Customary land advocate shares mixed feelings

By Joyetter Feagaimaali’i-Luamanu ,

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CUSTOMARY LAND ISSUE: Former Head of State, his Highness, Tui Atua Tupua Tamasese Efi and Fiu Mataese Elisara.

CUSTOMARY LAND ISSUE: Former Head of State, his Highness, Tui Atua Tupua Tamasese Efi and Fiu Mataese Elisara. (Photo: Samoa Observer)

Customary land advocate, Fiu Mataese Elisara, has mixed feelings about the former Head of State, His Highness Tui Atua Tupua Tamasese Efi, speaking out about what he claims as “ambiguity” in the Constitution relating to customary lands.

In an email to the Sunday Samoan, Fiu commended Tui Atua for opening up on the customary land discourse.

“This is very timely and as Tama Aiga, many Samoans look to his wisdom, vision, guidance and indeed love in challenging times that call for that kind of leadership,” Fiu said.

But Fiu said he is also puzzled. 

“I am also struggling with his ideal call for the best legal minds to come together in love, non-political, bi-partisan etc. to work on the alleged ambiguity to make sure the so-called ambiguity,” said Fiu. 

Last week, Tui Atua called on all Samoans to pay closer attention to Article 102 of the Constitution. He said there “ambiguity” in the Article 102 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.”

This is what Fiu does not agree with.

 “I am having some initial questions in my mind on his view that there is ambiguity in Article 102 of the Constitution,” Fiu said. 

 “I am also struggling with his ideal call for the best legal minds to come together in love, nonpolitical, bi-partisan etc. to work on the alleged ambiguity to make sure the so-called ambiguity is removed to secure clarity on the inalienability of Customary Lands our forebears envisioned in their framing of the supreme law, especially under articles 102 and 109 on the imperative for referendum."

 “For me, I have said in my previous submissions that it is difficult for me to trust any suggestion that the solution to the customary land discourse is through the courts or engagement of legal experts!” 

Fiu made it clear his continuous belief those who framed the supreme law made sure to direct us to Article 109 of the Constitution to be the best and only solution to resolve any discourse like we now have on customary lands.

 “Take it to the heirs (Suli). Ask them. Take the referendum dictate."

“Any attempt to use alternative pathways that is subjected to human frailty, one that depend on technical skills and court experience as well as professional ability to argue a case, having adequate capacity and resources to procure the best legal defenders, engaging those with vested interests, etc. to resolve customary land issues that people like me believe risk ultimate alienation and disposition of customary lands, is in my humble view expose non-negotiable assets such as customary lands to delivery of injustice, co-option by those with money, violation of our rights as Samoans, and indeed repugnant to the vision and spirit of the supreme law.” 

He also noted the last thing he wants is to give the H.R.P.P. government an opening to use the call to remove the ambiguity to be the excuse and much needed opening for them to override the pre-requisite requirement in Article 109 for referendum, which to him continues to be the best and only solution.

Fiu noted he was preparing a submission on an invitation from the Parliamentary committee reviewing the Alienation of Customary Lands Amendment Bill 2017, which he has just been sent a copy with explanatory note. 

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