Individual rights human rights, not just for palagi
The President of the Samoa Law Society, Leiataualesa Komisi Koria, has dismissed claims from Prime Minister, Tuilaepa Dr. Sailele Malielegaoi, that individual rights is a "palagi" concept and that such thinking is for palagi because that is their culture.
Speaking during an interview with the Samoa Observer, President Leiataualesa said he disagrees, pointing out that individual rights are human rights enjoyed by everyone, regardless of nationality and ethnicity.
Leiataualesa said the claims from the Prime Minister about the constitution and individual rights being palagi is a misconception.
What's even more concerning is that the Government's tone on “individual rights” contravenes its international commitments made in conventions which Samoa has signed on fundamental rights.
He is referring to the Convention on Civil and Political Rights signed by Tuilaepa’s administration in 2008.
“Individual rights are not just rights enjoyed by Europeans or palagi people,” Leaiataualesa said.
“They are rights that should be enjoyed by all human beings made by God including Samoans. The view that it is not relevant to Samoa, we respectfully disagree with that view from our Government leaders.”
The three bills in question are the Constitution Amendment Bill 2020, Land and Titles Court Bill 2020 and Judicature Bill 2020.
Leiataualesa emphasised the 12 rights in the Constitution protects everyone, such as rights to simply be alive right to be undisturbed, the right to freedom of movement amongst others.
The individual rights being referred to by the Prime Minister are fundamental rights in the Constitution.
In Parliament this week, Tuilaepa said the Constitution recognises the rights of an individual over a group of people like village council.
“The rights recognized by common law are from papalagi, they came from the traditions of Britain,” he claimed.
“These are their customs; they are palagi customs because they do not have a culture like Samoa where villages are governed by ali’i ma faipule.”
But Leiataualesa said human rights are reinforced by the fa’asamoa and it encapsulates what he believes the Government is referring to about communal rights.
He made reference to the Ombudsman’s report in 2015 of “State of Human Rights Report” that fa’asamoa and individual rights are protected in the Constitution and do not conflict with each other.
Accordingly, he said, the fa’asamoa and individual rights protect the same thing.
“The report actually says that human rights are underpinned by core values of respect, dignity equally and security for everyone,” he said about the Ombudsman’s report.
“Similarly, faasamoa or the Samoan way of life holds core values that guide social interaction such as respect, dignity, love, protection and service they mutually reinforce human rights.
“That has been the message from our government to the international community so for the Government to say that somehow individual rights are eroding the faasamoa that is directly contrary to what they said in the past.”
Samoa Law Society Vice President, Su’a Hellene Wallwork Lamb, agrees.
She said basic human rights are captured in the fa'asamoa.
In her explanation, Su’a said when the Government leaders speak about palagi concept it “appears to be a clash with the fa’asamoa”.
“Just the mention of the phrase individual rights creates that concept that it goes against that concept of fa’asamoa,” she said.
In his ministerial statement, Tuilaepa said the changes being proposed are to protect the rights of Samoans and their culture.
“The only small change is to emphasize and protect our Samoan cultural rights, which is the way of living for all of us, everyday,” he said.
“We want the Court to equally view individual rights, which is based on palagi beliefs, and communal rights, which are at the fore of our cultural governance. That’s all.”
Tuilaepa had continuously said the proposed changes are to address grievances from members of the public.
But the President said the claim from Government makes it sound like there is a problem in Samoa today that individual rights protected in the Constitution overrides “communal rights”.
From research done by the Samoa Law Society, Leiataualesa said there have only been five cases where the Supreme Court had upheld a Constitutional right of a person over a village council decision.
Considering the five cases and the forty years since the Land and Titles Court was established, Leiataualesa said it does not justify that there is an existing problem in Samoa.
“If there were a 100 cases where Supreme Court had enforced fundamental freedom over Land and Titles Court decision then perhaps there would be reason to reconsider that position,” he said.
“But today we can say that only five such cases and it hardly demonstrate a problem that needs fixing by amending our Constitution and completely overhauling our Court. If those are the only case then the question arises is there a reason why we should restructure our court system.
“We have a system that works and respects our faasamoa…”
One of those cases, he said, was very well reasoned decision and made it very clear there is authority for village council to conduct banishment.
However, he said, such decision needs to follow specific process that has already been set out in the law.