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This book asserts that the Pacific Islands continue to struggle with the colonial legacy of plural legal systems, comprising laws and legal institutions from both the common law and the customary legal system. It also investigates the extent to which customary principles and values are accommodated in legislation. Focusing on Samoa, the author argues that South Pacific countries continue to adopt a Western approach to law reform without considering legal pluralism, which often results in laws which are unsuitable and irrelevant to Samoa. In the context of this system of law making, effective law reform in Samoa can only be achieved where the law reform process recognises the legitimacy of the two primary legal systems. The book goes on to present a law reform process that is more relevant and suitable for law making in the Pacific Islands or any post-colonial societies.



Chapter 1. Introduction

On 10 December 2011, following several unsuccessful attempts to reach agreement, and convinced that the village matai (traditional Samoan chief) Leota Ituau Ale (Ale) was acting against the interests of the village, the village council of Solosolo banished Ale and his family from the village of Solosolo. On 9 February 2012, Ale petitioned the Land and Titles Court of Samoa (LTC) to overturn the decision of the village council. A week later, in a decision handed down on 17 February 2012, the LTC ruled in favour of Ale and revoked the banishment order of the village council. On 20 February 2012, a family home belonging to Ale at Solosolo was scorched to the ground. Despite the LTC decision, the village council continued to enforce its banishment order over Ale and his descendants.
On 24 February 2012, deeply affected by the destruction of Ale’s residence, Satoa a village youth wrote to the editor of the local newspaper the Samoa Observer, expressing profound disappointment, and questioned the tofa faatupu (customary deep wisdom) and the Christian morals of the village council. He challenged Solosolo villagers around the globe to fight against ‘village corruption’, to prevent future destruction to property and families resulting from village council decisions in Samoa.
On 28 February 2012, Satoa’s family was banished from Solosolo. Satoa’s parents paid ST$2,000 and two sows, following which the banishment order was partially lifted and only Satoa’s family members were allowed to remain and participate in village activities. The banishment order against Satoa remained. From the village council’s perspective, Satoa was banished because he had shamed the village by publicising Solosolo village matters in the local newspaper. It was also to remind the youth to respect the institution of the village council, which is the highest traditional authority responsible for the welfare of the village.
Satoa later published a public apology to the Solosolo village council in the local newspaper. He accepted the banishment order against him, but also posed a challenge, ‘if the village council can prohibit the freedom of speech, there is no point in government preaching the importance of individual rights’.
Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa

Chapter 2. Law Reform and Legal Pluralism Developments

In England, Australia and Canada, there are records of early attempts to establish law reform machinery dating as far back as the fifteenth century. The systematic process of law reform achieved in the nineteenth century was in the form of temporary and part time law reform commissions. The first formal body established to carry out law reform was the 1934 Law Revision Committee in England appointed by Lord Chancellor Sankey. The institutional Law Commission was established under the Law Commission Act of 1975 to be an independent and permanent office staffed by lawyers and support staff. The early literature on law reform offers useful insights for this book on how the forces of government, the bureaucracy and civil society transform law reform machineries and agencies at a given place and time.
Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa

Chapter 3. A Research Methodology for the Pacific

The debate on the appropriate research methods to be employed in research on and for indigenous people by both indigenous and non-indigenous researchers is a recent phenomenon. Pacific islands researchers are developing Pacific specific research methodologies for research on, by and for Pacific Islanders. This involves the use of research methodologies that are appropriate to the cultural environment of the Pacific Islands. Talanoa, a Pacific specific interview method fitting for Pacific research was developed to collect empirical interview data. The deliberate choice of research interview method adopted is to highlight that pluralism exists everywhere in Samoa. This is shown by the differences in which ‘Talanoa’ was employed to accommodate the variances between the village and state interviewees. For the purposes of this book, the interviewees are referred to as ‘respondents’. To promote the position that research methods must be relevant for Pacific societies the subject of studies, recent scholarly work on postcolonial and Pacific methodologies is worth mention.
Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa

Chapter 4. The Value of Law Reform: Social and Cultural

This chapter presents a grass roots perspective on state laws and their relevance to everyday life based on customary practices. In order for the respondents to be heard, quotes are used in this chapter to give respondents a voice in this book.
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Chapter 5. State Focused Law Reform: Constitutional Offices, Institutions and Agents

The existence of two legal systems in one society poses challenges to its justice and law making systems. This chapter explores these challenges as experienced within Parliament, the Executive, the Judiciary, the Samoa Law Reform Commission and other law reform agents existing in Samoa. The challenges of legal pluralism stem from the difficulties in giving both the customary legal system and the state legal system a balanced application in law making. In many occasions, customary law is marginalised in the process of law reform developed under the above mentioned institutions. The challenges posed in this chapter are informed by analysis of case law and local legislation and the empirical interviews. References will be made to the empirical interviews which support the challenges put forward in this chapter.
Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa

Chapter 6. Towards Responsive Law Reform

How can the challenges identified in the last two chapters be effectively addressed? A starting point is to acknowledge that the State must create collaborative and meaningful partnerships between the customary legal system and the state legal system to allow for a suitable law reform framework for Samoa. The responses to the issues raised can be formulated under the following broad headings:
creating public awareness programmes;
facilitating professional training and law making guidelines;
identifying key state responsibilities;
village sector accountability;
managing funding constraints;
developing a local jurisprudence; and
adopting legislative drafting techniques relevant to drafting laws in a plural society.
Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa

Chapter 7. A Suitable Law Reform Framework for Pluralist Countries

A suitable law reform process for Samoa must reflect the cultural context and the local realities of Samoa. The unique features of each Pacific society determine the law reform process that is suitable for their needs. The most effective way to secure public acceptance of new laws or any change in laws is to gain the public’s respect for the process. A fitting law reform process requires a holistic effort from Parliament, the judiciary, the institutional law reform, law reform agents, the State and state agents, the legal profession, the village councils and traditional structures and the general public of Samoa. As the State is accountable for the country’s development as a whole, it must lead the required changes through the relevant constitutional offices, state ministries and agencies.
Teleiai Lalotoa Mulitalo Ropinisone Silipa Seumanutafa


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