by conflict

W. Samoa troubled by conflict in voting rights

Western Samoa, proud of a constitution which at tempted to retain the old with the new, has problems.

When Western Samoa became independent in 1962 it was the first of the new Pacific Island countries to take such a step and prided itself on producing a modern national constitution which also incorporated tra ditional systems of government and social control. Now, 20 years later, fundamental conflicts have arisen within the written law and there are growing pressures to resolve them.

The conflict which is causing the greatest controversy at pres ent is a human rights issue in which freedoms conferred by the constitution appear to clash with restrictions on voting defined in the Electoral Act.

The Electoral Act has estab lished two separate electoral rolls, one of which is the matai roll. Each of 45 constituencies elects one holder of a matai title to a seat in the single-chamber national parliament. Any regis tered holder of a matai title may stand for election, and voting is restricted to the matai them selves. Wives and descendants of matai do not have a vote as it is considered under Samoan tra dition that all adults within a family have had their say in the initial election of their own matai.

This has been criticised as a simplistic attitude which over looks complex relationships be tween families and which ignores the fact that, because matai are elected for life, many young adults had no say in the choice.

The other electoral roll for parliament is the individual voters roll which was devised to give voting rights to citizens of Western Samoa of part- European or part-Chinese de scent who were not, at the time of independence, affiliated di rectly with any matai title. Men and women in this category who were over the age of 21 and were registered to vote on November 30, 1963, or whose father (not mother) was or would have been

eligible to vote at that time may register as individual voters.

These voters are represented from among themselves by two members in parliament. At the time of independence the num ber was five, but this has since been reduced.

Against this background of voting qualifications contained in the Electoral Act, the consti tution of Western Samoa con tains a much wider definition of individual rights. The argument today is that the individual rights should also apply to voting rights, and this has been put forward in a number of recent court cases involving electoral registration. Section 2 of article 15 in the consititution defines individual rights as follows: ‘Except as expressly author ised under the provision of this constitution, no law and no executive or administrative ac tion of the state shall, either expressly or in its practised application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.’

The Registrar of Voters and Electors, Martin Kleis, was quoted recently as saying, T don’t know now who to register and who not to register. Either the law is stupid or I’m stupid, and I like to think that I’m not stupid’. These comments fol lowed a court decision in mid- January allowing the registration as individual voters of two per sons whose applications Kleis had rejected, Edward Stevenson and Esau Roberts.

The two complaints were almost identical, and the Stevenson case will serve to illustrate. Edward Stevenson was under 21 on November 30, 1963 and his father had taken a matai title in 1951 which later

disqualified him and his children from voting as individual voters.

However Edward’s older brother had already attained voting age by the specified date and was duly registered as an individual voter. Stevensons’s counsel main tained that in article 15 of the constitution, ‘place of birth’ should be interpreted as ‘time of birth’, and that when Stevenson’s father took a title in 1951 he did not know that a law would come into effect in 1963 that would affect his children’s electoral rights.

In another application the court upheld the registrar’s ac tion in removng the name of Gina Moors from the individual voters roll. Mrs Moors lost all voting rights when her husband took a matai title she was no longer entitled to an individual vote because she had become affiliated with a matai family, and she could not exercise a matai vote because she was within the direct family of a matai and was not herself a matai. It was reported that the registrar had told her that if she still wanted a vote, she should take a title herself. (There are a few female niatai, but this is not common).

Her counsel, Ae’au S. Epati, argued that it is discriminatory ‘to distinguish between those married to matai and those not married to matai and that such discrimination is in violation of article 15 of the constitution. He submitted that Mrs Moors was discriminated against by virtue of legislation which in its correct context was unreasonable.

At a public meeting in January sponsored by Speak Out Samoa (SOS), Ae’au explained the legal position and read the relevant passages from the con stitution and the Electoral Act.

Some 35 individual voters and observers attended the meeting and took part in the discussion.

The Moors case is being taken to the Supreme Court on appeal, based on grounds that the Elec toral Act is unconstitutional.

If the appeal succeeds either the Electoral Act or the consti tution will have to be changed.

Even if the appeal fails the present law will continue to be challenged by others. Ae’au says he would like to see Samoa introduce a system of voting for all adults, although this would be

contrary to the matai system and would run contrary to Samoan tradition. The meeting generally supported his views, and there are indications that there is majority support throughout the country.

All the pressure on the matai system in not, however, from outside. Each year large num bers of new titles are created and old titles are split and awarded to a number of people, eroding their value and the respect they can command. This practice is par ticularly prevalent in election years when a greater number of registered title-holders means a greater number of votes for those who confer the titles. If this cancerous growth continues, the whole things is bound to fall under its own weight.

One speaker at the SOS meeting claimed that the entire matai system could be con sidered unconstitutional under the terms of article 15 of the constitution. The point is illus trated by a recent case in which a man was banished from the village of Faleletai by the local matai council because he re fused to attend church or give money to the church. The man took legal action against the matai, arguing that he would be no belter a person for going to church and that he had the right of free choice in the matter as guaranteed by the constitution.

He won his case and the matai council was fined. According to traditional law, the matai were within their rights in making such a demand and in taking punitive action when their de mand was refused. The court’s decision has set a precedent that undermines traditional authority enormously.

One of the apparent problems in this constitutional conflict is that the authors of the consti tution wrote into the preamble general phrases about protecting and preserving Samoan custom and tradition without anywhere detailing what they meant. Had they defined the traditional law that was to be upheld, the fundamental conflict with indi vidual rights would have been obvious and could have been resolved at the time. The only legal way to resolve the problem now is to rewrite the constitution.

Ruth Gurnani-Smith