A parliamentary inquiry into anomalies discovered in constitutional amendments linked to the operations of the Land and Titles Court has recommended charges against those responsible.

A Special Inquiry Committee report highlighted those it claimed were behind the amendments, which resulted in changes being made to the Act of Parliament without due processes, who “appeared to have breached” Standing Orders and Revision and Publication Act 2008. 

In one of the four main recommendations by the Committee, the report stated that the matter should be referred to the Office of the Attorney General, and the Ministry of Police to press relevant charges against those involved. 

A copy of the publication “Report on the outcome of the Investigation Regarding the issue raised by the Attorney General on the Constitution Amendment Act 2020 & Land and Titles Act 2020” was obtained by the Samoa Observer. 

Those implicated and interviewed by the Committee in its investigation include the President of the Land and Titles Court, Fepuleai Atilla Ropati, former Clerk of the Office of Legislative Assembly, Tiatia Graeme Tualaulelei and other staff as well as the former Attorney General, Savalenoa Mareva Betham-Annandale.

Chairman of the Special Inquiry and Deputy Speaker, Auapaau Mulipola Aloitafua presented the findings of the Committee before the Legislative Assembly on Wednesday 4 May 2022.

The Speaker of the House, Papalii Lio Masipau told the parliament the report will be deliberated on in the next sitting to allow Members to have more time to read the report. 

The “rushed” amendments – which were the subject of the Committee’s inquiry – were passed by the parliament on 15 December 2020 and signed by the Head of State on 5 January 2021. 

The Committee's investigation found that although the laws were passed by the parliament, there was communication from the L.T.C. President via email seeking “corrections” to certain passages of the L.T.C. Act. 

It was also noted that the Clerk at the time did not have sufficient time to properly check the changes which were given to him, in order to make the proper judgement whether the proposed changes were in accordance with Standing Orders 111. 

"The Committee is of the belief if the Clerk at the time considered and sought assistance from other staff of the Office, this would not have happened.

"To use just two staff for an immense work, error in judgement, missing sections are inevitable.

"Committee is certain that not only the President of the Land and Titles Court emailed his changes, he personally came to the Office and met those that are involved with making the changes."  

The parliamentary inquiry noted that the O.C.L.A. recalled the Acts on 8 January 2021, but “there are no records in delivery books to record how the Acts were recalled by the Office”. 

“The Executive Secretary of the Clerk stated in her testimony that she was instructed by the Clerk to contact all bodies that received the assented copies to return them to the Office”. 

During its findings the Committee referred to one of the main amendments put forth by the [former] Attorney General in her letter dated 27th January 2021 to include changes in line with the Special Committee’s resolution 2020.

“However, a resolution to remove these words made by the Special Committee 2020 cannot be found,” the report stated. 

According to the Committee, the said actions to change the constitutional amendment passed by the parliament downgrades the supremacy of parliament’s decision making as per its constitutional functions. 

“It is an act where a person overpowers resolutions made by the Legislative Assembly,” the report stated. 

“This is not a good example and if one is to not make stringent decisions on the matter, future generations will be affected.

“This is why the Committee does not accept the statement, such changes were made because they were clerical or typographical errors…It is certain that this was done without legal authority.” 

The Director of the Samoa Law Reform Commission, the former Attorney General, the former Assistant Attorney General, and the President of L.T.C. were asked for their legal perspective on the impact of the amendments that were changed.

The Committee acknowledged that the parties agreed “the law will not be useless, it will not weaken the law, it will not weaken the substance of the law and the law will not be bound from being implemented”.

The major concern for the Committee was the removal of what was passed by the parliament, which raised questions of the motives behind such actions. 

“The removal of amendments already passed by parliament by some people illegally, raises questions regarding the Parliament’s constitutional authority and responsibility of making, changing and repealing laws,” the report noted. 

“The changes under scrutiny were amendments to the Constitution 2020. Therefore, it is important to note that any changes made to the Constitution should be passed by 2/3 majority or more of Parliament Members. 

“However it is clear from our investigation that the official and usual process of passing amendments relating to the Constitution was not adhered to.”

The Committee pointed out there was a "deliberate submission of wrong or false copies of the Act for assent". 

The Committee also disagreed with the officials’ views that "the changes does not weaken the law". 

“However, from the perspective of the Committee if it does not affect the law then why has this become a vital issue.

“The appointments have been put on hold because it seems like there is no Act to justify it.”

The parliamentary investigation into the three different versions of the Constitution Amendment Act 2020 and L.T.C. 2020 was established when the Komisi of Faamasinoga o Fanua ma Suafa made appointments for new L.T.C. Judges in December 2021. These include the appointment of the L.T.C. Deputy President, Faimalomatumua Mathew Lemisio and another judge.

The Minister for Justice and Courts Administration, Matamua Vasati Pulufana had asked for legal advice from the Attorney General’s Office regarding the matter and queried whether the law catered for the new appointments.

The Office provided the following advice, “at this time, the law does not allow the current appointments because the law is incomplete, as you may know, the Constitution provides that there shall be a Komisi, but this very Komisi should have an Act that will guide it". 

“There will be an Act that will direct this Komisi soon. This Komisi will advice the Head of State on the appointment of Judges.”

At the time, the Head of State had also requested for legal advice on the same matter. This was the main reason why the approval of the Head of State for such appointments were halted, until such a time the Office of the Attorney General would provide legal advice confirming that the law is complete. 

This led to the President of L.T.C. lodging a case in the Supreme Court against the Attorney General. 

In preparation for the case, the Office of the Attorney General was instructed by the Judge presiding over the matter to prepare and submit copies of the Assented versions of the Constitution Amendment Act, because it seems “that the copy of the Act provided by the Office of the Attorney General is different from the copy of the Act the Judges have.” 

The inquiry noted it is here where the differences were noted, where the copies of the Act that the Judges had did not have the words “as may be provided by an Act” under Article 104E (4) of the Constitution Amendment Act 2020. 

The Attorney General then contacted the O.C.L.A. and confirmed that there was more than one version of the Act. It led to the internal investigation by the Office of the Clerk with a report tabled in Parliament on 18 January 2022.