(Jan. 13, 2021) On December 15, 2020, the Parliament of Samoa voted to pass three bills that “fundamentally alter the country’s constitution and judicial system.” The three bills – the Constitution Amendment Bill 2020, Land and Titles Bill 2020, and Judicature Bill 2020 – were introduced in March 2020 and passed with a vote of 41-4. They were the subject of considerable controversy and debate, with the Samoan judiciary and Samoa Law Society first expressing concerns in April 2020 about the lack of consultation and about the impact of the bills on the judicial system and human rights. Both the Australian and New Zealand law societies published statements in support of the Samoan judiciary and legal community with respect to the issues raised about the rule of law. After several other prominent groups also raised concerns, the special parliamentary committee tasked with examining the bills conducted a nationwide consultation process. It was reported that the committee made several amendments to the bills; however, details on the changes were not immediately available.
An analysis published by the Lowy Institute in Australia in May 2020 summarized the key changes proposed in the legislation as follows:
The main proposal is to divide the judicial system into two parallel courts of equal standing, one to deal with criminal and civil matters, the other with customary land and titles.
Under current arrangements, the Land and Titles Court, composed of lay judges expert in Samoan custom, has exclusive jurisdiction over customary land and matai (chiefly) titles. Its decisions on custom are final, but they can be appealed to the Supreme Court if constitutional rights are affected.
Under the proposed amendments, the Land and Titles Court system would be entrenched in the Constitution, gain a new appellate court, and have “supreme authority over the subject of Samoan customs and usages”. The possibility of appeal to the Supreme Court, even on constitutional grounds, would be removed.
Other amendments would require all Samoan courts to take account of custom; require the Court of Appeal to be composed of two Samoan judges and one “overseas non-Samoan” judge and increase the size of the Cabinet from a maximum of 12 to 14 Ministers.
Key Issues and Debate
Prime Minister Tuilaepa Sailele Malielegaoi argued that the bills would implement the recommendations of the Special Inquiry Committee of Parliament into the Lands and Titles Court (LTC), which was conducted in 2016. However, the Samoa Law Society argued that the findings of the 2016 report had focused on identifying grievances of the public against the LTC: “80% related to their lack of confidence in the honesty, integrity and ability of Land and Titles Court judges to give fair, balanced and correct decisions, with the remaining criticisms concerning the excessive delays in hearing their petitions or receiving their decisions.” According to a news article,
[t]he 59-page Report of the Special Inquiry Committee (2016) lists 30 recommendations. Recommendation 1 reads, “Officially recognise the Judicial Privilege of the LTC which handles matters on our customary land and titles to be consistent with the recognition awarded to the Supreme Court“.
The rest of the Committee’s recommendations, however, refer to areas of improvement in the administrative processes that support the LTC, offering detailed criteria for selection of Samoa Judges and the need to implement capacity building programs for LTC. There are 3 recommendations (R10-12) dedicated to issues of conflict of interest and judges’ connections to cases. Of interest is the Recommendation 16 about judicial reviews where the Report suggests that the Supreme Court is the place to uphold citizens’ rights.
The prime minister also emphasized the issue, which is also presented in the explanatory memorandum for the Constitution Amendment Bill 2020, of the the Samoan Constitution being “more protective of the introduced modern principles such as individual rights, as compared to the Samoan custom and usages, the way of life of the Samoan people.” The memorandum explains that
[t]he Bill attempts to reflect more of the Samoan context inside Samoa’s supreme law, the Constitution, to ‘make the Constitution a Samoan Constitution’ in light of today’s context.
This Bill is a response by Samoa to respond to the challenges of ‘legal pluralism’, a legal theoretical framework with features prevalent in most post-colonial societies. A review of all other Pacific Islands Constitutions show that since gaining political independence, the Pacific Islands had expressly aspired to adopt in their Constitution and laws the context of their cultures, custom, and traditions to which they belong. However, to date many countries have applied caution, and the express establishment of systems to accommodate both their customary systems with the modern western system in their supreme laws has not been pursued.
At the start of this XVIth Parliamentary term of Samoa’s Parliament in March 2016, Samoa’s newly elected members sat through a Parliament Symposium. It was here that the notion of reflecting ourselves in our laws was brought back to the forefront for necessary action. The challenges and the conflicts between modern laws and the custom and usages of the Samoan people were highlighted. . . .
In response to these challenges, Samoa, through this Constitution Amendment Bill 2020 has opted to give more recognition of Samoa in our own Samoan Constitution. This is without removing our current rights and freedoms. In this Constitution Amendment Bill, we adopt the best of both the modern principles and the customary values in moving forward, so that Samoan customs and usages are not lost, not now, not in the near future, and it is hoped for a very long time to come.
A June 2020 article published by the Lowy Institute discusses the issues and controversy arising from the approach taken in the three bills with respect to customary law, stating that
Samoan custom has never been codified. In founding the Land and Titles Court, German colonial officials wanted to prevent the endemic feuds and civil wars of the past by weakening the customary authority of adversarial high chiefs and their backers. Despite these restraints, customary land and chiefly titles are matters close to the hearts of Samoans at home and abroad. Public opinion on the court tends to depend considerably on whether a person’s family has won or lost its most recent Land and Titles Court case, and the PM receives many complaints from indignant losers.
There has been considerable pushback against the proposed legislation by the Samoa Law Society (see Fiona Ey in The Interpreter, 8 May) although lawyers working for the government have been ordered to toe the government line. Legal opinion criticising the bills argues that if a separate, parallel legal system for customary law is estabished [sic], it could remove consitutional [sic] protections and open the way for village councils of chiefs to act despotically.
The problem with such a potent emotional call for legal restitution of fa’aSamoa custom is that there is no longer a consensus about Samoan custom. Samoa is a modernising, globalising society of about 200,000 people, with hundreds of thousands of Samoans living overseas. Only about 60% of the population in Samoa live in villages governed by councils of chiefs.
About 80% of all land remains under customary tenure, and the constitution protects customary land by forbidding its sale or mortgaging. In pre-colonial Samoa, land was under the authority of the highest chief, each acting as trustee for their people, allocating plots of land according to need.
Recent concerns over land law illustrate the problem of traditional authority. High chiefs were once appointed by bestowing a single title on a genealogically entitled individual, usually chosen by the heads of families. Today, most landowning families can no longer agree on a single candidate to hold a title, so titles are typically shared among many who hold the same title. This arrangement makes the leasing of customary land (as allowed by 2008 legislation) unworkable if families cannot agree on who is entitled to sign a lease, which is often the case.
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Moving Land and Titles away from the existing umbrella of constitutional law will not overcome the problem of [the LTC] being underresourced and unable to meet demand. However, it will likely make political interventions into title succession and authority over land much easier – which may be the government’s real aim. It will have more authority to impose rules about customary authority over land and the powers of village councils.
A further issue relates to the potential impact of the bills on human rights protections:
By removing the Supreme Court’s supervisory jurisdiction, the proposed changes would abolish the application of fundamental human rights from customary matters. Instead, the LTC would apply undefined “communal rights”, which the bill’s explanatory memorandum essentially equates to decisions of the village fono (chiefly council). In the past, certain actions claimed to be taken on behalf of the community, such as beatings or house burnings, have been declared by the Supreme Court to violate fundamental rights. The removal of Supreme Court oversight of the LTC would effectively leave village fono with decision-making power unfettered by human rights considerations.
On December 24, 2020, the attorney-general released a statement reassuring the public that the three bills “do not, in any way, affect ownership of and rights to customary land.” This followed a protest march led by the Samoa Solidarity International Group, which claims that the three bills impact negatively on customary land rights and has urged the head of state not to sign them.
Potential Challenges to the Legislation
According to a news article, a former attorney-general, Taulapapa Brenda Heather-Latu, who is currently a partner in a private law firm, informed the Office of the Attorney-General that her unnamed clients intend to challenge the legality of the three bills once they receive assent from the head of state. In the proceedings, “[t]he Supreme Court will be asked to consider whether the proposed changes to the justice system, and the treatment of the judiciary is allowed under Samoa’s constitution.”
In addition, it was reported on December 28, 2020, that the Samoa Solidarity International Group, which led protests against the bills, will be raising concerns about the new laws with the United Nations. The group claims that the three bills impact negatively on customary land rights and has urged the head of state not to sign them. On December 24, 2020, in response to the claims, the attorney-general released a statement reassuring the public that the three bills “do not, in any way, affect ownership of and rights to customary land.”