The Samoa Law Society responded to questions put to them by Newsline Samoa of whether it is possible to harmonise the individual and collective rights.
The press enquiry was to try and shed more light into the Constitutional changes debate that has turned into a clash between the two rights.
This is the Law Society’s response :
Is there room in the LTC for individual rights? The more apt term to refer to individual rights is human rights. The answer is there has to be room for human rights. If there is no room for human rights, the concept of communal rights fails.
Communities are made up of individuals, and if individuals cannot have their basic human rights guaranteed and protected, then they cannot participate and form any sort of harmonized and peaceful community. And if there is no harmonized and peaceful community, then there is no such thing as communal rights.
Yes our forefathers and framers of our Constitution were faced with the very difficult task of trying to harmonize the communal aspects of our culture and the need to protect human rights guaranteed to every Samoan. That is why the drafting of our Constitution went through very intensive and detailed consultative process and involved the number and caliber of leaders and matai that were involved.
The result of that process was a Constitution that harmonized the basic human rights of each Samoan with the communal aspect of our culture.
This Constitution has managed for 58 years to keep the two aspects balanced and checked.
The current 3 Bills do not specifically provide that communal rights will now be recognized on a more detailed level than it was before.
The argument that communal rights will now be given the elevated status it deserves is in the assumption that creating an independent LTC will automatically elevate communal rights.
However, it does not mean that automatically communal rights will now win over human rights where there is conflict.
What it simply means is that because of the separation of the two courts, there is now room and great potential for inconsistency and disharmony between the two rights.
This move dismantles all of the hard work our forefathers put into framing a Constitution that will create harmony between our culture and basic human rights.
This move has great potential to further the divide between our culture and the legal system.
Is it possible to harmonize individual and collective rights?
Of course it’s possible, we have been living that harmonized reality for 58 years now.
It is inevitable that in certain cases, human rights will have to win over collective rights. But it also means that at other times, collective rights win over human rights.
This is why we now have a Village Fono Act that allows the Alii and Faipule to banish individuals. That is collective right taking precedence over human right.
So the two systems are balanced and checked.
However with these 3 Bills, we risk this balance and we risk this harmony that we have achieved and lived for 58 years and for what?
For no apparent compelling reasons that would support the dismantling of a system that is working as best as it can in the unique circumstances of our country.