Senate legislation proposes changes to Court’s role in matai claims

Pago Pago, AMERICAN SAMOA — In a vote of 12-yaa and one-nay, the Senate has approved in third and final reading last Thursday legislation sponsored by Sen. Togiola T.A. Tulafono, that further clarifies the process of disputed claims, hearings and determination of matai title cases and clarifies the jurisdiction of the court. 

Prior to the final decision, the Senate Samoan Affairs Committee held a hearing Wednesday morning, where Togiola — an attorney by profession — explained the reasons behind the legislation, which the former governor says expands the court’s jurisdiction in making decisions on chiefly titles.

He points out that there are many traditional matai titles, vacant for 20 to 30 years, as they are held up due to current restrictive provisions of the law with which the court has to follow and abide.

Local statute states in part, that in the trial of title cases, the High Court “shall” be guided by four considerations, in the “priority listed”:

•           the best hereditary right, as to which the male and female descendants are equal in families where this has been customary: otherwise the male descendant prevails over the female:

•           the wish of the majority or plurality of those clans of the family as customary in that family;

•           the forcefulness, character and personality of the persons under consideration for the title, and their knowledge of Samoan customs;

•           and the value of the holder of the title to the family, village, and country.

The Senate bill deletes the word “shall” as well as the words “priority listed”, with the new amendment, saying that the High Court “may” be guided by the following considerations “but in no specific order of priorities as follows” — with the other criteria.

During the hearing, Togiola explained that the word “shall” makes it a mandate to follow, but using the word “may”, expands the court’s jurisdiction on making a decision, based on the four criterion, which are not made as “priority listed” — under the proposed amendment.

Other senators supported the proposed amendment but Sen. Satele Al’itai Lili’o — a retired High Court Associate Judge disagrees and voiced concerns over the removal of “shall” saying current law is perfect and decisions by the court on matai titles has been keeping harmony in families. It was senator Satele Lili’o who cast the sole, no-vote on the bill.

Togiola reiterated that the proposed amendments expand jurisdiction of the court in making its decision, which “may” be guided with the four criteria, instead of using the word “shall” — which is considered a must. Additionally, the court will need — in their written decision — to provide findings of facts on how the decision was reached.

Another provision of current statute states that the court shall issue a written decision that must contain finding of facts and conclusions of law on each issue of the four criterion.

The bill adds an amendment to this provision by saying that the court shall issue a written decision that must contain finding of facts and conclusions of law — “which may follow the the criterion listed herein or some other basis that justifies the decision rendered selecting a candidate to hold such a matai title...”

Another amendment states that the court has the jurisdiction to adjudicate the claims for a matai title — whether or not the court chooses to follow the four criterion.

The bill now goes to the House, where it’s expected to be introduced on Thursday when lawmakers return following a short three-session-day recess.