Political disasters and facts about the Constitution of Samoa. Part VI

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The Alienation of Customary Land Amendment Bill 2017 is against the Constitution of Samoa. 

Prime Minister Tuilaepa is well aware about that situation. He understands that customary lands cannot be sold or mortgaged according to Article 102 of the Constitution of Samoa. He already explained that situation on the Savali newspaper on 09 February 2017.

So this is another confirmation of political disasters that I was trying to explain through this very long important conversation. That is the truth and that is what Samoa wants because the truth will set all the people of Samoa free. 

The people of our country can now confirm from the Prime Minister’s inconsistency on mortgages and the Constitution of Samoa that the four wise Chiefs of Samoa who have challenged the Prime Minister and the H.R.P.P about customary lands, they were right. Not only that but also, every one can now confirm from that same situation that the claims by Maua Faleauto, Unasa Iuni Sapolu and the S.S.I.G on the same issue about customary land were correct. 

So how did the Prime Minister allow mortgages (“mortgages of leases over customary lands”) when the Prime Minister was already aware about the situation that MORTGAGES are clearly PROHIBITED by Article 102 and Article 109 of the Constitution of Samoa? This is what the Prime Minister said about mortgages on Savali on 09 February 2017 (Customary lands and hot air) “Prime Minister Tuilaepa Sailele Malielegaoi is fully aware of the fable making its public rounds targeting government and the leasing of customary land. And when asked to comment, Tuilaepa said that he will respond with facts and not fiction.” 

 “Fact one. “Customary lands cannot be sold or mortgaged according to Article 102 of the Constitution of Samoa,” said the Prime Minister. “However, customary land can only be leased or licensed under the Alienation of Customary Land Act 1965. “Customary lands could also be taken for public purpose under the Taking of Land Act 1964. “If Government wants to allow customary land to be sold or mortgaged, then it must first amend Article 102. “The only way to amend Article 102 is a two thirds majority of Parliament approval and by holding a public referendum,” continued Tuilaepa.

“And a two thirds voter’s majority from referendum or pelepesite is mandated by law for the constitutional amendment to be adopted. “All other articles of the Constitution can be amended by two thirds majority in Parliament but Article 102 is the only article that has the added requirement of a public referendum. “So for the sake of the fable authors, government has no intention to amend Article 102.”

So why did the Prime Minister and H.R.P.P waste too much time on spinning things around in order to force mortgage on customary land through lease but it still does not change anything about the truth of the law that the mortgage is always forbidden? 

According to the Constitution, the granting of lease and licence for customary lands do not mean that once lease and licence are permitted then mortgage of a lease automatically permitted. In other words, the granting of lease and licence for customary lands do not mean that if lease and licence are permitted then members of Parliament and lawyers in government or any government officials are also permitted to work out any methods in order to allow mortgage through lease. 

The provision about the granting or the granting permission according to Article 102, it is based only on lease and licence. It is not based on mortgage or mortgage of lease over customary land or any methods and ideas to force mortgages on customary lands.

Also, according to Article 109, if Samoa wants to allow customary lands to be mortgaged or to be sold then Article 102 must amend first. Apart from that, Article 102 can only be amended by two approvals but not one. The approval from the 2/3rd majority of Parliament and the approval from the people of Samoa through a public referendum. As we speak, Article 102 is still standing unchanged. It has been in that situation since the beginning of the Constitution’s operation at independence. So where does the idea of “mortgages of lease over customary lands” come from? 

For information of the people of our country, Article 102 and Article 109 are founding governing rules to safeguard our customary lands. All customary land Acts of Samoa is drawn from there. Once any elected government like H.R.P.P spins the truth of the founding rules in order to suit their political interests then all Acts establish from that corrupt practices is only about the same situation which is corruption.

That is what L.T.R.A 2008 is all about. It is all about corruption. That is where the four wise Chiefs of Samoa have risen above Parliament and the government. That is also the same area where Maua Faleauto, Unasa Iuni Sapolu and the S.S.I.G have risen above Parliament and the government. They did not fall into the trap.

What they did to alert Samoa about a serious Constitutional crisis in our country about our customary lands will always be remembering in the history of our country. I am quoting here below both Article 102 and Article 109 so that everyone can see the corruption after comparing the two quoted articles with the new Constitutional amendment about customary lands. 

 “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.”

 “109. Amendment of Constitution

(1) Any of the provisions of this Constitution may be amended or repealed by Act, and new provisions may be inserted in this Constitution by Act, if a bill for any such purpose is supported at its third reading by the votes of not less than two-thirds of the total number of Members of Parliament (including vacancies) and if not fewer than 90 days elapse between the second and third readings of that bill:

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…”  

By looking at those two articles as quoted above, there are loopholes in Article 102. But to save space I will discuss only the first loophole. The first loophole is the second part of Article 102 as re-quoted here under.

 “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 second part of Article 102 as quoted above is one the few colonial features that is still in operation in the Constitution. It is a flat contradiction with the first part. Because the second part contradicts the first part therefore the second part is also the contradiction between Article 102 and Article 109. (By the way Mr. Editor, this contradiction is not related to the one that I was talking about in Part II of this discussion. The ‘no contradiction’ that I was talking about in Part II is the placement or the positioning of the declaration of Samoa’s foundation or Christianity on the preamble) 

The first part of Article 102 is saying NO to the alienation of customary land but the second part of Article 102 is saying YES to the alienation of customary land. The first part is focusing mainly on the person known as [any person].

The instruction “It shall not be lawful or competent” in the first part is aiming directly to the person [any person], not the land. The instruction is falling straight on the person but not the land. However the second part is not focusing to the person. It is focusing mainly on things to be done on customary lands such as lease or licence and the taking of any customary land. Things to be done on customary lands are permitted by an Act of Parliament.   

To put it in other words, the first part of Article 102 forbids the person known as [any person] to alienate customary lands. The person known as [any person] is referring to any body including the framers of the Constitution because they were Samoan Chiefs (with matai titles), members of Parliament, the people that are living on customary land or owners of customary lands and any one else.

The second part of Article 102 shows us that the framers [any person] are allowing the alienation of customary lands by giving the power to members of Parliament [any person] to alienate customary land by granting of lease and licence to the people [any person] of Samoa in order for the people of Samoa to alienate their customary lands. Apart from that, the government can also take any customary land forcefully with the same power. That is the contradiction between the second part and the first part. That too is the same contradiction between Article 102 and Article 109. 

That is the colonial feature Mr. Editor. The second part of Article 102 is not about democracy, it is about colonialism. As I have said before, Prime Minister Tuilaepa was already aware about those situations.

That should be the right area of the Constitution where the Prime Minister should first apply his aim and his blaming game at but not at other parts of the Constitution that have no errors. This is the blaming game of the Prime Minister. Samoa Observer 30 May 2016 (P.M. aims to “correct” Constitution) ““To correct what the papalagi did.

Our forebears wanted that inserted in the body of the Constitution.” Not only that but also, that should be the same area of the Constitution where the Prime Minister should firstly apply his sworn oath at. This is the sworn oath of the Prime Minister.

Samoa Observer 31 January 2018 (Constitution Amendment Bill 2018 tabled) ““Do what is right and what is just in the eyes of the beholder,” Tuilaepa said when the bill was tabled. “It’s a cardinal sin to turn blind to what we as elected leaders are obligated by our sworn oaths. There is nothing to fear but fear itself.” 

Before I move on any further, let me clarify something first at this stage about the blaming game. In order for Parliament to change any parts of the Constitution, there must be an authority and also, there must be a clear probable cause. I referred to this phrase by the P.M [To correct what the papalagi did] as the blaming game. That is the probable cause that was used by the P.M for his aim to correct the cover and the preamble of the Constitution. 

The P.M’s aim to correct the cover and the preamble of the Constitution was surrounded by two legal encounters.

Number 1(unchangeable); the probable cause [To correct what the papalagi did] cannot be applied to the declaration of Samoa’s foundation and Samoa’s Independence because those parts of the Constitution on the cover and on the preamble are unchangeable because – Number 2 (no authority); it is unchangeable because there is no authority in the Constitution to allow Parliament to make any changes to those parts.

Therefore, the P.M’s probable cause can only be applied to changeable parts of the Constitutions such as provisions that are in the body of the Constitution. Article 102 is one of those provisions and there are considerable amount of errors in Article 102. Those errors are loopholes.  

When we look at the whole picture that is already painted by all informations as mentioned above, there is an important message from the picture. The message is this. When it comes to the perfect parts of the Constitution that are free of errors such as the cover, the preamble and contents on the cover and on the preamble, the Prime Minister viewed the perfect parts as parts with errors and needs corrections on them. He formed lots and lots of opinions on that situation.

But when it comes to the parts with real errors that are already known to the Prime Minister such as mortgages and customary lands in Article 102 and Article 109, the Prime turns a blind eye on them. The Prime Minister manipulates those errors without care in order to force mortgages on customary lands. 

He cherry picks parts of the Constitution and he cherry picks the using and the application of the Beholder according to his own personal satisfaction. When some of the people of Samoa cross him, he jumped straight to colonial features and their extensions to colonize and attack those people.

Now, the Prime Minister is out of control trying to defend his behavior and to cover up corruptions and untruths. He is trying to be innocent from the whole situation but he can’t because he was the key player and the master mind who organizes corruptions and untruths. He also uses Savali newspaper; the property of the people of Samoa as part of his defensive weapon. Right now, the government officials of the Savali is the Prime Minister’s army. 

Speaking of the Savali newspaper, the Prime Minister’s melt down on Savali newspaper about Maua Faleauto and Smith is the downfall of the Prime Minister and the H.R.P.P. The Prime Minister must protect his family and his relatives on the Savali newspaper. He must focus on the issues instead of personally attacking his own relatives on the Savali. That is not a sign of safeguarding of Samoa.

He already threatens the life of ghost writers publicly just a week and half ago but now he is turning to the lives of his own relatives. No wonder why Levaula Kamu lost his life in H.R.P.P and no wonder why the Prime Minister stood up for the claim of the Jews who crucified Jesus; “let this decision be on our heads and our children’s heads.” In other words, the Prime Minister is on the side of the murderer (Barabbas) but not on the side of Christ, the foundation of Samoa.

Also, the Prime Minister’s indiscipline on Savali newspaper about Maua Faleauto and Smith is the downfall of the Savali newspaper. The Savali is not a private property of the people who are working at the Savali.

It is not a private property of the Prime Minister and it is not a private property of the H.R.P.P in order to serve their political interests. The Savali is the property of the people of Samoa. It belongs to the whole Parliament (all members of Parliament) and the public.

It should support all political parties and the public interests. It is a responsibility of government officials at Savali to protect the people of Samoa but not organizing of unnecessary sessions or political sessions with the Prime Minister in order to attack members of the public. It is not a responsibility of Savali to act as an army of a one political party. 

They are not politicians like members of the Parliament. They did not get into Savali through general elections. Public servants in government or government officials who are not politicians they must stay out of politics and serve the country in good faith, in fairness and unbiased. Their freedom and human rights are independent from politics. There are many sides of any stories.

The Savali can get their own informations from the Constitution and other Acts of Samoa in order to confirm the issues as raised by Maua Faleauto and Smith. In addition, the Savali can also search for contact details of members of the public who are involved in public debates on the media, organize hard talk appointments properly and serve them professionally like they did to the Prime Minister. 

People are complaining because of frustration because of their concern about a lot of irregularities in our government. That is the outcry. When leaders of a country like the leaders of Samoa’s government in Parliament misrepresent the law and the Constitution then it means we are dealing with something that goes to the very heart of each hearts of all Samoans.

We are talking about a serious Constitutional Crisis in our country. So this is not about a war against the government, this is about the truth and an attempt to hold government officials accountable for their wrong doings.

If the government cannot do it then the Prime Minister and H.R.P.P must leave alone the freedom of Samoan patriots from Samoa’s foundation and from Samoa’s Independence. Also, the Prime Minister and H.R.P.P must leave God and Christianity out of their colonialism and their dirty stuffs.

 

Nanai Malonuu Lealaiauloto Nofoaiga 


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