Page 10 - IB_November2020

Cover Cover

A NEW

CHAPTER

FOR FIAME

By Samantha Magick them are diverse, and include the Ombudsman Maiava Iulai
Toma, who says it will have “injurious consequences” on
“It’s very liberating. I haven’t felt this excited about poli- fundamental freedoms, judges and Supreme Court Justices,
tics for a long time,” says Samoa’s former Deputy Prime Minis- lawyers, a former Attorney General, and several senior matai
ter, and now independent member, Fiame Naomi Mata’afa. (chiefs). Former head of state Tui Atua Tupua Tamasese Efi
In September, Fiame resigned from government and ended says he is concerned the bill will enable the sale of land to fill
her affiliation with the ruling Human Rights Protection Party government coffers and fund government debt and infrastruc-
(HRPP) over three controversial bills that would set up an ture projects.
autonomous Samoan Land and Titles Court. It means she will The Samoa First and Samoa National Democratic parties
contest the April 2021 election with another party for the first have called for the bills to be delayed and the Samoa Law
time in her political career. Society has been vocal in its criticism of the Bill. There has
The bills at the heart of her decision have fomented politi- also been international criticism from the New Zealand Law
cal turmoil in Samoa all year. The Judicature Bill 2020, Lands Society and the International Bar Association.
and Titles Bill 2020 and the Constitutional Amendment Bill But it is within the ranks of the ruling HRPP that the bills
2020 would together create an autonomous Land and Titles have caused the most disruption. Former parliamentary
Court (LTC) which would operate in parallel to the existing speaker and cabinet minister, La’auli Leuatea Polataivao
criminal and civil courts, and have equal standing to those Schmidt quit the party in dissent. Another MP, Faumuina
courts. Wayne Fong, was sacked for his opposition.
The bills would give official recognition to village coun- Fiame’s concerns over the bills are by now well docu-
cils says Samoa’s government. Under the changes, the Land mented. She is concerned that it will establish two court
and Titles Court system would have its own court of appeal systems and two authorities, creating “so much possibility for
(rather than appeals being directed to the Supreme Court as conflict, for grey areas and so forth. I don’t think it has been
is currently the case), and would have “supreme authority well thought out.” She is also worried that there is no Samoan
over the subject of Samoan customs and usages”, including jurisprudence to base a new court and system on.
title succession. The government-appointed Samoa Judiciary “There is a concern that [with] the establishment of this
Service Commission would also have the power to dismiss new court, there are no legal foundations, and potentially,
judges under the changes, creating concern that this leaves what is happening is that the court will be given almost an
room for political interference. unfettered power to determine issues of lands and titles
The Lands and Titles Court was first recommended during and now also custom and usage, which essentially speaks to
a 2016 inquiry into the functioning of Samoa’s courts, and in people’s behaviours,” she told Islands Business.
particular the backlog of cases relating to lands and titles. A “The third concern is that the current government, because
November 2016 ‘Asian Development Bank Report and Recom- of its numbers, they have a very strong hold on two of the
mendation of the President to the Board of Directors’ stated government’s pillars, on the executive and the parliament,
that “poorly defined property rights” was amongst the barri- and what we’re seeing with the establishment of these split
ers to private sector development. More than 80% of Samoa’s system, in the court system, is that the executive will have
land is customary owned. further influence into the law.”
The President of the Land and Titles Court, Fepulea’i Atila Prime Minister Tuilaepa Aiono Sailele Malielegaoi, Samoa’s
Ropati supports the bills, however the forces arrayed against Prime Minister of more than two decades, has said that his op-

10 Islands Business, November 2020