L.T.C. consultation flawed: lawyer
A senior lawyer has raised concerns about the legitimacy of the public consultation process currently being followed for the three pieces of legislation to establish a new independent Land and Titles Court.
Senior lawyer Salma Hazelman said the three bills being reviewed by a Special Parliamentary Committee have skipped several stages of 17 steps required for drafting an Act.
The three bills in question are the Constitution Amendment Bill 2020, Land and Titles Court 2020 and Judicature Bill 2020.
The bills have reached their second reading stage in Parliament and are currently the subject of public consultation sessions in villages by a Parliamentary Committee over a prescribed 90 day period.
But Ms. Hazelman notes that the requirement for drafting a bill has a requirement for consultation prior to any bill’s even being tabled in Parliament.
Steps outlined in the manual for Legislative Drafting Requirements approved by the Attorney General begin with a bill being drafted and passed onto a Ministry to carry out consultation with relevant stakeholders.
After the stakeholder consultation, the Ministry then instructs the drafter of any changes following the consultation which the drafter will incorporate with the aim of improving the draft bills.
The draft bill is then passed back to the Ministry and Minister in question to table in the Cabinet.
Cabinet will then approve it to be tabled in Parliament, if not, it’s referred back to the drafter for further amendments.
Once it’s tabled in Parliament for first and second reading it is then referred to a Parliament Select Committee for any final changes before it is considered in detail and passed on third reading.
However, Ms. Hazelman, who is also a member of the Samoa Law Society, said the three bills are currently in step 15 of that drafting process having missed all other critical steps.
She said the fact that there was a manual with 17 steps, including consultation prior to the bills being tabled in Parliament, is recognition that public consultation is crucial.
“This is the largest review being done to our Constitution and the very fact that there was no consultation process prior to the Select Committee they are now given this difficult task,” she said.
“I feel for the Select Committee, it means they are given the extremely difficult task to try and listen to concerns, ideas and grievances of different stakeholders within our community which really should’ve happened at the beginning.
“What should have been the case is by the time the Select Committee goes through this process there is already a fair idea of what bills look like to determine whether to make [a] few amendments or withdraw [it].”
Ms. Hazelman said it’s overwhelming that the Committee be dealing with so many issues relating to the three bills that should have each been dealt with prior.
“At the moment the Committee is perhaps struggling with how to deal with these issues because they are not small issues raised by the community especially it will have an impact on every person’s everyday life and the judiciary,” she said.
“These are all things if it had consultation prior we would have bills that are workable and can put into implementation.”
Ms. Hazelman insisted that the Samoa Law Society is not objecting to all the changes but is merely asking to revert the bills back to the drafting process so that it can be followed.
She used the analogy of the bill being like a car that has no wheels or brakes.
“What we don’t want when we pass these bills is three years down the line and they are repealed again just like a car without brakes and it crashes,” she said.
“The ideas behind the bills are great ideas but we are saying to bring it back so we can work on it together so we can implement these bills in a harmonious way that is not conflicting.”
The senior lawyer, who is a partner of the Hazelman and Associates firm, said regardless of what recommendations are produced by the Parliamentary Committee it cannot be guaranteed that they will be upheld by Parliament.
She noted the hard work the Committee is undertaking by going out to the community to conduct consultation on the bills in individual villages.
“[But] there is nothing in our laws and Parliament proceedings that says Parliament is bound by [any arising] recommendations,” she said.
“Parliament is not going to be bound on anything that this Committee works so hard to do.
“When recommendations come they are actually just that [...] there is nothing that binds Parliament to [...] accept [them].
“If at the end its recommendation is let’s withdraw the bills, there is nothing [...[ that Parliament has to do that and it’s a concern.”
Recently, Prime Minister, Tuilaepa Dr. Sa'ilele Malielegaoi, said that the three bills concerning L.T.C. and the Judiciary will not return to Parliament until the Committee hears the views of villagers throughout the country.
As part of the process, Tuilaepa said members of the Parliamentary Committee tasked to review the bills will be visiting villages and meeting with them to garner their views.
“The bills can’t go through to the third reading without going through this [consultation] process,” assured Tuilaepa.
“Ninety days, that’s three months. This was one of the concerns from the lawyers [Society] that there was not enough time for any consultation.”
Earlier this month, a member of the Committee, Fuimaono Te’o Samuelu, said processes following the Inquiry will be unique.
Despite normal processes of inquiries to be compiled and reported to Parliament after its completion, the L.T.C. matters will be taken out to the villages for consultations, said the M.P. for Falealili.
“The intention of the Committee is to ensure that this is not the end,” he said.
“Even in Salafai (Savai’i), the Committee will be going out to the constituencies from village to village to clarify and consult with everyone [on the bills].
“The Committee has decided to give the opportunity to the public to bring in their concerns and thoughts to build this law, because the bill belongs to us and not anyone else’s.”