By Staff Writer
The President of the Land and Titles Court, Fepulea’i Atila Ropati, has schooled the Minister of Justice in the set up and operations of the court after her attempts to put the proceedings of court on hold.
Justice Minister Matamua Vasati Pulufana copied the LTC President in a letter to the Acting CEO/Registrar of the Ministry of Justice, to cease all court proceedings as of Monday 21 February 2020.
The Minister wants to resolve first what she believes are conflicting issues in the amendments to the Constitution and the Lands and Titles Court Acts of 2020.
President Fepulea’i in a letter to better inform the Minister, objected over concerns at the ‘severe legal implications of what she is asking for.’
This is the second time the Minister has crossed over to try and influence the independence of the Lands and Titles Court through the staff of the Ministry of Justice.
The first was an unsuccessful attempt to stop the swearing in of the former Electoral Commissioner, Faimalomatumua Mathew Lemisio.
Newsline Samoa managed to obtain a copy of the letter by President Fepulea’i and is printed here in full for a better understanding of what has become an ongoing controversy with the Minister.
The letter reads :
Re- Request To Cease All Court Proceedings of the Land and Titles Court Due to Serious Issues with Land and Titles Act 2020.
I thank you for your letter dated 15th February 2020 regarding the above in which I was copied.
At the outset I note my disagreement with the request provided in your letter.
In essence your letter sets out two crucial maters which impact on the stability of Samoa through the incorrect application of the law applying to the setup and operation of the Land and Titles Court of Samoa. These matters are :
1. that you are informed that the appointments of the President, Vice President and Judges of the Land and Titles Court were revoked pursuant to section 67(6) of the Land and Titles Act 2020 (LTA 2020); and
2. that the operations of the LTC should now be put on hold until the outcome of the inquiry of the Parliamentary Committee into the defects of the LTA 2020 and the Constitution Amendment Act 2020 (CAA) is completed.
There are severe legal implications of what you are asking for which I set out below:
Firstly, it is becoming apparent, that Cabinet, is encroaching on the separation of powers, which is guaranteed under the Constitution, which protect the Judicial Arm of Government – via the Land and Titles Court to operate without fear nor favour This is evident in your letter :
• requesting to put on hold all the operations of the Lands and Titles Court to await the outcome of a Parliamentary inquiry into the differences in the assented versions of the Acts; and
• informing me, that my appointment is no longer valid, indicating that my appointments along with others as Judges of the Land and Titles Court have been revoked without due process.
Secondly, your request is asking for a direct breach of the law. To put on hold the implementation of the law, is to encroach on the supremacy of Parliament to pass the law, and encroaching on the independence of the Judiciary via the Land and Titles Court, to implement and interpret the law. To put on hold the implementation of the law, would be to delay justice guaranteed to the people of Samoa, who already have matters before the Court. The only avenue available to implement your request of deferring implementation of the KTA 2020 and the CAA 2020, would be to table an amendment in Parliament to repeal these laws and to re-enact new laws.
Therefore with due respect, I note for the record my disagreement with your request, as the President of the Land and Titles Court which was continued under the Constitution.
For your information, during the preparations of the reform it was never the intention of the LTA 2020 that my appointment as President LTC and other Judges would be revoked at the commencement of the LTA 2020. It was not in the Explanatory Memorandum of the Bill when introduced in Parliament, and nor was it an issue in the debates or even considered by the Parliamentary Committee which the Bill was referred to. The intention of a law, is an important factor of interpreting law, which clearly has not be considered by your advisors.
The revocation of a person’s appointment or employment is required by natural justice (one of the pillars of common law) to be done with due notice to a person. Which is why you will not find in the official records of the Ministry, any intention to remove my appointment, and that of all the Judges of the Land and Titles Court, at the commencement of the LTA 2020.
I was consulted during the development of the LTA 2020 and the CAA 2020 and am very much aware of their intentions from the beginning of the reform, and therefore know for a fact that section 67(6) was never intended to apply to the appointments of the President, Vice President or the Land and Titles Court Judges. It was instead intended for the appointment of assessors.
In any event, this matter, and the interpretation of the law of my appointment and that of all other Land and Titles Court Judges, is the same line of interpretation submitted by the Attorney General in her notice of opposition in a matter filed by the Komisi ole Fa’amasinoga o Fanua ma Suafa, a matter that is now before the Supreme Court.
As the President of the Land and Titles Court, I am gravelly concerned with the approach you have chosen upon what appears to be misguided legal advice. You have obviously considered and maintain your position, although wrong at law, and I would therefore recommend that you reconsider it, and allow the continuance of the implementation of the laws as they are and the operations of the Land and Titles Court until such a time as Parliament passes laws to do otherwise. With all due respect, this is the correct path and approach to be taken.
For you Honourable Minister to ask the Registrar to adjourn Court cases, an undertaking, beyond the Registrar powers, clearly has not been considered by your advisors. Adjournment of matters is a function of the Court (section 37 of the LTA 2020) which can only be exercised by the Registrar upon direction of the President, Deputy President or Vice President.
However I am aware that the Registrar and her staff were instructed and warned before, to refrain from associating themselves with LTC activities and this would most probably happen again if we continue hearings which we will struggle to attend to without the necessary staff support. This is a clear indication that the work of the LTC is being sabotaged. Without any proper alternatives nor recourse in addressing this mayhem, I directed the Acting Registrar to adjourn matters scheduled for February and March 2022 to await the outcome of the Parliamentary Commission of Inquiry (COI) consideration of the differences in the LTA 2020.
But, there is no assurance that the Parliamentary COI will report back to the Legislative Assembly on its next meeting on 29 March 2022 and the Legislative Assembly to deliberate on the COI report in that meeting. People with urgent matters before the Court will most certainly feel the impact with their prolonged disputes before the Court.
In light of the matters raised above, it is my sincerest hope, that you will reconsider your position and allow the LIC staff to provide this esteemed Court support in order to allow it to continue with scheduled hearings. This is in line with this esteemed Court’s core function of implementing the existing laws it must abide by, until such time as Parliament passes laws to do otherwise.
However, should you insist in pursuing the approach that has now been taken upon what I believe to be misguided legal advice, we Judges cannot do much without staff support, and can only abide this approach against our own understanding of the correct legal path to follow. At the end of the day, I and my fellow Judges in the Land and Titles Court can only hope and pray that any damage resulting from this approach will be kept to a minimum.
We continue always to be at the mercy of the Almighty, and can only seek His Help and Guidance during these turbulent and unprecedented times.
Faia male faaaloalo
Fepuleai Letufuga Attila M. Ropati
President of the Land and Titles Court
Cc: Honorable Prime Minister
Honorable Speaker of Parliament
Honorable Acting Chief Justice
Madam Attorney General
Acting, Registrar LTC