GIFF JOHNSON
One of the most detailed set of questions ever issued for a title dispute has been delivered to the Traditional Rights Court by High Court Judge Anne Bodley, as the Loeak paramount chief dispute moves toward a TRC trial.
Two regular TRC judges have been disqualified, an 11-page list of questions submitted by Judge Bodley, and TRC Presiding Judge Nixon David — the only regular TRC judge still standing — issued the first pre-trial orders late last month, with the case now fully in the hands of the custom court.
The TRC maintains a group of “Pro Tem” judges who are called in to sit on the three-judge panel when regular judges face conflict with handling cases.
The plaintiff in the case is Alexander Milne Loeak, Jr. He sued Ayako Yamaguchi-Eliou in her capacity as Secretary of Finance because Finance handles distribution of the over $26 million in annual Kwajalein land use payments, some of which go to the paramount chief of the Loeak domain. Also named as a defendant is Bender Loeak, whose uncle, the late former President and Iroojlaplap Christopher Loeak, named as his successor.
Alexander objected to TRC Chief Judge Grace Leban and Associate Judge Claire Loeak hearing the case, while Bender objected only to TRC Judge Claire. Both are closely related to Bender.
Judge Bodley, noting that TRC rules of procedure state that the High Court shall decide challenges to a TRC judge or panel, wrote: “…with reference to the Marshall Islands Rules of Civil Procedure at Rule 75 (Judicial Disqualification), the undersigned UPHOLDS the challenges to (i) Chief Judge Hon. Grace Leban and (ii) Associate Judge Hon. Claire Loeak considering any part of this case as both judges are ‘related within the third degree, either by consanguinity or affinity, to a party, lawyer or material witness.’”
Her order referring questions to the TRC is exhaustive in its detail and could set precedent for other similar disputes that come to the RMI courts.
The essential question Bodley gave to the TRC is simple: “Under Marshallese custom and tradition, who, as between Plaintiff Alexander Milne Jr. and Defendant Bender Loeak, is the rightful successor to the Iroojlaplap title for the Mojen eo an Loeak following the death of Iroojlaplap Christopher Jorebon Loeak?”
What follows is a total of 18 questions for the TRC to answer, many of them detailed inquiries into the custom of title succession.
For example, the second question seeks to know the methods through which title succession can occur.
Judge Bodley asked: “Does Marshallese custom and tradition applicable to the Mojen eo an Loeak recognize succession to the Iroojlaplap title:
“(a) Through matrilineal descent from the senior female line; or
“(b) Through another customary line of descent;
“(c) Through designation, karok, or kalimur by an Iroijlaplap; or
“(d) Through a combination of lineage, designation, family consultation and Alap recognition?
“If succession may occur through designation, karok or kalimur, what customary conditions must be satisfied?”
Other questions include:
- “Should the kalimur of the late Iroojlaplap Christopher Jorebon Loeak be recognized as valid under Marshallese custom and tradition in light of: (a) The manner in which it was prepared, adopted, confirmed or communicated; (b) The absence of subscribing witnesses on the final document; (c) The absence of a date appearing on the document itself; (d) The extent of consultation with relevant family members, members of the bwij, or Alabs; (e) The physical [and/or mental] condition of the late Iroojlaplap at the time the kalimur was prepared or communicated; and (f) Whether the principle of Irooj im Jela constitutes a customary requirement for the validity or recognition of a kalimur?”