By Leulua’iali’i Tasi Malifa
In a paper I wrote some years ago while studying, I sought to explore Samoan constitutionalism – seeking a theoretical foundation to its system of justice so to hold its child of cultural democracy above the deafening roar of legal pluralism.
Now, that roar is gaining momentum; but our constitutional foundation is still very much submerged unable to hold its head above the rising tides. What philosophy does our system of justice or our constitutional norm respond to?
How does Samoan thought explain the dichotomies and the differences between our culture and its traditional values, with the democracy we have incorporated and made our own? How is this integration of values, this marriage of Samoan cultural dogmatism and liberal democracy working? These questions do not have immediate answers. But it may help to explore further some basic concepts that can identify the nature and content of Samoan justice, and may also assist in determining its scope and the direction its heading into. Such concepts as fa’avae; fa’amaoni – mea moni, mea sa’o; pule and tulafono – these carry the general framework and also the greater content of Samoan thought on its justice system.
Fa’avae – foundation (e.g. constitutional foundation), mea tonu, mea sa’o; fa’amaoni – justice, truth and or fairness, tulafono – law, legal or legitimate, and pule – power and or authority; these are the fundamentals that embraces Samoan justice. At all times, these of course must be at equilibrium, though the scales are never really balanced that they swing dramatically to the human frailties of the powers that be. And built upon a fa’avae that up to now had continued to pay lip service to changes enveloped in legal pluralism, the tulafono will ultimately not be followed or adhered to, the mea moni and mea sa’o is not achieved, and the pule becomes authoritative and the society authoritarian.
Samoa fa’amaoni, or upu tonu, or mea sa’o is anchored unto a justice system that knows no distinctive boundaries or separation of the powers, but that of a pule and or authority that generally borders upon absolutism. The matai and the village council is the government that makes policies to govern the village and its families, and executes all laws; it is the Parliament that makes those laws and all rules and regulations for the village; and it is also the Judiciary of the Judges and the Courts that decide those laws, regulations etc and penalize the offenders.
Inevitably, practically one person, one matai, one chief, one faction or aiga (for example Aiga sa Fata) representing the whole village, makes the decision for those 3 organs. Invariably, that decision carries a criminal sanction. And because it is made upon the pule, it is irrefutable and unquestionable. Its authority is obeyed. And the question inevitably arises: Is this a government of laws or of men?
If one were to measure that question by Samoan standards before and after the 2nd War World, or within the 50 year period of the Universal Declaration of Human Rights or even approaching 50 years of Samoan political freedom, it is safe to say the storms and the tides of change have not reached into that separation of pule and authority as to show that Samoan justice, and subsequently those of its philosophical underpinnings and thought, may be spent and are no longer applicable. And even if it has, it had not been found that Samoa autocracy is in need of change, or is lacking legitimacy. There is no rebellion, no revolution and no bloodshed.
And even if one were to go further into history and trace these conceptual dynamics of Samoan justice, there would be found the strength and continuity in this pule – this non-separation of the powers and authority – that holds the nu’u together, unite the itumalo, bind the divisions and Tama-a-Aiga in the kingly titles to which all Samoan are traceable unto; it would be found that that pule was, and is still anchored onto a fa’avae or foundation deeply rooted that to make it a pule of laws and not of men, the whole dogmatism of Samoan thought must change. That anchor is the fa’avae or foundation of the person one is, and the family in whom one is born into and raised. That is the source and the power. That is the pule. And to come back to the question asked: at this stage, little has changed.
Fa’avae connotes the foundation upon which one is born from or is born into. A common saying that epitomizes that beginning is: O le tama a le manu e ‘ai i fuga o la’au; a’o o le tama a le tagata e fa’avae ma fafaga i upu ma faiga lelei (A bird’s chick is fed on the flowers and insects of the field; a mother’s child is grounded in her words and good deeds.) Fa’avae also applies and relates to the foundation of a building, or how something is done, depending on how that was done or who was doing that work or building that building.
A strong building lasts because of its strong fa’avae, foundation. A good foundation, fa’avae, in a person shall always bear good and noble results and deeds. In law, Fa’avae is the Constitution. It is the supreme foundation law of the country. Thus, it is known as: O le Fa’avae o le Malo Tuto’atasi of Samoa (i Sisifo) – The Foundation of the Independent State of (Western) Samoa. It follows all laws are subject to its supremacy.
Pule and or authority connotes power. Generally, pule is traceable to the person one is through that person’s genealogy or gafa, and is measured in the ownership of titles and or land. Almost universally, pule is in or with the matai or chief. Even if one genealogy is evident of Samoan chiefly and kingly title connections but that person does not hold or is without a matai title, whatever pule that person may have, is submerged and in time shall lose impact and significance. Pule is blood tie. Though acquired also through marriage, the respect accorded that pule is not same.
Tulafono is law; not written law though originally that is the clear meaning as the Samoan justice system was and is still unwritten. In fact, tulafono generally refers to written law or the law that was introduced following colonial control.
Originally, the Samoan justice system had no laws in that sense of tulafono, but there were sa or village curfews which were generally imposed for the peace and welfare of the village. These sa generally gave rise to ostracism – fa’ate’a ma le nu’u and or banishment – ati ma le lau, as to connote complete disapproval and rejection by the village.
Fa’ate’a ma le nu’u is generally peaceful in the sense that once decided upon by the village council that a member and or one’s family is ostracized, then that member and his family may leave the village and live elsewhere, or that ostracism may merely decree that they can still live in the village but without participating in its affairs, or to do anything as to show they are challenging that ostracism, or to continue to question the village’s authority.
The ati ma le lau or banishment, decrees that the offending family must not only leave the village, but also that everything they have and hold – including plants, animals and even their houses – are confiscated and burnt. Literally, ati ma le lau means uproot and destroy everything including the leaves of plants etc,. Ati means uproot, destroy; ma le lau means including leaf or leaves so that there is nothing left.
All told, these concepts show the dynamics of Samoan justice. Their interactions and their relationships, and the use they have been assigned to as a form of social control, show justice the Samoan way is still being practiced as if there is no better system, as in its supreme Constitution and its democratic longing for equality and greater fairness.