Dear Editor,

I read with interest the Letter to the Editor by the Leader of the Human Rights Protection Party (HRPP), which was titled “Fundamental communal rights of people abolished”, and published in your newspaper on Friday, 6 September 2024.   

Sadly, the Letter is woefully inaccurate and extremely misleading and I therefore respond to provide clarity for readers and members of the public.  

The HRPP Leader states that, on Friday 30 August 2024, “Parliament passed two important amendment bills to remove the fundamental rights of Samoa’s village chiefs and religious organizations from the Constitution and related provisions in the Land and Titles Court.”

To be clear, the two Bills to which he refers are the Constitution Amendment Bill 2024 and the Land and Titles Amendment Bill 2024 which were tabled in Parliament on the 20 August 2024 and, following lengthy deliberations by Members of Parliament, including the HRPP Leader, passed their second reading on Friday 30 August 2024 before referral to the Select Parliamentary Committee.

The claim that these two Bills “remove the fundamental rights of Samoa’s village chiefs and religious organizations from the Constitution” is inaccurate. It would have been helpful if the HRPP leader had elaborated a bit more specifically on what he meant by these fundamental rights, but presumably he means “communal rights” which he mentions in other parts of his Letter, and which has been referred to by some, in Samoan, as “Aia o le toatele”. If this is the case, it would also have been helpful if he had pointed out (i) where in the Constitution these fundamental rights or communal rights are currently provided for and (ii) which specific clause or clauses in the current Bills, in his view, purportedly remove these fundamental rights belonging to Samoa’s village chiefs and orators and religious organizations, or more simply, communal rights.

In fact, the Constitution Amendment Act 2020, despite persistent rhetoric by the HRPP, did not provide for, include or incorporate “communal rights” for village chiefs, orators or religious organizations, in the Constitution.  There are therefore no current provisions in the Constitution or the current Land and Titles Act 2020, which refer to the term “communal rights”. No such provisions exist. The current Bills, tabled in Parliament in August 2024, cannot remove something that does not exist in the current constitutional and legislative provisions.

Article 104(3) of the Constitution currently provides that “All persons are entitled to the protection of their custom rights the subject of the jurisdiction of the courts in this Part”. This provision does not use the term “communal rights”. It relates to “custom rights” for individual persons, and they are limited by the words “the subject of the jurisdiction of the courts in this Part”. That is, limited to custom rights pertaining to customary land and matai titles, being matters which are within the jurisdiction of the Land and Titles Courts.

The current Constitution Amendment Bill 2024 retains the protection of these custom rights, howsoever defined, but proposes to amend this clause, for clearer wording so that it is clear that persons who wish to enforce their “custom rights” or rights derived from custom and usage can make the necessary applications to the Land and Titles Court for the enforcement of these rights. This is not clear at present.

The current Bills do not threaten the authority exercised by village Alii & Faipule who play a pivotal role in maintaining and upholding peace, harmony and order in our villages, right across Samoa.

The two Bills also will not “disempower and effectively dismantle Samoa’s indigenous court system that protects our culture and tradition giving supremacy back to a palagi-based fundamental rights system”. Again, this claim is inaccurate and absolutely unfounded. The exclusive jurisdiction of Samoa’s Land and Titles Courts, over matai titles and customary land remains protected under the current Constitution Amendment Bill 2024 and the Land and Titles Amendment Bill 2024. Whilst the third tier of the Land and Titles Court, namely the Land and Titles Court of Appeal and Review is to be disestablished, the Land and Titles High Court, is to be renamed as the Land and Titles Appeal Court and will retain its status as a superior court of record.  

It is unfortunate that the HRPP Leader in his letter fails or refuses to mention and acknowledge that the two Bills now before the Select Parliamentary Committee are also intended to address the many gaps and deficiencies arising from the enactment of the Constitution Amendment Act 2020 and the Land and Titles Act 2020 which impact on the judicial arm of the State. These amendments include making provision to allow for appointment of Supreme Court Judges to be made, provisions to ensure protection of judicial independence, via reinserting constitutional protections around suspension and removal for Supreme Court Judges and relating to salaries. It includes provisions to clarify the terms and conditions of tenure of the Senior Judge of the Supreme Court, a new Office established under the Constitution Amendment Act 2020. There are many more but I will stop here.

I will refrain from the name-calling that the Leader of the Opposition has unfortunately resorted to.

Blessed Sunday Samoa.

Matamua Seumanu Vasati Sili Pulufana

Minister Of Justice and Courts Administration