right to go to the Supreme Court to protect our fundamental freedoms if we have a matter in the Lands and Titles Court
7. Allows lawyers to prepare submissions and documents in the lower two Lands and Titles Court and then allows them to represent their clients in the highest Land and Titles Court which will change the manner in which the cases before the Lands and Titles Court will be conducted which will inevitably be more formal and legalistic, especially when a new Deputy President (who must be a lawyer) is also appointed, and thus completely changes the nature and purpose of the Court.
8. Creates a two-headed Justice system (replacing the current pyramid) where the Chief Justice is no longer the ‘head of the Judiciary’ but probably of lesser status, with the President of the Lands and Titles Court, which is set up in the Constitution taking precedence.
Samoa Observer: The Government is saying that the proposal to separate the L.T.C. is part of an effort to preserve the Samoan culture and protect Samoa's treasures in terms of lands and titles. As a Samoan matai, what do you think?
Taulapapa Brenda: The preservation of Samoan culture and tradition lives and flourishes in the hearts of its people. The importance of that concept was reflected in:
1. The Mau movement;
2. The acceptance by the United Nations Organization ‘UNO’ in the 1950’s (when the path to self determination was laid out for Samoa) of Matai suffrage instead of universal suffrage as we became an independent nation;
3. The encouragement and support from many New Zealanders in the move to independence such as: Sir Guy Powles, Dr. Colin Aikman and Dr. Jim Davidson
4. The participation of the cultural and business leaders of the country in the Working Committee on the Constitution from February 1959 to October 1960;
5. The participation and involvement of the cultural and business leaders in the Constitutional Conventions in 1960;
6. The drafting of the Constitution and the Preamble and the high recognition of customary land Tama Aiga and matai titles in the Articles of such document;
7. The special and entrenched provision protecting customary land from alienation in Article 102 which is the only Article which can only be changed after a referendum (vote of all registered voters) with 2/3rds support for the change.
8. The establishment of a Land and Titles Court in 1981;
Samoa Observer: Still as a Samoan matai, these bills if they become law will allow the Government to tell families what they can and cannot do with their titles, what are your thoughts?
Taulapapa Brenda: The status and unbridled power given to the new Land and Titles Court will mean that they will have dominion over all Samoans in anything that approaches being a cultural matter or issue, or not-such is the broad and unlimited definitions used in the Bills.
Samoa Observer: In their letter to the Samoa Law Reform Commission, Judges have expressed serious concerns about violations of the Constitution, especially when it comes to the separation of powers. As a former AG, are your thoughts?
Taulapapa Brenda: As a former AG I would not have entertained the preparation and drafting of these Bills for any reason, and certainly would not have certified the Bills as suitable to be tabled for the consideration of the Prime Minister and Cabinet or the Legislative Assembly because they are:
1. Repugnant to the democratic balance of our Government by destroying the Judicial system;
2. Able to undermine the Rule of Law as a means of protecting the people from arbitrary Government power;
3. Offensive in the attack which they have made to the independence and stature of our Supreme Court which is Constitutionally empowered to protect Samoan citizens, residents and visitors from the excesses of a powerful Government and/or a politicized public service;
4. Fundamentally defective and badly drafted, given the new justice system which is created under the Bills cannot actually work because of the enormous number of gaps and uncertainties which are not addressed in any of the Bills;
5. Startlingly Racist, where the terms used in the Constitutional Amendment Bill include:
‘Samoan legal practitioner’; ‘Samoan Land and Titles Judge’ ‘An overseas non-Samoan Judge’ which likely breaches Article 15 of the Constitution as discriminatory legislation….
6. Wholly without any popular support or actual legal or administrative justification, as the findings of the Report of the Parliamentary Select Committee on the Land and Titles Court is deliberately misused when in fact the grievances which were identified related in large part in the crisis of confidence which the 80% of the public giving evidence had in the ability and integrity of Land and Titles Court Judges to give fair and balanced decisions and secondly the long delays in being given hearings or receiving judgments from the Lands and Titles Court….one witness citing a 30 year wait for a decision, yet another a 20 year wait.
7. Stomping on the rights of people to seek help from the Supreme Court to protect their fundamental freedoms.
Samoa Observer: Why is it important for the Judiciary to stand up and express their opposition to these laws? We know the situation in Parliament that the Government has the numbers to pass anything?
Taulapapa Brenda: I believe this would be the first time in our history that the Judiciary has been forced to comment on draft legislation in this way. This reflects the seriousness of the changes which are proposed and also the fact that a significant change to the framework of justice was not discussed with the Judiciary before being tabled in Parliament, which is a breach of every process, policy and courtesy by the agencies responsible for the Bills, which apparently the Legislative Drafting section of the Attorney General’s Office, the Samoa Law Reform Commission (which apparently drafted these offending pieces) and the Ministry of Justice and Courts Administration, who are responsible for administering the empowering Acts being amended, but did not instruct their preparation.
Samoa Observer: How important is it in your opinion to have widely held public consultations about such significant bills?
Taulapapa Brenda: Absolutely critical when you are taking away Constitutional rights from anyone but especially all those who are involved in a Land and Titles Court matter; and where you are extending the power of the Land and Titles Court to decide upon ‘anything cultural’ which occurs in Samoa, virtually anything that happens in a village and perhaps anything that happens to a ‘Samoan’…..and of course then there’s the destruction of the Court system and the denigration of the status of our Judiciary.
Samoa Observer: Going back to your time as the AG, what would have said to the Government if they were to consult you on these issues?
Taulapapa Brenda: I would have said that:
1. That the Bills I have read (but my office and the country’s legislative drafters are not responsible for drafting) are so defective, so extreme and so dysfunctional that they achieve the opposite to what is said to have been intended, and that I will not in all good conscience certify them as being suitable for reference to Cabinet or Parliament.
2. That as there is apparent uncertainty in what is sought to be achieved by such Bills, then I would recommend that the normal procedure is followed with a proper policy paper prepared by the Samoa Law Reform Commissioner in order to allow senior government officials from all Ministries starting with the ones who actually administer the Constitution, as well as the two other Acts in question ie Ministry of Justice and Courts Administration , Office of Prime Minister and Cabinet, as well as other Ministries with important contributions to make on this topic, such as the Ministry of Women and Community Development; Ministry of Education, Sports and Culture; Ministry of Natural Resources and Environment (Lands Registry and Lands Board); Ministry of Finance (Planning and Sector Policy) and the National University of Samoa and the Institute of Samoan Studies be invited to offer their views on the policy paper and policies proposed and then report to Cabinet (in the usual manner) for approval of the paper before pen is put to paper and drafts are instructed to be prepared by the responsible Ministry…ie Ministry of Justice
Samoa Observer: 8: Please highlight anything else that is important to you that I may have missed out on these questions.
Taulapapa Brenda: I believe that in the current Lands and Titles Court system, we have a means to seek redress for things, which are Samoan by nature. However after being neglected for over 30 years, this Court needs to be properly resourced and administered, and the judges properly trained to address the public’s deep disdain which means that when they say it is the protector of our most important treasures…..’e puipui tatou measina’ then resource them properly so they actually do the job but don’t allow those running the Court to cherry pick the important cases and leave everyone else languishing because you can’t afford to and simply don’t know how to run the Court.
I feel deeply offended by the manner in which these Bills have been drafted and then fast tracked through Government corridors, in such a way as to avoid every single ‘check and balance’ which exist to stop arbitrary Government action and the abuse of Government power.
The strong emphasis in Government that all documents should be in the Samoan language and all meetings be conducted in our language to protect ‘custom and usage’ seems such a complete travesty when our Samoan customs and traditions are corrupted and contaminated each and every day by:
- the use of abusive, offensive and inconsiderate language in public,
- the rude behavior of public figures when they are invited to attend public and private gatherings; the unreasonable expectation of gift giving when the cost of public facilities are already paid by public funds or unending borrowings from benevolent and malevolent donors;
- the inability of our elected representatives to ‘speak truth to power’ in the Parliament built by our hopes and dreams, for fear of the failure to achieve what the district has asked for in retaliation for ‘disloyalty’ a’ vicious verbal assault’ and verbal abuse which routinely consists of the member being shouted at in the chamber and called: a fool, stupid, dumb, lazy and ignorant….these much respected Matai who are honored by their District and yet abused so crudely in the Parliamentary chamber for which the public shaming is suffered by the representative himself (amongst his colleagues and members of Cabinet), as well as all his family and all his district who are listening or watching;
- the powerful pressure on officials and appointees to avoid offering an honest view or advice for fear of political repercussions by losing jobs or extensions to contracts, potential Government contracts and work, or being subject to an official probe or investigation;
- but finally and most egregiously, I decry the loss of voice and free speech by all in a country which regularly touts democracy, but in reality mostly practices tyranny…..for our citizens to be unable to voice an opinion or feel that they can only do so by creating elaborate pseudonyms or false personalities or pages because of the abject fear of reprisal, is a testament to and a where we have arrived after 59 years of stable but ever declining democratic government.
These changes are supposed to highlight the importance of Samoan custom and tradition, yet until we start behaving like the people our forebears aspired for us to be, according to the customs they cherished, then no amount of law will change the crude and boorish nature of those who lead us much like putting lipstick on a gorilla….the overall impression trumps cosmetics any day.
Thank you for the opportunity to voice my concerns…it is much appreciated. Kind regards and thank you for bringing light to this issue for the community!