Commission of Inquiry Freedom of Religion [2010] WSOM 1 (15 May 2010)

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Introduction
Article Eleven (11)
Historical Setting
Important Aspects and Characteristics of Religious Freedom
Religious Freedom in Practice in Samoa
A Tale of Two "Civics" –Dualism in Law
Non-Customary Communities
Rural Communities & Traditional Communal Authority
Law and Order
The Nature and Settlement of Conflict
The Courts and Fundamental Rights
A Pattern
The Preamble of the Constitution
Enough Churches; No more Churches from Outside
Observations and Conclusions
Recommendations
Gratitudes

APPOINTMENT OF COMMISSION TO INQUIRE INTO AND REPORT UPON THE WORKING OF ARTICLE 11 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF SAMOA IN RELATION TO THE RIGHT TO FREEDOM OF RELIGION

Whereas freedom of religion is a fundamental human right protected by a number of international treaties and declarations, including Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) to which Samoa has acceded;

Whereas Article 11 of the constitution provides that every person has the right to freedom of thought, conscience and religion and that 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;

Whereas this right is not to 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 that right conferred under Article 11 (1) 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 practice their religion without the unsolicited interference of members of other religions;

And whereas it is provided by the Commissions of Inquiry Act 1964 that the Head of State, acting on the advice of Cabinet, may appoint any person or persons to be a Commission to inquire into and report to Cabinet and to no one else upon any question arising out of or concerning, among other things, the working of any existing law or the necessity or expedience of any legislation.

I, TUI ATUA TUPUA TAMASESE EFI, Head of State, acting on the advice of Cabinet, pursuant to section 4 of the Commission of Inquiry Act 1964, APPOINT the following person(s):

to be a Commission to inquire into and report to Cabinet on or before the 15 of April 2010 and to no one else upon the working of Article 11 of the Constitution of the Independent State of Samoa in relation to the right to freedom of religion, and in particular but without limiting the generality of the foregoing authority:

1.1 An extension of the Commission's reporting deadline to mid-May 2010 was approved on 7 April 2010.

1.2 We were able to commence sittings on 24 March. but soon suspended sittings to allow for further advertising of the Commission's mandate and to allow time requested by intending witnesses to prepare their submissions.

1.3 We received written submissions and heard oral submissions from the organisations and individuals listed in Appendix A to this report. We also made a consultation visit to Sapunaoa, Falealili on Upolu and Salelologa, Faasaleleaga on Savaii.

1.4 It was clear from the submissions made that religious freedom is an important issue to the Samoan people.

1.5 Very real concern was expressed to us, throughout our Inquiry, about the problems surrounding the exercise of religious rights in traditional villages. While clearly no one wanted to jeopardize the genuine exercise of religious freedom, there was concern about perceived lack of consideration given to the communal nature of Samoan existence when religious freedom disputes are determined by the courts. The many aspects, including the cultural dimension of this issue, that were commented on in evidence, made it incumbent upon us to look at the realities of rural life and how they relate to the legal requirements of the Constitution and the fundamental individual rights contained therein. The well known crucial role of the Alii and Faipule in rural communities and where, if at all, it fitted into the legal scheme of things was an aspect that so thrusted itself at us for attention that we could not possibly ignore it. As religious freedom in traditional villages was by far the issue of greatest moment in the Inquiry, the major part of our report is devoted to it.

1.6 Religious freedom in rural settings happens also to be the scenario that has most often given rise to Article 11 court cases. It was necessary to look at the aftermath of decisions in these cases.

1.7 We were required by our Terms of Reference to "report in detail" on the working of Article 11 of the Constitution. We have tried to do this to the best of our ability within the very limited time frame within which we have had to work.

11.(1) 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 community with others, and in public or private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

(2) 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 practice their religion without the unsolicited interference of members of other religions.

3.2 It appears clear from the Convention debates that the meaning of the clause as explained by the Constitutional Advisor was well understood. Personal freedom implicit in the clause was so well understood that just before the draft clause was voted on, one delegate[1] expressed disquiet at the individual rights created thereby having ramification for the Alii and Faipule which he felt would be left to play its role in the village with nothing to stand on; parents similarly, he thought would be affected with regard to their children. The delegate did not oppose religious freedom per se but he was anxious for the situation he had identified to be remedied in some way. His point was not properly taken up.

3.3 The Convention clearly believed Samoa, with one hundred fifty years of Christianity under its belt and five well established Christian denominations, had reached maximum absorptive capacity. The five denominations had been brought to Samoa by missionaries. Further input into the existing mix from outside Samoa, delegates believed, would not benefit, but rather harm Samoa with further divisive fragmentation. Some lamented a phenomenon that had apparently emerged of aiga members abandoning the Matai and their original church to worship in new churches.

4.1 Lord Nicholas in the context of the European Convention on Human Rights in the case of R (Williamson) v Secretary of State for Education and Employment said that:

... Religious and other beliefs and convictions are part of the humanity of every individual. They are an integral part of his personality and individuality. In a civilized society individuals respect each other's beliefs.^[2]

4.2 "A fundamental objective of a right to freedom, in any society, is the protection of the rights of minority religious groups in that society."^[3] Dickson J in the Canadian Supreme Court case of R v Big M Drug Mart Ltd said:

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".^[4]

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.

4.3 The judicial utterances quoted above point to principles and attributes that are universally regarded as encapsulated in the concept of religious freedom. These key elements of religious freedom are encompassed in Article 11 of Samoa's Constitution. The judgments of Samoa's Courts and Samoa's subscription to international declarations and accession to international treaties reflect this. The Fundamental Rights Chapter in the Samoan Constitution draws heavily from the Universal Declaration on Human Rights and most importantly, Samoa ratified the International Covenant on Civil and Political Rights on 15 February 2008.

5.1 Under Article 4(1) of the Constitution any person may apply to the Supreme Court to enforce the fundamental rights conferred under the Constitution. Article 4 (2) empowers the Supreme Court to make all such orders as may be necessary and appropriate to secure to applicants the enjoyment of any such rights.

5.2 Cases brought to Court under Article 4 (1) of the Constitution between individuals or small groups on the one hand and village councils on the other have often resulted in findings of violation of fundamental rights by Village Councils. Typically, these cases involve efforts to establish a new church in the village against the wishes of the village council of chiefs. In the religious freedom case of Asiata v Asiata [2007] WSSC 4 92 February 2007), Nelson J said this of village council authority:

As stated by this court in Su'a RimoniAh Chong v Mulitalo Siafausa Vui, an unreported decision dated 16th August 2006:

"the power of the village and Matai is important and ought to be respected by this court. But their power is not greater than the power of the Constitution, the Legislative Assembly, the Supreme Court of Samoa or the rule of law. The Matai must understand and respect this statement. In turn this court ought to respect their title. But it is the law which governs us all."

In another religious freedom case, Lafaialii v Attorney General [2003] WSSC 8 (24 April 2003), Sapolu CJ said:

"... this Court is not unmindful of or insensitive to Samoan customs or the Samoan way of life in the village context or the authority held and the position occupied by the Alii and Faipule within the village. The authority of the Alii and Faipule has played a major and vital role in maintaining and preserving peace, harmony and stability nationwide. However, the Constitution is the supreme law of the land and it must be obeyed."

5.3 In past village religious freedom cases then, the Supreme Court has consistently upheld the supremacy of individual fundamental rights as required by the Constitution whenever and as soon as they are shown to be infringed in any way.

5.4 In Mau Sefo, a case where the Alii and Faipule decided to limit the number of churches in their village, Wilson J explained that having found the conduct in question of the Alii & Faipule to have the effect of infringing upon the freedom of religion guaranteed by the Constitution it did not matter what the purpose behind the conduct was. For that reason it was "not necessary for [the Court] to analyze the several purposes the Alii & Faipule may be said to have had in mind".

5.5 An expert^[5] has concluded that "while there are some differences between Samoa's constitutional protection of religious freedom and religious equality and the protection of these rights at international law, Samoa's current constitution and the way in which it has been interpreted is broadly in line with international law. It also protects religious freedom in a manner that is similar to that in many other liberal democracies (including the United Kingdom, Australia and New Zealand). In short, the current protection of religious freedom in Samoa is appropriate by international standards".

5.6 The same expert has urged caution upon Samoa should we be seriously considering moving from the satisfactory position we are in now towards greater restrictions on religious freedom. The warning is well taken and Samoa is in the best possible company in these things. It has to be noted however that while our constitution and the way it has been interpreted may have protected religious freedom in a manner similar to that in the liberal democracies; it has done so at a cost of a kind that probably could never be experienced in any of those countries. The approach taken would not exact anything similar from even the population of urban Samoa. There is little fit of it however, in the very different situation and circumstances of much of Samoa where the practical realities of rural governance and society are totally different. Article 11 (2) of the Constitution was drafted to permit such fit in the unique circumstances of rural Samoa to be forged in the fullness of time but as yet, after nearly fifty years of the Constitution, opportunity has not been afforded to consider these matters in detail.

5.7 Samoa's Head of State, His Highness Tuiatua Tupua Tamasese Ta'isi Efi addressed a symposium on Law and Religion at the Samoa National University on 3 December 2008 with these words:

"Religion and law in the Samoan indigenous context amounts to a search for tofa sa'ili, for tua'oi and lagimalie ... Tofa sa'ili is the search for wisdom; a search for God ...Tua'oi means boundary. Lagimalie in this case literally refers to the harmony or the remembrance...the quest for freedom of religion presumes not only the right to worship one's God freely, but also the responsibility to practice that worship in a way that respects and upholds the virtues of harmony, balance and justice."^[6]

6.1 Samoans are very much aware of two very different environments when they exercise their religious freedoms or any of their fundamental individual rights for that matter in their country. Depending on where he or she may be at a particular time, the citizen choosing to manifest his religious beliefs can do so either (1) as an individual alongside other individuals under the direct surveillance of the State and its law enforcement institutions; or (2) as a villager or village guest, in order and security premised on the authority and decrees of the Fono a Alii &Faipule, the governing body of that village or nuu^[7]. Villagers consist of permanent residents and visiting kin. The people of Samoa understand and accept this dualism in authority and law as practical reality. It was normal during colonial times and has continued to be normal since independence.

6.2 From the outset of colonialism there has been dualism in the law. The colonizers were concerned with administrative and economic efficiency among other things. Suitable laws were enacted to facilitate governing the territory of Samoa. The central government and its laws operated fully in the territorial capital and urban community.

6.3 Rural communities on the other hand for the most part were hardly touched by the activities of colonial administrations. They were largely left to their own devices. Customary law served the practical purpose of effectively ordering and regulating the comparatively large rural population.^[8]

6.4 Today, Article 111 of the Constitution defines Law as "... and includes ... any custom or usage which has acquired the force of law in Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction: ....."Thus customary law needs the intervention of Parliament or the Courts to render it law.^[9]

6.5 The Samoan Constitution superimposed the modern Independent State of Samoa in 1962 upon the Samoan people, most of which were living, then as now, in fully functioning self-governing communal societies. As St. John CJ explained in Saipaia Olomalu et al v The Attorney-General,^[10] the framers of the constitution "left Samoan culture where it had always been, on the land and in family organizations, but they superimposed [on] that culture a national framework, selecting from many modern constitutions what they thought was the best available to satisfy the aspiration of nationhood ... " This was done in the wake of international resolve promulgated by the newly formed United Nations to grant independence to colonial territories.

6.6 It has been claimed^[11] that insufficient time for constitution making, lack of knowledge or familiarity with the Western government systems that were being imposed and limited understanding of their ultimate implications on traditional authority predisposed people to accepting issues without debate. Notably however, universal suffrage, in spite of being fashionable and of compelling appeal to the United Nations did not become a feature of the Samoan constitution because of the clear desire of the Samoan people to retain the Matai system or fa'amatai. Quintessential manifestation of the fa'amatai is the village council of chiefs or fono a Alii ma Faipule.

6.7 As noted by Samoa's Constitutional Advisor Professor Davidson, Village Fono authority, derived as it was from custom, operated outside of the law.^[12]

6.8 The Independent State of Samoa continued well-established near total reliance on customary law for order in the rural areas where the majority of the people lived. It cannot be denied that traditional village councils in Samoa, entirely on their own, have been maintaining law and order in the villages since time immemorial without, until recently, any formal recognition by the legal system.

6.9 Three decades after independence, the law by way of the Village Fono Act 1990 formally recognized the existence of Village Fono and the control they exercised over their communities. It is difficult to tell however from experience what this Act really does for the customary institution of Alii & Faipule or Village Fono.

"AN ACT to validate and empower the exercise of power and authority by Village Fono in accordance with the custom and usage of their villages and to confirm or grant certain powers and to provide for incidental matters."

6.11 What effect does this Act of Parliament have on the legal standing of village customary practice in light of Article 1I1 of the Constitution; and is it capable of improving the standing of Alii and Faipule in a "religious freedom" legal dispute in which so far, the duty they have always performed of deciding whether or not to establish a church in their village is an irrelevancy?

6.12 Section 3 of the Actstates: "The past and futureexercise of power and authority by every Village Fono with respect to the affairs of its village in accordance with the custom and usage of that village is hereby validated and empowered."As a matter of interest, is it arguable that this provision statutorily restores to village councils the power to banish which was taken away by decree of the colonial governors to be used only by them and which is said to have expired with these functionaries when they disappeared from the scene into history? Section 6 recognizes Village Fono power to impose punishment in accordance with the custom and usage of the particular village communities.

6.13 Although not recognized in colonial laws or in the Constitution when it came into force in 1962, authority and powers exercised by traditional authorities over the lives of individuals in rural communities have always been exercised openly, and with the very notable exception of banishment, have been generally viewed with distant respect by the central governmental authorities before and after independence. More recently, communal edicts affecting religious worship have been problematical.

7.1 Individuals living in scattered fashion or in communities situated on freehold or State land live directly under the protection of the State and its laws These people readily call upon the Central Government's institutions and resources to secure their just dues from the State or from one another. Unlike rural dwellers, there is no other effective way to do so.

7.2 As earlier indicated, the enjoyment of religious freedom within this sector of the population has been without complications. A complaint in 2009, about noise level in worship was dealt with by the Court in accordance with ordinary law.

8.1 Approximately eighty-five per cent (85%) of the total area of Samoa is customary land. There are about one hundred and eighty traditional communities scattered on customary land throughout Upolu, Savaii, Apolima and Manono. People in these communities regulate their own lives and activities through the Alii & Faipule.

8.2 In contrast to urban existence, village life involves continuous interaction with all in one's immediate vicinity and participation in the full range of communal activities. The community provides much of the meaning of life and the relevance of communal authority is felt from day to day by all in the community.

8.3 Individuals exercise freedom of choice and action in all matters but it is never in any doubt that the interests and choices of the group are paramount, relative to those of the individual. Compromise and deference to the expressed wishes of the group as a whole are realities of existence that come easily to all concerned in most matters.

8.4 The individual can choose to leave the community to exercise residential prerogatives he has in other villages, or he may be expelled or banished in the event of irreconcilable differences. Some serious disagreements in more recent times concerning fundamental rights, have ended up in the law courts.

8.5 As noted in Italia Taamale^[13] banishment comes to an end in due course. In such event, the parties as it always happens reconcile differences in a suitable manner that do not impact adversely upon the dignity and authority of the village. Tit for tat is not the Samoan way in these things and impeaching the dignity and authority of the village as a whole is just not done even following what may be believed to be gross injustice. Reliance on time to heal or to correct mistakes is acknowledged unashamedly. "E le po pea se nu'u."^[14]

8.6 The community is composed of kin groups (aiga) who are in on-going association with other kin groups in time honoured civic accord, on village customary land, and in observance of protocol founded on custom and the honorific formulations which identify and embrace the community as a whole. Villagers are bound by bonds of tradition, affection, and loyalty and of necessity for security and common welfare.Outsiders have no right of entry and residence except through kin connection or through the hospitality and thereby under the protection of the community. It is explained below that only in one special case is a stranger made a part of the kin connected village community.

8.7 This is the environment and context in which the individual exercises his individual rights and freedoms within the confines of the village. The exercise of his religious freedoms can be no different. If he chooses to be part of the community he cannot expect to be as unfettered in his activities as he would be in an individualistic society.

8.8 It is worth-while to recall at this juncture the earlier quoted words of His Highness Tuiatua Tupua Tamasese Ta'isi Efi:

"Religion and law in the Samoan indigenous context amounts to a search ...the quest for freedom of religion presumes not only the right to worship one's God freely, but also the responsibility to practice that worship in a way that respects and upholds the virtues of harmony, balance and justice."

8.9 As explained by a Samoan academic^[15] in his evidence to the Commission of Inquiry, the Matai exercises authority in and over the aiga but, in his own right, he owns nothing of the things over which he exercises sole power. He is simply a fully empowered elected trustee of these things. He sits, representing his aiga, in the village council or Fono of Alii and Faipule, which, in all material respects, functions as a Board of Trustees exercising authority over all village affairs within the territorial boundaries of the village.

8.10 The rural Samoan is heir to land and village and all with which these are endowed. They are his heritage. He is as conscious of self and personal rights and is as desirous of personal dignity as any other individual but he recognizes and accepts the role and the ultimate authority in the village of Alii & Faipule, in which he is represented by his matai who could be his father, uncle, brother, cousin or possibly a female kin even. Having such perception does not make him a timid suppressed individual as those who do not understand his world might suppose. Certainly, his Christian upbringing and non-existent material wealth urge him to be humble but his character is inherently arrogant. The arrogance comes easily because in his society he is the natural equal of all others in the community.

8.11 The place he occupies in the community in daily life is a role he willingly assumes in the knowledge that he is heir, not only to the whole on-going community, but to the loftier roles in society; roles which, God willing are open to him. "O le ala i le pule o le tautua"^[16] is a truism in Samoan existence. The servant today is literally lord tomorrow, time and time again in Samoan life.

9.1 The State is imbued with the full authority and powers of a conventional modern state but has limited capacity to impose such authority by coercive force. The State relies heavily on still effective customary authority and traditional practices for the maintenance of law and order throughout Samoa. The Police Force is accordingly small and there is no police presence at all in most of the country's populated land area. The apex, both actual and visible, of the power structure in a rural community is the Village Fono or Council of Chiefs.

9.2 Law and Order is achieved, not by physical policing but by voluntary subscription on the part of the community as a whole to collective intention to honour the authority and decrees of the Alii and Faipule. Deliberate retraction from this stance impacts directly on village capability to maintain law and order.

9.3 From the outset there has been enormous pride in the new Independent State of Samoa for all that it represents. Rural people however identify strongly with their communities and the institutions in them that embody traditional authority. It is to the village community that they look instinctively for security and for leadership. Communal solidarity is such that when push comes to shove, primary allegiance to the community comes easily to the fore.^[17] Ever mindful of such loyalties and sentiment, mutual consideration between the State and the village communities has facilitated fruitful coexistence and successful collaboration in the maintenance of law and order in the independent State.

9.4 The legal jurisdiction of the national police force embraces the entire territory of Samoa in the normal way but it is with the tacit approval and cooperation of the village Matai that the police enter customary land communities to conduct official business especially when that business involves the use of coercive force against inhabitants. Very recent events in Savaii testify to this state of affairs.

10.1 The failure of individuals and groups to compromise in the village setting brings conflict either to the Land and Titles Court as appeals under the Village Fono Act 1990 against actions of the Village Fono or to the Supreme Court as proceedings for the enforcement of fundamental rights^[18]. Important elements are involved in conflicts that arise. There is the situation of the individual and his freedoms guaranteed by the Constitution. There is the situation of the rest of a communal group who see the collective good threatened by the asserted inclinations of an individual or small minority. Thirdly, there is the threat to general security that could follow in the wake of a perceived or actual weakening in communal customary authority.

10.2 Nearly all of the cases that have come to court involve village resistance to attempts by individuals or minority groups to set up churches in villages. Ugly violence or imminent possibilities of violence have been features of some disagreements. Rejection of, or hostility towards individual freedom of thought, conscience or worship, on the other hand, have not been of essence in these disputes. In village perspective they were not religious disputes at all but civic confrontations that bear on custom and tradition. The assertion is sometimes made in jest that instead of Christianity Christianizing Samoa, Samoa Samoanized Christianity. There is however real cultural substance to the latter part of the claim.

10.3 It is well known that the formal incorporation of Christianity as an institution into the Samoan social system and culture dates back to the arrival in 1830 of the London Missionary Society (LMS) missionary John Williams. He arrived at the end of a violent war in Samoa; and against a background of the still smoldering smoking fires of barbaric destruction, he took his Christian message of peace and love directly to the victorious Malietoa at Sapapalii. The King in accepting the Christian gospel directed Samoa to receive the missionaries into their midst and to protect them. He directed that missionaries be honoured in the social order and that the faifeau^[19] would assume Susuga, Malietoa's style of address.

10.4 Malietoa's exhortation was taken up in earnest. The practice was established of villages entering into a formal feagaiga or covenant with pastors of the LMS, who were assigned to villages to establish churches and congregations. The pastor was given the honorific style of fa'afeagaiga tau lagi (he of the heavenly covenant) and is honoured to this day with this salutation above the established hierarchy of the village.

10.5 The covenant obligation of the village to honour and to protect the faifeau and his activities is a primary duty of the entire village that no village to this day takes lightly. It is a social and cultural obligation, not a religious one but the distinction excusably, may become blurred. A letter to the Editor in the Samoa Observer 9 April 2010 contains this sentence: "I of all people know that the faifeau and his family occupy a special place in our culture and lives, we often practice our reverence to God by revering his servants."^[20]The covenant is formally dissolved when a faifeau ends pastoral duties in the village.

10.6 When years later, after the establishment of the LMS in Samoa, other religious denominations came, the same obligation to honour and protect were extended to them by the villages. As the obligation was a social and not a religious one, it fell on and was undertaken by the village as a whole. Today, all church ministers and priests, be there one or seven, who assume religious duties within the territorial boundaries of the village, are solemnly under Alii and Faipule collective protection, regardless of the religious affiliations of the individual Matai making up the Alii and Faipule of the village. As a courtesy the group of faifeau, collectively is today referred to as the Ao o Faalupega.^[21]

10.7 It is the right to establish new covenant relationships that the villages reserve to this day to themselves. It is the exercise of this right one way or the other for reasons of impact upon the village that Alii and Faipule insist upon; and to which individuals or groups of individuals object on religious freedom grounds, when village decisions go against their plans.

10.8 As far as the village is concerned, the individual's right to freedom of religion is not at stake. In their view the individual is free to do whatever his inclinations may happen to be in this regard and to attend whatever church he may choose in or outside of the village. The issue for them is simply communal prerogative to decide whether or not to allow the establishment of a new church within village territorial jurisdiction along with the assumption of the institutionalized obligations of honour and protection now incumbent upon them by culture and tradition. It should be noted furthermore that in the nature of churches everywhere, the new church to be set up in the private enclosure that is the village, would at times presumably, be open to people from outside the village.

10.9 Unlike the earliest days, it is more and more the case that new churches are intended from the outset to cater not only for a small minority in the village but also for already known and anticipated future adherents from outside of the village. Not only is the expected habitual presence in the future of outsiders in the village an issue in itself for the village community and its collective rights, it also poses potential security problems within the precinct of the village that Alii & Faipule have to reckon with.

10.10 Communal reliance on its young men, the "malosi o le nuu",^[22] for what is implied in this characterization feeds an internalized warrior mentality in young men which translates into territorial tendencies and pride in prowess. They are prone to reading unintended motives into the actions of outsiders within their village, particularly the actions of other young men. Unthinking actions or anything that may be interpreted as boorish or as throwing down the gauntlet can spark confrontations which can very quickly escalate well beyond mere fisticuffs. Young people with unutilized energies tend to seek out opportunities to exploit.

10.11 The dispute, in another dimension, is between the village community as a whole, which is said to want to protect the authority of Alii & Faipule and thereby the continuing viability of the collective governing mechanism on the one hand, and members of the community, sometimes with extra-village support and encouragement, who do not wish to abide by the ruling of Alii & Faipule in the particular matter, due to a sense of religious duty or other personal motive. As already indicated, it would be rare nowadays for a group hoping to set up a new church to be comprised of only village people. The outsiders involved may have little or no interest in the integrity of social and cultural phenomena that are of vital concern to the village as a coherent functioning community.

10.12 A ground that is frequently advanced against the acceptance into the village of a new church is fear of introducing factionalism where solidarity and cohesion is so greatly valued for practical community purposes. These range from maintaining peace and harmony to the more mundane successful achievement of village projects and effective management of community affairs in general. The perception of the risks and consequences in situations of this kind would naturally differ from village to village and no doubt each village community would be best placed to make judgments in their own circumstances.

10.13 What is clear is that the Alii and Faipule have capacity to evolve regimes that differ dramatically from others and which presumably serve the particular needs and moods of their different communities and thereby achieve their own states of harmony.

10.14 Today there are villages that have not gone beyond the original one established church. Many maintain the strict policy that churches may only be established with the approval of the Alii and Faipule and have allowed the establishment of several churches under that policy.

10.15 The Commission of Inquiry held public consultations on 24 April 2010 in the house of Rev To'alua Perese, the CCCS pastor of the village of Sapunaoa, Falealili. The Commission learned that Sapunaoa has moved from the original strict one church and one congregation policy to the present situation where there are seven churches and congregations under the auspices of the village Alii and Faipule. Village solidarity is well preserved and customary cooperation within the village is a reality in village life. When the recent churches were built, the whole village population was involved in the construction activities. Villagers readily admit that church ministers working together tirelessly under the informal leadership of the Rev To'alua Perese to advance harmonious existence in the village, has been a major factor in Sapunaoa's success.

10.16 The integration of religion and pastors into the social system from the very outset of Samoan Christianity has contributed immensely to stability and social unity in the villages in particular and in the wider community. It was also godsend bonus for the status and the interests of the earliest religious denominations to arrive in Samoa. Recent disputes between communities and adherents of new religious groups have been rooted in part to perceived threat to social unity and solidarity in the villages. Alleged behind the scene activities of established pastors could also have been significant. On the other hand, by all accounts, the actions of pastors during violence flowing from religious freedom disagreements have saved lives.

10.17 The law is clear about individual fundamental rights and concomitant duty of the State to ensure the enjoyment of fundamental rights. The State inherently has authority to resort to coercive force to have its way but it does not have the means to do so in important instances. To further complicate matters, the State relies heavily for law and order itself on the cooperation of the very entities that would be targets of State coercive action on account of fundamental rights violations. From the perspective of maintaining law and order, the State and the people of Samoa as a whole have a very real stake in ensuring that the authority of traditional village councils is not precipitously undermined.

10.18 The outcome and aftermath of relevant Court cases, particularly those of the Land and Titles Court in which conflict of custom and the Constitution more often arise, offer valuable insight into the realities of the dilemma facing the law and the State and the enormous task that can fall on the individual who seeks redress for alleged fundamental rights violations.

10.19 In Toluono Feti & Others v Autagavaia Lave & Others^[23], the Land & Titles Court ruled that banishment by the Village Fono was not justified and declared it incumbent upon the Alii & Faipule to receive the petitioners back into the village and to keep them safe.

10.20 The Court's involvement with the dispute ended with its ruling in favour of the banished people. The law enforcement agencies of the State were not requested to act and did not act in connection with the matter. It fell to the petitioners to find for themselves the justice that the Court had declared to be their due.

10.21 Two months after the Court decision the banished group made bold one morning to return and to meet with the village. A meeting did not eventuate but late into the night, the dwelling house and all property in it belonging to the Matai seen by the village to be the group leader of the outcasts were destroyed by fire. Police enquiries and actions in the matter led to nothing noteworthy.

10.22 It is supposed that the village had not wanted to meet with the outcasts because it was not ready to do so under any terms other than the banished people humbling themselves before the village. A handful of people who had been expelled with the others had shown suitable remorse soon after the expulsion and was received back into the village. This happened before the court case against the still unrepentant expellees.

10.23 A second attempt to meet with the village was made eighteen months after the burning. This time, the village agreed to receive the banished people and formal reconciliation was made. A suitably large presentation of food and fine mats was made to the village. Nothing else was required of them.

10.24 The issue in Semau Amata & Others v Semau Tauveve & Others^[24] before the Appeals Division of the Land and Titles Court,arises often between Alii & Faipule of villages and groups of individuals who adhere to one or other of the new religions as distinct from longer-established religious denominations. A first move in the sequence of events is usually public notification of a village decision forbidding the setting up within the village of any new churches. This is represented as a democratic determination by the village as a whole to organize its affairs in a particular way within its land boundaries. According to explanations that accompany such edicts, anyone from within the village could worship in any church of his choosing outside of the village boundaries but he could not aspire to setting up a church and formal congregation in the village.

10.25 In this particular case, the Court below, being satisfied that village intentions were consistent with past village tradition and practice, confirmed the validity of a village notice denying new denominations the right to function as churches in the village of Patamea, Savaii.

10.26 On appeal the Appellate Land & Titles Court stressed the constitutional right to freedom of worship and found that the alleged offending church and one other had been functioning for years in the village with village tacit approval. The Court urged village leadership not to dwell unreasonably upon the past but to look well to the present and future circumstances and needs of the village population. The Appellate Court set aside the decision of the Court below and affirmed the right of the two sects to have church worship in Patamea. The village complied with the ruling of the Court.

10.27 In yet another case involving a bible study group that had evolved into a church in the village of Falealupo, the Land and Titles Court endorsed a village ban on the group's continuation on village soil. The Court on 23 March 2000 ordered premises belonging to the bible group to be dismantled.^[25] This was not done and adherents of the Bible group were gaoled for not complying with the orders of the Land and Titles Court. The bible group buildings were eventually pulled down in April 2002 by the Alii and Faipule who in addition banished four families in May 2002.

10.28 A motion under Article 4 of the Constitution for judicial review resulted in findings of the Supreme Court on 24 April 2003 that all of the actions of the Alii & Faipule of Falealupo were in violation of Article 11 of the Constitution. Village chiefs were cited as third defendants but did not make the effort to attend or be represented in spite of several adjournments to enable them to attend. Uncustomary apathy shown in this important matter and towards the State machinery of justice by the matai concerned, may have had something to do with the fact that the outcome of the case mentioned immediately below had come out some six months before their matter was called.

10.29 The Supreme Court ruling of Wilson J, given on 12 July 2000 in Mau Sefo and Others v Attorney General^[26] held that a ban on the activities of a bible study group turned church, by the village council of Saipipi with Land and Titles Court confirmation on 14 September 1995 and upheld by the Appeals Division of the Court, violated Article 11 of the Constitution.

10.30 It had been suggested that fundamentally the matter was a power struggle within the village rather than a religious dispute. The Alii and Faipule exercising power within the village setting in accordance with custom was being confronted by members of a new Church seeking to rely upon the provisions of the Constitution. The Court was not impressed. It was of the clearly expressed view that "actions which place a limitation on (or prohibit or prevent or constitute the refusal of permission to) a new church, infringe the right to freedom of religion ... ". Orders issued declared that Alii and Faipule of Saipipi had no power or authority to limit the number of churches in their village.

10.31 In Tuivaiti v Faamalaga^[27], the Supreme Court ordered Falelatai in 1980 to pay damages of $11,570 and to refrain from excluding the plaintiff from possession of his lands. Damages have never been paid and the petitioner has since passed away without ever returning to Falelatai.

10.32 In a similar situation again, the village of Salamumu ignored Supreme Court censure for five years and effected reconciliation only when it was good and ready. In that case the Village Fono moved to expel a family that had been hosting a bible study group at its home in the village. The Fono had been persuaded to view the activities of the family as not bible study but a church in operation and contrary to long-standing village policy.

10.33 The offending family was ordered to leave by 4.00 o'clock in the afternoon 17 October 1998, or else. An ugly confrontation ensued during which all the family dwellings were burned to the ground and the people sent packing. Criminal charges brought by the police against the Village Fono and the taulele'a^[28] of the village resulted in heavy monetary fines. An appeal against sentences resulted in significant reductions in the fines and drew very plain comment from Sapolu CJ as follows:

The victim still has his rights to bring civil proceedings. It may be a more realistic and effective way of obtaining satisfactory compensation to focus on the village rather than on each offender individually. After all it appears from the evidence that what happened in this case was the collective responsibility of the village including the Alii and Faipule.

10.34 The family did not bring civil proceedings, nor had they sought to press charges in the first place.

10.35 The family left the village in keeping with the village banishment decision. In February 2000, concerned about reported encroachment onto its abandoned customary lands in the village, the family wanted to return. It sought help to do so from the Land and Titles Court. Little happened in spite of the family being clearly distressed about what it believed was going on in the village with regard to family land. In the prevailing circumstances however, inaction on the part of the authorities would hardly have been result of unconcern but of good instinct, realism and tactful delay.

10.36 While waiting for the case to be called, representatives of the banished people took advantage of opportunity to engage the village in discussions about reconciliation. A customary presentation of significant value was made to the village which agreed in October 2003 to formalize matters before the Land and Titles Court. This process was drawn out because the banishment victims wanted their fundamental freedoms expressed in the settlement in contradiction of village policy on new churches. This was policy that caused the problem in the first place. No stipulation on the matter eventuated.

10.37 Settlement was eventually set out in a Land and Titles Court decision on 19 February 2004 after the victims themselves had privately negotiated reconciliation five years after the event. Eventual success involved heavy outlay of money and other items of value. They had received no help from the State apart from clear encouragement to sue for compensation. The affected people had to ignore this facility to keep the possibility of reconciliation open.

10.38 Reconciliation did not require the village to retreat from its original stance in any way. The victims after five years of banishment were restored rights that were less than those they had originally enjoyed in spite of the written law and the constitution being on their side. Customary practice had been on the other side.

11.1 While the Samoan Courts do not condone infringement of individual rights by traditional authorities, it appears that perhaps in the spirit of exceptions provisions contained in Articles 11 (2) and 13 (1) (4) of the Constitution, the Land & Titles Court, for a time, did not automatically condemn village council refusal to allow the establishment of a new church as unreasonable restrictions on religious freedom. It is apparent however from Mau Sefo^[29] that in the Supreme Court's view, the Lands and Titles Court was in error in its approach.

11.2 Be that as it may, the Land and Titles Court by these decisions appear to have accepted the exercise of authority by Alii and Faipule in these matters as Samoan custom. There may be no better authenticating authority for this particular aspect than the Land and Titles Court, even if the Court's competence to render the custom law by such acceptance per Article 111 of the Constitution appears to be lacking.

11.3 The Supreme Court has been strict and uncompromising in the protection of the constitutional fundamental rights of individuals. On observing the way in which the Appeals Division of the Land and Titles Court had expressed its decision in the matter before him in Mau Sefo, Wilson J comment that

the Court may be seen as having asserted the predominance of decisions of the Alii & Faipule said to be in conformity with the custom and usages of the Samoan people over and above the fundamental rights of the plaintiffs by the Constitution.

... "it must be emphasized that the Constitution is the supreme law of Samoa and any existing law which is inconsistent with the Constitution is, to the extent of the inconsistency, void. The activities and decisions of the Alii & Faipule of a village must always be undertaken and made subject to (and in the light of) the Constitution. Even if it is feared that some unrest or disharmony may result, consent to the establishment of a new church cannot be withheld or insisted upon if, to do so, infringes a fundamental right guaranteed under the Constitution." (Underlining supplied)

11.4 Conceivably, over time the State could be nudged into greater involvement in the enforcement of fundamental rights in village settings at the insistence of individuals and under the banner of the rule of law. Depending on timing, any such inclination on the part of the State would have policy implications for the Samoa Police.

11.5 The question might well be asked however, what the point would be in forcefully transforming a framework for human interaction and coexistence that is working in rural Samoa, into a way of life that exists only in the movies for most of the people concerned. The answer appears to be that it is because the working model is indigenous and has to make way for something that is better and which is encapsulated in the law that was imposed, if only on paper, on the rural people on independence.

11.6 In the few cases that have come before the Supreme Court involving village councils, notably Tuivaiti (Tariu) v Sila (Fa'amalaga)^[30] and Mau Sefo v Attorney General^[31], the Court has focused on determining what the particular right in question meant and what constituted infringement of such right in law. It has been concerned primarily with the actual effect or the potential effect of actions alleged to have violated fundamental rights. It took the view in Mau Sefo that the purpose behind such actions did not matter and consequently, it was "not necessary for [the Court] to analyze the several purposes the Alii & Faipule may be said to have had in mind".

11.7 In a case brought against the State, Tupua Tamasese Efi v Attorney General^[32], Wilson J referred to the American case of Thomas v Collins^[33] in which it was stated that

"... it is from petty tyrannies that large ones take root and grow. This fact can be no more plain than when (restraints) are imposed on the most basic rights of all. Seedlings planted in that soil grow great and, growing, break down the foundations of liberty".

11.8 In light of say, European experience of the mid-twentieth century and since, it clearly would be simple prudence to be diligent and to condemn the merest suggestion of infringement of individual freedoms whenever it emerges regardless of purpose. "If you protect the individual you protect society"^[34] is sound strategy indeed.

11.9 Samoan experience has been different from that exemplified in twentieth century Europe. There has been violence, barbarism even, but it can hardly be said that the individual has been particularly unsafe within indigenous forms of governance that are communal in focus. Where the community has been wrong as is always possible, Samoan experience is reflected in the earlier quoted expression: "e le po pea se nu'u".

11.10 Be that as it may, the perspective in which the Supreme Court necessarily examines these things contrasts with the wide view and time frames of events that village councils take when they impose bans or restrictions on individuals. Conduct, which could bring matters to a head in village situations and later to Court can be the straw that breaks the camel's back, and can very easily appear trivial when viewed in isolation. The fundamental rights conflict can also be only a peripheral or superficial element in much wider disputes or confrontations in village settings. It would therefore not surprise if to the villager, the Court appears interested only in the tips, of what village councils have to deal with as whole icebergs, in the village setting.

11.11 The existence and function of Ali'i & Faipule in any village are regarded as given of God; however He/She may have been identified before and after the arrival of Christianity. It is one of the founding "myths" of Samoa that is internalized by its people.^[35] Village councils in Samoa therefore, take very seriously their community leadership and social control roles.

12.1 A pattern emerges in the most serious fundamental rights cases of the victimized individual having to seek restoration of his lost rights by his own considerable efforts and at his own considerable expense. Assistance in this endeavour beyond a favourable judgment does not come from the State. Indeed, where the State can facilitate some alleviation by way of compensation for harm done, victims do not take it up.

12.2 It seems that taking advantage of such opportunities can be thought counterproductive in the long run on the crucial matter of ending disharmony and achieving reconciliation. In contrast to the situation of the individual living among other individuals under the protection of the State in an individualistic society, the individual living in rural Samoa finds meaningful and secure life only as an integrated member of a cohesive living traditional community.

12.3 Past victims may have been comforted by court confirmation of their legal rights. Some ended up however, having to rely on the auspices of the faasamoa^[36] and their faith in divine intervention to secure the justice that the law through the Courts had declared to be their entitlement.

12.4 The Preamble of the Samoan Constitution states "that Samoa should be an Independent State based on Christian principles and Samoan custom and tradition; ... wherein should be secured to all the people their fundamental rights".

12.5 It would appear that as against Samoan traditional authority or pulega nu'u fa'aMatai,^[37] the law upholds fundamental rights, but for the moment, it is up to the interaction of Samoan custom & Christian principles to secure or restore such rights to an individual who is deprived of them.

"that Samoa should be an Independent State based on Christian principles and Samoan custom and tradition;..."

13.1 It was suggested to us that there is misfit between the Preamble which speaks of Christianity and Article 11 which allows freedom of religion. It was further argued that in an overriding manner the Preamble had the effect of limiting religious freedom in Samoa to the Christian faith.

13.2 This cannot be as it is the operative clauses of the constitution that express the law. The Preamble merely expresses desired ends and cherished values of Samoan society which can very usefully enlighten in interpretation when there is lack of clarity in the operative clauses.

13.3 Christian principles being what they are, it is difficult to entertain the suggestion of lack of fit with Article 11. When Christianity with its multiple facets is synonymous in some of them with liberty and tolerance so great that it transforms into forgiveness, there can be no misfit between the Preamble and Article 11.

14.1 Although Article 11 is about freedom of thought, conscience and religion, discussion during the Constitutional Convention quickly strayed into an assessment of the situation in Samoa with regard to religious denominations and their activities.

14.2 It was assumed after one hundred thirty years of Christianity that Samoa was and would always be Christian. This was held with confidence rather than in trepidation of any unforeseen developments.

14.3 The more pressing concern was to deal with the disturbing effects of multiple denominations upon a small society which valued cohesion. As one of the Convention joint chairmen quickly observed, the mood of the country was to prevent the introduction into the country of more "churches". Concern expressed was more to prevent further diversification of Christian worship in Samoa than fear of non-Christian penetration.

14.4 The Convention clearly placed reliance on the Government achieving this through legislation permitted by Article 11 (2). This was made plain to us by the sole surviving member of the Constitutional Convention, Afioga A'e'au Taulupo'o Lafaialii. However, no specific step was ever taken by the Samoan Government after independence, beyond continuing an already established policy of only allowing missionaries into the country at the rate of one missionary for every two hundred adherents.

14.5 The issue of limiting churches in Samoa has arisen again in 2010. There apparently has been a great deal of discussion of the issue in the newspapers but very little of it was brought in actual submissions to the Commission of Inquiry. It would appear from the limited views expressed to us that as was the case in 1960 at the Constitutional Convention, the concerns in essence are not driven by prejudice but by frustration at the proliferation of churches. There is a saturation scenario wherein denominations preaching the same message are simply pinching adherents from one another causing instability and anxiety among the fraternity of Christian denominations for no significant overall benefit to the Christian community.

14.6 The urgent concern felt and expressed by the National Council of Churches appears housekeeping in nature with regard to Samoan Christianity. The NCC told of the activities over the years of individuals who came to Samoa for other purposes and proceeded to set up what start as bible study but end up as churches. Others are purported to have enticed people into arrangements that have been harmful to local congregations. The NCC has been appealing to Government over the years for assistance in dealing with this problem by perhaps screening and regulating the entry and activities of undeserving individuals and organizations.

14.7 A second concern voiced by a few is somewhat different. It appears to be focused on preventing perceived false religions with alleged dangerous or harmful beliefs from entering Samoa. This is accompanied by desire to change the constitution in effect to read not "freedom of religion" but "freedom of Christian religion".

14.8 Setting aside obvious freedom of thought and exercise of conscience issues involved, there is an element of unrealism in expectations held of Government to legislatively turn off the tap on new denominations or new faiths, ungodly or otherwise, which are out there in the world with alleged potential to harm Samoa.

14.9 Firstly, the central factor in the whole debate is essentially the matter of ideas and their spread among human minds. This is something that cannot be dealt with by legislation unless it becomes possible to stop people thinking by passing laws or changing constitutions.

14.10 Secondly, unlike the 19th century when new ideas were physically brought to our shores by people like missionaries, ideas are now globally available and instantly transmittable. The importation of ideas including new faiths and their promulgation in-country are no longer dependent on the agency of physical personalities who can be stopped at State borders.

14.11 It should also be borne in mind that the freedom declared in Article 11 of the Samoan Constitution belongs to the individual. It does not belong to the churches or to religions. Article 11 is not concerned with the freedom of, or restrictions on religions wanting to come to Samoa. It is concerned with the individual's freedom of thought, conscience and religion. Manipulating the declaration of religious freedom in Article 11 as a way of barring religions from coming to Samoa or for the convenience of religions already in Samoa is not only wrong but most likely ineffectual for reasons given above. Its only certain consequence would be legally limiting the rights of the individual citizen.

14.12 The Constitution and enacted laws of Samoa are political statements of law and policy. Limiting religious denominations or prescribing a religious belief for one and all in the Constitution simply do not make it so in actuality or achieve anything else in practical terms. On the other hand, it would make Samoa in the political context, something of a pariah amongst its customary equals in the democratic world.

14.13 The Constitution declares freedom of thought, conscience and religion as the law of the land. It forbids discriminatory treatment or discriminatory legislation. On the other hand, the Constitution allows the enactment of legislation in the public interest that puts reasonable limitations on the practice of religious freedom.

14.14 It is incumbent upon the Government to objectively identify religious practices that harm the people of Samoa and to outlaw such practices for all religions. The State would thereby be enabled to take preventive steps or practical action when infringements of these laws occur.

14.15 The Commission of Inquiry has neither knowledge nor time to find out what the actual practices might be of the feared religions that might properly be outlawed. Government might well find it useful to investigate such matters on a continuing basis. A legally constituted body might do this effectively with regard to the religions in question and with regard also to the practices of entities already operating in Samoa that may be causing legitimate concern and which comes within the purview of Article 11 (2) of the Constitution.

15.1 The exercise of religious freedom guaranteed by s11 of the Constitution in communities situated on freehold land or State owned land has been uneventful. There are no local authorities in these communities. The central government provides the only layer of governance.

15.2 Traditional communities situated on customary land present a different picture. These communities are governed by village councils of chiefs or Fono of Alii and Faipule which exercise extensive powers in local affairs. The establishment of churches has been from the 1830's a major village affair requiring the involvement of the village Fono of Alii and Faipule. This has not changed over the years. Today, under the auspices of the Alii and Faipule, many villages have several churches of different religious denominations. Many villages have gotten to this point without problems. The experience of some has not been smooth particularly in the latter years with the arrival or emergence in Samoa of many new denominations. Attempts to establish new churches against Village Fono instructions to desist have led to ugly violence which threatened life and property.

15.3 Disputes arising from Alii and Faipule exercising collective village opposition to the establishment of new churches by some of its members have come before the Supreme Court as denials of the fundamental rights of the individual guaranteed by Article 11 of the Constitution. Invariably, the Court has ruled in favour of the individual but it frequently, is the case that reconciliation or harmony in the village is never restored.

15.4 Villagers are perplexed that Alii and Faipule as the governing authority, is expected to, and does assume responsibility for the affairs of the village, including the maintenance of law, order and security; yet when its performance of this role through regulating the setting up of churches in the village is challenged in court, both the reasons for its opposition and its role in the affairs of the community are irrelevancies.

15.5 In determining these disputes the Court, as seen in Mau Sefo, is not enabled to take into account the Alii and Faipule's customary function of consenting to the establishment of a church and congregation within the confines of its village.This exercise of village collective rights by Alii and Faipule is founded on well established custom and usage of the Samoan people; and on Alii and Faipule duty to maintain harmony and security within the precinct of the village.The Land and Titles Court appears to have recognized the fact of this Samoan custom. The Village Fono Act moreover, may do more per Article 111 of the Constitution. Should the custom be law by these means, could the crucial question in these disputes then be whether the particular decision of the Alii and Faipule makes it impossible to exercise religious freedom?

15.6 Alii and Faipule do not believe that refusal of permission to establish a church within the precinct of the village, is denial of a fundamental right or an unreasonable restriction on individual freedom of religion. It might be noted here that United Kingdom Courts have held that freedom of religion 'does not require that one should be allowed to manifest one's religion at any time and place of one's own choosing'^[38].

15.7 Mischief or improper motives on either side of these disputes lead either to "tyranny of the majority" when impropriety is within the village council; or almost certain humiliation, on the other hand, for the village council at court proceedings brought on by a disingenuous religious freedom application from a mischief maker. This in turn undermines the authority and thereby the ability of Alii and Faipule to maintain law and order.

15.8 The reality of having to come to terms with Alii and Faipule on these things and to receive its formal consent is undeniable. All who have successfully traversed the ground in these matters acknowledge this and that proper approach and perseverance are indispensible to achieving good results. Indispensible also is quality leadership and enlightened appreciation in the village of changing circumstances. Of crucial importance is commitment by faifeau in the village to work together for harmony among their flocks under the ongoing protection and support of Alii and Faipule. Happily, there is a growing number of success stories of this process in action which is serving as good examples for other village communities to emulate. We were privileged to see such an example first hand in Sapunaoa, Falealili.

15.9 In contrast are cases such as Moataa where it is firm village policy to have only one church in the village. Villagers who wish to worship elsewhere are free to do so. The Alii and Faipule extends appropriate support to the different churches that have village adherents. By all accounts, the Moataa people are happy with this arrangement and policy which are claimed to suit their purposes and circumstances. It is said that both freedom of religion and village solidarity are well served.

15.10 It would seem logical to recognize in law, in an appropriate way, what is in fact happening in real life in accordance with custom i.e. the necessity of obtaining Alii and Faipule consent to the establishment of a new church in a traditional village. This would avoid the kind of legal disputes outcome, which have been inevitable in the past and which tend to undermine the authority and standing of the Alii and Faipule in rural affairs while not necessarily resolving matters fairly. Needless to say, whether any decision to withhold consent passes muster in the context of Article 11, remains within the purview of Article 4 (2).

15.11 It would seem as well to look carefully at appropriate administrative ways through amendment to the Village Fono Act 1990 to bring to light, scrutinize and expose unreasonable decision making on the part of Alii and Faipule in these matters to guard against abuse.

15.12 Neither need for, nor practical benefits from, amending Article 11 of the Constitution was demonstrated to us. On the other hand, overwhelming support was shown in submissions for retaining religious freedom as currently expressed in the Constitution of Samoa.

15.13 There could well be scope for further examination, consistent with Article 11 (2) of the Constitution, to identify religious practices that are harmful or contrary to the interests of the people of Samoa with a view to taking appropriate remedial action.

16.1 We recommend Article 11 of the Constitution of Samoa on the right to freedom of thought, conscience and religion to remain untouched.

16.2 As it appears from the decisions of the Courts, that communal collective rights and the customary role that is played by Alii & Faipule in the process of establishing a new church in a traditional village,are not sufficiently recognized in law to afford them consideration in the context of Article 11 (2), we recommend that Government considers legislative measures to do so.

16.3 We recommend consideration of guidelines in the Village Fono Act 1990 requiringAlii & Faipule to take into account in their decision making in these matters,only objective factors pertaining to the preservation of harmony, stability and security; fundamental rights, monotaga[39] etc., as opposed to discriminatory or religious reasons.

16.4. We recommend consideration of administrative requirements or measures through the Village Fono Act to bring to light village policies on new churches and religious for registration and scrutiny.

16.5 We recommend an awareness programme for rural areas on the religious freedom provisions of the Constitution.

16.6 We recommend consideration of establishing a Religious Practices Commission to examine on a continuing basis and to make appropriate recommendations to Government, as necessary, on practices considered prejudicial to Samoa in the context of Article 11(2) of the Constitution. The Commission to bear in mind the values of Samoan society expressed in the Preamble of the Constitution.

17.1 We would like to record our indebtedness to our very diligent and competent team of Counsels Assisting, Messis Peter Bednail and Arthur Lesa and Ms Kaisarina Salesa as well as our tireless recorder Ms Taumuli Saena-Papalii.

................................... Maiava Lulai Tome Chairman	..................................... Pastor Uili Solofa Member
.................................. Rev Ma'aaga Motu Member	...................................... Pastor Viliamu Mafo'e Member
.................................. Father Spartz Silva Member	...................................... Te'o Eteuati Member
.................................. Rev Vaiso Eteusti Member	...................................... Leva'a Sauaso Member

^[3]Kirby, M, The Griffith Lecture 2007, Queensland Conservatorium, Griffith University, Friday, 16 November, 2007, “Fundamental Human Rights and Religious Apostasy”.

^[5]Professor Carolyn Evans, Acting Director, Centre for Comparative Constitutional Studies, Melbourne Law School, University of Melbourne; Submission to Commission of Inquiry.
^[6]Excerpts of the speech of His Highness are available at www.head-of-state-samoa.ws

^[7] Translated as village but has been explained by J.W. Davidson Samoa mo Samoa (1967) p16 as “more nearly akin to an English administrative parish; it may contain one or more ‘hamlets’ (or settlements)”.

^[8] Jennifer Corrin Care refers to similar situations elsewhere in the Pacific. ‘Conflict between Customary Law and Human Rights in the South Pacific’, First presented at 12^th Commonwealth Law Conference at Kuala Lumpur in Septemper, 1999 http://www.vanuatu.usp.ac.fj/sol_adobe_documents/usp%20only/pacific%20law/corrin.htm (Accessed 4/26/2010)

^[9] Vaai, S, Samoa Faamatai and the Rule of Law (1987) at p253, claims that the Constitution made customary law illegitimate though eligible for legitimation.

^[13] Sapolu CJ quoted in Italia Taamale CA 2/95B –“... the term of a banishment is seldom specified ... , the customary understanding is that when the banished individual is remorseful and prepared to make amends for his wrongdoing, 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”.

^[14] Samoan Expression meaning “No village remains in the dark of night forever”

^[15] Professor Le Tagaloa Leota Pita Alailima of Le Amosa Indigenous University of Samoa

^[17] In this day and age, acts such as the burning of private property on freehold land at Palauli reported in Sunday Observor 24 April 2005 in defiant disrespect of legal processes and expelling the local MP from the village community for counseling restraint can only be characterized as misguided assertions of communal solidarity.

^[20]Letter to the Editor signed “Member of the EFKS” criticising the exercise of the Free Will of those on both sides of the pulpit who give to indulge excesses in materialistic appetite and those who receive it, Samoa Observer, 9 April 2010.

^[34] Sir Guy Powles, at his swearing in ceremony as the first Ombudsman in the English speaking world, Wellington,1962

^[35] The national motto, “Samoa is founded on God”, is more than expression of pious hope.

^[36] The Samoan way of doing things; interacting in culturally accepted fashion.

^[37] The Matai system or Matai rule in established traditional communities.

^[38]R (Begum) v Governors of Denbigh High School [22 WLR 3372 and R (on application) v Headteachers [2006] EWHC 298 (Admin)

^[39] Performance by a Matai of his duties in the village including the provision of contributions in terms of money, in kind or service levied by the village on all Matai for the ongoing needs of the village.

Samoa Ombudsman's Reports

Commission of Inquiry Freedom of Religion [2010] WSOM 1 (15 May 2010)