Dear Editor,

I write in response to a Letter to the Editor by the Leader of the HRPP titled “Afega-Leauvaa land dispute resolution”, published in your newspaper on Friday, 19 April 2024. I write to clarify on issues raised therein.

The new Land and Titles Court of Appeal and Review (LTCAR) is established and exists under the current provisions of the Constitution (Article 104C), following enactment of the Constitution Amendment Act 2020 (“CAA 2020”).  The jurisdiction and other matters related to this Court is provided for under the Constitution as well as the new Land and Titles Act 2020 (LTA 2020).

However, at present this Court is inoperable under the current constitutional and legislative provisions. It cannot operate without the appointment of members, including the Chairperson, who must be a retired Judge of the Supreme Court or a retired President. Whilst the Constitution provides that composition of the LTCAR can include any 3 members comprising (1) the Chairperson, (2) a Judge of the Supreme Court, (3) the President or (4) a Samoan Lawyer who is a matai and eligible to be a Judge of the Supreme Court; the functionality of the LTCAR pursuant to provisions of the LTA 2020 requires the appointment of a Chairperson as only he can deal with, preside over and grant applications for leave to appeal to the LTCAR. Presently, there is no person who can be appointed as Chairperson, and Cabinet cannot therefore advise the Head of State to make such an appointment. The current President of the Land and Titles Court, is eligible but cannot whilst holding the Office of President, be appointed as Chairperson.

Moreover, there are several and significant deficiencies, inadequacies and gaps in the current constitutional and legislative provisions, as drafted, following enactment of the CAA 2020 and the Land and Titles Act 2020 (LTA 2020) that hinder, not only the operation of the LTCAR, but affect the operation of the Courts and Judiciary. One of these significant deficiencies and gaps, was the revocation of appointments of LTC Judges that were made under the repealed legislation. This was addressed through the enactment of the Land and Titles Amendment Act 2022 in December 2022. Numerous other issues and gaps have been identified and the Government is working on preparing the necessary amendments to be tabled in Parliament, in order for these to be addressed.  

In the meantime, the Courts and the Judiciary are working through and providing practical solutions to the current and ongoing cases before them, and this remains to be the case whilst and until the necessary constitutional and legislative amendments are made.

We will not and must not proceed on shaky foundations. Common sense, tofamamao and ‘fofo’ must be applied, but such must be applied within the confines of the law.

Matamua Seumanu Vasati Sili Pulufana

Minister of Justice and Courts Administration