Prime Minister Tuilaepa Dr. Sa’ilele Malielegaoi has blamed “small lawyers” who “walk everywhere” and make a lot of “noises for fooling” the former Head of State, His Highness Tui Atua Tupua Tamasese Efi.
The Prime Minister refused to name the lawyers except to say these “small lawyers” don’t understand the Constitution. He added that they had been based overseas all their lives and have only just come to Samoa “yesterday.”
Tuilaepa made the comment during his weekly media programme where he responded to Tui Atua’s claims that there is “ambiguity” in Article 102 of the Constitution in relation to customary land ownership.
The Article 102 in question reads:
No alienation of customary land –
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:
Provided that an Act of Parliament may authorise –
(a) The granting of a lease or licence of any customary land or of any interest therein;
(b) The taking of any customary land or any interest therein for public purposes.
Said Tui Atua: “In layman’s terms, the Article says that it is illegal to alienate customary lands unless an Act of Parliament allows for one, a lease or licence to be granted over customary land or two, customary land is to be taken for public purposes.
“I do not have any problems with the taking of customary land for public purposes, assuming of course that such public purposes are indeed valid public purposes.
“What I have a problem with is the ambiguity that arises as a result of reading the sub-clause that states that an Act of Parliament may authorise “the granting of a lease or licence of any customary land or of any interest therein” alongside the wording of the main text of the Article, which says no alienation of customary land “…whether by way of sale, mortgage or otherwise howsoever.”
But Tuilaepa rejected Tui Atua’s claims.
“The former Head of State has been fooled by these wannabe small lawyers,” Tuilaepa said.
“Since the beginning and up until now, there is no part of Section 102 of the Constitution that should be amended or appear unclear. There is no ambiguity whatsoever. It is so clear. The Attorney General told me that it crystal clear. If I knew there was an ambiguity, I would’ve stood up long time ago to make it clear.”
According to the Prime Minister, this is why it is written into the Constitution that the Government would only listen to the legal opinion of the Attorney General.
“That’s why we appointed a laui’a (big fish) of the law to become the Attorney General and under his watch are fifty of the sharpest minds in law. So they all work to ensure any legislation that comes before them does not conflict with the Constitution.”
Asked about fears of customary lands being alienated, Tuilaepa reassured that there is nothing to be alarmed about.
“It’s a simple matter. There is nothing wrong with the law.
“We heard from the former Head of State that he sought a legal opinion from the Attorney General at the time and he was told there is nothing that would affect customary lands. The advice from the Attorney General then was correct.
“So I don’t know why they keep bringing this up. The Attorney General’s advice (to the former Head of State) was correct. Besides, in relation to this law, it was driven by a committee headed by the late Reverend Oka Fauolo.
“So perhaps his (Tui Atua) mistake is thinking that he signed the law, pressured by the advice from the Attorney General.”
That’s when Tuilaepa attacked the “small lawyers”.
“Maybe he thought he had gotten it wrong because of the pressure from these little ones who protested. So the old man thought he’d made a mistake.
“So my view is that to cover what he thinks was his mistake he’s now suddenly mentioned section 102 of the Constitution when that is clearly not the issue. It is very clear according to section 102 of the Constitution that customary lands cannot be sold or mortgaged. That’s prohibited.
“Since the time the Constitution was adopted until now, no customary land has ever been sold. That tells us the Constitution remains intact.”
Tuilaepa added all laws in Samoa are designed with the Constitution in mind.
“There is no law in Samoa that can be used unless it is in accordance with the Constitution. The Constitution is the supreme law of the land. If there is any piece of legislation that is in conflict with the Constitution, it automatically becomes void.”
During his public address on customary lands, Tui Atua called on Samoa’s best legal minds to come together to make Article 102 “unambiguous”.
“These minds, however, must be able to locate the principle of alofa in their custom law and statutory law assessments and have it sing in harmony alongside their assessments of pule, and of legal certainty and transparency,” Tui Atua said.
But Tuilaepa said this was unnecessary.
“The Constitution doesn’t allow anyone else to amend anything, only the Attorney General has the right to amend it if it’s necessary,” Tuilaepa responded.
“It is also very clear that customary lands cannot be mortgaged. Keep in mind that customary land is a separate issue from the lease on customary lands.
“This is such a difficult thing to explain to the lawyers who protested. It seems they had been overseas; they only came to Samoa yesterday so they don’t understand.
“Then they go and walk all over the place and make a lot of noises. They even make a lot of noises on the newspapers. I’m surprised they love seeing their photos on the newspaper because by doing so, they themselves are telling the world that ‘we are the lot who don’t understand’. Their lack of understanding has become very loud.
“What saddens me the most is that after they’ve done this, now they are going to the villages and asking them to oppose the Government in relation to this law.
“This is why I said they are trouble makers; they haven’t stopped here, now they are going to the villages asking them to protest against the Government. See what they’ve done.”
Tuilaepa added Samoa stands to benefit a great deal from the lease of customary land.
He praised the village of Sasina, saying they are a very clever village because they are getting money from their land. He added there are people who are critical about the Government’s customary land policy when they are reaping the rewards from these leases.
“This is why what Jesus said is very important,” Tuilaepa said. “He said don’t judge or you too will be judged. So before you criticize, firstly you need to look at yourself and see what you’re doing.
“Now he’s said where the love is? He said there is no more love in all the matai Sa’o. It means that all the matai Sa’o in Samoa don’t have any love any more.
“Love is an action word. We have a job to do. You have to get up and do some work to show that you love. If someone is need of a job, you work to make sure they have a job.”