Somehow a copy of the Ministry of Justice and Courts Administration CEO’s letter of 23 April 2024 to the Samoa Law Society (SLS) found its way to Petesa.
The said letter invites views on proposed amendments to Land and Titles Act 2020 (LTA 2020) and the Constitution Amendment Act 2020 (CAA 2020) to ‘reverse major changes brought about by the enactment of the LTA 2020 and CAA 2020 ‘as approved by Cabinet in December 2023’.
The proposed amendments basically are – to unify the Courts and revert the court structure back before the LTA 2020 and CAA 2020, disestablish the Land and Titles Court of Appeal and Review (LTCAR), and return judicial review of Lands and Titles Court (LTC) decisions and proceedings to the Supreme Court.
The proposed unification of our court system is a new concept.
The late Chief Justice Patu Falefatu Sapolu, the revered and longest serving Chief Justice of Samoa said, “ever since its establishment in 1903, the Land and Titles Court is a separate Court.”
And it’s the most important Court of Samoa.
The importance of LTC was the main reason why the LTCAR was set up, in conjunction with the importance of customary land and matai titles to Samoans, and the ‘in rem’ faavavau nature of the LTC decisions that bind parties to LTC decisions and proceedings, as well as the dead and the unborn.
The 3 tier LTC is similar to the District, Supreme and Court of Appeal structure.
The disestablishment of the LTCAR will deny aggrieved parties of the second opportunity to appeal any decisions that will impact them and the future generations of their family forever.
Like heaven or hell, the decisions will be for eternity.
The reasons prompting the aggressive approach and Cabinet approval to revert back to the old court structure is not shared in the letter, and this is very alarming.
However, the proposed amendments will certainly stimulate public dialogue and therefore, I wish to accentuate the following facts:
- The Human Rights Protection Party Government in the last parliamentary term did not just wake up one morning and push for the changes. First, the numerous and cumulative grievances of the public directed to the Executive regarding their customary land and title matters, because the Judiciary was not addressing them, compelled me to address the matter in Parliament in March 2016.
- In an earlier meeting of newly elected MPs with CJ Patu in early March 2016, Patu advised the meeting that our Constitution needs to be amended to recognize the communal rights of our Matais and also the Land and Titles Court, as it does to the Criminal Court. In a later TV Interview, Patu admitted many times he wept as he delivered a decision where the Matais were defeated simply because only individual rights were recognized in our Constitution.
- The changes precipitated from some of the recommendations of the Parliamentary Committee of Inquiry 2016 (COI 2016) passed by the Assembly were referred to the Executive to consider. The Executive responded in tabling the LTA and CAA Bills which were referred and considered by a Special Parliamentary Committee in 2020 (SPC 2020) and subsequently the bills with amendments were passed by the Assembly and assented to by the Head of State.
- The COI 2016 Review was prolonged and extensive, and the SPC 2020 adopted the same meticulous approach in its community outreach to hear, collate and contextualize views of our people. These parliamentary committees were not cheap, yet the Government supported them nonetheless, in its commitment to improve our judiciary and elevate the status of our LTC, so that the problems encountered by our people with the LTC will be resolved. The LTA 2020 and CAA 2020 went through our normal legislative and democratic process and became law. Again, former CJ Patu publicly acknowledged the leadership Samoa has taken in the final passage of the Constitutional amendments.
Changes are inevitable where required and necessary for the common good, yet, to drive another process to support reverting back to a system that we left behind because it no longer served the best interest of our people, is an unnecessary process and a waste of much needed public funds.
A sensible and practical approach is to review the reasons and dialogue behind the COI 2016 and SPC 2020, and the comparative experiences of 4 years since the enactment of the LTA 2020 and CAA 2020, and to resolve any incongruities with what we have.
It’s purely commonsense aka ‘faautautaga tatau’.
The absence of any clear justification to revert back to the old court structure makes one ponders whether this is a continuation of attempts by Faatuatua I le Atua Samoa ua Tasi belligerent extremists in government to soil the numerous common good deeds of the HRPP regime.
This is a waste of very much needed public funds.
The LTC is important to all Samoans because of their measina and faasinomaga, therefore, any leader should be mindful, that regardless of any changes in government, our values and priorities to improve the lives of our people and protect their rights should not be dramatized or politicized.
Two things we must always remember about the LTC – (1) the importance of our customary land and matai titles that it dealt with, and (2) the ‘in rem’ nature of its decisions. Which is why the LTC must have concurrence capacity and elevated to that important level of our measina that it dealt with.
Reverting back to the old court structure, will place the LTC on the back seat again, to its trivial low status of the past which does not synchronize with the high standing of our customary land and matai titles, and certainly put us back in colonial times, when we were ruled like second class citizens by foreign powers.
Chief Justice Sapolu understood the enormity of what we had set out to achieve in order to protect the customary rights and traditions of our people.
It was 27 years of judicial leadership, reflection and scholarship by a true son of Samoa that led us to LTA 2020 and CAA 2020.
HRPP provided the political leadership to bring that Samoan solution to life.
The MJCA’s effort to reverse the changes brought about by LTA 2020 and CAA 2020 is based on the campaign promises of the FAST Party.
It shows how far Samoa has fallen.
Samoan Government policies are now based purely on the political whim of the FAST leadership.
The customary rights and needs of the Samoan people are no longer the priority concern of the present government.
Tuilaepa Sailele Malielegaoi
Leader of HRPP