Sano Malifa: Criminal libel and PM Tuilaepa’s ‘gift’ from American Samoa

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Samoa's Prime Minister, Tuilaepa Sailele Malielegaoi ... "making a fool of himself, to the delight of virtually everyone else" over media law. Image: Samoa Observer

OPINION: Samoa Observer editorial by Gatoaitele Savea Sano Malifa

Let’s face it. For every beginning there is an end. And for every end there is a reward to be extended, the quality of which would depend entirely on how keenly persevering the attempt would be.

Still, now that Christmas is behind us, and another New Year is moving along steadily as we all knew it would, perhaps the time is right to get back to that rather eager grindstone, and let’s start hacking away at those fretful scruples, one more time.

So let’s begin with the story titled “Parliament brings back Criminal Libel” which Prime Minister, Tuilaepa Sailele Malielegaoi, had for months been agonising over to the point where he literarily ended up making a fool of himself, to the delight of virtually everyone else.

Published in the Samoa Observer on 20 December 2017, the story said: “Parliament yesterday endorsed the government’s plan to re-introduce the Criminal Libel Act into the law books of Samoa.

“Abolished by the ruling Human Rights Protection Party in 2013, Members of Parliament unanimously agreed to bring back the law, when Parliament reconvened for the last time this year at Tuana’imato yesterday, 21 December 2017.”

Amazing!

-Partners-

The story went on to say: “The bill passed the first, second and third reading, within less than an hour.”

Wonderful!

‘Ghost writers’
It continued: “Prime Minister, Tuilaepa Sa’ilele Mailielegaoi, has been instrumental in bringing back the law, as part of a government-driven effort to clamp down on ‘ghost writers’ such as ‘Ole Palemia’ and others who use fake social media pages, to attack members of the public.”

Now let’s wait a second. Who were these so-called ‘ghost writers’ that Prime Minister Tuilaepa was talking about back there? Indeed, who is the chap called ‘Ole Palemia.’”

It appears that neither Prime Minister Tuilaepa nor anyone else knows!

In fact, the story doesn’t say.

All it says is that: “The Speaker of Parliament, Leaupepe Tole’afoa Fa’afisi, said the re-introduction of the law was expedited due to the urgent nature of the issues it sets out to deal with.”

Urgent? How urgent?

If the re-introduction of the law was urgent, why is it that the entire police force had not been activated with the idea of turning every stone upside down – pardon the pun – to ensure that this joker named ‘O le Palemia’ whom it seems everyone is afraid of, is found and be thrown in jail where he rightly belongs?

Now wait.

Joining the circus
We’ve got the Minister of Justice and the Courts Administration, Fa’aolesa Katopau Ainuu, joining the circus.

As the joker who introduced the Criminal Libel Bill in Parliament, he said: “The law is not new. This amendment is in relation to defamation.”

He went on to explain: “Currently, there is a clause to have this case before the Court for a civil claim. The amendment today is to add on the criminal prosecution for defamation.”

“People have asked as to why we need to reinstate the criminal libel when the matter can be dealt with through civil.”

Fa’aolesa also said: “In a civil claim, there is a need for lawyers to represent your case and most of our people cannot afford a lawyer; whereas (with) Criminal Libel the matter can be prosecuted by the police and you would not need a lawyer.”

Now isn’t that wonderful!

Is he saying that if you were ‘O le Palemia’, you could go on and accuse Samoa’s political leaders of all sorts of alleged criminal activities including being corrupt and fraudulent, and you would still not be prosecuted for doing so by the police?

Legal opinions
According to the Minister of Justice Fa’aolesa, the Law of Criminal Libel was “abolished back in 2013 based on legal opinions of some lawyers.”

“However, the government sees the need to reinstate this law following requests by members of the public who want to pursue cases before the court, but cannot afford a legal counsel.”

He said: “The Bill amends the Crimes Act 2013 with introduction of a new Part 9A for crimes against a person’s reputation.”

“This Part is ‘False statement causing harm to a person’s reputation.”

“The rationale for introducing the offence is to address harm done to a person’s reputation by another person who publishes false information about that person.”

“This is similar to defamatory libel and although civil proceedings for defamation are available to the public, the reality is, not all Samoans have access to these proceedings as not all are able to afford legal services required for such proceedings.”

He’s probably right.

Criminal complaint
Later still, on 8 May 2008, the Attorney General of the government of American Samoa, Fepulea’i Authur Ripley, filed a claim in the District Court of American Samoa naming Katopau Ainu’u, as the defendant in a criminal complaint.

Katopau was accused of having committed two crimes, one of Embezzlement and the other of Criminal Fraud. On the charge of Embezzlement, court documents showed that “on 3 November 2006, the Defendant knowingly misappropriated funds which had been entrusted to him in violation of ASCA 46.4104, a class C felony punishable by imprisonment for up to seven years, a fine of up to double the amount gained by the crime, or both.”

On the charge of Criminal Fraud, court documents showed that “on 3 November 2006, the Defendant knowingly and wilfully obtained money by the use of a scheme to defraud by false pretences.”

To that extent, the Defendant agreed to represent the victims(s) as an attorney, in a matai case; on that day, Defendant took payment from victim(s) as payment to represent victim(s) in a count case, while at the same time knowing that the Defendant was moving off-shore …”

Now 10 years later, in March 2016, Samoa held its general elections and the defendant, Katopau Ainu’u, who was now holding the matai title of Fa’aolesa, ran for Parliament and he was elected.

What’s undisputed though is that Fa’aolesa Katopau Ainu’u had worked as a lawyer in American Samoa at one point in time. Later when he moved to Samoa, he entered Parliament and became the Minister of Justice.

Ghosts of the past
Later, when Prime Minister Tuilapea chose his cabinet, he named Fa’aolesa the Minister of Justice, and shortly afterwards the ghosts of the past, having stirred into life, emerged to give both Fa’aolesa and Tuilaepa a hard time.

Asked for a comment on the reports, Tuilaepa said he was “shocked” by them. “I have spoken with the Minister (concerned) who is (also) shocked (by them).”

Tuilaepa revealed that Fa’aolesa “has contacted his lawyer in American Samoa who is also shocked about it, and (from what he’s been told) the matter had been resolved a long time ago but it has been dug up again.”

Shocked?

The editorial that was published in the Samoa Observer at the time was titled: Prime Minister Tuilaepa’s gift from American Samoa.

What is the meaning of the word “shock” these two are talking about here? Please don’t ask me to try and explain anything.

All I can say is that when this newspaper asked Fa’aolesa for a comment, he said he was unaware about the warrant; he then asked for a copy so that he could look at it before he could comment.

Copies of the “warrant” were sent to him but by press time that night he had not responded.

Investigation
Over there in American Samoa at the time, the current Attorney-General, Talauega Eleasalo Ale, said his office was conducting an investigation into the matter.

“This is something that happened before I came into office,” he said. “(We) are definitely looking into it.”

He also said all he knew was that “the matter is still valid and apparently it’s still in the books of the Court, and therefore it is still outstanding.”

“It’s a matter that’s up to the law enforcement and the Police to enforce if the person is in our jurisdiction.”

“(As for) the background and reasons for the warrant, those facts are still out there. I don’t know what happened.”

He explained: “The warrant is valid and if he is in American Samoan jurisdiction he can be arrested by the Police in pursuant to the Court’s warrant.”

Here in Samoa on the other hand, it appears that the embattled Minister of Justice, Courts and Administration, Fa’aolesa Katopau Ainu’u, is a worried man.

He is apparently seeking to quash the outstanding warrant of arrest made against him in American Samoa with the aid of his American Samoan lawyer, he revealed in a telephone interview.

“My lawyer will make a motion to quash the warrant,” he said. “The delay is because they are trying to find the affidavit to support the warrant.”

“There was nothing at the Attorney-General’s office and they are also looking for a copy from the Court.”

Asked if he was going to American Samoa when the matter would be heard in Court, Fa’aolesa said no. “It’s being done by my lawyer,” he said.

“Once I get the results I’ll call you for my official response. In the meantime, I cannot say anything more that might compromise my lawyer’s work.”

No call
To date, Fa’aolesa has not called.

As for Prime Minister Tuilaepa Sailele Malielegaoi, is it possible that he would one day soon, turn his back on his gift, from American Samoa.

Indeed, can the law of Criminal Libel be used to prosecute government officials, who are alleged to have committed fraud and embezzlement, in corrupt ridden Samoa?

Just a thought!

Have a peaceful Sunday Samoa. God bless!

Editorial republished from the Samoa Observer via Pacific Media Watch.

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