Article 11 of the Constitution of Samoa

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Freedom of Religion

Article 11 of the Constitution of Samoa. guarantees Freedom of Religion. The preamble to the 1960 Constitution enunciates Samoa as “an independent State based on Christian principles and Samoan custom and traditions”. The major issues concerning freedom of religion throughout the years gave rise to international criticism and international media coverage as well as legal battles. These issues stem from the inconsistencies in theory, including a clear definition of what religious freedom is, the interpretation of Article 11 and practices in the local level in villages.

Background and social structure

Prior to its independence in 1962, Samoa underwent a lot of struggle through civil wars and the arrival of colonial powers in the 18th century further exacerbated the problem of tribal rivalry. This was because the rivalry between the colonists forced the indigenous groups to take sides creating further conflict between the indigenous people. Colonisation came in the form of missionaries and traders in the 1830s and the arrival of the missionaries brought Christianity. However, it also generated change to Samoa not only of its traditional beliefs but also its world viewpoint. Colonisation, eurocentrism and Christianity influenced Samoa tremendously; through westernisation of systems but also overtime; the erosion of traditional beliefs replaced by modernised Christian concept as well as corruption of thought. The quick succession and acceptance of Christianity concomitant with the fulfilment of the prophecy of the legendary warrior goddess Nafanua. “…foretelling that chief Malietoa would gain power from heaven”. Religion quickly became the core of Samoan life and the cornerstone of the villages. The three main denominations in Samoa are Congregational Christian Church, Methodist and Catholic since these were the first three arrived in Samoa, therefore the villages have a sense of loyalty to these three denominations giving rise to their dominance. Church ministers gain the highest prestige and in most villages; acquire the elite equivalent to the highest chief, with the villagers’ conviction that the true blessings from God is through subservient to the church. Almost all Samoans identify themselves as Christians A Parliamentary Democracy with its legal system based on English Common law, Samoa was admitted to the United Nations in 1976. Samoa is made up of villages and each village has its own bylaws. These bylaws include which religion the village would accept for villagers to worship. This has been the traditional political system enshrined in their culture for 3,000 years and still practised today. The village system comprises of the ‘fono a matai’, or ‘fono a ali’i ma faipule’ the matai council literally meaning ‘the council of titled men’ ; the ‘fono a matai’ underpins Samoan culture. This council is seen as the law in the villages making the fono the most powerful system in Samoa. They are responsible for making bylaws in which all the villagers abide, regulating the bylaws and rules and setting standardised penalties for violations of village bylaws. Communalism is deeply rooted in village life hence the fono is also accountable for peace and harmony of the village. The fono is governed under the “Village Fono Act 1990”

Freedom of Religion Versus Village Fono

The Constitution of Samoa Article 11 guarantees protection of freedom of religion. However, it has been under scrutiny with much heated debates for years, in its application versus the village fono bylaws. Although these rights are guaranteed; time and time again, violations of these rights are a norm in the local level with most incidents gone unreported; perhaps out of fear of reparations if they oppose the fono openly, or, the value of va-fealoa’i (relationships based on respect of age, gender, status) and so conformity and compliance out of respect for the fono is the usual individual response to rights violations. This is because almost all villages have agreed to the mainline denominations (CCC, Methodist, Catholic) to be the only denominations for the villagers to attend. In the village of Gataivai in Savai’i (Samoa’s biggest island), Methodist is the only denomination allowed whereas in Satupa’itea in Savai’i also where Catholic is the only denomination permitted. But, in the cases that have made the media limelight, for example the village of Salamumu; where a new denomination was banned from holding bible studies in the village as Methodist is the only denomination allowed; four men of an evangelic church were hog-tied; carried to the public road and left there until rescued by a church minister who pleaded for the men’s lives. The new church members’ houses were burnt by the village, their possession destroyed and members beaten including a pregnant woman. In the case of Sovita v Police, the defendants were chiefs and untitled men (taulele’a) of Salamumu village; who argued that they were acting on order and command from the decision made by the fono. The case of Mau Sefo & others v Attorney General, the village of Saipipi banished the plaintiffs from the village for executing bible studies and worship services other than the three (mainline denominations) sanctioned. Furthermore, in the case of Tariu Tuivaiti v Sila Faamalaga & Others, “the plaintiffs were banished from the village of Matautu Falelatai for failing to attend church”. While the Courts are ruling in favour of fundamental rights including freedom of religion under the Constitution, but only a few cases make it to court.

There are a number of reasons why people refrain from seeking legal remedies or advice. It is clear that at the village fono and on the local level, article 11 of the Constitution is hardly appreciated. The aforementioned issues between Christian denominations raises questions of “How religious are Samoans?” and “what Christian principles practised?” as Samoa claim to be a religious nation and these problems contradict the Constitution; of “Samoa is founded on God based on Christian principles and Samoan custom and tradition”. The survey by Angelica Saada titled ‘Samoa: A truly Religious Place? Views Towards Religion in Samoa’, is an endeavour to provide answers to a conflicting Constitution. The lawsuits and village bylaws prove that the individual rights are indeed unprotected. There is an immense gap between the Constitution and the village bylaws. The media also must be commended, , because they bring these delicate issues into the public sphere. In the most publicized Salamumu 1998 incident opened discussions, and, the response to the citizens outcry and international denunciation sparked the Cabinet to set up a Commission of Inquiry in 2010 “…to inquire and report on the working of Article 11 of the Constitution of the Independent State of Samoa in relation to the right to freedom of religion” , . Nevertheless, critics must not shift the blame to the village fono, as the key to understanding is education. This is where the government is lacking. It is well enough to have guarantee on the protection of fundamental rights, but understanding on application of these rights on the local level have never been clear. It is the government’s responsibility therefore to provide and facilitate discussion and education for the villages on how these rights can be protected and how they can be enhanced by the fono. Bryan Zoe, in her study on “Prosecution of Religious Minorities in Samoa: The Baha’i Struggle to Face a Common Problem”, provide a lot of insight into gaining understanding of the different beliefs and education in other religions other than Christianity. Imam Mohammed Yahya also suggests the importance of gaining knowledge into other faiths will create greater understanding. Dr Bin Yahya also said that ‘the only Christian church to invite him to talk about Islam was the [Methodist Theological College’]

Samoa’s constitutional amendment and its international obligations

There is another dangerous issue lurking in Samoa’s Constitution. In December 2016, a bill to amend the Constitution was introduced to Parliament and in 2017, the Constitutional Amendment passed. In the preamble, religious freedom was open to interpretation whereas the Constitutional Amendment now is more specific; and enshrined into law. It is now definite to: “Samoa is founded on God the Father, the Son, and the Holy Spirit”. While village bylaws are now more lenient to religious freedom of Christian individuals; due to a lot of negative publicity and criticism, they are still intolerant to religious freedom of minority. The Constitution Amendment further suppress religious freedom of these communities. In the 2013 Samoa International Religious Freedom Report, it is clear that the vast majority of Samoa are unwilling to accept non-Christian beliefs let alone their religious freedom. Section 3 of the same report states; "Prominent societal leaders repeatedly emphasized in public that the country was Christian. Public discussion of religious issues sometimes included negative references to non-Christian religions". Although there are limitations to the freedom, there has never been any issues or conflicts from the non-Christian community like the Baha’i Faith and Islam; that would pose any threats to Christians in Samoa. Their principles in particular the Baha’i Faith, consist of universal peace, oneness, equality, the abolitions of religious, racial, political and patriotic prejudice; to name a few. These are the true attributes and values towards peace and harmony in any society. What is more critical is the role of the Samoan National Council of Churches as they put a lot of pressure on the government to ban non-Christian beliefs.

Furthermore, the Samoa parliament is a one-party government and even more contradictory is the religious freedom issue and the mandate of the reigning party; the Human Rights Protection Party (HRPP). The new amendment not only threatens the core principles of democracy, it allows violation of religious freedom of non-Christian communities, a breach of International Covenant on Civil and Political Rights (ICCPR) in which Samoa acceded in 2008. Also, under democracy, wouldn’t something so significant like amendment to a constitution be done through a citizens referendum? Part XI, General and Miscellaneous provision, Article 109(1) of the Samoa Constitutional, states: (1) “Any of the provisions of this Constitution may be amended or repealed by Act, and new provisions may be inserted in this Constitution by Act, if a bill for any such purpose is supported at its third reading by the votes of not less than two-thirds of the total Members of Parliament…”, this provision legitimises the Parliaments actions but further violates the citizens political rights. What is more concerning is there is no opposition party and so any Acts of Parliament would not be voted against unless it is a conscious vote.A Constitution amendment without a citizens' referendum is justifiable under the above provision. Religious freedom for the non-Christian minorities are not guaranteed under the New Constitution Amendment. Christians have the new amended Constitution to support and protect them (hence the National Council of Churches are calling to ban Islam from Samoa); whereas non-Christians will be challenged in courts. Imam Mohammed Bin Yahya raised another valid question: “Will the new amendment jeopardise Samoa’s relationships and aid from non-Christian countries like China and Japan?” Meanwhile, despite the Prime Minister saying that the amendment “would unlikely touch Article 11”, there is an international outcry and calls from scholars in Samoa and abroad with concern over the Samoa Constitution Amendment. In the Samoa Observer editorial 30/2/2016, Gatoaitele Savea Sano Malifa stated that “The aim of Prime Minister Tuilaepa’s Constitution Amendment is to declare the dominance of Christianity in Samoa”. Therefore, religious freedom of non-Christian minorities faces uncertainty under the amended Constitution and it appears that violation of fundamental human rights like freedom of religion will soon be lawful in Samoa.

External Links

The Constitution of the Independent State of Western Samoa 1990 Universal Declaration of Human Rights, Article 2 Village Fono Act 1990 United Nations General Assembly, 2016, Elimination of all forms of religious intolerance United Nations General Assembly, 1999, Elimination of all forms of religious intolerance [[International Convention on Civil and Political Rights Article 2(1), Article3, Article 18(2), Article 18(3) Carolyn Evans, Religion as Politics not Law: the Religion Clauses in the Australian Constitution

External links

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