Independent Land and Titles Court push questioned
A proposal to separate the Land and Titles Court (L.T.C.) from the rest of the judicial system has one international anti-corruption lawyer asking what is wrong with Samoa’s Supreme Court.
Robert Wyld, an anti-corruption lawyer working in Australia, has said separating any court from a unified judicial system is highly irregular and needs exceptionally good reasons.
The Constitution Amendment Bill 2020 that proposes the restructure does not have them, he argues.
Mr. Wyld was the Co-Chair of the International Bar Association’s Anti-Corruption Committee for 2015 and 2016.
The Bill to make the L.T.C. independent was tabled before Parliament alongside two other new Bills earlier this month. Under the Bill the L.T.C. would be given an independent High Court and Appeals Court.
Under the current state of emergency, it is not clear when it will be up for discussion again.
The Law Society of Samoa is reviewing the Bill and intends to make a submission to the Special Parliament Committee which will consider it.
The proposal, among other things, would remove the option to appeal Land and Titles Court decisions to the Supreme Court. Mr. Wyld said it is not clear why.
“Is it because the court is too independent? Is it because the court is too slow, because it might give decisions that are contentious?,” he said.
“What is so wrong about a decision to your final court? Cannot the Supreme Court organise itself so there is a fast track process for these types of claims?”
He questioned whether reasons intimated about the decision were good enough to justify the effort and expense of creating a new court system.
While he did not feel there were any inherent risks in separating the L.T.C. court from the judiciary, he said the process of appointing Judges and the independence of the registrar and chief executive and the quality of the review process and of the Judges will ultimately reveal any issues it poses.
“There is a threshold question of why are you removing the Supreme Court, what is the problem with the Supreme Court?,” he said.
Mr. Wyld, who has worked in courts in Asia and the Pacific, said he could not think of any courts in the region that do not answer to the highest court authority in their country.
There are however, plenty of successful examples of specialist courts that handle unique types of cases like the L.T.C., but remain beneath the highest court. A properly resourced Supreme Court should be able to manage all types of cases in good time, he said:
“It seems somewhat expensive. Whether it’s really necessary and whether they can’t use the existing system, I don’t know.
“If they appoint two new Judges dedicated to the task of managing these cases, [they will] do it on an expedited basis [...and not] don’t allow long delays.
“I think in that way you could quite easily empower the existing courts to do that in a much more productive way than creating potentially another layer of the same thing.”
Debate around the new court, contained within the Constitution Amendment Bill 2020, included the claim that a specialist court would speed up dispute resolutions.
A Commission of Inquiry held on the work of the L.T.C. in 2014, responding to numerous complaints about the court, also informed the proposed system.
But Mr. Wyld said that is not necessarily a good enough reason.
“Why can’t the existing structure, for example, have separate divisions that focus on these cases? If there are enough of them, you will have Judges who deal with them all the time, they come specialised and the parties know their views, and if they are respected they will be respected like any Judge,” he said.
Also under debate was whether L.T.C. Judges should be under five year contracts instead of no contract, an idea raised by Member of Parliament Faumuina Tiatia Liuga.
That concept raises a red flag for Mr. Wyld. Common law and civil law practice has been for Judges to typically have indefinite terms, subject usually to illness, age or a breach of the law.
An independent committee tasked with ruling on Judges’ bad behaviour would make recommendations to Parliament, who would typically have to vote with a two-thirds majority to remove a sitting Judge.
“The one thing that struck me as puzzling and as a matter of principle a little troubling, is the notion that you start hiring judges on five-year contracts and you scrutinise them,” Mr. Wyld said.
“The problem with that is that you are going to start politicising the judicial system, even if it’s just for this court, and make those judges very sensitive to Government’s who hire, fire and pay them as to whether they should say the right thing.
“For the rule of law and for the independence of the judicial system, even this new one, I think it’s very important that judges not only are seen to be independent but are in fact independent.”
Contracts risk making judges susceptible to Government pressure or influence, he continued, such as the threat of not renewing their contract if rulings are not along party lines.
But if Judges are to be appointed for life, how they are appointed and who they are critical, he said. The appointment process needs to be trustworthy, and trusted by the community.
“You have to have a sense of independence and a community sense that the people who are appointed are the most qualified, the most appropriate and they represent the community.”
What’s more, all Judges should be subject to the highest court of final appeal, and not to stand alone in their own courts.