Monday 17th June 2015
Members of Parliament met on Wednesday, 17th June at 9:30am at the Maota Tofilau Eti Alesana for their scheduled Pre-Sitting Briefing on three Government Bills proposed for introduction on Tuesday 18th June 2015.
Pre-Sitting briefings have been adopted by Parliament to enhance the quality and relevance of debates. This is an opportunity for Members to hear first hand from the heads of Ministries and Offices sponsoring the Bill, on the policy frameworks and the objectives of the Bills or Amendments Bills, before the Bills and Amendment Bills are tabled and introduction proper in the Legislative Assembly. Representatives for the respective Ministries responsible for these Bills deliver the briefings for the Parliamentarians.
Name of Bill: National Prosecution Office Bill 2015
Presenter: Attorney General, Tuatagaloa Aumua Ming Leung Wai
The Attorney General was assisted by the Legislative Drafting Advisor, Rupeni Nawaqakuta and one other legislative drafting officer of the Office of the Attorney General.
The objective of the National Prosecution Office Bill 2015 is to provide for the functions and powers of this new constitutional office for Samoa, the National Prosecution Office. The Constitutional Amendment Bill (No.2) 2015 on which the Members of Parliament were briefed in May 2015, paves the way for this Bill. The constitutional amendments in that Constitutional Amendment Bill (No.2) 2015 amend Article 41 of the Constitution to allow for the establishment of the National Prosecution Office. It effectively removes the criminal law and prosecutorial functions from the Office of the Attorney General and establishes the National Prosecution Office under which the prosecutorial functions will transfer. The Office of the National Prosecutor will effectively take over all criminal prosecutions in Samoa, which are currently undertaken by the Office of the Attorney General and the Police Prosecutors.
The National Prosecution Office Bill 2015 provides amongst other matters the functions, powers and duties of the National Prosecution Office, administration and finance, the appointment and removal of staff and secondment officers, and the code of behavior and rules of employment. The head of the Office is the Director of Public Prosecutions (DPP). One other significant feature of this Bill is that it ensures that no arm of Government influences the Director of Public Prosecutions in carrying out its prosecutorial role.
The Hon Members sought to clarify a number of matters on which the Attorney General presented. These include that the term of office of the DPP is 6 years (provided for in the Constitutional Amendment 2015); that the DPP is independent (clause 9(1)(b)) but is also subject to consultation with the Attorney General (clause 14); the functions of the Police Prosecutors Division of the Ministry of Police will be transferred to the DPP and the National Prosecution Office. The Attorney General noted that this will effectively allow for the employment of returning law graduates seeking employment. The Bill separates the functions and duties of the DPP from the AGO, leaving the DPP to make his/her own decisions. Some Members were of the view that the DPP should have the same terms of office as the Attorney General. The Attorney General explained that this was not the intention of the Executive, that while the DPP enjoys independence and is subject to no one, the Attorney General holds office at the pleasure of the Executive for a 3yr term. Whereas in other jurisdictions the DPPs may be responsible to the Ministries of Justice or stand as independent offices, in Samoa the constitutional offices such as that of the Attorney General and DPP are under the portfolio of the Prime Minister. The DPP cannot be an office under the Office of the Clerk of the Legislative Assembly (OCLA) as there must be separation of powers between Executive functions and Parliamentary functions; OCLA is also a constitutional office established only to serve the functions of the latter.
Given that the DPP will undertake prosecutorial functions, as investigating officers, is the police’s independence still there in laying, filing and finalising charges? The Attorney General responded in the affirmative. This function is still that of the Police and has not passed to the DPP. On the question of who monitors the DPP, the Attorney General answered that the DPP may be removed or suspended on any of the grounds in clause 11, which includes failure to perform the constitutional functions to a requisite standard. A Tribunal set up by the Head of State on the advice of the Prime Minister is tasked with making recommendations relating to the suspension or removal of the DPP.
Can the DPP bring back cases of the past? The Attorney General responded that the DPP cannot prosecute matters already completed. For those criminal prosecutions not completed at the time this Bill is passed, under clause 25, any current criminal proceedings instituted and conducted for and on behalf of the Attorney General or the Police are to continue as if they were instituted and conducted by the DPP or the National Prosecution Office under this new Bill.
The Members were assured that overall; this Bill is to ensure the promotion and maintenance of the rule of law, good governance and transparency in Samoa.
Name of Bill: Broadcasting Amendment Bill 2015
Presenter: Interim Regulator – Unutoa Auelua Fonoti
The briefing of the Bill was conducted by the Interim Regulator with support from the Legal Manager of the Regulators Office Cecily Faasau.
The Broadcasting Amendment Bill 2015 amends the Broadcasting Act 2010 to streamline provisions relating to and unique to telecommunications services, separate from broadcasting services. The main amendments provide for what qualifies as broadcasting services as opposed to general telecommunications services; removes the Broadcasting Tribunal and makes the Tribunal under the Telecommunications Act the same tribunal to hear Broadcasting grievances; and reinforces the responsibilities of the Regulator under the Telecommunications Act.
The Members sought to clarify a number of matters to which the Interim Regulator responded. The broadcasting and telecommunications services should as much as possible reach all areas of Samoa. There was assurance that this Bill does not impact negatively on the Electric Power Corporation (EPC) and the telecommunications laws. This Bill does not contradict competition laws; the Regulators Office is governed by and will act on the competition requirements under Samoa’s own broadcasting and telecommunications laws. The word ‘dominant’ is removed from the Broadcasting Act because that obligation is not met under the current environment; other parts of the Broadcasting Act can continue the services. The Interim Regulator urged the Members to consider the benefits of this Bill to improve the broadcasting services to the country.
Name of Bill: Village Fono Amendment Bill 2015
Presenter: Fuimaono Beth Onesemo Tuilaepa, CEO MWSCD
The briefing of the Bill was conducted by the CEO of the MWSCD.
The objectives of the Bill include strengthening the role of the Village Fono and to ensure that the exercise of the powers of the Village Fono is in line with the Constitution. The Bill grants specific powers to the Village Council to impose curfews and banishment penalties. It limits the Village Fono jurisdiction from applying to those residing on government land and leasehold land, but does require those residents to be respectful of village rules. One other significant amendment is that the Bill empowers the Village Fono to make its own village rules and offers the option of registering those rules with the Ministry of Women, Social and Community Development, in order for such rules to be recognized by the courts. However, registration of village rules does not automatically make such rules constitutionally compliant. A further significant amendment is that where a person wishes to build a church, or shop in the village that person must first consult with the Village Fono.
Members raised several issues inclusive of the following. Why does the Village Fono interfere with building activities? The CEO responded that consultation with the Village Fono on building activities relates only to buildings for community purposes such as shops, churches etc; the buildings commonly accessed and used by the villagers. The Village Fono has no jurisdiction over those on government and leasehold land, this is correct but there are also restrictions placed on those residents to respect the rules of the village. What if the village rules contradict with individual rights? The CEO responded that the Constitution is the supreme law and therefore the village rules will need to be amended. Legal assistance may be sought by the Village Fono from the Ministry (MWSCD) and lawyers to assist with developing village rules that are constitutionally compliant.
What if both individual rights and Village Fono objectives are equally important to the village? Which would prevail? The CEO said this will be left to everyone’s own interpretation, and that individual rights are also not absolute. What if members of the Village Fono have personal issues (conflicts) with the owner of a proposed new shop?
The Hon Speaker who is also the Chairman interposed that more time will be permitted for questions to the relevant Select Committee (at that point in time) on this very important Bill. The Members generally agreed on the importance of this Bill to the accommodation of individual rights and customary rights which may or may not be reflected in the village rules of the villages of Samoa.