Banishment and Freedom of Movement in Samoa: Leituala v Mauga, Kilfifi et al (Case Note) [2004] JSPL 14; (2004) 8(2) Journal of South Pacific Law

Banishment and Freedom of Movement in Samoa: Leituala v Mauga, Kilfifi et al

[2004] WSSC 9

By Miranda Forsyth*

In an important decision significantly limiting the powers of village councils (or village fonos as they are known in Samoa), Justice Vaai of the Supreme Court held recently that such councils do not have the power to order customary banishment as a punishment. The case raised the vexed and controversial issue of how customary punishments and processes should be treated in light of Constitutional rights to freedom of movement, freedom of residend a fair trial.

The plaintiff in Leituala v Maug Mauga, Kilfifi et al^[1] was the father of a schoolboy against whom allegations of misconduct towards the village’s Methodist pastor and his family were made. As a resu these allegationations, the village council met and resolved to banish the plaintiff and his family from the village. Thentiffnot been permitteditted to attend the meeting as he was not a matai^{[2] and no witnesses were called to giidence. The council met at 1pm aft, after reaching its decision, ordered that the plae plaintiff and his family leave the village by 4pm the same day. Except ne of the plaintiffntiff’s sons, all twenty members of the family left the village by the designated time, leaving behind their home, plantation and animals. The son who remained had been at the plantation when the decision was reached and upon returning home was not informed of the decision. Later that afternome men fmen from the village with instructions to take him before the village council.ncil. He ttacked with sticks ands and stones and only managed to escrom threats to his life after an elderly woman and her m matai husband from another village begged for his safety before thlage council.}

The tiff brou brought an action in the Supreme Court claiming damages on the basis that his constitutional rights, specifically his right to move freely and reside in any place of his choice and his right to a fair trial, had been breached by the order of banishment.

The defendants were the village matai, who comprised the village council. They claimed that they had a duty to maintain peace and order within the village and that they had the power under the Village Fono Act 1990 (“the Act”) to order banishment. They justified the banishment order on the basis that the village has a pact with the Methodist pastor and is obliged to look after him and his family. Thented to two incidents,wnts,where the plaintiff’s son had allegedly been drunk annk and taken the pastor’s son’s bicycle and then swore at the r’s wife; and another prior incident where the plaintlaintiff was alleged to have fought with a former pastor. In relatiothe first incidencident, the court held that there was not sufficient evidence on which the council could have founded its decis#160; It found that no witnesses were called and that the allegations were entirely hearsayarsay, noting that while a tribunal is not bound by rules of evidence like a court, hearsay evidence can only be relied upon by a tribunal if it has given the other side a fair opportunity of commenting on it and of contradicting it. In relation to the second incident, the court found that in fact the former pastor had been the one to assault the plaintiff, noting ‘[b]efore being ordained as a pastor he most pry lacked the skill and the courage to throw any punch at a at a man of his size but given the protection of the village pact and the clerical trademark his arrogance and boxing skills magically emerged’.

The ibefore the cohe court was whether the Act gives a village council the power to order banishment as a punishment in these circumstances. The Act, which wasoduce&#8s ‘a move to reinforce and strengthen rural sral self-reliance’^[3] provides in section 6 that the villi>fono can impose punishment in accordance with the ‘custom and usage of its vill village’, and it specifies a number of punishments, including the power to impose fines and to impose work orders, but significantly does not explicitly include banishment. Section 3(2) give village lage fono ‘authority to exercise power or authority in accordance with the custom and usage of that village’. The defendants claimat bant banishment is a custom of the village and that according to the custom of the village it was appropriate to impose it as a punishment where there was a misdeed or offence carried out at a pastor, bearing in mind mind the special relationship a pastor holds in the village. They cd that the exercise cise of these powers constitute a reasonable restriction in the interests of public order on the exercise of the rights of freedom of movemed residence guaranteed by article 13(1)(d) of the Constituttitution. They relied on article 13(4) which provides:

Nothing in subclause (d) of clause (1) shall . . . . prevent the Statm making aing any law in so far as that existing law or theso made imposes reasonable restrictions on the exercise of e of the right conferred under the provisions of that subclause in the ints of . . . public ordc order . p>

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Justice Vaai rejected the defendant’s arguments, finding that the Act does not grant the village council power to banish anyone from the village, and that within the meaning of article 13(4) banishment from a village is not a reasonable restriction on the exercise of the right of freedom of movement and residence conferred by article 13(1). The basis for his decisas was that banishment is not specifically mentioned as a punishment that village councils can give in the Act, and that as a matter of statutory construction this omission was intentional on the part of the legislature so as not to confer on the village council the authority to impose banishment. He gave three justiions fons for reaching this decision. First, he referred to theslegislative history of the power of banishment in Samoa, noting the historical trend towargislative limitations on banishment and observing that to c to confer on village councils legal authority to order banishment ‘would [be] tantamount to winding back the clock of progress’. Second, the Lands and Titles Court Act 1981 gives the Land and Titles Court (“the Court”) the jurisdiction to make banishment orders, which he seemed to imply excluded ossibility of any other body having such jurisdiction, with without explaining why this would be the case. Third, he noted thatCourt ourt is required to comply strictly with the rules of natural justice in exercising its power of banishment, whereas he ind that village councils could not comply with rules of natural justice, stating that accordccording to custom and usage they ‘cannot give notice; cannot allow an accused person to be present to question witnesses and present [a] defence and cannot guarantee to an accused person a fair trial as provided by article 9 of the Constitution’. ght of this, he concluded uded that it would be “difficult, in fact impossible to comprehend” why the Legislature would have given them the power to banishment orders.

Justice Vaai’s decision eion evidences an ambiguous approach towards the obligations of village councils to follow the rules of natural justice. On the one he clearly reje rejected the defendants’ arguments that the rules of natural justice be examined in terms of the custom and usage of the village, and that the procedures of not giving notnd the right to be heard arrd are fair in the context of village custom and usage, stating ‘if the Village Councils are by law given the power, authority and mandate as argued by the defendants then they must also comply with the requirements of the law’. However, he then use villavillage councils’ inability to guarantee a fair trial as the basis for holding that the Legislature can not have intended to give them the power of banishment. This attitude perheflects ects the difficulties faced by the judiciary in resolving the competing demands of custom and the law in a system which appears to have given them a manto exist “side by side” without much guidance ance as to how this can be achieved in practice. As one legal comment SaleiSaleimoa Vaai notes, there may be some truth in the allegations of ‘an ambiguous milieu of custom and law’ in te with ‘double moral standards engendered in the constitutionally sanctioned dual syal system of authority.’^[4]

The court ultimately awarded the plaintiff specific damages of $14,900 for the loss of plantation and animals; $100,000 in general damages for the “misery, anxiety and distress imposed on twenty innocent persons by a village council of church lovers at the instigation of a puissant clergy and his foulmouthed wife, resulting from trivial incidents blown out of proportion”; and $50,000 in aggravated damages due to the obvious discrimination levelled at the plaintiff, the presumption of guilt against the plaintiff’s son, the ‘deliberate display of high mindedness when [the council] gave the plaintiff and his family a mere three hours to pack and leave’, and the order to catch the son who did not leave when they “knew very well” what the men would do with him.

This case is the last in a series of cases brought before the courts in Samoa where village councils have been criticised for the exercise of their powers contrary to the rights of Samoans guaranteed under the Constitution.^[5] In the most extrf these case cases, village councils have ordered people to be ‘roped to large sticks like pigs’ and even, on one occasion, killed.^[6] Iht of such cases there bere been a number of academicsemics who have forcefully criticised the Act. For example, Meleisea argues that:

[The Aas in factalised the the power of the matai and locd local hierarchies. The act allows matai to force compliance theitates through fines or even expulsion from the vihe village. Increas rural peoplpeople ople see fa’aSamoa as anothrd for oppression.^[7] &#1p>

Howeveowever, it i it is suggested that the Act does not necessarily have to lead to abuses. As this case case demonstrates, courts can play a crucial role in supervising and controlling the powers of the village councils. In the future it will be lear that village councils cannot enforce their decisions through banishment. It may be that csuch as thas the present are a necessary part of the working out of the lines of authority that exist in Samoa to regulate behavat a village level. While this almost certainltainly be a slow and painful process, gss, given the enormous differences between the two systems that are being asked to work together, at least it is an attempt to deal with the issue of chiefly regulation of village affairs which is often ignored (and thus unsupervised and unregulated), in other jurisdictions in the region. It is thoped that future cure cases take up the issue of the obligation of village councils to apply natural justice that Justice Vaai ed around in the present judgment.

^[*] Lecturer, School of Law, University of the South Pacific

^[1] [2004] 9 (13 August 2004) (unreponreported, Vaai J)

^[2] Matai are people with chiefly titles in Samoa.

^[3] M. Meleisea, ‘Governance, development and leadership in Polynesia’ in E Huffer, and A. So’o, (eds) Governance in Samoa (2000),197.

^[4] Saleimoa Vaai, Samoa Faamatai and the Rule of Law ( 186.

^[5] See for example Mose v Masame et al [1930 – 1949]1949] WSLR 140 at 142; Tuivaiti v Faamalaga [1980] WSSC 2 (17th December, 1980) (unreported, St John CJ); Lafaialii v Attorney-General [2003] WSSC 8 (24th April, 2003) (unreported, Sapolu CJ).

^[6] Unfortunately many of these decisions are not readily available. However, they are discussed in U. Va’a, ‘Local Government in Samoa and the Search for Balance’ in E Huffer A. So’o, (eo, (eds) Governance in Samoa (2000), 156 – 160. An initialsion in the murd murder casavailable: Police v Afoa [1994] WSSC 3; SC S 489 1993 (9th March, 1994) (unreported,rted, Sapolu CJ).

[7] M. Mel &#82vernadevelopment aent and leadership in Polynesianesia̵’ in E. Huffer, and A. SoR#160; (eds) GoverGovernance in Samoa (2000), 198.