Samoa’s Constitution – the limited references to Samoan custom Telei’ai Dr. Lalotoa Mulitalo PACIFIC CONSTITUTIONS RESEARCH NETWORK CONFERENCE 23-25 Nov 2016, USP Emalus Campus Vanuatu

Outline The 4 constitutional references to custom Emphasis of constitutional amendments since 1962 independence Art 44 re MPs to be from villages, and amendments to the Electoral Act (for monotaga, tautua faaauau etc) Proposed Constitutional Amendment

A. Constitutional References to Custom Preamble – WHEREAS the Leaders of Samoa have declared that Samoa should be an Independent State based on Christian principles and Samoan custom and tradition… Art 44: Members of the Legislative Assembly are to be selected from villages or sub-villages. Electoral Act 1963 s5. A candidate must be a holder of a matai title Art 101. Land in Samoa - (1) All land in Samoa is customary land (approx. 81%), freehold land (about 4%) and public land (some 15%). 102. No alienation of customary land - Customary land (81%) alienation is prohibited, except by Act. 103. Land and Titles Court- There shall be a Land and Titles Court. See the Land and Titles Act 1981. Art 111(1) - “Law” being in force in Samoa; includes the Constitution, any Act of Parliament and regulations made thereunder, the English common law and equity, and any custom or usage which has acquired the force of law in Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction.

B. Emphasis of constitutional amendments since 1962 independence

PART B – EMPHASIS of Constitutional Reforms 1962-2016

Emphasis of Constitutional Reforms 1962 to Dec 2015 – 54th Anniversary, the Constitution of the Independent State of Samoa has been amended 18 times, by 18 Constitutional Amendment Acts. Part 7 (Public Service) was most revised under 7 Constitutional Amendment Acts, from independence (1962) to date. Most amended is Art 83 on the list of positions exempted from the ‘public service’ (8 amendments from under 7 Consti Amendment Acts made to Articles 83-89) Part 5 – Parliament next most revised, then equal emphasis on Part 3 - Executive, Part 4 – HOS and Part 8 - Finance.

EMPHASIS of Constitutional Reforms - Excel Parts of the Constitution - Samoa No of times Part is amended Part - Ref to Custom Part 1 - Preliminaries 1 Preamble – Samoa found on …custom….. Part 2 - Fundamental Rights 3 Part 3 - Head of State 4 Part 4 - Executive Part 5 - Parliament 6 Article 44 – MPs from villages Part 6 - Judiciary 2 Part 7 - Public Service 8 Part 8 - Finance Part 9 - Land and Titles Arts 101, 102, 103 – Cust land, LTC etc, Part 10 - Emergency Powers Part 11 - General & Miscellaneous Art 111 – ‘Law’ defined Part 12 - Transitional

By 2015, the Constitution of Samoa had been amended by a total of 18 Constitutional Amendment Acts. None of the 18 Amendment Acts extended the very limited recognition currently afforded to customs by the Constitution. This is despite aspirations for the Samoan customary system to be recognised on the same level as that of the state legal system.

C. Via Art 44 re MPs to be from villages - Electoral Act amended within the spirit of the Constitution

Custom in the Electoral Act (amendments up to 2015) (O’o ma momoli) Gift giving, reciprocity -v- bribery, treating, corrupt practice Tautua fa’aauau (traditional service or assistance) -v- bribery, treating Monotaga (village services) candidacy criteria - the compulsory service, assistance or contribution (such as, contribution in form of cash, kind or goods) rendered for customary, traditional or religious activities, events, function or similar purposes pursuant to the customs of a particular village; Village Service means -- monotaga rendered by a candidate in respect of one or more of his or her Matai titles within the territorial constituency in which the candidate intends to stand as a candidate;

D. Proposed Constitution Amendment

Proposed Constitution Amendment Recognises customs and usages as ‘law’ under Article 111 of the Constitution of Samoa 1962 (Samoa) re: court decisions; empowers the courts to take account of Samoan customs from the commencement of proceedings and not at sentencing only; give due regard to the preamble of the Constitution, all still within the scope of the Constitution. This can be done by inserting the following after article 81 of the Constitution. 81A. Judicial Guidance – Subject to the provisions of this Constitution, custom must be taken into account in all courts of Samoa. Other judicial guides such as codes and benchbooks must be developed in line with this provision.

See - section 11, Clause XI of the Constitution of the Federated States of Micronesia (FSM). It provides that ‘Court decisions shall be consistent with this Constitution, Micronesian customs and traditions, and the social and geographical configuration of Micronesia’. Other states of the FSM incorporated similar constitutional provisions into the national Constitution. This clause has played a role in bridging the gap between the customary laws of Micronesia and the introduced laws allowing parties to present customary evidence to prove their claim.

FAAFETAI LAVA!!

Abstract By 2015, the Constitution of Samoa had been amended by a total of 18 Constitutional Amendment Acts. None of the 18 Amendment Acts extended the very limited recognition currently afforded to customs by the Constitution. This is despite aspirations for the Samoan customary system to be recognised on the same level as that of the state legal system. Focussing on Samoa, this presentation discusses how Parliament has, through recently enacted legislation, attempted to give some recognition to customs and customary institutions, within the scope of the Constitution. Although this is in some way positive for customs, this presentation argues that unless the Constitution itself is amended specifically to give more recognition to customs, the restricted scope permitted by the Constitution will continue to marginalise customs. The presentation will conclude with some suggestions to address this dilemma.