Three Lands and Titles Court Judges Told their Appointments “Unlawful and Unconstitutional”

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3 March 2023 Mulinuu Courthouse Apia Samoa, translated from FaaSamoa. Three Lands and Titles Court judges have been told their appointments in April 2021 were “unlawful and unconstitutional” because legislation (at the time) was silent and did not include a list of criteria for such appointments.

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Tuioti Sakaria Taituave, Iuga Sefo Fautuaalii and Tuilagi Saipele Esera were sworn in as judges of the Lands and Titles Court on the 15th of April 2021 following the passing of the Lands and Titles Court 2020.

The swearing in ceremony of 15 April 2021. Photo by Areta Areta of Samoa Observer.

The three were appointed by warrant of the Head of State, on the advice of the LTC Komisi – a committee with similar functions to the JSC (Judicial Services Commission).

The three are long serving community matai who had been recommended for appointment as LTC judges by the Komisi, after a vigorous recruitment and selection process which had included written tests and interviews conducted by the Komisi.

However this week in letters dated Monday 27 February 2023, signed by the Komisi Secretary almost two years to the date of their swearing-in; the three were told their appointments would cease as of today, 3rd March 2023.

“The appointments made in April 2021 were unlawful and unconstitutional and did not comply with Article 104E (4) of the Constitution.

These appointments were made without legal requirements to guide the Komisi in carrying out its duties (to appoint LTC judges) under 104E(4) of the Constitution,” stated the Komisi.

“O tofiga sa faia ia Aperila 2021, e lē tusa ai ma le tulafono ma le Faavae (unlawful and unconstitutional) ma e le tusa ai ma moomiaga i lalo o le mataupu 104E (4) o le faavae. O nei tofiga sa faia e aunoa ma aiaiga faaletulafono e aiaia ma lima taitaina ai le Komisi i le faatinoga o lana matafaioi, e pei ona moomia i lalo o le Mataupu 104E(4) o le Faavae.”

“Your appointment as Judge of the Lands and Titles Court hereby ceases or formally ends on Friday 3 March at 5pm.” (emphasis bolded in letters).

“O le a faamuta aloaia lau auaunaga faa-faamasino o le Faamasinoga o Fanua ma Suafa, i le Aso Faraile, Aso 3 Mati, i le 5pm.” (Faamamafa o loo lomiaina i le tusi).

The Komisi goes on to state in their letter, that the recently passed Lands and Titles Court Amendment Act has fixed the Legislative drafting glitch and now includes minimum requirements or criteria for selection of LTC judges.

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However, states the Komisi, “the appointments of judges made in April 2021 are not validated and saved under the recent Amendment Act (Tulafono Teuteu). Only appointments made under Lands and Titles Act 1981 are saved.”

“E le o aloaia ma faasaoina (validated and saved) i lalo o lenei lava Tulafono Teuteu, tofiga e pei ona faia ia Aperila 2021. E na o tofiga o faamasino sa faia i lalo o le Tulafono 1981 ua faasaoina.”

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The Komisi ends its letter by stating that the three outgoing LTC judges “have the chance to reapply when the process of recruitment for the First Lands and Titles Court is carried out again under section 5 of the LTC Act 2020.”

“E ui i lea o loo iai pea le avanoa e mafai ai ona e toe talosaga i avanoa faamasino o le Faamasinoga Muamua o Fanua ma Suafa, e tusa ma aiaiga ma agavaa moomia i lalo o le Vaega 5 A o le Tulafono o Fanua ma Suafa 2020.” (Bold emphasis on letters)

A source from the Ministry told SGN the Komisi had sought the advice of the Attorney General prior to the decision to remove the three LTC judges.

The declaration that the appointments of three LTC judges were unlawful and unconstitutional has raised concerns as to the validity of all LTC matters the three judges presided over in the past two years while they acted as judges.

When contacted the Attorney General and the Secretary of the Komisi were unavailable for comment.