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| High Court of American Samoa |
What is the structure of the judiciary in American Samoa, where did it come from, and why did I hint at a comparison with medieval feudalism? The analogy isn't perfect, but it comes pretty close.
Last installment I talked about a legal system and a society into which it brings foreign concepts. I also noted that the legal system is the last major area in which the Secretary of the Interior retains control. The short answer is that the legal system here came into being in the early 1960's when laws creating it were passed by the local legislature (the Fono) and approved by the Interior Secretary. Since the Fono know very well that he wouldn't approve what he didn't want, they put into place a system that he would OK - and that was something modeled upon the US system. Being new, it had to be built from the ground up. Thus was an adversarial legal system imposed upon a society which, for thousands of years, had cultivated mores and methods of handling controversies by compromise and apology, and avoiding conflict at almost any cost.
Feudalism was the default system of government back in the Middle Ages. In fact, in one form or another, it was the default form of government all across the world. At the top was the King. But the King couldn't run an area of any size all by himself. So he would give parts of it (a "Fief") to a variety of other nobles, to run those parts for him. Those other fellows had complete control over their fiefdoms; just remain loyal to the King and the noble could do as he pleased in his fief. He could run it, well or poorly; benign or oppressive. He owned the land and the people. There was no appeal, no alternative, for the ordinary guy who may not be happy with how the Lord dealt with him.
Fast forward a few centuries. Imagine a system where a single individual ran an entire branch of government more or less as he chose. This person could hire those people he wished, and terminate them at his will. He can make the rules and apply those rules (or not) as he saw fit. He could select the "knights" who served at his court, and banish them at his whim. He could punish knights and peasants for any perceived slights, disobedience or misbehavior. There was no effective way to challenge or control his authority; when he makes a ruling or an order, there is little or no recourse should someone disagree.
Welcome to American Samoa. As I noted in an earlier post, Congress has the power to govern here, but has not done so. The Secretary of the Interior may nominally be in charge, but he's a long ways away and has too many other things to worry about. The fiefdom is the Judicial Branch in American Samoa. Here is the structure; no matter who fills any particular role in it, the structure dictates how it is run. Until this year (more on recent events down further) the Secretary appointed a Chief Justice of the High Court and an Associate Justice. The Chief Justice has, by statute, complete control over the Judicial branch of government (I'll reference sections of American Samoa Code Annotated) (see A.S.C.A. 3.0102). The Governor appoints the associate and district court judges upon his recommendation; and the Chief Justice controls their assignments (A.S.C.A. 3.1004; 3.1005; 3.1006; 3.1010). He has complete hire/fire control over all Judicial employees - clerks, marshalls, probation officers, reporters, everyone (A.S.C.A. 3.0205; 3.0307). All remain employed at his pleasure. The Chief Justice controls the courthouses. He also controls the lawyers who practice here. Only the Chief Justice can admit attorneys to the Bar here, and he can disbar or sanction them (A.S.C.A. 3.1002(d)). He also makes the Court Rules (A.S.C.A. 3.0242; 3.1002(c)), and of course as presiding judge he decides what they mean and if they are actually to be followed. He has the power to punish unilaterally for contempt, which is as he defines it (A.S.C.A. 3.0203), with fines and/or jail time. The Associate Justice (an Interior Secretary appointment) is the only independent position in the system, but even then his assignments, courtroom and staff are controlled by the Chief Justice. This structure gives whosoever becomes the Chief Justice a significant, and in many cases dominant, degree of the legal authority over every person connected to the judicial system. He becomes, de facto, the virtual Lord of this realm. The analogy with a medieval fiefdom is uncomfortably close to present reality.
What about appeals? Where do you go if you believe you have been wronged by the Court? There is an Appellate Division. An appeal would be heard by of one of the other local justices and, until recently, two US judges who are assigned by the Interior Secretary to come out here and sit as appeals court judges. These are usually federal District Court or Circuit Court judges from the USA. This procedure occurred about every two years; the panel was named, they came here for a week or two and heard arguments on the cases accumulated for appeal, then departed to issue decisions later. This is, or was, the only independent check on the judiciary here - if a party was sufficiently aggrieved to file and argue an appeal, eventually it would get heard by a panel where the off-island judges could be the decisive majority, if they voted together. So, belatedly at least, major errors had at least some small chance of getting corrected.
Last year, however, the powers that be have acted to increase the number of Associate Justices to 3. Now almost all appeals are to be handled within that group. In fact, they simply renamed two existing judges to be Associate Justices; their regular assignments and other duties continued unchanged. All justices have normal trial assignments, so all are subject to being appealed. Now, for example, if the Chief Justice tries a case that is appealed, the other 3 local Associates will decide that appeal. Nothing goes to independent judges; no one of authority off this island has any say in the matter. This was sold as a cost measure to save the expenses involved in bringing US judges here. I believe also that the elimination of any outside scrutiny of what happens here in these courts was far from an accidental by-product. What it means in reality is that the same small circle of 4 people (Chief Justice and now 3 Associate Justices) will decide among themselves whether one of their number made a serious error. Anyone want to place bets on how often a case will get reversed? My thought is that it means bad decisions quickly, instead of better decisions slowly. Me, I'd take the latter anytime. Hence my conclusion - there is no effective oversight or appeal.
A word on the Associate Judges (not the Associate
Justice(s); the Associate
Judges are a different position). There are 5 or more Associate Judges; not necessarily lawyers, but all are titled men, two of whom sit alongside the Chief Justice and Associate Justices during cases. A big part of the American takeover of Tutuila Island was a treaty obligation to preserve Samoan land ownership, and other customs. The Associate Judges are all Samoan, and are there to maintain the Samoan point of view. They rarely participate while the case is in court, although they have a limited right to do so. All rulings during court come from the Justice in charge. The Associate Judges do participate in some decisions, although the Justice controls and can override both Judges if he wishes (A.S.C.A. 3.0231). The only decisions in which the Associate Judges have a real vote are cases involving the granting of titles, an important concept in Samoan society. My impression, from criminal cases only, is that the Associate Judges' main role is in sentencing; their opinions may help sway the main Justice. But this isn't necessarily any benefit for the accused person; Samoan society can be quite harsh upon those who cause trouble.
Such is the structure of the judicial system here. Note that I made no reference to the persons filling these positions. My experience is that the judges here are conscientious and quite capable as judges. The problems, and there are problems, to my mind are rooted in the outmoded structure here, not so much the individuals filling these positions. But because of the structure, the individuals do matter - perhaps excessively.
I think that having an entire branch of government dominated and in effect controlled by one person is inherently a poor system. Our judiciary in the USA is decentralized. Judges are independently appointed or elected, few or none owe their position or working conditions to another. A state supreme court may administer parts, and even much, of the legal system, but that Court will have many justices (7 in Minnesota) with equal authority, and a majority rather than one person controls. Even a chief justice of a state supreme court has little real power by himself, he is but a single vote on his Court. Lower judges are not dependent on the favor of one person to retain their position. They are thus free of that unseen but very real constraint. Court personnel (almost all) are civil service or employees other agencies, not serving at the whim of one person. Certainly, one result is diverse decisions and some eccentricity; but those are by-products of independence and therefor are strengths to be preserved. We have real appellate courts, whose judges are not beholden to the judge they review, and so are free to correct errors rather than constrained to rationalize them.
This spread of power and control is so inherent in our system that we is rarely think consciously of it. Only when you see up close the alternative can you appreciate the strengths of our judicial structure back in the USA. Hundreds of years of human experience have demonstrated how commonly one person given complete authority will introduce distortions major and minor. Any person having power and control will rarely, if ever, give it up or limit it voluntarily. Here in American Samoa the judicial system is dominated (and largely controlled) by just one position, one person. The effects are much as one would anticipate. This was perhaps justifiable when it was put in place at a time the island had about half its present population (which even now is only about 70,000 people) and it needed to become established. But nowadays when there are more people, more government and much greater commerce, conditions have changed markedly. As one major example, there is now an active Bar Association with over 30 members who are practicing lawyers here; when it was formed in 1971 there were only a handful of attorneys on the island. The bench is deep. But the judiciary here simply has not evolved and grown with the society it serves.
My next, and last, installment on the Courts of American Samoa will focus on what it's like to practice here. This territory is, to me, a microcosm of what happens when you impose an adversarial legal system upon a society which has ingrained traditional methods which aim instead to avoid or diffuse controversy. Keep checking, loyal blog readers. My next post, before completing my Courts cycle, will be about Oahu in Hawaii, where we go for a few days upon leaving American Samoa.
