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Is Samoa using Covid-19 to push constitutional changes?

Three bills with sweeping powers to change Sāmoa’s constitutional and judicial structures have been fast-tracked during the country’s Covid-19 lockdown, reports Teuila Fuatai

Sāmoa celebrates the welcome return of school classes and church services this week, allowed by a new set of Covid-19 rules set to last four weeks.

But another set of potential laws, proposed as part of the country’s pandemic response, is causing concern in Sāmoa and beyond.

The Covid-free nation has been under a State of Emergency since March 20. Since then, a range of pandemic-related restrictions have been enforced, reviewed and amended by authorities.

Three days before the State of Emergency was announced, however, three significant pieces of draft legislation were tabled in Parliament: the Constitution Amendment Bill, the Judicature Bill, and the Land and Titles Bill.

If they become law, the bills will fundamentally change how Sāmoa’s Land and Titles Court (LTC) operates, as well as its wider judicial structure. Sāmoa’s constitution would also be significantly amended to reflect the changes.

Currently the LTC has jurisdiction over customary land and matai (chiefly) title disputes. Judges are appointed based on their expertise and knowledge of Sāmoan custom and genealogy rather than legal principles. Case appeals only occur if there has been a violation of constitutional rights and are heard by the country’s Supreme Court.

Under the proposed changes, the LTC effectively becomes a separate judicial system. It would have its own appeal court and no further appeal pathway to the Supreme Court.

A special judiciary service commission has also been proposed that would have the power to remove a judge of the Supreme Court. Currently, a two-thirds majority vote in Parliament is required.

The opposition

Domestically, a number of high-profile individuals and organisations – including Sāmoa’s judges and the Sāmoa Law Society – have raised serious concerns about both the process and timing of the bills, as well as their substance.

This week the New Zealand Law Society added its voice to the opposition. Further, an online petition run by the Sāmoa Solidarity International Group seeking to pause progress of the bills until Covid-19 restrictions are lifted has attracted more than 11,000 signatures.

A letter from Sāmoa’s judiciary addressed to the head of the Sāmoa Law Reform Commission and obtained by the Sāmoa Observer sheds some light on the concerns.

“The draft Constitution Amendment Bill 2020 proposes wholesale and fundamental changes to the Constitution of the country,” the letter states. “Such significant proposals would normally require serious and detailed consideration by a wide body of experts and people.”

The letter goes on to name the Sāmoa Law Society, registrars of the Supreme and District Courts, the LTC, as well as the judiciary among the groups that should be involved.

“It is simply unacceptable that apart from one meeting with the acting Chief Justice and Head of Bench and possibly one or two other judges for a general discussion in January this year with the Steering Committee, the usual and proper process for detailed consultation and discussion of draft provisions concerning constitutional changes affecting the judiciary and the protection of the fundamental rights of all citizens of this country was not initiated prior to the submission of these bills to Cabinet.”

Sāmoan PM Tuilaepa Sailele Malielegaoi rejects criticism of proposed constitutional changes. Photo: Sam Sachdeva.

The parliamentary record shows all three bills were tabled on March 17. Normally it takes three days after a bill’s first reading for it to progress to a second reading. However, a motion from Prime Minister Tuilaepa Sailele Malielegaoi to set that aside and permit the same-day second reading of the bills was approved on March 17.

By the end of the sitting of parliament on March 18 all three bills had proceeded through their second reading. Tuilaepa was also successful in his motion to form a “Special Parliamentary Committee”, consisting of seven MPs, to consider the bills and any submissions – effectively replacing the select-committee stage.

The letter from the judiciary, which was also sent to Tuilaepa, the Minister of Justice and Courts administration and the chair of the special parliamentary committee for the bills, also took issue with the lack of public consultation.

“We do not recall such sweeping constitutional reforms being the subject of any such public consultations,” it says.

The Sāmoa Law Society, which has been actively campaigning to raise awareness around the proposed changes, is also working with the New Zealand Law Society. Austin Forbes QC says the Law Society was approached by its Sāmoan counterpart about two weeks ago.

“We have to act on information that we receive and we always want to make sure the information comes from a reliable source, and the Law Society of Sāmoa is a reliable source,” he says.

“They want to make a submission to the select committee in Sāmoa and we’ve offered to review that … and help in any other way on other legal aspects, bearing in mind Sāmoa is a sovereign country and it is entirely, ultimately a matter for the various stakeholders to deal with over there.”

The New Zealand Law Society has also contacted the New Zealand Ministry of Foreign Affairs about its concerns.

LTC changes overdue

Despite the fast-tracking of the bills, those supporting the changes deny any side-lining of democratic oversight. Tuilaepa has been particularly scathing of the Sāmoa Law Society’s opposition, saying problems with the LTC – including lengthy delays and complaints about its processes – have been well documented over the years. He also criticised the New Zealand Law Society.

“It is a matter now at select committee for public consultation, and it is a matter for Sāmoa. In short, it is none of your overseas presidential business,” Tuilaepa said in a statement directed at New Zealand Law Society president Tiana Epati (who was born in Sāmoa and moved to New Zealand aged 10).

Former Attorney General Lemalu Hermann Retzlaff, who now lives in New Zealand, has also weighed in. Lemalu said ample time for public consultation had occurred via parliamentary inquiry into the LTC in 2017 and 2018. That inquiry followed a 2016 report into the LTC, which the Sāmoa Law Reform Commission has also pointed to as the foundation for the current proposed changes.

“In terms of consultation, I note that these reforms originally stem from the parliamentary commission of inquiry that sat for some 10 months in 2017-2018, reviewing the performance of the LTC,” Lemalu said. “The public at large, private citizens and all public servants were invited to take part.”

He also warned against minimising the importance of the current parliamentary committee stage.

“Their democratic purpose is to hear from the public and they then have the power to make suggested amendments to the bill for Parliament to consider. That is the current open avenue for public concerns and submissions.”

The Sāmoa Law Society is expected to present its formal submission on the proposed changes to the parliament committee this week.

* Made with the support of NZ on Air *

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