Constitution is the supreme law of the land

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Dear Editor,

 

Re: Claims rubbished 

Here in lies the problem with the Alienation of Customary Land Amendment Bill 2017. This new bill is furthering the objective of L.T.R.A. 2008 by requiring under Clause 7 (ii) “A mortgage of the lease over customary land must be registered under the Land Titles Registration Act 2008”;

This requirement is fatal to this amendment. Why? Because it is using a law, LTRA 2008 that was passed without a proper referendum vote as required by the Constitution under Section 109.

Section 102 of the constitution clearly states: It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of SALE, MORTGAGE or OTHERWISE howsoever, nor shall customary land or ANY INTEREST therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency:

Under the Samoa constitution it clearly states in section 109 that the Parliament can amend any section of the Constitution “PROVIDED THAT no bill amending, repealing or ADDING to the provisions of Article 102 or the provisions of this proviso shall be submitted to the Head of State for assent until it has been submitted to a poll of the electors on the rolls for the territorial constituencies established under the provisions of Article 44.” 

What we have here under this new bill of Fiame’s is an attempt to ADD to the provisions of Section 102 by requiring that mortgages using Customary Lands as collateral must be registered under L.T.R.A. 2008. 

The problem here is L.T.R.A. 2008 was not legal in the first place under the Constitution. L.T.R.A. 2008 violates Section 102 on its face, as a blatant attempt to separate the owners of Samoan customary lands from their ownership rights. Any individual who wakes up one day with ownership rights to customary lands and then loses them arbitrarily because someone registered a document that excluded them from the named owners...has been alienated from his or her rights to their customary land a right protected and guaranteed by the Samoan Constitution. 

That is what the Torrens System does. It was designed and used in Australia, New Zealand, Hawaii and other lands to separate natives from their lands. And it was very effective. Now we have this poisonous snake in Samoa. It is counter to all that our forefathers fought for and intended when they created the Samoa Constitution.

One of the most important beliefs of the framers of Samoa’s constitution was to leave Samoa’s Customary lands free from the Western culture’s land grabbing tendencies. This is why the architects of our Constitution had this clause 102 inserted into the constitution. 

This was the will of our forefathers and we salute their vigilance and foresight to see into the future and understand the nature of the West and their behaviors. What our forefathers knew was losing our customary lands would enslave the Samoan people.

As a result our forefathers not only put section 102 into the constitution but provided further protection against any amendment of the constitution that would damage this protection. Thus they had Section 109 placed in there to ensure no one party parliament would tamper with this protection, as it seems we now have. 

Under Section 109 of the Constitution Parliament could amend the constitution at any time with a majority of parliamentarian votes: “Provided that no bill amending, repealing or adding to the provisions of Article 102 or the provisions of this proviso shall be submitted to the Head of State for assent until it has been submitted to a poll of the electors on the rolls for the territorial constituencies established under the provisions of Article 44 and unless it has been supported by two-thirds of the valid votes cast in such a poll.”

It is clear from reading this section the intent of the framers of the constitution was to protect Section 102 from being changed frivolously by a one party parliament as we had in 2008 and as we have now. The framers of the constitution made it very clear that any amendment that is proposed which will affect alienation of customary land must first be voted on by the “electors on the rolls for the territorial constituencies” and in that vote it is required that “two thirds of the valid votes cast” supports any such amendment before it can be sent for the Head of State’s signature into law.

We have already established that L.T.R.A. 2008 does in deed effect alienation of customary land of 99% of those family members who own the land pursuant to the nature of Customary land ownership. By virtue of this natural result of L.T.R.A 2008, Section 109 of the constitution should have been implemented before this bill for LTRA 2008 was signed by the Head of State into law. 

But that never happened. The law of L.T.R.A 2008 was passed and signed into law without a referendum vote. It was therefore under Section 109 of the Samoa Constitution an illegal and unconstitutional law. 

It therefore follows that by virtue of this LTRA 2008 being unconstitutional the poisonous fruits of this invalid law affect the Alienation of Customary Land Amendment Bill 2017 and render it illegal and unconstitutional also.

Fiame’s rant is premature at best. 

The Constitution of Samoa is the supreme law of the land. No person or law or group of individuals are above authority of the constitution. 

Once anyone, including Parliament and especially Parliament, do any act that is contrary to the constitution then that act or law is UNCONSTITUTIONAL!!!! Any law that is unconstitutional is not worth the paper it is written on. LTRA 2008 is one of those laws and this Alienation of Customary Land Amendment Bill 2017 is therefore also unconstitutional.

 

Albert Ainu’u

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