Tamasese in Court

Sun (Auckland), Volume II, Issue 584, 9 February 1929, Page 1

Tamasese in Court

HABEAS CORPUS INVOKED Imprisonment Challenged INN OLA ED legal argument on constitutional laws of the Empire and the question whether New Zealand, by virtue of her mandate from the League of Nations over Western Samoa, had power to alter foundation statutes of the British Constitution, occupied Mr. Justice Blair in the Supreme Court this morning. Ilis Honour had under consideration an application for a writ of Habeas Corpus in respect of the high chief Lealofi Tamasese. now serving sentence of six months’ imprisonment in Mount Eden Gaol for resisting arrest in Samoa in November, 1928. After listening to a mass of argument the judge reserved his decision, stating he hoped to deliver judgment on Tuesday.

Tamasese. in tropical whites and Hearts a dress shirt and the purple of royalty on the lapel of his coat, sat in Court with a warder. On the opposite side of the courtroom the chief’s wife and children and other Samoans watched the proceedings. Mr. Hall Skelton appeared for Taiwanese. Mr. V. R. Meredith and Mr. V. N. Hubble opposed the application on behalf of the Crown. Mr. Skelton had intended to base his argument on two points. First, that the original warrant for the arrest of Tamasese for contempt of court was illegal, in that it was an attempt to use criminal procedure illegally to collect a civil debt (a sum of £1 16s, being a tax). Counsel said that Tamasese had been summoned to Court, did not appear, and five minutes later was committed to prison. Secondly, that no valid order or warrant existed under which Tamasese could be held in a New Zealand gaol. His Honour said that certain affidavits he had before him were contradictory. One was Tamasese’s version of his arrest, and others by Mr. Slipper, agent in Samoa, which were very freely translated, completely conflicted. •'The difficulty is that I am asked to adjudicate on certain documents, none of which was before the Court in Samoa.” said the Judge. In asking that his Honour should ignore all affidavits, Mr. Meredith said ha had only filed his to correct misstatements in those of Mr. Skelton. His Honour said it was quite impossible for him to proceed on the first point, but hearing of the second could so on, as there was material on which to begin. Mr. Skelton’s contention in respect of the first point was founded on assumptions. Opening on the one point, Mr. Hall Skelton submitted that Section 210 of the Samoa Act. 1921, was ultra vires and overrode Section 12, Chapter 2 of the Habeas Corpus Act, 1679. Section 210 states: ‘‘Every person sentenced to imprisonment or committed to prison shall be subject to imprisonment with hard labour unless the contrary is expressed in the sentence. order or warrant.” Section 12 of chapter two of the Habeaus Corpus Act holds: “No person shall be imprisoned beyond the seas.” In making this application it must be recognised that the case is one of great complexity,” said counsel. “In some respects the present application is unique in the British Empire.” Quoting the case Tangaloa v. the Inspector of Police, decided in Wellington in 1927, Air. Skelton said the contest was to determine whether the New Zealand Legislature had power to legislate for Samoa. It was held that the Dominion was given that power by mpertal Order-in-Council in Alarch, 1920. But when the King by this Order-in-Council was given this power he was bound by the bulwarks which preserved British liberty. The King i

hud two sources of power, (a) by prerogative, and (b) by statute, but he had no power to legislate in terms repugnant to the Habeas Corpus Act. He gave no power to New Zealand to repeal the Act. “My client and I, and many people in New Zealand, think that the Samoans are being ruled by a modified law to meet exceptional circumstances which may arise. The natives thought they were being ruled by a New Zealand law, but they are now of the view that they are getting a law applicable to savage peoples.” His Honour: They expected to get a decent British law, but got one for wild and uncivilised races? Counsel: They say the rights of Habeas Corpus aj*e denied. Seeing they are children under our protection, they should be under a more beenficent law than we ourselves. The administration is trying to bar, under Section 210, the constitutional law' of New Zealand. Air. Aleredith: I don’t know whether my friend is losing his sense of humour, but he is now using the Habeas Corpus Act in this Court which he says is denied to Samoans. Air. Skelton: You might as well say a man may be deported from New Zealand to serve sentence in Samoa. We think Tamasese has been sent to this country to give him an extra dose of punishment among strange people and strange surroundings. His Honour: I see; they don’t like strange gaols, but prefer the one they are used to. (Laughter.) Referring again to Habeas Corpus, Air. Skelton argued that the Act had in reality become a part of common law'. His Honour: We can alter common law. Counsel: You cannot alter foundation and constitutional laws of the Empire. After speaking for an hour Air. Skelton concluded by saying that the Samoans wanted to know whether they were to be treated in the same way as British subjects or as foreigners. CASE FOR OPPOSITION “I understand Mr. Skelton’s point is that Tamasese is being held under an illegal Warrant,” said Air. Meredith, in rising to reply. “That goes to the whole root of the question whether there was power to pass section 210.” New Zealand’s power to legislate for Samoa was given by the League of Nations under a mandate. That that authority had been invoked had been decided in Tangaloa’s case. New Zealand had been given the widest discretion in authority to legislate for its mandated territory. New Zealand might have decided that British law or New Zealand law, or even the old German law, should operate, subject, of course, to certain reservations. So it came about that the greatest latitude was allowed to the Alandatory. But it had to report to the League of Nations, and this was done annually. Mr. Skelton: Have the Samoans any means of objecting? (Continued on Page 13.)