In re the Constitution, Taamale v Attorney-General [1995] WSCA 1; 02 1995B (18 August 1995)

IN THE COURT OF APPEAL OF WESTERN SAMOA

HELD AT APIA

C.A. 2/95B

IN THE MATTER of the Constitution

AND:

IN THE MATTER of the Court of Appeal Rules 1961, the Judicature Ordinance 1961 and Judicature Amendment Act 1992/1993, and the Land and Titles Court Act 1981

BETWEEN:

ITALIA TAAMALE of Sapunaoa, School Teacher and TAAMALE TOELAU also Sapunaoa, Planter
Appellants/Applicants

AND:

THE ATTORNEY-GENERAL of Western Samoa
Respondent

Coram: The Rt Hon. Sir Robin Cooke, (President); The Rt Hon. Sir Maurice Casey; The Rt Hon. Sir Gordon Bisson

Hearing: 7 August 1995

Judgment: 18 August 1995

Counsel: T. Malifa for Appellants/Applicants - G. Latu for Respondents

JUDGMENT OF THE COURT DELIVERED BY SIR ROBIN COOKE

This case raises an issue of importance in Western Samoan society as to banishment from a village.

HISTORY OF PROCEEDINGS

On 28 January 1994 the Land and Titles Court, on a petition by the Alii and Faipule of Sapunaoa, Falealili, delivered a decision ordering that the present appellants, Taamale Toelau and Italia Taamale, and their children leave their village of Sapunaoa within three months from the date of the decision. The Court accepted the allegations in the petition, which covered a range of alleged insulting conduct and failure to comply with village obligations and penalties, and rejected the whole testimony given by way of defence.

On 11 April 1994 an application was filed by the present appellants for leave to appeal from that decision to the Appeal Division of the Land and Titles Court. That application has not yet been heard. There might be a question as to whether it is in time, but that aspect was not mentioned at our hearing. By s.79 of the Land and Titles Act 1981, the President (the Chief Justice) may grant leave to appeal on a wide list of grounds. By s.89 the Court hearing the appeal has wide powers.

At our hearing counsel for the appellants informed us, with the agreement of counsel for the Attorney-General, that on the filing of the application for leave to appeal to the Appeal Division of the Land and Titles Court reservation of execution of the banishment decision was sought and granted. If this is correct, it would appear that on 29 April 1994 - the significance of which date will appear in our next paragraph - the appellants could not have committed breaches of the suspended banishment order.

On 16 May 1994 a police corporal of Apia swore an information laid in the Magistrates' Court charging that on 29 April 1994 the present applicants disobeyed the decision of 28 January 1994. This charge is laid under s.75 of the Land and Titles Act whereby it is an offence, punishable by a fine of $500 or imprisonment for six months to disobey any decision or order of the Land and Titles Court. It has been referred to as a contempt charge.

On the hearing of the contempt charge on 9 September 1994 the matter evidently proceeded no further than the reservation of a case stated for the opinion of the Supreme Court pursuant to s.111(5) of the Criminal Procedure Act 1972. By the case stated, dated 18 October 1994, Lussick S.M. defined the issue as follows:

8.1 THE issue reserved for the Supreme Court by this question of law case stated is whether the contempt charge holds in the light of Articles 13(1)(d) and 13(4) of the Constitution.

8.2 IN particular, whether the Order of banishment of the Land & Titles Court under section 75 of the Land & Titles Court Act 1981 is violative of the fundamental guarantee of Article 13(1)(d) and ( 4) of the Constitution.

8.3 RELIANCE is placed on Article 4(2) of the Constitution for an appropriate remedy pending the outcome of this case stated.

Articles 4(2) and 13(1)(d) and 13(4) of the Constitution are as follows:

"Remedies for enforcement of rights

4....

(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.

...

Rights regarding freedom of speech, assembly, association, movement and residence

13.(1) All citizens of Western Samoa shall have the right-

(d) to move freely throughout Western Samoa and reside in any part thereof

...

(4) Nothing in subclause (d) of Clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that subclause in the interests of national security, the economic well-being of Western Samoa, or public order, health or morals, for detaining persons of unsound mind, for preventing any offence, for the arrest and trial of persons charged with offences, or for punishing offenders."

After the case stated had been filed in the Supreme Court, Sapolu C.J. indicated that written submissions should be lodged by counsel. As these were not ready, the case had to be adjourned twice.

Ultimately it came again before the Chief Justice on 23 January 1995. Counsel for the Attorney-General lodged written submissions that day, but counsel for the appellants still provided none. Counsel for the appellants claims that he indicated willingness to make oral submissions that day but that the Chief Justice did not allow him to do so. It seems possible that there was some misunderstanding on that matter, but clearly the Chief Justice was entitled to take the view that counsel had been given reasonable opportunities to prepare and lodge written submissions and that the court should proceed to judgment without further delay. We reject the contention that there was a breach of the fair hearing provisions of Article 9(1) of the Constitution. In any event counsel for the appellants has been fully heard in this Court.

On the same day, 23 January 1995, the Chief Justice indicated that he would answer the first question Yes and the second question No (that is to say in effect that the banishment order was not in breach of the Constitution) for reasons to be given later in writing. He ordered that the appellants be tried in the Magistrates' Court on the contempt charge, a trial which has not yet taken place. On 8 May 1995 he delivered his reasons in a full judgment of 42 pages.

On 10 February 1995 a notice of appeal was filed on behalf of the appellants. The Chief Justice subsequently certified that this is a fit case for leave to appeal to the Court of Appeal. So it is that the case has come before us.

THE CUSTOM OF BANISHMENT

There is no doubt that banishment from the village has long been an established custom in Western Samoa. On this subject we have obtained assistance, as did the Chief Justice, from the Report on Matai Titles, Customary Land and the Land and Titles Court made in December 1975 to the Minister of Justice by a Committee appointed by Cabinet for that purpose. The Committee were a strong and widely representative group; they researched and consulted extensively; and their Report may safely be regarded as authoritative in matters of history. This is so notwithstanding that their recommendations for codifying the law as to banishment have not been adopted. As to the existing custom, while expressing doubts about its validity in the light of the Constitution adopted in 1960, the Committee gave no final opinion on that question, nor of course could they have ruled upon it in any binding way. It is a question that under the Constitution can only be settled by the Supreme Court or by this Court on appeal.

The Committee record in the following passages that banishment was a practice ordered both by the Alii and Faipule of villages and by the Land and Titles Court:

"Today, the Alii and Faipule of many villages regards the power of banishment as the ultimate and therefore most important sanction vested by custom in the village council. It is usually used only after other means of settling the trouble, such as discussion, punishment by fines and ostracism from village affairs, have failed. To take away the threat of banishment would weaken the traditional authority of the village council. When dealing with uncooperative and sometimes violence-provoking elements in the village, the council needs to have an effective threat such as banishment to back up the enforcement of its orders otherwise the police services of central government will be required whenever there is trouble.

The Land and Titles Court from time to time makes banishment orders on petition from village councils, or rejects petitions against council banishment orders. In other words. the Court is involved in this aspect of village affairs."

The Committee recommended that under their draft legislation such orders should be made only by the Land and Titles Court and should be limited to cases where banishment is necessary in the interests of public order - meaning to prevent disturbances, violence or the commission of offences against the law. They thought that the power of the village council should go no further than ostracizing a person within the village; if the council wished to seek banishment, application would have to be made to the Land and Titles Court. That is what happened in the present case, so we are not called upon to consider whether village councils can themselves make banishment orders at the present day.

That banishment as a custom of Western Samoa goes back to times before German administration is apparent from the Samoan Offenders Ordinance 1922. This Ordinance is of such significance that we produce it in full except only that s.6, which deals with Samoan titles, is omitted:

AN ORDINANCE

TO CONTROL CERTAIN SAMOAN CUSTOMS

WHEREAS by a Proclamation made by the Imperial German Governor dated the sixteenth day of September 1901 the Samoan Natives were forbidden themselves to exercise the custom of local banishment and WHEREAS powers in that behalf were thereafter exercised by the said Imperial German Governor, and WHEREAS by a warrant,

WHEREAS it was desirable to make the law plain in respect of powers concerning titles, Now, therefore, this Ordinance is made by the Administrator of the Territory of Western Samoa with the advice and consent of the Legislative Council of that Territory, and in pursuance of the Samoa Act 1921.

1. This Ordinance may be cited as the Samoan Offenders Ordinance 1922.

2. No Samoan person, whether he be a Chief, Orator or Government Official, shall expel or take any part in expelling any person from his village or district, under a penalty of imprisonment for a term not exceeding one Year.

3. If the Administrator is satisfied that the presence of any Samoan in any "village, district or place, is likely to be a source of danger to the peace, order or good government thereof, the Administrator may by order signed by him, order such Samoan to leave any village, district or place in Samoa and to remain outside such limits for such time as the Administrator shall think fit, and by the same or any subsequent order, the Administrator may order such Samoan to reside in any place specified in such order.

4. When the Administrator in pursuance of the authority conferred by this Ordinance has ordered any Samoan to leave any village district or place, he may by the same or any subsequent order if he is satisfied that such a course is necessary in the public interest and whether default has been made in compliance with such or not, authorize the arrest of such Samoan and his removal from such village, arrest such Samoan and remove him from such village, district or place and take him to such other place specified in the order.

5. If any Samoan is found in the village, district or place defined in any order under Clause 3 hereof in breach of such order after the expiration of such term as may be specified in the order, he shall be guilty of an offence and liable to imprisonment for a term not exceeding one year....

7. Any order made by the Administrator under this Ordinance may be at any time revoked by the Administrator.

8. For the purposes of this Ordinance the word "Samoan" shall have the meaning given to it in Section 3 of the Samoa Act, 1921.

9. No prosecution for any Offence under this Ordinance shall be heard save by the Chief Judge of the High Court of Western Samoa.

Assented to this 11th day of September, 1922.

[L.S.] R.W. TATE

Administrator

We consider that there are four important points to be made about this Ordinance. First, it provides the clearest evidence that the custom of banishment which it set out to control, was already established. Secondly, the ban in s.2 was directed against any Samoan person, ‘whether he be a Chief, Orator or Government Official'. Thus it does not appear to have been directed against the Land and Titles Commission, later the Land and Titles Military Administrator of Samoa, provision was made for the manner in which the applications for local banishment would be dealt with, and the above recited Proclamation of the 16th September, 1901 was declared to be in force and its operation was extended, and President, as will be seen shortly. Thirdly, the Ordinance by conferring the power of banishment on the Administrator is also powerful evidence that banishment was considered a measure necessary to be available in the stability of Samoan society. the 1922 Ordinance was repealed by the Samoan Offenders Ordinance Repeal Ordinance 1936. The 1936 Ordinance contains no other provision. All that can be said about that is that thenceforth the Administrator no longer possessed the power under Ordinance to order banishment from a village. But in the meantime the New Zealand Parliament had passed the Samoa Amendment Act 1927, hereinafter mentioned more fully, and it may have been thought that the powers of the Administrator under that legislation made the 1922 Ordinance unnecessary.

The validity of the 1922 Ordinance was considered by a Full Court of the Supreme Court of New Zealand in Tagaloa v Inspector of Police and Fuataga v Inspector of Police [1927] N.Z.L.R. 883, being appeals from the convictions of two Western Samoans for breach of a banishment order made by the Acting Administrator. The order against Fuataga does not appear from the report. The order against Tagaloa, made on 5 July 1927, directed him to leave the District of Tuamasaga I Matu, on the Island of Upolu, and to remain outside the said district and outside all other districts in the Island of Upolu village for a period of three months from the date of the signing of the order. He did not obey, and upon being found guilty by the High Court of Western Samoa he was sentenced to six months' imprisonment. Leave to appeal under s.83 of the Samoa Act was granted. On the appeal the conviction was upheld by a majority of four Judges (Sim A.C.J., Herdman, Reed and Adams JJ.) to one (Ostler J.).

Although Ostler J. dissented on a ground to be referred to shortly, he emphasised that he considered absolutely essential that the Administrator should have the fullest power, when he found it necessary for the peace, order or good government of the territory, to act with a strong hand and without any hindrance from constitutional checks. Ostler J. added that he was glad that the Parliament of New Zealand had by the Samoa Amendment Act 1927 conferred such power on the Administrator. That Amendment Act came into force on 5 August 1927 and was not the measure under which the order against Tagaloa had been made. The 1927 Amendment Act gave the Administrator power, on the ground that any person was preventing or hindering the New Zealand Government in performing its functions under the League of Nations Mandate, or the due administration of the Territory, to require that person to appear before him to show cause why the provisions of the Act should not be European to depart from Samoa and remain away for a period not exceeding five years, and an order against a Samoan to remove to a place in Samoa and not to depart therefrom for a period not exceeding two years.

The 1927 Amendment Act was in force for some eleven years until repealed by the Samoa Amendment Act 1938. That Act also largely eliminated a previous authority to transfer Samoan prisoners to New Zealand. During part of those eleven years there occurred the emergency associated with the Mau, an organisation which aimed to set up a government alternative to that existing under the League of Nations mandate. In response the New Zealand Governor-General in Council made the Samoa Seditious Organisations Regulations 1930 under the Samoa Act 1921. These were largely upheld in 1934 by a Full Court of the Supreme Court of New Zealand in Nelson v Braisby (No. 2), to which case we will refer again shortly.

In that case the appellant's sentence included ten years' exile, imposed pursuant to powers conferred by s.211 of the Samoa Act. Those powers did not extend to Samoans born in Samoa. They too were repealed by the 1938 Amendment Act, and it would appear that the repeals effected by that Act were intended to do away with what some of the Samoan people saw as oppressive powers is no indication in the 1938 Amendment Act that it was intended to interfere with Samoan custom and usage. A perusal of the reports of the New Zealand Parliamentary debates on the Amendment Bill (252 N.Z.P.D. 461-467; 489-490) reveals no hint of any such intention. So we do not obtain any help on the issue in the present case from the history of the 1927 Amendment Act. It is more relevant to return to Tagaloa and the 1922 Ordinance.

The point on which the Court in Tagaloa divided was whether the 1922 Ordinance, which was delegated legislation made under the Samoa Act 1921, was invalid for repugnancy to the general law of England applying in Western Samoa or to the Samoa Act itself. This was seen to turn on whether the Ordinance should be classified as merely preventive or as also punitive. Ostler J. took the latter view, as a heavy punishment could be involved in banishment, but the majority in a judgment delivered by Sim A.C.J; adopted the other classification. The following is the concluding portion of their reasoning at 898-9:

"Now, it is clear that clause 3 has been enacted not for the purpose of punishing a crime of some kind or another, but as a political precaution, and it gives a power which is to be exercised, as Isaacs, J., said in Ex parte Walsh and Johnson [1925] HCA 53; 37 C.L.R. 36, 67, 90, by the political department, the Executive, and possibly on considerations not susceptible of definite proof but demanding prevention. The very object of the legislation might be defeated if before exercising the power the Administrator was bound to give notice to the person concerned and to hold something in the nature of a formal enquiry. We think, therefore, that the failure to provide for any such inquiry does not make the Ordinance invalid. For this view of the question the case of R. v Leman Street Police Station Inspector 89 L.J.K.B. 1200 is a direct authority. The person against whom the order is made may not have been guilty of a crime of any kind, but it may be necessary in the interests of peace, order, and good government that he should depart from some particular place. The Administrator must be the judge as to the necessity, and, if acting bona fide he is satisfied-on the subject, the question whether his opinion is justified or not, or whether he should have been satisfied or not on the materials before him, is not examinable by the Courts: Jones v Robson 70 L.J.K.B. 419; Ex parte Walsh and Johnson (supra)."

We proceed now to consider the other objection taken by the appellant. Part V of the Samoa Act, 1921, provides for the punishment of a number of crimes. It was contended that the provisions of clause 3 and 4 of the Ordinance were repugnant to the Act, as being an attempt to provide another and different punishment for some of the offences created by s.102. But, as we have already held, the provisions of clauses 3 and 4 must be regarded as merely preventive and not punitive, and it follows, therefore, that they cannot be in conflict with the provisions of the Act, which are purely punitive. Clause 5 of the Ordinance provides for the punishment of disobedience to an order made under clause 3, but the maximum punishment is within the prescribed limit, and the clause is not in conflict with any of the provisions of the Act.

Whatever may be thought of the reasoning which prevailed in Tagaloa, that decision has stood for some degree of approval in Nelson v Braisby (No. 2) [1934] N.Z.L.R. 559, 580, 582. In the light of the long-standing reasoning in Tagaloa, we consider that we should act on the view that the practice of banishment from a village is essentially preventive. As counsel for the Attorney-General said, it is to prevent chaos arising in village affairs. This has a bearing on whether it is now unconstitutional.

The Land and Titles Court

According to the Report of 1975 (p.90), after 1900 the German administration and Samoan leaders recognised a need to find a means of disposing peacefully of disputes between Samoans over matai titles and customary land. The Report states that the present Land and Titles Court is the direct descendant of the Land and Titles Commission of 1903.

Under the New Zealand administration the Native Land and Titles Protection Ordinance 1934 was enacted in pursuance of the Samoa Act 1921. By s.34 it constituted a Court of record to be called the Native Land and Titles Commission and to have all the jurisdiction and powers specially conferred by the Ordinance and all the powers inherent in a Court of record. The Court was to consist time being of the High Court, and European Assessors and Samoan Commissioners.

By s.37 the Court was to have exclusive jurisdiction in certain matters, including "(c) in all claims and disputes between Samoans relating to Native Land and the right of succession to property held in accordance with the usages and customs of the Samoan race". The Court was renamed the Native Land and Titles Court and some changes made in its constitution by the Native Land and Titles Protection Amendment Ordinance 1937. The current legislation is the Land and Titles Act 1981, as amended by the Land and Titles Amendment Act 1992/1993. The Court consists of the Chief Justice as President and Samoan Judges and Assessors. By s.34(1) the Court "shall continue to have all the jurisdiction it exercised prior to this Act coming into force". By s.34(2) it has in particular exclusive jurisdiction in certain matters, including "(c) in all claims and disputes between Samoans relating to customary land, and the right of succession to property held in accordance with the customs and usages of the Samoan race". It will be seen that (c) has been carried forward from the 1934 Ordinance.

Section 37 of the Land and Titles Act provides:

"Law to be applied

37. (1) In all matters before it the Court shall apply-

(a) custom and usage;

(b) the law relating to custom and usage;

(c) this Act and any other enactment expressed to apply to the Court.

(2) Subject to sub-section (1), the Court shall decide all matters in accordance with what it considers to be fair and just between the parties."

Although the line of legislation includes no express reference to banishment, we consider that the general provisions of ss.34 and 37 of the present act, which we have quoted, are wide enough to give the Court authority to order banishment from a village, that being a custom and usage long established in Western Samoa as we have explained. It is true that during the currency of the 1922 Ordinance Samoans were prohibited from following the custom and usage, but as already noted that prohibition made no mention of the Land and Titles Commission. Moreover the fact that the 1922 Ordinance and later the Samoa Amendment Act 1927 empowered the Administrator to make banishment orders shows they have always been considered a necessary feature of the Western Samoa system of law and government.

It is also clear that the Land and Titles Court has accepted jurisdiction to make such orders. There order made on 13 March 1973 in the case of Taimalie Time and others v Papalii Lave and others. Of particular interest is a decision of the Appellate Division of the Court presided over by Judge Norman F Smith on 19 March 1987 in Marina Ututa'alega v Luefatasaga Iulio and others. We reproduce the English version in full:

APPLICATION FOR LEAVE TO APPEAL

"This Court has considered its jurisdiction of the Land and Titles Court to make an order for eviction. Section 13(1)(d) of the Constitution states that Samoan resident have right to reside where they wish subject to any existing law. Section ill(i) of the Constitution defines "law" as including any custom which has acquired the force of law.

For many years it has been a customary right of the Alii and Faipule to banish people from a village to preserve the peace and harmony in the village. This custom was recognised by the Legislature in framing the Samoan Ordinance of 1922 permitting the Administrator to banish people from a village or district if he was satisfied that their continued presence in the village would be likely to be a source of danger to the peace and harmony of the village or district.

This Ordinance was challenged and the Court of Appeal in the case of Tagaloa and Fuataga v Inspector of Police NZLR 1927, page 883 and upheld. The custom has acquired the force of law.

Section 34 and 37 of the Land and Titles Act 1981 direct the Court to apply the customs of Samoa and therefore the Court does have the Jurisdiction to make an order for eviction a banishment.

Such an order must be supported by adequate evidence that banishment is warranted to preserve peace and harmony.

In this present case, the Appellants have lived on the land for at least 30 years and probably much longer and there was no evidence before the Court to show that there had ever been a dispute between the holder of the Pule of the Land and the Family of the Appellant prior to this case.

The Petition before the Court did not seek an order for eviction nor was such an order sought during the hearing.

The action of the Court in making an eviction order without notice to the parties prevented their raising a defence and arguing against the order.

It is the opinion of this Court that the order has therefore been made without jurisdiction.

Paragraph 6 of the decision in L.C. 6684 of 14 November 1985 is set aside and the appellants and their families may continue to occupy and reside on the land so long as they recognised the Pule of Luafatasaga.

Marina is ordered to pay hearing fee of $50 00 and balance of deposit to be refunded to her."

That decision was made after but does not refer to a Practice Direction to Samoan Judges issued by Sir Gaven Donne, as Chief Justice and President of the Land and Titles Court, dated 17 April 1980. The direction begins by recalling that in 1974, when President of the Court, Sir Gaven directed that no further banishment orders should be made as they were in violation of the Constitution of Western Samoa the 1980 direction in effect reiterates the earlier one, saying that to make banishment orders, but that this custom ceased on 28 October 1960 when the Constitution was adopted. Articles 13(1)(d) and 2(1) and (2) are cited in the 1980 direction as leading to that conclusion, but the direction does not allude to the important Article 13(4) and contains nothing to suggest that it had been taken into account.

Sir Gaven Donne is a Judge highly respected and experienced in Pacific jurisdictions, and his opinion is entitled to weight. But a practice direction cannot settle the law and is usually made without the benefit of hearing argument from counsel. As has been seen, Judge Norman Smith subsequently took a different view; and Chief Justice Sapolu shares that different view, for reasons which he has carefully detailed. The directions given in 1974 and 1980 do not relieve us of the responsibility of determining the constitutional issue after having had the benefit of considering the present Chief Justice's reasons and the arguments of counsel.

We understand that St. John A.C.J. issued a prepared press statement to the effect that banishment was illegal under the Constitution, quoting the 1980 direction of Sir Gaven Donne. What we have said about the direction applies of course to the press statement also.

THE CONSTITUTIONAL ISSUE

Apart from the decision now under appeal and that of the Land and Titles Court presided over by Judge Smith, there is apparently no judicial decision on the issue raised in this case. In argument references were made to the decision of St. John C.J. in Tariu Tuivaiti v Sila Faamalaga [1980-1993] W.S.L.R. 17 and a case in the Supreme Court of Papua New Guinea, Supreme Court Reference No. 1 of 1986: Re Vagrancy Act [1988] S.P.L.R. 235. But the former was concerned with freedom of religion under Article 11 of the Constitution and is not helpful on the issue under Article 13(4) now arising. And the latter was concerned, as its title indicates, with a statute directed against vagrancy, quite a different subject from banishment. There is nothing of direct relevance in those cases.

We think it desirable to reproduce passages in the reasons of Sapolu C.J. relating to the role of banishment in Western Samoa:

"Banishment:

It appears to me that the concept of banishment as it is applied within Samoan society may not have been fully understood in some quarters in the past. By tradition, custom and usage, banishment is a measure of social control which is applied in the villages to maintain peace, harmony and order within a family, or village lands on a village by village basis will show that it is not a common practice within any one village it is a measure of social control reserved for the very serious kind of village misconduct. Such very serious misconduct is not a common occurrence within any particular village itself. It is also a measure of law enforcement within the village in the sense that banishment is a sanction which may be imposed for certain misconduct or disobedience of the rules and regulations made by the village through its Alii and Faipule (Village Council). Banishment may have been exercised in the past years by a matai against a member of his family but usually banishment was exercised within a village by the Alii and Faipule of the village. Nowadays, banishment is exercised almost exclusively, if not in fact exclusively, by the Alii and Faipule of a village.

There are two kinds of banishment known in Samoan custom. The first kind of banishment means that an individual is ostracized from the affairs of the village so that during the duration of the banishment he cannot take part in the affairs of the village, but he may still continue to reside in the village. With this kind of banishment, the individual concerned may still attend the village church on Sundays but he may not take part in the other affairs of the village. This kind of banishment is imposed for misconduct or disobedience which are not of a very serious nature. The second kind of banishment involves the expulsion of an individual from the village so that he, and sometimes his family, may not continue to reside in the village but must leave the village and live somewhere else. This second kind of banishment is imposed by the Alii and Faipule of a village on an individual for very serious misconduct such as murder, rape, serious disobedience and so on. It may also be imposed on an individual and sometimes his family, for continuing non-compliance with lesser penalties such as fines of money, pigs, taros, bread, biscuits, cartons of herring or other foodstuffs imposed by the Alii and Faipule. As in the past, non-compliance with a banishment order may have even more serious consequences for an individual for the village would then move in and forcibly evict him from the village and damage his properties. In principle by not being allowed to participate in village affairs during the duration of the banishment or by not being allowed to reside in the village during the duration of the banishment.

Now the individual who is banished and expelled from the village does not become a refugee without a place to live. This is where the Samoan extended family system comes in; and the banished individual will always find relatives in another village or in the Apia area to live with. A banished individual without relatives to live with elsewhere is simply unheard of. Another feature of banishment, which applies to both kinds of banishment, is that the duration of the banishment is not commonly expressed or spelled out. The custom in this regard is that when a banished individual is remorseful and prepared to make amends for his wrongdoing, he may return to the village and make a presentation of foodstuffs and/or fine mats to the Alii and Faipule of the village who will accept him back to take part in the affairs of the village or to reside again in the village. Sometimes the displeasure of the village ends before a banished individual requests his return to the village and make amends. In such case the Alii and Faipule may ask the individual to return to the village. Again the banished individual makes a presentation of foodstuffs and/or fine mats to the Alii and Faipule. So even though the term of a banishment is seldom specified or spelled out when a banishment is imposed, the customary understanding is that when the banished individual is remorseful and prepared to make amends for his wrong doing, or when the displeasure of the village has ended, he may return to the village. So the term of a banishment is very much determined by the interplay of two factors, remorsefulness on the part of the banished individual and the ending of the displeasure on the part of the village. No doubt the gravity of the misconduct or disobedience also plays a part in determining the term or duration pay village fines or other very serious misconduct would not expect to be accepted back into the village society within a matter of a few days, or a few months, or even a year. So the imposition by the Land and Titles Court in the present case of a banishment order without spelling out a fixed term is quite consistent with custom and usage. The term of the banishment order will be determined by the factors already referred to. In some of the very serious cases, an individual is told by the Alii and Faipule of a village that he is banished forever from the village. Even in such a case, the use of the word 'forever' does not literally mean a perpetual life sentence. The term or duration of the banishment is still determined by the interplay between the remorsefulness of the wrongdoer the duration of the displeasure of the Alii and Faipule of the village and the gravity of the misconduct.

...

The sanction of banishment applies to both the matais as well as the non-matais of a village. So the members of the Alii and Faipule of a village are not themselves immune from banishment. An individual member of the Alii and Faipule may be banished by the Alii and Faipule as a collective body. Banishment which involves the exclusion of an individual from continuing to reside in a village, is not a common occurrence within a village. It is not something that happens in any particular village every year or every ten years. Some villages have not made a banishment order which requires an individual to leave the village for the last twenty, thirty, forty or more years. The impression that banishment by exclusion from village lands is a common occurrence within a village and is practised by the Alii and Faipule with almost reckless abandon is certainly not supported by the evidence. It is perhaps when one looks at the country as a whole that banishment by exclusion from village lands on a village by village basis will show that it is not a common practice within any one village it is a measure of social control reserved for the very serious kind of village misconduct. Such very serious misconduct is not a common occurrence within any particular village.

The Land and Titles Court which deals with customary matters has assumed jurisdiction to impose banishment orders in appropriate cases. Even though the point was not raised in this case, I am of the view that the Land and Titles Court has that jurisdiction.

There is no doubt in my mind that the SLTP Ordinance 1934 and its successor the Land and Titles Act 1981 which set up and continued the existence of the Land and Titles Court to deal with customary matters including claims and disputes between Samoans in relation to matai titles and customary lands are respectively 'existing law' and 'law' made in the interests of 'public order' within the meaning of Article 13(4) of the Constitution. As the power exercised by the Land and Titles Court under the Land and Titles Act 1981 to make banishment orders is directed towards maintaining peace, harmony and order within the villages, it is a measure in the interests of 'public order' for maintaining order throughout the country in addition to the law enforcement role played by the Western Samoa Police Service. It therefore follows from the wording of Article 13(4) that the provisions of Article 13(1)(d) which confer the right on all citizens of Western Samoa to move freely throughout Western Samoa and to reside in any part thereof do not apply to the present power of the Land and Titles Court to make banishment orders in the interests of public order.

The law of banishment, as I hope I have demonstrated, is also a reasonable restriction imposed in the interests of public order on the right to move freely throughout Western Samoa and to reside in any part thereof conferred by Article 13(1)(d).

This does not mean that the exercise of jurisdiction to make banishment orders is absolute, it is of course subject to law. The jurisdiction is to be exercised judicially by the Land and Titles Court always bearing in mind that the imposition of a banishment order is made in the spirit of what is fair and reasonable and according to law ... An dual who is dissatisfied with a decision given at the first instance level of the Land and Titles Court also has further avenues for seeking-redress. He has a right of appeal to the appellate division of the Land and Titles Court. He may apply in an appropriate case to the Supreme Court under Article 4 of the Constitution to enforce his constitutional rights and freedoms. He may also apply under Article 73(2) of the Constitution to the Supreme Court if a question arises before the land and Titles Court as to the interpretation or effect of any fundamental rights provision of the Constitution. A combined reading of the decisions of the Supreme Court and Court of Appeal in Alaelua Vaalepa Saleimoa Vaai v Land and Titles Court clearly suggests that in an appropriate case he may also seek judicial review in the Supreme Court of a decision of the Land and Titles Court."

The present case raises no question about ostracism, which the Chief Justice treats as one form of banishment. Subject to what follows and one important reservation, we are in general agreement with those passages from the Chief Justice's judgment so far as they deal with what he calls the second kind of banishment. The reservation is that, as previously mentioned, we are not called upon in this case to consider whether village councils, as distinct from the Land and Titles Court, have authority to order this kind of banishment. We must not be understood as now expressing any opinion on that question. We go no further than saying that the Land and Titles Court has jurisdiction to make this kind of banishment order, a jurisdiction which should only be exercised for truly strong reasons, and that a village council minded towards banishment from the village would be well advised to petition that Court for an order rather than to take an extreme course on their own responsibility.

We add that, just as the Land and Titles Court can make a banishment order, so that Court can cancel it. The re-acceptance of the person in the village, in such circumstances as are described by the Chief Justice, may be decided upon by the village council. A banishment order made by the Court, even although it appears to be unlimited in time, should always be understood as allowing for-that possibility, in which event the life of the order will be spent and the order will cease to be in force. But, if that does not happen, it must be open to the banished person to petition the Land and Titles Court to rescind or vary the order. The Court retains control and may make whatever amending or cancelling order it finds appropriate at any time.

We must emphasise strongly that a banishment order should never be lightly made. It is an extreme measure of social control and can only be justified in any given case if it is truly essential to preserve the stability of the village life and organisation bring about hardship and distress. Obviously it could some cases and affect innocent Titles Court before deciding the present may well be one it could people such as children. The Land and should deliberate with the utmost care that banishment from the village cannot be avoided.

As the Chief Justice mentions murder and rape as possible grounds for banishment', it is necessary to say;' that the punishment of offences is a matter for the criminal courts. Serious crime is properly dealt with in the Supreme Court. The accused has constitutional rights under Articles 9 and 10, including the right to counsel (which at present does not exist at a hearing in the Land and Titles Court). The correct course is to leave offending against the criminal law to be dealt with by the processes of the criminal law. On the other hand, as we have stressed earlier, banishment is to be seen as essentially preventive. For example, a person's conduct may show a total rejection of the authority of the villas council. Banishment from the village may then be the only effective remedy. Whether the present case is as serious as that cannot be judged on the evidence before us, but would be fully open to consideration on an appeal to the Appeal Division of the Land and Titles Court or on a petition to cancel the banishment order.

The conduct of the appellant in the meantime could also be highly relevant. In largely endorsing the Chief Justice's approach, we share his view that the Constitution must be applied with due regard to its Samoan setting. The second recital in the preamble underlines this:

WHEREAS the Leaders of Western Samoa have declared that Western Samoa should be an independent State based on Christian principles and Samoan custom and traditions.

So do the provisions of Part IX (LAND AND TITLES) Articles 100 to 103 regarding customary land, Samoan custom and usage, and the Land and Titles Court. It must be remembered that the appellants have occupied (and presumably still do occupy) customary land in the village; it is basically this that gives the Land and Titles Court jurisdiction. Again Article 111(1) defines 'Law' as including

... any custom or usage which has acquired the force of law in Western Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction.

Similarly in the 1982 case about matai voting rights, Attorney-General v. Saipa'ia Olomalu, reported in (1984) 14 Victoria University of Wellington Law Review 275, this Court attached weight in interpreting the Constitution to the particular history and social structure of Western Samoa.

It is that history and social structure and those references in the Constitution which lead us now to hold that, within the meaning of Article 13(4), banishment from a village is, at the present time, a reasonable restriction imposed by existing law, in the interests of public order, on the exercise of the rights of freedom of movement and residence affirmed by Article 13(1)(d). The law to which we refer is -that pertaining to the jurisdiction of the Land and Titles Court. While upholding the jurisdiction of the Land and Titles Court to order banishment, we do so on the express basis that the jurisdiction can only lawfully be exercised in accordance with the principles and safeguards identified in the present judgment.

Like the Chief Justice, we by no means exclude the prospect that as Western Samoan society continues to develop the time may come when banishment will no longer be justifiable. As envisaged as possible in Saipa'ia Olomalu's case, the practical content of a constitutional right may evolve over the years. The introduction of universal suffrage in Western Samoa within a decade of that case is a striking illustration of how progress may be achieved if not unduly rushed.

For these reasons we dismiss this appeal. It may be regarded, however, as a test case which the appellants were justified in pursuing. In the 1982 voting case an order for costs was made in favour of the unsuccessful respondents because of the public importance of the issue. Possibly an order might be made in favour of the unsuccessful appellants here. But we express no concluded opinion on that point, reserving leave to the parties to apply to this Court by memorandum if agreement is not reached.