Leulua’iali’i Tasi Malifa
Paper prepared on topic
of the Samoa Law Society
Biennial Law Symposium,
December 3-4, 2015
The Village Fono Act 1991 concerns culture – Samoan culture. Arguably, its intent was to
bring fa’aSamoa into the constitutional mainstream of Samoan law so to make our cultural democracy the better approach into fully understanding our contemporary jurisprudence. Instead, it had not; it merely made piecemeal recognition of culture and fa’aSamoa, that accepting our sources of law as democratic by our Christian fundamentals and our culture in its customs and its traditions, this paper argues that the challenge now of our Samoan customary context, requires that we make culture the pertinent part of the law as all aspects of democracy are; such that culture’s rights and its traditional values be expressed and henceforth be entrenched as constitutional rights; fundamental freedoms and liberties are. The argument is that the supremacy accorded by the Constitution to personal rights and democratic freedoms should also be accorded to culture and its rights; its traditional values, duties and its responsibilities as to make all rights equal and the same, and or similarly protected. In this way, formalizing our Samoan customary context requires complete overhaul of the Village Fono law, viewing it (critically) from the cultural perspective, and of course from the constitutional rights and freedoms view point. Of course and in the process, this writer wonders aloud why it had taken us this long – over 50 years – to realize that while democracy in all its vigour and colour is truly paramount and entrenched in its rights protection, culture subserviently flutters in and out of favour as anyone village pleases, or only when electoral politics closes the circle that culture reigns supreme.
Unless we accept that our law is substantially cultural, but married and blended with and shall continued to be blended with what laws we adopt as to make our cultural democracy the way we want and the way it shall be, the real challenge in formalizing our Samoan customary context is in ourselves to make it happen. It follows this is what is needed in the reform of the Village Fono Act 1991.
No law postulated the protection of culture and fa’aSamoa as the Act purported to do. Indeed and from the beginning with the Western Samoa Constitution Order 1920 until the Constitution in 1962, culture was considered more in relation to customary land – o le tagata ma lona fa’asinomaga - than substantially as the core element of the Samoan legal system in which its centre piece the matai, and all aspects of culture, are tied closely unto. The result was that culture became subservient and subsidiary to law that even when formally adopted into the Constitution as the founding principles of Samoan democracy, together with Christianity, its content by way of definition of cultural rights and traditional values were not expressed, and therefore were not specifically known. As such these were not genuinely protected. And to the extent that democracy was wholly entrenched in its rights; liberties and freedoms by the Constitution’s supremacy, culture and fa’aSamoa was not. Instead, it remained on the peripheral. The Constitution merely mentioned customs and traditions generally, focusing more on the matai entity particularly in respect of the electoral law, and the unstated application of culture into and in respect of the position of Head of State, and the Council of Deputies.
Beginning with the Western Samoa Constitution Order 1920 (the Order), it sought to establish a new and constitutional regime following the First World War, most notably in the departure of German rule in the country. As with the more substantive Samoa Act 1921 in its adoption of central government and establishing the organs of State in the territory, culture did not substantially feature.
Instead, it was administered as law basically in respect of native or customary land, and in the main, remained a subservient element of territorial administration. This was maintained into the Samoa
Land Protection Ordinance 1934, which in addition, established the Samoan Land & Titles Court, taking it over from Native Land & Titles Commission then under The Samoa Native Land & Titles Commission Order 1924. Again, culture was considered only in connection with Samoan names and titles, but not in its own right as the central focus of the fa’aSamoa and the Samoan governmental system. Indeed, the general formula was merely in respect of Samoan names and titles to be “in accordance with customs of the Samoan race”: (s.37(a)(b) Samoa Land & Titles Protection Ordinance 1934).
Interestingly, that ‘Samoan race’ characterization was more evident in the Samoa Act in its ‘native title’ definition, in reference to native (or Samoan) land to be “title [held] in accordance with the customs and usage of the Samoan race” (s. 268(5) Part IX)). But this was made subject to any “rights” which might have been lawfully acquired before this Samoa Act (s278). As general as this ‘subject to’ was, its exception is knowingly unclear that its intention can only be to foreshadow a ‘rights’ inversion into customary land and therefore of customary law, as to open the road into human rights and democratic understanding of customary land. And of course with authority to ‘make laws for the peace order and good government’ of the country vested in Executive governance rather than a people elected Government, such ‘rights’ attack could have been legitimately made unto law, and acted upon. It did not happen, but this foreshadow of the Constitution’s entrenched protection of democratic rights, liberties and freedoms, left the door open...
On the other hand, ‘Samoan race’ is painstakingly racial (and distinctively colonial) in defining a ‘Samoan’ as ‘a person belonging to the Polynesian race, whether by pure or mixed descent’, but excludes a Samoan registered as European, or the legitimate child of a father who is European. Firstly, what else in this law is Samoan but a person? Secondly, this is surprisingly like Plessy v Ferguson, all persons are equal but colour blindly unequal and separate. And thirdly, add unto that ‘Polynesian’ includes Melanesian; Micronesian and Maori (s.3), it is clear the intention was not holding unto one being truly Samoan in person, or Polynesian in race, or Melanesian, Micronesian and Maori in colour, but legally to brand the whole Pacific Triangle of people into a classless state of mix and mixes identified only by many, small or dark. Interestingly, one would have thought the same characterization applied to other races then in the country if not the Pacific at the time, as for example the Chinese people; but it was not. Sadly, they were treated even the lowest of the low as not even to be allowed to marry a Samoan (s.30).
That arrangement of ‘in accordance with customs of the Samoan race’ remained in the ordinance books until repealed in 1981 by the Land and Titles Act 1981. But having so done, one would have thought that twenty (20) years then into political independence and the Constitution having being framed upon Christian principles, and of course Samoan custom and traditions, culture would have taken center stage as the ultimate source of law. But it did not. Instead, that Land and Titles statute merely “consolidate and amend the law relating to customary land and titles and in respect of the Land and Titles Court” (Preamble). In other words, culture in its own right as the embodiment of what one is and as Samoans we all are, remained largely a subservient slice of the enigma, understood only in “relat[ion] to customary land and titles …”. And so it remains that ‘custom and usage’ merely means the customs and usage of Samoa, but without knowing what these are. And they remained generally as such, and to include “(a) the principles of custom and usage accepted by the people of Samoa in general, and (b) the customs and usage accepted as being in force in respect of a particular place or matter …” (ibid, s. 2). It follows when the Village Fono statute came to be law, it would have served its purpose to liberate culture – as democracy is in its personal rights; liberties and freedoms all entrenched by the Constitution – by writing all its elements and intricacies down and of course, endorsed into the supreme law that nurtures us all. But it did not; as evident, the Act merely legislated on the peripheral to “validate and empower the exercise of power and authority by Village Fono in accordance with custom and usage of their villages … “.
This peripheral treatment of culture as generally of customary land and of Samoan matai titles is readily seen in respect of the privilege to vote, and in how the Supreme Court and the Court of Appeal have interpreted the Electoral law and construed the Constitution in respect of the matai franchise, and more recently in respect of universal suffrage under Electoral Amendment Act 1991. But it is not so much the interpretative approach in constitutional construction that was problematic, but more in the parties presenting culture as merely of the outer limits of its peripheral facade, rather than the substantive, major issue at the heart of the political right to vote.
Beginning with Attorney General & Another v Saipaia Olomalu & Another (1980-1991) WSLR 41, Samoan culture by its matai system was argued to be subject to the supremacy of the Constitution, that its matai only vote for matai only political candidacy, cannot stand scrutiny of the constitutional right of equality before the law and equal protection of the law under Article 15. That means political representation of the one person one vote must ensure all are equal before the law and entitled to equal protection thereof that every Samoan of adult political age must and can vote.
Against that analysis was the State view that the Constitution is not static, that the Framers intended not for it to hold the matai system - and therefore Samoan culture - as it were in 1963 solely for political independence and constitutional government, but that as to the franchise, the Constitution was “flexible [as to] allow Parliament to widen its basis as and when that was found desirable”. (p. 55, 2nd para.). It follows the matai franchise was not “entrenched ... but was permitted” (ibid) by the Constitution. It further follows that Article 15 does not apply to the cultural franchise of the matai only candidacy and matai only vote.
The arguments required consideration of what the matai system is, its role in Samoan culture if, of course, it is distinct and different thereof, its unwritten elements, and how that cultural system was deliberately not written into law. How then was that unwritten cultural matai system made to fit into constitutional governance and the Samoan political mainstream?
The Court of Appeal began by looking (p. 51) at what the “Matai System” was/is, citing from Official Records of the United Nations General Assembly, document A/4840, and the Report of the Plebiscite Commissioner for Western Samoa. It noted matais “were elected by their respective families (aiga) and were removable by them”. It’s “an essential feature of the [Samoan] way of life … in full accord with democratic principles”, as to permit them and themselves only to have the right to vote, and to be a candidate for political election. In this way, the “matai suffrage is more representative than appear at first sight”, (p. 52), as “First, there was approximately one matai for every seven adult Samoans, or for eighteen Samoans of all ages. Secondly, the greater number of matai titles were conferred by the families concerned in a basically democratic way, so that the system might in some respects be regarded as one of election in two stages”. (ibid. para. 26).
At page 54, last paragraph, the Court of Appeal noted that the Chief Justice in the Supreme Court “mentioned a forecast by Professor Davidson … that article 44 would gradually eliminate individual voters by absorption into the Samoan cultural system”, though it held this was a mistake as that was only possible in reference to the phrase ‘subject to the provisions of this Constitution’ in Article 44(3), which the Chief Justice wrongly held made sections 16 and 19 answerable to that Article 44(3). Instead, that phrase arises only if there is conflict between sections 16 and 19, and Art 44. (p.60 bottom, p 61). Here, there is no such conflict. As to Samoan culture, the Court of Appeal noted St John CJ took it as of the Samoan people being divided and lacking in national unity such that culture was not in comport with democracy and its Article 15 equality. At page 56, top, the Court observed:
“The Chief Justice continued with observations centering on the proposition – not accepted by the Attorney General before us – that unity as a nation is an idea which was absent in Samoan political theory. He held that a national government framework had been imposed on Samoan culture and (in effect) that matai suffrage was incompatible with that framework … “
The Court of Appeal rejected that absence of a political theory in Samoan thought, and rejected also
the notion of the imposition of democracy unto a stagnant Samoan culture. In short, the Court
disagreed with the Chief Justice and reversed his judgment. It held that the Framers did not
envisage Article 15’s equality before the law and equal protection of the law to apply to the matai
franchise, as not only was there no constitutional protection of the right to vote to which Article 13
would have ideally been the place for it, but also that being a political right in its own sphere, the
franchise rested upon the expressed wish of the people through the plebiscite that the matai vote
controls the political system. It follows there is no issue of equality and equal protection of the law impacting on the matai franchise. Accordingly, it is argued the Chief Justice’s political theory of the Samoan culture as divided and of non-unified people, is yet another of his inevitable rhetorical findings that went not to the issue at hand, but more so to satisfy what arguably is His Honour’s activist approach in favour of constitutional rights, liberties and fundamental freedoms.
More importantly, the Court of Appeal in a careful and well balanced judgment, reasoned Samoan culture is Samoan law; that absent its undefined elements and unwritten parts that make it undeniably suspect, culture notwithstanding, determines the right to vote. It is not however by any threshold standard or any issue of equality, but by Samoan culture’s own standards in accordance with its matai franchise as in its customs and traditions, (and of course with the individual voters’ roll). In this way, culture permits of personal representation onto the higher level of political participation.
See also Le Tagaloa Pita et al v Attorney General & An (unreported, CA 1995, per Cooke P., Bisson & Keith JJ)
One of those cultural elements is banishment. While in this day and age it can be seen that banishment is archaic and arguably an outdated colonial practice, it served to keep the community together, holds unto toleration and another point of view, and maintain peace. Indeed and within our Samoan cultural setting, banishment has its purpose. That is how the Court of Appeal in Italia Ta’amale & Another v Attorney General (1995) WSLR 4 (C.A. 2/95B) addressed banishment on being challenged as unconstitutional Article 13(1)(d).
The case arose following the banishment of the appellants from their village for not abiding by certain decisions of the village council as to village obligations and penalties, and of insulting conduct. In the Land and Titles Court, banishment by the village council was confirmed. When the case subsequently came before the Supreme Court upon challenge that that banishment violated freedom of movement and residence under Article 13(1)(d), the Supreme Court disagreed, and the Appellants appealed to the Court of Appeal. It was argued that the Constitution, being the supreme law applies to all laws as in Article 111 of the Constitution, and thus includes customary banishment that it is subject to that supremacy. It follows the village council power to banish is unconstitutional.
The Court of Appeal however disagreed. Instead, it accepted almost entirely the judgment of the Chief
Justice (see below) that recognised banishment not merely as a practice in its own right; and traced its history and development as integral of Samoan culture, relying extensively on a Cabinet appointed Committee report (December 1975) titled, Report on Matai Titles, Customary Land and the Land Titles Court (the Report), and the Samoan Offenders Ordinance 1922 (the Ordinance). While amongst other things in the Report the Committee recommended “codifying the law as to banishment” which was not adopted (p. 6 & 7), the Court of Appeal noted the Report recognized that banishment was “in practice ordered both by the ali’i and faipule of villages, and by the Land & Titles Court” (p. 7). The Court also noted that the Report recognised “ … banishment as a custom … goes back to times before German administration” (ibid). And as that Ordinance’s title expressly states, it is “An Ordinance TO CONTROL CERTAIN SAMOAN CUSTOMS” and was therefore primarily focused on Samoan offenders, by permitting culture, in this case, banishment, as the Imperial Governor shall decide.
Of the Ordinance itself, the Court noted ‘four important points’. (p. 10), three of which this paper argues shows culture was indeed the law then. The first was that the Ordinance shows banishment was always part of the law, Samoan customary law; the second prohibited banishment to be ordered by any person ‘whether a Chief, Orator or Government Official …’, and thirdly that the power of banishment was conferred on the Administrator, not so much as punishment per se, but as a necessary measure to be available in the interests of the stability of Samoan society.
In light of the Constitution, the Court stated that that supreme document must be understood by its
history and its (social) setting, which by its Preamble shows banishment is of the Constitution’s
“Samoan setting” (p. 30 of judgment):
“In largely endorsing the Chief Justice’s approach, we share his view that the Constitution must be applied with due regard to its Samoan setting.
The second recital in the preamble underlines this:
“WHEREAS the Leaders of Western Samoa have declared that Western Samoa should be an independent State based on Christian principles and Samoan custom and traditions”.
Citing further from further provisions in the Constitution that emphasized its cultural setting, the
Court referred to:
“[T]he provisions of Part IX (LAND AND TITLES); Articles 100 to 103 regarding customary land, Samoan custom and usage, and the Land & Titles Court … Again Article 111(1) defines ‘Law’ as including
“ … any custom or usage which has acquired the force of law in Western Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction.”
And with particular reference to Saipaia Olomalu, it held, p. 30 of judgment, bottom:
“ … this Court attached weight in interpreting the Constitution to the particular history and social structure of Western Samoa.
“It is that history and social structure and those references in the Constitution which lead us now to hold that, within the meaning of Article 13(4), banishment from the village is, at present time, a reasonable restriction imposed by existing law, in the interests of public order, on the exercise of the rights of freedom of movement and residence affirmed by Article 13(1)(d).
It is important therefore to come back to the learned Chief Justice’s holding in the Supreme Court,
his rationale of banishment within Samoa’s “history and social structure”, which of course is culture,
as was adopted by the Court of Appeal in its judgment. At pages 22 to 27 of the judgment, the
Court reproduced the following passages from the reasons of Sapolu CJ:
“It appears to me that the concept of banishment as it is applied within Samoan society may not have been fully understood … in the past. By tradition, custom and usage, banishment is a measure of social control which is applied in the villages to maintain peace, harmony and order within a family, or between families, and within the village itself. It is also a measure of law enforcement within the village in the sense banishment is a sanction which may be imposed for certain misconduct or disobedience of the rules and regulations made by the … Ali’i and Faipule (Village council). Banishment may have been exercised in the past … by a matai against a member of his family, but usually, banishment was exercised within the village by the Ali’i and Faipule … .Nowadays, banishment is exercised almost exclusively, if not in fact exclusively, by the Ali’i and Faipule …
There are two kinds of banishment … The first [is] banishment that an individual is ostracized from the affairs of the village so that during duration of the banishment, he cannot take part n the affairs of the village, but he may still continue to reside in the village. With this kind of banishment, the individual concerned may still attend the village church on Sundays, but he may not take part in the other affairs of the village. This kind of banishment is imposed for misconduct or disobedience which are not of a serious nature. The second kind of banishment involves the expulsion of an individual from the village, so that he, and sometimes his family, may not continue to reside in the village but must leave … to live somewhere else. This second kind of banishment is imposed by the Ali’i and Faipule … on an individual for a very serious misconduct such as murder, rape, serious disobedience and so on. It may also be imposed on an individual and sometime, his family, for continuing non-compliance with lesser penalties such as fines of money, pigs, taros … As in the past, non compliance with a banishment order may have even more serious consequences for an individual for the village would then move and damage his properties. In principle then, banishment as practised ... means that an individual is ostracized from the village society either by not being allowed to participate in the village affairs during the duration of the banishment, or by not being allowed to reside in the village during the duration of the banishment.
Now the individual whom is banished and expelled from the village does not become a refugee without a place to live. Tis is where the Samoan extended family system comes in.; and the banished individual will always find relatives in another village, or in the Apia area to live with. A banished individual without relatives to live with elsewhere is simply unheard off. Another feature of banishment, which applies to both kinds of banishment, is that the duration of the banishment is not commonly expressed or spelt out. The custom in this regard is that when a banished individual is remorseful and prepared to make amends for his wrongdoing, he may return to the village and make a presentation of foodstuffs and/or fine mats to the Ali’i and Faipule … who will accept him back to take part in the affairs of the village, or to reside again in the village. Sometimes, the displeasure of the village ends before a banished individual requests his return …. In such a case, the Ali’i and Faipule may ask the individual to return… Again, the banished individual makes a presentation of food stuffs and/or fine mats. … So the term of banishment is very much determined by the interplay of two factors, remorsefulness on the part of the banished individual, and ending of the displeasure on the part of the village. No doubt the gravity of the misconduct or disobedience also plays a part in determining the term or duration for a banishment … So the imposition by the Land &Titles Court in the present case of a banishment order without spelling out a fixed term is quite consistent with custom and usage. The term of the banishment order will be determined by the factors already referred to. In some of the very serious cases, an individual is told by the Ali’i and Faipule … that he is banished forever from the village. Even in such a case, the use of the word ‘forever’ does not literally mean a perpetual life sentence. The term or duration of the banishment is still determined by the interplay between the remorsefulness of the wrongdoer, the duration of the displeasure of the Ali’i and Faipule … and the gravity of the misconduct.
The sanction of banishment applies to both matais as well as non-matais of a village. So the members of the Ali’i and Faipule are not themselves immune from banishment. An individual member of the Ali’i and Faipule may be banished by the Ali’i and Faipule as a collective body.
The Land and Titles Court which deals with customary matters has assumed jurisdiction to impose banishment … in appropriate cases.
There is no doubt in my mind that the SLTP Ordinance 1934 and its successor the Land &
Titles Act 1981 … continued the existence of the Land & Titles Court to deal with customary matters including claims and disputes between Samoans in relation to matai titles and customary lands, are respectively ‘existing law’ and ‘law’ made in the interest of ‘public order’ within the meaning of Article 13(4) of the Constitution. As the power exercised by the Land & Titles Court under the Land and Titles Act 1981 to make banishment orders is directed towards maintaining peace, harmony and order within the villages, it is a measure in the interests of ‘public order’ for maintaining order throughout the country, in addition to the law enforcement role played by the Western Samoa Police Service. It therefore follows from Article 13(4) that Article 13(1)(d), which confers the right on all citizens … to move freely throughout Western Samoa and to reside in any part thereof, do[es] not apply to the present power of the Land & Titles Court to make banishment orders in the interests of public order … “
Saipaia Olomalu was decided in 1982; Italia Ta’amale in August 1995, and Le Tagaloa Pita in
December 1995. While these cases show how the Courts have put great emphasis in recognising culture as integral of Samoan law, the Village Fono Act had not taken the lead to prescribe wholly for its implementation into constitutional rights mainstream. Admittedly, it was passed in 1990, roughly ten (10) years after Saipaia Olomalu. Then, it can be argued it did not have the re-visitations afresh of culture in the matai franchise and the right to vote in the individual voters roll in Le Tagaloa Pita et al, or the more refine judgment in Italia Ta’amale in respect of banishment as integral of culture and Samoan fa’amatai. Whether however Saipaia Olomalu had any influence in the passage of the Act is unclear. What is clear is that in itself, the Act purported merely to validate and empower the exercise of power by Village Fono “in accordance with the custom and usage of their villages … “, but without explaining what those custom and usages are, or whether custom and usage is the same for all villages throughout Samoa, and in this modern day and age. And with section 6 requiring that “Without limiting the powers of the Village Fono preserved by this Act to impose punishments for village misconduct … “, it is clear that not only is the content and substance of culture remains largely unknown, but it continues to rule from outside the law – the written law that is.
That failure of the Village Fono Act to take the lead, and of “successive” governments to do anything arguably to end banishment, befits what can only be described as mourning by the Court of Appeal in its judgment in Pitoamoa Mauga et al v Fuga Leituala (unreported, CA March 2005, Lord Cooke of Thorndon P., Casey & Bisson JJ). Faced again with another case of banishment, the Court wondered aloud at the very beginning of its decision:
“Banishment from the village, imposed by the ali’i and faipule of the village for socially disruptive conduct, is a practice that dies hard in Samoa. As this case illustrates, it can operate with altogether disproportionate harshness, in violation of natural justice and against innocent family members. Successive administrations from German colonial times onwards, have tried to extirpate it, yet instances requiring remedy by the courts can still occur. In Italia Ta’amale v Attorney General (18 August 1995, CA 2/95B), this court accepted that at any rate at this stage in the evolution of the country, banishment might still occasionally be necessary as a last measure of preventive control, and could be ordered by the Land & Titles Court for sufficiently strong reasons, subject to a number of safeguards. But we specifically refrained from deciding whether village councils have the power. And we added ‘A village council minded towards banishment from the village would be well advised to petition that court for an order rather than take an extreme course on their own responsibility’.
Pitoamoa Mauga dealt with the Village Fono Act. The case arose when the village assembly
of Lotofaga banished the appellant. The argument was whether that Act permitted banishment, or whether that power is held by the Land & Titles Court. In holding in affirmation of the judgment of Va’ai J in the Supreme Court – citing fully from His Honour’s judgment in pages 2 to 7 of the Court of Appeal’s decision (much as it did similarly in affirming Sapolu CJ’s judgment in Italia Ta’amale – the Court held there is no provision in the Village Fono Act allowing for an assembly of ali’i and faipule to banish anyone. Section 6 of the Act permits only of certain powers in the village council, none of which includes banishment. And it is
“unthinkable that [Parliament] would have intended to endorse by silence as drastic a village power as banishment, especially in light of the of the 1975 Report on Matai Titles, Customary Land and the Land & Titles Court, to which we referred in our Ta’amale judgment at pp. 6 to 8. That Report, made to the Minister of Justice by a Committee appointed by cabinet, recommended that henceforth, banishment orders should be made by the Land and Titles Court only. We have no doubt that the omission of any corresponding power from the Village Fono Act was deliberate policy on the part of the Samoan legislators in 1990. Nor would it be plausible to suggest that they contemplated discrimination by leaving such a matter to the past practice of each particular village.”
Accordingly, banishment was affirmed to have been unlawfully made by the village assembly. In reaching its conclusion, the Court affirmed the appellant’s argument that the totality of Samoan law now is no longer cultural by itself in its customs, traditions and usages; or by Parliament made law alone under the Constitution in its mainly democratic and western ideals, but of the marriage of the two better understood as cultural democracy. In its holding, Lord Cooke for the Court of Appeal reasoned, p.10, middle last paragraph:
“The Argument for the Appellants
“There were two substantial strands in [counsel’s] address to this court. First, in aid of his contention that the judgment under appeal lacked balance, he placed repeated weight on what he called cultural democracy: the need to marry modern democratic ideals and human rights with indigenous customs and traditions. In advancing this as a general concept, counsel was on sound ground. The constitutional cases in this court concerning the Matai system, which he cited, support it. Where the argument must break down, though, is that a marriage had already been effected, through recognition that a carefully circumscribed power of banishment is at present possessed by the Land and Titles Court. We agree with Va’ai J that to go further by holding that a village council also ha[s] the power, would be ‘tantamount to winding back the clock of progress’. And we are fortified in our ruling by noting that it is one of Samoa’s own indigenous Supreme Court Judges who has said as such”.
Almost 10 years later in Tuuamali’i Peni Punitia et al v Afu Faumuina Tutuila (unreported, CA,
31 January 2014, p. 11, per Fisher P., Hammond Blanchard JJ), that cultural democracy was
affirmed, and cultural banishment, in light of the Village Fono Act, is no longer of the power
and authority of the village assembly.
This paper maintains these cases are the guidelines upon which reform of the Act must take account
of and consider, more of the challenges needed in formalizing our Samoan customary context.
In particular, challenges in the nature of writing into its reform our cultural rights and our traditional
values, as was obviously contemplated by section 34(2)(b) of the Land and Titles Act 1981. That section, amongst other things provide that the Land & Titles Court shall have exclusive jurisdiction in “all matters relating to Samoan names and titles”, and in particular
“(b) to make orders or declarations in respect of Samoan names and titles as may be necessary to preserve or define the same, or the rights or obligations attaching to those names and titles in accordance with the customs and usages of the Samoan race, and all laws in force in (sic) Samoa with reference to customs and usages”.
Indeed, the right and or obligations attaching to those names and titles “in accordance with customs and usages of the Samoan race”, obviously means and includes all rights; duties and obligations Samoan culture clothes and holds itself in, that in the evolution of its constitutional jurisprudence must now write up and protect. To come back to Italia Ta’amale and the detailed analysis of the Chief Justice about banishment, and Va’ai J’s similar assessment of the same in Pitoamoa Mauga, it is clear formalizing our contemporary customary context is already happening. And add to that writing into law, for example the rights of women to be matais and therefore to be involved in family decision making, and consequently, participate in the village assembly decision making; their rights to hold pule over customary land, and exercise authority in respect thereof, and of course of women in certain villages where they are not permitted to be candidates in political election, this paper argues they should not be denied that choice.
In respect of young men and women of age 18 and upwards, they should be granted the right to participate also into the family decision making, whether they are matais or not; they should also be entitled to occupation of customary land, though of course, such rights are occupancy only and should not usurp the pule authority in respect thereof; and as with women in respect of political participation as of electoral candidacy, the same should be available to them. There are of course more of these rights.
More generally, the Village Fono Act reform should look into the greater issue of the rights of true heirs suli tuipolota – visa viz - the rights of suli tautua/suli tupolo and the rights of suli tamafai/suli sa’ota, all in respect of matai titles and customary land. Certain decisions of the Land and Titles Court have put these together for no valid reason, thus permitting all heirs – of whatever category and standing - to be the same as if all are equal under the Constitution. And this is where difficulty arises. As argued, culture is unwritten, and the Constitution maintains that. As evident in the Preamble relied upon in Italia Ta’amale, the only references to it is in the words “Samoan customs and traditions”. And of course, culture can be gauged from the provisions generally under Part V in respect of Parliament and the electoral provisions focusing on the matai franchise and the matai system, and under Part IX about Land and Titles. (These are mentioned in page 5 above). But are those words in the Preamble and these provisions, reasonably sufficient to satisfy the Framers intent of Samoan culture to apply mutatis mutandis in all and to all, and in whatever circumstances develop in the evolution of modern Samoa constitutionalism?
This paper argues that the more powerful rendition in respect of culture, openly clear – as Christian principles and Samoan custom and usage are – is the solemn declaration at the end of the Preamble to the Constitution:
NOW THEREFORE, we the people of Samoa in our Constitutional Convention, this twenty-eighth day of October 1960, do hereby adopt, enact, and give to ourselves this Constitution”.
It is the people themselves - and therefore of our culture in all its manifestations – that underpins
primacy to the Constitution’s supremacy. It is argued that unless this primacy is fully understood in its culture by knowing it all; writing it down and living all its elements as we do our constitutional rights; fundamental freedoms and our liberties, “we the people of Samoa” shall remain marginalized into the 21st century.
This paper has only mentioned a few cultural rights to illustrate the argument presented, but a great deal of help can be obtained by examining the Convention 69 of the Rights of the Indigenous People. Where appropriate, some of these rights are the same and are of course, similar to our own cultural rights and traditional values that they can form the backbone to expressing these into written form, to be endorsed and entrenched constitutionally. And with the first time establishment of a Human Rights Commission law in the country, this is the first step in the right direction. And mindful also of the Courts ready acceptance of human rights and constitutional freedom and liberties in its decision making process, it is clear that we are ready for the challenge – that in our customary context, the one step remaining is writing down our cultural rights so to be endorsed and entrenched into our Constitution.
It is also that over 50 years now of the Constitution itself, a review of it is due in which ultimately, it is befitting in the next 50 years that “we the people of Samoa” protects ourselves by protecting all our rights – cultural rights and traditional values including – as entrenched constitutional fundamentals.