“There are strict guidelines in the Bill to ensure that we attract genuine investors into Samoa. The Bill contains stringent processes in assessing applications, including thorough background checks on personal and business affairs of potential investors” – Aumua Ming Leung Wai
Attorney General, Aumua Ming Leung Wai, has denied claims that “Samoa is for sale” through the draft Citizenship Investment Bill 2014.
However, he concedes that amendments need to be made to the bill before it goes to Parliament. The bill in question has raised eyebrows among members of the community since it appears to be offering citizenship for cash.
Contacted for a comment by the Samoa Observer, Attorney General Aumua clarified what the Draft Citizen Immigration Bill 2014 is about.
“The purpose is to attract foreign investors into Samoa, as part of the Government policy on foreign investments in Samoa,” he said. “Other countries have similar foreign investment policy.
“They either provide Permanent Residence or citizenship status.
“Samoa has opted for both i.e. a permanent residence for 3 (three) years and then the right to apply for citizenship after 3 (three) years.
“There are strict guidelines in the Bill to ensure that we attract genuine investors into Samoa. “The Bill contains stringent processes in assessing applications, including thorough background checks on personal and business affairs of potential investors.
“The right can also be taken away if investors do not comply with the investment requirements.”
Asked about the $1 million price tag attached to land investment, Aumua said that amount was the default amount.
“Which (takes) into account the range of areas of investments identified in the Bill,” he said.
“The minimum for qualifying investment is at least $4m with the investor having a net worth of at least $1m at the date of making the application.
“For buying or leasing of land, even though the amount to buy or lease land is fixed at $1m, the investor must develop the land within 5 (five) years of purchase with the qualifying investment of a minimum of $4m.
“The amounts in the Bill are minimum, to be re-considered by Government (more than the minimum amount) once the Bill is in place.
“The amount to be determined by the Minister cannot be less than the amount in the Bill “For land purchase and development, the amount is $5m and other investment area is $4m.”
He also said clause 23 prevented the Minister from lowering the Amount Questioned about the fact that all an investor has to do is invest in land, not develop it, for three years and then he or she and their extended family is eligible for citizenship, he said this is the part of the Bill that would be amended.
“The Bill will be amended to clarify that for buying or leasing of lands, the investor must also develop the land in any of the areas listed as qualifying investments,” he said.
“It means $1m to buy/lease land and plus $4m to develop it.”
Aumua said the proposed legislation did not apply to Customary lands.
“It will only apply to purchase of freehold lands or leasing of public lands,” he said. “The Bill will be amended to clearly state that it does not apply to customary lands.”
Aumua said those who do become citizens would be allowed to venture into any business.
“The policy is that once an investor is a citizen, he or she should also be given all the rights and benefits of becoming a citizen of Samoa.
“If not, then it might be challenged as a ground for discrimination under the provisions of the Constitution. I trust that the consultations will provide us with constructive comments to improve the Bill before it is referred to Cabinet for consideration.”
He also said the Draft will be amended too.
The interview is in full below:
Samoa Observer: What does this proposed law mean for Samoa?
Aumua: The main purpose of the Bill is to entice investors into Samoa. There are a range of business activities identified in the Bill. They include businesses in service, agriculture, energy, tourism, fisheries sectors and purchase of land (freehold or public land) and developing it.
The Bill is part of the Government policy on foreign investments in Samoa.
Investment in Samoa by investors will have an effect on normal tax paid to Government on income in Samoa of investors, increase in employment opportunities for Samoans and economic development of Samoa.
Investors will ultimately get citizenship under the Citizenship Act in the Citizenship by Permanent Residence.
Samoa Observer: Who made the decision to draft the legislation?
Aumua: It is the Government's decision under the initiative of the Ministry of Commerce, Industry and Labour.
Samoa Observer: Upon reading this Draft, it appears to me that Samoa is now for sale. Do you agree with this?
Aumua: I disagree. The purpose is to attract foreign investors into Samoa, as part of the Government policy on foreign investments in Samoa. Other countries have a similar foreign investment policy. They either provide Permanent Residence or citizenship status. Samoa has opted for both i.e. a permanent residence for 3 years and then the right to apply for citizenship after 3 years.
There are strict guidelines in the Bill to ensure that we attract genuine investors into Samoa. The Bill contains stringent processes in assessing applications, including thorough background checks on personal and business affairs of potential investors. The right can also be taken away if investors do not comply with the investment requirements.
Samoa Observer: For someone to invest in Samoa and in turn become a citizen, all they need is $1,000,000 tala. That seems a relatively small amount of money, why was $1M tala chosen?
Aumua: The amount is a default amount that, which takes into account the range of areas of investments identified in the Bill.
The minimum for qualifying investment is at least $4m with the investor having a net worth of at least $1m at the date of making the application.
For buying or leasing of land, even though the amount to buy or lease land is fixed at $1m, the investor must develop the land within 5 years of purchase with the qualifying investment of a minimum of $4m.
The amounts in the Bill are minimum, to be re-considered by Government (more than the minimum amount) once the Bill is in place. The amount to be determined by the Minister cannot be less than the amount in the Bill For land purchase and development, the amount is $5m and other investment area is $4m.
Samoa Observer: To further this line of questioning, $1M appears to be set as an arbitrary number which can be altered at the Minister’s discretion. To me this means someone can invest in as little as $1,000 tala at the Minister’s discretion and can be granted the same rights as Samoan citizens within the three year time frame set out by the Draft. Has anything been included to prevent this from happening?
Aumua: Clause 23 ensures that the Minister cannot fix an amount less than the determined amount, for example, the Minister cannot change $1M to $1,000 under clause 23, as those fixed amounts are minimum.
Clause on purchase of land is to cover purchase and development of the land within 5 years, both at a minimum cost of $5m ($1m for land + $4m for development. The Bill will be amended to clearly reflect that.
Samoa Observer: It also appears with this legislation that these new Samoan Citizens will be granted more privileges than those Citizens living overseas, especially in regards to voting. This hardly seems fair as these citizens are investing in Samoa by way of remittances, wouldn’t you agree?
Aumua: The Bill does not have the effect of giving preference to investors who are granted citizenship under the Bill compared to Samoan citizens living overseas.
The Bill only gives the right to vote to investors who will permanently reside in Samoa. If investors do not reside permanently in Samoa, then they cannot vote or stand for election as MPs (similar to those Samoan Citizens permanently residing overseas - residential qualification in Samoa still applies as a voter or candidate for MPs). A person cannot be a candidate for Parliament unless the person is a registered Matai Title holder.
Remittances are not investments per se, unless they are diverted to business investment in Samoa.
Samoa Observer: This Draft will affect many other pieces of legislation from the Constitution of the Independent State of Samoa right down to the International Companies Act 1988, how are you planning on reconciling the issues that will come up?
Aumua: All Acts that require amendments have been identified and are covered under
• Immigration Act
• Passports Act
• Citizenship Act
• Electoral Act
There is no need to amend the Constitution.
Investors will use local companies and entities as vehicles for investments.
If they invest in a qualifying investment regulated by other Acts, then those Acts will automatically apply to those investments.
Samoa Observer: When will this law come into effect here in Samoa?
Aumua: The Minister will nominate a date after the Bill is enacted by Parliament. This is to ensure that all necessary regulations and other administrative arrangements are in place before the Act comes into force.
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Samoa Observer: Lawyer Leota Raymond Schuster questioned the function of a Citizen Investment Committee’s function.
He said the committee contradicts with the Minister’s discretion. Can you explain?
Aumua: The basic functions of the Committee are to receive, process and grant application for citizenship by investment and to monitor the investment once the application is granted. These are usual operational or administrative functions of such statutory body. The Minister should not be involved in those types of decision making but only to deal with general policy directives at the Executive Government level. The Minister is answerable to Cabinet and Parliament on those policy directives.
Therefore, the functions of the Committee in the Bill do not contradict with the functions of the Minister. In fact they complement each other. Under the Bill, the Minister is given the power to review applications that are refused by the Committee as normal part of appeal or review mechanism of such administrative decisions. Even if that power is not made available in the Bill, the Supreme Court still has the inherent power to review the decisions of the Committee relating to fairness of the decision-making process but not the merit of the decision.
The review mechanism under the Bill is a merit review i.e. a re-consideration of the application on its merit, which is a policy decision of the Government rather than following the long-drawn Judicial Review process. As a matter of law, the decision of the Minister will be subject to Judicial Review process of the Supreme Court, if an applicant wishes to challenge the decision of the Minister.
Samoa Observer: Leota raised some very interesting points saying the bill is a way of the government to generate income. He further pointed out the bill will imprison our children, and the children of our children. Do you agree or disagree?
Aumua: I totally disagree. The current citizenship law provides different categories of citizenship, which include citizenship by permanent residence. The citizenship under the Bill is built upon that category but with a shortened period of 3 years instead of the normal 5 years.
The purpose of the Bill is to encourage investment in the business sector in Samoa, which will provide not only income for the Government but also employment opportunities in and sustainable business developments for Samoa through increase investments in the business, agriculture, tourism, energy and fisheries sectors.
I can’t see any reason why the Bill will imprison future generations of Samoa.
The current category of citizenship by permanent residence does not have the effect of imprisoning the present or future generation of Samoans, and neither will this Bill.
Samoa Observer: Why was the first consultation on this piece of legislation only done once the bill was drafted? I was under the impression that the public was invited to consult on proposed policy through public consultations before the a bill was drafted. Why was due process not followed this time?
Aumua: The normal processes of consultation on any legislative proposal are:
• consultation on the policy framework is undertaken first and then the Bill; or
• consultation on both the policy and the Bill
• no consultation at all (small amendments or urgent measures).
New proposals can also be referred to the Samoa Law Reform Commission for research and public consultation and then drafting of the Bill and consultation on the Bill. Other proposals can also follow the same process.
For most of new proposals, the public consultation is done on both the policy and the Bill once a working draft of the Bill is made so that the public are consulted on the policy and are made aware of the proposed provisions of the Bill.
The Government has opted for consultation on both the policy and the Bill. It is not unusual for that process to be followed to expedite matters.
Samoa Observer: There has been much debate that very little evidence-based research has gone into this Citizenship Investment Bill. It is the reason the Chamber of Commerce has called for the bill to be put on hold until further research can be conducted. Is there any chance for this to happen?
Aumua: That is a matter for the line Ministry to answer. However, I understand that there is a Policy Paper prepared for and approved by Cabinet.
Samoa Observer: One of the issues raised at the first and only public consultation was that while there was a qualifying investment list contained within the attached schedule, that once people become citizens they can pursue business interests outside of this schedule - like anyone who becomes a citizen. Given that citizenship is offered to four generations of one investor’s family there is a real chance that this could have a significant detrimental impact on the Samoan business community. Will provisions be made that if and when potential investors become citizens they cannot stray from the list contained within the attached schedule?
Aumua: The policy is that once an investor is a citizen, he or she should also be given all the rights and benefits of becoming a citizen of Samoa. If not, then it might be challenged as a ground for discrimination under the provisions of the Constitution.
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Samoa Observer: Finally, in regards to citizenship, the legislation reads that all one has to do is buy land for $1 million tala, do nothing to it for three years and then citizenship is open to the investor and four generations of their family. How does this help Samoa financially in any way?
Aumua: The Bill will be amended to clarify that for buying or leasing of lands, the investor must also develop the land in any of the areas listed as qualifying investments. It means $1m to buy/lease land and plus $4m to develop it.
Final words: I trust that the consultations will provide us with constructive comments to improve the Bill before it is referred to Cabinet for consideration.