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.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Tupufia (2016a).
- 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.
Keresoma (2013).
- 4.
Ibid.
- 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.
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.
Electoral Amendment Act 1990.
- 8.
- 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.
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.
- 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.
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.
See the Constitution of the Independent State of Samoa 1960. There are Samoan and English language versions of the Constitution.
- 15.
Merry (1988).
- 16.
New Zealand Law Commission (2006), p. 42.
- 17.
- 18.
Ibid.
- 19.
Ibid.
- 20.
Merry (1988), p. 870.
- 21.
- 22.
These Samoan words are used in the preamble of the Constitution. See discussion of this in Suaalii-Sauni (2010), pp. 70–88.
- 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.
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.
Corrin (2009), p. 29.
- 26.
Corrin (2016a).
- 27.
Angelo (2012). See also Article 112 of the Samoa Constitution.
- 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.
- 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.
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.
Angelo (2012), p. 145.
- 33.
So’o (2012), p. 44.
- 34.
Ibid.
- 35.
- 36.
The Constitution of the Independent State of Samoa 1960, Part III.
- 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.
- 39.
The Constitution of the Independent State of Samoa 1960, Part III, Art 25.
- 40.
- 41.
So’o and Fraenkel (2005), p. 356.
- 42.
Radio New Zealand (2016b).
- 43.
- 44.
So’o (2012), p. 71.
- 45.
Ibid.
- 46.
Ibid.
- 47.
Ibid.
- 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.
Ibid, s 3A.
- 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.
- 52.
Suaalii-Sauni et al. (2009).
- 53.
Suaalii-Sauni (2007), pp. 33–60.
- 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.
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.
Ibid. See also discussion on this by Vaai (1999).
- 57.
Suaalii-Sauni et al. (2009).
- 58.
Electoral Amendment Act (No. 5) 2015.
- 59.
Village Fono Act 1990. The Village Fono Amendment Bill 2015 does not remove this wording.
- 60.
Pratt (1893), p. 224.
- 61.
So’o (2007), p. 261.
- 62.
Emphasis added.
- 63.
As above.
- 64.
See reference to these cases in Angelo (2012).
- 65.
Angelo (2012), p. 153.
- 66.
Malielegaoi v Tuitui [2016] WSSC 5. The case was presided by Chief Justice Sapolu and Justice Vaai.
- 67.
Ibid, para 10.
- 68.
Ibid, para 16.
- 69.
Ibid.
- 70.
[2016] WSSC 10. This case was presided over by Chief Justice Sapolu and Justice Vaai.
- 71.
Ibid, para 11.
- 72.
Ibid, para 12.
- 73.
[2016] WSSC 10. This case was presided over by Chief Justice Sapolu and Justice Vaai, para 13.
- 74.
Ibid, para 19 (emphasis added).
- 75.
Ibid, para 20.
- 76.
[2016] WSSC 10. This case was presided over by Chief Justice Sapolu and Justice Vaai, para 23.
- 77.
Ibid, para 24.
- 78.
Tupufia (2016c).
- 79.
Ale (2016).
- 80.
Huffer and So’o (2005), p. 327.
- 81.
Huffer and Qalo (2004), p. 108.
- 82.
Hau’ofa (1994).
- 83.
Corrin (2016b). Published in Professor Corrin’s abstract in the conference programme.
- 84.
Ibid.
- 85.
Baird (2014), p. 80.
- 86.
Ibid.
References
Aiono-Le Tagaloa F (2009) Sua le lea, toto le ata: the land and titles court of Samoa, 1903–2008: amid continuity and change. PhD Thesis, Faculty of Law at the University of Otago
Ale PM (2016) Disqualified candidate wants Act reviewed. In: Samoa Observer. Available at http://www.samoaobserver.ws/en/27_02_2016/local/2998/Disqualified-candidate-wants-Act-reviewed.htm. Accessed 30 July 2016
Angelo AH (2012) Steady as she goes: the constitution and the court of appeal of Samoa. NZACL Yearb 18:145–165
Baird N (2014) Judges as cultural outsiders: exploring the expatriate model of judging in the Pacific. Canterbury Law Rev 19:80–96
Brown K (1999) Customary law in the Pacific: an endangered species? J S Pac Law 3. Available at https://www.usp.ac.fj/index.php?id=13145. Accessed 30 July 2016
Corrin J (2009) Moving beyond the hierarchical approach to legal pluralism in the South Pacific. J Leg Pluralism 59:29–48
Corrin J (2016a) Dispelling the myths of legal pluralism. Oral Presentation given at the Pasifika Law and Culture Conference, Victoria University of Wellington
Corrin J (2016b) Pacific legal systems: past, present and future. Panel presentation as part of the 6th Biennial Conference of the Australian Association of Pacific Studies, Pacific Pasts - Pacific Futures, James Cook University
Foucault M (1979) Discipline and punish: the birth of the prison. Vintage, New York
Foucault M (1994) Governmentality. In: Rabinow P, Rose N (eds) The essential Foucault: selections from essential works of Foucault. The New Press, New York, pp 1954–1984
Harris P (2002) An introduction to law, 6th edn. Butterworths Tolley
Hau’ofa E (1994) Our sea of islands. Contemp Pac 6(1):147–161
Huffer E, Qalo R (2004) Have we been thinking upside-down? The contemporary emergence of Pacific theoretical thought. Contemp Pac 16(1):87–116
Huffer E, So’o A (2005) Beyond governance in Sāmoa: understanding Samoan political thought. Contemp Pac 17(2):311–333
Keresoma L (2013) Prime minister wanted Lafaitele expelled from party. In: Talamua Online News. Available at http://www.talamua.com/prime-minister-wanted-lafaitele-expelled-party. Accessed 30 July 2016
Macpherson C, Macpherson L (2011) Churches and the economy of Samoa. Contemp Pac 23(2):304–337
Marck J (1996) The first-order anthropomorphic gods of Polynesia. J Polyn Soc 105(2):217–258
McLeod I (2007) Legal theory, 4th edn. Palgrave MacMillan, New York
Meleisea M et al (1987) Lagaga: a short history of western Samoa. University of the South Pacific, Fiji
Merry SE (1988) Legal pluralism. Law Soc 22(5):869–896
MNRE (2014) Island biodiversity national theme: embracing the importance of Samoa’s biodiversity. Available at http://www.mnre.gov.ws/index.php/biodiversity/83-environment-a-conservation. Accessed 30 July 2016
MNRE (2015) Aleipata communities support management of invasive species at Aleipata islands. Available at http://www.mnre.gov.ws/images/stories/MNRE/DEC/AleipataIslandsConsulation.pdf. Accessed 30 July 2016
Mulitalo TL (2012a) The practice of legislative drafting in Samoa, a plural society of the South Pacific. Loophole Commonw Assoc Legislat Couns 3:28–44
Mulitalo TL (2012b) The constitution of the Independent State of Samoa: constitutional amendments 50 years on, 1962–2012. Unpublished work. Copy available with the author
Mulitalo TL (2013) The consequences of legal pluralism for law reform in the South Pacific. PhD Thesis, TC Bierne School of Law at the University of Queensland. Available at http://espace.library.uq.edu.au/view/UQ:314962. Accessed 30 July 2016
New Zealand Law Commission (2006) Converging currents: custom and human rights in the Pacific. In: Law Commission study paper 17. Available at http://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20SP17.pdf. Accessed 30 July 2016
Ngan-Woo F (1985) Faasamoa: the world of the Samoans. Office of the Race Relations Conciliator, Auckland
Pratt G (1893) Pratt’s grammar dictionary Samoan-English English-Samoan, 3rd edn. London Missionary Society, London
Radio New Zealand (2016a) HRPP 47 seats, Tautua three - official result from Samoa election. Available at http://www.radionz.co.nz/international/pacific-news/298738/hrpp-47-seats,-tautua-three-official-result-from-samoa-election. Accessed 30 July 2016
Radio New Zealand (2016b) Samoa’s ruling party given resounding mandate in elections. Available at http://www.radionz.co.nz/international/pacific-news/298183/samoa's-ruling-party-given-resounding-mandate-in-elections. Accessed 30 July 2016
Samoa Bureau of Statistics (2016) Population & demography indicator summary. Available at http://www.sbs.gov.ws/index.php/population-demography-and-vital-statistics. Accessed 10 April 2016
Samoa Observer (2016) Party politics claim denied. Available at http://www.samoaobserver.ws/en/25_02_2016/local/2906/Party-politics-claim-denied.htm. Accessed 30 July 2016
Simmonds NE (2008) Central issues in jurisprudence, 3rd edn. Sweet & Maxwell, London
Suaalii-Sauni T (2007) E faigatā le alofa: the Samoan fa’amatai – reflections from afar. In: So’o A (ed) Changes in the fa’amatai system: o suiga i le fa’amatai. National University of Samoa, Apia
Suaalii-Sauni T et al (eds) (2009) Su’esu’e Manogi: In search of fragrance: Tui Atua Tupua Tamasese Ta’isi and the Samoan indigenous reference. Centre for Samoan Studies at the National University of Samoa, Samoa
Suaalii-Sauni T (2010) Samoan custom and discourses of certainty. In: Benton RA (ed) Yearbook of New Zealand Jurisprudence, vols 13–14. University of Waikato, Hamilton
Suaalii-Sauni T et al (eds) (2014) Whispers and vanities: Samoan indigenous knowledge and religion. Huia Publishers, Wellington
So’o A, Fraenkel J (2005) The role of ballot chiefs (matai palota) and political parties in Samoa’s shift to universal suffrage. Commonw Comp Polit 43(3):333–361
So’o A (ed) (2007) Changes in the fa’amatai system: o suiga i le fa’amatai. National University of Samoa, Apia
So’o A (2008) Democracy & custom in Sāmoa: an uneasy alliance. IPS Publications, Fiji
So’o A (2012) Political development: Samoa’s parliamentary journey from 1962 to 2012. In: Meleisea M et al (eds) Samoa’s journey 1962–2012: aspects of history. Victoria University Press, Wellington, pp 44–76
Tamasese TAT (2016) Keynote address: where is our island? Navigating language, vision and divine designation in Samoan law and jurisprudence. Keynote Address, Samoa Law Society & Te Hunga Rōia Māori o Aotearoa Joint Conference, 7 July 2016, Apia, Samoa. Available at http://www.headofstate.ws/where-is-our-island-navigating-language-vision-and-divine-designation-in-samoan-law-and-jurisprudence. Accessed 30 July 2016
Tupufia LT (2016a) Associate minister wanted. In: Samoan Observer. Available at http://www.samoaobserver.ws/en/03_04_2016/local/4494/Associate-Minister-wanted.htm. Accessed 30 July 2016
Tupufia LT (2016b) Savai’i ignored, Tautua claims. In: Samoa Observer. Available at http://www.samoaobserver.ws/en/04_02_2016/local/2004/Savai’i-ignored-Tautua-claims.htm. Accessed 30 July 2016
Tupufia LT (2016c) Faumuina successful, Le Tagaloa disqualified. In: Samoan Observer. Available at http://www.samoaobserver.ws/en/26_02_2016/local/2948/Faumuina-successful-Le-Tagaloa-disqualified.htm. Accessed 03 Sept 2016
Vaai S (1999) Samoa faamatai and the rule of law. National University of Samoa, Samoa
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing AG
About this chapter
Cite this chapter
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
Download citation
DOI: https://doi.org/10.1007/978-3-319-39366-7_8
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-39365-0
Online ISBN: 978-3-319-39366-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)