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Legal Pluralism and Politics in Samoa: The Faamatai, Monotaga and the Samoa Electoral Act 1963

Part of the The World of Small States book series (WSS,volume 1)

Abstract

This chapter seeks to discuss the claim that Samoa has a dual legal system. It explores how an understanding of the interplay between (1) the faamatai (Samoa’s chiefly system), (2) Samoa’s parliamentary system, (3) the faasamoa (Samoa’s customary system), and (4) the faakerisiano (Samoa’s Christian system) can help us better understand this claim. It argues the importance of being able to read cultural nuance into case law, political acts and everyday practices of custom. Samoa’s recent H.R.P.P landslide election victory means that Samoa effectively has a one-party state where law-making will be dominated by H.R.P.P persuasions over the next 5 years. Without the checks and balances offered by an opposition party, Samoa’s voting public must find other ways to hold parliament and the government accountable to its prized rule of law—a rule of law assumed to be capable of giving due regard to the nuances of custom and culture i.e. to Samoa’s faasamoa, aganuu, agaifanua, and tu ma aga, as hoped for by the Constitution. In Samoa, all parliamentarians must by state law hold a matai or chiefly title. This puts the faamatai squarely within the decision-making whirlpool of Samoa’s Westminster parliamentary style democracy. Knowing, among other things, how to navigate the codes of conduct required of a matai as opposed to a parliamentarian requires deliberate examination of what these codes are in theory and in practice. This opens the gates to an analysis of the historical and ideological foundations of both systems or codes—where they meet and where they do not. Much is known about the philosophical bases of the jurisprudential traditions of the common law and Westminster politics. Very little deliberate scholarly examination is, however, available on the indigenous jurisprudence of small island states, like Samoa. Moreover, the significance of the discourse of God—of both God Ieova and God Tagaloa—to Samoa’s contemporary legal and governing discourses, is germane to a study of legal pluralism in Samoa. A lack of scholarly attention to the place of theology in understandings of law, culture and custom in the indigenous Pacific ensures that any examinations of legal pluralism in small island states like Samoa will, more often than not, miss the point. Therefore, knowing how to read cultural nuance in Samoan law and politics, understanding how the ‘blending’ of the faamatai and parliamentary democracy works (or not), and understanding the co-existence of God Ieova and God Tagaloa in state and custom laws, are elements emphasised in this chapter in its exploration of legal pluralism and party politics in Samoa.

Keywords

  • Constitutional Amendment
  • Opposition Party
  • Parliamentary Democracy
  • Legal Pluralism
  • Associate Minister

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.

    Tupufia (2016a).

  2. 2.

    Fono is a Samoan term for a meeting or council. Village fono refers to a village council. In Samoa the Village Fono Act 1990 was enacted to give state recognition of the importance of the village fono to local governance, among other things.

  3. 3.

    Keresoma (2013).

  4. 4.

    Ibid.

  5. 5.

    Official election results released by Radio New Zealand on 12 March 2016. H.R.P.P won 47 of the 50 seats, demolishing the former Tautua opposition party, leaving them with only 3 members in the current Parliament. See Radio New Zealand (2016a).

  6. 6.

    The terms faasamoa, aganuu, agaifanua and tu ma aga, are variously used to refer to Samoan customs, culture, traditions and worldview. Faasamoa, literally means ‘to be of Samoa’; aganuu refers to the ways of the village or community; agaifanua refers to the ways of the land of one’s birth—land in this case is most commonly understood to refer to the place of birth or birth village, but may also refer to the place to which the chiefly title belongs; tu ma aga refers to customs, literally ‘tu’ means the place in which one’s feet stands, i.e. ‘tu’ is to stand, from the phrase ‘tulaga vae’—vae refers to feet; tulaga refers to position or positioning of, ‘aga’ refers generally to the idea of ‘the ways of a people or group’. See Tamasese (2016).

  7. 7.

    Electoral Amendment Act 1990.

  8. 8.

    Simmonds (2008), Harris (2002), and McLeod (2007).

  9. 9.

    The recent works of His Highness, Samoa’s current head of state, Tui Atua Tupua Tamasese Ta’isi Tupuola Tufuga Efi are seminal in this regard, largely for the depth of analysis he gives to custom. As a cultural custodian Tui Atua was schooled in the customary knowledge of many of Samoa’s leading orators. Much of this knowledge was tapu (or sacred and protected) knowledge. As Tui Atua writes, in publishing some of the tapu knowledge passed on to him by his mentors he is breaking tapu and decided to do so notwithstanding in order to save much of what would otherwise be lost. See Suaalii-Sauni et al. (2009). The work of the late Asiata Saleimoa Vaai is also of considerable note. See Vaai (1999). Asiata was a trained lawyer and a political leader of Samoa. He was leader of the Samoa United Independents Political Party and the Samoa Democratic United Party.

  10. 10.

    Ieova is a Samoan loan translation of the term Jehovah, which is in turn the English loan translation of the Jewish name for their God, Yahweh.

  11. 11.

    God Tagaloa is in reference to the anthropomorphic God of Samoa that is also commonly referenced as the anthropomorphic God of other Polynesian countries as recorded in Polynesian oral histories. See Meleisea et al. (1987) and Marck (1996).

  12. 12.

    The recently published edited collection, titled Whispers and Vanities: Samoan indigenous knowledge and religion, offers useful discussion on some of the theological tensions between faakerisiano (Christian beliefs) and faasamoa (Samoan beliefs) about God in Samoa and other parts of the Pacific, particularly within Polynesia. See Suaalii-Sauni et al. (2014).

  13. 13.

    This neglect was contributed to by a number of structural and attitudinal factors: 1. The difficulties associated with having access to tapu knowledge (which a lot of customary knowledge is), mostly because cultural custodians either took the knowledge with them to their graves or they would refuse to part with it in any coherent way; 2. A lot of this knowledge was also lost when a significant proportion of the Samoan adult population died during the influenza epidemic that swept Samoa in 1918 during the New Zealand administration of Samoa; 3. With missionary influence a lot of this knowledge was discarded in favour of Christian-oriented beliefs when Samoans converted to Christianity; and 4. A misplaced presumption that Samoan indigenous knowledge could never be lost as long as the Samoan language survived and Samoa was independent of foreign rule.

  14. 14.

    See the Constitution of the Independent State of Samoa 1960. There are Samoan and English language versions of the Constitution.

  15. 15.

    Merry (1988).

  16. 16.

    New Zealand Law Commission (2006), p. 42.

  17. 17.

    Mulitalo (2013) and Mulitalo (2012a), p. 28: where she discusses the challenges of drafting legislation in Samoa, a country where she argues legal pluralism prevails. Mulitalo has worked as a legislative drafter for the Samoan government.

  18. 18.

    Ibid.

  19. 19.

    Ibid.

  20. 20.

    Merry (1988), p. 870.

  21. 21.

    In ways both coercive and productive as suggested by Foucault in his theses on discipline and punishment, and governmentality. See Foucault (1979) and Foucault (1994), pp. 229–245.

  22. 22.

    These Samoan words are used in the preamble of the Constitution. See discussion of this in Suaalii-Sauni (2010), pp. 70–88.

  23. 23.

    The history of the separation of Church and State in the history of western legal liberalism is not a history shared by Samoa and many of the other Pacific island nation states. For Samoa at the time of independence the adoption of Westminster models of justice and governance was more a matter of political necessity than widespread ideological belief. This creates significant theoretical and practical tensions for how the very notions of democracy and the rule of law ought to operate and why. Without specific address of the theological underpinnings of all that informs a Samoan jurisprudence, whether considered plural or otherwise, scholars and practitioners would miss this very crucial point.

  24. 24.

    In fact there are only a handful of notable Samoan legal scholars that conduct deliberate analyses of Samoan custom as a legitimate source of law. On top of the work of Teleiai Lalotoa Mulitalo, Asiata Saleimoa Vaai, and His Highness Tui Atua, is the excellent work of Fanaafi Aiono-Le Tagaloa. See Aiono-Le Tagalog (2009). The work of Samoan theologians such as Lalomilo Kamu on faasamoa and the Christian gospel has also been drawn on by Samoan social scientists interested in the philosophical premises of Samoan customary concepts, principles and institutions. See mention of Lalomilo Kamu’s work in Huffer and So’o (2005), p. 313.

  25. 25.

    Corrin (2009), p. 29.

  26. 26.

    Corrin (2016a).

  27. 27.

    Angelo (2012). See also Article 112 of the Samoa Constitution.

  28. 28.

    The English version of the Village Fono Amendment Bill 2015, s 2, which seeks to amend the Village Fono Act 1990, defines the legal terms ‘faiga fa’avae’ or ‘i’ugafono’ to mean ‘village faiga fa’avae or i’ugafono made pursuant to section 5’. The decision to retain the indigenous language in the defining of the indigenous terms rather than to offer an English translation is a major step forward in claiming legal pluralism in a juristic sense in Samoa.

  29. 29.

    See MNRE (2014, 2015).

  30. 30.

    A significant proportion of that number rely for daily living and for funding family and community events or contributions (including monotaga) on remittances from family members living outside of Samoa (mainly in New Zealand, Australia and the United States of America). See Samoa Bureau of Statistics (2016) and Macpherson and Macpherson (2011).

  31. 31.

    American Samoa is an unincorporated territory of the United States of America. It shares a strong and intimate cultural history with the independent state of Samoa.

  32. 32.

    Angelo (2012), p. 145.

  33. 33.

    So’o (2012), p. 44.

  34. 34.

    Ibid.

  35. 35.

    So’o (2008) and Tamasese (2016).

  36. 36.

    The Constitution of the Independent State of Samoa 1960, Part III.

  37. 37.

    The four pāpā titles are Tui Atua, Tui Aana, Gatoaitele and Vaetamasoalii. They are considered the four most paramount titles in Samoa. See So’o (2008) for a detailed explanation.

  38. 38.

    See Suaalii-Sauni et al. (2009, 2014) for discussion on these concepts (tofi, tofā, faautaga, tapu and va).

  39. 39.

    The Constitution of the Independent State of Samoa 1960, Part III, Art 25.

  40. 40.

    Tupufia (2016b) and Samoa Observer (2016). The first time this was debated was during the Constitutional debates. See Western Samoa Constitution Convention Debates, 1960.

  41. 41.

    So’o and Fraenkel (2005), p. 356.

  42. 42.

    Radio New Zealand (2016b).

  43. 43.

    Mulitalo (2012b) and Angelo (2012). Both sources mention that between 1962 and 2012 there have been 14 amendments to the Constitution. The 15th amendment to the Constitution occurred in 2013. A copy of Mulitalo’s unpublished work is on file with the author.

  44. 44.

    So’o (2012), p. 71.

  45. 45.

    Ibid.

  46. 46.

    Ibid.

  47. 47.

    Ibid.

  48. 48.

    See s 2. The Bill amends s. 3A of the principal Act. Available at http://www.palemene.ws/new/wp-content/uploads/Bills/2015/8/27%20August/Electoral-Amendment-Bill-No.-5-2015-Sam-Eng.pdf. Accessed 30 July 2016.

  49. 49.

    Ibid, s 3A.

  50. 50.

    Tulafono Tau Faaofi o Teuteuga o le Tulafono o Faiga Palota (Nu.5) 2015, 2, mo le fuaiupu 5 o le Tulafono autu.

  51. 51.

    Suaalii-Sauni et al. (2009), Tamasese (2016), Suaalii-Sauni (2010) and Ngan-Woo (1985).

  52. 52.

    Suaalii-Sauni et al. (2009).

  53. 53.

    Suaalii-Sauni (2007), pp. 33–60.

  54. 54.

    Ibid. Sister Vitolia Mo’a also explains that tausiga (or its root word ‘tausi’) is an ethical responsibility meaning ‘to care for’. It is a sacred value that is all embracing and is implied in the role of a matai, in his/her responsibilities to his/her aiga (family), nuu (village), lotu (church) and atunuu (country). To this extent it is something inherent in the role and calling of a matai (chief). Tausi/tausiga, along with tautua, are part of a system of proportionality in the faasamoa that has as its primary desire or imperative to share in the carrying of burdens or duties (faamāmā avega). (Pers. comm.).

  55. 55.

    Literally the words faautaga loloto or utaga loloto refer to the deep view or wisdom of an orator chief created through the type of burden or responsibility they carry. Loloto means deep; utaga refers to burden/responsibility. The terms tofā mamao means the wisdom of the long view or vision. Tofā refers to wisdom and mamao to long distance.

  56. 56.

    Ibid. See also discussion on this by Vaai (1999).

  57. 57.

    Suaalii-Sauni et al. (2009).

  58. 58.

    Electoral Amendment Act (No. 5) 2015.

  59. 59.

    Village Fono Act 1990. The Village Fono Amendment Bill 2015 does not remove this wording.

  60. 60.

    Pratt (1893), p. 224.

  61. 61.

    So’o (2007), p. 261.

  62. 62.

    Emphasis added.

  63. 63.

    As above.

  64. 64.

    See reference to these cases in Angelo (2012).

  65. 65.

    Angelo (2012), p. 153.

  66. 66.

    Malielegaoi v Tuitui [2016] WSSC 5. The case was presided by Chief Justice Sapolu and Justice Vaai.

  67. 67.

    Ibid, para 10.

  68. 68.

    Ibid, para 16.

  69. 69.

    Ibid.

  70. 70.

    [2016] WSSC 10. This case was presided over by Chief Justice Sapolu and Justice Vaai.

  71. 71.

    Ibid, para 11.

  72. 72.

    Ibid, para 12.

  73. 73.

    [2016] WSSC 10. This case was presided over by Chief Justice Sapolu and Justice Vaai, para 13.

  74. 74.

    Ibid, para 19 (emphasis added).

  75. 75.

    Ibid, para 20.

  76. 76.

    [2016] WSSC 10. This case was presided over by Chief Justice Sapolu and Justice Vaai, para 23.

  77. 77.

    Ibid, para 24.

  78. 78.

    Tupufia (2016c).

  79. 79.

    Ale (2016).

  80. 80.

    Huffer and So’o (2005), p. 327.

  81. 81.

    Huffer and Qalo (2004), p. 108.

  82. 82.

    Hau’ofa (1994).

  83. 83.

    Corrin (2016b). Published in Professor Corrin’s abstract in the conference programme.

  84. 84.

    Ibid.

  85. 85.

    Baird (2014), p. 80.

  86. 86.

    Ibid.

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Suaalii-Sauni, T. (2017). Legal Pluralism and Politics in Samoa: The Faamatai, Monotaga and the Samoa Electoral Act 1963. In: Butler, P., Morris, C. (eds) Small States in a Legal World. The World of Small States, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-319-39366-7_8

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