Government of Western Samoa Report of the Commission to Inquire into and Report upon the Organization of District and Village Government in Western Samoa
(e) The Making of Regulations
(e) The Making of Regulations
59. At the present time the law and local regulations of the ali‘i and faipule often cover the same subjects. Frequently they provide different penalties for the same offence. Such a conflict of law, and consequently of jurisdiction, tends to diminish the authority of both the Government and the ali‘i and faipule. One of the principal purposes, of course, to be served by giving legal recognition to district and village authorities is the ending of that conflict. When local authorities are given the power of making regulations which will have the force of law, there will have to be a clear division made between the subjects which the principal law-making body, the Legislative Assembly, reserves to itself and those on which it is prepared to delegate its powers to district and village authorities.
60. The working-out of such a division will require careful examination of the existing situation by persons with a knowledge of both law and custom. In many cases the existence of local regulations on subjects which are already covered by the law is largely an indication that the law itself is not at all fully enforced by the police outside Apia. This is so in regard, for example, to the regulations against brewing and distilling which exists in a great number of districts. In a number of such cases the proper course will be that of restricting the power of local authorities to make regulations, and, at the same time, making provision for the enforcement of the law. In other cases, careful thought will have to be given to the question of whether a change in the existing law is not called for.page 23
61. As an example, we may take section 171 of the Samoa Act, 1921, which declares any one liable to five year's imprisonment with hard labour who “unlawfully enters or is in any dwellinghouse by night with intent to commit a criminal offence therein, or who is found by night in any dwellinghouse without lawful justification for his presence there.” It is obvious that nearly all cases of this offence which occur are, in practice, dealt with by the ali‘i and faipule in accordance with local regulations. The matter is not brought to the attention of the police, and the law is largely inoperative. This may be, in fact, a better course than rigid enforcement of the law in its present form. In Samoan custom the matters covered by that section of the Samoa Act fall into two distinct classes. First, there is the offence of entering a house at night with intent to commit murder, rape, or other serious crime. Secondly, there is the much commoner practice of young people entering a fale in the evening in search of food. The first type of offence is one which should clearly be brought to the attention of the police. The second type, however, is one which is regarded by Samoan opinion as relatively slight. It should be punished far less heavily. It is, perhaps, a matter which could be left to local authorities to deal with in the way they think best suited to their particular conditions.
62. The exact delimitation of the powers of making regulations which should be given to district and village authorities must await careful and expert examination of some parts of present law and custom. We think it will be useful, however, if we give a general indication of the subjects which we consider should normally fall within the regulation-making power of local authorities. With certain qualifications, which we shall state later, we consider that the following subjects are ones on which such powers should be delegated to district and village authorities:—
Care and development of lands and plantations and control of insect pests and plant diseases:
Cleanliness of the village, hygiene and sanitation:
Control of animals:
Provision, maintenance, and use of cemeteries, boats, roads, tracks, fences, water-supplies, and electricity supplies:
Control of the taulele‘a and persons not normally resident in the village:
The imposition of a curfew:
The behaviour of any residents of the district or village on any public road—(e.g., throwing stones at cars and buses, playing games in the centre of the road, or otherwise interfering with traffic:
The behaviour of residents while travelling in buses, trucks, &c.:page 24
Stealing of food from plantations, houses, &c.:
Entering a fale at night with the intention of stealing food:
Having an affair with a married man or woman:
Raising of money for district or village purposes:
Appointment of committees and determination of their membership and powers.
63. The subjects listed in the preceding paragraph are not intended to be an exhaustive list of all matters on which district or village regulations might be made. They are meant, however, to indicate the general views of the Commission. Further, the actual powers to be assumed by any particular local authority might well vary from the standard pattern on account of the wishes of the district or village concerned. The details would be a subject for discussion between the district or village and the Board. They would be settled within broad limits defined in an Ordinance of the Legislative Assembly.
64. There are certain subjects at present mainly dealt with under regulations of the ali‘i and faipule on which it would probably be wise to prepare Ordinances but to leave actual punishment of offenders to the district and village authorities. These are matters of importance in Samoan custom where the method of punishment is the same in all parts of the Territory. Such subjects as the improper recitation of genealogies and the use of insulting or provocative language belong to this class. The uniformity of treatment accorded by a general law would, in these cases, be an advantage.
65. The Commission has given consideration to the procedure which should be followed when a legally recognized district or village authority wishes to obtain confirmation of particular regulations. As has been pointed out earlier in this report, such confirmation by the District and Village Government Board would be the proper way of ensuring that regulations were in accordance with law and justice and that the Courts would therefore be able to enforce them when necessary. We recommend that every regulation for which legal backing is to be sought should be Tequired to be set down in writing in the records of the district or village authority making it, with a definite statement of the penalty to be imposed on those found guilty of a breach of it. A copy of this written entry should be forwarded to the Board, which would then confirm the regulation if it was in accordance with the law and with justice. As soon as formal confirmation had been given, the regulation would have the full force of law.
66. In conclusion, it should be emphasized that these recommendations regarding the making of district and village regulations are not intended in any way to impose a uniformity of practice in matters where the opinions of different parts of Samoa still differ. The duty of the Board page 25 would not be that of seeking acceptance of the views of members in regard to particular subjects of regulations, but simply that of ensuring conformity with law and with the general principles of justice. By such means, the power of district and village authorities to maintain law and order among their people would be placed on a sounder footing for the future.