(g) The Trial of Offenders

88. The trial and punishment of those guilty of offences against custom or against regulations, and the settlement of disputes, have always been among the major functions of the ali‘i and faipule. As has been shown earlier in this report, the procedure followed and the decisions taken have been gradually modified to fit in with the changing needs and beliefs of modern times. In addition, major crimes such as murder are now dealt with by the High Court; and a large, and increasing, number of disputes concerning land and titles are taken to the Land and Titles Court. None the less, the system remains to the present day as the mainstay of law and order everywhere except within the vicinity of the Town of Apia.

89. In matters relating to the maintenance of justice, tradition plays an exceptionally important part. Any institution charged with judicial functions should enjoy the respect of the people as a whole. They should accept it as the proper body to perform such work, and they should assume that it will generally discharge its duty in a proper way. Such acceptance of an institution comes most fully from long experience of it. For such reasons, the Commission is of opinion that the traditional jurisdiction of the ali‘i and faipule should be carried on by the legally recognized district and village authorities, within limits set by law.

90. The scope of the proposed jurisdiction will have become reasonably clear from other sections of this report. In brief, it will be in respect of all regulations made by the authority concerned and of any Ordinances, or other legal enactments, which have been specifically declared to be enforceable by district and village authorities in their judicial capacity. (In addition, of course, local authorities will continue to deal with many disputes over lands, titles, &c.; but in such cases they will be acting either in a purely traditional way or else as arbitrators, and their authority will not require any legal notice.) At this point we are concerned not with the scope of the legally recognized jurisdiction of district and village authorities, but with the manner in which it should be exercised.

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91. The offences which should continue to be dealt with by district and village authorities can be divided into two classes. The first class consists of those offences which are regarded in Samoan custom as of special social significance. They are offences which are considered to represent a threat to the structure of authority in Samoan society. From the point of view of Western legal theory the action that is traditionally taken in respect of them can, perhaps, be considered as a claim for damages on behalf of society as a whole. Offences such as that of a man having an affair with a matai's wife or of a woman having an affair with a married matai, or that of illegal entry into a faife‘au's fale by night, belong to this class. The second class consists of all the petty offences which make up the bulk of the judicial work of district and village authorities. It includes offences such as minor stealing of food from plantations or fale, fighting, failure to plant the required number of taro roots, coconuts, &c., breaking the curfew, failure to take part in beetle-searching, and so on.

92. In Samoa at the present time the practice is becoming increasingly general of dealing with these two classes of offences in quite different ways. The first class are dealt with by the fono, as the body representative of the dignity of the community as a whole. Those found guilty of committing them are punished in the traditional way—by fines in food, which is then distributed to the various sections of the village in accordance with custom. In this way the injury which has been done to the authority of the community is repaired, and the guilty party has been made to show the necessary signs of respect. Offences of the second class are not dealt with by the fono directly, but, under its authority, are disposed of by the pulenu‘u and village committee (or committees). Punishments are very frequently in money.

93. The adoption of this practice in regard to the trial of offenders is not yet by any means universal; and, where it operates, there are many variations of detail between village and village. For example, in some villages petty offences are punished by the pulenu‘u alone, without the participation of a village committee. Again, in a good many parts of Samoa most petty offences are still punished by fines in food, even if it is the pulenu‘u and committee who conduct the trial. But the division which has been pointed out does represent a broad trend of development. The Commission believes that it is a trend which should be encouraged.

94. The Commission therefore recommends that the policy of the Government and of the District and Village Government Board (as the body to be charged with the execution of Government policy in this matter) should be that of encouraging the further development of this dualism. The practice of having offences of special importance in Samoan custom dealt with by the fono and punished in foodstuffs still serves a page 35 useful purpose. In the course of time it may be changed, but it would be wrong to oppose it at the present time out of a mistaken desire to fit in with Western legal principles. One most significant development has appeared in the practice of leaving the mass of minor offences to be tried by the pulenu‘u and village committee. No effort should be spared to make it fully effective. The Board should make sure that the pulenu‘u and his clerk are supplied with copies of relevant Ordinances, as well as instructed in the elements of Court procedure. In regard to fines for petty offences, the Government should not enforce too rigid a policy. District and village authorities should be encouraged, but not in general coerced, into providing money penalties for such offences in their regulations. To this there should be only one exception. For the most minor misdemeanours only money fines should be permitted. Where the penalty is very small, as is always the case for breaking a curfew or failing to collect sufficient beetles, it is impossible to grade the fine accurately enough if it is imposed in food. A fine in terms of a certain number of taro or a kettle of cocoa can easily become excessive. It is much juster to impose a fine of 1s. or 2s. For this reason, such petty misdemeanours should always be fined in money.

95. The proposals put before the Board by any district or village should state clearly the manner in which offences are to be tried— whether by the fono or by committees—and it should, so far as possible, give a complete list of the offences to be tried by the fono and by any committee respectively. These details would be included in the subsequent formal Proclamation granting legal powers. When new regulations were made and confirmed on matters not covered in the original constitution, a statement should be included in the regulation, itself as to the manner of trial of those accused of breaking it.

96. In the general legislation to implement our recommendations, certain principles should be laid down in regard to all trials. One such principle should be the right of the accused to be heard in his own defence. This right is, of course, normally given to an accused person; but it is of such importance that it should be guaranteed by law. Another principle important to the maintenance of strict justice is the requirement of a written record of each case heard, including a statement of the decision. Where written records are kept, it is much less likely that unnecessary cases will be brought and that unduly harsh punishments will be imposed. A written record will also be of much assistance to a higher Court hearing any case on appeal. With such guarantees of satisfactory procedure, there can be no doubt, in the opinion of the Commission, that the district and village authorities will be able to continue to deal with customary and minor offences in future with the Support and respect of the people.