Criminal Courts have Always Recognised Samoan Culture – Samoa Law Society President

The President of the Samoa Law Society, Leiataualesā Komisi Koria

APIA, SAMOA – 30 JULY 2020:  The President of the Samoa Law Society, Leiataualesā Komisi Koria has rubbished the Special Parliamentary Committees stance that the proposed changes to the Constitution will give recognition to the Samoan culture in criminal matters.

“Any lawyer who practices in Court in Samoa would tell you that the Samoan culture is given recognition in criminal matters for a very long time now,” said Leiataualesā.

In an interview with Talamua, Leiataualesā referred to handouts the Committee has been providing embers of the public that highlights 10 points why the changes are needed to the 3 controversial Bills they now seek public views and submissions.

The Bills are Land and Titles Court Amendment Act 2020, Judicature Act 2020 and the Constitution Amendment Act 2020.

During these public consultations, the Committee has been working to convince the public that one of the changes to the Constitution will finally reflect the importance of Samoan culture in hearing and considering criminal matters in Court.

Leiataualesā has strongly criticized this stance as not true.

Members of the Special Parliamentary Committee chaired by former Cabinet Minister, Gatloaifaana Ama Gidlow (in red)

“The Parliamentary Committee is making it look like as if Samoan culture is not recognised by the Courts now, and these Bills will change that,” explained Leiataualesā.

He pointed out that under the Village Fono Act 1990; there is provision that requires the criminal court to take into account as a mitigating factor, a village’s decision or penalty issued on a defendant.

“For instance, if someone is charged with assault in Court and the village penalised that person with 50 cartons of fish and 50 pigs. If the guilty person has presented a traditional apology – ifoga, the   Court will use those to less any sentence intended for the defendant,” Leiataualesā clarified.

“It’s an old practice,” he said.

“The Sentencing Act provides recognition of village decisions in sentencing someone, which has been provided by the Village Fono Act since 1990.”

The Constitution stance on Samoan culture

The handouts also stated that there is no emphasis on Samoan culture in the Constitution. It says that out of the 124 articles of the Constitution, there are only 8 or 7% are references on Samoan culture.

“This is where they claim there’s not enough emphasis on the faa-Samoa in the Constitution,” said Leiataualesā.

He said Samoan culture is well and emphatically protected under the Constitution.

“For example, if you ask what is the identity of a Samoan person, the answer is the matai title he and his family hold as their ‘tofi” said Leiataualesā.

“This is where the Constitution is very strong in protecting the tofi (inheritance) of a Samoan person,” he explained.

“All Samoan matai titles cannot be touched unless under Samoan culture and customs. This means, even Parliament cannot touch matai titles unless under a law on Samoan culture and customs.”

It’s the same with customary lands which are protected under s.101 and 102 of the Constitution.

Leiataualesā said if changes were to be made to the Constitution, not Government nor Parliament has the power to do so, but only by a public consultation.

He argued that the Parliamentary Committee’s stance is unfounded especially that no law is above the Constitution.

Committee’s handouts not following procedures

Leiataualesa is very concerned that the handouts are selective and do not cover all the issues or concerns raised by the public regarding the proposed changes in the Bills.

“If all these issues are not covered, then the people will make decisions based on limited information provided,” he said.

He also criticized the Committee for not following proper procedures and their duties as a Parliamentary Select Committee, that to hear public views on the Bills and not defending and clarifying the Bills to members of the public appearing before the Committee.