Samoa for sale in ‘extreme’ law

Samoa citizenship could soon be up “for sale” for as much as $1,000,000 tala.

What’s more, it appears that even this price tag is negotiable.

That’s what Prime Minister Tuilaepa Sa’ilele Malielegaoi’s government is proposing through a draft legislation titled “The Citizenship Investment Bill 2014.”

Through the bill, a citizen from any country who is willing to invest a million tala in Samoa – after a series of checks outlined in the Bill – could become a citizen three years after.

Eventually, he/she can own land.

This prospect – including the possibility of bringing in an investor’s spouse, children and immediate relatives - has raised the ire of prominent lawyer, Leota Raymond Schuster.

Contacted by the Samoa Observer for his views on the bill, Leota drilled a number of holes in what he called an “extreme” piece of legislation.

“It is unfortunate that the government is resorting to this in order to generate income,” he said.

“Because that is the only purpose for it, is to generate income for the government."

“It is extreme – we don’t need it so long as government makes sure that its arms are efficient, which they are not."

“If Inland Revenue and Customs are properly collecting revenue, then there is no reason why we need to rely on that (the Bill)."

“But (they) are probably only collecting 60 per cent of what they should be. We don’t need to reinvent the wheel, we just need to be efficient at it.”

Leota said the fact that the government thinks they need to resort to rich people to bail Samoa out of its financial woes was unfortunate.

“We are already held ransom by China and the ADB (Asian Development Bank) and the World Bank,” Leota said. “Soft loans they may be, but they are still loans.

“My kids’ kids will be paying for that and this is not going to bail us out. This is going to imprison them for another many more years because only the rich people will be able to buy everything up.”

So how much is the Government selling off pieces of Samoa for?

According to the Draft legislation, “For investment on freehold land or lease of Government land” the investor must invest a determined amount in buying or developing the freehold land or lease of government land over a period of five years from the date of application.

“The determined amount under subsection one is $1m if no amount is determined under subsection 23,” the Draft Act reads.

However, it appears this number of $1,000,000 can be adjusted at the “Minister’s” discretion.

While the Act states that the amount should not be less than one million, “A determined amount under section 6(1)(b) may specify different amount that applies to different types of qualifying investments”.

“In determining an amount under this section, the Minister may impose other conditions or take into account any prescribed requirements,” the Act reads.

“Minister may approve forms for this Act.”

Looking at the Bill, Leota said it must be tidied up if it is to achieve what it is meant to.

“For example, I suppose in terms of the government’s position the amount is important what amount that should be set is a minimum amount. In terms of the word investment that is added in there so obviously the government is looking for money but you know anyone can afford a million tala good and bad.”

“So the process for due diligence and ensuring that the right investors are attracted is important. There is nothing in here securing and identifying genuine investors that want to invest in a developing country.”

“And it could be tied in with this is one opportunity money laundering and that sort of thing might come in be concealed under this sort of an investment so there is more work to be done to ensure that that doesn’t happen.”

He said just briefly looking at the legislation on the face of it, the way the Draft Act is written, he does not believe there is enough in it to ensure that this happens.

“There certainly should be more identifying if you are doing due diligence, and obviously they are going to have to engage someone overseas to do the due diligence work, then you have got to do due diligence of the people who are going to do the due diligence, make sure that they are genuine there not easily bought as well in terms of doing their due diligence.”

“Ensuring that the correct information is achieved, to make sure that we don’t get the drug smugglers and the money launderers washing their money through this sort of investment.”

“So the process about due diligence is quite important and ensuring the persons doing the due diligence are credible and that they have a reputable reputation.”

“Otherwise anyone can be bought for a million – a million tala is what these people are now bought with just to provide credible information so they can get a foot into an area where (there are) maybe lucrative investments.”

He said the first thing he would do to the Draft Act, would be to take free hold land out all together.

“I would take freehold (land) out of it …lease (land) yes but not freehold,” said Leota.

“But I wouldn’t sell, I wouldn’t sell Samoan land in this sort of a manner.”

“If investment, then yes invest in the use of freehold land to encourage people who have freehold land to put it up for agriculture put it up for whatever useful purpose it could be used for.”

“I wouldn’t sell free hold land in this sort of a manner it’s dangerous.”

“We are talking about people with potentially a lot of power and a lot of money that can buy up acres and acres of free hold land.”

“But once you sell land that is it – that is the investment in itself.”

“So you cant get it back unless the person you sold it to decides to sell it back to you, and they are not going to sell it back to you for peanuts they want to recoup their money.”

“So we sell it to them for millions and they want to make an extra buck on top of that.” “I would take that (freehold land) off…its dangerous, dangerous ground.”

Leota also questioned the function of the Citizen Investment Committee, of which its functions are listed under Part 3 of the Draft Bill.

He said he could not understand the function of such a Committee when much of the legislation, such as how much money was to be invested, was left to the Minister.

“It is a contradiction,” he said. “The problem there is that there is a Committee, I don’t know,” he said.

“Why have a Committee and then have the Minister who has the discretion? That seems to be a contradiction in itself.”

“If you have a Committee then the Committee is supposed to be that body makes the determination.”

“But then they have the Committee and then they have a separate provision for the Minister to have a discretion, it doesn’t make sense.”

“So either you give the Committee the power or you take away the Committee and then the Minister has all the power, which is open to abuse.”

The way citizenship was handled was in the Draft Act also did not sit well with Leota.

According to the Act after three years of being a permanent resident the investor and family members are eligible to apply for citizenship.

“Within 3 months before the expiry of the investor’s permanent resident permit, the investor, including any family member, may apply in person or through the person’s agent for citizenship by permanent residence pursuant to section 8 of the Citizenship Act 2004, if the investor has resided in Samoa for at least 15 days a year during the 3-year period of the permanent resident permit,” the Draft Act reads.

“And has complied with the investment plan to the satisfaction of the Committee; “Has complied with any other prescribed requirement.” According to the Draft Bill Citizenship is conditional, subject to a five-year investment period, and can be cancelled.

Leota said the term of five years set out appears to be contradictory for the purpose of the investment.

“So if you want someone to invest and become a citizen you don’t place condition on that citizenship either you are a Samoan by virtue of your investment therefore you obtain citizenship or you are not,” he said.

“It says here that it is only five years. It expires after five years and then you have to reapply for it.”

“That might not be attractive that might not meet the purpose of the investment.”

“So it might not happen at all given that that might not be sufficient time for a person to invest.”

Looking at the provision to cancel citizenship, Leota said this was not an easy thing to do.

The Draft Act says that citizenship may be cancelled if the investor fails any one of seven clauses listed (see Draft Act below).

Leota said he found the provisions on the cancelation of citizenship interesting.

“If someone cancelled my Samoan citizenship and said you are not now a Samoan – what then becomes of that person, that person who is here in this country?” he asked. “You cancel the passport that person then can’t travel and that person remains here.”

“Unless that person claims their original citizenship which could be the U.S. or Russia or the Ukraine.”

“They might just tear up their other passports and throw them in the rubbish and therefore they become non status here.” “So it is not as easy as it sounds. When you cancel it…you are left with an undesirable immigrant.”

“So it is not covered properly, its messy as it is so that is interesting part about it.”

“They need to sort it out whether a person is going to be a citizen or not once they have made an investment.”

“That is the attractive part about it (investing in Samoa) is that they become citizens.”

“If they are met with conditions then obviously the investor might not be that attracted to come here if he is offered something more attractive somewhere else.” Leota said, at the end of the day if the Government has the support to pass the Bill, it does not matter what we say about it.

“I would rather see a tidying up of the legislation if it is going to happen,” he said.

“Making sure that it meets the purposes as you the selling of Samoa to the highest bidder.”

“(And) if that is where the Government is going then they had better make sure that the act is tight so that we don’t relinquish the control of it (Samoa) to the high powered rich that have all the money to buy anyone off.”

“It is interesting having just a brief look at the provisions just now, just on the face of it I think there is more to be done.”

“I think there are insufficient provisions in the legislation to meet what purpose the Government wants to achieve but also to ensure that it secures the rights of Samoan citizens and not open it up to abuse.”

“I wouldn’t put my name on it until I was satisfied it would meet somebody’s purposes its sufficient to ensure that there is a fair go for everyone.”

The Attorney General, Aumua Ming Leung Wai, was contacted via email for comment.

He had not responded to the questions put to him at press time last night.