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L.T.C. bills rushed, lack consultation, matai argue

Two senior matai, Fiu Mataese Elisara and Aiono Telei'ai Dr. Sapa Saifaleupolu are concerned the three Bills before Parliament concerning the Land and Titles Court, the Constitution and the Judiciary are being rushed through due process to avoid debate.

In a letter to the Samoa Observer, the two men said as well as the rush, they questioned whether the Bills fairly reflected the results of the 2016 Inquiry into the Land and Titles Court (L.T.C.) which the Government has stated is their intention.

Fiu and Aiono write they have seen this from the Human Rights Protection Party (H.R.P.P.) before: in 2008 when Samoa’s road rules changed to mandate driving on the other side of the road. 

They claim the “push” by the Government to switch to right-hand driving was done to “fully divert attention for two years” and prevent people from objecting to the Land and Titles Registration Act 2008, “ignoring the pre-requisite requirements of Articles 102 and 109 of the Samoa Supreme Law.

“We are concerned that the requirements of Article 102 and 109 of the Constitution are totally ignored,” the letter states about the 2020 Bills.

“The questionable and the seemingly rushed nature of the legislation process […] and the accelerated pathway these proposed legislative amendments have been pushed [through] […] in our view, failed to comply with the prerequisite requirement of meaningful consultations with the people of Samoa.”

The men argue that with the world and Samoa’s attention on COVID-19, anyone is justified in rejecting the Bills, and suspecting a Parliamentary rush.

“First and second reading completed in the two days of Parliamentary sitting that began on 17 March 2020?,” they write.

Prime Minister Tuilaepa Dr. Sailele Malielegaoi and the Speaker of the House Leaupepe Toleafoa Faafisi have both rejected that the Bills are being rushed through the house, reminding that in 2016 a thorough inquiry into a series of complaints about the L.T.C. was undertaken.

The Bills are based on the recommendations of that inquiry, they said.

But Fiu and Aiono, who detail the many faults found in the Special Inquiry report, are not convinced legislative change is the answer, but rather money and human resources is, and that the Bills go further than the Inquiry’s original scope.

A new structure to the L.T.C. would not necessarily solve problems like cases taking so long that applicants or respondents pass away before they are concluded nor the lack of confidence in the sitting judges and their fairness.

“Underpinning these are issues that point to competence of L.T.C. judges, commitment of the Government to support L.T.C. with needed finance and court rooms, operation and administrative facilities, staffing, training and upskilling of L.T.C. judges, [and] remuneration of L.T.C. judges compared to civil and criminal court judges.”

But if the Government wants for the L.T.C. to hold more weight, and give more recognition to Samoan Custom in the Constitution, it needs to separatelyfix those fiscal and capacity related issues.

“It is not clear that the Government is willing to commit to give commensurate support to these capacity, administrative and institutional concerns if its desire for the L.T.C. intimated in proposed Constitution Amendment Bill 2020 is consistent with the intent of giving more recognition of Samoa in our own Samoan Constitution so that Samoan customs and usages are not lost moving forward to the future,” they write.

“We believe government should address these L.T.C. capacity concerns as high priority instead of proposing Constitutional amendments to respond to them.”

Overall, Fiu and Aiono do not reject the proposal to separate the L.T.C. from the judicial system under the all-encompassing Supreme Court and instead to have a separate High Court and a Court of Final Appeal and Review for L.T.C. matters.

Referring to a landmark decision by the Supreme Court to that determined the L.T.C. does not have mandate to rule on customary land leases (in its ruling on the customary land lease to the Return to Paradise Resort owners), Fiu explained the L.T.C. needs to have independence to rule on all matters cultural.

Meanwhile under Part 2 of the Constitution, anyone should be able to pursue a matter where they believe their human rights have been violated by going to their Supreme Court, enshrined in their right to a fair trial (Article 9). 

Fiu and Aiono also take issue with the Bill hoping to limit the number of Matai Sa’o (paramount chief) per family to five and recommend Section 13 (where the proposal lies) to be revoked. 

They say rather than the number, their concern is that it is the “God-given sovereign right” of Samoan families to make these delicate decisions themselves. 

“Despite the seemingly noble intent, we feel this is a direct injustice to our Fa’aSamoa and to all indigenous Samoan peoples. 

“In our humble opinion, it is morally and culturally correct to let the Samoan families themselves exercise their traditional rights to decide on this important matter. It is their prerogative to determine who and how many suli (descendants) should take on the task of looking after the family.”

In their letter, which is also their full submission to the Parliamentary Committee responsible for the Bills, Fiu and Aiono detail several other issues across the Bills that in their opinion need addressing.

In the Constitution Amendment Bill (C.A.B.) 2020, Section 75 details how one of three Court of Appeal judges may be non-Samoan “in the interests of justice.” The pair state this language is condescending towards local judges.

“This may be counterproductive to the spirit underlying the amendment. On the other hand, if the intent is more on sustaining impartiality and integrity, then it is our humble opinion and recommendation that increasing the number of independent non-Samoan appeal court judges to at least two in any sitting shall remove distrust and suspicion.”

The C.A.B. also introduces seven new articles focussing on the L.T.C. and matai titles. Fiu and Aiono are concerned with the lack of attention on customary land matters, with a relatively limited definition of the court’s responsibility when it comes to land.

They say the sentence referring to land is too reductive and does not reflect the reality of customary land disputes across Samoa.

In the Bill, the new article 104’s clause C regarding land would read as follows: “in particular the Land and Titles Court shall have jurisdiction: (c) all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the customs and usages of the Samoan race.”

Fiu and Aiono break down their issues clearly.

“This is problematic when we decipher from this that L.T.C. will only deal with firstly, ‘claims and disputes’ on customary lands, secondly, only claims and disputes ‘between Samoans’, and thirdly, the ‘right of succession to property’ held in accordance with the customs and usages of the Samoan race. 

“This brief and short language that addresses the important issue of customary land fails the reality of the key importance of customary lands under LTC jurisdiction.”

The C.A.B. would swap articles 103 and 104 (the Articles referring to the Land below High Water Mark, currently 104, and the Customary Land and Titles Protection, currently 103.

But Fiu and Aiono would have the Land below High Water Mark article struck out altogether, they write, saying Samoan communities know their rights are from the reef to the top of the mountain, not “the line of median high tide between the spring and neap tides” (the high water mark).

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