Moves in Samoa to ease tensions between custom and law
Helping to resolve tensions between customs and law is a focal point between members of the Maori and Samoa Law Societies who recently formed a new network.
Helping to resolve tensions between custom and law is a focal point between members of the Maori and Samoa Law Societies who recently formed a new network.
The President of the Samoa Law Society, Mareva Betham, said Samoa could draw similarities with the Maori experience in New Zealand particularly with land disputes.
Ms Betham also says the dilemma of having two systems co-existing in one country means people often end up being punished twice for the same crime.
She spoke to Indira Stewart
MAREVA BETHAM: So in Samoa this dilemma is evident where, for example, a crime is committed by someone living in the village and that person is subjected to the village council's laws and punishments. But they're also subject to Western laws where the police will continue to charge that person. The other key reason is I think that more and more people are becoming aware of their individual human rights - how they can exercise those individual rights within their communal setting. And it's the tension between being able to exercise those individual human rights but being mindful of the fa'a samoa and the way of life in Samoa.
INDIRA STEWART: Do the resolutions which have come from customary processes, do they stand up in legal court in Samoa?
MB: In some respects, resolutions do stand up in court, especially with regards to matters which are dealt with by the Lands and Titles court in Samoa. It is a chief requirement for that court to take those resolutions into account. However at the Supreme court and the District court level, these are often taken in when the court looks at the sentencing or punishment. So for criminal matters it's only taken into consideration during sentencing. For some civil matters, it is taken into account when the matter is referred to mediation. But by and large customary resolutions are not taken into account at the Supreme court and district court levels. So for everyday petty crimes and disputes the village council resolves those disputes, but the more serious matters, the police and the courts handle them.
IS: Where exactly does the justice system draw the line in terms of taking it further beyond village jurisdiction, so to speak?
MB: Well, I guess that's the tension that we have been discussing at the joint conference, and the question of where do we draw the line. There were no easy answers that came out of that during conference but we hope to continue that discussion. But at some point, we need to draw the line and say, right - all of these must now be dealt with under the western system. Or we develop a western system and we adapt it to incorporate some of these customary practices so it becomes one system, as opposed to one individual being subjected to two systems.
IS: What about the lands and titles court? In light of the parliamentary inquiry that's about to happen, I understand it's a very different system in comparison to the other courts in Samoa, in the sense that the judges that are employed have no legal experience or background - I know that they have great understand in Samoa customs and strong ties to the community which is significant of course. But is this problematic at all?
MB: There are some problems that have resulted from the fact that the judges are not legally trained. And I say that with reference to the increase in judicial reviews which are now before the supreme court, which goes to show that we do need legally trained people. We believe that the people who are sitting in these courts must surely have a thorough and comprehensive understanding of the law and to be able to apply it correctly. Because these are some of the issues that come up in those judicial reviews that are currently before the supreme court in Samoa. But personally, and I think from the law society's point of view, there should now be a move towards getting legally qualified people to sit on the bench at the Lands and Titles court.
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