Court backlog belies simple fix

There is much to agree with the criticisms made of the judicial system by the Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, on the floor of Parliament on Thursday. 

Tuilaepa neatly summed up families’ frustration when cases fundamental to the livelihood remain unresolved: “Justice delayed is justice denied.

“The public are waiting on rulings over what [] precious yet was taken from them”. 

In pointed remarks seemingly aimed at the Land and Titles Court (L.T.C.) Tuilaepa cited cases being delayed by up to ten months. 

In fact he was likely even understating the problem. 

Some plaintiffs are awaiting resolutions dating back to before the appointment of the current L.T.C. President in 2016. 

But the issue of a backlog is not limited to the L.T.C.; it is a problem for the broader Samoan judicial system.

Examples of extreme delays abound.

In the middle of last year a New Zealand recruitment company seeking a civil claim against the Electric Power Corporation was finally awarded $30,000 more than two-decades after their business dealings with the state-owned utility went sour. 

The former Chief Justice of the Supreme Court, Patu Tiava'asu'e Falefatu Sapolu, selflessly requested supplementary time on the bench after he stepped down solely to help address a backlog of cases dating back to the 1950s.

A clogged judiciary impacts not only Samoan families but is a roadblock to foreign investment and job creation. 

No multinational would consider making a serious investment in a country where they were not reliably able to seek legal recourse in the event of a dispute - or have to wait 20 years to see its resolution. 

This simply has to change. 

Judges who have inherited backlogs are also seeing caseloads increase rapidly. 

Samoans are becoming conscious of the opportunity to resolve disputes through formal legal means not personally.  

The recent recruitment and appointment of new Judges is one approach to solving this problem.

The Cabinet and Ministry of Courts and Justice Administration have made significant recent progress in appointing seven new L.T.C. Judges and a Supreme Court Justice.

The risk, of course, of speedily recruiting jurists is that Samoa could be trading decision-making speed for quality. Only in the fullness of time can the success of this recent recruitment drive and balancing act be seen. 

The Prime Minister did the country a service on Thursday by using the floor of Parliament to bring the issue to the forefront of national debate. 

But this is where we part ways with Tuilaepa. 

“There should be amendments making it compulsory for Judges to deliver rulings within three months: if not, then you must resign,” he said, when unveiling his proposed solution. 

While Tuilaepa’s diagnosis of the problem is correct, his proposed remedy is not.

The finely balanced relationship of checks and balances between the branches of Government is something we should treat very lightly. 

Placing a time-limit on judicial opinions is far too blunt an instrument and one that is not likely to solve the problems it sets out to solve. 

In Australia, where there have been concerns about the speed at which Federal Court decisions are handed down a three-month target for decision making has been set. But it does not have the force of law. 

But the productivity of Judges there (who are immeasurably better resourced than their) when arriving at decisions varies greatly. Analysis by the Australian Financial Review found some judges write their decisions at an average speed of 1300 words per day; others are as slow as 30.

It’s also unclear how a newly imposed target would help address the backlog. When jurists attention shifts to dealing with new cases quickly, will there be time to address long standing backlogs?

The issue of a judicial backlog is deeply complicated not unlike judicial reasoning itself. This should not mean that the Courts are beyond scrutiny. They must improve. 

But problems that in some cases, date back half-a-century will not be solved by a one-size-fits-all amendment. 

Our preference would be for the Judicial Complaints Commission to investigate Judges who are truly thought to be dragging their feet on decision making. This would preserve judicial independence and account for the subtleties of law with which Judges must grapple. 

Indeed, punitive measures should not be seen as the only means by which better judicial outcomes can be achieved. 

The Acting Chief Justice, Vui Clarence Nelson, and the C.E.O. of the Justice Ministry, moliei Vaai, have shown commendable open-mindedness in enrolling new Judges in professional development programmes and modernising court procedure through increased digitsation of records. Culture is too often overlooked when evaluating the judiciary’s performance. 

It is hard not to feel for families, especially those who have been wronged, waiting for justice to be dispensed. 

But rearranging the foundations of our Government is harder still.

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