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by Eva Wagner, Programme Coordinator Rule of Law, Energy and Development Policy

This is the latest edition of KAS Australia's Digital Snapshot - a potpourri of current affairs from Australia, New Zealand and the South Pacific. The weekly digital snapshot provides an analysis of selected media and think tank articles, intended to offer an overview of the debate in these countries. The original version includes hyperlinks and links for further reading.

There are media reports of a constitutional crisis in Samoa. The crisis is said to have been triggered by 3 bills, namely the Constitution Amendment Bill 2020, the Judicature Bill 2020 and the Lands and Titles Bill 2020. The bills were introduced on 17 March, that is, three days before the country declared a national state of emergency for the coronavirus pandemic. If passed by parliament, the legislation could according to experts bring about major constitutional changes undermining judicial independence and the rule of law.

The proposed legislation would primarily affect the appointment and dismissal of judges as well as the role of the Lands and Titles Court. As a Samoan lawyer explains, while judges may currently be removed by two-thirds parliamentary vote on grounds of misbehaviour or mental impairment, the proposed legislation would enable the executive to dismiss judges without parliamentary vote. Instead, the power to dismiss judges would be vested in a judicial services commission, most members of which would be appointed by the executive. In the lawyer’s view, this would “fundamentally alter the carefully calibrated relationship between the arms of government [and] remov[e] the judiciary’s role as an independent check on abuses of power”.

The Lands and Titles Court was established under German colonial administration in 1903, continued under New Zealand colonial administration from 1915 to 1961 and entrenched in the Constitution of the Independent State of Samoa in 1960. What started as a colonial institution has been described as a “heavily indigenised hybrid body … [that applies] the customary rules relating to land and titles … albeit through a non-customary process.” The proposed legislation would reportedly turn the Court into a stand-alone court independent of the Supreme Court’s oversight. This, in turn, would not only remove the Supreme Court’s ability to resolve differences between the various courts. The bill would also remove the application of human rights to the Court’s decisions. This includes rights enshrined in Samoa’s constitution since it became independent in 1962 as well as rights codified in the International Covenant on Civil and Political Rights, which Samoa ratified in 2008. In particular, the right to appeal judicial decisions to the highest court in the country would be abolished. Instead, the Court would exclusively apply customary law, that is, decisions of villages’ chiefly councils (fono), with the application of common law and equity explicitly excluded. While the Court’s jurisdiction is restricted to customary land matters and chiefly (matai) titles, because 80% of the country is designated customary land, the impact of the legislative amendments are predicted to be extensive.

The legislation appears to represent the government’s attempt to override the effect of a 2012 Supreme Court decision. In the matter of Penaia v President of the Lands and Titles Court, the Supreme Court reportedly ruled that even though section 7 of the Land and Titles Court Act 1981 prevents the review of this Court’s decisions by any other court, the Supreme Court did have jurisdiction to review the Court’s decision because the claimant alleged a breach of his right to a fair trial.

The case illustrates the balance between customs and customary law on the one hand and (other) human rights on the other hand that any country with traditional structures must strike. A balance which, (not only) in the view of a New Zealand based legal expert, must be struck by a court with jurisdiction to review alleged human rights breaches.

The Samoa Law Society accused the Samoan Government of using the coronavirus pandemic to covertly introducing these constitutional changes. According to the Law Society’s President, Leiataualesa Komisi Koria, the bills were read for the first and second time in one day, and the third reading was moved through parliament, without mandatory public consultation. He also pointed out that the appointment of a new chief justice had been announced during the state of emergency. Afioga Vui Clarence Nelson has been Acting Chief Justice of Samoa since the retirement of Patu Falefatu Sapolu in April 2019. The Law Society’s President also referred to the introduction of the controversial Land and Titles Registration Act 2008. The Act adopts the Torrens registration of title system and requires the registration of public land, freehold land and customary land leases and licences. It also allows the registration of customary land in respect of which judgment has been made by the Land and Titles Court. According to the Law Society's President, the Act was adopted during protests against the change of the side of the road on which people were to drive, and would be given more effect by the proposed legislation.

The Law Society’s criticism was reportedly backed by the Samoa First and the Samoa National Democratic parties. SNDP party leader and former MP, Valasi Togamaga Tafito, is said to have referred to the seven years of consultations that took place before the Land and Titles Court Act 1981 was passed into law, and described the Prime Minister’s administration over the proposed legislation as communist style of leadership. Samoa First party leader, Unasa Iuni Sapolu, reportedly accused the government of using the lockdown to accelerate the process. He is said to have urged the Prime Minister to withdraw all bills and hear the voice of the Samoan people when it comes to their customary rights to lands and chiefly titles. Apparently, there were also critical voices from within the Government. Faumuina Wayne Fong, one of 48 MPs from Samoa's ruling Human Rights Protection Party, who currently holds the chiefly title Faumuina in Gagaifo Lefaga and attended a village meeting critical of the bills, was reportedly urged by Prime Minister Tuilaepa Sailele Malielegaoi to resign, a request that he declined saying the PM had no right to interfere with discussions in his village.

Meanwhile, the Government has tasked a Special Parliamentary Committee consisting of seven MPs with the review of the three bills. One of them, namely the Member of Parliament for Vaimauga East, Sulamanaia Tuivasa Tauiliili, said discussions by, and submissions to, the Committee were confidential.

Samoa has currently no confirmed case of coronavirus. The Government amended its state of emergency orders on 3 June. The country is scheduled to hold general elections in 2021.

 

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Eva Wagner

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Programmkoordinatorin Rechtsstaatlichkeit, Energie- und Entwicklungspolitik

eva.wagner@kas.de +61 2 6154 9323