Change is good for Samoa, but more changes are needed to enhance good governance, restore trust in the Land & Titles Court (LTC) and protect constitutional rights

It’s time to acknowledge we are in a place that we needed to be, and the change in political leadership is good for Samoa. The change after 40 years of uninterrupted rule by the Human Rights Protection Party (HRPP) has brought a renewed focus to reestablish democratic norms and respect for the Rule of Law.

The changing of the Government through the April 2021 general elections was an extraordinary event that was highly improbable, at least in my own mind and, no doubt, many others in our country. It came just three (3) months after the then HRPP government with over 90 per cent control of parliament pushed through parliament the hurried (faanatinati) passing of three controversial laws including a constitutional amendment that engineered major changes to the Judiciary by dividing it into two (2) autonomous branches, reducing the extent of the oversight and Judicial Review powers of the Supreme Court, while increasing the powers of the President of the Land & Titles Court to an unprecedented and unwarranted level. The Constitutional amendment also makes it easier for the Government of the day, to remove Judges of the Supreme Court (other than the Chief Justice) that it may not like.

Of particular concern is that the Constitutional Amendment weakens the Independence of Judges of the Supreme Court (except the Chief Justice) and took away the exclusive power of the Supreme Court to enforce our fundamental rights safeguarded by the Constitution. Under the Constitutional amendment made (based on the version I have) it is no longer the preserve of the Supreme Court to do so, as its oversight role over matters regarding breaches of Constitutional rights and its inherent jurisdiction for Judicial Review, no longer applies to proceedings and decisions of the Land & Titles Court. When the concern was presented to the Parliamentary Committee during the previous HRPP Government, the answer it gave to our group was that somehow (without legal clarity), the proposed Appeals & Review Land & Titles Court under the constitutional amendment will safeguard those constitutional rights. It is bad law by any standards for this ambiguity and other reasons.

For one thing the Land & Titles Court lacks the legal expertise and practical experience to deal with the issue of fundamental rights, except the Supreme Court of Samoa. In addition, it arguably lacks the independence and depth to seriously and properly deal with breaches of fundamental rights arising under its own proceedings, relating to Customary matters. Furthermore, the inevitable inconsistency in decisions, between those made in the Supreme Court and those at the Land & Titles Appeals & Review Court, regarding the same constitutional rights the Constitution is referring to, may leave participants in the Land & Titles Court exposed to the risk of having their rights safeguarded under the Constitution, either abrogated or violated in the Land & Titles Court proceedings, without recourse. Except for the Chief Justice, the Constitutional amendment 2020 weakens the constitutional safeguard that protect the independence of Judges of the Supreme Court by making them easier to be removed from office by the Head of State on the advice of the Judicial Services Commission, a body with now expanded membership under the constitutional amendment, which can enable and facilitate a strong government influence into that body, while at the same time practically dilutes the influence of the Chief Justice on decisions of the Judicial Services Commission. Previously, the Supreme Court Judges can only be removed by the Head of State by a vote of not less than two thirds of Members of Parliament (including vacancies), on the grounds of stated misbehaviour or infirmity of body or mind. The Constitutional amendment therefore makes it easier to remove Judges of the Supreme Court that for example a Prime Minister or government of the day may not like. It actually enables a government to easily influence and undermine the judiciary and render judges of the Supreme Court vulnerable to dismissal without cause or due process.

The political and constitutional crisis that occurred after the general election last year in 2021 and the undue, unprecedented and extraordinary pressure that the former Prime Minister Tuilaepa Sailele Malielegaoi and the HRPP put on the Supreme Court Judges was a classic case study of why it is so critical to protect the Tenure and Independence of all Supreme Court Judges, not just the Chief Justice. The Independence of our Supreme Court Judges are crucial to Good Governance as it maintains and sustain their capacity to make appropriate rulings regarding the law, without fear or favour. The weakening of their independence by the previous HRPP Government in the constitutional amendment made, was unwarranted, inappropriate, and a big mistake that needs to be corrected for the security of our nation and its people and the protection of the rule of law. It is in all our best interest to rectify this. The hope is, there may be members of the HRPP in parliament that now understand the importance of the issue and might be willing to work together with the FAST Government to restore the original constitutional safeguard for Supreme Court Judges' independence, and reduce the numbers in the Judicial Services Commission, so the appropriate influence of the Chief Justice over this important Judicial body, is restored. In contrast, the Komisi Faamasinoga o Fanua ma Suafa (the Judicial Services Commission equivalent) under the Land & Titles Court, have only three members Chaired by the President of the Land & Titles Court.

On top of these concerns, those Land & Titles 2020 law changes which were passed by the previous parliament came into effect when the Appeals & Review Land & Titles Court under those laws, has not been set up yet and it won’t be ready for a long time by all indications. The previous HRPP Prime Minister and Cabinet were fully aware of this unpreparedness, but still allowed this inappropriate position to happen. As a result, the legal rights established and granted by the Land & Titles Act 2020 for the entitled litigants to appeal to the Appeals and Review Land & Titles Court cannot be honoured, enabled or implemented as there is no such Court in existence to date, and it is now 20 months after the hurried passing of that law. It is therefore apparent that the previous HRPP government that brought these extraordinary, inappropriate and controversial law changes was not ready, prepared or concerned to implement the Review and Appeals requirements of the 2020 Land & Titles laws to safeguard the rights and interest of the Samoan people in an area critical to them and their Customary families, properties, entitlements and rights – their very identity.

Sitting at the top of all those issues with the new Land & Titles 2020 laws, is a serious governance concern that occurred well before the Land & Titles law changes came into effect. That concern involved the tarnishing of the Integrity of the Land & Titles Court and the related loss of trust and respect for the Court after the current President of the Court was convicted of a serious crime, but did not resign when convicted, nor did the then HRPP Government ensure with its over 90 per cent majority in Parliament at the time, to remove him from office. The charade that was performed where a motion in parliament was moved to remove the President from office, mislead many into believing they were doing the appropriate thing expected of them as leaders. The fact is, if the Prime Minister at the time and leader of the HRPP really wanted him removed, there is no doubt that the HRPP with over 90 per cent control of the then parliament would have achieved a vote that exceed the two thirds majority that was needed. At the time, there was no Constitutional safeguard for the removal of the President of the Land & Titles Court as the two thirds majority of parliament to remove him was stipulated in the Land & Titles Act 1981 and the then government could have easily amended the Act and remove him by a simple majority, if they were genuine about it. The charade, however, undoubtedly created a favour (or a debt) in the mind of the President and without doubt has affected whatever Independence left he may have had before that event. This serious governance concern of having a criminal President, head the Land & Titles Court, needs to be addressed by our political leaders. Both the FAST Government and the HRPP Opposition should work together to restore trust in the Office of President of the Land & Titles Court by urging the current President to do the honourable and ethical thing and resign, and if he does not, then move a motion in parliament that both parties support to remove him from Office, to safeguard the interest of our Samoan people and restore trust in the Land & Titles Court, as it should be.

A Judicial system which operates without regard to professional ethics standards is not able to build and maintain public trust in the fairness and independence of its decisions and outcomes. Such a Judiciary (and members) is also vulnerable to undue influence from the Government and outside entities or individuals.

The Judiciary needs to be trusted. It is something it must have. For it to be trusted it must have integrity, independence, impartiality, professionalism, and abide by the rule of law and ethical standards of the Judiciary. The normal expectation is, if a crime especially a serious one, has been committed by the President of the Land Titles Court (or any other Judge), he should resign because he has committed an act unbecoming of a member of the Judiciary – a ‘misbehaviour’ and misconduct under the Constitution and the law. For him to remain in office, destroys that Court’s Integrity (actual and perceived) along with any trust that the public may have in that Court. It is something completely contrary to good governance. For any government and parliament which allowed such a situation to continue, affecting the trustworthiness of the Land & Titles Court, is a gross dereliction of duty to the people of Samoa. The breaking up of the Judiciary without any good reason, and empowering the convicted President of the Land & Titles Court with significant and discretionary powers, while removing the Supreme Court oversight and guardianship over our constitutional rights in the Land & Titles Court, is irresponsibility at its highest.

Fast forward to today and we are witnessing now, how dangerous and non-law abiding the sitting President of the Land & Titles Court is. The Report filed in parliament by the Parliamentary Committee that investigated unauthorised/unlawful changes made to the 2020 Land & Titles laws passed by Parliament has informed us on what had happened – it appears the President of the Land & Titles Court (who was a former Clerk of the Legislative Assembly) instructed by email significant changes that were made, after the laws have been passed by Parliament. Even the copy of those laws passed by parliament and signed and assented to by the Head of State, and sacrosanct, was not safe. It is inconceivable that a President of the Land & Titles Court (or anyone else - other than Parliament) could change laws already passed by Parliament or make laws as it appears in this case. It is even unthinkable that a law assented to by the Head of State could be amended, without the knowledge of the Head of State or Parliament.

These as reported, are serious violations of constitutional, statutory and regulatory requirements and procedures and the overriding of controls over the law making processes and are symptoms and evidence of the decay that was festering in the previous Administration under the then HRPP government. The Constitutional Crisis that was precipitated by the failure to follow the rule of law and the Constitution by the HRPP leadership highlighted the risk that our nation and our country were exposed to. The change in Government that took place in 2021 was a miracle that appears to have saved our nation and restored the respect for the rule of law and democratic norms.

The suspension by parliament of the Leader and Secretary of the Opposition HRPP may sound heavy handed but when placed in the context of what happened, said and done by them, and as confirmed by the Supreme Court decision on their contempt of court hearing, that convicted them, it is in Samoa’s interest to deter any such behaviour in future from any elected members of parliament who should, as elected leaders of our nation and those that make laws for Samoa, set a good example for all to follow. However, such necessary sanctions by parliament itself should be made clear, in the Standing Orders of Parliament and the laws relating to it, and applied in a manner that complies with the Constitution. The very recent Supreme Court decision that ruled the parliament process in arriving at the penalty imposed on the HRPP leader and its party secretary breached the Constitution, is another reminder to all of us, how important the Supreme Court Judges are to the rule of law in Samoa and the protection of fundamental rights. It is also a strong reminder that their independence must be strengthened and safeguarded, rather than weakened.

It begs the question: if the Supreme Court has constitutional power/jurisdiction (which we agree wholeheartedly), to look into a breach of constitutional rights in parliament, then how come the previous government designed a constitutional amendment to preclude the Supreme Court from scrutinising any claim of breach of our rights in the Land & Titles Court? As indicated earlier, it is totally inappropriate, unwarranted, flawed, and has no common sense in it whatsoever, and accordingly should be repealed.

There is a cause and effect in our lives that we should all know and understand. In this case, it is no different. We are free to make choices in our lives but we are not in control of their consequences.

Elected leaders of our nation must lead us in the right way and follow the rule of law. To deviate from the rule of law and violate the democratic principles and convention of respect between the three Branches of Government (Parliament, Cabinet Executive and the Judiciary) should not be allowed. It is not possible to have good governance unless we first respect the rule of law. The rule of law is the glue that binds all elements of good governance and no matter what we say it is what we do that ‘speaks louder than a thousand words’.

We cannot achieve good governance unless such requirements and expectations from those that govern us are met. The Judiciary is the third branch of Government that governs us. It is the branch of government that we most demand integrity and the need for independence from as the Judiciary’s decisions affects us when we go to Court to resolve a matter. In the context of the Land & Titles Court, its decisions affect, not only those that go to court, but also affects all future and unborn generations of affected customary extended Samoan families, and so the demand for it to have the highest level of integrity and ethical standards is unquestionable. This demand and requirement starts with the Office of President.

One further concern particularly in relation to our rights to a fair trial under the current Land & Titles Court President, need to be explained. It was a shock after the Constitutional Amendment and Land and Titles Act 2020 were passed, that we find there is no longer any Court hearing of applications for leave to appeal by the President. All that is done now is for applicants and opposing sides to be present before the President, to read out his decision based on written submissions without any proper hearing, as before. There is no opportunity for questions, answers or clarifications of any kind whatsoever to properly establish whether an applicant has satisfied any of the grounds as set out by section 39 of the Land & Titles Act 2020, on which leave to appeal may be lawfully granted. The President, who was before his appointment as President, was the Clerk of the Legislative Assembly, is now a law unto himself in his court. And as already explained, the constitutional amendment passed in 2020 means, there is no longer any Supreme Court oversight to ensure he respects our constitutional rights to a fair trial as required by the Constitution, pertaining to matters dealt with by him as President in the Land & Titles Court. For decisions by the new Land & Titles High Court, there is no Land & Titles Appeal & Review Court in existence at present to appeal to. To put it mildly, it is a sad state of affairs that was totally avoidable and extremely unnecessary, which has exposed our constitutional rights to unacceptable risk.

The Government in my view, must now prioritise, as a necessity and a matter of national interest, the removal of the current President of the Land & Titles Court and appointing a new President with a strong Ethical grounding with a long history of experience in applying the law to facts and making decisions that are reasonable and evidence based, with a strong understanding of our Custom & Tradition, in order to restore the Integrity of the Office of President, so the Samoan people can have full and unquestioned trust in the Land & Titles Court once again. We also need a HRPP Opposition Party that focuses on what matters in respect of the interest and security of our people and want to present alternatives that are reasonable so the people may see them in a good light rather than it seems their present approach which appears counterproductive to both our country’s interest and the HRPP’s own wellbeing. Responsible leaders do not choose tension and disinformation over peace and meaningful dialogue; responsible leaders in a parliamentary democracy such as we have, should champion the truth and uphold the rule of law and the principles of good governance.

Samoa has been thirsting over many years for a strong opposition party in parliament that holds the government accountable and the outcome of the 2021 elections satisfied the need for change that many people thought was not possible in 2021, and produced a strong opposition party in parliament. It is not good for our Democracy for any political party, to rule for the next 40 years or even any number of years close to it, as the HRPP did. The HRPP opposition party should help avoid that by rebranding itself and show us that it can lead responsibly, as it once upon a time did. It can start by helping the FAST government nurture peace, harmony and restore good governance and democratic norms to our country and, to respect the rule of law.

The new FAST Government, under the leadership of our Prime Minister, the Honourable Fiame Naomi Mataafa, many of us are hopeful, should continue on its current path of restoring the norms to our democratic governance system and promote the respect for the rule of law. The Speaker and his Legislative management team, no doubt, if not already done, will need to propose and implement effective control processes and procedures in parliament, in relation to the making and passing of laws and the maintenance of the integrity and security of the process, so nothing like what has happened to the 2020 Land & Titles laws (where unauthorised, unconstitutional and unlawful changes were made which have been identified by the Parliamentary Committee that looked into this issue, to have been prompted by the President of the Land & Titles Court after the laws were passed by Parliament and assented to by the Head of State), could ever happen again going forward.

It is human nature that when individuals that once had good intentions earlier in their journey got used to holding power and develop a need to hold on to it, they lose their way and become corrupted by that power. What was once a need to have power to do good, achieve good governance, and deliver services and products for the benefit and in the interest of the people and protect and enhance democratic values and institutions, becomes a need to have power to protect self interest in holding on to power and remove all opposition in order to achieve that. They start off in a very promising manner but after a while, they shift their goals from loyalty to the Constitution and safeguarding our Democracy and the public interest, to dismantling and weakening the democratic and constitutional institutions and adopt authoritarian strategies that break down the rule of law and remove all opposition to them.

The challenge for political leaders is to be able to allow improvements and changes to happen within their own political parties and to develop a healthy culture within them, so after a reasonable number of years change should happen so the best people and new talent are available to lead and maintain good governance and respect for the rule of law. Having a higher education does not necessarily make one a good leader though getting a good education can take one a long way in life’s journey. Leaders in political parties should be in the forefront of teaching our young people and the rest of us about nation building and maintaining good governance, respecting the rule of law and keeping peace in our communities and our country. They should never be promoting violence and tensions or disseminate disinformation as a means to garner support for their political views and aspirations. Once they do that, they are no longer worthy to become our nation’s leaders or even leaders of their own families and communities because, whenever that happens, they are putting our families and our country at risk.

We have seen and witness what brought on the tensions and political and constitutional crises and upheaval after the elections in April 2021. We should not allow such events to ever happen again. The current FAST Government and the Opposition HRPP should now work together to lay down a path for our country, which ensures such crises and breach of the rule of law never happens again from any political party in the future. This will safeguard our nation and ensure changes in governments are done in a peaceful and orderly manner, as elected by our people from time to time. We all have a responsibility, especially our political leaders, to ensure that good governance and the rule of law are maintained and preserved so peace, prosperity and kindness may prevail over our land forever.

Su’a Rimoni Ah Chong

Former Auditor General of Samoa