Second only to the COVID-19 draw on public attention for most of the year on the Land and Titles proposed Constitutional Changes debate.
The Samoa Law Society, SLS, blasted the early alarm over the folly of new Constitutional changes Government was planning to make on the Lands and Titles Court.
The Judiciary actually raised the alarm first and the SLS amplified it loud enough for the Parliament Select Committee to put in the extra months to get it sorted.
The amendments were up for the third and final reading in Parliament and the Select Committee had to attend to the strong legal concerns by the SLS.
The initial concerns by the SLS in April was they were not consulted as it was normal process and the request by the Judiciary for more time to review the changes were declined.
The SLS initial concerns were reported by the Newsline Samoa :
The legislation will re-write the Constitution to have the Lands and Titles Court set up independently from the Supreme Court, according to the SLS.
The basic concern is the risk of the amendment taking the Constitutional Right of a person away, to challenge in the Supreme Court a complaint in the Lands and Titles Court.
Questions are being asked whether the Samoa Law Reform Commission followed the normal practice of consultations in putting the bill together.
“ For such significant changes involving reforms regarding the application or non-application of fundamental human rights to a class of persons with Lands and Titles Court matters, re-organisation of the structure of the Courts of Samoa and introduction of a separate customary legal system, were reforms properly conducted with key stakeholders and members of the public?,” the Law Society statement asked.
The Prime Minister Tuilaepa did not budge in what was an obvious confrontation with the legal fraternity when opposition was declared.
Tuilaepa made the position of Government clear in a Ministerial statement in Parliament session in May.
This was how Newsline Samoa reported his defence:
Tuilaepa placed heavy emphasis on the heart of the Government argument for the Constitutional recognition of the communal rights on the same footing as the individual rights upheld by the Constitution.
He said communal rights represent the customs and traditions of Samoa that are overruled by the individual rights in the Constitution based on the English law written by ‘palagis’.
“These palagis have no appreciation of the culture of Samoa that are now going to be recognised under the changes being proposed in our Constitution.”
The PM called on the Samoa Law Society to take up their protests with the Parliament Select Committee as the proper process of law to follow.
The SLS did take up their fight with the Parliament Select Committee. The lawyers stated argument is that the Constitution has managed for 58 years to keep both the communal and individual rights harmonized.
They contend that ‘communal rights will now win over human rights’ in a conflict when the LTC changes are made in the Constitution.
Here is how the Newsline Samoa report quoted the SLS argument :
What it simply means is that because of the separation of the two courts, there is now room and great potential for inconsistency and disharmony between the two rights.
This move dismantles all of the hard work our forefathers put into framing a Constitution that will create harmony between our culture and basic human rights.
This move has great potential to further the divide between our culture and the legal system.
Is it possible to harmonize individual and collective rights?
Of course it’s possible, we have been living that harmonized reality for 58 years now.
It is inevitable that in certain cases, human rights will have to win over collective rights. But it also means that at other times, collective rights win over human rights.
This is why we now have a Village Fono Act that allows the Alii and Faipule to banish individuals. That is collective right taking precedence over human right.
So the two systems are balanced and checked.
The Parliamentary Select Committee added extra time to review the changes. Several alterations and adjustments were made to the original amendments proposed before their report was finally tabled.
The vote was taken on the final session of the House and this was how it was reported by Newsline Samoa :
The Lands and Titles Court won a huge historical step with an overwhelming vote in Parliament this week on Tuesday 15 December 2020, for amendments to the Constitution.
The Minister of Justice Faaolesa Katopau Ainuu noted the following in his ministerial address on the Select Committee report.
“An overwhelming 84 per cent of opinions supported the Constitutional amendments… “
He also noted 13 percent of the opinions rejected outright the proposed amendments but without any offer of better options.
While the Government has promised to continue to fine tune the Constitution to tie up any loose ends, protests continue to linger in the aftermath.