Former AG Replies to Queries on LTC and Constitutional Reforms

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Former Attorney General Lemalu Hermann Retzlaff has responded to questions relating to three amendment Bills tabled as a package before Parliament, stating that “the overriding purpose of the Constitutional Amendment is to deal directly with the issue of access to legal justice for those who lose an appeal at the Lands and Titles Court (LTC)”.

Both the Judiciary and members of the Samoa Law Society (SLS) have raised concerns now widely publicised in the local media regarding three pieces of legislation namely, the Constitutional Amendment Bill 2020, the Lands and Titles Bill 2020 and the Judicature Bill 2020.

Replying to questions from the media and published in full below, Lemalu says the strengthening of the Lands and Titles Court (LTC) seeks to help families who feel their cases have been unfairly considered in an LTC Appeal presided over by the President of the Lands and Titles Court.

“At present in our Judicial system, once the President of the LTC decides an appeal – any family that loses their cases, has no further Court to advance their grievance to. Those are the affected persons that have been seeking relief for decades now, even reverting in desperation to visiting the offices of the Hon PM, Hon Ministers and Government officials asking – who they can appeal to?;

“The answer is – there is no further Court to appeal LTC decisions to in our current system”, says Lemalu.

Lemalu says that the current avenue available to families of a Judicial Review (JR) against an LTC decision to the Supreme Court, can only legally deal with procedural issues as to how the hearings were conducted, and not reopen family arguments over genealogy (gafa) or village structures (faalupega).

“The Supreme Court cannot otherwise deal with substantive questions and legal arguments about Fa’asamoa at all, as that has been left in the hands of the LTC;

“Therefore, the prospect of a new LTC Court of Appeal, offers a potential avenue for affected families, to attend substantively to “tu ma aganuu” i.e. cultural arguments, that our current Westminster modelled Courts are not tasked Constitutionally to deal with”, says Lemalu.

The Samoa Law Society sets out an analysis of the proposed amendments in a Position Paper where they say the draft Bills are “fundamentally and technically defective”, recommending that the three Bills be withdrawn from the Order paper at the next sitting of Parliament”.

In a letter dated 6 April 2020 to the Samoa Law Reform Commissioner, members of the Judiciary also advise that the Bills be withdrawn “until extensive further proper and appropriate national consultation with all relevant parties is undertaken”.

The Samoa Law Society and the Samoa Judiciary  both state concerns that the elevated position given to the Lands & Titles Court by the porposed amendments purports to infringe the doctrine of separation of powers and effectively dismantles Samoa’s current ‘tafatolu’ structure of Government (Legislative Assembly, Executive and Judiciary) and replaces it with a ‘tafa’ifa’ because, they state, the Judiciary will essentially be split into two.

Lemalu disagrees and says, “I emphasise here that – that has been the separation of duties between the Westminster modelled Courts and Lands and Titles Courts in Samoa since its Constitutional Independence. The proposed amendments would not therefore in terms of practise, initiate a sudden separation of the two in terms of their jurisdictional responsibilities – as that is already in place”.

Lemalu argues that the current domestic Westminster modelled Court of Appeal cannot deal with any LTC substantive appeals.

He writes, “The question then arises when considering furthering LTC appeals – is the current Court of Appeal, that which should be burdened with legally defining our cultural practices i.e. appeals about Fa’asamoa from LTC decisions?;

“The proposed amendment’s answer to that question is – ‘No’. It should be left as it currently stands in the hands of the LTC, and therefore – what is required is an LTC focused Samoan Court of Appeal to deal with Samoan culture”.

“Hence the need for the newly proposed Court of Appeal that continues the specific cultural ethos of work that the LTC already exclusively carries. (Such a Court must therefore be placed first within our Constitution, before the Acts to monitor its procedures, then follow)”.

“Further, this same point explains why the two Courts can run side by side within then MJCA administration (again as they already currently do), but separately in terms of their jurisprudence (law making rulings) – because they are fundamentally dealing with two different cultural contexts in their substantive responsibilities. [Such is the bicultural duo systems of government Samoa has admirably in my humble view, balanced and journeyed with since its Constitutional independence]”.

The former Attorney General adds, “The Constitutional Reform does not therefore propose to revoke any of the individual freedoms that are sacredly protected in our Constitution; on the contrary it seeks to enhance the right to a fair (substantive) trial via a new Appeal avenue within the LTC route; and it simply cannot by creating a specialist Court of Appeal, somehow then remove the separation of powers of the three branches of Government from the Constitution.”

“Further, it cannot unilaterally encroach, and tell families what to do with their Lands and Titles, as it is a Civil Court – it can only therefore, deal with cases that the public decides themselves to file for consideration and relief as it were.”

There are many issues raised by the Samoa Law Society in its Position Paper, one of which is the concern that, “Clause 9 allows the Court to declare certain land to be customary land which expands the jurisdiction of the Lands and Titles Court to public as well as freehold land.”

In response to this Lemalu writes:

“In relation to Customary Land and concerns raised re Clause 9 of the Lands and Titles Bill – I make 3 points:

1) It is not a new provision it is a transfer over of the current s9 of the Lands and Titles Act 1981 (an Act to be repealed as part of the reforms);
2) The provision does not allow in any way for the conversion of customary land into freehold land (it’s been in Samoa since 1981 and never used to do such because it cannot) – as the provision is subject in its wording to the sacred Article 102 of our Constitution removing any legal avenues to convert customary land into any other type of land; and
3) The provision simply allows a family to confirm at LTC the registration of land into customary land only – but, only if there is evidence that its legal status is in dispute, if there is full consent of petitioning parties, and if there are no public objections.

“I respectfully submit, it is not a provision that should cause concern to our community as to ownership of our customary land.”

Lemalu says the amendments were drafted in response to public views given to the Parliamantary Committee set up as a Commission of Inquiry into Lands and Titles back in 2016.

“In terms of Consultation, I note that these reforms originally stem from the Parliamentary Commission of Inquiry, that sat for some 10 months in 2016 – 2017, reviewing the performance of the LTC. The public at large, private citizens and all public servants were invited to take part. The proposed Court can be seen to be an attempt to deal with (inter alia) the high number of grievances families reported with reference to their matai titles and family disputed customary land during the inquiry”.

The three pieces of legislation have passed their first and second reading in Parliament, and are now before a Special Parliamentary Select Committee tasked to hear public submissions. Lemalu says the Parliamentary Committee are tasked to hear and present the views of the public to Parliament.

“Further, the Constitutional role of the Parliamentary Select Committees that the Bills have now been formally referred to by the Legislature, are at risk of being unnecessarily understated. 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. My experience in appearing before these committees, is that they move in integrity, are hardworking, receive the views and opinions of the public respectfully and take them very seriously into account”.

O LE TALI A LĒ SA AVEA MA LOIA SILI (LEMALU HERMANN PAUL RETZLAFF)
I FESILI ILE TOE FUATAIGA O LE FAAVAE MA TULAFONO O FANUA MA SUAFA

O le afuaga o le teuteuga ua faia nei i le Tulafono Faavae, o le tali sa’o atu lea i faafitauli o lo’o feagai ma i latou o lo’o manaomia le fesoasoani ini a latou talosaga apili ile Faamasinoga o Fanua ma Suafa (LTC) e lē manuia pe lē fa’amalieina ai i latou.
E tusa ai ma faiga faavae o lo’o iai nei, e maea loa ona tuuina mai le iuga a le Peresetene a le Faamasinoga o Fanua ma Suafa i se faamasinoga apili, e le’o toe iai se isi faamasinoga e mafai ona sulufa’i iai le aiga e lē manuia, mo se apili po’o se toe iloiloina o le iuga ua tuuina mai.
O itu mafatia nei ua fai ma masani, i tausaga e tele ua mavae, ona sulufa’i atu i le Ofisa o le Alii Palemia, Minisita, ma isi sui mamalu o le Malo mo se fesoasoani, ma sailia po’o ai e gafataulimaina sa latou talosaga mo se isi apili?
O le tali sa mafai ona tuuina atu, ole leai lea o se isi faamasinoga e i luga atu e mafai ona talosaga iai mo se isi iloiloga po’o se apili.
E pau lava le faatinoga faalē faamsinoga mo apili e faasaga i faaiuga a le Faamasinoga o Fanua ma Suafa (LTC) e tuuina atu ile Faamasinoga Maualuga (Supreme Court) ole Faamasinoga Toe Iloilo (Judicial Review) lea o lo’o iai nei, latou te gafataulimaina fa’alētulafono le faagasologa o mau, ma lona faatinoina. Peita’i e le’o iai se malosiaga fa’aletulafono i le Supreme Court, e iloiloina ai ni fete’enaiga po’o ni soalaupulega faaleaganuu ile Judicial Review. O le uiga o lea faamatalaga, po’o fea lava le itu e mafuli iai le faaiuga e tuuina mai e le Peresetene o le Faamasinoga o Fanua ma Suafa, e faatumauina ma aloaia ai se suafa matai, pe sōlōīā ai foi se nofoaiga a se aiga i se suafa matai, e lē mafai ona toe apili i se isi lava faamasinoga i totonu o Samoa i le taimi nei.
O lea ua alagatatau ai ona faatuina se isi Faamasinoga fou mo Apili, e gafataulimaina faamasinoga ma iloiloga talafeagai, e faatinoina ai Apili mo faaiuga o Faamasinoga o Fanua ma Suafa, ma ia mafai ai ona agai tonu iai mataupu e tagofia ai tu ma aganuu fa’asamoa, e le’o mafai e faamasinoga fa’apapalagi ua iai i lalo ole Tulafono Faavae ona iloiloina (ma e lei mafai lava ona latou faia lea tulaga talu ona avea Samoa ma malo tutoatasi ona na vae ese le aganuu ma avea ai ma matafaioi fa’apitoa o le LTC).
O le fesili, o le a le faamasinoga e alagatatau ona tauaveina le avega o le auiliiliina o le tatou aganu’u, po’o le fesiligia lea fa’aletulafono o le Faasamoa mo Samoa – e tu’u loa i aa’o o le Fa’amasinoga Apili lea o lo’o mulimuli i tulafono ma faiga-fa’ave Fa’aperetania i le taimi nei? (current Westminster modelled Court of Appeal) – O le afuaga o lenei teuteuga mai le Malo, e tali manino i lea fesili ole – “Leai”.
O le ālāfua e manaomia le faavaeina lea o le Faamasinoga Faasamoa e gafataulimaina Faaiuga Faaleaganuu Faasamoa moni.
E le o i ai se fa’amoemoe o nei Tulafono taufa’aofi e lote pe soli fua aia-tatau o tagata ta’itasi o le atunu’u e pei ona fa’ata’atia i le Fa’avae. E auna fa’apitoa lava le fa’amoemoe ina ia fa’aleleia atili le fa’atinoina o galuega o le fa’amasinoga o fanua ma suafa.
E le o i ai fo’i ni vaega fou o nei Tulafono taufa’aofi, e lotea pe solia le puipuiga o fanua fa’aleaganuu o le tatou atunu’u. O lo’o puipuia pea i le Vaega 102 o le Fa’avae. O vaega o le Tulafono o le Lands and Titles Act 1981, lea o le a toe fa’atino i Tulafono fou, e maua ai ta’iala o le lesitalaina o ni fa’anua fa’aleaganu’u, i se fanua o lo’o fa’apea ona fesiligia pe ua fa’amaonia lana lesitala, ma e lemafai se talosaga fa’apea, vagana ai ua gatasi i ai se aiga potopoto, ma e aunoa ma se te’ete’e e tali mai i le fa’asalalauga e tatau ona fa’atino. E aunoa ma se fa’aupuga i tulafono-taufa’aofi e mafai ai ona i ai se taumafaiga e fa’aliliu ai se Customary land i se fanua papalagi po’o le freehold land.
E le manino la po’o le a le fa’avae, pe fa’apefea fo’i ona tau feavea’i fua se manatu, e fa’apea o lo’o taumafai lenei fa’amoemoe e lote le tatou fanua fa’aleaganu’u, Customary Land? O le mau ma le fa’aaloalo, e le o i ai lava se tulaga fa’apena.
E aunoa foi ma se aia-tatau o lenei Fa’amasinoga faamoemoe, e fa’atino fua ni fa’aiuga e uiga i fanua ma suafa o aiga ta’atasi o le tatou atunu’u e aunoa ma se talosaga ua fa’auluina muamua mai e ni aiga po’o ni vaega o le atunu’u, ua latou manatu e saili se fesoasoani mai le fa’amasinoga. A le fa’auluina se mataupu e saili ai se finagalo o le Fa’amasinoga, e leai se aia o le Fa’amasinoga i na mataupu fa’aleaiga.
E le gata i lea, o le tulaga lava lea e tasi e tali fuaitau atu ai i le tulaga o lo’o iai nei le sēei faatasi ai o Faamasinoga e lua i lalo o le faamalumaluga a le Matagaluega o Faamasinoga, e ui i se eseesega o lo’o iai i faaiuga faaletulafono e faia e nei faamsinoga, e afua mai ona o le eseesega o tu ma aganuu e fua iai faaiuga ma matafaioi o nei faamasinoga e lua. Ma o nei foi faiga (o le aveavea’i ai o ni aganuu se lua, o le fa’apapalagi ma le Faasamoa) sa sau ai lava Samoa talu mai le Faavaeina o lona Tutoatasi.
O le tali atu la a le Malo e faapea, o le faavaeina lea o se Faamasinoga fou e gafataulimaina nei faafitauli o lo’o alia’e mai pea, ina ia maua e aiga mafatia le avanoa tutusa e saili ai se isi faamasinoga maualuga atu, e saili ai le tonu ma le sa’o i le āutalaina o mataupu tau i fanua faaleaganuu ma suafa matai.
O le afuaga o nei toe fuataiga na pogai mai ise Komisi Suesue fa’a Palemene Lauaitele, sa faatautaia mo le 9 i le 10 masina mai le 2017-2018, sa iloiloina ai faatinoga a le Faamasinoga o Fanua ma Suafa. Sa valaaulia le atunuu lautele ma itutino uma o le Malo (toatele na auai) ma faia a latou folasaga i lea taimi. O le fuafuaga mo le Faamasinoga fou e agai tonu ana faatinoga ile anoanoa’i o atugaluga i faaiuga ua tuanai, lea ua mafatia ai le toatele o aiga o lo tatou atunuu, i suafa matai ma fanua faaleaganuu, ua lagona ma manatu e lē amiotonu lona faatinoina (f.t. ole faasuafaina oi latou e le’o ni suli ole aiga), ae pagā lea, ua leai se isi avanoa talafeagai e apili ai le soalaupulega ole aano moni o lenei faaiuga.
Ae le gata i lea, o matafaioi faavaeina ole komiti filifilia a le Maota Faitulafono, lea ua tuuina iai lenei Tulafono Taufaaofi, ua iai nei le faaeteetega i lona fa’atauaina. O lona afuaga faatemokalasi ole faafofogaina o mau ale atunuu lautele, ma o lo’o ia tei latou foi le malosiaga e faia ai teuteuga e manatu e alagātatau ile Tulafono Taufaaofi mo le faamaoniaga ale Palemene. O lo’u auai i lūmā mea o lenei komiti, na ou iloa ma mātauina ai, le maualuga o lo latou galulue fitā-i-tugā ile aoaoina o iloiloga ma manatu faalia o le atunuu lautele, male lē faaituau ma le faamaoni. O le avanoa tonu lea mo folasaga i le taimi nei.

Fa’afetai mo fesili, o le tali lea ma le fa’aaloalo o le auauna.
Tumau pea Ieova i lo tatou Va,
Lemalu.

FORMER AG REPLIES TO QUERIES ON LTC AND CONSTITUTIONAL REFORMS

The overriding purpose of the Constitutional Amendment is to deal directly with the issue of access to legal justice for those who lose an appeal at the Lands and Titles Court (LTC).

At present in our Judicial system, once the President of the LTC decides an appeal – any family that loses their cases, has no further Court to advance their grievance to. Those are the affected persons that have been seeking relief for decades now, even reverting in desperation to visiting the offices of the Hon PM, Hon Ministers and Government officials asking – who they can appeal to? The answer is – there is no further Court to appeal LTC decisions to in our current system.

Even a Judicial Review (JR) against an LTC decision to the Supreme Court, can only legally deal with procedural issues as to how the hearings were conducted. The Supreme Court cannot otherwise deal with substantive questions and legal arguments about Fa’asamoa at all, as that has been left in the hands of the LTC. Therefore, the prospect of a new LTC Court of Appeal, offers a potential avenue for affected families, to attend substantively to “tu ma aganuu” i.e. cultural arguments, that our current Westminster modelled Courts are not tasked Constitutionally to deal with.

I emphasise here that – that has been the separation of duties between the Westminster modelled Courts and Lands and Titles Courts in Samoa since its Constitutional Independence. The proposed amendments would not therefore in terms of practise, initiate a sudden separation of the two in terms of their jurisdictional responsibilities – as that is already in place.

As our current domestic Westminster modelled Court of Appeal cannot therefore deal with any LTC substantive appeals, the question then arises when considering furthering LTC appeals – is the current Court of Appeal, that which should be burdened with legally defining our cultural practices i.e. appeals about Fa’asamoa from LTC decisions? The proposed amendment’s answer to that question is – ‘No’. It should be left as it currently stands in the hands of the LTC, and therefore – what is required is an LTC focused Samoan Court of Appeal to deal with Samoan cultural.

Hence the need for the newly proposed Court of Appeal that continues the specific cultural ethos of work that the LTC already exclusively carries. (Such a Court must therefore be placed first within our Constitution, before the Acts to monitor its procedures, then follow)

Further, this same point explains why the two Courts can run side by side within then MJCA administration (again as they already currently do), but separately in terms of their jurisprudence (law making rulings) – because they are fundamentally dealing with two different cultural contexts in their substantive responsibilities. [Such is the bicultural duo systems of government Samoa has admirably in my humble view, balanced and journeyed with since its Constitutional independence]

The Constitutional Reform does not therefore propose to revoke any of the individual freedoms that are sacredly protected in our Constitution; on the contrary it seeks to enhance the right to a fair (substantive) trial via a new Appeal avenue within the LTC route; and it simply cannot by creating a specialist Court of Appeal, somehow then remove the separation of powers of the three branches of Government from the Constitution.

Further, it cannot unilaterally encroach, and tell families what to do with their Lands and Titles, as it is a Civil Court – it can only therefore, deal with cases that the public decides themselves to file for consideration and relief as it were.

In relation to Customary Land and concerns raised re Clause 9 of the Lands and Titles Bill – I make 3 points:

1) It is not a new provision it is a transfer over of the current s 9 of the Lands and Titles Act 1981 (an Act to be repealed as part of the reforms);
2) The provision does not allow in any way for the conversion of customary land into freehold land (it’s been in Samoa since 1981 and never used to do such because it cannot) – as the provision is subject in its wording to the sacred Article 102 of our Constitution removing any legal avenues to convert customary land into any other type of land; and
3) The provision simply allows a family to confirm at LTC the registration of land into customary land only – but, only if there is evidence that its legal status is in dispute, if there is full consent of petitioning parties, and if there are no public objections.

I respectfully submit, it is not a provision that should cause concern to our community as to ownership of our customary land.

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. The public at large, private citizens and all public servants were invited to take part. The proposed Court can be seen to be an attempt to deal with (inter alia) the high number of grievances families reported with reference to their matai titles and family disputed customary land during the inquiry.

Further, the Constitutional role of the Parliamentary Select Committees that the Bills have now been formally referred to by the Legislature, are at risk of being unnecessarily understated. 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. My experience in appearing before these committees, is that they move in integrity, are hardworking, receive the views and opinions of the public respectfully and take them very seriously into account.

Ieova i lo tatou Va.

Lemalu.


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