SAMOAN COURTS AND THE LAW
Court cases in Samoa have unsettling trend favoring the wealthy and powerful.
Malaki Jeremiah Tauiliili
The Courts of Samoa have been busy lately with the various cases that have been brought not only in Criminal Courts but include cases which are challenging the validity of laws that the government passed. The resolution of a recent case in Lefaga highlights the tenuous situation that is affecting the Customary lands of Samoa. Kicking off the year of 2019 appears to be a controversial one as it relates to the Courts and legal system in Samoa.
Criminal case
First is the number of criminal cases which have been in the headlines lately especially the murder of the young man by those who would seem to have been friends and aquaintences. This young man Jeremiah Malaki Tauiliili was a mechanical engineer who had been educated in New Zealand at Auckland University. He was quoted as saying before he graduated that,"When I finish my degree, I want to be able to help our community develop back in Samoa, just to improve our infrastructure and our way of living." However this was not to be as his life tragically ended at the popular Edge Marina View bar and restaurant, known to locals as Marina, (in early December, 2018) overlooking Apia Harbour. Apparently he had been invited to a party and it was there that he was savagely attacked by a group of men. witnesses stated he was kicked and beaten by three men and it resulted in his being taken to the hospital where he was in a coma for 3 days before passing away to the misfortune of his wife and young son, not to mention his family.
The 3 assailants who were arrested for his death have been named as Su'apa'ia Savai'inaea, Herman Westerlund and Robert Ash. According to the Samoa Observer, a deputy registrar of the Ministry of Justice, Ve'atauia Fa'atasi Puleiata said Westerlund and Savaiinaea have been charged with manslaughter and Ash faces an assault charge. What is interesting is that all three of the accused have been granted bail and are not in custody awaiting trial. This is a case that has gained alot of attention among the community as the rash of murders has risen during the Christmas season to a level not seen before.
Criminal case
First is the number of criminal cases which have been in the headlines lately especially the murder of the young man by those who would seem to have been friends and aquaintences. This young man Jeremiah Malaki Tauiliili was a mechanical engineer who had been educated in New Zealand at Auckland University. He was quoted as saying before he graduated that,"When I finish my degree, I want to be able to help our community develop back in Samoa, just to improve our infrastructure and our way of living." However this was not to be as his life tragically ended at the popular Edge Marina View bar and restaurant, known to locals as Marina, (in early December, 2018) overlooking Apia Harbour. Apparently he had been invited to a party and it was there that he was savagely attacked by a group of men. witnesses stated he was kicked and beaten by three men and it resulted in his being taken to the hospital where he was in a coma for 3 days before passing away to the misfortune of his wife and young son, not to mention his family.
The 3 assailants who were arrested for his death have been named as Su'apa'ia Savai'inaea, Herman Westerlund and Robert Ash. According to the Samoa Observer, a deputy registrar of the Ministry of Justice, Ve'atauia Fa'atasi Puleiata said Westerlund and Savaiinaea have been charged with manslaughter and Ash faces an assault charge. What is interesting is that all three of the accused have been granted bail and are not in custody awaiting trial. This is a case that has gained alot of attention among the community as the rash of murders has risen during the Christmas season to a level not seen before.
Political Case
The lawsuit was filed in August of last year challenging the language and the application of the LTRA 2008 law which has been at the heart of the Samoa Solidarity International Group's movement as they assert the need to repeal this law because it violates the constitutional rights of Samoans under article 102 of the Samoa Constitution preventing the alienation of customary land. The lawsuit was filed by Iuni Sapolu and her daughter Josephina in August of last year. There have been 4 hearings so far but these preliminary hearings have been rather inconsequential as they are ended with a continuation or rescheduling of the case. The primary issue now in the court's review is the matter of damages that were asserted by the plaintiffs in the amount of $5 million Tala. The plaintiffs through their attorney Sapolu Law Firm are now requesting an opportunity to amend the complaint.
Part of the situation now emerging in this case is the numbers of people who are attending the case in support of the action to repeal LTRA 2008 and the Court's continued postponement of the case and hearings. The Court seems to be engaging in expensive delay tactics which are taxing the resources of SSiG Samoa and the law firm of Sapolu, and the patience or commitment of the supporters who are faithfully attending the case only to see the case continued and rescheduled. This is an expense for the plaintiffs and the supporters which should signal to the plaintiffs that the Courts and the Government are not in a hurry to try this matter. For the Plaintiffs they were aware or should have been aware of this development because the case is challenging the validity of the law that was pushed through by the Prime Minister Tuilaepa and his then Attorney General, Aumua Ming Leung Wai who in turn approved the law and sent it to the Head of State at the time, TuiAtua Tupua Tamasese, who signed the bill into law based on the Attorney General's recommendations. The former Head of State has since stated publicly that there is contradiction in the law as it now reads. TuiAtua is no longer the Head of State being relieved by the Prime Minister in 2017.
From a quick review of the case as it was written and the addition of damages by the law firm now handling the case, this case may be stuck in neutral for a while. The Statement of Claim has been filed but the Defendants have not been made to answer which will signal when the case is moving ahead toward resolution. Another hearing is scheduled for the end of January.
The lawsuit was filed in August of last year challenging the language and the application of the LTRA 2008 law which has been at the heart of the Samoa Solidarity International Group's movement as they assert the need to repeal this law because it violates the constitutional rights of Samoans under article 102 of the Samoa Constitution preventing the alienation of customary land. The lawsuit was filed by Iuni Sapolu and her daughter Josephina in August of last year. There have been 4 hearings so far but these preliminary hearings have been rather inconsequential as they are ended with a continuation or rescheduling of the case. The primary issue now in the court's review is the matter of damages that were asserted by the plaintiffs in the amount of $5 million Tala. The plaintiffs through their attorney Sapolu Law Firm are now requesting an opportunity to amend the complaint.
Part of the situation now emerging in this case is the numbers of people who are attending the case in support of the action to repeal LTRA 2008 and the Court's continued postponement of the case and hearings. The Court seems to be engaging in expensive delay tactics which are taxing the resources of SSiG Samoa and the law firm of Sapolu, and the patience or commitment of the supporters who are faithfully attending the case only to see the case continued and rescheduled. This is an expense for the plaintiffs and the supporters which should signal to the plaintiffs that the Courts and the Government are not in a hurry to try this matter. For the Plaintiffs they were aware or should have been aware of this development because the case is challenging the validity of the law that was pushed through by the Prime Minister Tuilaepa and his then Attorney General, Aumua Ming Leung Wai who in turn approved the law and sent it to the Head of State at the time, TuiAtua Tupua Tamasese, who signed the bill into law based on the Attorney General's recommendations. The former Head of State has since stated publicly that there is contradiction in the law as it now reads. TuiAtua is no longer the Head of State being relieved by the Prime Minister in 2017.
From a quick review of the case as it was written and the addition of damages by the law firm now handling the case, this case may be stuck in neutral for a while. The Statement of Claim has been filed but the Defendants have not been made to answer which will signal when the case is moving ahead toward resolution. Another hearing is scheduled for the end of January.
Land and Titles Decision for Lefaga
One of the landmark cases in modern times is the matter in regards to resolution of the lease for the Return to Paradise Beach Club which was contested and appealed after a lease was granted by the Minister of Lands and Titles subject to an agreement by the family to go back and discuss the terms of the lease which one member had granted to the Lessee. The family was unable to come to an agreement but the lease had been granted and the time to object was expired. However, the family members who were no longer in agreement with the lease petitioned for the lease to be cancelled which was then approved by the Lands and Titles court. However, the Lessee appealed and the case was brought before the Supreme Court which decided that the lands and Titles Court no longer had jurisdiction over the matter because the customary land once leased was no longer customary land but now was classified as public land. As such it had lost its customary land protections as well as the Lands and Titles Court jurisdiction and was now subject to the jurisdiction of the Supreme Court. The decision then re-approved the lease as it had been initially granted by the Minister of Lands.
The fallout from this decision has many very controversial ramifications for the protection of Customary lands. As was analyzed by Leifitaua Maua Faleauto, Esq. the case was damaging to the rights of owners of Customary lands because the conversion of customary land to public land under the process of having a Minister declare the lease valid violates the Samoa Constitution article 102 which states there shall be no alienation of customary land. In practical terms by converting customary land to public land when a lease is declared valid is in fact converting customary land to freehold land and eliminates the rights of the owners who are the extended family, to this land. What became painfully clear in the final analysis of the Chief Judge in this matter was his concern for the loss of the commercial value and the "constitutional" rights of the applicant to contest the loss of the lease however the constitutional rights of the customary land owners were never considered as requiring equal protection from this same court when it was their rights under article 102 that were in jeopardy. The court was only concerned for the rights of the wealthy lessee and their commercial investment. This was a disturbing decision and its ramifications as to the effect of LTRA 2008 on the conversion of customary lands to freehold lands show that the Courts of Samoa hold no commitment to the security of customary lands for the Samoan people, they seem to only rule for the benefit of the wealthy and the ones with power.
One of the landmark cases in modern times is the matter in regards to resolution of the lease for the Return to Paradise Beach Club which was contested and appealed after a lease was granted by the Minister of Lands and Titles subject to an agreement by the family to go back and discuss the terms of the lease which one member had granted to the Lessee. The family was unable to come to an agreement but the lease had been granted and the time to object was expired. However, the family members who were no longer in agreement with the lease petitioned for the lease to be cancelled which was then approved by the Lands and Titles court. However, the Lessee appealed and the case was brought before the Supreme Court which decided that the lands and Titles Court no longer had jurisdiction over the matter because the customary land once leased was no longer customary land but now was classified as public land. As such it had lost its customary land protections as well as the Lands and Titles Court jurisdiction and was now subject to the jurisdiction of the Supreme Court. The decision then re-approved the lease as it had been initially granted by the Minister of Lands.
The fallout from this decision has many very controversial ramifications for the protection of Customary lands. As was analyzed by Leifitaua Maua Faleauto, Esq. the case was damaging to the rights of owners of Customary lands because the conversion of customary land to public land under the process of having a Minister declare the lease valid violates the Samoa Constitution article 102 which states there shall be no alienation of customary land. In practical terms by converting customary land to public land when a lease is declared valid is in fact converting customary land to freehold land and eliminates the rights of the owners who are the extended family, to this land. What became painfully clear in the final analysis of the Chief Judge in this matter was his concern for the loss of the commercial value and the "constitutional" rights of the applicant to contest the loss of the lease however the constitutional rights of the customary land owners were never considered as requiring equal protection from this same court when it was their rights under article 102 that were in jeopardy. The court was only concerned for the rights of the wealthy lessee and their commercial investment. This was a disturbing decision and its ramifications as to the effect of LTRA 2008 on the conversion of customary lands to freehold lands show that the Courts of Samoa hold no commitment to the security of customary lands for the Samoan people, they seem to only rule for the benefit of the wealthy and the ones with power.
Police have released wrongful arrested suspect in search for anonymous blogger: Ole Palemia.
Toaipuapuaga Opapo and the Prime Minister, Tuilaepa Malielegaoi amid the Stigmata controversy. Photo courtesy of Samoa Observer
Samoa's police department has become embroiled in a tragic comedy of errors in the search for a mythical social media entity who is comparable to the Loch Ness monster but whose blog has stirred up the country in a frenzy not seen since the advent of cell phones in Samoa. The social media drama has actually morphed from posturing in the cyber world to an actual false arrest in the real world. This latest development brought into question the actions of the Police Department and how they have contributed to the volatility of an already explosive situation. In what has been named the search for Ole Palemia, the media is actually having very little to say about it although the Police held a press conference announcing they would be putting the locating of the persona known as Ole Palemia as a priority in their Police work and they were bringing specialists who would track down this culprit and bring him to justice.
Ole Palemia aka OLP, who is an anonymous blogger, posts weekly on his/her website at http://olepalemia.weebly.com regarding issues that he/she considers important. He has been part of the Facebook community for over 2 years. For a year now OLP has been primarily targeting corruption and abuse of power in the local and international Samoan community with blog posts that are controversial and quite blunt in its disapproval of certain Samoan politicians and the activities that many consider corrupt, However he/she stirred up a hornets nest in the last two weeks with an allegation directed at the Uncle of the young girl who appears to be suffering from a phenomenon known as stigmata, where the person suffering bleeds from the same locations on their body as the wounds suffered by the Savior Jesus Christ during his crucifixion.
According to the website Miracles of the Saints, the phenomenon of Stigmata is "the wounds of Jesus inflicted by God upon the body of the saint-mystic-victim soul. They consist of the five wounds of Jesus which are the nail wounds in the hands and feet, along with the wound in the side, next to the heart. They can be either visible or invisible. The main purpose of the stigmata is so the saint may suffer in union with Jesus for the conversion of sinners, that is, for the redemption of humanity." http://www.miraclesofthesaints.com.
Opapo Oeti, Toa, her husband and the new baby upon return from Rome. Photo courtesy of www.olepalemia.weebly.com
The girl in question Toaipuapuaga Opapo, lived with her Uncle (also referred to as her father) Opapo Oeti who was a Pastor for the Falelatai EFKS congregation but was later relieved of his duties as a result of the EFKS leadership perception that Rev. Opapo had refused to obey their demands to not publicize the Stigmata of his niece/daughter. Toa began suffering the Stigmata symptoms in 2016 around Easter time. The Samoan media were drawn into this whirlpool of excitement as pictures of her injuries were posted and many marveled at the sight. Included in the admirers was none other than the Prime Minister, Tuilaepa Malielegaoi.
The Prime Minister was so convinced of the authenticity of the phenomenon Toa was suffering that he had the girl, her Uncle and the girls husband flown to Rome to visit the Vatican where they were to hopefully have an audience with the Pope. This trip lasted around 6 months and while there Toa gave birth to a baby boy. They recently returned to Samoa only to be greeted by more controversy.
Since this phenomenon began passionate feelings both for and against the girl and her situation have been running at a feverish pitch especially on Social media. It has caused divisions among members of the Samoan community along religious lines and there were many who were quite vicious in criticizing the PM as well as the Uncle/Father for using the girl's misfortune for their own agendas. There were those who felt quite convinced this was a manifestation directly from God and there were messages that would be forthcoming from Toa. The majority of this antagonizing discussion was held on Facebook. A couple of weeks ago Ole Palemia wrote a blog that would start a social media melt down.
Ole Palemia (which means Prime Minister) wrote in his blog that the baby born in Rome was none other than the Father's child. This accusation set off the facebook groups in a war of words where the two sides either for or against the accusations squared off with colorful and angry comments directed at the author of the incest accusation but OLP was not bashful in defending his accusation. The entire event came to a head when the Father/Uncle of Toa made statements in the media directed at the accusations and claimed he was pursuing legal action for defamation and other claims against the blog writer. This was followed by a statement from the Police Department stating that they were looking for the individual known as Ole Palemia and would use the technical assistance of IT specialists to track him/her down and prosecute this person under the law.
After a week of investigation the police arrested a female from the village of Leone, Apia who goes by the name of Stoiraczalfosanial Lesatele (Stoira) on Facebook. Apparently the police locked her up on April 12 and then she was released 5 days later. Her crime? The police claim she violated Section 219 of the Crimes Act for communicating online the following statements: 1) "Sau oe e train leoleo ia aua o lea e koe omai a lakou koe ka'u mai I luga lakou investigations gae fai" (You come and train the police because they are revealing their own investigations online)
2) "e gofogofo lelei lava le au fai ranks ae busy solo le au su'e mai I seoli kulaga..hihii..gud larke..kalosia ia sii ai kulaga"
(the ones who are busy looking for promotions should search in hell while the ranking officers are sitting pretty. hahaha Hope they get a promotion).
Section 219 of the Crimes Act reads: 219. Harassment utilising means of electronic communication - A person is liable to imprisonment for a term not exceeding five (5) years who intentionally initiates any electronic communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using an electronic system to support severe, repeated, and hostile behaviour.
Examining the language used by Stoira on facebook, above, and the nature of the law she was charged with breaking its obvious there is a gap in the rationale used to arrest her. The consensus is that she was arrested by police in their search for OLP either because they believed her to be OLP or that they wanted to investigate whether she had information they could use to arrest the real OLP. Upon realizing that OLP was still posting online while they held Stoira in custody, they realized they had the wrong person and released her but used this law to justify the arrest.
The attorney, Iuni Sapolu and her law firm are in the process of representing her if there is any further activity in her claim against the Police for false arrest.
In the meantime the search for OLP continues. Whether he sought this or not but OLP is approaching viral myth status. Readers and commentors from Australia, New Zealand, America and Samoa are all seeking access to the groups where OLP is seen commenting. Some groups have seen requests for invitation to join their groups skyrocket in a very short time. Will there be a movie coming out? Some commentors have suggested this.
But the truth of the matter is the Police in Samoa used their authority to arrest a person who has a child of 5 years old and they did not follow proper protocols for the arrest. They arrested the wrong person and then used very insustainable evidence to justify the arrest. The problem is with the department itself which seems to be very unstable since the recent controversial split between the new commissioner Egon Keil and certain officers within the department who were able to have him arrested and jailed. This division in the Police department seems to be acceptable to the Prime Minister and Parliament. According to some the same officers who created that problem that divided the Police Department are behind the search for OLP. However, their search seems to have been amateur at best. In over two weeks and with the help of so called IT experts they have netted one false arrest and no other suspects. Its a bad reflection on the effectiveness of Samoa's police in this new world of cyber crime. It also raises the question of whether they can police cyber crime at all or are they not qualified for investigating such crimes?
One of the collateral problems associated with this controversy is that the media have effectively been silenced by fear of prosecution in reporting on this story. The main news outlet, the Samoa Observer withdrew some of the content it published of OLP's blog when they became subject to complaints and threats from the community and the political establishment. other news outlets such as Talamua.com have been towing the government line and reporting on the circumstances on a regular basis. But the effective intimidation of the main media is further evidence that the freedom of expression is not as free as it seems in Samoa. By virtue of their ability to arrest a person for blogging and posting online in a social media context raises concerns of the emerging oppression of free speech that the police are getting away with in Samoa. This is the issue all Samoans need to be aware of and watch very carefully as these and other developments play out in Samoa.
The Prime Minister was so convinced of the authenticity of the phenomenon Toa was suffering that he had the girl, her Uncle and the girls husband flown to Rome to visit the Vatican where they were to hopefully have an audience with the Pope. This trip lasted around 6 months and while there Toa gave birth to a baby boy. They recently returned to Samoa only to be greeted by more controversy.
Since this phenomenon began passionate feelings both for and against the girl and her situation have been running at a feverish pitch especially on Social media. It has caused divisions among members of the Samoan community along religious lines and there were many who were quite vicious in criticizing the PM as well as the Uncle/Father for using the girl's misfortune for their own agendas. There were those who felt quite convinced this was a manifestation directly from God and there were messages that would be forthcoming from Toa. The majority of this antagonizing discussion was held on Facebook. A couple of weeks ago Ole Palemia wrote a blog that would start a social media melt down.
Ole Palemia (which means Prime Minister) wrote in his blog that the baby born in Rome was none other than the Father's child. This accusation set off the facebook groups in a war of words where the two sides either for or against the accusations squared off with colorful and angry comments directed at the author of the incest accusation but OLP was not bashful in defending his accusation. The entire event came to a head when the Father/Uncle of Toa made statements in the media directed at the accusations and claimed he was pursuing legal action for defamation and other claims against the blog writer. This was followed by a statement from the Police Department stating that they were looking for the individual known as Ole Palemia and would use the technical assistance of IT specialists to track him/her down and prosecute this person under the law.
After a week of investigation the police arrested a female from the village of Leone, Apia who goes by the name of Stoiraczalfosanial Lesatele (Stoira) on Facebook. Apparently the police locked her up on April 12 and then she was released 5 days later. Her crime? The police claim she violated Section 219 of the Crimes Act for communicating online the following statements: 1) "Sau oe e train leoleo ia aua o lea e koe omai a lakou koe ka'u mai I luga lakou investigations gae fai" (You come and train the police because they are revealing their own investigations online)
2) "e gofogofo lelei lava le au fai ranks ae busy solo le au su'e mai I seoli kulaga..hihii..gud larke..kalosia ia sii ai kulaga"
(the ones who are busy looking for promotions should search in hell while the ranking officers are sitting pretty. hahaha Hope they get a promotion).
Section 219 of the Crimes Act reads: 219. Harassment utilising means of electronic communication - A person is liable to imprisonment for a term not exceeding five (5) years who intentionally initiates any electronic communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using an electronic system to support severe, repeated, and hostile behaviour.
Examining the language used by Stoira on facebook, above, and the nature of the law she was charged with breaking its obvious there is a gap in the rationale used to arrest her. The consensus is that she was arrested by police in their search for OLP either because they believed her to be OLP or that they wanted to investigate whether she had information they could use to arrest the real OLP. Upon realizing that OLP was still posting online while they held Stoira in custody, they realized they had the wrong person and released her but used this law to justify the arrest.
The attorney, Iuni Sapolu and her law firm are in the process of representing her if there is any further activity in her claim against the Police for false arrest.
In the meantime the search for OLP continues. Whether he sought this or not but OLP is approaching viral myth status. Readers and commentors from Australia, New Zealand, America and Samoa are all seeking access to the groups where OLP is seen commenting. Some groups have seen requests for invitation to join their groups skyrocket in a very short time. Will there be a movie coming out? Some commentors have suggested this.
But the truth of the matter is the Police in Samoa used their authority to arrest a person who has a child of 5 years old and they did not follow proper protocols for the arrest. They arrested the wrong person and then used very insustainable evidence to justify the arrest. The problem is with the department itself which seems to be very unstable since the recent controversial split between the new commissioner Egon Keil and certain officers within the department who were able to have him arrested and jailed. This division in the Police department seems to be acceptable to the Prime Minister and Parliament. According to some the same officers who created that problem that divided the Police Department are behind the search for OLP. However, their search seems to have been amateur at best. In over two weeks and with the help of so called IT experts they have netted one false arrest and no other suspects. Its a bad reflection on the effectiveness of Samoa's police in this new world of cyber crime. It also raises the question of whether they can police cyber crime at all or are they not qualified for investigating such crimes?
One of the collateral problems associated with this controversy is that the media have effectively been silenced by fear of prosecution in reporting on this story. The main news outlet, the Samoa Observer withdrew some of the content it published of OLP's blog when they became subject to complaints and threats from the community and the political establishment. other news outlets such as Talamua.com have been towing the government line and reporting on the circumstances on a regular basis. But the effective intimidation of the main media is further evidence that the freedom of expression is not as free as it seems in Samoa. By virtue of their ability to arrest a person for blogging and posting online in a social media context raises concerns of the emerging oppression of free speech that the police are getting away with in Samoa. This is the issue all Samoans need to be aware of and watch very carefully as these and other developments play out in Samoa.
