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Samoa is 99% Christian. Most Samoans attend church regularly. It is therefore not surprising that challenges to traditional church structures in Samoa as the¥ compete with newer Christian religions have generated legal conflict. This conflict was considered in a decision last year by Chief justice Sapolu of the Supreme Court of Samoa in the decision of Lafaialii v Attorney-General [2003] WSSC 8.[1] The decision also required the Court to consider conflicts between the Constitution of Independent State of Western Samoa 1960 ('Samoan Constitution') and Samoan customary law. In many ways this decision illustrates the clashes between western constitutional rights-based models and traditional legal systems based on custom and tribe, and prevalent in many indigenous communities around the world.
A Bill of Rights is enshrined in the Samoan Constitution, which adopts a common law model. Like many other Pacific islands, it entrenches various civil and political rights including the right to a fair trial, the right to freedom of religion, and freedom of speech. Samoa also has a legal system that to some extent recognises customary law and the ability of the chiefs (rnatai) of particular villages to control and decide issues in accordance with their traditional practices, as they have done for countless years of Samoan history. This is known as the Faa-Samoa (the Samoan way).
The decision of Sapolu CJ in this case, however, found that the exercise of customary law was restrained by the Constitution, and it was necessary to ensure that the rights enshrined in the Constitution were respected even if this impugned on the ability of a village to practise customary law.
In the village of Falealope on Savaii, the village chiefs approved a bible study group to operate in the village. However, the group grew and soon went from weekly bible studies to Sunday church services without the approval of the village chiefs. One chief provided the group with some land to erect a church or meeting hall which, shortly after, was built. At this stage, the local Pastor expressed his concern about the bible studies group to the Alii and Faipule (village chiefs). The Alii and Faipule determined that the bible classes should cease. The classes did not cease and as a result the Alii and Faipule petitioned the Land and Titles Court (that deals with customary law and customary land in particular) to have the classes cease and sought an order that those people who were not from the village should be forced to leave. The Land and Titles Court made that order but the bible studies group did not obey. The matter was again raised with the Land and Titles Court who found the relevant villagers in contempt of this order and sent some of them to jail. Reconciliation within the village followed but broke down shortly later. The bible studies group was again asked to leave the village and cease operating. The group took action in the Supreme Court of Samoa arguing that this order was unconstitutional as it infringed their rights to freedom of religion.
Article 11 of the Samoan Constitution states:
Every person has a right to freedom of thought, conscience and religion, this right includes freedom to change hrs religion or belief, and freedom, either alone or in a community with others, and, in public or private, to manifest
and propagate his religion or belief in worship, teaching, practice and observance.
Nothing in clause (1) shall affect the operation of an existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that clause in the interests of national security or of public order, health or morals, or for protecting the rights and freedom of others, including their rights and freedom to observe and practise their religion without the unsolicited interference of members of other religions.
Chief Justice Sapolu found that a balancing act was required between the Constitution and customary law. He relied on Canadian and Australian case law (R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 and Church
of New Faith v Commissioner of Payroll Tax (Victoria) [1983] HCA 40; (1982) 154 CLR 120), and an earlier decision of the Supreme Court of Samoa. He said that freedom of religion and the ability to change ones religion was an important right. He also stated that article 11 ensures that a minority religion must not be oppressed by those who do not practise that religion. Ordering banishment was a serious violation of a person's human rights. He considered Samoan customary law, which had kept the peace in Samoa over a number of years, but said there was an overall need for tolerance to ensure that peace remained. He also reaffirmed that the Samoan Constitution is the supreme law and overrode the customary law obligations. He stated:
Inherent in the concept of freedom of religion enshrined in the Constitution is tolerance, the ability to understand and accept the fact that not all people would hold and subscribe to the same religious beliefs even if they are all Christians. One must learn to tolerate and respect the religious beliefs of others even though such beliefs may be different from one's own religious beliefs. In this way, peace, harmony and stability will remain and continue in village societies. This will no doubt require some adjustment in the attitudes of some of the Alii and Faipule and some of the pastors of the mainline churches that is someth1ng that should not be beyond their capacities to achieve. After all the world IS never at a standstill; it is always turning. And the survival and growth in society involve the ability to adjust and adapt to new legitimate situations and ideas that arise from time to time in life. History has also shown that the persecution of people because of their relig1ous bel1efs had never succeeded in changing such beliefs but had only resulted in immense and undesirable misery, hardship and suffering.[2]
This decision illustrates how Samoa has sought to interpret its western traditional rights-based systems and reconcile it with customary law, which is still a key part of Samoan society and culture. The Samoan judiciary has sought to resolve this conflict by ensuring that the concept of freedom of religion has been interpreted in a way to promote tolerance and understanding of difference, even if this forces changes to customary law.
In 2002-2003, KIRSTY RUDDOCK was Australian Youth Ambassador for Development in the Samoan Attorney General's Office and now works as a solicitor at the Environmental Defender's Office, North Queensland.
© 2004 Kirsty Ruddock
[1] This particular decision can be found at www.paclii.org/ws/cases/WSSC/2003/8.html at 10 August 2004. Many decisions of the Supreme Court of Samoa and other Pacific countries can be found at PacLii, which can be found at <www paclii.org> at 10 August 2004. This website had replaced the official law reports 1n most of these countries.
[2] Ibid.
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2004/57.html