Samoa Law Reform And Legal Pluralism: Critical Challenges to Achieving Legal Recognition of Fa'atama and SOGIEC

• Author: Bridget Fa'amatuainu
• Position: Lecturer, AUT Law School
• Pages: 97-122

Samoa Law Reform a nd Legal Pluralism: Cr itical Challenges

to Achieving Lega l Recognition of Fa’atama and SOGIEC

97

SAMOA LAW REFORM AND LEGAL

PLURALISM: CRITICAL CHALLENGES TO

ACHIEVING LEGAL RECOGNITION OF

FA’ATAMA AND SOGIEC

*



In this articl e, I draw attention to Sa moa’s women’s gender quota case s which brought

into question the legal and constitutional language adopted in laws, constitutional

interpretation, human rights, judicial independence of the courts and rule of law in

conflict with Samoan customs. What the constitutional cases demonstrate is a more

modern egalitarian Samoan legal and political system which highlights how this modern

conception of j ustice undermine s the Samoan political a nd legal values that trad itionally

begin with fostering and enhancing fundamental interpersonal relations first, because

it is there that we observe the modern state or community’s most fundamental values

with respect to the po litico-legal realm. is a rticle argues for a critica l examination of

these ongoing challenges and tensions first before considering whether the best pathway

for recognition of the status of fa'atama and diverse sexual orientation, gender identity

expression and se x characteristics (SOGIEC) rep resentation is achiev able in Samoa.

I. Introduction

In Samoa, the indigenous Samoans operate a bijura l system of law where both

customary law and state law co-exist.1 Samoa has a population of 200,010 people,

with English and Samoan as the ocial languages. The fa’amatai (Chiefly system)

acts as the main source of Samoa’s customary law and is enforced in varying

1 For this a rticle, a ny reference t o “custom ary l aw” is used i ntercha ngeabl y with Sa moa “cust oms”,

“customa ry legal sys tem” and “customa ry practices”; a ny reference to “gender equ ity” is used

intercha ngeably wit h Samoa all Le sbian, Gay, Bisexua l, Transge nder, Queer, Intersex, A sexual

and divers e Sexual O rientation , Gender Identi ty Expres sion and Sex Ch aracter istics (“S OGIEC”)

and “gender di versity”; and l astly, any refer ence to “bijura l” is used int erchangea bly with “lega l

pluralism”.

* Lecturer, AU T Law School. Than ks to Professor A llan Beever for com ments on previous d rafts

of this a rticle. The usu al discla imer applies.

98[Vol 30, 2023]

degrees acro ss Samoa’s 220 tradition al village s (nu’u fa’avae) governed according to

each vil lage council (fono) and cust omary practic es.2

This article explores the interface between Samoa law reform and legal

plural ism, with a n emphasis on lega l recognit ion of fa’atama (“in the ma nner of men”

is the literal translation of the Samoan word fa’atama: “li ke” (fa’a), a “man” (tama))

and SOGIEC representation in the law. As evident in the experience from legally

pluralistic Pacific nations outside Samoa, law reform points to the eectiveness of

accommodat ing lega l plural ism to enable a s ustai nable pathwa y, where both tensions

in custom ary law and state law are reconci led, and customs are i ncorporated and

recogni sed in state law.

Because I express opinions based on lived experience and observations from

recent empirical research based in Samoa, it is important that I refer to my

“positionality”. The author is a law academic who lived and worked in Samoa as a

law reformer, commerci al law academic, law yer and gender consulta nt.

In terms of structure: Part II provides an explanation as to why I have chosen

the principa l theories, concepts, customs and processes under review followed by

a critique of these theories; Part III examines the case study of Samoa’s women’s

gender quota cases. It responds to t he analysis from Pa rt II and outlines pot ential

challenges to address; and, finally, in Part IV, I respond to lessons from Part III

in addressing what challenges lie ahead with respect to fa’atama and SOGIEC

representat ion in Samoa custom s and laws.





In this part, I present a critique of some of the relevant theories, concepts,

customs a nd practices at the int ersection between g ender and law.

 

It is well known in the literature that unequal power relations exist between

men and women. This is often embedded in terms such as “patriarchy” and

“gender inequality”.3 Even when taking cultural and institutional variation into

consideration , patriarcha l structures ex ist in social sy stems charact erised by male

2 Jennifer C orrin “Land, L aw and the Fa’a Samoa” [2008] L AWASIA Journal 4 6 at 49–50; and see

generall y Richard P Gi lson Samoa 1830 to 1 900: e Politic s of a Multicultura l Community (Ox ford

Universit y Press, Melbou rne, 1970) at 29.

3 Pamela Pa xton and Melan ie Hughes Women, Politi cs and Power (Sage Publ ications, Cali fornia,

2007).