Plans for L.T.C. bills' unclear
The Government has not disclosed to Parliament whether it plans to push ahead and pass a major overhaul of Samoa’s judicial system before next year's election.
The Office of the Legislative Clerk says it is “unclear” whether three pieces of legislation that would create an independent Land and Titles Court (L.T.C.) will be tabled in the next sitting of Parliament, in less than two weeks’ time.
Meanwhile, opponents of the legislation say they are preparing for the bills to be pushed through before the election, while the Government enjoys a supermajority in Parliament.
The Clerk of the Legislative Assembly, Tiatia Graeme Tualaulelei, told the Samoa Observer on Friday that the report of the Special Parliamentary Committee report into the L.T.C.
(The committee solicited public feedback on the plans to create an autonomous L.T.C. and its report is a precondition to the bills, currently at their second reading stage, passing into law.)
But the leader of Samoa’s newest and biggest opposition party, Fa'atuatua I le Atua Samoa Ua Tasi (F.A.S.T.), La’auli Leuatea Schmidt, an opponent of the laws, says he is preparing for the Government to move the bills to their third reading stage.
“I wouldn’t put it past them [the Human Rights Protection Party (H.R.P.P.)] because they have the [majority needed] to allow the bill to go through the third reading or pull it back, but I’m ready and will expect the worst….but let’s hope it does not come to that,” said La’auli.
The package of legislation is the Constitution Amendment Bill 2020, the Land and Titles Court Bill 2020, and the Judicature Bill 2020.
The bills have drawn opposition from the Samoa Law Society (S.L.S.) which has requested the bills be withdrawn.
In September, the S.L.S. maintained its strong opposition against three bills, tabled as a package before Parliament, proposing to restructure the judiciary and change the Constitution.
Shortly after the bill was tabled in Parliament, the nation’s judiciary collectively signed a letter opposing the legislation expressing “grave concerns” about the plans.
Tiatia told the Samoa Observer the committee that had sought public feedback had yet to finalise “their amendments” into the report.
“I cannot confirm unless the Committee Report has been finalised,” he said.
“Regarding the agenda for the upcoming sitting on 15 December 2020 will also be finalized next week.”
On Friday, La’auli told the Samoa Observer he had requested a meeting with the Speaker of the House, Leaupepe Toleafoa Fa’afisi, about the bills and the process for passing them into law if amendments are recommended.
“However one thing is for certain, if there are a number of amendments proposed by the committee then the bills should be in the final reading stages,” said La’auli.
“If anything these bills should be withdrawn, given that there is too little time to deliberate on these bills.”
Meanwhile, former Deputy Prime Minister and M.P. for Lotofaga, Fiame Naomi Mata'afa, has been travelling around the country to explain the complexities of the legislation and what she views as its negative impact.
Fiame resigned after the Special Parliamentary Committee visited her village seeking feedback on the bills.
The then-Deputy Prime Minister and one of the H.R.P.P.’s longest-serving M.P.s described the bills as poorly prepared and likely to cause conflict among the people of Samoa and within the judiciary.
She resigned from the Cabinet and her party to become an independent M.P. afterwards.
While the former Deputy P.M. has appeared at events connected to the Fa'atuatua ile Atua Samoa ua Tasi (F.A.S.T.) party, she has retained her status as an independent Member of Parliament.
In September, the lawyers presented their views for the second time with the Special Parliamentary Committee tasked with public consultations on the bills, three months after their initial meeting.
The Society's President, Leaiataualesa Komisi Koria, said they reiterated their stance on five main points they felt were extremely dangerous for Samoa if the Judicature Bill 2020, Lands and Titles Bill 2020 and the Constitutional Amendment Bill 2020, are passed.
The issues they highlighted included the removal of the ability of people who go before the Lands and Titles Court to enforce fundamental human rights as protected under the Constitution.
The Society also expressed concerns about the removal of the Lands and Titles Court from the supervisory jurisdiction of the Supreme Court.
Leaitaualesa added that thirdly, concerns were raised about the new Lands and Titles Court's ability to define customs and usage.
"In other words, the Government will have a say in defining what is our culture," he said.
The fourth concern is the effects of the bills on the independence of the judiciary.
"The removal of the pretensions that currently exist for the tenure of judges in the Supreme Court."
Lastly, is the effects the three bills can have on the separation of powers as protected under the Constitution.
"The main concerns by the Law Society is that the democratic principles that are protected under the Constitution will be affected and diluted as a result of the clear passage of these three bills," Leiataualesa said.
Former Attorney General, Taulapapa Brenda Heather-Latu, who chaired the Law Society's Special Committee to review the bills, reiterated that as a Society, they are extremely concerned about the ramifications of the bills for Samoa and Samoans.
"These bills undermine the fundamental fabric of justice in this country. And they also steal away the authority and the discretion of all of us as Samoans to decide what is aganu'u (culture),” Taulapapa said.
Taulapapa stressed that rather than strengthening customs in the country, the three bills weaken it by giving the authoritative power to the proposed autonomous L.T.C.
Taulapapa, however, acknowledges the opportunity for critics of the proposed legislation to express their views, despite the "personal attacks" they have had to wear since they stepped out in public.
"Freedom of speech and expression is simply an example of all the other rights we hold sacred in our Constitution, that everyone should enjoy. But under these bills, they've taken away from people who have a lands and titles matter and that's not good enough," she said.
"The change in the Courts is a fundamental change and it's come in out of nowhere."
Taulapapa said the Society is simply asking the Government to follow its own procedure in introducing bills into Parliament which she argues had not been followed with the L.T.C. Bills.
She added that should these Constitutional amendments be passed, it will be hard to change again without the two-thirds majority of the vote in Parliament.
The bills have drawn other widespread condemnation.
Retired Supreme Court Judge, Justice Lautalatoa Pierre Slicer, described the bills as a “disaster” for the rule of law in Samoa.
Eminent Australian former High Court judge Michael Kirby and the International Bar Association's Human Rights Institute condemned the bills and said they could risk Samoa’s ongoing position in the Commonwealth of nations.
The United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, said the bills risked undermining the principles of the separation of powers and negatively affecting human rights.