In re the Constitution, Pita v Attorney-General [1995] WSCA 6; 07 1995 (18 December 1995)

IN THE COURT OF APPEAL OF WESTERN SAMOA

HELD AT APIA
C.A. 7/95

IN THE MATTER of the Constitution of the Independent State of Western Samoa

AND:

IN THE MATTER of the Electoral Act 1990, the Electoral Act 1963, the Judicature Ordinance 1961 and the Declaratory Judgments Act 1988

BETWEEN:

LE TAGALOA PITA of Alafua and Sili, Member of Parliament, FAAMATUAINU TALA MAILEI of Lufilufi, AIONO FANAAFI of Fasitoo-uta and Alafua, TUAIMALO FAAUTU of Matautu-uta, MANU SINI of Lufilufi, AUFAI UELESE AMOSA of Saleaula and Afega, all Samoan Matais
Appellants

AND:

THE ATTORNEY-GENERAL on behalf of the REGISTRAR OF ELECTORS AND VOTERS
First Respondent

AND:

THE WESTERN SAMOA SOCIETY FOR CIVIL LIBERTIES (INC.)
Second Respondent

Coram: Sir Robin Cooke P.; Sir Gordon Bisson J.; Sir Kenneth Keith J.

Counsel: G.P. Barton Q.C. and T. Malifa for Appellants; Attorney-General, T. Se Apa, A.R., Galbraith Q.C. and Marion M. Bailey for First Respondent, A.T. Pereira for Second Respondent

Hearing: 15 and 16 December 1995
Judgment: 18 December 1995

JUDGMENT OF THE COURT

INTRODUCTION

The Constitution of the Independent State of Western Samoa was adopted on 28 October 1960, after extensive debates, by a Constitutional Convention. Pursuant to art. 113, it came into force on Independence Day, 1 January 1962, being the day approved by the General Assembly of the United Nations as the date of the termination of the Trusteeship Agreement for the Territory of Western Samoa approved by the General Assembly on 13 December 1946. The Constitutional Convention was matai-dominated; but on 9 May 1961 a plebiscite of virtually the whole adult population was held under the supervision of a United Nations Commissioner, and by large majorities the voters agreed with the Constitution and that on 1 January 1962 Western Samoa should become an independent State on the basis of the Constitution.

Part II of the Constitution affirms a series of fundamental rights but makes no mention of a right to vote at parliamentary elections. Part V constitutes Parliament and includes art. 44, on which this case centres, providing for the constitution of the Legislative Assembly. It will be necessary to reproduce the article in full later in this judgment. In short, as modified by constitutional amendment in 1963, it provides for a total of 45 members for territorial constituencies and a number of members to be elected by those persons whose names appear on the individual voters' roll, which number is to be determined under the provisions of the Second Schedule. By art. 44(3), subject to the provisions of the Constitution, various matters are to be prescribed by law. These matters include 'the qualifications of electors'. There is a wide definition of 'law' in art. 111(1): it includes any Act of Parliament.

The provisions of the Constitution are entrenched in the sense that, by art. 109(1), they may be amended by Bill passed by the votes of not less than two-thirds of the total number of members of Parliament and if not fewer than 90 days elapse between the second and third readings of the Bill. As regards art. 102, whereby the alienation of customary land is restricted, a proviso to art. 109(1) adds a special entrenchment: a change to art. 102 must be supported by two-thirds of the valid votes cast at a poll of the electors on the rolls for the territorial constituencies.

By the Electoral Act 1963, an ordinary Act of Parliament not purporting to amend the Constitution, rights to vote in territorial constituencies were limited to matais (s.16) and qualifications for entry on the individual voters' roll were also prescribed (s.19). The limitation in s.16 had the effect of carrying forward the pre-constitutional electoral system of matai suffrage (see The Western Samoan Legislative Assembly Regulations 1957).

In 1982 Saipa'ia Olomalu and others brought proceedings claiming that those provisions of the 1963 Act were unconstitutional as contravening art. 15 of the Constitution. That article is in-Part II and in short it restricts discriminatory legislation 'on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them'. The applicants contended in substance that art. 15 guaranteed universal suffrage.

St. John C.J. upheld the contentions of the applicants, but on appeal this Court unanimously reached a different conclusion, holding for an accumulation of reasons that Part II of the Constitution is not concerned with the parliamentary suffrage, and that such provisions as the Constitution makes on that subject are to be found in Part V and the Second Schedule. In the course of the judgment, reported as Attorney-General v. Saipa'ia Olomalu and others (1984) 14 Victoria University of Wellington Law Review 275, this Court accepted (at 285) the submission of the then Attorney-General that the Constitution was deliberately flexible as to the franchise in the territorial constituencies , thus allowing Parliament to widen the basis (so, beyond matais) as and when that was found desirable. The Court put it (at 289) that the Constitution permits, but does not require, a system whereby only registered matais may be on the roll and allowed to vote in the territorial constituencies, but the members represent all persons in their constituencies.

Whereas in 1960 opinion in the Constitutional Convention, and possibly general Western Samoan opinion, had been against universal suffrage, time has brought a change. The Plebiscite Act 1990 provided for a poll of resident citizens of Western Samoa, of or over the age of 21 years, on two proposals:

1. Do you agree that every citizen of Western Samoa who has attained the age of 21 years is entitled to be registered to vote at any General Election or By-Election?

2. Do you agree that there should be a second Assembly for Parliament to be called the Maota o le Aganuu comprising members from each of the eleven traditional divisions of Western Samoa, such members to be elected in accordance with custom and tradition?

At the plebiscite the first proposal was carried, albeit by a small majority, and the second defeated. Thereupon Parliament by ordinary Act (we were informed from the bar that the majority was 24 to 18), in accordance with its power to prescribe law for the purposes of art. 44 as interpreted by this Court in Saipa'ia Olomalu, conferred the right to be an elector of a constituency on every adult Western Samoan citizen whose name does not appear on the individual voters' roll. This Act is the Electoral Amendment Act 1990 and its key provision is s.5, introducing a new s.16 into the Electoral Act 1963. It is noteworthy that by the new s.16(2)(a) an elector who is the holder of a Matai title is to be registered in the constituency in respect of which the title exists or, if he is a plural title-holder, in the constituency in respect of which one of those titles exists, as he may at any time choose. Parliament thus legislated on the footing that constituencies are territorial and that matai titles exist in respect of them. It is also noteworthy that s.4 of the 1990 Amendment Act has the effect of preserving the requirement that only matais are eligible to be Members of Parliament for territorial constituencies.

The present Parliament was elected in 1991 under the universal suffrage system introduced by the 1990 Amendment Act, but then the present appellants, who are a group of matais, brought proceedings claiming declarations that s.5 of the 1990 Amendment Act is void pursuant to art. 2 of the Constitution. That article provides that the Constitution shall be the supreme law and that any existing or new law which is inconsistent with it shall be void to the extent of the inconsistency. In essence the appellants argue that matai suffrage is not merely permitted by the Constitution but is entrenched by it. They also claim a declaration that the election of 45 members of Parliament from territorial constituencies following the General Elections of 5 April 1991 is void. When during the argument it was suggested from the bench to senior counsel for the appellants that they were trying to put the clock back, he responded that the words are emotive. We think, nevertheless, that they accurately indicate precisely what the appellants are seeking to achieve.

The case came before Sir Maurice Casey, sitting as a Judge of the Supreme Court of Western Samoa, on 17 August 1995. In a judgment delivered on 22 August 1995 he held that he was bound by the conclusion of the Court of Appeal in Saipa'ia Olomalu that matai suffrage is not entrenched, but that in any event he agreed with that conclusion. In the course of his judgment he spoke, in words which we would respectfully adopt, of-

"... the very logical objection that if Matai preference was considered important enough to be recognized as an underlying assumption of the Constitution, it would have been a simple matter to make the position clear by expressly including it, instead of leaving it hidden behind language which on its face says something quite different."

Before Casey J. it had been argued on behalf of the applicants that what was said in the judgment of the Court of Appeal in Saipai’ia Olomalu about matai suffrage not being entrenched was obiter, that is to say not part of the reasons for the decision. In this Court on appeal Mr. Barton, who led Mr. Malifa for the appellants and had not appeared in the Court below, abandoned that argument. He accepted that it was part of the reasoning on which the Saipai’ia Olomalu decision was based that there was no constitutional entrenchment of matai suffrage. His argument was that the decision was wrong on that point; that it is open to this Court to reconsider a previous decision of this Court; and that in the instant case it is appropriate to do so and to reach a different conclusion.

It is convenient to approach the appeal by examining the entrenchment issue afresh, without taking into account the 1982 decision and the issue departure from precedent. In the event we have found that the issue departure from precedent does not require decision. It will be enough to make some brief observations about it later. First we will turn directly to the entrenchment issue. We will begin by discussing an argument for the appellants which is entirely new, in the sense that it was not raised in the 1982 case.

THE LINGUISTIC POINT

It is desirable to set out side by side the English and Samoan versions of the material provisions of the Constitution Amendment Act 1963. For simplicity we do not reproduce the original English and Samoan texts of art. 44(1)(a), but we have had full regard to them in forming our conclusions.

AN ACT to amend the provisions of the Constitution as to the number of territorial constituencies and as to the Members of Parliament elected for those constituencies, and as to the constitution of the Court of Appeal. [19 December 1963

BE IT ENACTED by the Legislative Assembly of Western Samoa in Parliament assembled as follows-:

O SE TULAFONO e toe teuteu a'i tuutuuga o le Faavae i le itu i le aofa'iga o itumalo faa-alaalafaga ma le itu i Sui Usufono o le Palemene e filifilia mo ia itumalo, ma le itu i e faavaeina o le Faamasinoga o Talosaga 19 Tesema 1963.

UA FAIA e le Fonoa Aoao Faitulafono a Samoa i Sisifo i totonu o le Palemene a o aofia potopoto e faapea:-

1. Short title - This Act may be cited as the Constitution Amendment Act 1963.

1. Igoa puupuu -E mafai one ta'ua le Tulafono lenei o le Tulafono Toe Teuteuina o le Faavae 1963

2. Reducing number of territorial constituencies, etc. - The Constitution of the Independent State of Western Samoa is hereby amended by deleting sub-clause (a) of clause (1) of Article 44 and substituting the following sub-clauses:

2. Faaitiitia o le aofa'iga o itumalo faa-alaalafaga, etc. Ua toe teuteuina nei le Faavae o le Malo Tuto'atasi o Samoa i Sisifo i le soloia o le puipui faafuaiupu (a) o le fuaiupu (1) 0 le Mataupu e 44, ma ua suia i puipui faafuaiupu nei ua tuuina atu i lalo:

(a) One member elected for each of forty-one territorial constituencies having such-names and boundaries and including such villages or sub-villages or villages and sub-villages as are prescribed from time to time by Act:

(a) Se sui usufono e toatasi e filifilia mo itumalo taitasi o itumalo faa-alaalafaga e fasefulu-tasi ua i ai o latou igoa ma tuaoi ma e aofia ai ni nuu poo ni pitonuu poo ni nuu ma ni pitonuu e pei ona fuafuaina mai lea taimi i lea taimi e se Tulafono.

(aa) Four additional members being one additional member elected for each of such four of those territorial constituencies as are prescribed from time to time by Act.

(aa) Le to'a-fa o sui usufono faaopoopo, e taitoatasi sui usufono faaopoopo e filifilia mo itumalo taitasi o ni itumalo faa-alaalafaga se fa e pei ona fuafuaina mai lea taimi i lea taimi e se Tulafono.

The rest of art. 44, (act) unamended in 1963, remains as follows. It is unnecessary to quote more than the English text, as there has been no suggestion of a difference between that and the Samoan text.

(b) Members elected by those persons whose names appear on the individual voters' roll

(2) the number of members to be elected under the provisions of sub-clause (b) of Clause (1) shall be determined under the provisions of the Second Schedule.

(3) Subject to the provisions of this Constitution, the mode of electing members of the Legislative Assembly, the terms and condition of their membership, the qualifications of electors, and the manner in which the roll for each territorial constituency and the individual voters' roll shall be established and kept shall be prescribed by law.

(4) Members of the Legislative Assembly shall be known as Members of Parliament.

If regard is had only to the English version, the interpretation of the article as amended is straightforward. Members are to be elected for territorial constituencies as provided by art.44(1)(a) and (aa). The article itself does not lay down by whom they are to be elected leaving that to be prescribed by law (which, as has been seen, includes an ordinary Act of Parliament) under art. 44(3). By contrast, under art. 44(1)(b) members are to be elected by those persons whose names appear on the individual voters' roll: their number is to be determined under the Second Schedule: and the opening words of art. 44(3) 'Subject to the provisions of this Constitution' make it abundantly clear that the provisions of art. 44(1)(b) and (2) and the Second Schedule are entrenched. The result is that by an ordinary simple majority of the Legislative Assembly and the assent of the Head of State the qualifications of electors in the territorial constituencies may be prescribed so as, for instance, to introduce universal adult suffrage.

The appellants seek, however, to place a different interpretation on art. 44, or at Least to raise a doubt about its meaning, by contending that some of the English words in art. 44(1)(a) are 'quite incorrect' translations of the words of the Samoan version. They filed in the Supreme Court affidavits to support this contention. In his affidavit the first appellant, Le Tagaloa Pita, says among other things -

17. THAT the terms Itumalo Faa-Alalafaga, Nuu and Pitonuu in Article 44(1)(a) when the Constitution was first adopted mean in Samoan Language and Culture, Council of Matai. They are synonymous with the term Matai.

18. THE translations into English 1963 of the terms in Article 44 Clause 1 Sub-clause (a) are quite incorrect. The English words introduced in 1963 translated into Samoan mean Itumalo Faa-Palota (Palemene), Aai and Faoa-Aai.

In more detail the appellant Aiono Dr Fanaafi, now the founding Professor of Samoan Studies at the National University of Samoa, says among other things in her affidavit -

7. THE terms Faa-Alalafaga, Nuu and Pitonuu used in Article 44 Clause 1 Sub-clause (a) of the Constitution when it was adopted in 1960 have special meanings in Samoan Language and Culture; they refer to matai and they are synonymous with matai.

8. THESE terms were translated into English in 1963 as Constituencies, Village and Sub-Village and the translations are totally incorrect because the English words used have quite different meanings.

9. THE correct translations of Territorial Constituencies, Village and Sub-Village into Samoan are Itumalo Faa-palota (Palemene), Aai or Faoa-Aai and these meanings accurately convey the meaning of the English words used in the translations of 1963 but not the terms adopted by the Constitutional Convention of 1960.

10. THE Samoan words Faa-Alalafaga, Nuu and Pitonuu adopted in the Constitution is difficult to translate into English as it is a Samoan concept which has no equivalent in other Culture particularly the European Cultures.

11. THE only similarity is the Jewish system, which is similar to our matai system and this distinction is used in the translation of the Bible where a Jewish place is translated into Samoan as Nuu and a foreign Village or Sub-Village referred to as Aai and Faoa Aai. The Samoan Bible is the authority on Samoan Language.

12. EVEN to the present day settlements of foreigners are referred to as Aai Niue (Village of Niueans), Aai Fiti (Village of Fijians).

13. AN Aai or Faoa-Aai refers to everybody, matai and non-matai, in the settlement which can be described as a Village. On the other hand-a Nuu or Pitonuu refers only to matai and cannot be called a Village or Sub-Village.

14. THE terms Faa-Alalafaga, Nuu and Pitonuu refer to Councils of Matai. In other words they are exclusive and prescriptive terms unlike the terms Village and Sub-Village which are understood in the English language to be inclusive or descriptive terms.

15. FAA-ALALAFAGA, Nuu and Pitonuu refer to Councils of Matai and is understood by the Framers of the Constitution and Samoans who know their culture that the matai in these Councils have families which they represent.

16. THESE families represented by the matai (Itumalo Faa-Alalafaga, Nuu or Pitonuu) could be scattered all over Samoa and even overseas.

17. THERE cannot be a Itumalo Faa-Alalafaga, Nuu or Pitonuu without matai

18. EACH Itumalo Faa-Alalafaga, Nuu or Pitonuu has a ceremonial address (faalupega) which refers only to matai.

19. A settlement of people without a matai is a village. (Aai ) and not a Itumalo Faa-Alalafaga, Nuu or Pitonuu and is not recognized by the Matai (social system) as a Itumalo Faa-Alalafaga, Nuu or Pitonuu. As Samoans they would of course, come under some matai or matais in a recognized Itumalo Faa-Alalafaga, Nuu or Pitonuu. If they are able to establish or have matai titles conferred on any of its inhabitants then they can call themselves a Itumalo Faa-Alalafaga, Nuu or Pitonuu which would refer to the Council of matais of that settlement.

20. THAT to be classified as a Itumalo Faa-Alalafaga, Nuu or Pitonuu is important in the social system with regards to the right or order of address, the right to share in the distribution of fine mats and food, the right to occupy or own or have pule over customary land and many other aspects of the Samoan way of life.

21. SO when people talk and refer to Itumalo Faa-Alalafaga, Nuu or Pitonuu they are talking and referring to the matai.

22. THE terms Itumalo Faa-Alalafaga, Nuu or Pitonuu are synonymous with the term Council of Matai.

Article 112 of the Constitution provides that the Samoan and English texts of the Constitution are equally authoritative, but in case of difference the English text shall prevail. This would produce a short answer to the argument that there is a material difference, but it would be an unfortunate answer. For the following reasons we are satisfied that in fact there is no material difference and that the affidavits just quoted, which were supplemented to some extent by Mr. Malifa in his submissions for the appellants, are insufficient to establish one.

First the expression 'itumalo fa'a-alaalafaga' does not appear to have been in traditional or common use in Western Samoa before the 1960 Constitution. As pointed out by the Chairman during the Convention debates (26 September 1960, p.504 of the record) Dr Davidson, the constitutional adviser to the Government, had advised that the concept of territorial constituencies was something new. Clearly it has a territorial or district connotation and is not merely a synonym for a number of matais.

Secondly authoritative dictionaries and writings show that nu'u and pitonu'u are accurately translated as village and sub-village. Pratt's Grammar and Dictionary of the Samoan Language (1st ed. 1862, 4th ed. 1911, reprinted 1960) gives -

Nu'u, s.1. a district, a town. 2. A country, an island. 'Aue, Tutuila e, o lota nu'u mamao. 3. People. Oi ta ino'ino i le nu'u ua au mai, &c.

Milner's Samoan Dictionary, 1966, gives-

Nu'u n. 1. Village. Ua vela lana umu ilo tatou -- (pv 153): His work in our village is useful (i.e. he is a useful citizen). 2. Home 'O lo'u -- o Upolu: My home is in U.

It may be mentioned that in his preface, p.x, Mr. G.B. Milner acknowledges that in 1960 the presence in London of Dr Fanaafi enabled him to check his material against three European works which she had translated. We treat this as indicating respect for her, certainly not as claiming her endorsement of all his definitions.

In The Making of Modern Samoa by Malama Meleisa, 1987, the following passages at 5 to 7 are of particular relevance:

According to the earliest nineteenth century observers, settlements were mainly nucleated and located on the coast, although archaeological evidence suggests that dispersed and inland settlements existed in the past (Davidson, 1969: 44-82). Temporary settlements were established inland in times of war, for hunting season and when land was being cleared or timber collected from the forests. Land was held in wedge-shaped territories extending from the mountain ridges of the interior to the outer reefs of the coastline, as it is today, and thus most nu'u had access to more or less the full range of environments and resources which the islands offered (Watters, 1958: 1-8).

Since the early years of European contact and. doubtless for much longer, Samoa had a decentralized system of political authority in which the basic political unit was the nuu, which is usually translated into English as "village" but might be better understood as "polity". The nu'u was more than a settlement, it was a territory which was collectively owned and controlled by a number of bilateral, corporate descent groups termed alga. A nu'u comprised 200 to 500 people and was politically autonomous with its own hierarchy of leaders, and historical traditions or "charter" summarized in the fa'alupega.

The term aiga is used in a similar manner to the English word 'family', which is applied to all sorts of literal and metaphorical situations ranging from the smallest unit of kinship to 'the family of man' and can be translated as 'family' or as 'extended kin-group'. An aiga can be any family group from a married couple to a large clan comprising all the descendants of a common ancestor either male or female. The term for the core group of an aiga associated with the particular estate and title is pui aiga. However the term aiga is also used of descent groups which identify themselves in relation to an extremely important ancestor or ancestress with the prefix "sa" as in "the Sa Malietoa". In this sense, aiga were not necessarily localised (although they had focal points in one or more nuu) but were ramified, with branches in many nu'u.

As nuu comprised groups of aiga, so groups of nu'u formed districts, termed i tu malo, literally meaning "winning side" but connoting "alliance". As the term implies, districts were less stable than nuu. Turner (1861: 87) writing of the 1830s, observed that there were ten principal districts:

... villages in numbers of eight or ten unite by common consent and form a district or state, for mutual protection. Some particular village is known as the capital of the district and it was common of old to have a higher chief than any of the rest, as the head of that village who bore the title of King. Just as in the individual villages, the chief and heads of families unite in suppressing strife when two parties quarrel so it is in the event of a disturbance between any two villages of the district, the combined chiefs and heads of families of all the other villages unite in forbidding strife. When it is threatened by another district, no single village can act alone; the whole district, or state, assemble at their capital, and have a special parliament to deliberate as, to what should be done.

A Samoan proverb says "O Samoa ua ta'oto, a o se i 'a mai moana, aua o le i'a a Samoa ua uma one 'aisa" - "Samoa is like an ocean fish divided into sections". The proverb alludes to the custom of dividing certain species of fish into portions, each of which is ascribed a particular rank for presentations to the chiefs. The origin of the principal districts of Upolu is attributed in oral traditions to Pili, the son of god, Tagaloa-a-lagi, who was expelled from heaven and went to the Western Islands from Manu'a. He divided the island of Upolu among his descendants and these were later divided into sub-districts.

Westerner observers recognized that every aiga, in the context of the nu'u, was associated with one or more titles of differing rank, but the full complexity of aiga relationships was not appreciated. While a number of titles was associated with the aiga, for example, only senior titles were recognized as giving the aiga its proper identity. Each nu'u was governed by a council of matai, or fono which made decisions on all village matters beyond the scope of the individual aiga. The matai was the custodian of the aiga estate and allocated rights to use sections of land for individual cultivation among members of the aiga, but a great deal of work was organized communally. Fishing,. housebuilding (including felling and transporting timber), preparing feasts, hunting, clearing forests, and preparation for war, were among the many activities undertaken under the direction of the fono. Matai worked along with untitled men and acted as work leaders; only the highest ranking ali'i were unlikely to take part in daily work.

...

The term matai comes from "mata i ai " which has the connotation of "being set apart" or "consecrated". Again in the context of the nu'u, each aiga was associated with a particular matai title, and the standing of the matai in his alga was that of its leader and the trustee of its land and property. Thus irrespective of the ascribed rank or status of the title held by any matai, all matai were heads of families. Similarly in a fono, irrespective of the rank or status of his title, every matai has dignity and authority as the head of his aiga. However the fono was ranked by the ascribed status of each of its constituent titles and the rank order was expressed in seating arrangements and the order of precedence in which kava and food was served.

And again at 10-

Oral traditions collected in 1977, from a group of four nu'u on the south coast of Upolu illustrate how polities develop and change over several centuries. The four were originally one nu'u, founded and settled by a Fijian chief (shortly after the period of Tongan domination of Samoa) who was recognized by Malietoa as of chiefly rank. After many generations his title became an "ao", a ceremonial title, which the original group of tulafale who had served the title, had the right to bestow. About seven generations ago, two brothers and a sister came to the nu'u; they were members of one of the paramount descent groups of Samoa, and from them issued three separate but related descent groups of high rank and their names became senior ali'i titles. The descendants of the sister founded a separate pitonu'u (sub-division of nu'u ) with people assigned to look after her welfare. As a result of attempts by her descendants and those of her guardians this pitonu'u has gradually evolved into a nuu in its own right. All the titles of the village regarded as "foundation" titles (ma tai fa'avae) are remembered as having descended from the Fijian founder of the village or the titles he created. But these are not only titles of the nu'u; others are remembered as having come in over the centuries are refugee kinsmen and having been offered land and recognition of their titles through the wishes of the ranking ali'i and the agreement of the fono. One of its pitonu'u, now also a nu'u in its own right, originated from a portion of land given to a chief who came as the defeated party from another district. As a result of this event a new ali'i title was recognized, by the village, along with the tulafale titles of his supporters. All this basic historical information as well as the origin of the nu'u are summarized in its fa'alupega.

In the light of those definitions and passages we have no doubt that the Samoan words in question refer to territories and their peoples. Of course the persons exercising authority in the community, in particular the council of matai (or fono) of a nu'u, are associated with the territory and the people; but the unmistakable message of impartial and reliable works of repute is that matai and their territories and peoples are not synonymous words. Indeed, when closely studied the affidavit of Professor Fanaafi is seen to contain some statements pointing in the same direction.

If the English and Samoan texts differed in their meanings to the extent that the English version is 'totally incorrect', as the appellants allege, it is surprising that, the difference had not become obvious when the 1963 constitutional amendment was prepared. It is implausible to suggest, as second counsel for the appellants did in argument, that the framers of the 1963 amendment would have been content to rely on some alleged assurance given during the 1960 Convention debates of correspondence with the Samoan meaning now contended for by the appellants. It is striking, too, that during the intensive scrutiny of the suffrage question throughout the 1982 litigation no one suggested that there was a significant difference between the two texts.

We add that, even if in a loose sense the relevant Samoan expressions in the Samoan text of art. 44(1)(a) and (aa) could be taken as referring to matais, this would fall short of entrenching matai suffrage. Matais are family heads and traditional spokesmen (see the extract from the report of the 1961 Plebiscite Commissioner quoted in. Saipai'ia Olomalu at 282) but, even on the hypothesis just mentioned, the article would not prescribe that only they could vote for their constituencies. Under art. 44(3) Parliament would still be free to define the qualifications of electors so as to bring in non-matais also.

For these reasons the new linguistic point raised by the appellants cannot succeed. And, once that point disappears, their arguments fail for the reasons already stated briefly in the opening of our discussion of the English text of art. 44 and developed more fully (out of respect for the importance of these constitutional arguments) in the remainder of this judgment. It is appropriate here, however, to enter a caveat as follows.

We do not consider that the linguistic argument or any of the other arguments for the appellants have raised any real doubt about the correctness of the reasoning in Saipa’ia Olomalu. Nor do we consider that Mr. Pereira for the Western Samoa Society for Civil Liberties, added as a respondent in this Court by unopposed order, has been able to shake the reasoning of that decision by his argument attempting to resurrect the view that art. 15 or part of it applies to parliamentary electoral rights. We need not elaborate on that point at this stage of our judgment, as the reasons for which the argument must fail are fully stated in Saapa'ia Olomalu and will be dealt with as well later herein. Suffice it to say here that Mr. Pereira stresses the political opinion rather than the family status provisions of art. 15(2), and also invokes art. 15(4), but this can make no difference to the basic point that the parliamentary suffrage is a special subject outside the scope of that article.

The caveat is that, if either the appellants or the second respondent had been able to raise a real doubt about the correctness of the Saipa'ia Olomalu reasoning, there would have arisen the question whether in a constitutional matter where the law had appeared clearly settled after a full examination by this Court, it would be right for the Court to entertain the possibility of departing from that precedent. A Constitution is a living and evolving thing. The course of its development by judicial interpretation should not be dramatically reversed on no more than finely balanced arguments. But, in view of the conclusions that we have reached after a fresh examination of the entrenchment issue, this aspect calls for no further reference.

INTERPRETING THE CONSTITUTION

We now consider the entrenchment question more fully using an approach to the interpretation of the Constitution on which the parties broadly agree. In particular they refer to the celebrated statements of Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] A.C. 319, 328-9 used by this Court in 1982 and by Sir Maurice Casey in the Supreme Court in this case.

Following those statements and approaches, the Court will consider the words of the provisions principally in issue, the constitutional and legal context in which they appear, and the wider social and historical context in which they are to be understood. As in 1982 we were referred to the historical development of the Constitution and in particular to the Convention Debates to which we have already referred. There was no dispute this time about whether we should make use of those Debates and once again they have given us a real sense of the issues and how they were addressed.

Conclusions drawn from the debates could not of course prevail over the clear meaning of the terms of the Constitution.

THE WORDS OF THE CONSTITUTION

Part V of the Constitution, headed Parliament, is at the centre of the case. The first four provisions of the Part establish Parliament (art. 42), confer Power to make laws on it (art. 43), deal with Members of the Legislative Assembly (art. 44) and provide for the Qualifications for membership (art. 45). We deal with them in turn, giving most attention to art. 44.

The Parliament established by art. 42 consists of the Head of State and the Legislative Assembly. (Under the transitional provisions of art. 117 the Legislative Assembly of the Trust Territory in being on Independence Day, its Members, Speaker and Deputy Speaker and Standing Orders became the Legislative Assembly etc. under the Independence Constitution.)

Parliament is the primary law-making body for the Independent State of Western Samoa. Art. 43 confers those powers in ample terms:

Power to make laws

43. Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of Western Samoa and laws having effect outside as well as within Western Samoa.

The question this Court must decide is whether there is a provision in the Constitution entrenching the voting rights of matais and accordingly falling within the scope of the introductory phrase to art. 43.

The very next provision in the Constitution, art. 44 concerned with 'Members of the Legislative Assembly', is the most likely source of such a limit. According to the appellants that article does subject those ample law-making powers to limits, in particular by entrenching matai suffrage. It should be set out in full. In this part of our judgment there is no need to set out the Samoan text also; for the reasons already explained we do not regard it as significantly different.

Members of the Legislative Assembly

44. (1) The Legislative Assembly shall consist of:

[(a) One member elected for each of 41 territorial constituencies having such names and including such villages or sub-villages or villages and sub-villages as are prescribed from time to time by Act:

(aa) Four additional members being one additional member elected for each of such 4 of those territorial constituencies as are prescribed from time to time by Act:]

(b) Members elected by those persons whose names appear on the individual voters' roll.

(2) The number of members to be elected under the provisions of sub-clause (b) of Clause (1) shall be determined under the provisions of the Second Schedule.

(3) Subject to the provisions of this Constitution, the mode of electing members of the Legislative Assembly, the terms and conditions of their membership, the qualifications of electors, and the manner in which the roll for each territorial constituency and the individual voters' roll shall be established and kept shall be prescribed by law.

(4) Members of the Legislative Assembly shall be known as Members of Parliament.

Clause (3), read alone or read with art. 43, appears on first impression to confer very broad powers on Parliament to prescribe by law, that is by Act, 'the qualifications of electors' - those who will be entitled to vote for the two categories of members mentioned in clause (1). The power in clause (3), like that in art. 43, is stated to be 'Subject to the provisions of this Constitution'. But on its face, art. 44 appears to subject the power to no relevant constraint. For instance clause (1)(a) and (aa) does not expressly confer any right to vote on anybody, matai or citizen, whether in the territorial constituencies or in respect of the individual voters' roll.

The apparent plain meaning of the words and the lack of explicit relevant constraint on the powers of Parliament to decide on the qualification of electors is supported by the very next provision of Part V, headed Qualifications for membership. Art. 45(1) reads:

Qualifications for membership

45. (1) Any person shall be qualified to be elected as a Member of Parliament who-

(a) is a citizen of Western Samoa; and

(b) is not disqualified under the provisions of this Constitution or of any Act.

Or to put it another way, any citizen at all is qualified to be elected unless the Constitution or an Act disqualifies that person. We note first that art. 45 contains no features of the duality of art. 44(1) and accordingly that that possible basis for the contention that the Constitution limits candidacy for the 45 territorial constituencies to matais does not exist. (Parliament maintained matai only candidacy in s.4 of the 1990 Act, a clear exercise of the power recognized in art. 45(1).) It would be extraordinary were the Constitution at one and the same time to require matai-only suffrage in the territorial constituencies and to allow Parliament by a simple Act to enable any citizen at all to be a candidate in those constituencies - as art. 45 appears clearly to provide. We cannot believe that the Constitution does provide for that extraordinary result. No counsel contended for that result. And none gave an alternative reading to art. 45.

THE CONTEXT: THE ELECTORAL ACT 1963

It is to the Electoral Act 1963 that we must mainly turn in considering the real effect in practice of the references in art. 44(3) and art. 45(1) to legislation concerning voters and electors and candidates. (The Constitution has at least one explicitly prohibitory provision in respect of candidacy, art. 25(9).) Parts III and IV of that Act regulate the qualifications of electors and voters (keeping the distinctions reflected in sub-clauses (a) and (b) of art. 44(1)) and Part II the qualifications of candidates for election.

That Act has regulated those matters for the sequence of general elections and also for by-elections held in Western Samoa since it became independent. The qualification requirements have been changed from time to time since then, most notably in 1990 of course, but not only then. The 1963 Act in many respects reflects the voting law as it was before Independence, but it is worth noting some of the changes made at that time and since. They indicate the great difficulty - we will say the impossibility - of inferring suffrage and the right to vote from the provisions about members and constituencies in clause (1) of art. 44. They indicate that such legislation is essential for the electoral system to operate.

We begin with positive elements of qualification matters such as matai status, citizenship, age and residence - and also note disqualifying elements - such as conviction of a serious offence.

The qualification of electors for the constituency seats as set out in s.16 before it was amended in 1990 by the provision that is challenged were that the person is:

(a) a holder of a Matai title and on the Register of Matais held under the relevant legislation

(b) of or over the age of 21 years

(c) not disqualified under s.5

(d) not on the individual voters' roll.

The first requirement requires of course reference to the law and custom regulating the grant of matai titles. The main point to be made about that law and custom is that it is not immutable. It is not possible to say that at some point the concept and the detailed meaning of 'matai' was fixed (and on the appellants' argument became an entrenched part of the Constitution) and that thereafter it would never alter. That room for flexibility is made very clear by an important resolution adopted without dissent by the Constitutional Convention on the proposal of the Working Committee of the Convention.

The Convention resolved:

1. That only citizens of Western Samoa shall be permitted to hold matai titles.

2. (a) That all citizens of Western Samoa who are related to families possessing rights to customary land shall be eligible, in accordance with Samoan custom and usage, to hold matai titles and to hold the pule over customary land,

(b) That any dispute as to whether the holding of a matai title or pule over customary land by any citizen is in accordance with Samoan custom and usage shall be determined, as at present, by the Land and Titles Court.

(Constitution Convention Debates), Vol. II, p. 700)

Professor Davidson, speaking for the Working Committee, and explaining the background to the resolution, emphasized the great objective of the unity of all those who regard Western Samoa as their home:

... it should be an object of government to bring all the citizens of Samoa within the framework of Samoan society. [The Working Committee] realized, however, that that would be a gradual process.

One element of that approach was to require citizenship for those on the individual voters’ roll-a change which the Convention had already endorsed in a resolution adopted when it adopted art. 44. Further, those exercising the privileges of Samoan society by holding a title or cultivating customary land could not go back onto the individual voters' roll.

The second recommendation by the Working Committee embodied in the resolution set out above was also aimed at making all the people of Western Samoa one:

The present law regarding eligibility to hold a matai title and to exercise the pule over customary land is confused in many ways, and it dates back to ideas as to what would be desirable for Samoa that were held in New Zealand 40 years ago.

Two instances of the inadequacy of the law were the ability of foreigners to be matais and the bar on those with less than 50% Samoan blood (Constitutional Convention Debates, Vol. II, p.701). In the words of Mr. F.H. Corner, speaking for the New Zealand Government in the United Nations General Assembly in 1961, the adopting of this resolution was 'evidence of a major adjustment in the Samoan social system' (UNGAOR 16th Sess., 4th Cttee, 1169th mtg, para. 12).

The Parliament of the newly Independent State made the recommended changes to the law in the Samoan Status Act 1963 -'An Act to amend the law as to Samoan status and as to eligibility to hold a matai title'. Those changes had important consequences for those parts of the law which depend on matai status. In particular some of those who could have voted as matais in any election held in 1962 or 1963 could no longer do so. On the other hand, some Samoans who earlier would not have qualified for matai status would now be able to. On the same day that that Act was assented to, the Electoral Act, the Territorial Constituencies Act and amendments to the Constitution (including the changes to art. 44(1)) also became law.

We return to other provisions of s.16 of the Electoral Act 1963.

The 21 year age limit was enacted in 1964. It also of course limited the group who could vote in the territorial constituencies - only adult matai could vote; those who were under 21 could no longer do so although they had been entitled to vote in Legislative Assembly elections before Independence. They were however excluded from voting in the 1960 plebiscite by the express reference to 'adult citizens' in the Plebiscite Order; see the Report of the United Nations Plebiscite Commissioner for Western Samoa, UNGAOR, 16th Sess., agenda item 48, p.2, para. 69. That new limit on the voting rights of Matai would appear on the appellants theory to be unconstitutional.

Further possible changes in the electoral rights of particular matais follow the changes in the grounds for disqualification; for instance the disqualification in respect of conviction for a serious offence was strengthened earlier this year, Electoral Amendment Act 1995, s.4 (5); see also s.8.

That Act also introduces a residential requirement for candidates, s.4(2). Again an exercise of legislative power regulating electoral qualifications.

A final feature of the electoral legislation might be mentioned: it limits candidates to the constituencies in which they are electors, s.5(1). Again that detail is not one which would obviously be read into the broad wording of arts. 44 and 45.

The Court has considered aspects of the Electoral Act at some length, although not exhaustively and with no intent to provide the provisions with an authoritative interpretation. Rather the purpose is to demonstrate that such detailed provision determining the qualifications of electors and of candidates is required. Those qualifications cannot depend on the spare words of arts. 44 and 45. And indeed the very words of arts. 44(3) and 45(1) recognize that; they both say that it is for Parliament to spell out the qualifications by appropriate legislation.

Counsel for the appellants nevertheless-contended. that Parliament could not by ordinary legislation introduce universal adult suffrage for the territorial constituencies. On that view, the exclusive entitlement of the matai to vote was entrenched and accordingly could be altered only by the more complex constitutional amendment procedure laid out in art. 109, which to repeat requires a two-thirds vote of the total number at the third reading and a 90 day delay between the second and third readings.

We consider that argument under three headings, which take the Court into the wider context in which the Constitution is to be seen.

Clause (1) of Article 44 Substantive
and Clause (3) Procedural?

Mr. Barton contended that clause (1) of art. 44 entrenched matai suffrage (and also the individual voters' suffrage): it dealt with the substance of that matter. Clause (3) by contrast conferred authority on Parliament simply to prescribe procedures for exercising the right of suffrage. For us the earlier discussion of the provisions of art. 44 (and also art. 45) and of the Electoral Act provide the answer to that contention. Even if clause (1) was in the form of an entitlement to vote - which it is not - and even if it indicated in a broad way who came within the broad categories of those entitled to vote - which it does not - detail like that in the 1963 Act and comparable electoral statutes elsewhere is necessary to the working of an operational electoral system. How, in the absence of such an Act, is a Registrar of Electors working simply with art. 44 (and art. 45) to run an election? (We might note that in that eventuality one matter would be clear: any citizen at all could be a candidate.) What for instance are the requirements in respect of residence, of dual citizenship (indeed of Western Samoan citizenship so far as electors are concerned since it is not mentioned in art. 44(1)), of age, and of disqualification? Such matters must surely be resolved by legislation to the extent that the Constitution does not settle them.

We do not consider that clause (1) can possibly carry the weight Mr. Barton would have it bear. Rather the matter of qualification falls to be dealt with naturally by Parliament exercising its express power under art. 44(3) to prescribe 'the qualifications of electors' - which is exactly what it did in 1990 and indeed on other occasions.

We do not deny that a line could be drawn between the substance of the right and the procedural means of exercising it - the Electoral Act in a way does that for instance in its provisions on qualifications and on registration. But the words of art. 44(1) and (3) do not on our reading draw such a line, at least in a way that is relevant to the present case. The issues in the present case are left to Parliament and its ample law-making power.

The Fundamental Linkage Between Matai Status
and Customary Land: Articles 102 and 109

Mr. Barton stressed a matter which this Court touched on in 1982 when it referred to the 'unique' entrenchment in art. 109 of the provisions of art. 102 prohibiting the alienation of customary land. In that particular situation alone, it is not enough for the constitutional amendment to have the support of two-thirds of all the members of Parliament. As well there has to be the support of two-thirds of the voters at a poll of 'the electors' on the rolls for all territorial constituencies - which, Dr Davidson explained at the Convention, were the matai voters. If all citizens (other than those on the individual voters' roll) could vote in such a referendum the argument went, the matai vote could be swamped and the unique safeguard which the proviso to art. 109(1) provides would be undermined. And that would be inconsistent with the fundamental role of the matai as the stewards of customary land.

We do appreciate that role, and any argument based on it must have force. But we consider that the argument is outweighed by other considerations. First of all the unique procedure of the proviso of art. 109(1) does still have to be followed. Even with universal suffrage and the fear of the dilution of the matai vote, any change to the prohibition on the alienation of customary land still has to proceed through two difficult steps:

* the amending Bill has to receive the vote of two-thirds of the total membership of the Legislative Assembly, that is 32 of the 47 members, all but two of whom are matais; that is to say at least 30 and possibly 32 of the 45 matai elected to the Assembly would have to support the measure; as well the Bill cannot be rushed through Parliament - at least 90 days must pass between the second reading and the third at which the two-thirds absolute vote must be obtained.

* As well a two-thirds vote of those electors who vote must be obtained; that is a high proportion; it is true that that proportion was exceeded in 1960 (but the earlier processes had already ensured very broad support), but it was not exceeded in 1990, the latest occasion when a referendum based on universal suffrage was carried out.

We would note as well that, on the appellants' argument, matai suffrage itself could be removed without the second, even if diluted step. All that they are contending is that the change to the exclusively matai suffrage which they claim is implied in art. 44(1) could be altered only by a constitutional amendment adopted through the first of the two steps just set out.

Part of the argument on this issue was that the word 'electors' in art. 44(3) and art. 109 must have a constant meaning and have the same meaning in both provisions; and that meaning must be 'matais'. (They are the only two provisions of the Constitution in which the word 'electors' appears.) Mr. Barton did agree that in art. 44(3) the word must also include those on the individual voters' roll. That must reduce part of the force of his argument. We have already indicated the reasons for not accepting that limited meaning. Our reading of the provisions of art. 44 in the context of the Constitution is that it is in general for Parliament to prescribe the qualifications of electors. Parliament does that in exercise of the power conferred or recognized in art. 44(3) as well as of the primary power conferred by art. 43. It did that in 1990 when it widened the suffrage.

Accordingly the Court is not persuaded that the provisions prohibiting the alienation of customary land in art. 102 required matai suffrage under art. 44. It turns now to the third and final contention.

The Matai System in Samoan Society

and the System of Government

For the appellants, matai authority and matai suffrage are principles that are entrenched in the Constitution. They constitute a fundamental principle of the Constitution. We agree, at once, that a constitution must be read by reference to the traditions and usages of the society in which it is to operate. A related point, to recall again the words of Lord Wilberforce is that the constitution should be interpreted generously, avoiding 'the austerity of tabulated legalism': Minister of Home Affairs v Fisher [1990] A.C. 319, 328-9. A constitution states principles for an expanding future, not rules for the passing hour.

The preamble to the Constitution indeed gives strong support to a broad approach, emphasizing Samoan custom and tradition and balancing those matters with commitments to the fundamental rights of all the people of Western Samoa.

As the 1982 judgment attempted to reflect, this Court has not the slightest doubt about the central role of the matai system in Samoan society and in the Samoan system of government, if that system is really distinct from the society. But for that leadership role to be a vital one it must also adapt - as appears for instance so clearly from the 1960 resolution of the Constitutional Convention and the 1963 response by Parliament mentioned earlier. Just a few weeks after the Constitution was adopted, the first Prime Minister of the Independent State of Western Samoa, Hon. Fiame Mataafa Faumina Mulinu II, captured the balance between continuity and change, heritage and heresy, much more eloquently than we could, in his speech to the United Nations General Assembly. This is what he is reported as saying:

"We believe that a future should grow out of the past. ... A slow-growing tree which has thrust its roots deep into the soil is better able to withstand a hurricane than one with shallow roots which has grown more quickly. Similarly, our new State, rooted deep in our custom, slowly growing and developing in response to changing circumstances, should be able to withstand the pressures and problems of the modern world."

(Statement to the 4th Cttee, 9 December 1960, quoted by Mary Boyd 'The Record in Western Samoa since 1945', Ross (ed.) New Zealand's Record in the Pacific Islands in the Twentieth Century (1969) 266.)

Hon. Malietoa Tauumafilu II, now His Highness the Head of State and in 1960 one of the co-chairmen of the Convention, just a few weeks earlier at a critical stage in the debate on universal suffrage and referring to the need to assist the Prime Minister in his preparations for the negotiations and debates in the United Nations, had used two Samoan proverbial sayings:

Just as a green stick cannot be broken, Samoan custom is too vigorous to be disregarded in this generation. But the next generation will probably do something different just as every season a fresh stick is used to knock down the breadfruit, and it will be up to that generation to reshape the electoral system to suit themselves.

(Debates of 26 September 1960 as quoted in Boyd, 265; the translation in the Convention Debates Vol. II, pp. 497-8 is to the same effect but fuller.)

The question for this Court is how that balance was reflected in the Constitution; that is, what is the balance between the rigid elements subject to the amendment system of art. 109 and the flexible elements which can be altered by legislation passed in the ordinary way?

There can be some dispute about what the 1960 record shows about the broader issues just touched on, but we are inclined to the understanding of the Constitution expressed by the New Zealand representative speaking in the 1961 debates at the United Nations which led to the termination of the Trusteeship Agreement on the basis of Samoa acquiring its independence under the 1960 Constitution, as endorsed by the plebiscite. Mr. Corner, who was followed immediately by Hon. Fiame Mataafa who made no comment on this matter, gave a prediction as well as his interpretation of the legal text:

"13. Although the majority of the Samoan people still adhered to the system of "matai" suffrage associated with the traditional social system, the experience of a plebiscite based on universal adult franchise might well pave the way for a change. There was nothing in the new Constitution to preclude that change; indeed, by leaving the method of electing members of the Legislative Assembly to be prescribed by ordinary law, the Constitution had deliberately left the matter open. It would clearly be improper to attempt to force upon the Samoan people a change for which they were not ready and which they would at present regard as undermining their social system."

(UNGAOR (16th. Sess.), 4th Cttee, 1169th mtg, para. 13, emphasis added)

Casey J. referred to a statement to the same effect by Professor Davidson, Samoa Mo Samoa (1967) 377, and counsel referred us to other similar statements, notably by the New Zealand Constitutional Adviser, Professor C.C. Aikman in Ross (ed.) New Zealand's Record in the South Pacific (1969) 326.

We would not however want to put significant weight on what some might see as the somewhat unclear role of those broader considerations in respect of the specific issue before us. Rather, to return to the earlier discussion, the clear provisions of the Constitution read in their constitutional and statutory context bring us without any doubt to the conclusion that the Constitution does not entrench matai suffrage. The matter was left to Parliament to decide. Parliament has in fact made a number of decisions down the years to change the suffrage. It was in 1990 that it made the major change, challenged in these proceedings, to introduce universal adult suffrage. Our ruling is that under art. 43 and art. 44(3) it had ample power to do that.

We should not leave this part of the judgment without making a final comment. References to 'flexible' constitutions or to 'flexible' parts of constitutions as opposed to 'rigid' constitutions should not lead to the conclusion that basic features of constitutional systems of the former kind will be changed in a summary, arbitrary way. Such a view undervalues the responsibility, judgment and good sense of those who are elected to represent the people. As the facts in this case demonstrate so well, changes to basic constitutional provisions by so-called simple means might be made in a careful manner following years of consideration: the 1960 debates and decisions, the 1963 and 1964 legislation, the 1982 litigation in the Magistrates' Court, Supreme Court and Court of Appeal, the 1986 debate in the Legislative Assembly, the 1990 Plebiscite Act, the plebiscite itself with its two questions and the answers, and the 1990 amending Act - and no doubt much other debate and consideration as well. The two Bills passed in 1990 were of course passed by a Legislative Assembly consisting essentially of matai elected by a matai electorate. The Bills first provided for a plebiscite based on universal suffrage and second, following the plebiscite's support for universal suffrage, provided for universal suffrage.

If we may borrow the imagery, the new generation, thinking hard and long about the matter and drawing on the wisdom and experience of earlier generations, has taken a fresh stick.

The Arguments of the Western Samoa

Society for Civil Liberties

The Western Samoa Society for Civil Liberties (Inc.) applied to be joined as a second respondent in the proceeding. An affidavit in support proved its incorporation and that its objects and powers were appropriate to the issues before the Court. There was no objection to the application by either party and it was granted.

Mr. Pereira appeared for the Society and by way of introduction to his submissions he spoke with feeling, as a matai, in favour of universal suffrage. He believed the 1990 Electoral Amendment Act gave 'our people ... the taste of freedom' and saved the matai system from the 'corrupting influence ... of the creation of matai titles for voting purposes.' He could not, of course, give evidence from the bar, but the Reports of the Department of Land and Titles made available to the Court support his contention that matai titles were sought for voting purposes.

The Report for 1989 and 1990 records that at the time of the 1960 Plebiscite there were 5473 registered matai. At the end of December 1990 the number had grown to 21,649. While the population from 1960 had not doubled, the matai appointments increased fourfold. Since 1990 with the introduction of universal adult suffrage, there has been a marked decline in the number of new matai title appointments. In 1991, 1865 were registered, in 1992, 517 and in 1993 only 375. The 1993 Report refers to this 'dramatic drop from previous years when matai only could vote'.

The Society supported universal suffrage and was in agreement with the judgment of Casey J., differing only because it held the view that art. 44 is subject to art. 15. Mr. Pereira developed an argument that the basis of the discrimination which he said applied under art. 15(2) in respect of voting rights was not in relation to 'family status' but in relation to 'political ... opinion'. He argued that the most effective way to express 'political ... opinion' was through the exercise of the right to vote and that the function of the Court was to give effect to those words. He then went on to apply the proviso in art. 15(4) for the progressive removal by the State of any discrimination under art 15(2) He pointed to the system of matai suffrage as 'existing law' which survived the Constitution by virtue of the first part of art. 15(4) and enacted in the Electoral Act 1963 as a discrimination giving an advantage to matais and a disability to untitled Samoans. However, he concluded his submissions by accepting that universal suffrage reserving candidature for Parliament to matais only as enacted by the 1990 Electoral Amendment Act is 'in full harmony with our Samoan customs and traditions'.

The submission that the relevant words of art. 15(2) were 'political ... opinion' and not 'family status' was not made to Casey J. as the Society was not then a party to the proceeding. However, Casey J. did refer to the conclusion of this Court in Attorney-General v Saipa'ia Olomalu (supra) that art. 15(2) did not govern parliamentary electoral qualifications, holding them to be a special subject, outside the provisions of art.15. The Court in Saipa'ia agreed with St. John C.J. in the Court below that the discrimination between matais and untitled people was based on family status, because being a matai or a matai's wife related to status within a family. We also consider that to refuse a person the right to vote on the ground of being untitled is not, in the words of art. 15(2), to subject that person to a disability on grounds of political opinion. Being a matai or not is not a matter of political opinion.

As well for the reasons given in 1982, which we need not repeat, we share the conclusion that art. 15 was not intended to and does not relate to voting at general elections. The judgment continued, at 288:

When the Constitution is considered as a whole, we do not think that the question is left in any true obscurity. Parliamentary electoral qualifications are a special subject, outside the purview of article 15 and not dealt with at all in Part II of the Constitution. Such provisions as the Constitution makes on the subject are to be found in Part V.

It was the status of a matai which gave rise to matai suffrage and matai candidature in Parliament. While political opinion may be expressed in the ballot box, it is only one way of doing so and whether or not the electoral system gave rise to a discrimination depended on the qualifications of electors as 'prescribed by law' under art. 44(3). It was held in Saipa'ia that the Constitution permitted but did not require a system whereby only registered matais may be on the roll and allowed to vote in the territorial constituencies. Similarly it was open to Parliament in the Electoral Amendment Act 1990 to introduce under art. 44(3) of the Constitution universal suffrage following the plebiscite which was in favour of that change. For these reasons we reject the Society's case based on the provisions of art.15(2) in relation to discrimination by way of 'political ... opinion' and the proviso to art. 15(4) about the progressive removal of existing discriminations within the purview of art.15(2).

Conclusion

In the result, having gone into the issues afresh - and, we believe, in depth - we are satisfied that matai suffrage is not entrenched by the Constitution and that Parliament acted lawfully in introducing a system of universal adult suffrage as preferred by a majority of the people of Western Samoa voting in the 1990 plebiscite. The appeal from the judgment of Casey J. must be dismissed.

Costs are reserved and may be dealt with on memoranda if necessary.