Lawyer breaks down L.T.C. Special Inquiry report
All judges should be paid consistently, there should be time limits on legal decisions and restructuring the Land and Titles Court (L.T.C.) will not take away the complaints nor the backlog it suffers from, according to an analysis report.
In a response to the investigation into the L.T.C. by a Commission of Inquiry in 2016 Wellington-based Samoan lawyer, Fa'alagilagi Tuimavave, breaks down the 30 recommendations and their positive and negative implications.
Ms. Tuimavave, then a student at the Victoria University of Wellington published her response to the Committee’s report in 2017.
A major issue raised in her report is that L.T.C. judges are paid out of Legislative Assembly funds while Supreme, district and civil court judges are paid from the treasury, or the national budget.
This means salaries are inconsistent across the judiciary, and also allows for influence on the L.T.C. judges by the Legislature which decides their salaries.
“It appears there’s several parties involved in processing the LTC judges’ salaries and the justification for this involvement is unknown,” Ms. Tuimavave said, recommending judges are paid consistently across the different courts.
The matter of judge salaries has not been factored into the new bills.
On the proposal to restructure the courts, a summary of the 2016 Report recommendation reads: “Officially recognise the Judicial Privilege of the L.T.C. which handles matters on our customary land and titles to be consistent with the recognition awarded the Supreme Court.”
The report states that L.T.C. judges don’t have the resources to do their job properly, to which Ms. Tuimavave states a restructuring may only increase the court’s workload, not decrease it.
“A change to the current structure will only continue to add to the backlog because time must be made available for the move, the learning of the new system and the reestablishment of processes,” she states.
“It will be timely and costly and will not be contributing to reducing the amount of grievances brought against the L.T.C.”
She points out the 2016 report recommended the Supreme Court retains the role of Judicial Review when it comes to the fundamental rights enshrined in the Constitution. The recommendation summary reads:
“That the Judicial Review persevere as part of the Supreme Court to adhere fundamental rights of all Samoan citizens.”
What may reduce the workload and how long cases take is a more detailed set of principles for the L.T.C. judges to follow, she said, recommending a specialist institution be set up to develop these principles in consultation with the nation.
This is especially important if the L.T.C. is going to have its own Court of Appeal and Court of Final Review.
“This development of expertise and creation of principles can eventually become the basis for L.T.C. decisions which will ensure certainty and transparency and ensures that the Court of First Instance does not overrule its own previous decisions.”
“It appears that missing from the Committee’s report, is a discussion of how L.T.C. judges in fact construct their decisions after presiding over disputes regarding authority over land and the right to register over authority over land,” Ms. Tuimavave said.
Because the substance of custom is not written down, and there is yet to be a national discussion on whether it should be written down, the work of land and title grievance decision making is a hard one.
The compromise of the L.T.C. has been to employ respected senior matai to judge on the L.T.C., who can make rulings based on custom and be respected by parties even when they are decided against in a case.
The 2016 report does recommend Samoan judges should have continuous capacity building and training on the rules and procedures of their work but does not speak specifically to the matter of custom for judges.
It further suggests there should be a research division in the court, including two officers with a degree in Law to investigate the history of rulings related to any case under review, and maintain the court case records.
But to really address the backlog at the heart of so many L.T.C. complaints, Ms. Tuimavave said there needs to be a balance struck between “reasonable” time for a judge to write their judgement, but also a fair amount of time for parties to have to wait.
When former Chief Justice Charles Croft Marsack, who at the time was also the President of the L.T.C. was at the helm, he allowed judges just one to prepare their judgements, she said.
“If this guarantees justice and timely decisions, then perhaps judges should be required to follow such an approach.
“There is at least one State in the United States that enacted a legislation saying “a Judge’s salary will be stopped if there are outstanding reserved judgments older than six months.” Measures such as this might be needed if we are to guarantee written and verbal court rulings are delivered in a timely fashion,” she said.
The Land and Titles Bill 2020 proposes a judgement should be delivered within three months of the last date of proceedings and that the written decision should be released no later than 10 working days since that date, rendering the decision complete.
A core problem at the heart of the report is that the president and judges of the L.T.C. did not participate nor were summoned to participate in the special inquiry.
The president and judges chose not to participate, but the special committee chose not to have them “summoned” to speak on their court.
According to the Committee, they did not use their Parliamentary privilege to summon the president and judges out of cultural respect.
“This conflict comes down to these two powers maintaining their positions without due regard to the contribution they could make to improving the operation of the L.T.C.,” Ms. Tuimavave wrote.
“The judiciary’s abstention is a demonstration of them exhibiting and promoting ‘high standards of judicial conduct so as to reinforce public confidence which is the cornerstone of judicial independence’.
“However, this same demonstration would fail if the judiciary, responsible for adjudicating disputes pertaining to customary land and title issues, did not assist in providing solutions for improving court processes and resolving public grievances.”
Ms. Tuimavave said their absence from the inquiry meant the public had less opportunity to understand the decisions and workings of the L.T.C. judiciary and the system which may have helped them trust it more.
Ms. Tuimavave graduated from Victoria University of Wellington in 2015 with a Bachelor of Laws and Bachelor of Arts majoring in Samoan Studies and Cultural Anthropology. She gained her Master of Laws in 2018 and has been a practicing lawyer since.