On the Three Bills before Parliament: The Lands &Titles Court 2020; Constitution Amendment Bill 2020; Judicature Bill 2020
By Tui Atua Tupua Tamasese Ta’isi Tufuga Tupuola Efi, Tuaefu, 01 May, 2020.
Editors Note: This is the English translation of the presentation by former Prime Minister and former Head of State, Tui Atua Tupua Tamasese Efi delivered 01 May 2020 on the above 3 Bills before parliament. The presentation also lists all the members of the Constitutional Convention.
I want to begin by citing passages from The Constitutional Convention 1960 records i.e. questions from the Members of the Convention and the answers by the Joint Chairmen, Tupua Tamasese Meaole and Malietoa Tanumafili 2. Also present were Mataafa Fiame Mulinuu 2, the Deputy Chairman, Tuimalealiifano Sualauvi; and representatives of Tumua ma Pule, Ituau ma Alataua, Aiga i le Tai ma le Vaa o Fonoti, Aiga ma a latou Tama, Tama fo’i ma o latou Aiga.
Page 682 Mr Chairman: Customary land means Samoan land held according to the customs and such land cannot be sold, even the matai himself cannot dispose of such land known as customary land. The only thing a matai can do is to lease out such land, but he cannot sell same. Freehold land is the type of land that was normally called by us European land and is held by the individual person according to his own rights. Some of our people have purchased some lands either from other people outside, European and the Crown Estates, and such lands are therefore called the individual properties or freehold properties. The owner of such land known as freehold land or property may dispose of them whenever he so wishes. That therefore is the difference between customary and freehold land.
Page 684 Mr Chairman (Reply to Papalii Pesamino) My own understanding to land held up for mortgages and those held in security in lieu of debt is that proper procedure must be taken for the registration of same in the High Court. On the other hand, the case you are referring to is one that is being done in an underhand way, and that is apparently inconsistent with the law. A final decision can be determined by the Lands & Titles Court.
Page 694 Mr Fasavalu: Referring now to Article 102, the main concern in my mind about the point under this heading is as follows. Say for example, if I am to assume the title from someone who died in my family but the deceased matai has incurred debts and covered them with the family land. What will be the position if the creditor claims the family land but I, the then matai will say, that cannot be done according to the Constitution. What will then be the position? Will that matter be left to the deceased person and the creditor himself seeing that I cannot agree to dispose of any family property to dispose of such debts.
Page 694 Mr Chairman: No debt should be incurred on any customary land and if therefore you have any sympathy for your deceased predecessor, you will then have to make good any debt incurred by him, otherwise you will not go to heaven.
(Author’s comment) We marvel at the insight of the Chairman, the boundary between custom and law, the boundary between law and justice, the boundary between justice and love for his predecessor and family, the boundary between family and accountability to his God.)
Tuilaepa in the Observer April 19, 2020 said: “In addition, Tuilaepa said there continues to be questions as to why the rights of an individual are more important than the rights and decisions passed down to village councils.” He said, “often the answer is because the Constitution protects the individual’s rights and does not take into account the Samoan culture. The reason is because of the palagis that inserted this (in the Constitution) and our forefathers didn’t understand it,” he said.
The cavalier way in which Tuilaepa explains that it was the palagi’s doing and they got away with it because our ancestors did not understand, is an unsubtle way of avoiding accountability for the Constitution Convention and the Constitution; because he did not have an ancestor in the Constitutional Convention. It’s vintage Tuilaepa. These mind games are unworthy of the seriousness of the issues that we face.
For us whose parents were participants in the Constitutional Convention, we owe it to them and to the integrity of the Constitutional debates to address the accusations. The most effective way of doing so is to cite the questions from the participants and the answers by the Joint Chairman. Before moving on to the Questions and Answers, I want to deny categorically that the Constitutional Convention placed the rights of an individual before the rights and decisions passed down by village council. There is no evidence of this in the discussions of the Convention, or in its decisions nor in the text. It is clearly a cheap political ploy to antagonize the village councils.
Article 101 (2) of the Constitution declares Customary land means land held from Samoa in accordance with Samoan custom and usage and with the law relating to Samoan custom and usage.
Article 102: It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest of 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 of any persons for the payment of the debts of any persons on his or her decease or insolvency.
It is a lamentable untruth that there is in the Constitutional Convention decisions and in the Constitution an expression that places the interest of the individual before the interests of the village.
The clear intention of the Constitutional Convention decisions and the text of the Constitution is to protect customary land from alienation.
It is not our parents or the Constitution who are promoting the alienation of customary land. It is the Government who want to alienate customary land. Nor does the Government want a REFERENDUM as provided in Article 109 of the Constitution. Article 102 and Article 109 in the Constitution is intended to protect the families from the alienation of customary land because this is the core and substance of our Samoan culture.
Clearly it is the wish of Government to alienate customary land. There are two obstacles facing Government. Firstly, the pule of the matai or matai and heirs over the land and secondly the only way you can overcome that hurdle is through a REFERENDUM as in Article 109 of the Constitution. The Government does not want a Referendum because they fear the Provision that in order to get over that hurdle they need the majority support of over two thirds (2/3) of matai voting.
The Government and the HRPP Party make fun of the wisdom and vision of the elders who created the Constitution. Yet their wisdom and vision had mana and foresight. They knew that there will come a day when someone or some people would determine to break down the barriers in the Constitution which protect customary land. The land where your pute and the umbilical cord of your mother is buried; the land which gives substance, mana and meaning to your history and your heritage.
The land where the village resides, the land which defines the boundary between district and district. The boundary which protects the land is determined by genealogy, history, aganuu and agaifanua. The core feeling of fellowship, of shared history and culture and the rapport that arises from proximity and sharing in everyday life. These are the things that feed a sense of belonging and a loyalty to family, village and district. When the land goes, so will the meanings, the passion nurtured by genealogy, history, the songs and chants.
In 1960, the wisdom, the vision and foresight of our forebears predicted that their vision and their passion will be challenged. Thus, Article 102 and Article 109 of the Constitution. This is the wisdom, vision and judgment that Tuilaepa mocks as ignorance. Tuilaepa, you mock our forebears, but our forebears’ vision saw right through you even though they did not meet you. In Article 102 and Article 109 of the Constitution, they are saying, “we know you Tuilaepa. We know you are coming to destroy the protection against alienation.”
Nothing, not even common decency will deter you in your determination to demean and destroy the mana of our forebears. This is shown by your stooping to digging graves or ‘eli ‘eli tuugamau. That is the ultimate insult in Samoan culture. You have dug out our forebears from their graves and held them up to ridicule and contempt.
“And I say to you. If you want to dig up graves, do not limit yourself to old graves, dig up the graves of our forebears and make fun of our fathers; as well dig up the graves while you’re at it of the 81 babies who died in the MEASLES epidemic.”
If you are searching for meaning and substance in digging up graves, you may find in your grave diggings some of the core beliefs of our culture. And maybe you will find a message there for yourself and for us all.
Start with the Samoan word, faafailele. Faafailele means that the pinnacle of love in Samoan culture is the love of the mother for her newborn child.
When I was Head of State, one of the government people came to me one day in frustration and said: We, that is, my department and I have strongly advised against the hiring of this plane on a wet lease. We are going to lose very heavily and indeed we have.
I remember there was a vigorous argument on TV and Radio between the Prime Minister and the Health Ministry about who was responsible for the lack of preparation for the MEASLES epidemic notwithstanding the warnings from WHO and other world organizations. Health claimed that they went around several government ministries canvassing for funds to buy medicine and the necessary support for the impending MEASLES epidemic. The invariable reply was, there is no money which begs the question: How can you have money to wet-lease a plane and no money to buy medicine and other requisite support in preparation for the MEASLES epidemic? Following the vigorous exchange about responsibility, the Ministry then called for a Commission of Inquiry.
It is noticed that in matters which are trifling, you Tuilaepa are so ready to call a Commission of Inquiry. Why is there no Commission of Inquiry into the measles epidemic in Samoa where eighty one (81) children died and where there is compelling evidence about the lack of preparation? The strong resistance to a Commission of Inquiry implies a fear of discovery that the truth will be exposed.
Some of the people who rallied from outside to help in the measles epidemic I invited as well some of our local doctors for dinner at my house, for I wanted to use the opportunity to thank them for the work that they were doing. I spoke with some medical people from outside as well as our own people, and almost to a man, they supported a Commission of Inquiry. It was pointed out to me that for some children their condition was aggravated by malnourishment; which seemed to me to be strong evidence of poverty amongst some families in Samoa.
When people resist a Commission of Inquiry and is resisted very strenuously by those who are involved, it always indicates to me an intention to hide. There is a Samoan proverb, E te fiu e faalafi le tama’i moa i lalo o le tanoa, a e ‘io’io mai lava. It means however much you try to hide the truth, the truth will always reveal itself.
It seems there won’t be a Commission of Inquiry because the Government vehemently resists a Commission of Inquiry. However much you try to conceal the truth, eventually it will find a way to expose itself. Especially since people have seen the images on TV and newspapers of children being brought into hospital for treatment and later taken out as corpses. It’s heartrending to watch the babies’ corpses being wheeled out followed by grieving families and the mother bereft in heartbreak. And we are reminded of the word “faafailele” the pinnacle of love in the Samoan culture is the love of the mother for her newborn child. This environment is full of meaning and messages in faa-Samoa.
In Samoan culture, the words ‘tofa saili’ and ‘moe manatunatu’ refer to what is core in our relationship with God and our forebears. In the religion of our forebears, we are informed and encouraged by the ‘moe manatunatu’ which is a dream dialogue between us and our God and forebears. In that dream dialogue, I can imagine people seeing the corpses of the young children wheeled out and hear the cry of the mother for her child.
I come now to the question of the Lands & Titles Court. I want to cite the Report of a Committee that was appointed by the Government to look into the problems of the Lands & Titles Court and report back to them in 2016. The Committee reported that eighty (80%) of the evidence testified that the problem was the incompetence and corruption of Judges. Interestingly, the government is responding to a whole number of issues but they are silent on the Report of the Committee 2016 which they appointed, that the core issue is the incompetence and corruption of the Judges.
What is most encouraging is that the Samoa Law Society reports that recently three (3) Judicial Review cases submitted to the Supreme Court regarding Lands & Titles matters, were successful.
This is an amazing statistic when you read it against the Report of the 2016 Committee which cited that eighty (80%) percent of the evidence asserted that the core problem is the incompetence and the corruption of Judges.
It’s been 60 years since the Constitutional Convention and thirty eight (38) years since HRPP held power and therefore are the principal appointers of Judges in those 38 years. Notwithstanding the above-mentioned and the Report of the Committee appointed by the government in 2016 and yet they’re trying to blame the Fono Faavae of 1960 and a palagi reference WITHOUT any evidence to support it. Where in the Decisions of the Lands and Titles were they misled by the 1960 Constitutional Convention and the reference of palagi?.
The other important thing is the people’s belief in the integrity and judgment of those who appoint the principal positions in the Ministry such as the Chief Justice. The process is that the JSC (Judicial Services Commission) advertises the position of Chief Justice. The JSC did not advertise the position and the next thing Cabinet appoints a Chief Justice without an advertisement by JSC as required by law.
In this instance, Cabinet appointed a Chief Justice and yet the position was not advertised as required by law.
The court found the President of the Lands and Titles Court guilty of assault and yet the Prime Minster and Cabinet proceeded to restore him to the position of President of the Lands and Titles Court notwithstanding.
To the question what is my preference? To submit my appeal for Judicial Review to the Supreme Court or to the Final Court of Appeal and Review (if the new Bills are passed in Parliament)?
In my view and considering the circumstances I’ve outlined, I believe that my rights are better protected by submitting an appeal for a Judicial Review to the Supreme Court as provided by the Constitution rather than submitting my appeal for a Judicial Review to the proposed Final Court of Appeal and review. It is sad to see the disregard and contempt expressed about the Constitution. For it is the wisdom and the vision of the Constitution that is responsible for the peace and calm in Samoa from 1962 until now.
The pursuit of Independence was inspired by the issues that preoccupy us now, tofi ma le faasinomaga, your heritage and your reference of belonging to Samoa. Our struggle for Independence was provoked by a claim to land, a claim to pule over the matai and pule over the malo. The NZ Administration took away people’s matai titles and their entitlement to land. Upolu people were exiled to Savaii and Savaii people were exiled to Upolu and the leaders were exiled to New Zealand. This is why the Mau’s peaceful march notwithstanding the people were unarmed, were shot down by the NZ Police. Eleven (11) people were killed including Tupua Tamasese Lealofi 111, and wounded Tuimalealiifano and Faumuina Mulinuu 1. For this the NZ Prime Minister Helen Clarke apologized to Samoa in the year 2002 in Samoa.
At this moment, I especially remember my friend and tutor, Toluono Lama of Palauli. One day he said to me: “Look here son, my generation cut the bush, planted the taro and bananas and weeded the plantation. And we made the umu. And you and your generation only came to pick up the food that we cooked. I am the fai suavai and you are the fu’e suavai.
The significance of the boundary between fai suavai and fu’e suavai is graphically illustrated by what is happening now. The fu’e suavai is turning on the fai suavai and dismissing him with contempt and distaste.
Bear in mind the lessons in humanity and history. The Fijians are arguing over their Constitution and they’ve had a number of coups. Likewise the Tongans who have come very close to physical confrontation because of Constitutional issues. Compared to Samoa, we have relative peace and we have much to thank our forebears for the wisdom of our Constitution and the sacrifices of the ‘au fai suavai.
If we can capture the depth and vision of the wisdom of Toluono Lama, we will no doubt understand the profundity of the concept of boundary, i.e. the recognition of boundary between the fai suavai and the fu’e suavai. We have to have humility to recognize with love and respect the courage, the perseverance, the vision that was responsible for pursuing the goal of an Independent Samoa.
I want to end with a message to my tutor and my friend Toluono Lama. This address is homage by the fu’e suāvai to the fai suāvai.
May God bless Samoa.
O SUI O LE ATUNUU NA AUAI I LE FONO FA’AVAE 1960
- Tupua Tamasese Mea’ole
- Malietoa Tanumafili 2
- Fiame Mataafa Faumuina Mulinuu 2 – Lotofaga
- Tuimalealiifano S.
- Anapu Solofa – Safata
- Amoa Tausilia – Aleipata Itupa-i-Lalo
- Aiono Urima – Aana Alofi Nu. 1
- Asiata Lagolago – Satupaitea
- Iuli Veni – Anoamaa
- Ufagalilo Faatafa – Faasaleleaga Nu. 3
- Ulualofaiga Talamaivao – Vaa o Fonoti
- Ulumalautea Papalii E.– Vaimauga
- Usu To’avalu – Alataua West
- Faalavaau Galu – Samatau/Falelatai
- Fatialofa M. Faimalo – Lepa
- Fenunuti Tauafua – Lefaga/Faleaseela
- Luamanuvae Eti Alesana – Faasaleleaga Nu. 1
- Leasi Avaula – Gagaifomauga Nu.3
- Leiataua S.- Aiga i le Tai
- Lesatele Rapi – Vaisigano Nu. 2
- Luafatasaga Su’e Taule’alo – Sagaga le Usoga
- Luatua Mata’ese – Sagaga le Falefa
- Mataia Europa – Faleata
- Maposua Seilala – Palauli le Falefa
- Papalii Pesamino – Faasaleleaga NU. 2
- Peseta Seko – Gagaifomauga Nu.1
- Pilia’e Leilua Iuliano – Aana Alofi Nu.2
- Pulepule M. – Anoamaa West
- Saipaia U. Aana Alofi Nu. 3
- Sagapolutele Pose – Aleipata Itupa i luga
- Seiuli Tolovaa Iakopo – Faleata West
- Seuamuli Etimani – Gagaemauga Nu.3
- Soifua Solia Gese – Falealupo
- Tualaulelei M. – Palauli
- Tuatagaloa Leutele Te’o Satele –Falealili
- Toomata Lilomaiava T.- Salega
- Tevaga Paletasala – Gagaemauga NU. 1
- Tofaeono Muli’aga – Vaimauga West
- Toleafoa Lafaele – Siumu
- Tufuga Fata Lemana – Vaisigano Mu.1
- Tugaga Isaaka – Gagaifomauga Nu.2
- Tuala Tiaina – Gagaemauga Nu.2
- Tuatō Poto – Palauli West
- Vui Fale – Faasaleleaga Nu. 4
- G.F.D. Betham – Apia
- Hans J. Keil – Apia
- F.C.F.Nelson – Apia
- Eugene F. Paul – Apia
- Leilua P. Plowman – Apia
- Ale Pusi – Faleata West
- Aeau Taulupoo – Falealupo
- Asiata Tulelei – Satupaitea
- Aiolupotea Mana’ia – Alataua West
- Aualiitia Faa’ole’ole – Gagaemauga Nu. 1
- Asi Falanaipupu ‘Ulu Filivaa – Vaimauga West
- Afamasaga Maua 2 – Aana Alofi Nu.3
- Auelua Filipo – Lepa
- One Sofai – Gagaifomauga Nu.3
- Ugapo Tauaneai – Aana Alofi Nu.2
- Umaga Pa’u – Aana Alofi Nu.2
- Ulugia Faalua – FaleataWest
- Fafai Tuivale – Sagaga le Usoga
- Fata M- Sagaga le Usoga
- Fonoti Faagalu – Falealili
- Fuimaono Faafete – Falealili
- Faamoe Sasi – Gagaemauga Nu.3
- Fao Isaia – Vaisigano Nu.1
- Fesola’i Pio – Aana Alofi Nu.1
- Faletufuga Asiasi – Faasaleleaga Nu.2
- Fuiono Alefosio – Falealupo
- Fasavalu Faalii – Salega
- Feiloa’ivao Pa’u Peter – Aana Alofi Nu.3
- Fui Tanielu – Gagaifomauga Nu.3
- Faanana Fenika – Satupaitea
- Fiso Faamotu – Lotofaga
- Faiumu A.- Palauli West
- Fiso Fusi – Palauli
- Fui Eli Seuamuli – Gagaifomauga Nu.2
- Fuataga Penita – Aleipata Itupa i luga
- Faoasau Ausage – Vaimauga East
- Fui Tauaivale – Lefaga.Faleaseela
- Faoloti M. – Lepa
- Faaliuila T. – Aleipata Itupa i Lalo
- Gasu Taatua – Staupaitea
- Leleua Peni – Faleata East
- Leapai Sefo – Sagaga le Usoga
- Leota Iakopo – Gagaemauga Nu.3
- Leaupepe ‘Aifualaau – Aana Alofi Nu.1
- Leiataua Poai – Aiga i le Tai
- Levaa Fofoa – Aiga i leTai
- Li’o Matefili – Siumu
- Leausa Foe – Vaa o Fonoti
- Leota Leauma – Anoamaa West
- Luafalealo Pesa – Anoamaa West
- Lavea Lala – Gagaifomauga Nu. 1
- Lealuga Vaaiga – Vaisigano Nu.2
- Laga’aia Faamaga – Palauli
- Leiataatimu P. – Sagaga le Falefa
- Luatuanuu Tolai – Sagaga le Falefa
- Lauago M. Tofu – Gagaemauga Nu.2
- Leniu Fanene – Vaimauga West
- Le Mamea Matatumua – Lefaga/Faleaseela
- Moe’ono Alaia K. – Anoamaa East
- Magele Tagaileono Ate – Faasaleleaga Nu.1
- Mataia Tavale – Gagaemauga Nu.3
- Masoe Pele – Vaisigano Nu.1
- Matautia Ueni – Palauli le Falefa
- Matale Tuugafala – Palauli West
- Malaitai Lautaimi – Gagaifomauga Nu.2
- Matautia Fetaui – Aleipata Itupa i lalo
- Mataia Siutaulalovaa- Faleata West
- Mano Togamau – Siumu
- Moalele Mauafu – Faasaleleaga Nu.2
- Mata’u Fiaalii – Vaisigano Nu.2
- Mauisii Sefo – Palauli le Falefa
- Muagututi’a Tautau – Lotofaga
- Matafeo Siatiu – Faasaleleaga Nu.4
- Mulitalo Faleniu – Faasaleleaga Nu.4
- Nonoa Aleli – Anoamaa East
- Polataivao Luni – Gagaifomauga Nu.3
- Paitomaleifi Siaki – Falealili
- Pini F – Faasaleleaga Nu.3
- Pa’u Tito – Samatau/Falelatai
- Peseta Tavai – Faasaleleaga Nu.4
- Soalaupule Sale – Safata
- Seumanu Saleilua – Faasaleleaga Nu.1
- Savusa Faavela – Vaa o Fonoti
- Segi Lafa – Faasaleleaga Nu.3
- Solia Sikuka – Falealupo
- Seinafolava Sofara – Lotofaga
- Safuneituuga Meatuai – Gagaifomauga Nu.2
- Semau Peleseuma – Gagaemauga Nu.2
- Seuala Meauli – Aleipata Itupa i luga
- Saumalu Tui – Aleipata Itupa i luga
- Taala Ioelu – Faleata East
- Taimalie Meapelo – Aana Alofi Nu.2
- Tuia Iosefa – Safata
- Tofilau Moeloa – Faasaleleaga Nu.1
- Tapu Atonio Fidow – Vaisigano Nu.1
- Tapusoa Peni – Gagaifomauga Nu.1
- Tapua’ῑ Kuka – Salega
- To’ala Mulifusi – Palauli le Falefa
- Tuaiaufa’i Fuifui – Alataua West
- Tuala Osooso – Gagaemauga Nu.1
- Tofa Peleti – Faasaleleaga Nu.3
- Telea Fasi – Sagaga le Falefa
- Tauvalaau Lua – Aana Alofi Nu.3
- Tuala Siaki – Lefaga/Faleaseela
- Tataivaatele Ioane – Aleipata Itupa i Lalo
- Tuaautoto’a Iefata – Aana Alofi Nu.1
- Taupau Semu – Aiga i le Tai
- Tuimalatu Suli – Vaa o Fonoti
- Tagaloa Tuala Siaosi – Anoamaa West
- Tuilagi Pa’ō – Faasaleleaga Nu.2
- Timu Kolio – Gagaifomauga Nu.1
- Tuisalega E. – Salega
- Tanuvasa Taotafa- Alataua west
- Toluono Lama – Palauli
- Tuala Milo – Gagaemauga Nu.1
- Tevaga Matafa – Gagaemauga Nu.2
- Toomalatai Fiso – Vaimauga West
- Tuiletufuga Taualai – Vaimauga West
- Tuliaupupu Muli’aga – Vaimauga East
- Vaitagutu S. – Faleata East
- W.F.Betham Apia
- O.R.Crichton – Apia
- A.M.Gurau – Apia