Saipipi case to foreshadow L.T.C. impact: attorney
Reverend Vavatau Taufao, the Secretary of the Congregational Christian Church of Samoa (C.C.C.S.), had said proposed Lands and Titles Court (L.T.C.) changed will have a “big effect” on the Church.
The C.C.C.S., is the largest denomination in the country and the Samoa Observer visited Rev. Taufao at his office at the Ioane Viliamu Building in Tamaligi, to get his comment how the proposed overhaul of the L.T.C. would affect freedom of religion in Samoa.
Several people have sought an opinion on the L.T.C. from him, the Secretary said, but he has so far denied those parties a comment, he said.
The Chairman declined an interview with the Samoa Observer, but did say he would make an official statement regarding his church's position through their television station: E.F.K.S. TV.
Freedom of religion and the potential impact on the subject by the Lands and Titles Amendment Bill 2020 and the Constitutional Amendment Bill 2020 will, according to attorney Matafeo George Latu, be foreshadowed by a 2000 Supreme Court decision from Saipipi, Savai’i: the case of Sefo v the LT.C.
Matafeo, who says the L.T.C. bills of 2020 will remove the protection of the Supreme Court from people concerning matters of freedom of religion, represented the first defendant in the case – the Attorney General’s Office and the L.T.C.
The complainants - Mau Sefo, Osasa Aukuso and others - sued the Attorney General, the L.T.C and the Ali’i and Faipule of Saipipi in Savai’i.
The 20-page ruling, dated 12 July, 2000, was handed down by Supreme Court Justice Andrew Wilson. He found in favour of the Sefo, Aukuso and the other plaintiffs.
The crux of the 2000 matter was whether the Alii & Faipule of Saipipi or the L.T.C. had the power or authority to restrict freedom of worship and religious instruction or activity upon customary village lands under their authority; and whether they had the jurisdiction or authority to prevent or restrict a particular religion or religious instruction within their village. The case further explored whether the complainants had the jurisdiction to prevent or restrict religious instruction, worship, or beliefs that were being conducted upon freehold lands within their village.
“The answer in each instance is 'no',” Justice Wilson wrote
The plaintiffs sought orders concerning the interpretation of constitutional issues arising as a result of the decision of the Alii & Faipule of Saipipi in Savai’i to limit the number of churches in their village.
The Alii and Faipule of Savai’i also wanted to stop the plaintiffs from conducting Bible classes or church services at Saipipi.
“And, therefore, not to permit religious worship, instruction and/or belief of a certain kind, and as a result of subsequent orders of the Lands and Titles Court purporting to uphold the position of the Alii & Faipule,” the ruling states.
The plaintiffs asked the court to enforce their fundamental rights under the Freedom of Religion section of the Constitution, which is Part II, Article 11 (as well as Articles 12, 13 and 103). Article 12 lists the rights concerning religious instruction and Article 13 contains rights regarding freedom of speech, assembly, association, movement and residence. Article 103 establishes the L.T.C..
The Bible fellowship of which the plaintiffs are members were representatives was established in 1984 by a group of about 20 people.
It had met every Monday and Tuesday at the Home of Su'a Falesui Faatafa, a senior matai of the village of Saipipi, and the father of the second-named plaintiff.
In 1987, with the membership having increased to about 170 people, the fellowship started to hold communion services including prayers and songs of praise.
The Alii & Faipule of Saipipi did not object to the plaintiffs conducting Bible study classes "as they observed it to be something good and useful,” according to the ruling.
"In 1995 the Alii & Faipule of Saipipi petitioned the Land and Titles Court to validate or invalidate their public notice in the issue of Savali dated 26 November 1993 that three churches are sufficient for the worship of villagers of Saipipi – the Congregational Christian Church of Samoa (C.C.C.S.) The Church of Jesus Christ of Latter-day Saints and the Seventh-Day Adventist Church," the judgement found.
The Alii and Faipule of Saipipi wanted to dissolve or confirm the existence of the Bible class or new church being established....in Saipipi.
In its decision dated 14 September 1995, the Land and Titles Court confirmed the said public notice (that was in the Savali) and "prohibited (the plaintiffs) from holding the Bible class or the new church....at Saipipi."
The Land and Titles Court stated that it relied upon the opinion of the Alii & Faipule (but not, apparently, upon findings of fact based upon evidence) "that this Bible class or church now established has become a source of conflict between parents and their children"; and was of the view "that this new faith and Bible class has become a disturbance to the youth of the country as well as the ill-informed..."; and held that "this dispute...some of the children of the village are challenging the dignified rule of the Alii & Faipule."
On 13 March 1996, the President of the Land and Titles Court granted leave to the plaintiffs to appeal to the Appeals Division of the Land Titles Court against the decision of 14 September 1995. At the same time the President granted leave to the parties to file proceedings in the Supreme Court seeking a decision on the interpretation of Article 11 of the Constitution, pursuant to which leave, it is presumed, the present proceedings were instituted.
An appeal to the Appeals Division was heard and, by its decision dated 3 May 1996, "the appeal application was declined" and the decision of the Land and Titles Court dated 14 September 1995 was "upheld" but with the following somewhat curious additions:
If the Alii & Faipule of Saipipi decide at a future date to recommencement of the Bible class at Saipipi, nothing shall preclude the rule of the Alii & Faipule to permit this and if a new church wishes to enter Saipipi and be established within Saipipi, the consent of the Alii & Failpule of Saipipi must first be obtained.
This decision does not affect the freedom of any person of Saipipi to worship according to his or her religious beliefs, but they must commute to attend their church elsewhere if their church is not one of those permitted within Saipipi.
“I interpolate to observe that, by expressing the decision of the Court in that way, the Court may be seen as having asserted the predominance of decisions of the Alii & Faipule of Saipipi said to be in conformity with the customs and usages of the Samoan people over and above the fundamental rights of the plaintiffs preserved by the Constitution,” states Justice Wilson.
“On 9 July 1996 the Alii & Faipule of Saipipi again petitioned the L.T.C. in terms which included a claim that the plaintiffs be "banished from the lands of the village at Saipipi…The plaintiffs had apparently obtained a lease of freehold land in the village of Saipipi and wished to conduct Bible classes and worship services in a building built therein, but had not sought and obtained the consent of the Alii & Faipule of Saipipi.”
The earlier petition in the LT.C. was heard and determined by the L.T.C. on 19 November 1997 and the decision was to the effect that the plaintiff be not banished from the village of Saipipi whilst they continue to commute to attend their church in the village of Famalalulu.
The plaintiffs respected the decision of the Appeals Division of the Land and Titles Court pending a decision and they did not use the lease except for the purpose of looking after the land.
“Restrictions of the type imposed by the Alii & Faipule of Saipipi are clearly an infringement of the plaintiffs' fundamental right conferred and preserved under Article 11(1) of the Constitution. Article 11 (2) provides an exception or exclusion.”
In proceedings, it was argued that the Alii & Faipule and/or the L.T.C. operating under the Land and Titles Act and the Village Fono Act and/or the law of custom "imposes reasonable restrictions on the exercise of" that fundamental right "in the interest of ...... public order."
“There is no substance in this argument. To require (or act so as to have the effect of requiring) the plaintiffs to commute to and from their place of worship is to constitute an "unreasonable" restriction,” states the ruling.
“This case has raised for the determination by this Court the question of whether a Village Council may limit the number of churches in a village and prohibit or prevent (or refuse permission to) a new church being established. It also has raised for the determination of this Court the subsidiary question of whether, if a new church wishes to be established in a village, the consent of the Village Council must first be obtained.”
“One only needs to state these questions in this way and the answers became obvious. Such actions, which place a limitation on (or prohibit or prevent or constitute the refusal of permission to) a new church, infringe the right to freedom of religion and, what is implicit in the enjoyment of such a right [and explicit in Article 11(1)], "the freedom, either alone or in a community (or congregation) with others and, in public or private, to manifest and propagate ... religion or belief in worship, teaching, practice and observance."
The ruling continues: Alii & Faipule of the village of Saipipi, whose decisions were affirmed by the L.T.C., have worked a form of coercion inimical to the spirit of the Constitution and the dignity of non-mainstream Christians.
The conduct of the Alii & Faipule has created a climate hostile to, and gives the appearance of discrimination against, Samoan Christians other than those who are adherents to the Congregational Christian Church of Samoa, the Mormon Church and the Seventh Day Adventist Church.
In the context of the various Christian denominations approved of or outlawed (as the case may be) by the actions of the Alii & Faipule, recent events provide a subtle and constant reminder to minority denominations within the country of their differences with, and sometimes alienation from, the dominant denominational religious culture.
Non-mainstream Christians see themselves as prohibited, for religious and denominational reasons, from carrying out activities which are otherwise lawful, moral and normal. The protection of three Christian denominations and "the concomitant non-protection of others imports disparate impact destructive of the religious freedom of the collectivity"
Justice Wilson granted the orders, stating that jurisdiction (limited by Article 11) is conferred on the L.T..C to render decisions on matters relating to religious worship, instruction and/or belief provided that such decisions "relate to Samoan names and titles" or "claims and disputes between Samoans relating to customary land and the right of succession to property held in accordance with the customs and usages of the Samoan race" and, in the case of appeals under the Village Fono Act, provided that such decisions relate to "the maintenance of hygiene in the village" or "the development and use of village land for the economic betterment of the village" and powers incidental thereto, BUT provided that Article 11 of the Constitution is not fringed.
He said the jurisdiction of the L.T.C. “does not extend to limiting the number of churches in the village of Saipipi or prohibiting the plaintiffs from conducting Bible classes or church services at Saipipi or otherwise restricting the freedom of religious worship or instruction or activity upon customary land in the village of Saipipi.”
Justice Wilson added the Alii & Faipule of the village of Saipipi have no power or authority to limit the number of churches in the village of Saipipi or to prohibit the plaintiffs from conducting Bible classes or church services at Saipipi (whether on freehold or customary land) or otherwise restricting freedom of religious worship or instruction or activity upon customary land under its authority.
“The Alii & Faipule of the village of Saipipi have no jurisdiction or authority to prevent or restrict a particular religion or religious instruction within the village of Saipipi,” the decision states.
“That, by virtue of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of Saipipi have no jurisdiction to prevent or restrict religious instruction and/or worship and/or activity being conducted upon freehold land within the village of Saipipi.”