Land and Titles Bill

The Land and Titles Bill is one of three bills passed by the Legislative Assembly of Samoa to reform the legal framework around the Land and Titles Court of Samoa and Samoan customary law. The bills are viewed by some as undermining human rights[1] and the rule of law,[2] and are the subject of significant controversy in Samoa.

The bills were passed on 15 December 2020.[3]

Background

Samoan law stems from two sources: English common law, as ultimately embodied in the Constitution of Samoa, and Samoan customary law, such as Faʻamatai. In 1992 the Supreme Court of Samoa found that "Samoa has two systems of law working side by side. On the one hand, we have statute law, English common law and equity, on the other, custom and usage and the principles of customary law which governs the holding of matai titles and customary land - Each legal system has its own court."[4] Customary law is also primary for issues of village governance under the Village Fono Act 1990.

80% of land in Samoa is held as customary land, with title formally vested in matai.[1] Disputes over this land - for example, over boundaries or ownership - are decided by the Land and Titles Court according to Samoan custom. While appeals are nominally forbidden,[5] the Supreme Court of Samoa exercises a supervisory jurisdiction for breaches of fundamental rights.[6] Decisions of the Land Court - and ultimately, local matai - over titles have been overturned by the Supreme Court for breach of the right to a fair trial.[7] The Land and Titles Court has been the subject of criticism for a number of years due to ongoing delays, verbal-only rulings, poor process, and outright bias.[8] In 2016, the Samoan Parliament commissioned a Special Inquiry Committee to review the Court and improve its processes. The Committee recommended a number of improvements, including written rulings and conflict of interest provisions.[9] One of the recommendations was that the supervisory jurisdiction of the Supreme Court be retained to ensure the fundamental rights of Samoan citizens are upheld.[10]

Village governance is conducted according to custom by meetings (fono) of matai conducted under the Village Fono Act. In addition to local government functions such as sanitation and economic development, and punishment of low-level village misconduct, fono are empowered to make decision on issues such as harmony, promoting social cohesion, protecting Samoan customs and traditions, and safeguarding village traditions, norms and protocols,[11] and are empowered to issue punishments such as fines, work, or banishment.[12] These powers are sometimes abused, for example to fine or banish political candidates[13][14] or their supporters,[15] or followers of minority religious groups.[16] These decisions have also been overturned by the Supreme Court on human rights grounds,[17] and the Court has consistently upheld the constitutional right to freedom of religion over village decisions.[18]

Provisions

The Bill[19] would repeal the existing Land and Titles Act 1981 and replace it with a new regime. The Land and Titles Court would be retained, but appeals to the Supreme Court of Samoa and Court of Appeal of Samoa would be forbidden, instead being handled by a new "Land and Titles High Court" and "Land and Titles Court of Appeal and Review".[20] Appeals heard by the land and Titles Court under the Village Fono Act 1990 would also be redirected.[21]

The Constitution Amendment Bill 2020[22] and Judicature Bill 2020[23] make subsidiary changes to the Constitution of Samoa and Samoan court system to enable the changes to the land and Title Court system to occur. The constitutional amendments remove the jurisdiction of Samoa's civil and criminal courts over issues within the jurisdiction of the Land and Titles Court, and establish the new Land and Titles Court appellate divisions. As at present, decisions of the land and Titles Court would be made according to customary law, but a clause specifically states that "The English common law and equity of England does not apply in the Land and Titles Court"[24] According to its Explanatory Memorandom, one of the purposes of the Bill is to prevent the decisions of Village Fonos from being overridden by the courts for infringing on human rights.[25]

A version of the bill was first introduced to the Samoan Parliament in January 2019.[26][27] An updated version of the bill was reintroduced on 17 March 2020. After being passed through Parliament to its third reading under the state of emergency declared due to the global COVID-19 pandemic,[28] progress on the Bill was halted to allow consideration by a special select committee[29] and consultation with local villages.[30] In August 2020 the Committee's consideration on the Bill was extended.[31]

Controversy

The Bill and its related legislation has resulted in significant controversy, and been condemned both within Samoa and internationally.

In April 2020 the Samoa Law Society expressed concern about the bill being passed under urgency through Parliament, without any of the required public consultation.[28][32] Samoa's judiciary also expressed "grave concerns" with the proposed constitutional amendments, via a letter from the Acting Chief Justice Vui Clarence Nelson and co-signed by all judges of the Supreme and District Courts.[33]

In May 2020 Samoa's Ombudsman Maiava Iulai Toma formally expressed opposition to the Bills in a submission to Parliament, saying that it threatened freedom of religion.[34][35] The United Nations special rapporteur on the Independence of Judges and Lawyers in an open letter to the Samoan government said that new provisions relating to the dismissal of judges would breach international standards on judicial independence and would violate article 14 of the International Covenant on Civil and Political Rights.[36] It has also been condemned by Amnesty International[1] and the New Zealand Law Society.[37]

Opposition to the Bill has led to the resignation of three MPs from the Human Rights Protection Party: Laauli Leuatea Polataivao in May,[38][39] Faumuina Asi Pauli Wayne Fong in July,[40] and Deputy Prime Minister Fiame Naomi Mata'afa in September.[41][42] Mata'afa later denounced the Bill as undermining the rule of law.[2]

Supporters of the bills view them as embedding Samoan values in the constitution, and explicitly disagreed with the constitution's protection of human rights.[43] The Government of Samoa argues that the reforms do not change the existing status quo, and that they do not deal with the alienation of lands to third parties, but rather domestic civil disputes between families about their own customary land. They also argue that the reforms enhance the coexistence of the laws by creating new appeal rights, and that the judicial review powers of the Supreme Court in the previous regime were strictly for procedural review only, and did not allow for any substantial review by a papalagi Court of Samoan cultural practices and norms.[44][45] Former Chief Justice Patu Tiava'asu'e Falefatu Sapolu has argued in support of the Bills, saying that the customary rights of Samoa cannot encroach on individual rights because the country's way of life is already entrenched in their co-existence both in practice and in law.[46] Prime Minister Tuilaepa Sailele Malielegaoi has argued that the Westminster system of law does not and cannot dictate to Samoa what its micro or macro applied customary practices should be,[47] and criticised opponents of the bills as "not Samoan".[48]

The bills were passed on 15 December 2020, with 41 votes in favour and 4 against.[49]

See also

References
  1. "SAMOA: STATE OF EMERGENCY EXPLOITED TO RUSH THROUGH LAWS THAT WEAKEN JUDICIARY" (PDF). Amnesty International. Retrieved 14 September 2020.
  2. "Samoa court changes would undermine rule of law - Fiame". RNZ. 14 September 2020. Retrieved 14 September 2020.
  3. "Samoa parliament passes much criticised constitutional reforms". RNZ. 15 December 2020. Retrieved 15 December 2020.
  4. Alaelua v Land and Titles Court, WSLawRp 3 507, 516 (Supreme Court of Western Samoa 16 July 1992).
  5. Land and Titles Act 1981, s71
  6. Patu Falefatu Sapolu. "IS THERE A BETTER WAY TO SOLVE LAND DISPUTES IN THE PACIFIC? (THE MATAI SYSTEM AND THE COURTS)" (PDF). p. 89. Retrieved 16 September 2020.
  7. Peniamina v Land and Titles Court, [2004 WSSC 12] (Supreme Court of Samoa 14 September 2004).
  8. Tuimavave, Lagi (2017). "A Response to the Report of the Special Inquiry Committee's on matters pertaining to the Land and Titles Court" (PDF). Victoria University of Wellington. pp. 7–8. Retrieved 16 September 2020.
  9. Tuimavave (2017), Appendix 1.
  10. Tuimavave (2017), p13 - 14.
  11. Village Fono Act 1990, s5.
  12. Village Fono Act 1990, s6.
  13. "Samoa village banishes chief for running in election". RNZ. 21 June 2011. Retrieved 16 September 2020.
  14. Lanuola Tusani Tupufia - Ah Tong (23 April 2019). "Candidate banished from village". Samoa Observer. Retrieved 16 September 2020.
  15. "Samoa village council banish families for not voting high chief". RNZ. 1 July 2006. Retrieved 16 September 2020.
  16. "SAMOAN CHURCH LEADERS DISAGREE WITH RELIGIOUS PERSECUTION IN SALAMUMU". Pacific Islands Report. 11 November 1998. Retrieved 16 September 2020.
  17. "Banishment on bible group in Samoa ruled unconstitutional". RNZ. 30 April 2003. Retrieved 16 September 2020.
  18. Ming C. Leung Wai (2015). "RELIGIOUS FREEDOM & SOCIAL STABILITY IN SAMOA" (PDF). 22ndAnnual International Law and Religion Symposium (Religion, Law and Social Stability). p. 5. Retrieved 16 September 2020.
  19. "Land and Titles Bill 2020" (PDF). Parliament of Samoa. Retrieved 14 September 2020.
  20. Land and Titles Bill 2020, part 5.
  21. Land and Titles Bill 2020, s66.
  22. "Constitution Amendment Bill 2020" (PDF). Parliament of Samoa. Retrieved 14 September 2020.
  23. "Judicature Bill 2020" (PDF). Parliament of Samoa. Retrieved 14 September 2020.
  24. Constitution Amendment Bill 2020, s7, new s104A(8).
  25. "Constitution Amendment Bill 2020: Explanatory Memorandum" (PDF). Parliament of Samoa. p. 2. Retrieved 14 September 2020.
  26. "Samoan MPs to consider sweeping Land Court change". RNZ. 23 January 2019. Retrieved 14 September 2020.
  27. "Why Land and Titles Bill must be scrutinised by the public". Samoa Observer. 31 January 2019. Retrieved 14 September 2020.
  28. "Samoa Govt pushes major change under cloak of Covid-19 - law society". RNZ. 18 April 2020. Retrieved 14 September 2020.
  29. Joyetter Feagaimaali'i (22 March 2020). "Parliament Committee reviews Constitutional amendments". Samoa Observer. Retrieved 14 September 2020.
  30. "Samoa's controversial bills to be taken to villages". RNZ. 8 May 2020. Retrieved 14 September 2020.
  31. "Parliamentary Special Committee given more time to complete report". Talamua. 19 August 2020. Retrieved 14 September 2020.
  32. Joyetter Feagaimaali'i (9 April 2020). "Constitutional amendments worries Law Society". Samoa Observer. Retrieved 14 September 2020.
  33. "Judges warn Samoan govt about judicial reform". RNZ. 13 April 2020. Retrieved 14 September 2020.
  34. Sapeer Mayron (17 May 2020). "Ombudsman opposes changing Constitution". Samoa Observer. Retrieved 14 September 2020.
  35. "Samoa's Ombudsman voices opposition to divisive bills". RNZ. 18 May 2020. Retrieved 14 September 2020.
  36. Joyetter Feagaimaali'i (29 May 2020). "Withdraw constitutional change: U.N. Human Rights Council". Samoa Observer. Retrieved 14 September 2020.
  37. "NZ Law Society raises concerns about court changes in Samoa". RNZ. 4 May 2020. Retrieved 14 September 2020.
  38. "More ructions in Samoa's ruling HRPP". RNZ. 27 May 2020. Retrieved 27 June 2020.
  39. Lanuola Tusani Tupufia - Ah Tong (1 June 2020). "Former Speaker La'auli resigns from H.R.P.P." Samoa Observer. Retrieved 21 August 2020.
  40. "Another dissenting Samoa MP sacked". RNZ. 7 July 2020. Retrieved 8 July 2020.
  41. Lanuola Tusani Tupufia - Ah Tong (11 September 2020). "Deputy P.M. Fiame resigns from Cabinet". Samoa Observer. Retrieved 11 September 2020.
  42. "Samoa's deputy prime minister quits cabinet over controversial bills". RNZ. 11 September 2020. Retrieved 11 September 2020.
  43. Joyetter Feagaimaali'i (16 September 2020). "L.T.C. changes not undermining law: Minister". Samoa Observer. Retrieved 16 September 2020. “It's only the rights of individuals that are recognized by our Constitution, is that the rule of law? What about the Chiefs that are governing the villages, what about our rights.”
  44. Press Release Office of the Attorney General Samoa 17 December 2020
  45. Press Release Office of the Attorney General Samoa 24 December 2020
  46. "Former CJ of Samoa Patu, supports proposed bills". Samoa Observer. 10 June 2020. Retrieved 26 December 2020.
  47. PM reply Samoa Observer 5 May 2020
  48. Joyetter Feagaimaali'i (24 September 2020). "L.T.C. opponents "not Samoan": P.M." Samoa Observer. Retrieved 25 September 2020.
  49. Joyetter Feagaimaali'i (15 December 2020). "L.T.C. bills pass Parliament". Samoa Observer. Retrieved 15 December 2020.
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