President LTC’s letter to the Minister is accurate right throughout, and he is struggling to explain the law but managing to be diplomatic given the grave strangling of democracy by the Minister’s letter.
Tulou lava – Poo ai le vale la e fautuaina.
Manaia foi le faaiuga, irreparable damage to the public, still being positive, in ‘LTC judges hope will be kept at a minimum’.
I hope the parties to cases find out the Minister is being advised wrongly by ‘first law student advise-or first year students are even better and more cautious’ on interpreting laws and our people raise this by protesting in front of Govt Building, protesting against the Minister/Cabinet’s strangling of democracy not letting the LTC continue with its Constitutional operations.
In addition:
The Minister’s letter in ceasing the operations of the LTC is:
(i) a grave breach of the constitution in ceasing/stopping LTC operations; and
(ii) a grave breach of the right to a fair trial under Article 9 of the Constitution, due to a Minister’s (Executive) interference. The people whose cases have been adjourned again should claim the costs of all these from the Executive/Govt.
(a) Ceasing of Operations:
Constitution before the 2020 Amendments 103. Land and Titles Court- There shall be a Land and Titles Court with such composition and with such jurisdiction in relation to Matai titles and customary land as may be provided by Act.
Constitution Amendment Act 2020 Continued this and expanded the provisions for all of the LTC operations to be in the Constitution framework, similar to what other courts enjoy (Supreme, District and Court of Appeal) for 60 years now
(from Independence).
Note: The Land and Titles Court now is 119 years old, from 1903 to 2022. The
2020 Constitution Amendment finally made our most important Court a Constitutional setup.
LAND AND TITLES COURT
104. Customary Land and Titles Protection:
(1) There shall be a Land and Titles Court that includes:
(a) Land and Titles First Court;
(b) Land and Titles High Court; and
(c) Land and Titles Court of Appeal and Review, and all appointments and its authority in regards to matters pertaining to matai title and customary lands provided for in ‘Part IX Lands and Titles Court’ of the Constitution; or an Act of Parliament.
Thus, anyone then that purports to stop the operation of the LT Court is in breach of the Constitution, that allows existence and the operations of the LTC. Yes Fepuleai is correct- There is also no power anywhere for the Minister or anyone to cease the operations of a Constitutional setup.
b) Article 9 and the right to a fair trial – the right to a fair trial under the Land and Titles Act and the
Constitution are now sabotaged by the Minister.
B. Re: Minister’s letter – WRONG INTERPRETATION!
Section 67(6) An appointment under the repealed Act that is not provided for in this Act is revoked at the commencement of this Act.
This is specifically for the Faatonu/Assessors. See Committee discussions. This provision was discussed at length by the Committee – it is to cater for Faatonu/Assessors only, positions which have been removed.
Please NOTE:
1. In the repealed LTAct 1981, it provided for the appointment of Assessors under section 31:
31. Appointment of Assessors – (1) The Head of State, acting on the advice of the
Judicial Service Commission, shall appoint not less than 10 persons to be Assessors of the Court.
(2) The Registrar shall keep a list of Assessors and administer their appointments.
(3) The President, or Deputy President, shall select from the list of Assessors, not more than 2 Assessors for each sitting of the Court.
(4) The Head of State, acting on the advice of the Judicial Service Commission, may at any time revoke the appointment of any Assessor. (5) An Assessor may resign from office by writing under his or her hand addressed to the Head of State.
2. Following discussions inclusive that the current assessors may become LTC Judges should they wish, and that the reason for the need for assessors (to assist palagi judges) no longer exist, thus the new Act no longer needed to provide for assessors. This is the reason for subsection 67(6).
3. All appointments, warrants etc are saved and continued under section 67(3) – inclusive of the President, Vice Presidents, LTC Judges, and all appointments and warrants and all nominations if any at the time, all continue as validly made under the new Act 2020.
4. Section 67(4) is also helpful. The Repeal of the Act doesn’t affect all that existed before, any instrument of appointment, any titles of appointments made etc. This ensures that together with the rest of the provisions of this section all that is to be saved is saved, to continue the successful operations of the LTC.
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LAND AND TITLES ACT 2020
67. Savings and transitional provisions: (1) All Matai Titles entered onto and deleted by the Registrar under the repealed Act is treated as having been entered onto or deleted from the Register by the Registrar under this Act, at the commencement of this Act.
(2) The provisions of the repealed Act are saved for the purpose of determination of a petition filed before the commencement of this Act, at the commencement of this Act.
(3) All records, instruments, nominations, appointments, warrants, decisions, orders and generally all documents and acts of authority originating under the repealed Act, and which are subsisting at the commencement of this Act, shall ensure for the purposes of this Act as fully and effectually as if they had originated under the corresponding provisions of this Act and accordingly shall, where necessary, be deemed to have so originated.
(4) The repeal of the Land and Titles Act 1981 does not affect any claim, title, right or interest created or vested under that Act, nor any instrument or document in support, and every such claim, title, right, interest, instrument or document shall continue in force and have effect as if this Act had not been
passed or as if made or done under the corresponding provisions of this Act.
(5) Employees employed under the repealed Act are taken to be employed under this Act, at the commencement of this Act.
(6) An appointment under the repealed Act that is not provided for in this Act is revoked at the commencement of this Act.
(7) The Appellate Division of the Land and Titles First Court is the Land and Titles High Court at the commencement of this Act.
Anon