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Samoan lawyers’ warning on rule of law if new laws are passed

30 April 2020

The Samoan Law Society is warning that the rule of law would be undermined in the Pacific nation if major constitutional amendments are introduced.

The Society says the three proposed bills would effectively remove the judicial primacy of the Supreme Court.

“The changes would significantly impair the independence of the judiciary. Currently, judges can only be removed by a two-thirds vote of Parliament on grounds of misbehaviour or mental impairment. The changes would empower the Judicial Services Commission, an executive body, to dismiss judges without cause or due process. This is a significant erosion of the separation of powers,” the Society says in a statement.

“The Supreme Court’s jurisdiction to enforce fundamental rights, such as the right to a fair hearing and freedoms of religion and movement, would be significantly reduced by carving out matters of customary land and titles,” it adds.

The changes were tabled in Parliament on 17 March, just before the Government’s announcement of its COVID-19 state of emergency declaration.

The Society also says changes are being considered while the constitutional offices of Attorney-General and Chief Justice are vacant.

However, Samoa’s former Attorney- General, Lemalu Herman Retzlaff, who helped draft the legislation, told Radio New Zealand the purpose of the changes was to deal with the issue of access to legal justice for those who lose an appeal at the Lands and Titles Court (LTC).

He said at present once the LTC decided an appeal - any family that lost their case, had no further court to advance to.

Lemalu Herman Retzlaff says even a judicial review to the Supreme Court could only deal with procedural issues as to how the hearings were conducted.

Samoan Law Society statement

“The Samoan Government has introduced major constitutional amendments into Parliament that would radically alter Samoa’s court system and undermine the rule of law. The changes were tabled in Parliament on 17 March, immediately prior to the Government’s announcement of its COVID-19 state of emergency declaration which radically limits freedom of movement during the pandemic. The changes are also being considered at a time when the constitutional offices of Attorney General and Chief Justice are vacant.

The changes would significantly impair the independence of the judiciary. Currently, judges can only be removed by a two-thirds vote of Parliament on grounds of misbehaviour or mental impairment. The changes would empower the Judicial Services Commission, an executive body, to dismiss judges without cause or due process. This is a significant erosion of the separation of powers.

The specialised Lands and Titles Court (LTC) would be elevated into a separate judiciary, effectively a fourth arm of government. The LTC has jurisdiction over Samoan customary land and matai (chiefly) titles, presided over by lay judges who are experts in Samoan custom. The Supreme Court currently exercises a supervisory jurisdiction to review LTC decisions for breaches of fundamental constitutional rights. The proposed changes would remove the Supreme Court’s apex court role, and establish a stand-alone LTC as a superior court of record with inherent jurisdiction. This would create two separate court systems with parallel and potentially competing jurisdictions.

The Supreme Court’s jurisdiction to enforce fundamental rights, such as the right to a fair hearing and freedoms of religion and movement, would be significantly reduced by carving out matters of customary land and titles. Under the proposed changes, constitutional human rights protections could no longer be enforced in LTC matters. Government’s stated position is that individual rights and protections must be removed, and “communal rights” prevail, in customary matters.

The application of common law and equity would be expressly excluded from the LTC jurisdiction. Confusingly, appeals within the new LTC structure could only be made on traditional common law grounds of judicial review with associated remedies.

Although the LTC would be expressed to have “supreme authority over the subject of Samoan customs and usages”, the changes would create a new constitutional mandate for “Civil and Criminal Courts” to take into account Samoan custom in all matters. This vague requirement creates significant potential for conflict between the courts and there is no order of priority or apex court to resolve such differences.

Proposed changes to the Lands and Titles Act would enable unprecedented government intervention into the traditional affairs of families and villages. The changes would, for the first time, create statutory limits on the number of chiefly titles within a family and processes for title bestowals. They would regulate matters of custom which have until now always been defined by families and villages as their measina (precious inheritance).

The operations of the LTC have been criticised over many years, including in a 2016 Parliamentary Special Inquiry Committee which recommended strengthening the LTC’s capacity and resourcing to produce more just outcomes. Importantly, the Committee recommended that the Supreme Court’s supervisory jurisdiction should remain unchanged. In October 2019, the Samoa Law Reform Commission (SLRC) was tasked to review how Samoan custom could be better recognised within the Constitution and to establish the LTC as an autonomous court. This process and the resulting bills did not go through the usual public consultation processes that are mandated by the SLRC’s statute and government’s legislative drafting policies.

Following their 1st and 2nd reading on 17 March, the bills were referred to a Parliamentary Committee for inquiry. The Constitution mandates a 90-day stand-down time between 2nd and 3rd reading. The Parliamentary Committee will be holding public hearings in May. The Samoa Law Society has been actively engaged in a public education programme across Samoan media to inform the community about the bills and their impact.”

Last updated on the 30th April 2020