The Samoa Law Reform Commission’s (S.L.R.C.) Executive Director, Teleiai Dr. Lalotoa Mulitalo, says a package of bills proposing the overhaul of the Land and Titles Court (L.T.C.) and the nation's judiciary have been under development since 2016. 

The bills in question are the Constitutional Amendment Bill 2020, Land and Titles Bill 2020 and the Judicature Bill 2020.

This week Teleiai explained the genesis of the legislation as a 2016 Parliamentary Symposium.  At that event, the then Supreme Court Chief Justice, Patu Tiavaasue Falefatu Sapolu, presented individual over communal rights in the Constitution. 

Teleiai’s comments were contained in a pre-sitting report prepared for Members of Parliament on Monday but which was only released on Wednesday.

“Given this [...] decisions made by the Village Fono is disregarded during court proceedings as the Constitution does not reflect communal rights,” a report on the briefing said. 

“Teleiai continued that it was also in 2016 that a Special Inquiry Commission was established to assess the procedures of the Land and Titles Court, much deliberation took place during the Commission’s investigations and a report was tabled with recommendations.”

The recommendations followed consultations with  the Ministry of Justice and Courts Administration (M.J.C.A.), the Land and Titles Court, the Attorney General, and the general public.

In 2018 a Land and Titles Bill was formulated with recommendations from the Special Inquiry Commission and incorporated into the new bill, the report continued. 

The report says that last year, during an earlier pre-sitting briefing on 2 April,  Cabinet decided that their understanding of other factors relating to the role of the L.T.C. needed to be refined and further clarified.

Cabinet then instructed the Ministry of Justice and Courts Administration, the Office of the Attorney General and the Samoa Law Reform Commission to research and investigate the practices and procedures recommended by the Commission of Inquiry into the L.T.C.

“The Committee then conducted its investigations and research as instructed for [five] months (October 2019 – February 2020) which has brought about the amendment to the Constitution and the new Land and Titles Bill 2020,” the report said. 

“The Executive Director explained that from the 124 Articles of the Constitution of the Independent State of Samoa, only 8 Articles make reference to the Samoan culture; we need to better reflect our Samoan customs and practices in our Supreme Law.”

The report said only by changing the Constitution, but not by infringing or removing the rights it provided, could the role of culture in the document be promoted. 

One Member of Parliament, Lealailepule Rimoni Aiafi, during the briefing cautioned the presenters to focus on the issues and concerns raised by the Samoa Law Society. 

“[M.P. Lealailepule] stated that the worries expressed by the Samoa Law Society should be clarified by the administering body to ensure Members can accurately explain and inform their constituents and members of the public who are now becoming unreceptive to the proposed changes,” the report said. 

Another M.P., Faumuina Wayne Fong, queried whether there were enough consultations between the Committee and affected parties about the proposed changes.

“The Member stated that proper consultation and awareness is crucial to ensure members of the public are not easily swayed from the truth ” said the report.

The same concern was echoed by another M.P., Alaiasa Sepulona Moananu, who called for effective public consultations and a public awareness campaign to inform the public. 

The report says the M.P. also recommended stronger policies and procedures to ensure those seated in the Supreme Court and Court of Appeal and Final Review are well qualified to discharge their duties.

Another M.P., Tafua Maluelue Tafua, criticised the lack of awareness programme to properly inform and clarify the changes to the people especially the Samoa Law Society.

“He queried what the Committee’s stand is on the issues raised by concerned citizens that the amendment will provide the Justice System with two heads,” the report said. 

“He further asked whether the two will have the same authority.”

A Cabinet Minister for Agriculture and Fisheries, Lopaoo Natanielu Mua, spoke to the rationale behind the amendment. As the Chair of the Special Inquiry Commission established in 2016, he said he was aware of the concerns raised about an independent L.T.C.

“The Hon. Member explained that when the Constitution was formed Samoa adopted the laws of foreign rulers (those who came and colonised our nation),” the report quoted the Minister as saying. 

“It is because of this, the laws are not reflecting local customary practices, hence why this amendment is critical in ensuring that our own unique culture is reflected in the Constitution.”

Salega East M.P., Olo Fiti Afoa Vaai, commended members of the Law Society for raising concerns with the proposed bills. 

“[He] stated that it is important to have different viewpoints on such changes especially given it is a constitutional amendment,” the report said. 

The Member raised queries about the qualifications and eligibility of members seated on the Court of Appeal and Final Review as well as the High Court for the Land and Titles Court, as well as the Judicial Service Commission.

In addressing the members, Teleiai explained the Committee of the S.L.R.C., the M.J.C.A. and the A.G. are prepared to respond to the concerns raised by the Samoa Law Society. An appearance before the Committee will be a chance to express and clarify the current changes, Teleiai said. 

“Teleiai stated that the amendment does not provide the Land and Titles Court to be equal or superior to the Criminal and Civil Procedures Court because both courts have different jurisdictions,” the report said. 

“The two courts will operate separately and work within their own jurisprudence because they have separate values.

“The European Court focuses more on individual rights whereas the Land and Titles Court values the communal rights. Teleiai asked how can there be an autonomous Land and Titles Court; the answer is simple, it must be incorporated within the Constitution.”

Teleiai also addressed the concern that there were two heads of the Ministry of Justice and Courts Administration.

“There are separate heads of the Civil and Criminal Procedures Court, and the Land and Titles Court (the Chief Justice and the President),” the Commissioner said.

“Who is responsible will depend on the matter being discussed, whether it is an individual right issue, the Criminal Court has jurisdiction, if it is a communal rights issue, then the Land and Titles Court will take lead.

“The Executive Director explained that this framework and layout is not permanent (it can be changed) depending on the majority will of the nation.”