“Today I make a plea that as a nation whose fa’asinomaga (identity) and tofi (inheritance) are inextricably connected to our customary lands that we stand together and demand that this ambiguity be properly attended to, and that following this the Article be accordingly amended” – His Highness Tui Atua Tupua Tamasese Efi
The former Head of State, His Highness Tui Atua Tupua Tamasese Efi, was assured by the Office of the Attorney General that the Land Titles Registration Bill (L.T.R.) 2008 would not alienate customary lands.
His Highness Tui Atua said he had asked for clarity on the matter when he was given the L.T.R. Bill 2008 to sign into law.
“In 2008 as Head of State, I was assured by the Attorney General that the provisions of the L.T.R. Bill would not impact in any way on the customary land rights of suli,” Tui Atua said in his address titled “O fea le alofa? Where is love?”.
“The Attorney General and his or her office is tasked with a sacred duty to provide the Head of State with the best legal advice possible.”
With this assurance, Tui Atua signed the bill.
Yesterday, the former Head of State shared a different view.
During a media event at Tuaefu where he addressed the issues in relation to fears about the alienation of customary lands, Tui Atua said there is “ambiguity” in Article 102 of the Constitution that needs to be dealt with.
“Today we have the responsibility of admitting that there is a problem with Article 102; that the ambiguity within is serious enough to warrant the attention of our best minds in order to make Article 102 unambiguous,” he said.
“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.”
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 1. a lease or licence to be granted over customary land, or 2. 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.”
He added that the debate about Samoan customary land and land laws “is the most dangerous issue facing us since our fight for the return of our Independence".
“The land law issue we are embroiled in now has the potential to strip us of our soul. There is a divisiveness here that we must avoid at all costs,” he said.
“But to avoid this we must re-locate, re-inscribe and re-inspirit in the heart and mind of our laws the wisdom of our tu ma aganuu Samoa and our tofi pa’ia tuufaasolo. This we cannot do without finding and reviving the principle of alofa in law.
“We have faced many challenges as a nation since regaining Independence but this is the most serious. To overcome this challenge, we must first recognise that the challenge now comes not from outside but from within.
“We must recognise that, like Joshua and the Israelites, the only way to cross the river as a nation with our souls intact is to find understanding in the wisdom of our forebears and their trust in God.”
At the beginning of his address yesterday, Tui Atua said Samoa is now at a significant cross-road in her governing history.
“Not just in terms of trying to figure out how best to protect our customary land from foreign or alien interests, but also how to protect ourselves from ourselves.
“Since Samoa regained Independence we have taken our Fa'asamoa for granted. We as leaders have assumed that so long as we have governing control over ourselves, Samoa mo Samoa, we will never lose it. But the loss of culture and core values can happen slowly, subtly and stealthily, and on our own watch.
“Today it has become clear that we can no longer escape the reality that as leaders we must take a public stand against allowing the ambiguity of Article 102 of our Constitution to persist.
“We must admit that in light of the accumulating evidence (some of which I will speak to shortly) this ambiguity has been exploited in ways that now seriously undermines the integrity and purpose of Article 102, i.e. to protect customary lands from alienation.
“Today I make a plea that as a nation whose faasinomaga (identity) and tofi (inheritance) are inextricably connected to our customary lands that we stand together and demand that this ambiguity be properly attended to, and that following this the Article be accordingly amended. This is our right; it is our right as suli (heirs) of all customary lands in Samoa, whether you live in Samoa or not.”
The address will be published in full in tomorrow’s Sunday Samoan.
SUMMARY OF TUI ATUA’S ADDRESS FROM HIS OFFICE
Tui Atua’s address was prompted by an open letter by Faapale Taumua published in the Samoa Observer on 10th of April 2018. In reference to our contemporary laws and recent legislative changes, His Highness poised the question: “O fea le alofa?” / “Where is love?”
He noted that “the preamble of our Constitution talks unashamedly about love” and that “our forebears recognised that they must preserve what makes us unique as a people”. He drew on the innate connection that the Samoan people have with the land, symbolised through “the ritual burying of a child’s pute and a mother’s fanua in the land” which reinforces the belief “that we are of the land and the land is of us”.
His Highness discussed that there is ambiguity in the wording of Article 102 of the Constitution, and that this ambiguity is being negatively exploited.
He stated that “the provisions of the Land Titles Registration Act 2008 (“LTRA”) have raised significant doubt and controversy over Article 102’s ability to meet its constitutional promise of protecting customary land against alienation”.
The ambiguity that exists within the Article, he argues, has the potential to create “a dangerous platform by which the effective alienation of customary land can be enabled”.
With reference to the issue of the alleged 100 year lease of Sasina lands that was written about recently in the Samoan Observer, His Highness commented that “with the speed at which fundamental changes to Samoa have occurred over the last 30 years, it is not hard to imagine what could happen in a hundred years if we were to continue on this type of law-making path”.
His Highness stated that: “In the last 30 years there has been a paradigm shift” in law-making and governance.
“We have moved from a faasamoa where pule and alofa co-existed in relative harmony, to one where pule now seems to rule alone. In this new paradigm we see the introduction of laws where instead of the pule of a sa’o being dependent on the love and support of the auaiga (supporting family and/or village members), the sa’o is capable of existing and exercising pule quite independently from them. In the faasamoa this is wrong.
It is repugnant to everything that the faasamoa stands for. The faamatai exists and draws meaning and value from the reciprocal love and respect between matai and auaiga (family members). Even for tama-a-aiga this is true.”
In summary, His Highness seeks to identify the need for the nation to find a constructive way forward.
He argued that “there is a problem with Article 102; that [there is a serious] ambiguity within”. He calls for the attention of Samoa’s best minds to come together to make Article 102 unambiguous.
He states that... “We as a nation have a sacred duty to find these minds and to support them by putting our personal and political biases aside so that we can work together as one people to achieve the balance and protection desired by our Constitutional forebears in Article 102 – the balance between gaining economic environmental sustainability for all families and villages and retaining the cultural integrity of our tu ma aganuu Samoa, and the protection of our customary lands against undue alienation.”