MANDATE NOT FROM KING

Sun (Auckland), Volume II, Issue 594, 21 February 1929, Page 1

MANDATE NOT FROM KING

N.Z. is Servant of the League MR. JUSTICE BLAIR’S JUDGMENT • JIIK Government of New Zealand lias become what may be I called the Administrator of Samoa, not on its own behalf or on behalf ol Great Britain, but for and on behalf of the l eague of Rations, stated Mr. Justice Blair in a judgment deliveredl tins morning: dismissing the application, for the release oi the Samoan high chief Lealofi Tamasese.

T'HE contention that section 210 is ultra vires is based on the erroneous impression that his Majesty conferred the mandate on New Zealand,” states the judgment. “It is clear that the mandate was given not to the King but to New Zealand, which can be regarded as a servant bound to obey the directions of its master, the Council of the League of Nations.” The application for the release of Tamasese on the grounds that section 210 of the Samoa Act, 1921, was ultra vires in that it overrode the Habeas Corpus Act of 1679 was heard before Mr. Justice Blair at the Supreme Court on February 9 when judgment was reserved* Mr. Hall Skelton appeared for the appellant and Mr. V. 11. Meredith opposed the application on behalf of the Crown. The reserved judgment was delivered this morning as follows: Lealofi Tamasese was on December j. 1928, at Apia, Samoa, convicted for that on the 27tli day of November, 1928. at Valßioso, he, the said Tamasese, did resist and wilfully obstruct Police Constables Moore, Hollis, Taylor. Paramore and others in the execution of their duty,’ The certificate under the hand of a judge of the High Court of Western Samoa and under the seal of that court then goes on to .state, and on such conviction the said Tamasese was thereupon sentenced with hard labour for the term of six calendar months.’

that it was instead treated as a country inhabited by savages and admins ered on this basis. In particular uie enactment of Section 210 was pointed out as indicative of treatment meted out only to a nation of savages.

This sort of argument may have heca a mere indulgence in poetic license, but Mr. Hall Skeiton made some point of it and indicated that the judgment of the court would have far-reaching effects on the minds of the hemuan followers of Tamasese It would not be fitting for me to attempt any examination of the soundness of tlm views of Tamasese on one side or the Administration on the other; but as there apepars to be some misconception as to Mew Zealand’s powers and duties as the mandatory of Samoa, and a proper understanding of the ambits of Mew Zealand’s powers and duties is necessary for the decision of this case. I will attempt shortly to indicate what these powers and duties are, with a view of endeavouring to remove what I believe to be certain misconceptions on the subject. NEW ZEALAND’S AUTHORITY ‘lt is necessary first to note that prior to the war and Treaty of Peace Samoa was a German possession and administered by German officials. By the Treaty of Peace Germany renounced. not to Great Britain but to the Allied Bowers, all Germany’s rights in Samoa. The Allied Bowers m whose favour this renunciation was made have not handed over these rights and powers to Great Britain but have retained them and the dominant authority administering Samoa to-day is the Council of the League of Nations. It was necessary that somebody be appointed by the League of Nations to attend to the details of administering the affairs of Samoa and accordingly his Britannic Majesty, on behalf of New Zealand, was asked to perform this duty, and agreed to do so through the Government of the Dominion of New Zealand. Thus it is that the Government of New Zealand becomes what may be called the administrator of Samoa, not on its own behalf or on behalf of Great Britain, but for and on behalf of the Lo:que of Nations. “The document which imposes this duty on New Zealand is called a mandate. The preamble of this mandate recites that his Britannic Majesty, for and on behalf of the Government of New Zealand, has agreed to accept the mandate and ‘has undertaken to exercise it on behalf of the League of Nations.’

“This conviction, it was stated to me, was made under Section 76 (c) vf the Samoa Act, 1921, but this statement is erroneous as the conviction was obviously made under Section 7 of the Maintenance of Authority in Native Affairs (No. 2) Ordinance, 1918, a Western Samoan ordinance. This provides for a fine not exceeding £IOO or imprisonment for a term not exceeding one year. "On December 15, 1928, a warrant under the hand of the Administrator und the seal of Samoa was duly issued under Section 210 (I) of the Samoa Act, 1921, transferring Tamasese to Auckland Prison: Sub-section 5 of Section 210 provides that a prisoner so transferred is to be treated as if bo had been sentenced in New Zeaitnd for the residue of his original term of imprisonment. By sub-section provision is made as to the return to Samoa of *any such prisoner on the expiration of his sentence. “Accompanying this warrant was a certificate in terms of Section 210 (3). No suggestion has been made by counsel for the applicants against the form of these documents. TWO WARRANTS

The original application comes before this court on two grounds, the nrst being that there was no jurisdiction to impose imprisonment on Tamasese because it was suggested that it Haa an attempt to enforce payment 01 a civil debt by means of imprisoninent. In order to establish this pound it would be necessary to go pnnd the warrant and conviction ina (assuming it were possible for was court so to do) it would be necespry to have before this court full depus of all steps prior to conviction ogether with copies of all documents. , Jn ? of these details lias been supppd and Mr. Hall Skelton at the out--s*: uf argument intimated that he .hu l pr °P° se to raise the first point, *? a he accordingly abandoned it. If ; . considering the facts anterior to conviction counsel for the applicant considers there is any justification for * further application to this court psed on such facts, it is open for »m so to do. Eshugbayi Blecko v. umeer Administering Algeria. 139 L.T. habeas corpus act , The basis of the present application lVi i section 210 of the Samoa Act, t “ . I s ultra vires. The New Zealand - dslature. sub-section 1 of this secto , states; ’Every person sentenced D . lm Prisonment or committed to w *. Pn for si x months or more, may by an * under the hand of the Admina?d thf ' Of Samoa, be 1 — ferre<l some prison in New Zearant.named or described in the waring "as claimed that to require a to serve his sentence out of aS P rov i c h‘d by Section 210 in0f « J?** 1 the principle of Section 12 Kct i abeaiS Cor PUs Act, 1679, which thA it by the effect of Section 349 of t 0 amoa Act. 1921. made applicable imperial i \? thou^h admitted that the sirSi could, if it so de:i'n*rmLke tlle Habeas Corpus Act “JPPUcahle to Samoa, it was con--\*wLi'i Ch "as not possible by the d-riv i aluml Parliament because it -rdini «S n f ower f legislation re- ** *-amoa not from the Imperial filament but from the prerogative Was 1116 King himself, and it r o t„ , Urther claimed that these pretha i-ia Powers were limited in that a nr t! ns WiLS incapable of depriving rights Pen , denc ‘y of the Crown of its Th« under the Habeas Corpus Act. CChfention advanced. therefore. Hot do a .hi aS the Kin « idmself could no *ther couid the New Satfe o Legislature, which has as reto ( van f nu,a only a derivative right rcise the King’s prerogative. BRITISH JUSTICE in"sa21 asese is a ma " ot rank ha, l“ ou ’ and il " ;,s stated that lie Mor.TV’P thousands of adherents who iniidiici 8 i! e " S and luok to hinl for that waa Pressed in argument L eftfWtl w “ e *' t he mandate from the °f utions was accepted by Zealand the Samoans expected ttsH? a . to ob tain r.adv-made British ‘tuuons and British justice, and

Article 2 provides that ‘the mandatory shall promote to the utmost the material and moral well-being and social progress of the inhabitants of the territory.’

“New Zealand, in administering the ariairs of Samoa, is a mere servant bound to obey the directions of its master, the Council of the League of Nations. Thus it will be seen that, so far as Samoa is concerned, New Zealand is a mere servant or trustee. which has undertaken to obey the League of Nations. It follows also that, if New Zealand were to fail in its obligations to the Samoan people, the League of Nations would no doubt take steps to have appointed another mandatory who would better fulfil those obligations. MANDATORY CLEAR “I have not overlooked the point referred to by Mr. Hall Skelton that in the preamble of the Samoa Act is recited that the mandate was conferred upon his Majesty, to be exercised on his behalf by the Government of the Dominion of New Zealan.d A similar recital appears in the mandate itself, but the Court of Appeal in Tagaloa v. Inspector of Police, 1927. N.Z.8.R., 883, dealing with a contention that the mandatory under the mandate was his Majesty the King, and not New Zealand, said, at page 894: “But this, in our opinion, is not so. The Government of New Zealand was intended to be the mandatory. That is clear, we think, from the terms of the mandate, and there is also the fact that New Zealand has been treated by all concerned as the mandatory, and has reported as such from year to year to the Council of the League, as required by article 6 of the mandate.’

“In order to carry out this trust it is administering the affairs of Samoa in a certain way, which it believes is designed to pPomote the material and moral well-being and social progress of the inhabitants. j “It may be that Tamasese and his ! adherents do not agree with the ; methods adopted by New Zealand, but j he will admit that although these j methods may not be the methods which he and his adherents advocate, | and would adopt if the duties under i the mandate were in their bands, New Zealand in adopting the course it is | adopting does so because it believes j its methods to be the best for the attainment of the desired objects. “It is the Council of the League of Nations which is the judge as to whether the methods adopted for promoting the material and moral wellbeing and social progress of Samoa | are wise or unwise. Tamasese is not the judge of this, and neither is New | Zealand. TAGALOA’S CASE “Mr. Hall Skelton submits that sec- | tion 210 is ultra vires the New Zea- | land Legislature. His whole argu- , ment is based on an erroneous assump- ; tion that his Majesty conferred the | mandate on New Zealand. As already l mentioned, the Court of Appeal de-

cided in Tagaloa’s case that the mandate was not gvien to the King, but to New Zealand. As previously explained, the mandate comes from the League of Nations. Mr. Hall Skelton’s argument postulates that, because the mandate reaches New Zealand per medium of his Majesty, this mediation of his Majesty derogates from the grant. In other words, his argument means that although the fullest plenary powers are conferred on the mandatory by the giver of the mandate, yet because his Majesty becomes the nominal recipient on behalf of New Zealand, the powers that reach New Zealand have lost some of their potency. If the fullest plenary powers left the League of Nations on their way to New Zealand, but in the process of transition some of these powers did not reach New Zealand, what then happened to them, and where are they now?

"I cannot accept such a contention, but even were I inclined so to do I think that it is a necessary inference from Tagaloa’s case that New Zealand, as regards Samoa, possesses authority as plenary and ample as the Imperial Parliament. Were I to hold otherwise, I would be ignoring a judgment which is binding upon me. The authority which controls Samoa, viz., the League of Nations, conferred upon the New Zealand Parliament full powers of administration and legislation over the territory, subject to the present mandate, as an integral portion of the Dominion of New Zealand.

“Mr. Hall Skelton admits that the Imperial Parliament could abrogate the Habeas Corpus Act. It would seem to follow, therefore, that the only authority which is given legislative authority over Samoa can do the same.

“A considerable portion of Mr. Hall Skelton’s argument concerned the extent of the King’s prerogative of legislating in British colonies. Such an inquiry does not profit us when the question concerns a country which is not a British colony, and the authority comes to New Zealand from the League of Nations.”

“The passage cited in Broom’s Constitutional Law (second edition), page 50, served to show the limits of his Majesty’s prerogative rights in conquered or ceded countries, has no application to a country neither conquered nor ceded to Great Britain.

“Section 12 of the Habeas Corpus Act, which forms the whole basis of applicant’s argument, provides that no resident of England, Wales, or town or Berwick-on-Tweed shall be sent prisoner into Scotland, Ireland, or Jersey, Guernsey, Tangier, or islands or places beyond the seas. Read literally, this has no bearing on the present application. Section 7of “The Foreign Jurisdiction Act, IS9O, (53 and 54. Viet. C 37), provides that where a person is convicted in a British court in a foreign country, and sentenced to imprisonment, the sentence shall be carried into effect at such places a* may be directed by Order-in-Counc-iv Under that provision, only' an Order-in-Council is necessary to imprison out of the foreign territory.” In dismissing the application, his Honour awarded 15 guineas costs against the applicant.