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IBAHRI condemns Samoan Parliament’s passing of controversial constitutional reforms

Wednesday 23 December 2020

The International Bar Association’s Human Rights Institute (IBAHRI) expresses grave concern over the passing of controversial constitutional reforms in Samoa that will undermine the rule of law, weaken judicial independence and adversely affect human rights in the country.

On 15 December 2020, three interconnected bills – the Constitutional Amendment Bill 2020, the Judicature Bill 2020, and the Lands and Titles Bill 2020 – were passed without opponents of the legislation being allowed to speak against them in Parliament. There remain numerous areas of contention, including:

On 15 December 2020, three interconnected bills – the Constitutional Amendment Bill 2020, the Judicature Bill 2020, and the Lands and Titles Bill 2020 – were passed without opponents of the legislation being allowed to speak against them in Parliament. There remain numerous areas of contention, including:

  • Under the Constitutional Amendment Bill 2020, which comprised more than 20 amendments to the constitution, such as:
    • there will be no limits to the authority of the Village Fono – village councils. Villages that opposed the Constitutional Amendment Bill had reservations relating to the disregard for individual human rights. We agree with their concern;
    • clause 4 Article 67 gives increased power to the Head of State to suspend the Chief Justice, if Parliament is not in session, until the completion of the next session. This is a dangerous power. If necessary or urgent, Parliament should be reconvened. The power of removal is granted to Parliament to emphasise the exceptional power that is being invoked; and
    • clause 7 Article 104 D (1) grants power to the Head of State to suspend the President of the Land and Titles Court. Currently, judges may only be removed by a two-thirds majority vote in Parliament on grounds of misconduct or mental impairment. These limitations should not be reduced.
  • Under the Lands and Titles Bill 2020:
    • the new legislation elevates the Land and Titles Court (LTC) to a separate second judiciary, removing it from the scrutiny of the Supreme Court, and creating two, potentially competing, court systems (with two de facto leaders, the Chief Justice and the President of the LTC). This could lead to certain crimes being dealt with by the LTC with no right of appeal to the Court of Appeal of Samoa;
    • the removal of judicial primacy of the Supreme Court will likely lead to confusion, uncertainty and conflict; and
    • section 46, now gives added power to the President of the LTC to decide what appeal can be taken and grants the power to rehear or reopen any case that has already been decided by the Court. This is contrary to the established legal principle of Res Judicata which requires, with trivial and minor corrective orders, that matters, once ruled upon by a court of appropriate jurisdiction, that a judicial decision must be respected and obeyed unless and until it is set aside by another higher court with relevant jurisdiction in appeal or judicial appeal.

IBAHRI Co-Chair and former Justice of the High Court of Australia (1996–2006), the Hon Michael Kirby AC CMG, commented: ‘The IBAHRI urges the Parliament of Samoa to reconsider the new legislation and new amendments in light of their potentially very damaging impact on the rule of law and independence of the judiciary. Giving the Government the power to dismiss judges is contrary to the principles of the International Covenant on Civil and Political Rights, legal tradition and judges’ tenure; the practical guarantee of judicial independence. The IBAHRI is concerned that the granting of this executive power will greatly reduce the separation of powers in Samoa. It is a dangerous move that could lead to further derogations from the rule of law. We urge reflection, reversal and wide consultation. Political leaders in Samoa need to be reminded of the importance of preserving the rule of law and the equality of all people before the courts, whatever their race, ethnicity, nationality or culture. This is not only a matter of international obligation and fundamental human rights. It is also critical to the economic stability of Samoa and investment in the prosperity of the country. Investors can recognise discrimination and reduction of the rule of law and passage of unequal laws a mile off.’

IBAHRI Co-Chair and immediate past Secretary-General of the Swedish Bar Association, Anne Ramberg Dr jur hc, added: Under the UN Basic Principles on the Independence of the Judiciaryand the IBA Minimum Standards of Judicial Independence, States have a fundamental duty to respect and observe judicial independence. Increasing executive oversight of the Judiciary and courts is contrary to these obligations. Further, the removal of the primacy of the Supreme Court as an avenue of appeal from the Land and Titles Court, only serves to weaken the court system and the essential scrutiny it provides.’

The original bills were put before the House on 17 March 2020. A motion from Prime Minister Tuilaepa Sailele Malielegaoi to set aside the usual three days it takes to progress to a second reading was granted. By the end of 18 March all three bills had proceeded through to their second reading. Also, Mr Malielegaoi appointed a ‘Special Parliamentary Committee’ consisting of seven MPs to consider the bills and any submissions; this replaced the select-committee stage. After the report of the Special Parliamentary Committee was published, the legislation was passed without further consultation on 15 December 2020.

ENDS

Notes to the Editor

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  2. The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
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