Tabangcaro says the laws and legal systems of countries should reflect the society and the people which it governs. Photo: supplied / Autagavaia Tipi Autagavaia
A law expert says Samoa's traditions should not be taken lightly when it comes to criminal offences.
It follows the recent report of a man convicted for manslaughter who delivered an ifoga, a traditional Samoan apology, with the judge saying it was an attempt to reduce his sentencing.
Samoa traditions risk abuse in criminal cases
Senior Judge Justice Vui Clarence Nelson warned that abusing customs to lessen the court's punishment is "unacceptable".
The Judge issued a stern warning - stating that an ifoga was not a "get out of jail card".
The University of Auckland's Beatrice Tabangcaro said while criticisms of cultural practices in Samoa's legal systems are fair, it should not be dismissed.
"It would be remiss to remove the cultural significance and value of the ifoga in criminal sentencing but the question remains how do we prevent those abuses?
"But in addition to that it is up to us as Samoan people to remind ourselves of our cultural value.
"We should not be taking our dignified customary practices lightly, we should not be losing sight of the true essence of our cultural values and practices."
She said greater effort is needed to prevent Samoa's cultural customs from being abused.
Tabangcaro said customs have been used as "mitigating factors" in more serious cases.
"Customary reconciliation as a mitigating factor has also been criticised in the wider Pacific because its considered discriminatory, particularly when its being used for sexual offences and domestic violence offences bceause the overwhelming majority of the offenders in those cases are male," she said.
Pacific Islands legal systems
Tabangcaro said the laws and legal systems of countries should reflect the society and the people which it governs.
She noted that most Pacific Island countries, including Samoa, the laws and legal systems are a reflection of their colonial histories - a a mixture of Western legal traditions and the indigenous customs of the Pacific peoples.
"Now, the Samoan constitution makes several references to custom. The preamble of the constitution, for example, states that Samoa is country that is based on Christian principles, and Samoan custom and tradition.
Beatrice Tabangcora Photo: University of Auckland
"The constitution offers protection for customary rights and this is through the creation of specialised courts for customary land and title issues of and these matters are resolved using Samoan custom.
In addition, custom is recognised as a source of law which means judges in Samoa may take custom into consideration when they are making a decision on a matter, she said.
"So the recognition of an ifoga is one way that the Samoan courts are recognising someone in customs."
But she said the competing aspects of introduced Western legal traditions and indigenous customs is an ongoing struggle, not only in Samoa but in all Pacific countries that share a similar colonial history.
She said there is a general consensus in the Pacific Islands to meaningfully incorporate customs into legal systems it has not always been such smooth sailing.
"It's an ongoing struggle.