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Sefo v Attorney-General [2000] WSSC 18 (12 July 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Declaratory Judgments Act 1988

AND:

IN THE MATTER: of Articles 4 and 73 (2) of the Constitution of the
Independent State of Western Samoa

AND:

IN THE MATTER: of an application by
MAU SEFO, OSASA AUKUSO and others for declaratory orders
concerning the interpretation of Articles 11, 12, 13 and 103 of the
Constitution of the Independent State of Western Samoa
Plaintiffs

AND:

THE ATTORNEY-GENERAL sued in respect of
THE LANDS AND TITLES COURT constituted
pursuant to the provision of Article 103 of the Constitution
of the Independent State of Western Samoa and the
provisions of the Land & Titles Act 1981
First Defendant

AND:

THE ALII & FAIPULE OF SAIPIPI in Savaii
Second Defendant

Counsel: Ms R. Drake for the Plaintiff
Mr G. Latu for the first Defendant
Mr S. Toailoa for the second Defendant

Dates of Hearing: 21 September 1999

Date of Ruling: 12 July 2000

REASONS FOR A DECISION OF WILSON J.

THE NATURE OF THE APPLICATION

This is an application by the plaintiffs seeking declaratory orders concerning the interpretation of constitutional issues arising as a result of the decision of the Alii & Faipule of Saipipi in Savaii to limit the number of churches in their village and to prohibit the plaintiffs from conducting bible classes or church services at Saipipi and, therefore, not to permit religious worship, instruction and/or belief of a certain kind, and as a result of subsequent orders of the Lands and Titles Court purporting to uphold the position of the Alii & Faipule.

THE RELEVANT CONSTITUTIONAL PROVISIONS

Article 4 of the Constitution of the Independent State of Samoa (which is to be found in Part 11 - Fundamental Rights) provides:

"4. Remedies for enforcement of rights - (1) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.

(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part."

One of the fundamental rights conferred and preserved by Article 11 of the Constitution is known as the right to freedom of religion. Article 11 provides:

"11. Freedom of religion - (1) Every person has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in a community with others, and, in public or private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

(2) Nothing in clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that clause in the interests of national security or of public order, health or morals, or for protecting the rights and freedom of others, including their rights and freedom to observe and practice their religion without the unsolicited interference of members of other religions.

Other such fundamental rights conferred and preserved by Articles 12 and 13 of the Constitution are rights concerning religious instruction and rights regarding freedom of speech, assembly, association, movement and residence. Article 12 provides:

"12. Rights concerning religious instruction - (1) No person attending any educational institution shall be required to receive religious instruction or take part in any religious ceremony or attend religious worship, if that instruction, ceremony or worship relates to a religion other than his own.

(2) Every religious community or denomination shall have the right to establish and maintain educational institutions of its own choice and to provide therein religious instruction for pupils of that community or denomination.

(3) Nothing in clause (2) shall prevent the State from making any law requiring the inspection of educational institutions and the maintenance therein of standards in keeping with the general educational level in Western Samoa."

Article 13 provides:

"13. Rights regarding freedom of speech, assembly, association, movement and residence - (1) All citizens of Western Samoa shall have the right:

(a) To freedom of speech and expression;

(b) To assemble peaceably and without arms;

(c) To form associations or unions; and

(d) To move freely throughout Western Samoa and to reside in any part thereof.

(2) Nothing in subclause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that subclause in the interests of national security, friendly relations with other States, or public order or morals, for protecting the privileges of the Legislative Assembly, for preventing the disclosure of information received in confidence, or for preventing contempt of Court, defamation or incitement to any offence.

(3) Nothing in subclauses (b) or (c) of clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of either or both of the rights conferred under the provisions of those subclauses in the interests of national security or public order, health or morals.

(4) Nothing in subclause (d) of clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that subclause in the interests of national security, the economic well-being of Western Samoa, or public order, health or morals, for detaining persons of unsound mind, for preventing any offence, for the arrest and trial of persons charged with offences, or for punishing offenders.

Articles 73 deals with the jurisdiction of the Supreme Court.

Article 73 (2) provides:

"73. Jurisdiction of the Supreme Court (1) The Supreme Court shall have such original, appellate and revisional jurisdiction as may be provided by Act.

(2) Without prejudice to any appellate or revisional jurisdiction of the Supreme Court, where in any proceedings before another Court (except the Court of Appeal) a question arises as to the interpretation or effect of any provision of this Constitution, the Supreme Court may, on the application of any party to the proceedings, determine that question and either dispose of the case or remit it to that other Court to be disposed of in accordance with the determination.

(3) The Head of State, acting on the advice of the Prime Minister, may refer to the Supreme Court for its opinion any question as to the interpretation or effect of any provision of this Constitution which has arisen or appears likely to arise, and the Court shall pronounce its opinion on any question so referred to it."

Article 103 provides for the setting up of a Land and Titles Court in relation to Matai titles and customary land. Article 103 provides:

"103. Land and Titles Court - There shall be a Land and Titles Court with such composition and with such jurisdiction in relation to Matai titles and customary land as may be provided by Act."

RELEVANT STATUTORY PROVISIONS

Section 4 of the Declaratory Judgments Act 1988 provides:

"4. Declaratory orders by motion - (1) Where any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, or any regulation made by the Head of State, acting on the advice of Cabinet, under statutory authority, or any bylaw, or any deed, will, or document or instrument of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or

(2) Where any person claims to have acquired any right under any such statute, regulation, bylaw, deed, will, document or instrument of title, agreement, memorandum, articles or instrument, or to be in any other manner interested in the construction or validity thereof, such person may apply to the Supreme Court by motion for a declaratory order determining any question as to the construction or validity of such statute, regulation, bylaw, deed, will, document or instrument of title, agreement, memorandum, articles, or instrument, or of any part thereof.

Section 11 of the Declaratory Judgments Act provides:

"11. Jurisdiction discretionary - The jurisdiction hereby conferred upon the Supreme Court to give or make a declaratory judgment or order shall be discretionary, and the said Court may, on any grounds which it deems sufficient, refuse to give or make any such judgment or order."

THE FORM OF THE PLAINTIFFS’ APPLICATION

The plaintiffs have applied to the Supreme Court by way of originating summons, which, in my judgment, is an appropriate proceeding [see Article 4(1) and the Supreme Court (Civil Procedure) Rules 1980] to enforce the rights conferred under Articles 11, 12, and 13. It is for me to determine whether the orders (or any of them) sought by the plaintiffs are necessary and appropriate to secure to the plaintiffs the enjoyment of those rights [see Article 4(2)].

The plaintiffs have included in their originating summons claims for declaratory orders. It is not clear whether such claims are made pursuant to the Declaratory Judgments Act 1988 or in purported compliance with Article 4 in order to enforce the fundamental rights conferred under the Constitution or in order to secure the enjoyment of those rights. As will appear, I am of the opinion that the Declaratory Judgments Act has no application to the Constitution, but Article 4 extends to the Supreme Court adequate powers to enforce the rights conferred and also to secure the enjoyment of fundamental rights.

A PRELIMINARY QUESTION

A preliminary question was raised for my determination by Mr Toailoa, counsel for the second defendant, who submitted that, because there is no power expressly given to the Supreme Court under section 4 of the Declaratory Judgments Act 1988 to make a declaratory order determining any question as to the construction or validity of the Constitution as opposed to a "statute, regulation, bylaw, deed, will, document or instrument of title, agreement, memorandum, article, or instrument, or of any part thereof", this Court has no jurisdiction to make all or any of the declaratory orders sought.

This submission, which no doubt emerged because the plaintiffs referred (superfluously, in my judgment) to "the Declaratory Judgments Act 1988" in the heading of the proceedings in this Court, is misconceived. The jurisdiction of the Supreme Court is not dependent upon the Declaratory Judgments Act or upon any other such statute. The jurisdiction of this Court, if not arising as part of its inherent jurisdiction, is provided or given in Article 4 of the Constitution itself. If a declaratory order is "necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of" Part 11 of the Constitution, then the Supreme Court ipso facto has jurisdiction to make a declaratory order.

It was further submitted that an originating summons coupled with a notice of motion, in the form of those documents dated respectively 20 August 1996 and 13 August 1996, are not "appropriate proceedings to enforce the rights conferred under the provisions of" Part 11 [see Article 4(1)]. As I understood the submission, the only "appropriate" proceedings as set out in the Supreme Court (Civil Procedure) Rules 1980 are actions or motions pursuant to Rules 10, 11 or 12 or motions pursuant to Rules 188, 189, 190, 191 or 196. Whilst an originating summons is not precisely the same as either an action or a motion, they are not hard and fast Rules, and variations in the forms prescribed are contemplated (by Rule 200). The circumstances of this particular case justify, if not require, a variation in the forms prescribed in the Schedule to the Rules so as to permit a proceeding in the form of an originating summons coupled with a notice of motion as distinct from either an action or a motion. If there has been non-compliance with the Rules (and I am not persuaded that there has been), I would, in the interests of justice, order that such ‘non-compliance’ be waived; I would see insufficient reason to set aside, either wholly or in part, the proceedings as irregular or to amend them or otherwise to deal with such ‘non-compliance’ (Rule 202).

In so far as Mr Toailoa’s submission purports to challenge the procedure followed by the plaintiffs in instituting these proceedings, it needs to be observed that opportunities to mount a challenge, which were presented to the plaintiffs when these proceedings were before the Supreme Court on 30 September 1996, 28 October 1996, 24 June 1997, 1 July 1997, 7 July 1997, 3 November 1997 and 17 August 1999, were apparently not availed of, and this preliminary question was not raised until the proceedings ultimately came on for hearing before me on 21 September 1999.

For all these reasons, I reached the conclusion that this Court has jurisdiction to make the declaratory orders sought and there is no procedural defect in the proceedings.

ORDERS SOUGHT BY THE PLAINTIFFS AND THE ISSUES RAISED

The plaintiffs, who claim "the right and desire to freedom of worship in the village of Saipipi, Savaii", seek declaratory orders determining the following questions as to the interpretation of Articles 11, 12, 13 and 103 of the Constitution, viz.-

1. WHETHER Article 103 of the Constitution confers jurisdiction upon the Land and Titles Court to render decisions on matters relating to religious worship, instruction and/or belief.
2. IF the Land and Titles Court has such jurisdiction WHETHER, having regard to the provisions of Articles 11, 12 and 13 of the Constitution, such jurisdiction extends to restricting the freedom of worship or religious instruction or activity upon customary lands in the village of Saipipi.
3. WHETHER, having regard to the provision of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of the village of Saipipi have the power and/or authority to restrict freedom of worship and/or religious instruction or activity upon customary village lands under its authority.
4. WHETHER, having regard to the provisions of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of Saipipi have jurisdiction or authority to prevent or restrict a particular religion or religious instruction within their village.
5. WHETHER, having regard to the provisions of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of Saipipi have jurisdiction to prevent or restrict religious instruction, worship, and/or belief being conducted upon freehold lands within its village.

In her written submissions, Mrs Drake, counsel for the plaintiffs, stated:

"Broadly put, the issues relate to the constitutional right of all persons to freedom of thought, conscience and religion."

The plaintiffs have sought (in paragraphs 1 and 2 of the originating summons) inter alia declaratory orders directed to the question of whether the Land and Titles Court has jurisdiction to render decisions on matters relating to religious worship, instruction and/or belief and whether such jurisdiction (if there is jurisdiction) extends to restricting the freedom of worship or religious instruction or activity upon customary lands in the village of Saipipi. This Court has a restricted jurisdiction to hear and determine questions as to the jurisdiction of the Land and Titles Court. That restricted jurisdiction is confined to the issue of whether Part 11 of the Constitution has been or is likely to be breached (see Alomaina Ulisese and Others v Land and Titles Court and Others unreported decision of the Supreme Court of Samoa dated 4 November 1998]. The Appeals Division of the Land and Titles Court undoubtedly has such jurisdiction also.

My attention was directed to the decision of this Court in Alaelua (Va’alepa Sale’imoa Vaai) v Land and Titles Court and Others, an unreported decision of Lussick ACJ dated 16 July 1992. I regret that I, like Young J in Aloimaina Ulisese’s case supra, am not persuaded by that otherwise persuasive decision in so far as it relates to the so-called ousted jurisdiction of the Supreme Court. In my judgment, section 71 of the Land and Titles Act 1981 does not operate to oust the jurisdiction of the Supreme Court when a decision of the Land and Titles Court is said to be a nullity on account of an infringement of Part 11 of the Constitution (Fundamental Rights); the Supreme Court retains a supervisory jurisdiction in relation to alleged infringements of the Constitution and, to that extent, to review decisions of the Land and Titles Court [see Article 4(2) of the Constitution]. I respectfully agree with the conclusion of Young J in Aloimaina Ulisese’s case supra (at p.15):

"(that) the Supreme Court can review decisions of the Land and Titles Court where it is established that the Land and Titles Court has breached Part 11 of the Constitution (Fundamental Rights)..."

THE FACTS

Although there was no agreed statement of facts placed before this Court as per the direction given by the Honourable the Chief Justice on 3 November 1997, Mrs Drake included in her written submission a statement of the facts extracted from the affidavits sworn and filed on behalf of the plaintiffs, and neither Mr Latu nor Mr Toailoa, counsel for the first and second defendants respectively, disputed the essential details thereof.

I record those facts in this way:

The bible fellowship of which the plaintiffs are members and representatives was established in 1984 by a group of about 20 people. It used to meet every Monday and Tuesday at the home of Su’a Falesui Faatafa, a senior matai of the village of Saipipi and father of the second-named plaintiff. In 1987, with the membership having increased to about 170 people, the fellowship started to hold communion services including prayers and songs of praise.

Initially, the Alii & Faipule of Saipipi did not object to the plaintiffs conducting bible study classes "as they observed it to be something good and useful" (see the decision of the Land and Titles Court dated 14 September 1995 in ALC 5103, 5103 P1).

In 1995 the Alii & Faipule of Saipipi petitioned the Land and Titles Court to validate or invalidate ("confirm or disqualify") their public notice in the issue of Savali dated 26 November 1993 that "three (3) churches are sufficient for the worship of villagers of Saipipi, i.e. the Congregational Christian Church of Samoa, the Mormon Church and the Seventh Day Adventist Church" and "to dissolve or confirm the existence of the bible class or new church being established ... in Saipipi."

In its decision dated 14 September 1995 the Land and Titles Court confirmed the said public notice and "prohibited (the plaintiffs) from holding the bible class or the new church .... at Saipipi." In reaching its decision the Land and Titles Court stated that it relied inter alia upon the opinion of the Alii & Faipule (but not, apparently, upon findings of fact based upon evidence) "that this bible class or church now established has become a source of conflict between parents and their children"; and was of the view "that this new faith and bible class has become a disturbance to the youth of the country as well as the ill-informed ...."; and held that "in this dispute ... some of the children of the village are challenging the dignified rule of the Alii & Faipule."

On 13 March 1996 the President of the Land and Titles Court granted leave to the plaintiffs to appeal to the Appeals Division of the Land and Titles Court against the decision of 14 September 1995. At the same time the President granted leave to the parties to file proceedings in the Supreme Court seeking a decision on the interpretation of Article 11 of the Constitution, pursuant to which leave, it is presumed, the present proceedings were instituted.

An appeal to the Appeals Division was heard and, by its decision dated 3 May 1996, "the appeal application was declined" and the decision of the Land and Titles Court dated 14 September 1995 was "upheld" but with the following somewhat curious additions inter alia:

"(i) If the Alii & Faipule of Saipipi decide at a future date to recommencement of the bible class at Saipipi, nothing shall preclude the rule of the Alii & Faipule to permit this;
(ii) If a new church wishes to enter Saipipi and be established within Saipipi, the consent of the Alii & Faipule of Saipipi must first be obtained;
(iii) This decision does not affect the freedom of any person of Saipipi to worship according to his or her religious beliefs, but they must commute to attend their church elsewhere if their church is not one of those permitted within Saipipi."

I interpolate to observe that, by expressing the decision of the Court in that way, the Court may be seen as having asserted the predominance of decisions of the Alii & Faipule of Saipipi said to be in conformity with the customs and usages of the Samoan people over and above the fundamental rights of the plaintiffs preserved by the Constitution.

On 9 July 1996 the Alii & Faipule of Saipipi again petitioned the Land and Titles Court in terms which included a claim that the plaintiffs be "banished from the lands of the village at Saipipi", action which provides some support for the view under contemplation in the previous paragraph. The plaintiffs had apparently obtained a lease of freehold land in the village of Saipipi and wished to conduct bible classes and worship services in a building built therein, but had not sought and obtained the consent of the Alii & Faipule of Saipipi. Mrs Drake informed me, during her submissions, that this petition was heard and determined by the Land and Titles Court on 19 November 1997 and that the decision was to the effect that the plaintiff be not banished from the village of Saipipi whilst they continue to commute to attend their church in the village of Famalalulu. The plaintiffs have apparently respected the decision of the Appeals Division of the Land and Titles Court pending a decision herein and they have not used the lease except for the purpose of looking after the land.

SOME CONCLUSIONS

With reference to the applications set out in paragraphs 1, 2, 3, 4 and 5 of the originating summons seeking declaratory orders directed to the questions of whether the Alii & Faipule of Saipipi or the Land and Titltes Court have the power and/or authority to restrict freedom of worship and/or religious instruction or activity upon customary village lands under their authority, and whether they have jurisdiction and/or authority to prevent or restrict a particular religion or religious instruction within their village, and whether they have jurisdiction to prevent or restrict religious instruction, worship, and/or belief being conducted upon freehold lands within their village, the answer in each instance is "no". Restrictions of the type imposed by the Alii & Faipule of Saipipi are clearly an infringement of the plaintiffs’ fundamental right conferred and preserved under Article 11(1) of the Constitution. Article 11(2) provides an exception or exclusion.

It was argued that the Alii & Faipule and/or the Land & Titles Court operating under the Land and Titles Act and the Village Fono Act and/or the law of custom "imposes reasonable restrictions on the exercise of" that fundamental right "in the interests of .... public order." There is no substance in this argument. To require (or act so as to have the effect of requiring) the plaintiffs to commute to and from their place of worship is to constitute an "unreasonable" restriction.

This case has raised for the determination by this Court the question of whether a Village Council may limit the number of churches in a village and prohibit or prevent (or refuse permission to) a new church being established. It also has raised for the determination of this Court the subsidiary question of whether, if a new church wishes to be established in a village, the consent of the Village Council must first be obtained.

One only needs to state these questions in this way and the answers become obvious. Such actions, which place a limitation on (or prohibit or prevent or constitute the refusal of permission to) a new church, infringe the right to freedom of religion and, what is implicit in the enjoyment of such a right [and explicit in Article 11(1)], "the freedom, either alone or in a community (or congregation) with others and, in public or private, to manifest and propagate ... religion or belief in worship, teaching, practice and observance."

FREEDOM OF RELIGION

In the post-Independence Supreme Court of Western Samoa, as this country was then still called, St. John C.J. commented on the provisions of Article 11 and its effect on village affairs in Tuivaitii (Tariu) v Sila (Faamalaga) and Others (1980-1993) WSLR 17. The Chief Justice said (at p.17):

"The freedom expressed in Article 11 is the freedom not to have any religion at all, the freedom to practice a religion in such manner as the individual thinks fit and the freedom to change both his religion and his practices in relation to it. Practice of religion includes every manifestation of religious life. It includes wearing of insignia, mode of dress, and every activity generated by religious observance such as choir practice, contributions towards church projects or contributions towards any project which is connected with the practice of any religion or observance of religious rights. Since independence, the village council has no power to enforce attendance at church or choir practice, or to compel contribution towards any church project and any punishment of any member of the village for failing to do any of these things is prohibited by the Constitution."

Whilst His Honour the former Chief Justice did not deal specifically with the converse situation, it is implicit in what was said by him that actions or decisions, which limit the number of churches in a village or which prohibit or prevent (or which amount to a withholding of permission or consent to) a new church being established in a particular place, infringe that freedom, because they impinge upon the freedom to engage in the very "activity (that is) generated by religious observance" and because they impinge upon the freedom to engage in practices and projects "connected with the practice of ... religion or observance of religious rights."

The Supreme Court of Canada has dealt persuasively with the notion of freedom of religion in R. v Big M Drug Mart Ltd. (1985) 18 DLR (4th) 321. In a powerful judgment written by Dickson J. (later to become Chief Justice of Canada), with whose decision Beetz, McIntyre, Chouinard and Lamer JJ concurred and with whose conclusion as to the infringement upon the right to freedom of religion Wilson J agreed, it was affirmed (at p.353-354).

Freedom of religion:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s.15 of the Charter. Freedom must surely be founded on respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination. But the concept means more than that.

Freedom can primarily be characterised by the absence of coercion or constraint. If a person is compelled by the State or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or the State acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of "the tyranny of the majority".

(The emphasis is mine.)

The High Court of Australia also considered the meaning of freedom of religion. It did so in Church of the New Faith v Commissioner of Pay-roll Tax (Victoria) (1982-1983) 154 CLR 120. Mason ACJ and Brennan J. (as he then was) said (at p.130):

"Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint.

(The emphasis is mine.)

Their Honours went on (at p.131) to state:

"The development of the law towards complete religious liberty and religious equality would be subverted and the guarantees in ... the Constitution would lose their character as a bastion of freedom if religion were so defined as to exclude from its ambit minority religions out of the main streams of religious thought. Though religious freedom and religious equality are beneficial to all true religions, minority religions - not well-established and accepted - stand in need of especial protection: cf. per Latham C.J. in Jehovah’s Witnesses Inc. (1943) 67 C.L.R., at p.124. It is more accurate to say that protection is required for the adherents of religions, not for the religions themselves. Protection is not accorded to safeguard the tenets of each religion; no such protection can be given by the law and it would be contradictory of the law to protect at once the tenets of different religions which are incompatible with one another. Protection is accorded to preserve the dignity and freedom of each man so that he may adhere to any religion of his choosing or to none. The freedom of religion being equally conferred on all, the variety of religious beliefs which are within the area of legal immunity is not restricted."

And their Honours further said (at p.135):

"Thus religion encompasses conduct, no less than belief. Professor Max Mueller, an early scholar in comparative religion, wrote [Natural Religion (Collected Works I (1899), p. 169) cited by Sharpe, op. cit., p.39]:

"When ... men began to feel constrained to do what they do not like to do, or to abstain from what they would like to do, for the sake of some unknown powers which they have discovered behind the storm or the sky or the sun or the moon, then we are at last on religious ground."

What man feels constrained to do or to abstain from doing because of his faith in the supernatural is prima facie within the area of legal immunity, for his freedom to believe would be impaired by restriction upon conduct in which he engages in giving effect to that belief. The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connection between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

The canons of conduct which are part of a religion reflect that religion’s set of beliefs, and thus a theistic religion typically includes the acceptance of a duty of ritual observance, as well as ethical practice. In Jehovah’s Witnesses Inc. (1943) 67 C.L.R. at p.156, Mc Tiernan J. said that the "word religion extends to faith and worship, to the teaching and propagation of religion, and to the practices and observances of religion". Conduct which consists in worship, teaching, propagation, practices or observances may be held to be religious, however, only if the motivation for engaging in the conduct is religious. That is, if the person who engages in the conduct does so in giving effect to his particular faith in the supernatural."

I do not, with respect, agree with Millhouse J. (now the Chief Justice of Kiribati) that their Honours meant what they said "in a political philosophical sense and not as a matter of law" (see Grace Bible Church Inc. v Reedman (1984) 54 ALR 571 at p.384).

In Church of the New Faith supra Murphy J. observed (at p.150):

"Religious freedom is a fundamental theme of our society ...... Religious discrimination by officials or by courts is unacceptable in a free society ...... In the eyes of the law, religions are equal. There is no religious club with a monopoly of State privileges for its members."

In Saipaia (Olomalu) and Others v Attorney-General and Others (1980-1993) WSLR 26 St. John C.J. said (at p.30):

"If the relevant part of the Constitution is clearly expressed, the Court is bound to give effect to those clear words. The consequences flowing from giving effect to the provision are not the concern of the Court and do not influence the Court in making its decision. If the decision is thought by some to be inconsistent with Samoan custom or culture, that factor is not taken into account except so far as custom has been preserved by the Constitution .... The Constitution speaks; it is obeyed."

APPLYING THE LAW TO THE FACTS

Key aspects of religious freedom that were identified in those authoritative pronouncements would seem to me to be the absence of hindrance or reprisal, the absence of coercion or restraint, and the absence of compulsion or force.

Applying what was said by the Supreme Court of Canada in R v Big M Drug Mart Ltd. supra to the facts here and adopting (and adapting) what Dickson J went on to state (at p.354), the Alii & Faipule of the village of Saipipi, whose decisions were affirmed by the Land and Titles Court, have worked a form of coercion inimical to the spirit of the Constitution and the dignity of non-mainstream Christians. The conduct of the Alii & Faipule has created a climate hostile to, and gives the appearance of discrimination against, Samoan Christians other than those who are adherents to the Congregational Christian Church of Samoa, the Mormon Church and the Seventh Day Adventist Church. In the context of the various Christian denominations approved of or outlawed (as the case may be) by the actions of the Alii & Faipule, recent events provide a subtle and constant reminder to minority denominations within the country of their differences with, and sometimes alienation from, the dominant denominational religious culture. Non- mainstream Christians see themselves as prohibited, for religious and denominational reasons, from carrying out activities which are otherwise lawful, moral and normal. The protection of three Christian denominations and "the concomitant non-protection of others imports disparate impact destructive of the religious freedom of the collectivity" (to use the actual words of Dickson J at p.354).

In the Big M Drug Mart case Wilson J., the distinguished female judge, emphasised (at p.371) that the starting point for any analysis of a civil rights violation is a consideration of the consequences of the discriminatory practices, not simply the motivation. The document which entrenches a fundamental right is "first and foremost an effects-oriented document." Applying Her Honour’s reasoning to the present case, the conduct in question of the Alii & Faipule infringes upon the freedom of religion guaranteed in the Constitution, not because they had that purpose in mind, but because it had that effect.

It seems to me that any action or conduct which is purely religious in purpose and which denies the members of a group the right to practice their religion at a particular village and which requires them to commute to another village has the effect of infringing religious freedom.

It follows that, as long as the conduct of the Alii & Faipule, confirmed by the Land and Titles Court, has such an actual and potential effect, as I conclude that it does here, it does not matter what the purpose behind their conduct was. For this reason it is not necessary for me to analyse the several purposes the Alii & Faipule may be said to have had in mind.

In my judgment, the conduct under review here violates the guarantee of freedom of religion in Article 11 of the Constitution. Moreover, the purpose or objective underlying their conduct does not, in my opinion, represent a "reasonable" limit (on the right to freedom of religion) which can be justified under Article 11(2) of the Constitution.

THE ANALOGY OF BANISHMENT

In opposing the stance taken by the plaintiffs it was argued on behalf of the defendants that there is in existence a law of custom which empowers a Village Council, by way of a "reasonable" restriction on a new church ("in the interests of national security or of public order, health or morals, or for protecting the rights and freedom of others"), to refuse permission for a new church to be established. As I understood the submissions of counsel for the defendants, it was suggested that limiting the number of churches in a village has been an established custom in Samoa, in much the same way as banishment from the village has long been an established custom (see Italia Taamale and Taamale Toelau v The Attorney-General, unreported decision of the Court of Appeal dated 18 August 1995, at page 6 and 18). That decision was relied upon to support their submissions. It was argued that the practice of limiting the number of churches in a village, like banishment, is essentially preventive; it is to maintain peace and harmony and it is to prevent chaos arising in village affairs.

I do not purport to sit, in any formal and direct sense, to review the decisions of the Land and Titles Court or as an appellate Court. However, in so far as I see it as my duty to review, in an indirect sense, only one aspect of the jurisdiction of the Land and Titles Court, it is worth observing that the Appeals Division of the Land and Titles Court, in publishing its "grounds (or reasons) for the decision of 3 May 1966", saw some connection between, on the one hand, the orders made and upheld by it to refuse permission to a new church being established (and to require the plaintiffs to "commute to attend their church elsewhere") and, on the other hand, the power of the Alii & Faipule of a village "to banish a person from the village due to misconduct ... in accordance with the culture" [see paragraph 2(i) of the decision of 3 May 1996].

In so far as the dispute between the parties may be seen as a power struggle between the Alii & Faipule seeking to apply the law within the village setting in accordance with custom and those members of a relatively new Christian church who seek to rely upon the provisions of the Constitution itself, it must be emphasised that the Constitution is the supreme law of Samoa [Article 2(1)], and any existing law which is inconsistent with the Constitution is, to the extent of the inconsistency, void [Article 2(2)]. The activities and decisions of the Alii & Faipule of a village must always be undertaken and made subject to (and in the light of) the Constitution. Even if it is feared that some unrest or disharmony may result, consent to the establishment of a new church cannot be withheld or insisted upon if, to do so, infringes a fundamental right guaranteed under the Constitution.

But the concept of limiting the number of churches in a village is nothing like the custom and usage of banishment. Banishment is a recognised "measure of social control" and a "measure of law enforcement" (see Italia’s case at pages 22 and 23). It is generally one of two kinds, either ostracism or expulsion. The Land and Titles Court deals exclusively with all matters relating to Samoan names and titles and in all claims and disputes between Samoans relating to customary land held in accordance with usage and custom. There is no warrant for applying the principles enunciated in Italia’s case (a case involving banishment) to the practice of limiting the number of churches in a village. That practice has not, like banishment, "acquired the force of law in .... Samoa" [Article 111(1)].

In my judgment, limiting the number of churches in a village is neither a restriction imposed by existing law (a customary law) nor does it impose "reasonable" restrictions on the exercise of the right of freedom of religion affirmed by Article 11(2). It is a form of religious intolerance or discrimination on the ground of religion. It might well be seen, in its ultimate application, as a form of religious persecution.

There is no "existing law", whether of custom or otherwise, which imposes any restriction, let alone "reasonable" restrictions, on the exercise of the right to freedom of religion, whether "in the interests of national security or of public order, health or morals, or for protecting the rights and freedom of others" or otherwise [Article 11(2)]. Except to the extent that defence counsel used the analogy of the law of banishment, neither defence counsel referred me to any such "existing law". For reasons already given, the situation of banishment is not analogous to the situation arising here.

ORDERS

Being of the opinion that orders are necessary and appropriate to secure to the plaintiffs the enjoyment of their rights; I make declaratory orders as follows:-

1. That, by virtue of Article 103 of the Constitution and the provisions of the Land and Titles Act 1981 and the Village Fono Act 1990, jurisdiction (limited by Article 11) is conferred on the Land and Titles Court to render decisions on matters relating to religious worship, instruction and/or belief provided that such decisions "relate to Samoan names and titles" or "claims and disputes between Samoans relating to customary land and the right of succession to property held in accordance with the customs and usages of the Samoan race" and, in the case of appeals under the Village Fono Act, provided that such decisions relate to "the maintenance of hygiene in the village" or "the development and use of village land for the economic betterment of the village" and powers incidental thereto, BUT provided that Article 11 of the Constitution is not infringed.
2. That, by virtue of Articles 11, 12 and 13 of the Constitution, such jurisdiction does not extend to limiting the number of churches in the village of Saipipi or prohibiting the plaintiffs from conducting bible classes or church services at Saipipi or otherwise restricting the freedom of religious worship or instruction or activity upon customary land in the village of Saipipi.

3. That, by virtue of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of the village of Saipipi have no power or authority to limit the number of churches in the village of Saipipi or to prohibit the plaintiffs from conducting bible classes or church services at Saipipi (whether on freehold or customary land) or otherwise restricting freedom of religious worship or instruction or activity upon customary land under its authority.

4. That, by virtue of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of the village of Saipipi have no jurisdiction or authority to prevent or restrict a particular religion or religious instruction within the village of Saipipi.
5. That, by virtue of Articles 11, 12 and 13 of the Constitution, the Alii & Faipule of Saipipi have no jurisdiction to prevent or restrict religious instruction and/or worship and/or activity being conducted upon freehold land within the village of Saipipi.

I will hear counsel as to the question of costs and as to whether I should give a certificate under Article 80 of the Constitution.

JUSTICE WILSON

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MAU SEFO, OSASA AUKUSO and OTHERS

V

THE ATTORNEY-GENERAL and
THE ALII & FAIPULE OF SAIPIPI

DECISION ON THE QUESTIONS OF COSTS

I allow the plaintiff MAU SEFO, OSASA AUKUSO and OTHERS the following costs:

A. If the costs were fixed according to the scale of costs set out in the Second Schedule to the Supreme Court (Fees and Costs) Rules 1971 as amended, they would be as follows:

1. (a) Issue and service of summons, and filing of statement

of claim = $ 30.00

8. Preparing for trial - if certified for having regard to the importance
of the case and the time reasonably spent in preparation, not
exceeding three times $90.00 = $270.00

9. Trial or hearing of an action, up to $2,000.00 - (this sum
is debatable) = $2,000.00

11. Second date of hearing - if certified for 3 day trial
- 2 times - $60.00 - 21 and 22 September 1999
and 12 July 2000 = $ 120.00

29. Disbursements for fees of Court. allowances, travelling
expenses, and agency charges = $ 2,444.50

30. Costs to be fixed under the head for an "amount exceeding
$5,000.00" = -

31. If certified for the whole of the costs of the action
(i.e. costs not limited to $1,000.00) = -
TOTAL = $ 4,864.50

B. Pursuant to Rule 5, there is a discretion in the Court to fix a sum as the costs of the application, "in full of all costs", notwithstanding that such sum is greater or smaller than the sum set out in the said scale. The court has a discretion, in the case of there being doubt as to what costs should be allowed pursuant to the said scale in this matter arising in the court of these proceedings, to have regard to the said scale and then fix such sum for costs to be paid by the defendants as it thinks fit. The court also has regard to the written Submissions for Costs of the Plaintiffs, lodged pursuant to the leave granted on 12 July 2000.

C. Exercising those discretions, I fix the costs of the plaintiffs to be paid by the defendants at $12,749.50.

3 August 2000

JUSTICE WILSON