(j) The Future Need for District Courts

118. For many years past, Fa‘amasino Itumalo have been appointed for every political district in Western Samoa. At the present time the contribution which the holders of this office are able to make to the judicial work of the Territory is negligible. Those chosen by their page 44 districts to hold the position generally have little knowledge of their powers or of proper Court procedure. They are given very little instruction in their duties and almost no assistance in the holding of proper Courts. As a result, they are seldom anxious to try cases, and the people are reluctant to go to them, because they realize that the Fa‘amasino does not possess the knowledge and experience needed for effective administration of the law. The holder of the position is always a man of repute in his village, and his appointment as Fa‘amasino Itumalo lends a certain amount of added dignity to his position, but it does not make him an effective Judge.

119. It has been one of the duties of the Commission to consider the future of this office. We have had to ask ourselves several questions. How will our recommendations as a whole affect the position of Fa‘amasino Itumalo? Will district Courts still be necessary when the power of trying many offences has been conferred by law on the district and village authorities? If district Courts will still be needed, how can they be made to work satisfactorily?

120. We have reached the conclusion that there will be an important need for some type of Court between the High Court sitting under the Chief Judge or a Commissioner of the High Court and the district and village authorities sitting in their judicial capacity. We believe that such Courts ought to sit under Samoan judges. It therefore has become necessary for us either to suggest means of improving the present arrangement or to put forward an alternative to it.

121. The first matter that must be considered before deciding on the most suitable form of intermediate Courts is that of what duties they will be expected to undertake. We have not conceived it to be our duty to go into any great detail in this matter. That is something which cannot be finally decided till the exact jurisdiction of district and village authorities has been settled. We can, however, indicate in general terms what we believe their place in the judicial system of Western Samoa should be. The first requirement is for some system of appeal placed above the district and village authorities. Once legal recognition has been given to these authorities, it will become necessary to provide by law for some form of appeal so that proper action can be taken when any person refuses to accept the penalty imposed on him, or when a person who has been punished believes that he has been unjustly dealt with. A village authority or an individual must each be guaranteed the right of appeal to a higher Court, so that justice may be made secure. Then, there will be other work for such Courts to do. For example, if a matai believes that he is being wrongly excluded from participation in the fono, he must be able to have the matter investigated before a Court of law, where both sides of the case can be stated and a decision page 45 given. Many Ordinances and Government regulations could also be conveniently administered by Courts sitting locally in the districts. For example, regulations relating to trade could be much more fully enforced if complaints were considered where they arose, instead of being brought to Apia.

122. It will be realized that work of this importance could not be performed by the present fourteen Fa‘amasino Itumalo, working with the present lack of assistance and training. It is therefore necessary to consider possible alternatives. The Commission believes that certain standards must be attained by any satisfactory system. First of all, the Judges must be men of standing, talent, and integrity. To ensure the appointment of the right type of Judges, the position must be seen as one of dignity, and it must be adequately paid. Secondly, it must be made certain that the Judges obtain ample experience and that they are continued in office for long enough for them to make full use of it. Thirdly, all necessary administrative assistance must be given, in order to build up well-organized Courts. This would mean, amongst other things, that the Justice Department would have to train clerks to assist each Judge, supply copies of all laws and regulations which the Judges would have power to administer, and advise generally on Court procedure.

123. With these requirements in mind, the Commission has considered two possible systems either of which could, it is believed, be made to function satisfactorily. Our first proposal is that a District Court should be established in each of the six departmental districts. Each Court should be presided over by a Judge, who should have the same standing and salary, as an Associate Judge of the High Court. We have given careful thought to the manner in which the Judges should be chosen. We consider that the present procedure of nomination by the Fono of Faipule has worked satisfactorily in the past and that it should continue to do so in the future. On the other hand, we are aware that in many other countries it has been found preferable to leave judicial appointments to the head of the State. We consider that appointment by the High Commissioner, after consultation with the Chief Judge, would be an alternative with much to recommend it. We do not wish to commit ourselves finally to one method or the other, because we believe that either would be satisfactory. Of greater importance, in our opinion, is the term for which Judges should be appointed. We believe that the success of the Courts will depend, to no small extent, upon the experience of the Judges. For this reason, we consider that the present term of office for Judges of three years is far too short. On the other hand, there are objections at the present time to making appointments for life, as is done in many other countries. We therefore recommend that appointments should be for six years. When fresh appointments are about to be made at the end of that time, the Chief Judge should be page 46 asked to make recommendations, confidentially, in regard to the best course to take. If he should desire the reappointment of some or all of the Judges, his wish should be given effect to, if possible, by the appointing authority.

124. By limiting the number of Courts to six, and giving each Court jurisdiction over a whole departmental district, Judges ought to be assured of a sufficient number and variety of cases to give them wide experience. Such a breadth of experience is, in our view, highly necessary to a Judge. In addition, however, we consider that every Judge should have direct experience of working with the Chief Judge in the High Court. Those members of the Commission who have had experience as Associate Judges wish to record the fact that they obtained the greatest benefit from sitting with the Chief Judge and from attending the private discussions which the present Chief Judge and his predecessors have been accustomed to have the Associate Judges. The commission, as a whole, wishes to endorse their opinion, and desires to recommend for consideration that each of the six Judges of the District Courts should take turns in acting as an Associate Judge in the High Court for a period of perhaps six months. During his absence from his district, his place could probably be taken by one of the three Associate Judges normally sitting in the High Court.

125. As has been stated earlier, we believe that each Judge should have a trained clerk to perform all necessary clerical work for him, including keeping the records of the Court. During all sittings of the Court a member of the Police Force stationed in the departmental district should be present to maintain the order and decorum needed to protect the dignity of the Court. It is neither possible nor necessary at this stage to go into detail as to the way in which District Courts should conduct their business. Our view is, however, that the Court should sit at stated intervals in each section of the departmental district. Proper notice should be given in advance of each intended sitting so that all those with matters to bring before the Judge coujd have an opportunity to prepare their cases fully.

126. As an alternative to the establishment of six District Courts, we have another proposal to put forward for consideration. It is that the present number of Associate Judges of the High Court should be increased from three to perhaps six or seven. The Associate Judges would be given jurisdiction in regard to all the matters which would, under our first proposal, come before the District Courts. Parties of two Associate Judges, accompanied by a clerk and a police officer, would go on circuit through each district once a quarter. Courts would be held in as many places as necessary, for which preliminary arrangements would be made by the police officer stationed in the district concerned. The advantages page 47 of this alternative scheme are that less extensive reorganization of the present system would be required and that the Judges would have the benefit of more regular contact with the Chief Judge. At the present stage of development, such regular consultation with the Chief Judge would be of great assistance to the Judges. They would be able to withhold decision, also, in difficult cases till they had an opportunity to place a record of the case before him and obtain his opinion. It might also be desirable to provide that, in certain matters, the hearing should be conducted by the Associate Judges but the decision be taken jointly by the Chief Judge and themselves.

127. In conclusion, the Commission would point out that either of its proposals regarding the position of Samoan Judges would require amend ment of the Samoa Act, 1921, by the New Zealand Parliament before effect could be given to it. In the event of the Government accepting the first proposal, it would be desirable to provide for the constitution of District Courts separate from the High Court. This would also involve the institution of a system of appeal from the District Courts to the High Court. If the second proposal were to be accepted, it would merely involve the institution of a new form of jurisdiction within the existing framework of the High Court.