Honourable Tuilaepa Auelua Fatialofa Lupesoliai Lolofietele Neioti Aiono Galumalemana Dr. Sailele Malielegaoi (Prime Minster):
Honourable Speaker of the House and Members of Parliament. I respectfully take the floor to further clarify some of the issues Government deems are important for the information of Parliament and our people listening in from around the country.
This new day is further testament to the merciful grace of our Father in heaven, through His divine leadership and protection over our nation.
I am sure we are joined in the belief that Samoa is a blessed nation, particularly when we continue to witness on a daily basis the suffering and grief we have been spared from, as a result of the deadly COVID 19 ravaging most countries of the world. We are extremely fortunate to be living in a blessed country.
In this regard I wish to thank and commend our Church Leaders and our nation’s prayer faithful; for supporting the (State of Emergency) orders.
All countries are reacting alike to the pandemic. All actions are grounded in the compelling advice of their professional health advisors, who are championing the fight in the front lines of the war we are in now.
But, all our endeavours depend greatly on the endless love of God, the Creator of heaven and earth.
This must have also been the basis for the considered decision by our ancestors to build the foundation of Samoa on God, which we have continually accentuated in this parliamentary term; through the incorporation in the Articles of the Constitution – these important words of our commitment that “Samoa is founded in God”.
These words were not written in the heart of the Constitution of Samoa before.
This is the supreme law of the land and must reflect our faith in God just as we strive to highlight the value of our cultural rights in the same – in that way we would be paying homage to the dreams and aspirations of our ancestors to treasure our culture, and customs.
In a similar manner we are now progressing towards the implementation of this dream, by Parliament, referring these Bills to a Special Parliamentary Committee and inviting the public and all the people of Samoa to freely express their opinions and comments on them, before they are passed into Law.
This is one of the key elements by which the compliance of a country with the rule of law is assessed.
Honourable Speaker, the House is clear on the process for any Proposed Bill submitted to Parliament; in this instance for strengthening and lifting the standards of the Lands and Titles Court, which as I have mentioned, has been referred to the Special Parliamentary Committee.
I re-emphasize the fact that it is Parliamentary protocol that permits and cedes opportunities for all people of Samoa who wish to submit proposals and advice to improve Bills, before they are returned for final consideration of, and adoption by Parliament.
These consultations provide the final window for our people to deliberate and discuss as it is the complete draft Bill that is now available for anyone to reflect and ponder on, lawyers, judges, chiefs of the country and whomever; as it is up to them to amend the Bill as they wish; that is their contribution to the final version of the proposed Bill.
These are the same principles and processes that govern the Acts of democratic countries; and guide the debates occasionally raised at meetings when we convene as leaders of Independent countries of the Pacific or within meetings of the United Nations.
That is the way to do things. Now Parliament can no longer deliberate over the Proposed Bills, as they have been referred to the Special Parliamentary Committee, until they are returned for the final reading in this Parliament of Samoa. However, false opinions are already in circulation about this Proposed Bill, which may mislead our country. It is why I am standing before you with due respect to clarify these matters for those who wish to be enlightened.
Honourable Speaker, there is nothing new (in this Bill), except for a tiny, minor provision, that reaffirms and recognizes our cultural rights, that we live by and practise every day, and which are to be substantiated and recognized. In this way, the Judges can equally consider both individual rights, founded on western beliefs, and communal rights, which are core and central to traditional administration and the authority of the village councils of chiefs that govern for the common good of all our people.
As we know, from the very beginning, when the Lands and Titles Court was established during the German administration, then New Zealand, the Criminal Court was always separate from the Lands and Titles Court. Only recently has the Ministry of Justice merged into one; for well over 100 years two separate ministries served two separate courts.
Honourable Speaker, the only connection between the two Courts back then was that a single individual held both the position of Chief Justice and that of President, as it was then manageable as matters that required court and justice support were minimal. It was only yesterday that changes were introduced; to be precise in 2004, when the Constitution was amended to reflect the separation of roles of the President of Land and Titles Court and the Chief Justice who could no longer effectively execute both the Chief Justice’s responsibilities and the obligations of the position of President of Land and Titles Court.
Two separate positions were created, two courts were retained one headed by the Chief Justice and the other by the President. I can clearly recall this amendment to the Constitution in 2004 which arose when I spoke with the Chief Justice, who advised and prompted me to raise the retirement age of Judges from 62 to 68, so that an experienced lawyer with a rich understanding of law and an exceptional experience of our cultural traditions and practices could be persuaded to take up the position of President. When this amendment to the Constitution was passed by Cabinet and adopted by Parliament, the Chief Justice chose to be President of Land and Titles Court Tagaloa Tuala Sale, one of my prominent senior Cabinet Ministers at the time. Although it was difficult for me, I accepted and supported the appointment by the Chief Justice as it was a great initiative on his part to upgrade and improve the standard of the Lands and Titles Court.
This move shows the determination of the HRPP led Government to observe the rights of our people to enhance the standards of Courts Administration, by increasing the number of years for Judges to serve on the bench. It follows on that the independence of the Judiciary court is being supported in this manner.
And how is that support measured? One of the instruments is by increasing the number of years accorded to the judges to continue their services uninterrupted and deliver decisions without fear for the tenure of their services is guaranteed. Given the developments nowadays, I have often pondered that perhaps these positive changes made by Parliament as illustrated in the more effective separation of roles in the three branches of government and the independence of the Judiciary in the observance of the Rule of Law, has not been fully appreciated.
And so I ask; did anyone, lawyers included question and challenge the decision to separate the position of the Chief Justice from the President? Did any other judge of the Criminal Court and/or the Samoa Law Society object to this decision?
The answer is, Not a Single Voice objected. But I know that the Chief Justice at the time was glad of the change that he initiated, and accepted by Cabinet, to separate these two positions as it was indeed a heavy load for one person to carry all the responsibilities of the two posts; indeed a change made with good intent.
These significant changes initiated by the then Chief Justice, are being challenged today.
There have been baseless suggestions that the Government will have four branches and/or the Lands and Titles Court will be under the Legislative Assembly. Honourable Speaker, there is only ONE Judiciary, whether we have 2, 3 or 10 Courts – they will ALL be under this one label – the Judiciary.
I must have explained this a 100 times on my regular programs with the media. The analogy can also be extended to the Parliament; the Legislative Assembly is led by the Honourable Speaker of the House, and includes us parliamentarians; which is different from the Parliament, which includes the Head of State and (parliamentarians) members of the legislative assembly, but both are parts of the Arm of Parliament.
The question is, is the position of the Head of State as Head of Parliament affected by the Speaker of the House’s position as head of the Legislative Assembly? The answer is no, as function and responsibilities are different, but all are under the Arm of Parliament. If one asks, is the leadership role of the Chief Justice of the Criminal Courts affected by having the President lead the Lands and Titles Court? The answer is also ‘No’ as there is a vast difference, just as East is different from West, in responsibilities and functions, but are all under the Judiciary. The existing connection we have today, relates to Judicial Reviews of decisions of the Lands and Titles Court; by the Chief Justice. This was not a Law that emanated from Parliament, but was made and executed by expatriate judges court decisions. Let me repeat that to avoid confusion. It was introduced and executed by foreign judges court decisions and did not stem from a Law passed by Parliament. However, the authority of the Lands and Titles Court to make its own decisions is independent and free from interference by another court. To prove this point, the Native Land and Titles Protection Ordinance was passed in 1934 by the New Zealand Government. That Law provided Exclusive Jurisdiction to the Lands and Titles Court on traditional lands and titles, but this law was passed in 1934 when Samoa was under foreign administration. The same Law was repealed and superseded by the Lands and Titles Act in 1981, after 47 years during the times of Tupuola Efi’s government.
Honourable Speaker, the Lands and Titles Act, 1981 continued this exclusive jurisdiction of the Lands and Titles Court (LTC) and reaffirmed that nothing can and nothing will ever, or any other Court can question or challenge a decision by the LTC.
It was only recently that the Chief Justice started examining and assessing decisions by the LTC, where individual rights are concerned. This means that the Chief Justice could once again review decisions by the Lands and Titles Court where individual rights are considered, because of the provisions in our Constitution and as in most other constitutions of the countries of the world, administered or formerly administered by papalagi,
These constitutions recognize individual rights but not communal rights such as those exercised by the village councils of chiefs and church groups. That is the reason why whenever a matter that goes before the court involving the council of village chiefs and an untitled villager or an individual matai that opposes a village council ruling, the chances are the decision will be against the village council of chiefs. Why? The ruling is in favour of the recognition of individual rights. This is what the Constitution says, as written by westerners, following a universal Western practice. It needs to be said that the original proponents of the Constitution did not have the same culture and traditions as Samoans. And the judicial reviews by the Chief Justice of the decisions by the Lands and Titles Court were not based on a law from Parliament. Instead, the Chief Justice would apply the common law of English Courts derived from societal practices of Great Britain with totally different cultures and traditions from Samoa. As such there is no recognition of communal rights. This is the reason why matters brought before the Courts by our village councils of chiefs and orators, organizations, churches or whatever groups, are often overlooked. The Constitution provides exclusively for individual rights.
Honourable Speaker, as I had previously mentioned, for 47 years from 1934 to 1981, our LTC was mandated by the Lands and Titles Act 1934 of New Zealand – during New Zealand’s administration of Samoa to act as an independent court. NZ did this knowing that the two Courts are different. The administration of the LTC on titles and traditional lands must never be subjected to the rule of another Court. Why? Perhaps NZ foresaw that space be given to enable an in depth appreciation of the richness of Samoan culture and traditions as well as their appropriate legal interpretation within the laws of the land. Individual rights were only accorded recognition during the discussions of the Constitutional Convention, where three or four high chiefs representing each of the districts attended and led by the Tama-a-aiga in 1960. This was the first time individual rights were considered formally.
The question is, did members of the Constitutional Convention, who were the traditional leaders of Samoa argued to remove individual rights by the Lands and Titles Court? No. They did not discuss it. Rather, they only emphasized and proposed that appropriate provisions are in the Articles of the Constitution to protect and value our culture and traditions. All these are captured in the three volumes of records of their individual interventions during the Constitutional Convention. I have read these three volumes and have learned to appreciate with all respect their will and desires expressed ….. on that Convention in 1960. They are like the Children’s learners alphabet to me. I advise all of you, to read and continue reading the deliberations and appeals during that Constitutional Convention vividly expressed by the leaders of our country, who have passed on. The proposed Bills aim to reach deeply into the reality of today’s world in which we live.
I believe opposing views and deception reflect an obstinacy to think beyond what is given and is already interpreted for them. There is also a refusal to find out from senior lawyers, who have spent quality time researching, and have fully comprehended the complexity of the differences between the Criminal Court and the Court for our traditional treasures. Another common mendacious idea is that Judicial Reviews will be removed. I am not sure if it is due to a lack of understanding or deceptiveness, but the judicial reviews will be covered by the Court of Appeals and Reviews also included in the proposed Bills. Nationals will manage our own affairs, including the traditional chiefs of the country – true loyalists who understand our culture, customs and traditions. These traditional matters will no longer go to the Chief Justice and eventually the Court of Appeal, where expatriates without or have minimal knowledge of our culture and traditions preside. I do not need to mention Honourable Speaker, the differences there will be when our own people preside over our own Courts that handle traditional and cultural matters. Why? Because they know, understand and appreciate our own traditions, customs and culture very well,
Hence the priority placed by Government and Parliament to elevating the status of our Lands and Titles Court, This is why we are proposing the amendments to the Constitution and the proposed new Lands and Titles Court Bill, which are causing an uproar by those opposing the Bill. I am certain that if the complainants are attending village council meetings and participating in the administration of their respective villages, they would have understood the vision driving these Bills. However, not one of these chiefs(matai) is attending meetings of village councils from which their titles are derived. It is likely that a few may have last visited their villages on the day their titles were bestowed;. Being part of a village Council of Chiefs’ meeting would have given them firsthand experience in the processes of decision making and how difficult situations are resolved.. How else will they know the difficulties village councils face in making decisions for the general welfare of the whole village, when they continue to only pursue the individual’s rights protected by the Constitution? –
But these are unknown to those Judges making Court decisions, who do not visit their villages, let alone sit in the council of chiefs’ meetings, learn and observe their village’s respective customs and protocols. I know that the only few judges that attend village council meetings are judges of the Lands and Titles Court, but other judges never do. This is an important point that should be understood as the Bills and amendments, that are the subject of objections, do not say that communal rights will be placed above individual rights of a matai or an untitled man that is objecting to a village council decision as it is today, in which individual rights are considered at the expense of communal rights. The Bills seek for the Judges to consider both individual rights and communal rights. This means that equal attention will be paid to both individual rights and communal rights in the amendments being proposed. Those are the goals and the amendments referred to the Committee. It is to recognize the rights of the Council of Chiefs, church administrations, or management of any organization that may have been violated by an individual.
I have already mentioned that the focus on the rights of the individual is from practices of Great Britain and other countries overseas. These are their customs. But communal rights is the key element holding together our culture and traditions and the peacefulness of our people. So what are these Bills as opposed by many trying to achieve? The answer is recognizing the cultural rights of our customs and traditions that our ancestors abode by and guides how we live today. The Parliament is aware of these principles as articulated in the Proposed Amendments.
Honourable Speaker, a lot of people living in villages are residing under the administration of the Council of Chiefs; these are our customs and traditions in practice. This is the village institution that Government relies on for achieving peace and sustainable development of our villages and communities, especially in times of emergencies and disasters. Only someone not living under this leadership and form of governance or lacks understanding of the validity of these Amendments, will fail to realise their utmost purpose to sustain peaceful cooperation among our people towards sustainable development.
Another issue I wish to raise is the submission from Judges of the Criminal Courts, which was written in English. The submission was addressed to the Parliamentary Committee for Bills who conduct their deliberations in our Samoa language.
The letter claims to be from the Judiciary. however, the President and Judges of the Lands and Titles Court did not sign it, as they believe that their position should not be in the way of the Criminal Courts’ freedom to express their own opinions.
No one’s opinion should be left behind as we are a free country, free to express opinions, free to choose religion and free to press charges against those who break the law. Even Ministers have been charged and imprisoned in the past. This is also one of the fundamental pillars of a democracy.
This Government has been commended for the freedom granted to people to express their opinions in newspapers, whether they are factual or baseless. Government is not stopping that. I was copied, as well as the Honourable Minister for Justice and Courts Administration the above mentioned submission from the judges of the Supreme Court, as well as the letter from the President of LTC to the Special Committee – in which he provided important policy advice and expressed gratitude to Government, for proposing Amendments in which our traditional rights will be given prominence and that this will, provide much needed assistance for their work.
The question that comes to mind, for Judges of the Criminal Courts: is do they perceive any difficulties in the recognition of individual rights and/or the separation of the LTC? There is nothing, and I know that there is only one Judge of the Criminal Courts that usually assists the President, while the rest, do not make any contribution to the LTC, as they never bother to attend it. It is for this same reason that the former Chief Justice sought to raise the status of the LTC, so that an experienced senior lawyer is persuaded and convinced to take up the Position of President of the LTC.
In addition to knowing the law, such a person should have a deeply rooted knowledge of our culture, customs and traditions. It seems that our Judges do not wish to be involved with the Lands and Titles Court, as it is a complex system and there is little appreciation of the difficulties faced by the President and Judges of the LTC.
This is Samoa, we are a small country and therefore everyone knows each other and their connections; nothing is secret. Why? We, all in Cabinet ~ and representatives of this Parliament, know and are used to the ever persistent and regular visits of the families from our Districts seeking our assistance with their court matters. They are uncertain of the recourse to be taken.
They have sought the assistance of legal officers, only to be crippled by fees ~from SAT$30,000 and SAT$40,000 upwards. Then the only option is to seek their members of parliament, who are all of you.
They come and request help to initiate and instigate these changes and amendments, so that there are affordable remedial measures available for our people, and villages who elected us as their representatives to whom we have pledged to serve.
Honourable Speaker, the Bills that the Judges of the Criminal Courts and Law Society are publicly advocating for dismissal have been referred to the Special Parliament Committee, the Bills Review Committee.
There is now the opportunity to visit the Committee and submit proposals just as the President and LTC have done in support of our cultural rights. That is better than advising the nation to take up arms with incorrect opinions using newspapers and television.
Only this Committee will bring to the Parliamentary Assembly, any complaints and issues to be reconsidered for in-depth scrutiny for deeper meanings and added value. The media will not make such decisions, as most do not understand the depth of the issues involved; which this Parliament will pass, then refer to Judges and Lawyers to execute.
Therefore, I advise as I have been told that the Committee will resume work on these Bills tomorrow. The Committee will start tomorrow on what the Law society and Court judges have already disseminated publicly prior to meeting the Committee – what great wisdom!
Every Bill or Act to be amended must go to the Committee. My humble advice to the Judges and Law society is to visit the Committee to articulate your opinions.
What we should all know, is that the emphasis on our cultural rights as well as improving the status of our Lands and Titles Court; are inseparable issues. This is why an earlier Bill was withdrawn last year, to allow for the submission of new amendments to the Constitution.
Already publicised in both Samoan and English, on the Government website and Savali newspaper is the clarification from the former Attorney General, Lemalu Herman Retzlaff – who was responsible for the preparation of these changes. He stresses that the amendments to the Constitution now before the Bills Committee, are designed to respond to the wishes of our forefathers that were expressed during the Constitutional Convention – to prioritize our culture, customs and traditions. Furthermore the necessary changes and amendments to be introduced at the appropriate time would be left in the hands of future generations.
The former Attorney General has also stated that we are in the absolute right time and season to do as our ancestors who drafted our Constitution had forecasted. If you are a foreigner, you will not see the higher expectations and objectives of these changes in the law giving, recognition to our traditional rights and reaffirming the importance of improving the standard of the Lands and Titles Court responsible for the review of our cultural rights.
That is the heart and core of all these developments by Government – valuing our traditional treasures, passed on from generation to generation. How many decisions have been influenced, with the accusation that family treasures have been stolen?
This is the answer, this Government and HRPP, protecting the rights of our people are recommending through Bills now with the Committee.
Honourable Speaker that is the full explanation from Government prompted by the resurgence of baseless publicised opinions that may mislead the country. I am certain Honourable speaker, that despite the differences of opinion, the common goal is to improve our court systems. I know that this is also why those opposing the Bills are doing so, as they are reluctant to move out of their comfort zones with systems that are long overdue for review.
The long term vision of the Government to respond to emerging difficulties as experienced today, is to consider changes for the betterment of Samoa. That is the duty and the mandated responsibility of the Government and HRPP – protecting the rights of people – and we will never, ever depart from our Government’s vision.
These Bills are pathways our Government believes will improve our Courts and rectify the difficulties we have experienced over the years, especially in recognizing our traditional rights, which we live by every day.
There is a great opportunity now for our people to meet the Special Committee to share views and advice on how the Bills and Amendments can be further strengthened. The Special Committee will thereafter submit their advice for Parliament to consider. These are the standard procedures which we must comply with.
As is generally shared, we believe, ‘everything happens for a purpose, in this instance this will help to generate good advice and ideas to build our common goals on. Since the judges of the Criminal Courts have accused Government of treating lightly our Constitution like a game in the waters, I will conclude with an outline of some of the amendments that were made by the HRPP led Government – the party that protects the right of our people – since it started steering Samoa’s ship of state.
Honourable Speaker, in the 1991 – 1996 Parliamentary Term – we passed the amendment to increase the number of Cabinet ministers from 9 to 13 – the nation had grown, our development had multiplied, and the work load needed to be shared for the development of Samoa; as evidence would show. . Since 1962, tremendous developments have been made as outlined below:
• Change to the number of years of a Parliamentary term from 3 years to 5 years – the 3 year term was not long enough to consider long term goals for the future. This is why some governments only produce temporary solutions that will start today and finish just before the next election. Three years only pushes people for short term goals, only looking at the next general election within the three years of the Parliamentary Term; but a Government with long term visions, will look at developments for future generations in 10, 20 years or more; not concerning of the next election, but wider benefits for the next thousand generations in the future.
• Amendments to choosing a Deputy Prime Minister. This was necessary as at the time, no such appointment existed. While I was appointed to such a role, I was often mocked in this House. Whenever I was addressed as the Deputy Prime Minister, the Assembly laughed; it was not a position to be ridiculed but honoured, as in the absence of the Prime Minister, the Deputy PM carries on the responsibilities of this Office. These are not political games; these are serious decisions hence why they were passed in Parliament.
• Amendments to change the retirement age of Judges of the Criminal Courts from 62 to 68 so they have more time to serve with distinction. If years of services are short, judges’ integrity may become compromised. That is how far ahead our Government’s vision is to ensure that independence of the judiciary. The question that comes to mind is do the Judges appreciate that these amendments were tailor-made for them? I suspect not.
• Another amendment, was the removal of the reference “Western” from our original name designation Western Samoa to just “Samoa”. The designation by geographical positioning implies that we were not yet an independent country. In the end the country was simply called Samoa regardless of language used English or Samoan.
• Amendments to Parliamentary seats with a 10 percent quota for Women – this was an important amendment, as it aligns with the development goals of the rest of the world on gender equality. I believe the allegation made that Amendments to the Constitution are like games played in water are reckless and inconsiderate. I stress this was an important amendment to the Constitution.
• Amendments for recognition of Political parties – we appreciate the importance of having political parties, as they encourage the spirit of toiling, innovates development approaches to be recorded in the annals of party manifests and long term plans for voters to consider and decide through their vote, for the Party that will realistically bring about good results that would be beneficial for all. When HRPP became a reality in Parliament, we were ridiculed and laughed at as the amendments to recognize political parties had not been formalised to laws – Political parties are now recognized.
• Unforeseen spendings in Budgets. Since Independence this appropriation has been set at 1.5 percent of the total Budget. We have seen economic growth as well as the frequency of natural disasters that affect development. The Government needs funding to use in times of emergency to provide immediate reliefs to the nation. Hence the amendments to the Constitution were made, increasing unforeseen spending from 1.5 percent to 3 percent of the
total budget. Spending is immediate however audited reports of expenditures will be submitted later to Parliament for the debate on and in-depth discussion of how the moneys were spent.
Honourable Speaker, this statement attempts to respond to the submissions written in English and which have already found an outreach beyond our shores. Because if we do not respond then our Government will be ridiculed and discredited.
Perhaps this was why the letter from the Judges was written in the English language, to disgrace and taint our nation’s reputation from the perspective of other countries that provide development funding for Samoa. Perhaps that is also the reason why some lawyers have claimed that there has been an undermining of the rule of law. I am of the view that the lawyer who said this does not understand the ‘rule of law’ or ‘live in the law’ as this is the foundation and key tenet for democratically governed countries.
Honourable Speaker that is the clarification to further elucidate the significance of this Bill to our nation. May God bless Parliament and continue to provide guidance to all of us so that we can lead our country well and uphold its foundation in God the Blessed Trinity.
Ia soifua ma ia manuia.
