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Fetuunai Muniao Lipoti O Suesuega Galuega Faatino 1

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Fetuunai Muniao Lipoti O Suesuega Galuega Faatino 1 FETUUNAI MUNIAO LIPOTI O SUESUEGA GALUEGA FAATINO 1 “Suesue ma Iloilo tulafono a Samoa; ia atagia tu ma aganuu a Samoa i totonu o le Tulafono Faavae, i totonu o aiaiga o le Tulafono Faavae.” 1 © Samoa Law Reform Commission Table of Contents BACKGROUND ........................................................................................................................... 3 1. PART 1: INTRODUCTION .................................................................................................. 4 A. Government .......................................................................................................... 4 B. Parliament XVIth Symposium ......................................................................... 5 C. Other Materials Relied Upon .......................................................................... 6 2. PART 2: CURRENT STATUS OF CUSTOM IN SAMOA’S LAWS ............................. 7 A. Custom in the Constitution ............................................................................. 7 B. Custom in the Current Acts of Parliament of Samoa ............................ 8 3. PART 3: CUSTOM IN THE COURT JUDGMENTS OF SAMOA ............................. 12 A. Courts Jurisdiction on Customary Matters ............................................ 12 B. Guidelines for Judicial Procedures............................................................ 13 4. PART 4: CUSTOM IN PACIFIC ISLANDS CONSTITUTIONS and LAW REFORM LEGISLATION .................................................................................................. 21 A. Constitutions of Pacific Islands .................................................................. 22 B. Law Reform Commission legislation of the Pacific Islands ............. 24 5. PART 5: LITERATURE REVIEW OF CUSTOM IN THE LAWS OF PLURAL COUNTRIES ......................................................................................................................... 25 A. The Challenges in Accommodating Individual and Communal laws 25 B. Possible Solutions ........................................................................................... 27 6. APPENDICES ....................................................................................................................... 31 Appendix A – XVIth Parliament Symposium Presentations .................... 31 Appendix B – Custom in the Constitution ..................................................... 32 Appendix C – ‘Custom in Law’ for Reform ..................................................... 34 Appendix D – Custom in Pre-Independence Court Judgments ............. 37 Appendix E – Custom in Post-Independence Court Judgments ............ 41 7. LIST OF REFERENCES ..................................................................................................... 80 2 © Samoa Law Reform Commission BACKGROUND By Cabinet Directive FK (19)31 of 20 September 2019 the Ministry of Justice and Courts Administration, the Office of the Attorney General and the Samoa Law Reform Commission were tasked to research and recommend on the following Terms of Reference. Terms of Reference 1 To review and research the laws of Samoa on how customs and usages can be recognised and protected under the Constitution, within the ambits of the Constitution; Terms of Reference 2 To review and research the laws of Samoa on how the LTC can be an autonomous set up from the formal courts, within the ambits of the Constitution; and Terms of Reference 3 To make recommendations. Following approval by the Hon Prime Minister and the Minister of MJCA on 11 October 2019 of the above TOR, the Samoa Law Reform Commission (SLRC) carried out research to inform the recommendations for this Project. 3 © Samoa Law Reform Commission 1. PART 1: INTRODUCTION A. Government 1.1 Government’s instructions under the 3 Terms of References above outline a clear vision of the Government for Samoa – that the essence of being a Samoan must be given more recognition and protection in its Constitution and other governing state laws. What does this mean? 1.2 The essence of being a Samoan lies in Samoa’s customs and usage. As crucial as these are to Samoans, they are given very little reference, recognition and protection in its Constitution and totality of its governing laws (some 285 laws of Parliament as of December 2019). This is the reality and challenge faced by Samoa as a legal pluralist society as it aspires to have its customary rules recognized in its state laws. These challenges are not unique to Samoa, but are also experienced by other Pacific Islands and many other distant developing countries with similar historical backgrounds. What study would this exercise fall under in the area of legal theoretical and doctrinal thought? Legal Pluralism – A Legal Theoretical Framework 1.3 ‘Legal pluralism’ is not a new concept, but the study of it only became prevalent around the 1970s and 1980s as societies became more and more aware of their need to understand the complexities of having 2 or more legal systems operating within one country/nation. Legal pluralism recognizes the existence of customary laws alongside state laws and it opposes the European positivistic legal philosophy of state domination. However dominant and imperious the state is, it is one among many ‘social groupings’ or ‘orderings’. In the same way the state needs an apparatus of social control such as laws and institutions for the institutionalisation of conflicts and resolution, similar needs are required by social orderings other than the state. Villages, districts and provinces of customary communities operate alongside the state, and at times the customary laws and the state laws may overlap, but they do not suppress each other to the point of destruction. The different legal systems may even supplement each other on issues particular to a social order and in which that social order provides the best resolutions.”1 The leading scholars on legal pluralism to name a few include Galanter,2 Griffiths,3 Baxi 1 Seumanutafa TLMRS, Legal Pluralism in Plural Societies, Springer International Publishing AG, Switzerland, 2018, 23, 24. 2 Galanter, Marc, 'Justice in Many Rooms: Courts Private Ordering and Indigenous Law' (1981) 19 J Pluralism & Unofficial L 25. 3 Griffiths, John, 'What is Legal Pluralism?' (1986) 24 Journal of Legal Pluralism 39. 4 © Samoa Law Reform Commission Upendra,4 Boaventura de Sousa Santos,5 Tamanaha,6 Merry,7 Chiba,8 and Moore.9 Government’s Instructions 1.4 In light of the above, the need to reflect Samoa in her laws by the recognition of Samoa’s custom and usages as part of the laws of Samoa is not new. This has been in the pipeline for some time; it was just a question of when to put this into action. At the start of the XVIth Parliamentary term of Samoa’s Parliament in March 2016, Samoa’s newly elected 16th Parliament sat through a Parliament Symposium to introduce members into the new 5 year Parliamentary term. It was here that the notion was brought back to the forefront for necessary action, when the speakers at this Symposium brought out the challenges of the conflicts between modern laws protected and supported under the Constitution, and the custom and usages of the Samoan people.10 B. Parliament XVIth Symposium Summary: Parliament XVI Symposium (29th – 31st March 2016) 1.5 The presentations presented at the XVIth Parliament - Symposium to welcome the new Members of Parliament after the General Elections 2016 highlighted the difficulty in accommodating both our introduced laws from overseas jurisdictions with Samoa’s custom and usages. 1.6 A total of six (6) presentations were reported in the Palemene Newspaper,1 from the 2016 Parliament Symposium. 1.7 These included presentations by: a. the Honourable Prime Minister, b. the Honourable Speaker of the Legislative Assembly, c. His Honour - Former Chief Justice and the Controller, and d. the Auditor General. 4 Baxi, Upendra, 'Disciplines, Repression and Legal Pluralism' in Peter Sack and Elizabeth Minchin (ed), Legal Pluralism, Proceedings of the Canberra Law Workshop VII (Pink Panther, ANU, 1986) 51. 5 Santos, Boaventura de Sousa, Toward a New Legal Common Sense (Thompson Litho Ltd. Scotland, 2nd ed, 2002). 6 Tamanaha, Brian Z, 'Understanding Legal Pluralism: Past and Present, Local to Global' (2008) 30 Sydney Law Review. 7 Sally Engle Merry, ‘Legal Pluralism’ (1988) 22 (5) Law and Society Review 869-896. 8 Masaji Chiba (ed), Asian Indigenous Law: In Interaction with Received Law (London and New York KPI, 1986). 9 Moore, Sally Falk, 'Law and Social Change: The Semi-Autonomous Field as an Appropriate Subject of Study' (1973) 7(4) Law and Society Review 719. 10 The electoral laws of Samoa from which candidates are appointed require a candidate must comply with customary criteria, such as having carried out ‘monotaga’ or village services in the village, have resided in the village for 3 years, and so on. 5 © Samoa Law Reform Commission 1.8 For the purpose of this review, the most relevant presentation was His Honour - Former Chief Justice Sapolu’s presentation entitled ‘Parliament and the Courts’. This led to active, expressive and passionate discussions on one of the most challenging areas of law, that of the accommodation of both the western laws and customary laws in Samoa and other plural societies. Most Members of Parliament were unhappy that the Samoan customs and usages are trumped by the Constitutional fundamental rights. They questioned if this will continue to suppress and negatively affect the existence of the faa Samoa.
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