Customary lands: O fea le alofa? Where is love?
On Tuesday, 10th of April, 2018, the Samoa Observer published an open letter addressed to me by Faapale Taumua. His letter moved me deeply and this is my response.
On returning to Samoa from the University of Auckland Pacific Law, Custom and Constitutionalism (P.L.C.C.) conference held February 12th to 14th, I have been reading with great interest our current public debates on Samoan customary land and land laws.
Faapale is right. 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. I will explain what I mean further on. Suffice to say for now that this is the most dangerous issue facing us since our fight for the return of our Independence.
Since Samoa regained Independence we have taken our faasamoa 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 preamble of our Constitution talks unashamedly about love. It says that God is an “ever-loving” God; that his love or alofa is ever-lasting. In drafting our Constitution, the supreme law of our land, our forebears recognised that they must preserve what makes us unique as a people. They wrote that Samoa is a country founded on God; a country where only God has absolute sovereignty over everything; and a country where we as a people have authority (pule) over our Samoan heritage, our tu ma aganuu Samoa, and that this heritage is a sacred heritage, a tofi pa’ia tuufaasolo, a heritage that is to be passed on from one generation to the next, forever.
Our tu ma aganuu Samoa tells us that we are of the land and the land is of us. The ritual burying of a child’s pute and a mother’s fanua in the land is because we believe that we are of the land and the land is of us. Our faasinomaga is nothing without land. Our matai titles have little meaning without land. To be landless in our faasamoa is therefore to belong to nowhere; to live without identity; to have no roots or home.
The title of my address is: O fea le alofa? Meaning: Where is love? Where has the principle of alofa gone? Professor Tony Angelo, a well-respected New Zealand constitutional law specialist, in the Pacific Law, Custom and Constitutionalism conference mentioned earlier, asked in the midst of a heated interchange of views: where is love? Following this there were giggles and muffled laughter from the audience. For me, however, this question had a profound and lingering impact.
I asked someone what the learned professor might have meant by his question and it was suggested to me that perhaps more than anything else it had to do with the fact that the language of love is no longer a part of the language of law. Sadly, even Samoan custom law. Therefore, in asking: o fea le alofa? where has the principle of alofa gone? I am deliberately drawing our attention to the fact that the language and spirit of our laws today have taken us so far away from their original source of inspiration, the tu ma aganuu Samoa wherein love is a given, that we are now in the position of having to re-educate and restore its logic, mana and integrity in our laws. And, we do this not because we have the pule or authority as Samoans to do so, but because we have a deep and everlasting love or alofa as Samoans for our nation, our villages, our families, our individual selves, and our faasamoa. This is where the principle of alofa resides and finds meaning.
Let us turn to the ambiguity at issue here in Article 102 of the Constitution. The ambiguity lies in how best to read the relationship between the wording of the main body of the Article and the wording of its two subsections or sub-clauses, particularly the first. Let me cite the Article.
“[Article] 102. 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”.
The purpose of Article 102 is clearly expressed by its title: “No alienation of customary lands”. The rest of the Article is however less clear, i.e. there is ambiguity within. 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”. This sub-clause (a) also makes no specific mention of mortgaging a lease-hold interest. To read this within the words “or of any interest therein” would seem to run against the plain meaning of the words of the main body of the Article which explicitly prohibits against mortgages. Therein lies our ambiguity.
Our Constitutional forebears put their faith in us to make just decisions moving forward in relation to protecting our customary lands. Decisions that would progress us as a nation whereby we would not only stand proud alongside other nations in our ability to be economically viable in terms of our needs, but also in the knowledge that we did not sell our souls, our sacred heritage, our tofi pa’ia tuufaasolo, in the process. The provisions of the Land Titles Registration Act 2008 (“L.T.R.A.”) have raised significant doubt and controversy over Article 102’s ability to meet its constitutional promise of protecting customary land against alienation. So too has the reasoning offered by government for the Alienation of Customary Land Amendment Bill 2017 (“A.C.L.A.B.”).
I make reference here to section 25 of the L.T.R.A. in particular as evidence of how law is being used to erode our rights as suli on the one hand, and to subsection 1.1.2 of the explanatory memorandum of the A.C.L.A.B. as evidence of how the ambiguity of Article 102 is being negatively exploited to pass legislation that would legalise the mortgaging of customary land (even if it is only in terms of the mortgaging of a leasehold interest on it), on the other.
The subsection of Section 25 of the L.T.R.A. that I want to highlight is subsection (4). It relates to the provision of what it calls a “certificate of correctness”. I am told that this certificate is only relevant to the registration of freehold land, and that there is another process for the registration of a leasehold or licence interest over customary land. This other process is that by law the owners of customary land must file an “Application to Grant a Lease of Customary Land” with the Ministry of Natural Resources and Environment (M.N.R.E.) for approval. If approved the M.N.R.E. would then draw up the lease or licence, and then the Minister signs the lease as trustee for the customary landowners. Here the landowners I am told is not meant to actually sign the lease or licence. However, there is evidence to the contrary. Leaving aside the issue of multiple owners and the proposed pule faasa’o for the moment (as the problematics of this has been well argued in public debates to date), section 25 is of interest to me insofar as it raises two pertinent questions: why have we vested such power in one person, even if he is the Minister, over our customary lands? And, why is there not a similarly transparent ‘standard of correctness’ required of registration of interests over customary land as seems the case for freehold land? The imperative to finding answers to these questions lies in the need of suli to gain trust in these laws and the protection mechanisms they purport to give to ensuring that our customary lands are not unlawfully alienated.
In Samoan custom law (both aganuu and agaifanua) the only person that has any rights over customary land is a suli. Suli retain their suli rights forever. Once a suli always a suli; it does not matter whether they reside in or outside of Samoa. In other words, a suli does not lose his or her suli status if they decide to live outside Samoa. In the custom law of our faasamoa this is a given; it is fundamental to being a suli. Any impositions by the state, however well-meaning, on our rights as suli is a breach of our tu ma aganuu protected by the Constitution.
In terms of the legalisation of mortgaging of leasehold interests over customary land as is promoted by subsection 1.1.2 of the explanatory memorandum to the A.C.L.A.B, this is both negatively exploitative and dangerous. It negatively exploits the ambiguity discussed already in Article 102 and creates a dangerous platform by which the effective alienation of customary land can be enabled. This in itself also runs contrary to the primary purpose of Article 102, i.e. no alienation of customary land.
The Sasina Village Council’s recent decision to lease customary lands to foreign investors for 100 years for a sum of $250,000.00 SAT per year, for example, means that they could unwittingly open the doors to their customary lands being subjected to mortgagor interests should their tenants decide to mortgage their leasehold interests as per the A.C.L.A.B. This potential for mortgaging of leasehold interests opens the door further to other potential foreigners imposing their interests on Sasina land for at least 100 years, thus potentially putting access to Sasina land out of the reach of at least three generations of current and future suli of Sasina should they want to access it. The question arises, who has a right to take this access away from suli of the Sasina lands at issue and for such a period?
One hundred years is a long time. 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. The seriously negative implications that these scenarios have presented have given rise to Faapale and others’ call for serious national leadership attention and action. I hear your call.
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. 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. Parliament is tasked with a similar sacred duty to consider the full implications of all the bills that come before it. The Prime Minister is also tasked with the same sacred duty. He must ensure that by the Third Reading and before the Bill is passed officially into law, i.e. when he advises the Head of State to give his assent so that the bill can become law, that he has properly considered the full implications of the said bill on the people. Our Constitution states that where all this has properly occurred and the Prime Minister does in fact advise the Head of State to give his assent, the Head of State must give his assent. That is the process and protocol for law-making set down for us by our Constitutional forebears. It is, as Faapale writes, a process and protocol that assumes that our leaders are capable of fulfilling their sacred duties, that they have the skills and support to do so, and that they do so with the alofa demanded of them by our forebears. The checks and balances on the power and proper work of the state if not operating well then needs to be fixed. Today we have no choice but to admit that there is something not operating well here and that we, collectively, have an obligation to identify and fix it.
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. 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. These minds must come up with ways to fix the ambiguity whereby the process for fixing it is as much about strengthening people and culture as it is about strengthening the law. And, these minds will have to advise the country on how best to frame the amendment so that when the proposed amendment is put to a public referendum as per Article 109 of the Constitution that the country will be well equipped to make the right decision in accordance with their conscience.
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.
In the last 30 years there has been a paradigm shift. 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.
When Samoa was fighting for the return of our Independence during the Mau the leadership of tama-a-aiga would not have amounted to anything had it not been for the reciprocal love, respect and support they shared with all those in their auaiga who rallied behind and alongside them. During that fateful Black Saturday when he heard gunfire and was told where it was coming from and of the wounded, Tupua Tamasese Lealofi III did not hesitate to make his stance against colonial administrative tyranny. Knowing full well that he may get shot if he walked towards the gunfire, he went, along with fellow leaders, anyway. Theirs was an act of leadership, of ultimate service and sacrifice. It was an act of love and protection – protection of land, family, and the dignity of Samoa.
This reciprocity of love is what fuels us to go beyond the call of duty to sacrifice our comforts for the greater good.
This kind of reciprocal love is what motivates parents to care for their children notwithstanding. It is what motivates children to care for their parents no matter what. It is what motivates families and villages to care for their members. And it is what makes members of our nation proud to be a part of this nation. There is a saying in Leulumoega: O le matua o Leulumoega e le se matua e fafaga i fale, o le matua e gasese: meaning, the leaders of Leulumoega (i.e. Tumua) are not leaders by virtue of status, they are leaders by virtue of the love and self-less service they give to their people and receive in return. To emphasise pule without alofa is to strip pule of what will ensure its longevity. In other words, if a matai exercises his or her pule without alofa their pule will be short-lived.
Let me return to my question: o fea le alofa – where is love? where has the principle of alofa gone? In this new paradigm we ourselves have stripped ourselves of the power of this most fundamental principle to protect us against our own arrogance and greed. When we stand by and watch the passing of legislative enactments that undermine or make alofa irrelevant in law we are complicit in that act of colonial disempowerment. Here the colonial, nay neo-colonial, master is not an outsider forcing us to do something against our will, he is right within us, moving among us, preying on our vulnerabilities, luring us to believe that there is no other option for economic development but the alienation of customary lands.
Our forebears knew this would happen. That’s why they made Articles 102 and 109 such as significant part of our Constitution. We know from current private sector agricultural practices that this is not the only option. We know that with the right state support it is possible for local businesses to set up profitable partnerships with villages and families to develop their customary lands to produce goods and services for both internal and external markets. In knowing this our Constitutional forebears are challenging us to rise to the occasion to do all we can to protect ourselves from ourselves, to protect ourselves from unnecessarily alienating our customary lands, whether actual or constructive; the lands they fought so hard to protect. To do this we must remember and revive in our custom law, our tu ma aganuu, our languaging and practices, the importance of alofa; of their alofa.
I end with the story from Sataua. It is the story about the origins of the saying ‘ua segia le mauli’ (the mauli or soul has been stolen). The saying is one of the few Samoan sayings that remains today that uses the term ‘mauli’ for soul. The story is about a couple, Fine and Sau, and their son Mataulufotu. Mataulufotu, was not only able to take away souls and thus cause death, but he was also able to restore them and so restore life. The story begins that Fine and Sau had several sons and each time a son was born they gave him to the sea eel for food. One day the father, not wanting to give any more of his children to the sea eel, asked his wife to run away inland with him to hide from the sea eel. After a time, the mother gave birth to another son. They named him Mataulufotu. When the father went looking for food, mother and son remained behind.
One day, the mother, a cannibal, then decided to kill her son, bury his head under the breadfruit tree and eat his body. When the father returned he asked after his son. The mother denied knowing where he was. The father climbed the breadfruit tree and when he got to the top heard the head of his son shouting to him to look down to where he was lying. The father saw his son and climbed down ready to beat his wife. The son, who still cared for his mother, asked his father not to beat her to death but to instead weave a basket of pandanus leaves to carry his head in, for they should leave. The basket with his head was to be carried by his mother on her back. The head and his parents came to the village Sataua.
The village were hosting a great malaga or travelling party. The old man and his wife entered the chief’s house by first lifting up the shutters at the front of the house. People inside the house told them off, asking them not to lift the shutters in case moisture entered the house but to instead enter via the back of the house. The travelling party ate and then slept. They did not offer any food to the old man, his wife or the head. When the cock crowed to signal the coming of dawn the following day the head told his mother to wake his father for it was time to leave. When they left all the people sleeping in the house were dead. The head had taken their souls.
As the head travelled on with his parents they came across a ship that had come to Savaii from Fiji in search of a doctor who could restore the life of Sina, the daughter of their liege lord, Tui Fiti. The ship was about to return to Fiji when the head called out to his father to tell the crew that they will return with them to Fiji.
The father did so but the crew did not listen and continued to move their ship away from the shore. The head froze the ship long enough so that he and his parents could jump in. When their ship came close to Fiji they came across a reef channel that the crew wanted to avoid because the Anaeoso, a fish belonging to Sina, was there and was considered dangerous. The head told his father to tell the crew to proceed through the channel, not to be afraid for everything will be okay. The Fijian crew proceeded cautiously but made sure that the old man, woman and head knew that if the ship sunk they would kill them. The head gave the crew a song to sing to help guide the ship safely through the channel. The ship reached the shore safely. On the shore the Tui Fiti’s daughter’s body was covered with a fine mat.
The head spoke to his parents. He told them to go ashore, not to avoid the fine mat or the body but to sit right next to it. The Tui Fiti welcomed the old man and woman. He told them that his people had gone to Samoa in search of a doctor to revive his daughter but were unable to find one. The head told his father to tell the Tui Fiti that he was to continue trying to bring his daughter back to life. Meanwhile the head would go to the heavens to also try to restore Sina’s life.
The head went into the nine heavens to see Fuluulaalematoto, who was a woman who devoured human beings. When he got there Fuluulaalematoto was not there, but her son was. Along the ridge pole of their house in the heavens the head saw little baskets hanging, in the midst of them was a basket that seemed new. The head asked the boy what was in the new basket. The boy replied: “that is the soul of the Tui Fiti’s daughter that my mother brought”. Mataulufotu reached up and brought down Sina’s soul. When he returned it to Sina, she came back to life.
The Tui Fiti was overjoyed, but he was conscious that he did not have a suitable gift for the head and his parents, but gave to them Sina’s jumping fish, Anaeoso, which they gratefully took back with them to Samoa. When this fish appears in Savaii people are reminded of this story and say: o le alugaloa na i Sataua; o le Malaga na ave e Mataulufotu o latou agaga – literally meaning, “the long bamboo pillows at Sataua; the travelling party whose souls Mataulufotu took”.
The heavens, as the residences of God, are where souls can be retrieved and restored. In going to the heavens to find Sina’s soul, Mataulufotu figuratively announces that good souls, like Sina’s, can be restored. Selfish souls, like those of the travelling party at Sataua, will remain dead. In searching for what should be restored and what should not the moral imperative is that we ought to always aim for the heavens in our search. The message that love and respect is what keeps our souls alive is implicit. If it is stolen or taken away, ua segia, it is only through love that it will be returned and restored.
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. 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.
In Joshua 4: 2-7, the Lord said to Joshua: “Choose twelve men from among the people, one from each tribe, and tell them to take up twelve stones from the middle of the Jordan, from right where the priests are standing, and carry them over with you and put them down at the place where you stay tonight. So, Joshua called together the twelve men he had appointed from the Israelites, one from each tribe, and said to them, “Go over before the ark of the Lord your God in the middle of the Jordan. Each of you is to take up a stone on his shoulder, according to the number of the tribes of the Israelites, to serve as a sign among you. In the future, when your children ask you, ‘What do these stones mean?” Tell them that the flow of the Jordan was cut off before the ark of the covenant of the Lord. When it crossed the Jordan, the waters of the Jordan were cut off. These stones are to be a memorial to the people of Israel forever” (NIV).
Our stand against the unconstitutionality of any Act of Parliament that seeks to undermine Article 102 and for the need to make our Constitution unambiguous and free from negative exploitation are our memorial stones in the river crossing exercise we are now facing. Despite the heavy weight of these stones we must carry and place them firmly in the river so that they will stand the test of time and the force of changing currents so that when future suli ask: o fea le alofa, where is love, where is the principle of love in what we did, we can proudly say, there it is.