Changes won't fix L.T.C. problems, Meleisea warns

A Samoan historian and academic says without a review of and replacement for the principles that guide decision-making in the Lands and Titles Court (L.T.C.), the challenges it faces will continue with or without the passage of three major Bills in Parliament.

Leasiolagi Dr. Malama Meleisea, of the Centre for Samoan Studies at the National University of Samoa (N.U.S.) said the proposed bills and the new structure for the L.T.C. may cause more official and political interference and not less.

He said the main problem facing the L.T.C. remains its poor record at addressing change in Samoan society, and how those changes affect the fa’aSamoa. 

“The Land and Titles Court has to make uncomfortable and often confusing attempts to reconcile the mandate of the Court to handle land and titles disputes according to customs, when there is considerable public disagreement about the customs are,” he said.

The Constitution Amendment Bill 2020, the Lands and Titles Bill 2020, and the Judicature Bill 2020 were tabled in Parliament in March, and are currently undergoing a Select Committee hearing process before they are scheduled for their third reading.

Together they will create an entirely autonomous L.T.C. The court will severed from the existing judicial branch and remove the power of the Supreme Court to oversee judicial review of the L.T.C. and for unsuccessful parties to appeal its decisions to the Supreme Court, currently a possibility only when a decision is alleged to have breached fundamental rights enshrined in the Constitution.  

The L.T.C. would be a parallel and independent judicial structure, including its own High Court and Court of Final Appeal and Review.

Leasiolagi was a Judge on the L.T.C. from 2011 until 2012 and has written considerably on the matter. 

He said the problem with the Court not keeping up with with the modern day consensus (or lack thereof) on custom when it comes to land and titles means the Court cannot be effective, nor trusted.

“Increasingly the Judges, the court officials and the parties to disputes face a mixture of principles; those of Samoan culture, Christianity, human rights, and laws such as the Village Fono Act and others,” he said. 

“It is difficult to see how the proposed amendments will solve these recurrent issues.   What is needed is a clear set of principles for decision-making that are known to the judges and to the public.

“It is not restructuring that is needed, but more resources and better training for Judges and court officials.”

And with so many changes big and small across Samoan society, with differences across the country, it will not be a fast or easy process to agree to contemporary guiding principles for how the court and its judges should make decision.

As an inquisitorial court, the L.T.C. does not rely on nor generate a body of case law or precedent from which to base its decision making on.

Leasiolagi said a good starting place would be to look at the work of former Chief Justice and former President of the Land and Titles Court Justice Marsack, who in 1958 compiled a guidebook of sorts, as well as host workshops on Samoan societal changes and their implications for the court.

Justice Marsack, who was the longest serving president of the L.T.C. at the time, was able to outline many customary principles, though some with “questionable accuracy,” Leasiolagi wrote in his DATE book The Making of Modern Samoa. 

But he was “unable to present a clear statement of the priority with which the court should accord these principles,” the text states.

“Without a comprehensive guidebook of principles, the problems the court faces will continue,” Leasiolagi continued.

“The current bench book which is issued to all the judges of the Land and Titles Court after their appointment is useful but it only related to legal procedures.”

Leasiolagi said the 2016 Special Inquiry into the L.T.C. revealed genuine problems with the court and its judges, but insists a new structure or separating it from the Supreme Court will not address any of them.

“The dissatisfactions with the Land and Titles Court are valid, but have nothing to do with its institutional structure,” he said. 

“Even if separation occurs, it is hard to argue that separation and the suggested changes to structure and procedures will preserve Samoan customs and traditions.   

“It could be argued that the new structure may increase official and political interference in the court’s work – the very problems the new structures purposes to resolve.”

Some of the major changes in Samoan society that have led to changes in Samoan custom include the introduction of Christianity, a larger population and growing population of Samoans who live outside of traditional villages or abroad.

Leasiolagi said the centralised Government system has also “eroded” the authority of village councils and village institutions.

“This raises the question of what fa’asamoa will the proposed constitutional amendments preserve or protect?

“What will the establishment of a new Land and Titles Court separated from the current judicial system achieve?”

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