I write in response to the request made in the Justice Minister’s Letter to the Editor of the Samoa Observer of 8th September 2024.
It is plainly obvious that the Minister and her advisors who helped draft the letter are not aware of our 2016 in-depth consultations, I as Leader of Government, with Chief Justice Patu Tiava’aseu’e Falefatu Sapolu, and new Members of Parliament who were in attendance, on constitutional issues regarding the customary rights of our council of chiefs and our Samoan people, and the reasons why they were not in our Constitution.
There were also clarifications as to why the reference to Samoa being founded on God appeared only in the preamble and not in the Articles of the Constitution.
During the recent Parliament meeting, I provided detailed background on the Constitutional amendments of December 2020.
The Minister never said a word about these rights during her response after the second reading debate.
For the Land and Titles Court, I have emphasized its paramount role in the determination and protection of Samoan customary rights, making reference to the ‘in rem’ nature of its decisions that bind everyone, whether they were a party to a proceeding or not, necessitating the full enforcement of Samoans rights to a fair trial with their customary rights.
The Samoan public is wondering, why the Minister for Justice did not raise these matters during the debate in the Maota.
I could have quite easily explained these matters if she had asked them in the Maota, or even during the breaks, considering that all of the HRPP Members in the second reading debate spoke about the need to maintain and protect the communal rights of our people in addition to their individual rights introduced by the Papalagis.
As the Minister prefers reading my Letters to The Editor rather than asking questions in the Maota, I will use this letter to again explain the background on why this is a matter of national concern.
At the start of the XVIth term of Samoa’s Parliament in March 2016, Samoa’s newly elected members who participated in a Parliament Symposium, during which the issue of recognizing and prioritizing Samoans in our laws was discussed and brought to the forefront for necessary action.
The challenges and conflicts between modern laws and the customs and usages of the Samoan people were highlighted.
The question was posed as to why the Samoan Constitution was more protective of the introduced modern principles such as individual rights, as compared to the Samoan custom and traditions, the way of life of the Samoan people?
In a court room, why are individual rights more powerful than Village Fono decisions?
The simple answer is because the Constitution says so.
In response to these challenges, Samoa, through our Constitutional Amendment Bill 2020 opted to give more recognition of Samoa customs and usages in our own Constitution.
This was done without removing our individual rights and freedoms.
The Constitution Amendment Bill of 2020 which the Human Rights Protection Party proposed, was the result of 5 years of public consultations both before the laws were drawn up and again after the bills were passed following its second reading.
The Constitution Amendment Bill of 2020 adopted the best of both modern principles and customary values, so that Samoan customs and usages are preserved for our future generations.
Article 104 of the Constitutional Amendment 2020 explicitly provides that the Land and Titles Court has ‘special jurisdiction; it governs a legal system different and separate from that of the Civil and Criminal Courts’ with ‘all persons entitled to the protection of their customs rights’ in this Article.
And the creation of the Land and Titles Court of Appeal and Review empowers that ‘special jurisdiction’ enabling the ‘protection of customs rights.
This ‘special jurisdiction’ to ‘protect custom rights’ will be abolished if the Constitutional Amendment Bill of 2024 secures the two thirds vote of Members of Parliament needed to pass it.
The Faatuatua i le Atua Samoa ua Tasi dominated Parliament has passed its Constitution Amendment Bill but its third reading will require a two thirds majority.
If the FAST Party’s Constitutional Amendment Bill of 2024 becomes law, it will be the first step in making Samoans foreigners in their own homeland.
HRPP members oppose the Constitution Amendment 2024 bill based on our foundational commitment to protect and preserve the traditions and culture that is the heart of Samoa’s indigenous and communal identity.
Without this protection, there will be no Fa’a Samoa.
Samoans can see for themselves, around the world, the many indigenous cultures and traditions that have been displaced as a result of misguided leaders’ eagerness to conform to foreign values.
I hope that this letter provides the Minister, and her Advisors, the accuracy and leadership that they are desperately seeking.
Tuilaepa Sailele Malielegaoi
Leader of HRPP