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The Pamphlet Collection of Sir Robert Stout: Volume 76

Is the Decision Final or Binding?

page 21

Is the Decision Final or Binding?

Samoa is still on the tenterhooks, awaiting communications from the Treaty Powers respecting the decision of the Chief Justice on the kingship question, and the fourth query, Is that decision final? is therefore still of great interest. I propose to consider it from three standpoints. First, Is it final or binding as against the three Treaty Powers? Second, Is it final or binding as against Samoa generally? Third, Is it final or binding as against Mataafa personally?

The brief and necessarily imperfect discussion of these questions may be appropriately prefaced by a few remarks on the Supreme Court of Samoa, and the powers and functions of the Chief Justice. The Treaty provides that "a Supreme Court shall be established, to consist of one judge, who shall be styled Chief Justice of Samoa . . . . His decision upon questions within his jurisdiction shall be final . . . . The Supreme Court shall have jurisdiction of all questions arising under the provisions of this general Act, and the decision or order of the Court shall be conclusive upon all residents of Samoa."

Some question might be raised as to the bearing of these provisions on the kingship dispute, but that matter is dealt with specially in a subsequent section, and it would probably be rightly contended that as the whole matter is specially dealt with in that section (section 6), it is not intended that preceding sections shall affect it. However, even if these provisions did apply, they would not materially modify or affect the position. But I shall assume that section 6 contains all the powers, and defines the jurisdiction of the Chief Justice on the kingship question, and, therefore, is the only one necessary here to consider.

It may seem a rather fine distinction to draw, but it is nevertheless undoubtedly correct to say that though the Supreme Court consists of the Chief Justice, the Chief Justice is not always the Court. He has important duties to perform, which are not included in the ordinary judicial procedure of the Supreme Court. All ordinances, resolutions, and regulations passed by the Municipal Council, and not unanimously approved by the three Consuls, have to be referred to the Chief Justice for final modification and approval. He has the right to recommend the Samoan Government to pass laws which he may deem just and expedient. He is also the sole arbiter in case of disagreement between the Treaty Powers. All these duties, some of which are more judicial than ministerial, are imposed on the Chief Justice, not upon the Supreme Court. So, with regard to the kingship, section 6 provides, "In case any question shall hereafter arise in Samoa respecting page 22 the rightful election or appointment of king . . . . such question shall be presented for decision to the Chief Justice of Samoa, who shall decide in writing conformably to the provisions of this Act and to the laws and customs of Samoa, not in conflict therewith, and the Signatory Governments will accept and abide by such decision."

Though the decision of Chief Justice Chambers does not appear to be in form a judgment of the Supreme Court of Samoa, the published reports seem to indicate that the matter was dealt with by the Supreme Court. Some passages in the decision itself apparently confirm this view, and Herr Bulow, Mataafa's counsel, was required to take the barrister's oath before being allowed to act for his client in the proceedings.* The form of procedure which the Chief Justice chose to adopt is a matter of small importance, and would not be likely to affect the validity of his decision, but it might afford scope for some very pretty legal argument as to contempt of Court and other matters.

Coming now to the question, Is the decision final as against the Treaty Powers? the answer would be in the affirmative if the decision be in accordance with the provisions of the Treaty, and the laws and customs of Samoa not in conflict therewith. The decision is not based upon any law or custom of Samoa, and it has not been contended by any one that there is any law or custom of Samoa rendering Mataafa ineligible for the kingship. Ts the decision in accordance with the Treaty? It is indisputable that taking the Treaty itself, the decision is not only not in accordance with it, but in direct conflict with its express provisions recognising the free right of the Samoans to elect their chief or king. The issue is, therefore, narrowed down to the construction of what the protocols contain, and the determination of the relation of the protocols to the Treaty. The Treaty Powers cannot be page 23 required to accept and abide by the decision, unless it be established that the protocols are to be read and construed as part of the Treaty, and that the condition which the Chief Justice declares to be "so manifestly and mandatorily stated," is really contained therein. Failure to establish either of these points would be fatal to the decision, and each appears so difficult that failure seems inevitable.

Second, Is the decision final as against Samoa generally? It is almost unnecessary to repeat that if the decision is not in accordance with the Treaty it is no more binding on Samoa than it is on the Treaty Powers. It is also clear that if the fundamental principles of the law relating to treaties be applied to the protocols, Samoa cannot be bound by the decision, even if the construction placed upon the protocols by the Chief Justice be correct, for, as already pointed out, Samoa has never signed or assented to the protocols. She has never been asked to sign or assent to them, nor have they at any time been made known to her. But even assuming the decision to be fully in accordance with the Treaty, and the laws and customs of Samoa, it is questionable whether Samoa would be bound by it. The "Signatory Governments" agree to accept and abide by the decision, but, by a strange omission, there is no declaration that Samoa shall accept and abide by it. It would probably be urged that the words are mere surplusage and unnecessary, but if such an express declaration were necessary to bind the Treaty Powers, a similar declaration is, of course, equally necessary to bind Samoa. A careful study of the Treaty will show that the expression "Signatory Governments" is synonymous with "Signatory Powers," "Powers," "three Powers," "three Treaty Powers," etc., and does not include Samoa. Moreover, Samoa did not sign the Treaty; she only assented to it.

Third, Is the decision final as against Mataafa personally? In dealing with this question it is necessary to refer to various pledges, given by Mataafa to the Treaty Powers, and the Samoan Government. Before he was permitted to leave Jaluit and return to Samoa, after five years' exile, he was required to solemnly promise in writing that on returning to Samoa he would at all times be and remain loyal to the Government of Samoa, as established by the Berlin Final Act, and the Government, as heretofore existing under King Malietoa Laupepa, and to the successor of the said Malietoa Laupepa when chosen; that he would not encourage or participate in any hostile action against the Government, nor permit his relatives or adherents to do so; that he would, to the best of his ability, uphold and support the Government, and that he would use his influence to promote the peace of Samoa, and strengthen the loyalty of the people to the page 24 Government. He agreed that a breach of faith on his part in the observance of these pledges should render him liable to renewed banishment or other punishment. On his arrival in Samoa he was required to ratify and confirm these pledges, and he did so. At the commencement of the proceedings before the Chief Justice, the contending parties were called upon to sign an agreement agreeing to abide by the decision of His Honor. The Malietoa party signed it readily, but the Mataafa party declined, and it is not quite clear from the published reports whether they ultimately signed it or not, though it appears that during the trial they verbally undertook to accept the decision.

This agreement may have been designed to remedy the omission in the Treaty referred to above. If not, it is difficult to see of what utility it would be, for such a document could not well clothe the Chief Justice with any powers or jurisdiction which he did not already possess; and if the decision were irregular, or not according to law, either party could reasonably claim that the agreement did not cover it. As to the pledges given at Jaluit, Mataafa would, of course, claim that he is the regularly-appointed successor to Malietoa Laupepa, and that his own Government is the one to which his loyalty is due.

If the decision be regular and good, and the agreement was actually signed by Mataafa, or on his behalf, or the verbal undertaking given by his chiefs duly authorised by him, he would probably be held bound by the decision. But if he did not sign it, or signed it under compulsion, or did not authorise the undertaking, it is difficult to see how he could have been bound by it, were it not for the pledges given by him at Jaluit. In view of these pledges, he would probably be held bound if the decision be really in accordance with the Treaty. Should this beheld to be the case, Mataafa's ill-advised resort to arms would render him liable to be deported once more, or punished in some other way. Had he endeavoured, in a regular and peaceful manner, to obtain a review and reversal of the decision given against him, he could have presented a very strong case. Such a course was open to him, for a precedent has been established for reversing even the "final decisions" of Chief Justices of Samoa. In 1892, Baron Senfft von Pilsach was President of the Municipal Council of Apia. He was also Treasurer to the Samoan Government. The Customs duties had been collected and used as municipal revenue for two years, with the knowledge and acquiescence of the Samoan Government. The worthy Baron came to the conclusion that the Customs duties belonged to the Government. As Treasurer to the Government, he prevailed on the king to demand the moneys from him, and then asked the Chief Justice, page 25 M. Cederkranz, to give a decision on the matter. He did not inform the Municipal Council of his proceedings, nor was the Council notified by the Chief Justice, but His Honour published a decision declaring the Customs duties to belong to the Government, and not to the Council. Thereupon the Council memorialised the Treaty Powers, whose law officers advised that the decision was not in accordance with the Treaty, and was therefore a nullity. The Customs duties were thereupon restored to the Municipal Council. A similar course was open to Mataafa, with perhaps even greater chances of success than the Municipal Council had; but he has resorted to arms, and created a situation which may result in his losing that position which he has been so ardently striving after for many years, and in becoming once more an exile from the land that he loves.

* Since this was written, the reports of the various cases of contempt of Court have come to hand, and I find that the charge against Mr. H. J. Moors, commences thus: "Whereas, on the 12th day of December, 1898, there Vicing to your knowledge, pending in the Supreme Court of Samoa, before the Chief Justice thereof, a contest for the kingship of Samoa, etc." It is clear from this that the trial took place before the Supreme Court.

There have been several charges of contempt of the Supreme Court of Samoa, arising out of the trial of the kingship question, and they form an interesting little side issue. The Supreme Court of Samoa has jurisdiction in cases of all crimes and offences committed by foreigners not subject to consular jurisdiction. The charges of contempt have been brought against German subjects and an American citizen, who are subject to consular jurisdiction, and the first question would be whether the inherent power a superior Court possesses to punish for contempt exists in the Supreme Court of Samoa in cases where the persons who are guilty of contempt are British or German subjects, or American citizens. The second question is whether in there particular cases the conduct and actions of the defendants really constituted contempt of Court, and the third question is whether in these cases contempt of the Supreme Court could have been committed, seeing that the Treaty does not confer upon the Supreme Court any jurisdiction in the matter of disputes concerning the kingship. The first and third questions are rather knotty and difficult, but the second would not be hard to answer. It is not necessary to discuss any of them here, but it will be interesting to learn how the cases will be dealt with, as they have, no doubt, been brought under the notice of the Powers.