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Supreme Court of Samoa |
IN THE SUPREME COURT OF SAMOA
HELD AT APIA
IN THE MATTER: of the Constitution of the
Independent State of Samoa
AND
IN THE MATTER: of an application to the Supreme Court
pursuant to Article 4 of the Constitution
BETWEEN:
THE HONOURABLE TUIATUA TUPUA TAMASESE EFI
of Apia, Leader of the Opposition
APPLICANT
AND:
THE ATTORNEY-GENERAL OF SAMOA
RESPONDENT
Counsels: Mr K. Robinson for the Applicant
Ms Brenda Heather (with her Mr George Latu) for the Respondent
Date of Hearing: 10, 11, 12, 13, 15 March 1999, 5 January 2000
Date of Decision: 1 August 2000
REASONS FOR A DECISION OF WILSON J.
THE NATURE OF THESE PROCEEDINGS
In this case the primary issues are whether the previous Prime Minister, during his Administration, and later the present Prime Minister, during the first part of the present Administration, and officers of the Executive Government breached the Constitution by infringing the applicant’s fundamental rights to freedom of expression and/or freedom from discrimination and, if so, what orders should be made (under Article 4) to secure to the applicant the enjoyment his rights.
THE PLEADINGS
The amended statement of claim
By the amended statement of claim the applicant pleaded that he, at all material times, has been and remains a citizen of Samoa, a Member of the Legislative Assembly and the Leader of the Opposition. He further pleaded that the respondent is sued on behalf of the Prime Minister, the Minister of Broadcasting, the Board of Directors of Televise Samoa Corporation and the Broadcasting Department, and “of such other Ministers and officials as may be found to be involved in any relevant breach of any of the rights of the applicant pursuant to the Constitution of Samoa.” He further pleaded that the respondent is the appropriate respondent to these proceedings by virtue of section 9 of the Government Proceedings Act 1974.
After referring, in the amended statement of claim, to the relevant articles of the Constitution the applicant pleaded that “as part of his constitutional responsibilities and duties as a Member of Parliament, and particularly as Leader of the Opposition, it is necessary for the applicant to be able to address the people of his constituency, and all the people of Samoa, by radio and by television, and the press, so that they may be aware of the applicant’s views, and those of his Party, on all important questions relating to the well- being and good government of Samoa.”
The applicant further pleaded “that the State is empowered by various legislation to broadcast radio and television services to keep the people of Samoa informed of matters of public interest and of the views or policies of their elected representatives on major issues, such being amongst the usual purposes of broadcasting.”
The applicant then alleged, in his amended statement of claim, that the State owns and publishes free of charge a newspaper known as “Savali” and that (in paragraph 10) the Government, since its election to office in 1989, and particularly from 1993 onwards, his pursued or permitted a policy of refusing to allow the Leader of the Opposition, his Party, or other groups having standing in the community, fair and constitutionally proper access to, or coverage by, the State-owned media, Televise Samoa, Radio 2AP, or the Savali newspaper.
The applicant then (in paragraph 11 of his pleading) provided “examples of the application of the policy” including (but no limited to)–
“A. The failure of such news media to publish any or any adequate report of (certain listed) events (in 1994, 1995, 1997 and 1998).”
“B. Statements made in Parliament by the Honourable Prime Minister (Tofilau Eti Alesana) and/or other Ministers, to the effect that the Opposition would not be allowed the use of such media while it continued ‘to talk rubbish’ or to ‘propagate lies’, and/or without first obtaining the permission of the Prime Minister or some other Minister.”
“C. Applying improper pressure to privately-owned media, for example Radio Polynesia, or the Samoan Observer newspaper, not to publish or to continue publication of material perceived by the government as harmful to its interests.”
“D. Specifically refusing on or about 10 October 1997 to confirm to the Leader of the Opposition that he had unrestricted access to such media.”
The applicant then further pleaded (in paragraph 12 of his amended statement of claim) that “such policy has been pursued and applied by reason of the political opinions of the applicant” and “subjects him to disability or restriction on the grounds of his political opinions, and was intended to, and has (had the effect of), materially interfering with the exercise by the applicant of his constitutional duties as a Member of Parliament and, particularly, as Leader of the Opposition.”
The applicant finally pleaded (in paragraph 13 of his amended statement of claim) “that, by so doing, the Government and/or the said Ministers and officials have acted without lawful authority, and in breach of the ...... provisions of Articles 13(1)(a) and 15(2) of the Constitution.”
The applicant, in his prayer for relief, sought orders:
“(a) pursuant to Article 4 of the Constitution, directing the Government of Samoa and every Minister and official thereof to remove forthwith every restraint upon the use by the applicant of Government broadcasting, television and newspaper services rendered unlawful by Articles 13(1) and/or 15(2) of the Constitution;”
“(b) that the respondent do pay to the applicant his costs of these proceedings;”
“(c) such further or other order as may appear just, and may appear necessary or desirable, to give effect to any other order made herein.”
The amended statement of defence
By the amended statement of defence the respondent made no admissions and put the applicant to the proof of each and every of the allegations of fact made in the amended statement of claim.
By way of a double and alternative plea of denial/avoidance the respondent denied the allegation of fact in paragraph 10 of the amended statement of claim and pleaded that “even if there was such a policy (which the respondent vigorously denies), such a policy or examples of such a policy occurred under the previous Administration of the former Prime Minister and Minister of Broadcasting the Honourable Tofilau Eti Alesana, and not in the present Administration of the present Prime Minister and Minister of Broadcasting, the Honourable Tuilaepa Sailele Malielegaoi.
The respondent, in the amended statement of defence, did not deny any or all of the examples of the policy alleged in paragraph 10 of the amended statement of claim. She simply did not admit “any of the (the said) examples”, thereby, putting the applicant to the proof. The respondent repeated her response to all the examples listed by the applicant in paragraph 11 of his amended statement of claim and re-asserted that such examples “refer to instances under the previous Administration and not the present Administration of the Honourable Tuilaepa Sailele Malielegaoi.”
There was no plea of confession and avoidance in response to the allegations in paragraph 12 of the amended statement of claim. There was a denial of “the (said) allegations.”
With reference to the allegations in paragraph 13 of the amended statement of claim, the respondent did plead by way of a double and alternative plea of denial/avoidance. Having denied the said allegation, the respondent purported to “repeat (her) response” and pleaded “that there is no evidence that the present government has pursued or permitted a policy of refusing to allow the Leader of the Opposition or his Party, or other groups having standing in the community, fair and constitutionally proper access to, or coverage by, the State-owned media, Televise Samoa, Radio 2AP or the Savali newspaper.”
I pause to observe that the pleadings immediately suggest the necessity to examine the evidence of alleged constitutional infringements, firstly, in the period from 1993 to 1998 (during the previous Administration of the former Prime Minister and Minister of Broadcasting, the Honourable Tofilau Eti Alesana, and, secondly, in the period of the present Administration of the Prime Minister and Minister of Broadcasting, the Honourable Tuilaepa Sailele Malielegaoi.
HANSARD EXTRACTS
I also observe immediately that exhibits A4, A5 and A6 provide an important insight into the policy of “the (former) Prime Minister and Minister of Broadcasting” and, by inference, the practice of “the Board of Directors of Televise Samoa Corporation” and the State-owned media, including Radio 2AP, and the Savali newspaper, during what the respondent called “the previous Administration of ..... the Honourable Tofilau Eti Alesana.” In Hansard of 7 December 1993 (exhibit A6) at page 1040 - the following statements are attributed to the Honourable Tofilau Eti Alesana:
“If it is the wish of the Leader of the Opposition to seek a TV interview, you can make a request to the Director of TV. The request goes there, but I make the final decision when it reaches me. I will have the final say on whether or not to grant access. When it comes to me, I will ask: ‘Why exactly do you want access?’ - lest access is given to someone who exploits the opportunity, to cause disruption in the country. The TV Corporation does not accept people who say in an interview that Tofilau and a Minister have set up a company. TV will not accept that kind of interview. Nor is it acceptable for someone to say that Polynesian is broke, because Parliament is the proper forum for that.”
In Hansard of 14 July 1994 (exhibit A5) - at page 1041 et seq. - the following statements are attributed to the Honourable Tuilaepa Sailele Malielegaoi, as Deputy Prime Minister, in referring to government policy at that time:
“It is a fundamental feature of government to exercise caution with those who stir up the country not only in words. It is legitimate to criticise the government but not use words that lead to strife. That is the one guideline for government as to what may lead to strife in the country. Mr Speaker, regarding this type of person who causes stife, it is the duty of any government to exercise the greatest caution to ensure that these people do not exploit the TV and have uncensored access to the radio ........ As to the Opposition, you are free to take the initiative if you want access, and you cannot stand aside and wait. Similarly with government, if they want access, they have to take the initiative ...... ........ In reference to the matter raised by the Member, there should be a condition that provides that you do not stir up trouble in the country.
(In my judgment it is clear that the Prime Minister used the word ‘caution’ in the sense of ‘control’.)
In Hansard of 18 June 1997 (exhibit A4) - at pages 205 to 208 - the following statements are attributed to the Honourable Tofilau Eti Alesana:
“..... I want to clarify .... the question of access to ... I have informed the Leader of the Opposition that, when he wishes ... let me know and the TV will come to cover his address. There are addresses which are important for the country which they (the country) would like to hear. These should be brought forward; to TV and radio so that the country can listen. But addresses that criticise, criticise, criticise, this is a waste of TV time. I am waiting for the Leader of the Opposition to say if it is tomorrow, then I can inform TV to come .....”
“.... On the question of access, I want to say ..... yet you are opposed to government raising taxations. We are at a loss about the logic. As to the address last night, it should be televised because stories have been doing the rounds for a long time and the country needs to be informed. I know the Leader of the Opposition is preparing to respond to what I said last night and he should have access to TV so that the country can hear his response, to what I said last night ..... This is the reason why. But, if he does not approach me, then it shall continue as you are aware. On the one hand, they request access, and yet, when the opportunity is given, they turn away.”
“Now, regarding the question of access for the Leader of the Opposition, you are all listening. I have already told him that the reason for the ban is so that he will learn that it is a bad thing what he did to me when I was Leader of the Opposition ........ If you want access, you will have to come and talk to me. The Leader of the Opposition does not want to do this. ......”
“I have said about ten times to him - ‘change your behaviour.’ You are right, I said: ‘Change your behaviour; your behaviour of causing division - refrain from doing this; your behaviour of speaking unfavourably of personalities; you must refrain from doing this; your behaviour of going to New Zealand to gallivant, you must refrain from doing this; these are the traits I am referring to; if you come to discuss with me, I shall advise you ........ I have asked you many times to change your behaviour; now I am going to say to you again to change your behaviour’.”
(The emphasis in these three passages from Hansard is mine.)
THE RELEVANT CONSTITUTIONAL PROVISIONS
Article 2 of the Constitution of the Independent State of Samoa (which is to be found in Part I) provides:
“2. The Supreme Law - (1) This Constitution shall be the supreme law of Samoa.
(2) Any existing law and any law passed after the date of coming into force of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
Article 4 of the Constitution (which is to be found in Part II - Fundamental Rights) provides:
“4. Remedies for enforcement of rights - (1) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.
(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.”
One of the fundamental rights conferred and preserved by Article 13 of the Constitution is known as the right to freedom of expression.
Article 13 provides:
“13. Rights regarding freedom of speech, assembly, association, movement and residence - (1) All citizens of Western Samoa shall have the right:
(a) To freedom of speech and expression;
(b) To assemble peaceably and without arms;
(c) To form associations or unions; and
(d) To move freely throughout Western Samoa and to reside in any part thereof.
(2) Nothing in subclause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that subclause in the interests of national security, friendly relations with other States, or public order or morals, for protecting the privileges of the Legislative Assembly, for preventing the disclosure of information received in confidence, or for preventing contempt of Court, defamation or incitement to any offence.
(3) ........................
(4) ........................
Another fundamental right conferred and preserved by Article 15 of the Constitution is known sometimes as the right to freedom from discrimination (or freedom from discriminatory executive or administrative action).
Article 15 provides:
“15. Freedom from discriminatory legislation - (1) All persons are equal before the law and entitled to equal protection under the law.
(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them.
(3) Nothing in this Article shall:
(a) Prevent the prescription of qualifications for the service of Western Samoa or the service of a body corporate directly established under the law; or
(b) Prevent the making of any provision for the protection or advancement of women or children or of any socially or educationally retarded class of persons.
(4) Nothing in this Article shall affect the operation of any existing law or the maintenance by the State of any executive or administrative practice being observed on Independence Day:
PROVIDED THAT the State shall direct its policy towards the progressive removal of any disability or restriction which has been imposed on any of the grounds referred to in clause (2) and of any privilege or advantage which has been conferred on any of those grounds.”
APPROPRIATE ORDERS OPEN TO THE APPLICANT
In my opinion, the applicant, who claims the rights to freedom of expression and freedom from discrimination (or freedom from discriminatory executive or administrative action), is entitled to seek, if it is necessary and appropriate, declaratory orders determining questions as to the interpretation of Articles 13 and 15 of the Constitution, viz.:-
Whether or not the applicant is entitled to declaratory orders in his favour, I do not think that additional orders by way of injunction requiring the removal of a ban or restriction are either necessary or appropriate at this time.
I do not think that orders directed specifically towards the Heads of the government-controlled media or any other officials are likely to be necessary and appropriate at this time.
THE WITNESSES AND THE DOCUMENTARY EVIDENCE
The first witness was Tuiatua Tupua Tamasese Efi, the applicant. In his affidavit sworn on 18 February 1998 (exhibit A1), the applicant annexed a true copy of the report published in the Savali newspaper on 16 May 1997 (the misprint ‘1977’ appears) in which he deposed that there was “a statement made by the Prime Minister ........ in which he is reported as confirming the continued existence of (a) restriction upon my access to radio and television.” Whilst the applicant’s own complaints regarding such a restriction are certainly reported in that edition, there is nothing to indicate that the then Prime Minister had, in any way, “confirmed the continued existence of a restriction” other than the quoted passage from the 2AP news report of Malaeulu John Solofa:
“ ‘... and Prime Minister Hon. Tofilau Eti Alesana has continuously asked the Opposition Leader to discuss his intentions with the Prime Minister who is also the Minister for Broadcasting and National Televise Samoa’.”
In cross-examination by the Attorney-General the applicant was asked to “read the exact words that you say reflects a statement made by the Prime Minister in which he confirms the continued existence of the restriction of access to radio and television.” The applicant was unable to do so; he did refer to what he called “the coded language” that had been used by the Prime Minister to cover the ban, and he did direct attention to the Hansard report of June 1997 [re not having access until he (the Leader of the Opposition) “changes his conduct”].
Also annexed inter alia was the translation of a letter, dated 23 October 1997 from the Director of Broadcasting, Kika Ah Kau, to the applicant (the translation of which was disputed) in which the Director purported to assert:
“With respect, I want to set the record straight. I said: ‘In my meeting with the Prime Minister .... I raised ...... (he) replied ........ As to your question whether the ban as announced in Parliament still applies, yes indeed that is the answer of the old man (referring to the Prime Minister)’.”
(The passage underlined was the one in dispute.)
Exhibit A1 contains a series of assertions that “such restriction was first imposed upon me during 1983/86 when the Human Rights Protection Party first came to power, and has continued since 1989, when they attained power again,” that “it was most recently re-asserted in correspondence between the Director of Broadcasting and me (being letters dated 10 and 23 October 1997)....”, and how “such restrictions” have impacted upon his rights. It also explains his reason for “not (seeking) the Prime Minister’s permission to broadcast.”
In his affidavit sworn on 9 March 1999 (exhibit A2), the applicant deposed inter alia:
“3. That I have brought this action because I have become increasingly concerned at the restrictions which have been placed upon me personally in my official capacity, and on the SNDP, in the use of the government-controlled news media ........
In cross-examination, Tupua was pressed about the issue of whether, assuming that the Prime Minister had laid down a condition that he (Tupua) would not have access to the government-controlled media unless he (Tupua) went to see him (the Prime Minister), he had ever accepted the invitation. He replied in the end:
“I did not.”
and he went on to explain his reason why he did not.
When being tested by cross-examination as to why he (Tupua) did not complain to TV Samoa for not having broadcast the whole or part of his address given at the seminar at NUS in February 1998, if there was a ban in existence, he said in evidence:
“I didn’t complain to (Televise Samoa). I raised the matter with the university authorities ...... I didn’t, because I knew that the people who were making the policy were not the TV director or the people there. I knew that it was the Government (the Minister of Broadcasting) and that (was it)......”
When it was suggested to Tupua that he had access to the media through the radio broadcasts of Parliament, he agreed that “that is access to the media, certainly”, but he went on to state:
“I think that any fair-minded person who listens to the radio broadcasts of Parliament would share my view that it leaves much to be desired. In fact, .... I am not talking about the normal ‘cut and thrust’ of debate. I am talking about breaches of fundamental rights.”
Tupua, having made that point strongly, then made a number of concessions. The cross-examination went like this:
“Q. So, in fact, when you made your complaints about access to 2AP, you had access to 2AP?
but he went on to assert that the essence of his complaint was not about the quality of coverage; it was about access.
When cross-examined as to why he did not write formally to any of the government-controlled media until October 1997, he said:
“.... to be quite honest, the reason why I .... didn’t bother them was because they didn’t make the decisions. I addressed the issues to the people who I knew made the decisions....”
He went on to provide some insight into the credibility issues that arise in relation to the correspondence between himself and Kika Ah Kau in October 1997. He said:
“When I wrote that letter to them, I had contemplated, at that point, litigation as a way of remedying what seemed to me to be a grave injustice.”
When it was put squarely to Tupua that “far from there being a ban or a restriction either in the past or at present, (his) views had been aired over 2AP, in Savali and on TV Samoa,” he replied:
“Yes, I want to make some reference to make my point ......”
and he went on to explain the apparent absence of any restriction “since Tuilaepa got into power”, and, notwithstanding his earlier assertion to the contrary, he acknowledged that his recent concerns were related to issues of the quality and balance in the media coverage.
When it was suggested to him that he did not really know whether his access was restricted because he had not “taken up (Tofilau’s) invitation to go over to see him” to discuss the matter, Tupua gave a reply which was, in my judgment, blunt and to the point:
“I assessed the situation after many many years of trying and it seemed to me, from what he said in the House, that it was quite pointless.”
Although Tupua maintained that he did make approaches to the Heads of the government-controlled media agencies ‘to seek access’, he was unable, apart for the correspondence with Kika Ah Kau in 1997, to point to any correspondence or other evidence to substantiate his contention.
Tupua was pressed, when under cross-examination, to say whether in either of his affidavits he had provided or referred to “a present or recent example of the ban” which he alleged still exists.
His acknowledgment that he did not make any complaint about the non-reporting of a speech of his (in January 1999), in contrast to the reporting of the maiden speech of Kota Peteru, impacted upon his credibility and the reliability of his evidence as to “current denial of access”. I would have been more likely to have accepted his evidence of a “current denial of access” if he had been able to point to evidence that he lodged complaints.
In fact, his answer to the blunt question:
“Did you make a complaint?”
was:
“No, if I were to make complaints about unfair reporting (by) government media, it would be taking up so much of my time.”
Tupua admitted that he had not approached the government media since 1998. He said, in acknowledging that, that he had not:
“Given my experience, it’s a futile exercise ........”
The second witness for the applicant was Faiesea Lei Sam Matafeo, a previous employee of Televise Samoa. In her affidavit sworn on 8 March 1999 (exhibit A9), she deposed to having been first a senior reporter and later acting programme manager in the period from May 1993 (when Televise Samoa commenced operations) through to July 1995. She also deposed to the fact that, up to the time that she left in July 1995, there was no written instruction that was brought to her notice forbidding filming or reporting of the Leader of the Opposition or the Opposition in general. To that extent her evidence did not assist the applicant’s case. However, Faiesea Lei Sam Matafeo went on, in her affidavit, to provide the applicant with some evidence (of minimal weight) to the effect that “there was a common understanding within the Broadcasting Service that political comment that would reflect adversely on the Government was not to be broadcast; this was conveyed by the reaction of Tupai Kuka (now deceased), who was the Director. She gave some examples of how that “common understanding” developed, some of which comprised hearsay evidence (which was therefore inadmissible) and others of which were either speculation or equivocal or else they did not advance the case for the applicant (for example, the use of the march footage, in 1994, in relation to the introduction of the VAGST and the use of the footage of an interview with the leaders of Tumua and Pule).
The third witness for the applicant was Maiava Meleifua Matamea, the editor of “The Samoa Weekly”, whose affidavit sworn on 9 March 1999 became exhibit A8. His evidence mostly related to the circumstances surrounding a press conference held by the applicant on 14 February 1994.
That, according to him, representatives of Televise Samoa and Radio 2AP attended that press conference is hardly evidence supporting the applicant’s case, except to the extent that his evidence was pointing (not very strongly) to the conclusion that Televise Samoa never televised that press conference as a result of some Government directives. Through Maiava Meleifua Matamea a number of exhibits were tendered, and evidence was adduced as to what his newspaper published in relation to the issue of the SNDP trying to get coverage on television of the Tumua and Pule marches. Some photographs were tendered.
When under cross-examination, Maiava Meleifua Matamea was asked why the press conference of 14 February 1994 was not aired on Televise Samoa, but he did not seem to know, he gave no reason, and he certainly did not give the reason that some Government directive applied.
He was asked, in effect, whether he knew, of his own knowledge, of the existence “at present” of a ban restricting the applicant’s use of the government media, and he only referred to what he had heard (“on the radio”) the former Prime Minister say in Parliament about a “a ban”, about the applicant “causing trouble”, and about him needing to “change (his) conduct.” All he could say was:
“In 1999 till the present time I think that that still existed. In addition, I heard in 1997 that this ban is still continued ...... I feel that perhaps it is still existing in 1998. I never heard in Parliament anyone saying the ban has been lifted.”
(The emphasis is mine).
The fourth witness for the applicant was Sua Viliamu Sio, General Secretary of the Samoan National Union of Workers. In his affidavit sworn on 8 March 1999 (exhibit A12) he immediately drew attention to the narrow focus of what he could depose to and, in a sense, the limited weight of his testimony. He deposed:
“.... I do not know whether there has been an official ban on broadcasts by the Leader of the Opposition and his Party .......”
but he then gave some circumstantial evidence by stating:
“.... but I am able to say however that (such broadcasts) have very rarely occurred.”
He went on to depose to the wishes of his union and its attitude to “open debate.” Far from referring to an absence of the applicant’s exposure on the media, he deposed to the applicant having “some space on Televise Samoa” on the issue of the passport scandal and “being on Televise Samoa ... as President of Manu Samoa .... and when he thanked the New Zealand Army for building a bridge in his electorate.”
As was the case with the previous witness and without deposing to any knowledge on his part of the existence of a ban restricting the applicant’s use of the government-controlled media, he referred to the former Prime Minister “consistently replying” in the Parliament that “(access) will not happen until (the applicant) comes to see him.”
The fears of Mr Corry Keil, the General Manager of the FM Radio station, as were apparently expressed to Sua Viliamu Sio, were as lacking in probative value in the context of these proceedings as they were hearsay (and, therefore, in breach of the rules of evidence). I therefore put them out of my mind.
I found Sua Viliamu Sio’s observations as to the reasons for non-use by Televise Samoa and Radio 2AP of the Union’s press releases on its efforts to seek an increase in the minimum wage were in the realm of conjecture.
When under cross-examination, Sua Viliamu Sio was led to remind the Court that debates in the Parliament (for example, in relation to the passport scandal) were broadcast simultaneously on Radio 2AP.
The fifth witness for the applicant was Fuimaono Fereti, a journalist and researcher and a former editor of the Samoa Observer newspaper. He deposed, in his affidavit sworn on 9 March 1999 (exhibit A13), to being related to the applicant and being the General Secretary of the Tumua and Pule movement. He also explained why he took a special interest in the Radio 2AP broadcasts from Parliament. He expressed his recollection of what “the former Prime Minister and other Ministers said (in 1997)” about the so-called ban in these terms:
“.... that the applicant and his Party would not be given broadcasting time on the government-owned Radio and TV because they caused trouble.”
Although that portion of the affidavit puts a gloss upon what was a conditional “ban”, Fuimaono Fereti, quite properly, referred to the fact that “such (Ministerial) statements are recorded in Hansard.”
Fuimaono Fereti further deposed to some of the criticism by the Government, in the period prior to June 1998, of the newspaper for whom he worked.
Whilst under cross-examination by Mr Latu, Fuimaono Fereti explained the practice of the newspaper regarding information received by it prior to publication and matters of editorial practice and policy.
The sixth witness for the applicant was Gisa Gaufa Salesa, an experienced translator, and she gave evidence regarding the disputed translation of Kika Ah Kau’s letter dated 23 October 1997 to the applicant (previously referred to). I accept her testimony to the effect that the disputed passage in the letter should not read:
“As to your question whether the ban as announced in Parliament still applies, yes, indeed, that is the answer of the old man.”
but, instead, should read:
“As regarding your question in your letter whether the (ban) is still on as talked about in your debate in Parliament, that is the answer from the old man.”
- see the bundle which became exhibit A14. However, under cross-examination Gisa Gaufa Salesa agreed that the English words “taboo” and “ban” can be used interchangeably. I accept that evidence.
The seventh witness for the applicant was Filifilia Tamasese, the wife of the applicant. In her affidavit said to be dated 8 March 1999, exhibit A15, which, for some unexplained reason, is unsworn, she purported inter alia to give her version of the events surrounding the correspondence between the applicant and Kika Ah Kau and Leota Uelese Petaia in October 1997. She purported to state, in particular, what happened when she, on her husband’s behalf, went to Leota Uelese Petaia’s office. She said that he “appeared very agitated and he almost immediately began to shout at me saying ‘What are you people trying to do to me? Why was I singled out? Why was the letter that Tupua sent to me put in the paper when Kika’s wasn’t?’ He said those things even before I had said I had come to ask for a response to the published letter.”
Filifilia Tamasese then stated:
“...... I said to Leota Uelese Petaia to calm down. Eventually I asked: ‘What is your reply then to the letter requesting air time?”
According to her, Leota Uelese Petaia replied:
“Why ask me? I don’t make policy. Didn’t you listen to Parliament today to the Prime Minister? The Prime Minister said that Tupua is banned from Government media. That’s your answer. ‘No, I am not going to write; it was made clear in Parliament today.”
She then went on to state that, “from that time till now”, no written response had been received from Leota Uelese Petaia, and Televise Samoa “have not approached Tupua for comment or coverage on any current issues or matters of political importance.”
I pause to observe that this evidence, non-sworn as it was, is in sharp contrast with the sworn evidence of Leota Uelese Petaia.
During cross-examination, Filifilia Tamasese admitted that the applicant’s letter dated 10 October 1997 was delivered by her to Leota Uelese Petaia’s office on that date, when Leota was actually on leave and not in his office, and that a copy of that letter was published in the Sunday Samoan dated 12 October 1997 (exhibit R1) before Leota Uelese Petaia would have seen the letter.
She also volunteered something not in the “affidavit”, namely that she had said to Leota at his office not only to calm down but also: “you are only harming yourself.”
The eighth witness for the applicant was Tipi Autagavaia, a former reporter for Televise Samoa in the period 1993 to May 1995. This witness deposed, in an affidavit sworn on 8 March 1999, to having attended a press conference on 14 February 1994 at which the main topic was the Opposition’s views regarding the introduction of the 10% VAGST in Samoa. The press conference was at the applicant’s home. The Televise Samoa camera team recorded the whole press conference on tape.
Tipi Autagavaia deposed to the fact that the late Tupai Kuka, the Director of the Broadcasting Department at that time, had retained possession of the tape which, in the end, was not aired that evening. This was some circumstantial evidence pointing to the conclusion that there was in existence some restriction. This evidence, along with other circumstantial evidence, amounted to something more than mere conjecture, guess-work or surmise, and led me ultimately to the conclusion that at that time, viz. February 1994, a restriction of some sort (and probably neither formal nor in writing) was in place [see Nominal Defendant v Owens (1978) 22 ALR 128 at 132, and Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352]. In this respect the applicant discharged the onus of proof which was on him. The standard of proof is proof on the balance of probabilities, and a party on whom the onus of proof lies and relying upon circumstantial evidence does not have to exclude any reasonable hypothesis inconsistent with the fact to be proved (as is the case in criminal cases, when the onus is on the prosecution and the standard of proof is beyond reasonable doubt).
A further fact that was deposed to was the advice given by the late Tupai Kuka “to stay away from these press conferences by the Leader of the Opposition.”
This witness at no time purported to give direct evidence (either orally or by affidavit) as to the existence of a ban or restriction.
Whilst under cross-examination Tipi Autagavaia explained the procedure for gathering information likely to be broadcast on the TV news and the process of editing. However, he was adamant that the tape of the press conference of February 1994 was “good” and there was no possibility of it not having been “aired” because of a technical problem or because of editing or the like. In fact, he went on to state:
“He (Tupai Kuka) stopped the tape from being aired on the news bulletin.”
but he acknowledged that he didn’t know “exactly why” it was not aired.
When he was further cross-examined, he ultimately testified to the effect that, as at the time of giving evidence (March 1999), he was unable to confirm the existence of a ban on the access of the applicant to the government-controlled media, but, as I indicated earlier, he at no time had purported to give direct evidence to that effect.
The ninth witness for the applicant was Asofou Soo, the Head of the History Department of the National University of Samoa, whose affidavit sworn on 9 March 1999 was tendered and it became exhibit A17. In his affidavit he deposed to the unexplained failure of Televise Samoa in September/October 1998 to show (or make arrangements to show), as a news item, the applicant as a speaker at a History Department Seminar talking about how the Constitution was working in practice. In his oral evidence he explained that no-one from Televise Samoa was at the Seminar that day, but that the NUS film unit was there and filmed the applicant’s address. He further stated that he was unable to say “with complete certainty” why Televise Samoa was absent that day.
As was the situation with the previous witness, he admitted in cross-examination (even though he had never purported to say that he had such direct knowledge) that he had “no direct knowledge ... of any ban on government media” in relation to the question of access by the applicant to government media.
The tenth witness for the applicant was Maposua Rudolf Keil, the owner and General Manager of Radio Polynesia Ltd. and the operator of Apia’s FM Radio station. In his affidavit sworn on 8 March 1999 (exhibit A18) he deposed to a number of incidents including, first, a 1997 phone conversation with the then Deputy Prime Minister which provided some circumstantial evidence (of little weight, I find) to support the applicant’s case; secondly, an apparent change of policy on the part of the Government regarding Ministers giving interviews on FM Radio, and, thirdly, his speculation as to the motives of a person responsible for firing a bullet which was shot through a window of his private office in 1994. In the light of the oral evidence given during cross-examination of Maposua Rudolf Keil, I concluded that his evidence regarding the bullet incident was truly in the realm of conjecture and speculation, and, therefore, not probative of a fact (or facts) from which the applicant was seeking to have me draw an inference in his favour. Indeed, the evidence he did give, when under cross-examination, regarding the non-suspension and non-revocation of his FM Radio license and regarding the grant of a 24 hour license, was consistent with the stance adopted by the respondent and inconsistent with the applicant’s allegations against the respondent.
The first witness for the respondent was Afemata Tunumafono Apelu Aiavao, the editor of the Savali newspaper, who, in his affidavit sworn on 8 March 1999 (exhibit R3), deposed to the facts inter alia that the Savali newspaper is published twice weekly in English and once a month in a Samoan edition “which informs the public of decisions of the Land and Titles Court and other public notices,” that the English/Samoan edition “was launched on 24 January 1993 and is the official Government publication which informs the public of Government activities, relations with overseas countries, or matters of interest in the public sector,” that “since 1979 until the present time (he had) not at any time been approached by the applicant in these proceedings or any Member of the applicant’s political Party, SNDP, to publish any item in Savali,” and that he was “not aware nor (has he) received any direction from the present Government placing any ban or other restriction upon the applicant’s access to State media including the Savali newspaper.”
Afemata Tunumafono Apelu Aiavao went on to explain, when under cross-examination aimed at establishing the difference between the Savali newspaper and a true Government Gazette, that the Savali “publishes developments done by the Government to better the lives of the people” and it “covers what the Government in power is doing.” He agreed, when under cross-examination, that he “regards Savali as entirely the organ of the Government” and he later explained that the coat of arms on the front page of the Savali represents to him that it is “the official newspaper of the Government.” That evidence was never challenged. He also testified as to the circulation of Savali “to the government departments,” to overseas subscribers, to libraries and to universities, to the village mayors free (3000 copies), and to the general public free (500 English copies twice a week). He explained what he meant by “advertisements by the government” which are published in the Savali newspaper.
Further, during cross-examination, Afemata Tunumafono Apelu Aiavao acknowledged that, whilst he could not remember ever being approached by the applicant or any member of his Party with information to be published in the Savali, he had not at any time “approached the applicant or his Party for any comment or information.”
Towards the end of his time in the witness box, Afemata Tunumafono was asked to discuss the hypothetical situation that would arise if he were to be approached by the Opposition with an article for publication. The general effect of his answers was that he would “go to the Prime Minister, because he has to agree.”
As was recognised, the special situation in which the Savali newspaper finds itself (of being part way between an official gazette and simply a government-controlled newspaper) arises from the fact that it came into existence before Samoa had the Party system of Parliamentary democracy and it has continued ever since.
The second witness for the respondent was Kika Ah Kau, the Director of Broadcasting since 1995. She swore her affidavit on 8 June 1998 and it was received as an exhibit and marked exhibit R4. In that affidavit she deposed inter alia to having never personally given instructions banning or restricting the applicant or any member of the Opposition from using the facilities of the Broadcasting Department to air their political views, and to having never received instructions from the Minister of Broadcasting banning or restricting the applicant or any Opposition Member from using the facilities of the Broadcasting Department to air their political views. Kika Ah Kau gave her version of the correspondence between the applicant and herself in October 1997 and explained what she did in relation thereto. Specifically, she deposed as follows:
“6. THAT, following the receipt of the applicant’s letter of 10 October 1997, I met the Minister of Broadcasting (the former Prime Minister) and discussed the matters raised in it as is the usual procedure where matters concerning the Government (are) brought to (his) attention. The Minister’s response to the applicant’s letter was:
‘The Leader of the Opposition (the applicant) knows very well who to make the request to. He should make the request to me as the Minister and not to you (the Director of Broadcasting). He (the applicant) should come to my office and discuss this matter.’
Kika Ah Kau deposed that she did not accept the applicant’s account of what she had said in the 1997 conversation between herself and the applicant. She also deposed that she did not accept the translation by the applicant of her letter of 23 October.
Whilst I noted Kika Ah Kau’s rejection of the suggestion in the applicant’s translation that the Minister confirmed that there was still a ban on the applicant’s use of government-controlled media and her rejection of the allegation to the effect that the government-controlled media (including 2AP) “do not seek the views of the Opposition on the pressing issues of the day as is normal in a democratic State,” the translation ultimately accepted by me speaks for itself. Furthermore, it is, with respect, for this Court, and not the witness, to determine for itself whether a ban or restriction on the applicant’s use of government-controlled media has ever existed or still exists.
Kika Ah Kau deposed (in paragraph 14 of her affidavit) to the fact that “the Broadcasting Department routinely seeks the views of the applicant on important matters especially those touching on Government policy.”
Kika Ah Kau was tested at length whilst she was under cross-examination. She was not shaken. She was asked about the absence of a manual or record of standard procedures dealing with the matter of requests for any time. She agreed that a fair and balanced presentation of public issues (by a government radio station) is essential in a democratic society. She explained that the Broadcasting Department and the Televise Samoa Corporation are separate entities. She was cross-examined about all of the correspondence in October 1997. She explained that staff shortages and problems with transport and equipment prevented Radio 2AP broadcasting more than it did. She agreed that there was nothing to stop her asking the applicant to come and see her about when he would have wanted to go on air (at the time of that correspondence in October 1997) “but he hasn’t asked or enquired about that.” She said that she would give the applicant, as the Leader of the Opposition, “first priority” if he would like to come and broadcast for half an hour on some important topic, but provided that she would be “informed.”
With regard to the topics mentioned in the applicant’s letter of 10 October 1997, she said that she “did not think” to say in her reply of 23 October 1997 words to the effect:
“I note the Opposition’s request to express their views on certain topics. If you or any member of the Opposition want to express views on (1) the passports scam, (2) the sacking of the auditor, (3) the country’s name change, or (4) the address by the Prime Minister concerning the Tumua and Pule protest marches, please let me know and I will try to arrange for you to be interviewed and for that interview to be broadcast on 2AP.”
She went on to say that all her concern was “to reply to the request that was (made) in the letter, and the direction of our discussions on the telephone.”
When Kika Ah Kau was cross-examined as to what she understood by what the former Prime Minister said to her at the meeting on 10 October 1997, and, specifically, as to whether what the former Prime Minister had said was “meaningless” or not, she replied (appropriately, in my view, because it was not for her, either as a Head of a Department or as a witness, to analyse her Minister’s words or conduct):
“I do not know what the Prime Minister thought or what he was thinking at the time, but what he .... related, I conveyed.”
Kika Ah Kau explained, during cross-examination, the pages marked A, B, C, D1, D2, D3, D4 and D5 forming parts of exhibit R5, about which there had been some confusion. She asserted that D1 (the English translation of which is D5) was an announcement or press release that was broadcast by Radio 2AP, that D2 were press releases (in English and Samoan) from the applicant, that D3 was a press release in reply by the Deputy Prime Minister, as spokesman for the Government (in his own hand-writing), and that D4 consisted of further press releases from the applicant (that were broadcast).
D1, on which an endorsement appears: “Tuilaepa, for information and direction” and then a signature which Kika Ah Kau was not sure about, and which was followed by D3, a government press release, tends to prove, by inferences to be drawn, that there was no ban being implemented or restriction in place at that time (October 1997).
When under cross-examination, Kika Ah Kau did recall the meeting of 4 March 1999 with the present Prime Minister and Leota Uelese Petaia of Televise Samoa. She explained her inability to confirm all aspects of that meeting by acknowledging that she had been late in arriving.
The third witness for the respondent was the Honourable Tuilaepa Sailele Malielegaoi, the present Prime Minister and Minister of Broadcasting, whose affidavit was sworn on 5 March 1999 (exhibit R7). He deposed to being also the Chairman of the Board of Directors of Televise Samoa Corporation.
Whilst the sworn evidence of a Prime Minister should not be lightly disregarded or lightly rejected, it must be said, with the utmost of respect to him and his high office, that it is not for him, as a witness in Court, to “confirm” whether, “at (any) time in the past or at the present time there has been a ban or other restriction upon access by the applicant to .... the State media (comprising) Radio 2AP, Televise Samoa (and) the Savali newspaper.” That is the very issue for this Court to decide in accordance with the powers and duties laid down in the Constitution itself (Article 4). If the Prime Minister meant, by paragraph 3 of his affidavit (exhibit R7), that “at no time in the past or at the present time” did he impose or was he a party to the imposition of such a ban or restriction or was he personally aware of such a ban or restriction imposed by the former Prime Minister under the previous Administration, then any criticism implicit in the previous sentence of this paragraph is not warranted and is withdrawn. On the other hand, if the Prime Minister meant every word of paragraph 3 of exhibit R7 in the precise manner in which those words were expressed, then I do no more than repeat and emphasise what I said in the first sentence of this paragraph of my Reasons.
The Prime Minister went on, in paragraph 4 of his affidavit, to depose as follows:
“4. ON Thursday, 4 March 1999, I met with the Director of Broadcasting, Mrs Kika Ah Kau, and the Chief Executive Officer of Televise Samoa, Leota Uelese Petaia, to clarify their understanding of this issue. They advised me that they were not aware of the existence of any ban or other restriction upon access to their organisations by the applicant or his political Party. This merely confirmed my own view of the circumstances as the Minister responsible for these organisations.”
In paragraphs 5 and 6 of his affidavit, the Prime Minister deposed:
“5. IN accordance with the nature of the reforms which are being carried out within the Government and public sector, I have long adopted the policy of leaving all matters of an operational and administrative nature to the senior officers of the Department and/or Corporation concerned. Accordingly, I have indicated to the Director of Broadcasting and the Chief Executive Officer of Televise Samoa that access to their facilities by any person should be dealt with by them in accordance with their usual procedures.”
“6. IF indeed the (applicant) wishes to make a public statement using whatever media form, then my only expectation would be that the Government will have an opportunity to respond.”
In his oral evidence the Prime Minister explained what he had meant when, according to paragraph 31 of the applicant’s affidavit (exhibit A2), which he did not dispute, he had said that the applicant was “stirring up the country” and “causing trouble”. He also disclosed that he was aware that some of the villagers supporting the Government boarded buses and had weapons to confront the protesters and they had to be stopped by the police. He spoke of his concern that the opportunity would be taken to “cause trouble” or to create unrest in the country, destabilising the country.
He also explained what he meant when he deposed, in paragraph 5 of his affidavit, that he had indicated to the senior officers of the Department and Corporation concerned that “access to their facilities by any person should be dealt with by them in accordance with their usual procedures.”
The Prime Minister, when in examination-in-chief, explained what he had meant by the words used in a speech in Parliament reported in Hansard of 14 July 1994 (exhibit A5) when he spoke of persons “who stir up the country” and “stir up trouble in the country.” In cross-examination he indicated a preference for the phrase: “create unrest in the country” as the better translation of the words he used in the Parliament than those reported in Hansard. He commented about other views expressed by the applicant in his affidavits, and by other deponents of affidavits.
With reference to the allegation by Maposua Rudolf Keil (in exhibit A18) to the effect that he (Tuilaepa) had complained (in 1997) that he (Maposua) “was allowing Tupua to go on the air “ - something, if true, that was consistent with a ban or restriction being in place which had been seen to have been breached - the Prime Minister did not deny that he had lodged such a complaint, but merely said:
“I can’t remember the lodging of a complaint to Radio 98 FM.”
He went on to explain that “there was no reason why (he) should complain.” Except to this extent, it is not necessary for me to attempt to resolve other issues of credibility that arise between Maposua and Tuilaepa.
I highlight, however, the Prime Minister’s comment in examination-in-chief to the following effect:
“.... I remember that we were discussing the issue in the Cabinet, in believing that (if) the Opposition could not use Radio 2AP, then the alternative was Radio 98 FM ....”
This was skilfully picked up by Mr Robinson, counsel for the applicant, who put it to the Prime Minister in cross-examination:
“... did I understand you correctly to say that there was some Cabinet discussion about access by the Leader of the Opposition to Radio 2AP?”
Without denying that there had been such discussion the Prime Minister replied:
“A. What I meant was freedom for any person to make a choice to use a non-governmental Radio station.”
The Prime Minister was searchingly cross-examined as to his understanding of what was reported in Hansard of 7 December 1993, 14 July 1994 and 18 June 1997 (exhibits A6, A5 and A4). Whilst it was relevant and permissible to ask him what his understanding was of what the former Prime Minister meant by the words attributed to him in Hansards of 7 December 1993 and 18 June 1997, I have had to remember that it is for this Court (and it is my judicial duty) to assess the meaning of such words and determine whether or not they constitute a restriction or other infringement of the applicant’s constitutional rights. It is not for a Judge, who is doing his duty properly and impartially, to abdicate his function and accept blindly the opinion of an important witness such as the Prime Minister or, for that matter, any witness. Having said that he (Tuilaepa) “could not agree totally (that Tofilau considered he could ban or censor what the Leader of the Opposition wanted to say),” he (Tuilaepa) went on to make a number of points, including that “the then Prime Minister wanted to discuss the issue with the Leader of the Opposition” with a view to avoiding the applicant criticising in such a manner as to “stir up the country.” Later on, during his further cross-examination, the Prime Minister suggested that the statements reported in Hansard (in exhibits A6, A5 and A4) were, in some unspecified respects, not seen in their true context or were spoken in the heat of political debate and, on that account, were not meant in the way in which they were expressed.
He also implied that the former Prime Minister did not always “put into practice - what he said” in the statements recorded in Hansard, as if to suggest that a ban or restriction not consistently enforced was, therefore, not a ban or restriction at all. He also testified that the applicant could not prove that he was refused access to Televise Samoa “in actual practice.”
The Prime Minister, in purporting to explain and justify, exhibited some keenness to mention restriction of access to (or bans upon) the radio medium “when Tupua was Prime Minister from 1976 to 1982”, as if earlier restrictions or bans justified (or excused) later ones. He also asserted that the applicant “would not want to use Radio 2AP” and, in any event, had “lots of opportunities” through the “independent (non-government) radio stations,” including the FM Radio station. Another point he made was by referring to the number and seriousness of allegations against (or criticisms of) the Government in the Samoa Observer, as if access that the applicant had to that newspaper in some way justified a ban on access to the government-controlled Savali newspaper.
When Mr Robinson, counsel for the applicant, persisted in asking the Prime Minister whether he saw the events of the years 1976 to 1982 as justifying “restrictions now on the use of government media,” the Prime Minister highlighted the use, by the cross-examiner, of the word ‘now’. Without asserting that there was no ban issued or in existence against the applicant to use Radio 2AP and Televise Samoa under the previous Administration, he testified as follows:
“What is important in counsel’s question is the word ‘now’, and I say that there is no ban issued or in existence (now) .... What is important is that the Leader of the Opposition is not using the opportunity to see or to check if there is a ban or not.”
With reference to exhibit A5, the Hansard of 14 July 1994 reporting a statement in Parliament of his own, the Prime Minister distanced himself from any alleged ban or restriction against the applicant. He said he was “talking in general terms” and “didn’t refer to Tuiatua Tupua.” He said: “It was a general address,” but then he purported to justify his statement upon the basis that the Government was “concerned at that very moment (about) the stability or the security of the country.”
When the Prime Minister was being cross-examined as to the date to which his evidence might be relating (viz. “now” or at the date of the Hansard report in question), he was then asked for his comment as to “why should the Leader of the Opposition have to go to the Prime Minister to ask whether he can use the main organs of the media?” I do not criticise the Prime Minister for saying:
“I can’t answer that. I think the (former) Prime Minister himself has already made indications to that effect earlier in other statements which counsel had been given.”
He then volunteered something which suggests that the Prime Minister sees an important distinction to be drawn between the situation during the former Prime Minister’s Administration and the situation since he (Tuilaepa) became Prime Minister in 1998. I pause to indicate that, in the context of these proceedings, I, as the Judge, see that as being an important distinction and I see the date of the change from the Tofilau Administration to the Tuilaepa Administration as being an important date.
The statement that was volunteered was as follows:
“I should also point out .... that the .... change now is that I don’t invite the Leader of the Opposition to come and see me; he can go direct to the Head of the Department to see him. That is normal; you have to see the administrative Head.”
He indicated that “the change” occurred “immediately after (his) appointment (as Prime Minister)”, but he admitted that he did not tell the Leader of the Opposition of “the change.” He commented (so as to indicate that the Government was, perhaps, relying upon an inability on the part of the applicant to prove the alleged ban or restriction), by way of volunteered statement:
“I consider that there was also no specific directive on record to the Head of Televise Samoa or to (Radio) 2AP that the Leader of the Opposition was specifically banned - (no) written evidence.”
Towards the end of his cross-examination, the Prime Minister was asked:
“Q. Do you propose to give an appropriate direction to the (Televise Samoa) Corporation under section 6 (of the Televise Samoa Corporation Act 1994) to give effect to the indication that you refer to in paragraph 5 of your affidavit (viz. that access to their facilities by any person should be dealt with by them in accordance with their usual procedures)?”
to which he replied:
“A. I believe that must be done.”
The fourth witness for the respondent was Leota Uelese Petaia, the Chief Executive of Televise Samoa since 1997, whose affidavit sworn on 8 March 1999 was tendered, received and marked exhibit R8. After explaining that Televise Samoa is the only local television station run from inside Samoa, he deposed as follows:
“5. SINCE my appointment in 1997 I am not aware of the existence of any ban or similar restriction upon the access of the applicant to State media in general (which includes television, radio and newspaper) or to Televise Samoa in particular.
He went on (in paragraph 8) to refer to some examples of when the applicant and members of his political Party were featured on television, including during the protest marches (and a gathering at the applicant’s residence) in 1997 and when the applicant addressed the VAGST march in March 1995.
In his oral evidence, he gave his version (which I accept) of the correspondence in October 1997 and his meetings with Filifilia Tamasese. He testified:
“..... I don’t think I would (have said) that there was a ban on the applicant ...... and I had not been instructed that there was a ban, and I don’t think I would have said that there was a ban on the applicant at that time.”
After volunteering that “clearly (he was) angered” by the way she had acted in relation to her husband’s letter and because it had been published in a newspaper (before he even received it), he did give evidence upon which the applicant relies to submit that there was a ban or restriction that had been imposed by the former Prime Minister. He testified:
“I think I told her also that it was clearly set out by the then Prime Minister in his main statements in the House that, if the Leader of the Opposition wanted time on television, he had to go and see him and discuss it with him.”
(The emphasis is mine.)
When being cross-examined as to his understanding of what the Prime Minister meant by his statements in Parliament and why the applicant should “need to ... go and discuss it” with the Prime Minister, Leota Uelese Petaia was frank enough to say initially:
“I can’t answer that.”
and later:
“.... I don’t know the reasons why the former Prime Minister would be inviting the Leader of the Opposition to do that.”
He also agreed that it would be an appropriate stance for the Journalists Association of Samoa and the Management of Televise Samoa to adopt as an ethic or principle, viz. “to show balance and impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature."
He agreed that television is the most powerful medium of communication of ideas and dissemination of information “when it is available.” He went on to state that Televise Samoa covers 90% of the population of Samoa.
When under re-examination, Leota Uelese Petaia was asked to indicate what form his reply would have taken to the letter that had been delivered to his office by Filifilia Tamasese, if the letter had not been published in the newspaper before he had even seen the letter and if he had not been "offended by publication in the paper.” His answer was:
I would have said that there was no ban [something going in support of the respondent’s case], and reminded the Leader of the Opposition about what the then Prime Minister had said in Parliament [something going to assist the applicant’s case in so far as a restriction, as opposed to a ban, was alleged] and (I would have) pointed (out) to him that, since I had been there, I had not stopped any news item [something further in support of the respondent’s case].”
It is hard to reconcile his next answer with the former Prime Minister’s statement in Parliament, but he did say that he “would have welcomed the opportunity” to have invited the applicant “to contact (him) and discuss opportunities to deal with the matter he wanted to raise.”
In answering questions about the endorsement and initials appearing on exhibit R5, it became apparent to me that the endorsement “for information and direction” is some circumstantial evidence probative of the existence (in 1997) of at least a restriction pursuant to which the Chairman or acting Chairman of the Televise Samoa Board had to approve before access to Televise Samoa was given. He said:
“.... I left instructions for (the Director Kapeneta Tupai) that, if there was anything that he was in doubt about, to make sure he contacted the Acting Chairman - I left instructions for him that, if there was anything that he needed further guidance on, he should contact the (Acting) Chairman.”
That Kapeneta Tupai should have seen the need to do so is an indication that he was in doubt about the existence or otherwise of a ban or restriction at that time. When asked what he would have done if he (Leota) had been there at the time, he said:
“I probably would have referred it to him (the Acting Chairman) for his comments.”
I accept as honest and reliable Leota’s negative answer to the question:
“Q. Have you received any direction from the (present) government regarding its policy in relation to the Leader of the Opposition?”
and, as these Reasons indicate, I find that there has been no ban or restriction during the Tuilaepa Administration. But, although he indicated that he was unaware “of any such direction in the past to the Televise Samoa Corporation,” that cannot be reconciled with his statements regarding his familiarity with what the then Prime Minister had said “in his main statements in the House.”
Leota Uelese Petaia, when in the witness box, confirmed the evidence of the present Prime Minister relating to the meeting held on 4 March 1999 attended by the Prime Minister (Tuilaepa Sailele Malielegaoi), the Director of Broadcasting (Kika Ah Kau), who was late in arriving at the meeting, and himself. He confirmed that the Prime Minister made it “clear that he (the Prime Minister) was not putting any ban on the Leader of the Opposition.” He said that he assumed that “what was happening (before then)” was that the applicant “had to go and see” the Prime Minister if he wanted access.
Whilst it is clear from a reading of the extracts from Hansard and from an analysis of the oral evidence in these proceedings that, prior to 1998, the two political leaders [the former Prime Minister (Tofilau Eti Alesana) and the Leader of the Opposition (the applicant)] were engaged in an exercise which might be described as a kind of “Mexican stand-off”, and whilst the evidence leaves me with the impression that there was a measure of political manoeuvring or point-scoring or power-play associated with the stance each adopted on this issue of access (with its serious implications in terms of compliance with or infringement of the fundamental rights preserved under the Constitution), it is left to this court, in the end, to decide whether the words and conduct of the former Prime Minister, whatever his motives may have been, had the effect of being a restriction upon or infringement of the relevant fundamental freedoms. Whilst the applicant’s own conduct at the relevant stages came under scrutiny (and properly so), it is the words and conduct of the former Prime Minister which have required this court’s closest scrutiny.
I have by no means overlooked the affidavit sworn by the former Prime Minister shortly before his death. I have borne in mind that his death deprived the court of the opportunity to assess him as a witness and to have his testimony tested under cross-examination. I am also mindful of the need for this court to hesitate before rejecting the affidavit evidence of a deceased deponent. Furthermore, courts are, as a general rule, reluctant to reject the testimony of a person of such status and standing as a Prime Minister. Nevertheless, I note that there is more than the evidence of the two main protagonists to shed light upon the first of the two issues at stake; there is the evidence of what was stated in the Parliament by the former Prime Minister himself and his Deputy. That provides cogent corroboration to confirm or support the evidence upon which the applicant relies. That is evidence that is more objective than the evidence of any of the witnesses who gave oral testimony.
The affidavit of the former Prime Minister, the late Tofilau Dr. Eti Alesana, sworn on 6 June 1999, was tendered by consent, received and marked exhibit R6.
I have not allowed myself to reach a hasty or ill-considered judgment as to the purport of what the former Prime Minister and the former Deputy Prime Minister said in the House. I have asked myself whether these could have been words spoken in jest or with some of the robustness and exaggeration that sometimes legitimately accompanies ‘the cut and thrust’ of debate in the Parliamentary Chamber. I would not readily assume (and I do not find) that either senior Minister was seeking to mislead the Parliament.
In paragraph 2 of his affidavit sworn on 6 June 1998 the former Prime Minister neither admitted nor denied “the continued existence of the (alleged) restriction upon (the applicant’s) access to radio and television.” He, in paragraph two of his affidavit, simply made a plea, which the law of pleading calls “avoidance”, and deposed that:
“...... nowhere does the report (published in the Savali on 16 May 1997) mention me confirming the existence of an alleged restriction upon the access of the applicant to government radio and television.”
The former Prime Minister, as if to suggest that the applicant’s own words and conduct in the 80’s might have relevance to an examination of his (Tofilau’s) words and conduct during his Administration or to suggest that, in some way, “two wrongs” might make “a right”, then acknowledged the existence of a “practice of imposing bans and restrictions upon politicians to radio” by deposing as follows:
“3. THAT in fact the practice of imposing bans and restrictions upon politicians to radio was first started by the applicant in 1982 when he was the Prime Minister and I was in the Opposition. During that time several planned press interviews of Opposition Members on Radio 2AP were abruptly cancelled at the last minute on instructions from the applicant. This necessitated the Opposition to broadcast its interviews from American Samoa.”
The former Prime Minister then, in paragraphs 4 and 8 of his affidavit, deposed to the fact:
“4. THAT presently there is no such ban or restriction on the applicant on his use of Government radio and television to air his political views.”
and “8. THAT I deny (that) there is any restriction on the use of government radio and television upon the applicant ......”
As I have indicated earlier in these Reasons in a slightly different context, although it was right and proper for the former Prime Minister to have deposed in his affidavit to the “present” existence or otherwise of a ban or restriction on the applicant on his use of government radio and television to air his political views, it is ultimately for this Court to decide (not just on the word of one witness or another, but on the whole of the evidence) whether or not such a ban or restriction existed at the relevant time or times.
Had the late Tofilau Eti Alesana been alive at the time of the hearing of these proceedings and been able to give oral evidence and been subjected to cross-examination, I am in no doubt that he would have been asked to reconcile, if he could, the fact to which he had deposed in his affidavit (there being “presently .... no such ban or restriction”) with his statements in Parliament and, in particular, the statements of 7 December 1993 (see Hansard - exhibit A6) and 18 June 1997 (see Hansard - exhibit A4).
In the second sentence of paragraph 4 of his affidavit, the former Prime Minister went on to depose as follows:
“However, the applicant has not sought prior permission directly from me, as Minister in charge of Broadcasting, to use government radio and television.”
and, in the second part of paragraph 8 of his affidavit, he deposed:
“and ... his own failure to follow the correct channels and procedures is the only reason why the applicant has not made use of those facilities yet.”
Those statements set uncomfortably with the earlier statement (regarding the “non-existence of a ban or restriction”) because the deponent was asserting that access to government radio and telephone was restricted at least in the sense that the applicant needed to seek and obtain prior permission and to “follow the correct channels and procedures” (a condition precedent to, and a restriction upon, so-called free access).
Paragraph 5 of the former Prime Minister’s affidavit, whilst appropriately worded and whilst dealing with relevant matters, misses the point that the Constitution is the supreme law of Samoa, that the Broadcasting Act 1959 and action taken pursuant thereto is to be read and understood in the context of the fundamental rights preserved under the Constitution.
Paragraphs 6 and 7 are mainly directed to the late Tofilau’s motives for him having insisted upon the applicant “coming and talking to (him)”. But, as I held in Mau Sefo, Osasa Aukuso and Others v The Attorney-General and The Alii & Faipule of Saipipi unreported decision dated 12 July 2000 at p.19, allegedly unconstitutional conduct is to be assessed, not in the light of the purpose which the person who allegedly infringes the Constitution (in this instance, the former Prime Minister) had in mind, but in the light of its effect [see the Supreme Court of Canada in R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at p.371].
The fact that the applicant had “not once” gone to see the former Prime Minister is not to the point when assessing whether any ban or restriction was or was not in existence. Likewise, the fact, as referred to in paragraph 9, that the applicant may, on more than one occasion, have been exempted from the ban or may have found that the restriction was not invariably being insisted upon is not conclusive proof that no ban or restriction was in place.
FREEDOM OF EXPRESSION
As to the meaning of “freedom of expression”, Black J in the United States of America decision of Martin v City of Struthers [1943] USSC 90; (1942) 319 US 141 said (at p.146):
“Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.”
In Re Romesh Thappar v State of Madras (1950) 37 AIR. (SCR) 124 the Supreme Court of India said (at p.127):
“There can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and that freedom is secured by freedom of circulation. ‘Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value’.”
Those extracts from those decided cases were referred to, with approval, by the Judicial Committee of the Privy Council in Olivier v Buttigieg (1966) 2 All ER 459 where Lord Morris of Borth-Y-Gest delivered the reasons of their Lordships for so advising Her Majesty the Queen. The Privy Council warned against neglecting small infringements of rights just because they are small, but, in so doing, referred to another American case of Thomas v Collins [1945] USSC 32; (1944) 323 US 516, in which it was stated (at p.543):
“... It is from petty tyrannies that large ones take root and grow. This fact can be no more plain than when (restraints) are imposed on the most basic rights of all. Seedlings planted in that soil grow great and, growing, break down the foundations of liberty.”
In 1979, in the Supreme Court of the United States decision of Smith v Daily Mail Publishing Co. (1979) 443 US 97, Rehnquist J. said (at p.106):
“Historically, we have viewed freedom of speech as indispensable to a free society and its government.”
Seven years later the Supreme Court of Canada considered freedom of expression in Retail, Wholesale & Department Store Union, Local 580 v Dolphin Delivery Ltd. (1986) 33 DLR (4th) 174. All members of that Court agreed with McIntyre J when he said (at p.183):
“Freedom of expression is not .... a creature of the Charter. It is one of the fundamental concepts that has formed the basis of the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.”
In the same year (1986) the Belize Court of Appeal in Belize Broadcasting Authority v Courtenay and Hoare (1990) 38 WIR 79, approved of what the Chief Justice (of Belize) had said (at p.88-89):
“.... the Chief Justice was correct in holding that ‘Today television is the most powerful medium for communications, ideas and disseminating information. The enjoyment of freedom of expression therefore includes freedom to use such a medium.’ .... The Chief Justice (was correct to find) that ‘to broadcast on television is today an integral part of the freedom of expression and to place the need for the Authority’s consent before one can do what is an integral part of the freedom constitutes a hindrance to that freedom within the meaning of article 12(1)’.”
Not surprisingly, the applicant’s counsel contends that the conduct of the former Prime Minister “falls squarely within that dictum.”
In a more recent Privy Council decision of Hector v Attorney General of Antigua and Barbuda (1990) 2 All ER 103, Lord Bridge of Harwich, in delivering their Lordships’ Reasons, said (at p.106):
“In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office.”
In 1992 the High Court of Australia had cause to consider the right to freedom of communication, which it held to be implied in the Constitution of Australia, in Australian Capital Television Pty Ltd. v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106. Freedom of communication there considered is akin to, if not identical with, freedom of speech and expression conferred and preserved in the Constitution of Samoa.
Mason C.J. said (at p.138):
Indispensable to .... accountability and .... responsibility is freedom of communication, at least in relation to public affairs and political discussion. Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticise government decisions and actions, seek to bring about change, call for action where none has been taken and in this way influence the elected representatives. By these means the elected representatives are equipped to discharge their role so that they may take account of and respond to the will of the people. Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account for their decisions and actions in government and to inform the people so that they may make informed judgments on relevant matters. Absent such a freedom of communication, representative government would fail to achieve its purpose, namely, government by the people through their elected representatives; government would cease to be responsive to the needs and wishes of the people and, in that sense, would cease to be truly representative.
Freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives and candidates for election on the one hand and the electorate on the other. The efficacy of representative government depends also upon free communication on such matters between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media of the views of all interested persons, groups and bodies and on public participation in, and access to, that discussion. In truth, in a representative democracy, public participation in political discussion is a central element of the political process.
Archibald Cox made a similar point when he said: (in The Court and the Constitution (1987), p.212:
‘Only by uninhibited publication can the flow of information be secured and the people informed concerning men, measures, and the conduct of government .... Only by freedom of speech, of the press, and of association can people build and assert political power, including the power to change the men who govern them.’
The last sentence in the passage just quoted is a striking comment on Professor Harrison Moore’s statement that “[t]the great underlying principle” of the Constitution was that the rights of individuals were sufficiently secured by ensuring each an equal share in political power. Absent freedom of communication, there would be scant prospect of the exercise of that power.
The fundamental importance, indeed the essentiality, of freedom of communication, including freedom to criticise government action, in the system of modern representative government has been recognised by courts in many jurisdictions.”
Mason C.J. went on to discuss the consequences of upholding freedom of communication. His Honour said (at p.145):
“The enhancement of the political process and the integrity of that process are by no means opposing or conflicting interests and that is one reason why the Court should scrutinise very carefully any claim that freedom of communication must be restricted in order to protect the integrity of the political process. Experience has demonstrated on so many occasions in the past that, although freedom of communication may have some detrimental consequences for society, the manifest benefits it brings to an open society generally outweigh the detriments. All too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims by the legislature and the Executive that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process.”
Brennan J. (as he then was) described the right to freedom of expression as a right to freedom of discussion. His Honour said (at p.159):
“Freedom of political discussion is essential to the democratic process, chiefly for two reasons: it is a stimulus to performance in public office and it is conducive to the flow of information needed or desired for the formation of political opinions. But the salutary effect of freedom of political discussion on performance in public office can be neutralised by covert influences ....”
FREEDOM FROM DISCRIMINATION
“Freedom from discrimination” is, perhaps, a better heading for, and a more accurate description of, the freedom preserved by Article 15 than “Freedom from discriminatory legislation.”
No definition of this freedom is needed when consideration is being given to that fundamental right as it arises here. The words of Article 15 speak for themselves.
It is sufficient to identify the relevant concepts and to extract them. I do just that:
“Freedom from (discrimination) - (1) All persons are equal before the law and entitled to equal protection under the law.
(2) Except as expressly authorised under the provisions of this Constitution no .... executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction .... on grounds only of .... political or other opinion ....”
(The emphasis is mine.)
THE ROLE OF THE OPPOSITION IN A PARLIAMENTARY DEMOCRACY
Had these proceedings been brought by the applicant just in his role as a Member of the Legislative Assembly, questions might have arisen as to why he should need access to national branches of the media generally and reaching beyond the limits of his own constituency. But the applicant has claimed inter alia as Leader of the Opposition.
Whilst it is true that the Constitution is silent about the position of Leader of the Opposition, his role and those of the Opposition in a Westminster-style Parliamentary democracy, as Samoa has, are to be implied.
As to how the common law sees the Opposition, reference is made to Halsbury’s Laws of England (4th Edn.) Volume 8 para 218, in which the learned authors state:
“’Her Majesty’s Opposition’ performs essential functions in both Houses of Parliament, criticising the work of the Administration in power and continuously offering an alternative Administration to the electorate ..... The constitution of a Parliamentary Opposition originated, and still operates for the most part, as part of a de facto two-Party system in which the Government has a majority in the House of Commons and its opponents belong largely to one other Party. While the Opposition in the Commons cannot usually prevent the passage of government business or defeat government motions, it is by convention accorded full right to discuss and criticise the work of the government in debate and by question in each House. In this way the difficulties involved in implementing government policy are exposed and the development of government by a secretive oligarchy is impeded.”
The functions of the official Opposition, and of its Leader, in the Legislative Assembly of Samoa are, I think, similar to those mentioned in the passage just quoted. I am persuaded that they are essential parts of the exercise, in the political context, of the right to freedom of expression conferred by Article 13(1) (a) of the Constitution.
In so far as these proceedings were instituted by the Leader of the Opposition and the result thereof will have some impact upon him, it is important to remember that, in a real sense, these proceedings are brought by a citizen primarily in his public and representative role. Far from wishing to praise or criticise any individuals who have in recent years, held the high offices of Prime Minister and/or Leader of the Opposition, this Court, in pursuance of its sometimes unavoidable duty under the Constitution, which is the supreme law [see Article 2(1)], is seeking to do no more, by its decision, than provide “a ray of light” to good governance “in the shadow of” Samoa’s proud rights - oriented Constitution, so that Prime Ministers and Leaders of the Opposition alike can function in the best traditions if Samoa’s Parliamentary democracy and in conformity with the rule of law. This Court acknowledges the separate, independent and powerful roles of the Parliament and the Executive, and this Court has no wish or intention to interfere or, even in the slightest way, to challenge the notion of the separation of powers which is at the heart of Samoa’s system of constitutional democratic government. But what this court can do, as the watch-dog of the Constitution, is do its best to do its duty “without fear or favour, affection or ill-will” in the hope that right and justice will be done (and be seen to have been done). If, in addition, there are some benefits for constitutional government in some way, then well and good.
MAIN FINDINGS
I find as follows:
1.1 That the former Prime Minister, by his own conduct and by his own words expressed and repeated in Parliament, had the effect of placing a restriction or restraint upon the applicant having free access to the government-controlled media.
1.2 That, although it may have been seen as a ban (and it was described by the former Prime Minister himself as “a ban” on 18 June 1997), it was not in the form of a written directive or formal instruction or promulgated ban. However, in its practical application and as the outcome of an attitude expressed by the former Prime Minister, in which the need to obtain his prior consent was emphasised, this was a hindrance or fetter to freedom.
1.3 That, although no formal government policy or instruction or declaration or directive was shown to have existed, a practice developed not to give the applicant media coverage; a pattern of exclusion existed; the Heads of the government-controlled media took the former Prime Minister’s remarks seriously.
1.4 That, the former Prime Minister, by executive action of the State [in the form of insisting (in 1993) that no access to Televise Samoa be granted to the Leader of the Opposition unless he (the applicant) went to talk to him (the Minister of Broadcasting) AND complied with certain conditions AND finally obtained his permission], in its practical application, has had the effect of subjecting the applicant to restriction on the ground of his political opinions.
2.1 That, in the light of the whole of the evidence and this Court having accepted the evidence given on this topic by the present Prime Minister and the Heads of the Televise Samoa Corporation, the Broadcasting Department, and the newspaper Savali, there is currently no ban or restriction in existence upon the applicant’s access to government-controlled media and, in particular, on Televise Samoa, Radio 2AP or the Savali newspaper.
2.2 That, on 4 March 1999 the present Prime Minister clarified the fact that no ban or other restriction upon “media” access by the applicant or his political Party “is now in existence”. [Although several of the applicant’s witnesses provided circumstantial evidence as to the existence of a ban or restriction, that evidence was almost exclusively related to the period of the Tofilau Administration; Faiesea Lei Samoa Matafeo’s evidence was directed to the period from May 1993 to July 1995; Maiava Meleifua Matamea concentrated on 14 February 1994; Sua Viliamu Sio was clearly referring to the time of Tofilau’s Administration; Fuimaono Fereti deposed and testified to the period 1997-1998; Filifilifa Tamasese was mostly concerned with the events of October 1997; Tipi Autagavaia could only discuss the period 1993 to May 1995; and Maposua Rudolf Keil deposed and testified to events in 1994 and 1997.]
APPLYING THE LAW TO THE FACTS
Key aspects of freedom of expression and freedom from discrimination, which are identified in the legal authorities from a variety of legal jurisdictions and sources to which I have referred, are the absence of restraint, fetter, hindrance, censorship, disability, inhibition or restriction. It is to be noted that the word "restriction'’ is used in Articles 13(2) and 15(2) and (4).
In my judgment, the conduct during the Tofilau Administration under review in these proceedings and, in particular, the practice revealed by the former Prime Minister himself in the statements in the House reported in Hansard, infringed each of the applicant’s rights to freedom of expression and to freedom from discrimination preserved by Articles 13 and 15 of the Constitution.
Further, in my judgment, nothing in the conduct of the Tuilaepa Administration since late 1998, which has been reviewed in these proceedings, violates either of those guarantees.
ORDERS
Being of the opinion that orders are necessary and appropriate to secure to the applicant the enjoyment of his rights, I make orders as follows:
It is neither necessary nor appropriate for this court at this time to spell out the precise limits of the access by the applicant and members of his Party to the government-controlled media which this decision preserves. It will, I think, be sufficient for this Court merely to observe that it is not a totally unrestricted right of access; a balanced presentation of opposing views is called for. Although I do not regard it as “necessary” or “appropriate” to make orders defining minimum standards of access to the government-controlled media, I do regard it as “necessary” and “appropriate” to provide machinery for approaching the Supreme Court should the need arise. Such provision is made, not only to protect the constitutional interests of the applicant as a Member of Parliament and as Leader of the Opposition, but also (and just as importantly, in the aftermath of this constitutional wrangle) to be a guide for the Government itself and the Heads of government-controlled media corporations, departments and agencies who need to tread the sometimes ill-defined path between responsibility to the Government of the day, whom they must serve, on the one hand, and accountability and the preservation of fundamental rights under the Constitution, on the other hand.
I therefore make this additional order:
I make this order [following the authority of the Privy Council decision in Maharaj v Attorney-General of Trinidad and Tobago (No.2) [1978] UKPC 3; (1978) 2 All ER 670] because it is the Supreme Court of Samoa, and not the political or administrative arm of government, which is the guardian of the Constitution (see Article 4). In my judgment, it would be a grave impediment to the freedom of expression and to the freedom against discrimination of the applicant at least, if those in Opposition who seek to criticise the Government in the media (whether government-controlled or not) could only do so with impunity if they first had to obtain the permission of a Government Minister to whose government the criticism was directed (see Hector’s case supra at p.106).
Lest this Court should be seen, by its interpretation of the Constitution of Samoa and by the making of these orders, as, in some novel way, inflicting the democratic process upon a populace which is unfamiliar with these essential features of democracy which have been called “freedom of communication in relation to public affairs and political discussion”, it should be remembered that the traditional Samoan institutions in the form of the Matai System and the Village Council have for centuries, if not for a millennium or two, fostered and developed the idea of the people having the opportunity to become aware of important public issues and to learn what their leaders propose in relation to them. The principles that apply in a Parliamentary Democracy are, in this respect, the same as in the Samoan Village.
Because I have held that there is no current violation or infringement of rights conferred and preserved under the Constitution I consider it unnecessary and inappropriate to make (either instead of, or in addition to, the orders set out supra) any declaratory orders.
I will hear counsel as to the question of costs.
JUSTICE WILSON
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IN THE SUPREME COURT OF SAMOA
HELD AT APIA
IN THE MATTER: of the Constitution of
the Independent State of Samoa
AND
IN THE MATTER: of an application to the Supreme Court
pursuant to Article 4 of the Constitution
BETWEEN:
THE HONOURABLE TUIATUA TUPUA TAMASESE EFI
of Apia, Leader of the Opposition
APPLICANT
AND:
THE ATTORNEY-GENERAL OF SAMOA
RESPONDENT
Counsels: Mr A. Pereira for the Applicant
Mr George Latu for the Respondent
Date of Decision (as to costs): 4 August 2000
REASONS FOR A DECISION AS TO COSTS BY WILSON J.
This is an application for costs. Mr Pereira, for the applicant, sought costs on behalf of the “successful” applicant in a sum said to be “a substantial re-imbursement” of actual costs of approximately NZ$37,000.00 plus ST$12,500.00. Written “submissions on behalf of the applicant as to costs” were handed up and relied upon. Mr Latu, for the respondent, “objected” to the award of costs in the applicant’s favour and contended that, because each party was partly successful, this Court should order that each party should bear its own costs.
I propose, in the exercise of my discretion, to allow to the applicant against the respondent 2/3rds of his costs on, broadly, a party and party basis.
The reduction by 1/3rd is appropriate because the applicant was not wholly successful, and the respondent was successful regarding the lack of proof of any on-going ban or restriction or infringement of constitutional rights under the Tuilaepa Administration. I consider that that significant reduction is more appropriate than to have allowed the applicant costs against the respondent on the claim arising out of the conduct of the Tofilau Administration and to have allowed the respondent costs against the applicant on the claim arising out of the conduct of the Tuilaepa Administration. It must be said, when comparing the time taken up by a consideration of the issues upon which each of the parties was successful or unsuccessful, as the case may be, that the applicant was certainly more the winner.
In the absence of any authority to bind me, I am not inclined to allow the mostly successful party (the applicant) the costs of his counsel’s airfares, accommodation, meals, car-rental expenses and the like. It seems to me that expenses of that type fall into the category of solicitor and client costs.
As, in relation to the applicant’s claim, there is no monetary aspect capable of being quantified, the costs according to the scale of costs set out in the Second Schedule to the Supreme Court (Fees and Costs) Rules 1971 as amended are not only difficult to assess but also they are, in the circumstances of this important case, inadequate and out of step with reality. I therefore disregard them.
As to the reasonable costs on, broadly, a party and party basis, I allow
Counsel fees = ST 39,000.00
Solicitor’s fees = ST 9,000.00
TOTAL = ST$48,000.00
2/3 X 48,000 = ST$32,000.00
In the exercise of my discretion, I order that the respondent do pay to the applicant’s solicitors, within 28 days from the date hereof, the sum of ST32,000.00 by way of the applicant’s costs.
JUSTICE WILSON
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