Lafaialii v Attorney General [2003] WSSC 8 (24 April 2003)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER OF Article 4 of the Constitution.

AND

IN THE MATTER OF An application for judicial review.

AND

IN THE MATTER OF TAPU AEAU LAFAIALII, LEMOA SILIVELIO, MAO SUA,
FANOGA SEFO, LEMASINO VIIGA, TALIVAA AFASENE, MAREKO ISAAKO,
LOLI AOTELEGA and ALAPATI SUA.
Plaintiffs

AND

The ATTORNEY GENERAL sued in respect of THE LAND AND TITLES COURT
constituted pursuant to Article 103 of the Constitution of the Independent State of Samoa and
the provisions of the Land and Titles Act 1982.
First Defendant

AND

The ATTORNEY GENERAL sued in respect of THE DISTRICT COURT OF SAMOA
constituted pursuant to Article 74 of the Constitution of the Independent State of Samoa and the
provisions of the District Courts Act 1969.
Second Defendant

AND

AUVAA PAULO, SOLIA PAPU VAAI, LAMOSITELE SA, AEAU SUAUU,
SEUMANUTAFA SAUNOA, FUIONO MASEESEE, SILIALAEI TITI, SOIFUA
MANUELE, TAII MALELE, TAOFINUU FAATAI, being ALII & FAIPULE OF
FALEALUPO.
Third Defendant

Counsel: C Peteru for plaintiffs
A Lawson for first and second defendants
Third defendant made no appearance

Hearing: 20 January 2003
Judgment: 24 April 2003

JUDGMENT OF SAPOLU CJ

In these proceedings this Court has to deal with a motion for judicial review brought by the plaintiffs under Article 4 of the Constitution seeking:-

(a) an order of certiorari to quash the decisions made by the Land and Titles Court, the first defendant, on 23 March 2000 in ALC 4140 P2, P3 and on 7 September 2000 in ALC 4140 P4-P6;

(b) an order for the District Court, the second defendant, not to enforce the aforesaid decisions of the Land and Titles Court, the first defendant;

(c) a declaration that the Land and Titles Court, the first defendant, does not have jurisdiction to limit the number of churches in the village of Falealupo or prohibit the plaintiffs from conducting bible classes or church services at Falealupo;

(d) a declaration that the Alii and Faipule of the village of Falealupo, the third defendant, has no jurisdiction or authority to limit the number of churches in the village of Falealupo or prohibit the plaintiffs from conducting bible classes or church services at Falealupo or otherwise restricting the freedom of religious worship or instruction or activity upon customary land under its authority;

(e) a declaration that the Alii and Faipule of the village of Falealupo, the third defendant, contravened the freedom of religion provided in Article 11 of the Constitution when:

(i) in April 2002 they ordered and dismantled the bible class building which belonged to the plaintiffs at the village of Falealupo;

(ii) in May 2002 they banished from the village of Falealupo the plaintiffs who were members of the bible class at Falealupo and their families because of their religious beliefs.

Such further order as in the circumstances appear just were also sought.

These proceedings were adjourned several times for members of the third defendant to appear after counsel who had appeared on their behalf withdrew from continuing to act for the third defendant. The members of the third defendant were made aware of these proceedings and in spite of more than one adjournment of these proceedings to enable them to appear they have not done so. The Court therefore decided to proceed with the plaintiffs motion for judicial review under Article 4 of the Constitution without having to wait any further for members of the third defendant who have filed no affidavits or any other documents to oppose or defend these proceedings. The first and second defendants who have been represented by counsel have also not filed any affidavits. Perhaps this is because counsel who appears for the first and second defendants appeared to support the motion by the plaintiffs. As a consequence the Court has before it only the facts alleged by the plaintiffs in the affidavits and statement of claim filed on their behalf.

The facts of this case may thus be briefly stated as follows. The plaintiffs or nearly all of them are villagers of the village of Falealupo. They are also members of a bible class that was established at Falealupo in 1980 with permission from the Alii and Faipule which is the village council or governing body of the village. As the membership of the bible class continued to increase in numbers, the plaintiffs extended their activities from weekly bible studies to religious services on Sundays. This offended the Alii and Faipule as they had given permission to the bible class for weekly bible studies only and not for religious services on Sundays. The bible class was therefore instructed to cease its Sunday services but several of its leaders did not heed that instruction and were fined by the Alii and Faipule. All, except four, paid their fines. As a consequence the Alii and Faiupule petitioned the Land and Titles Court for an order to banish from Falealupo the four leaders of the bible class who did not pay their fines. The Land and Titles Court granted the petition by the Alii and Faipule and issued the banishment order sought. However a reconciliation took place between the Alii and Faipule and the bible class and the banishment order was not carried out. The bible class was allowed to continue within the village and its membership continued to increase in numbers.

It appears that a harmonious relationship then existed between the Alii and Faipule and members of the bible class for a number of years until February 1999 when the Alii and Faipule issued a public notice which prohibited members of other villages from continuing to attend the bible class at Falealupo. The plaintiffs as villagers of Falealupo were allowed to continue with their bible class and to erect a building for that purpose. That was on customary land held by one Lamositele Tautala a matai (chiefly title holder) of Falealupo who granted permission to the bible class to erect the building on his land. However, the relationship between the Alii and Faipule and the bible class was not to be peaceful and harmonious for long.

As the year 1999 progressed Fuiono Maseesee, one of the third defendants, told the bible class that the pastor of the village had expressed concern over the bible class as many of his parishioners were joining the bible class. Then towards the end of 1999 the village requested members of the bible class to perform items such as singing and dancing for the new millennium celebration but the bible class refused as it was not part of their religious beliefs. In the first week of the year 2000 at the Falealupo combined religious denominational service the pastor of the village openly attacked the bible class in his sermon. A week or so later, the Alii and Faipule ordered the bible class to cease its activities. Despite this village edict the bible class continued with its activities as before. As a consequence the Alii and Faipule petitioned the Land and Titles Court.

On 23 March 2000 the Land and Titles Court in ALC 4140 P2, P3 pronounced its decision on the petition by the Alii and Faipule in these terms:

(a) the decision ALC 4140 P1 of 16 July 1987 remains (this is the Court’s decision which granted a banishment order against the four leaders of the bible class who failed to pay the fines imposed by the Alii and Faipule in 1987);

(b) the bible class is to cease operations in Falealupo immediately;

(c) that all the non-Falealupo bible class adherents living in Falealupo or studying bible class in Falealupo were to leave Falealupo immediately and;

(d) the parties may amend (b) and (c) if matters could be resolved within one month.

As it turned out the parties were not able to arrive at a mutually acceptable resolution and the bible class continued with its activities as before. As a result members of the bible class were in May 2000 prosecuted for contempt in the District Court for non-compliance and open disobedience of the decision of the Land and Titles Court. Many of the members of the bible class were imprisoned. It appears that when the imprisoned members of the bible class were released after serving their sentences they returned to Falealupo and continued with their religious activities as before. As a consequence, the Alii and Faipule again petitioned the Land and Titles Court which on 7 September 2000 decided:-

(a) the decision of the Court delivered on 23 March 2000 still stands;

(b) all bible class adherents to leave Falealupo within one month; and

(c) the bible class building in Falealupo to be dismantled within one month.

The bible class did not comply with the decision of the Land and Titles Court and were again arrested. They were subsequently released after they advised the authorities that they were appealing the Court’s decision.

The relationship between the Alii and Faipule and the plaintiffs in 2001 was relatively free of conflict as the village was occupied with the general elections in the first half of that year and no bible classes were held during the year. Then on 22 January 2002 the appeal lodged by the plaintiffs against the decision delivered by the Land and Titles Court on 7 September 2000 was called for hearing before the appellate division of that Court which decided not to deal with the appeal as there had been a reconciliation between the parties and the plaintiffs had not been banished from the village. The plaintiffs were, however, advised that if they wish to continue to pursue their constitutional freedom of religion then they should consult a lawyer, who would probably refer the matter to the Supreme Court where the issue could be properly argued. The appellate division of the Land and Titles Court also felt that as there had been a reconciliation between the parties that reconciliation should be given the opportunity to fully materialise given the delicate nature of the issue that is involved. Another Court battle would be likely to dismantle the reconciliation that had been effected. However, if the plaintiffs at a later stage wish to raise the question of freedom of religion again then a lawyer should be consulted so that the issue could be properly argued before the Supreme Court.

Unfortunately, the reconciliation did not endure for long. In February 2002 thirty one members of the bible class were charged before the District Court with contempt for contravention of the decision of 23 March 2000 by the Land and Titles Court. It was alleged that those thirty one members of the bible class had again held bible studies in Falealupo in contravention of the Court’s decision of 23 March 2000. The charges were denied as according to the plaintiffs the members of their bible class had been careful to comply with the decision of the Court. Then on 19 March 2002 the plaintiffs received a letter from the deputy registrar of the Land and Titles Court which warned them to dismantle the building in which their bible studies and Sunday services were held and that the Alii and Faipule had set a deadline of their own for dismantling the same building.

On 22 April 2002 the Alii and Faipule met and decided to dismantle the building in which the plaintiffs and members of the bible class held their bible studies and Sunday services. On that same day and the following day, the Alii and Faipule together with a number of untitled men of the village dismantled the said building even though the permission given by Lamositele Tautala to have the building erected on his land had not been withdrawn. On Monday, 20 May 2002, the Alii and Faipule met again and decided to banish from Falealupo four of the families which attend the bible class. Those families were warned to leave the village voluntarily by 4pm on Saturday 25 May 2002 or else their properties would be burnt. On 25 May 2002 certain members of the Alii and Faipule and about forty other members of the village went to the house of one Tapu Aeau Lafaialii, one of the plaintiffs and a member of the bible class, and loaded his family’s possessions onto a truck together with Tapu, his wife and children and brought them to the wharf at Salelologa where they made their way by ferry to Apia. They are now living with relatives in Apia. Three other families were likewise banished the same day to other villages in Savaii.

Freedom of religion

One of the fundamental rights that is guaranteed by the Constitution to every person is the freedom of religion. Article 11 of the Constitution provides:

“Every person has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in a community with others, and, in public or private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

“Nothing in 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 clause in the interests of national security or of public order, health or morals, or for protecting the rights and freedom of others, including their rights and freedom to observe and practise their religion without the unsolicited interference of members of other religions.

Article 11 and the freedom of religion it provides had previously arisen for decision in this Court in Mau Sefo et al v Land and Titles Court (2000) (unreported judgment delivered by Wilson J on 12 July 2000). In that case Wilson J discussed extensively the concept of freedom of religion and referred to Canadian and Australian authorities on the subject. One of those authorities is R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 where in a judgment delivered by Dickson J (as he then was) in the Supreme Court of Canada it is stated at pp 353-354:

“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination. But the concept means more than that.

“Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the State or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

“What may appear good and true to a majoritarian religious group, or the State acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of the tyranny of the majority.”

It is also clear from Article 11 of the Constitution that freedom of religion includes the freedom to change one’s religion. The same freedom also includes the freedom not to have any religion at all: Tariu Tuivaiti v Sila Faamalga et al (1980-1983) WSLR 17 per St John CJ at p21; Church of the New Faith v Commissioner of Payroll Tax (Victoria) [1983] HCA 40; (1982) 154 CLR 120, 121.

Given the clear words of Article 11 and the exposition of the freedom of religion by the Court in R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 and other authorities cited, the decisions and actions by the Alii and Faipule of Falealupo in ordering the bible class to cease its religious activities, in banishing the plaintiffs and their families from Falealupo because of their religious beliefs, and in dismantling the building where the bible class adherents practised and observed their religious beliefs were clearly in serious violation of the plaintiffs freedom of religion guaranteed by Article 11. Those decisions and actions by the Alii and Faipule were therefore unconstitutional. It also follows that the two decisions delivered by the Land and Titles Court on 23 March 2000 in ALC 4140 P2, P3 and on 7 September 2000 in ALC P4-P6 wherein the plaintiffs and other bible class adherents were banished from Falealupo and were ordered to cease their religious activities and to dismantle the building in which those activities were held were also contrary to the freedom of religion and therefore contravened Article 11 of the Constitution and must be void.

Having said that, this Court is not unmindful of or insensitive to Samoan customs or the Samoan way of life in the village context or the authority held and the position occupied by the Alii and Faipule within the village. The authority of the Alii and Faipule has played a major and vitale role in maintaining and preserving peace, harmony and stability within village societies for very many years so that the country has been able to enjoy peace and stability nationwide. However, the Constitution is the supreme law of the land and it must be obeyed. Inherent in the concept of freedom of religion enshrined in the Constitution is tolerance, the ability to understand and accept the fact that not all people would hold and subscribe to the same religious beliefs even if they are all Christians. One must learn to tolerate and respect the religious beliefs of others even though such beliefs may be different from one’s own religious beliefs. In this way peace, harmony and stability will remain and continue in village societies. This will no doubt require some adjustment in the attitudes of some of the Alii and Faipule and some of the pastors of the mainline churches which is something that should not be beyond their capacities to achieve. After all the world is never at a standstill; it is always turning. And survival and growth in society involve the ability to adjust and adapt to new legitimate situations and ideas which arise from time to time in life. History has also shown that the persecution of people because of their religious beliefs had never succeeded in changing such beliefs but had only resulted in immense and undesirable misery, hardship and suffering.

There is one other issue upon which I called for submissions from counsel. That is whether “ownership” of customary land carries with it the right to prevent or exclude a religion being practised upon such land given the definition of customary land provided in Article 101 of the Constitution. In my opinion the owner of customary land or any category of land for that matter has the right to refuse permission to any religious group to enter upon his land and conduct its activities upon his land. It will be trespass for a religious group or anyone for that matter to enter upon customary land without permission of the owner. However, in this case, the bible class adherents were given permission by Lamositele Tautala to erect on his customary land a building for their weekly biblical studies and Sunday services. That permission has not been withdrawn. The Alii and Faipule which has only ceremonial and general supervisory authority over the customary lands of the village would not have the authority to banish the plaintiffs and the bible class from the land of Lamositele Tautala without violating the plaintiffs freedom of religion.

Orders

I have decided that it will not be prudent to grant the declaratory orders sought by the plaintiffs in (c) and (d) at the beginning of this judgment because of the broad manner in which those declaratory orders or parts thereof are sought. It is not possible to predict every kind of possible dispute relating to freedom of religion which may arise in the context of a village where the Alii and Faipule may be involved as a party and is brought before the Courts. But I will grant the other orders sought as follows:

(1) An order of certiorari is to issue to quash the decisions of the Land and Titles Court on 23 March 2000 in ALC 4140 P2, P3 and on 7 September 2000 in ALC 4140 P4 – P6 as both decisions contravene the plaintiffs freedom of religion provided in Article 11 of the Constitution.

(2) All prosecutions which are currently before the District Court, the second defendant, against the plaintiffs for contempt for alleged disobedience of the decisions of the Land and Titles Court mentioned in (1) above are permanently stayed.

(3) The actions by the Alii and Faipule of Falealupo, the third defendant, in dismantling the bible class building which belonged to the plaintiffs were in violation of the plaintiffs freedom of religion provided in Article 11 of the Constitution and are therefore declared unconstitutional.

(4) The banishment by the Alii and Faipule of Falealupo, the third defendant, of the plaintiffs and their families from the village of Falealupo because of their religious beliefs is a violation of the plaintiffs constitutional freedom of religion and is therefore declared void and of no effect.

Counsel to file submissions as to costs within seven days.

CHIEF JUSTICE

Solicitors:
Apia Legal Services for plaintiffs
Attorney Generals Office for first and second defendants