The Ombudsman Maiava Iulai Toma.
APIA, SAMOA – 19 MAY 2020: The National Human Rights Initiative (NHRI) believes the Constitution of Samoa is serving the nation well in its current form, and warns that the unnecessary changes being proposed, even if under good intentions, can ultimately end in tragic loss.
This is part of NHRI’s formal position on the three controversial Bills: The Constitutional Amendment Bill 2020, the Lands and Titles Bill 2020 and the Judicature Bill 2020, have passed their first and second reading in Parliament, and the proposed legislations are now before a Parliamentary Select Committee to hear and consider public submissions.
The NHRI is led by Samoa’s longest serving public servant submission, Afioga Maiava Iulai Toma who has held the position of Ombudsman for the past 26 years.
Overarching goals can be achieved without radical changes
Samoa’s National Human Rights Institute agrees with the stated objectives of the amendments, but says these overarching goals can be achieved without having to make such radical changes to Samoa’s Constitution.
“NHRI Samoa does not support drastic amendment of the Constitution. It does not consider this necessary to remedy the problems experienced in the past.”
“It is not clear to us how the highly desirable objectives are achieved in any substantive way by the Bills before the Committee.”
Writes Maiava, “Individual Rights is intrinsic to society. Each member of society, made in the image of God, possesses these rights in equal measure. It is truism therefore to say that “if you protect the individual you protect society.”
“It is for this reason that basic freedoms of the individual are entrenched in any Charter that is revered as the supreme law of any land, as is the case with the Constitution of Samoa.”
Human Rights often seen as palagi and foreign
The NHRI submission also highlights how the concept of Human Rights, often seen as a ‘palagi’ or ‘foreign’ thing by Samoa, is actually an essential part of Samoa’s Cultural and Christian values.
“Human Rights is about humans, it’s about the wellbeing and the freedom of people to enjoy their existence with and around one another,” says the Ombudsman’s report.
“We need to see Human Rights in Samoa as simply the entitlements of people as people living with one another and in the same way, see the entitlements of everybody else in the world;
“Seen in that light, Human Rights have been with us and observed by us since time immemorial under a different guise; that is, in the guise of the Faasamoa with its concepts of Feavaa’i, and mutual recognition of individual dignity.”
“Samoa is a free democratic country, its Constitution protects the individual’s basic freedoms and his right to seek the assistance of the State in the enforcement of his freedoms when they are at risk of being improperly violated. This has been the situation in Samoa from the time of its independence.”
Individual Rights vs Communal Rights
Samoa’s National Human Rights Institute also unpacks the important debate of how Courts should consider the fundamental right of an individual when it is affected by a collective decision of the Village Council. The topic is headed, “Individual Rights Trump Village Consensus and Village Fono Edicts.”
This section of the report assesses Supreme Court decisions that have ruled against the Village Fono, noting that in all such cases, individuals were trying to establish new churches within their villages.
“In no other circumstance but in religious freedom cases, has the Samoan Supreme Court found itself simply compelled to rule in favour of an individual fundamental right without needing to consider arguments a Village Fono may have against it.”
The NHRI submission gives specific examples of how Samoa’s customs and traditions have always been considered by the Courts within reason, a point which was also made by Acting Chief Justice Vui Clarence Nelson in a letter that outlined the Judiciary’s concerns to the Law Reform Commissioner.
A decision of former Chief Justice Tiavasue Falefatu Sapolu is quoted, “… this Court is not unmindful of or insensitive to Samoan customs or the Samoan way of life in the village context or the authority held and the position occupied by the Alii and Faipule within the village. The authority of the Alii and Faipule has played a major and vital role in maintaining and preserving peace, harmony and stability nationwide. However, the Constitution is the supreme law of the land and it must be obeyed.”
The NHRI believes the Constitution of Samoa is serving the nation well in its current form, and warns that the unnecessary changes being proposed, even if under good intentions, can ultimately end in tragic loss.
“It is the contention of this submission that we have such a Constitution now. To meddle with it in any drastic way could, in our humble view, result in throwing the proverbial baby out with the bath water.”
The submission concludes:
- NHRI Samoa does not support drastic amendment of the Constitution. It does not consider this necessary to remedy the problems experienced in the past.
- NHRI Samoa suggests instead, Parliamentary consideration of legislation under Article 11(2) of the Constitution.
- NHRI Samoa supports in general the proposals made in the Amendment Bills for the operational expansion and deepening of the Lands and Titles judicial mandate except for the removal of any part of it from lawful surveillance currently in place under the Constitution.
Since 1989, the Ombudsman has acted as an independent authority that helps the community in its dealings with government agencies. In 2013, the role of the Ombudsman was extended to cover human rights. The NHRI was established, and lawyer Loukinikini Vili appointed as Samoa’s first Human Rights Director. NHRI has been awarded an ‘A rating’ by the independent Global Alliance of National Human Rights Institutions (GANHRI) in recognition of the quality of reports submitted, and the independence applied to its work in protecting human rights in Samoa.
CLICK For Full Submission: NHRI submission in full