TAMASESE CASE

Sun (Auckland), Volume II, Issue 597, 25 February 1929, Page 13

TAMASESE CASE

LEGISLATION FOR SAMOANS DOMINION HAS FULL POWERS (Written for THE SUX by '‘Lex.”) The application of the Samoan chief Tamasese lor a writ of habeas corpus attracted a considerable amount of public attention; and rightly so, too, when one considers? the issues directly and indirectly involved. In the case itself there arose a constitutional issue of first rate importance—has the Parliament of New Zealand, for all practical purposes, an unlimited power of making laws for the people of Samoa? Behind all this, yet depending on it in no uncertain way, lay the question of Samoan unrest. So soon, however, as the judgment was pronounced, we in New Zealand accepted it as correctly setting forth the position. AVe are, indeed, a fortunate community in that we can accept without serious question the decisions of our judges. Our Bench is composed of independent, fearless men who give us of their best, and who hold themselves aloof from considerations of political expediency. Still, there may be some among us who might not feel completely satisfied with Mr. Justice Blair’s decision, and who niight harbour a. doubt as to whether, in a higher and more remote Court such as the Privy Council, the result would be entirely the same. To those few doubtful ones, may I offer the results of a full and careful consideration of this question.

In the last few days I have examined every decision, article and pamphlet which I could discover and which seemed to me to have any bearing on the question, and I am bound to say that I believe the judgment in Tamasese’s case to be an absolutely sound one. Perhaps a short statement of my reasons may be of value. Part of the argument addressed to the court by Tanmsese’s counsel proceeded on the assumption that the- position of the self-governing Dominions is the same to-day as it was before the war. I venture to think that this is not correct. Prior to 1914 the Dominions were rightly regarded as subordinate bodies and, as such, they could legislate only within the definite limits prescribed for them by the Imperial Parliament. Toward the close of the war, however, they began to assert their claim to be consulted on matters of Imperial foreign policy. Moreover, the Dominions are recognised separately as original members of the League of Nations, and are entitled to the same representation in the Assembly? as are fully Sovereign States. So far as the League is concerned they have the same rights and duties as independent States, and it seems better to regard them now rather as partners in the great firm called the British Empire. Again it was said in argument that New Zealand derives its control over Samoa from his Majesty the King in Council. This, also, is hardly a correct statement. The mandate for Samoa was given direct by the League to the Government of New Zealand. All correspondence touching the mandate is conducted between New Zealand and the League without any necessary reference to Great Britain, and New Zealand is responsible for her actions in Samoa to the Council of the League and to it alone. It is a curious fact that when the mandates were being distributed, New Zealand, acting upon her traditional view of loyalty to the original ideals of the constitution of the Empire, asked that the mandate for Samoa should be given—not from the League—but from Great Britain herself. This request was declined owing, no doubt, to the desire of Australia and South Africa to deal direct with the League and tjius to consolidate their claim to rank on an equality with, and not as subordinate to. Great Britain.

Now the main point in Tamasese’s case lay in this: The New Zealand Parliament, to give effect to its*- mandate, passed the Samoa Act, 1921. In that Act there was a provision to the effect that, under certain circumstances, persons convicted in Samoa could be transferred to a prison in New Zealand and there detained during the remainder of their sentence. For many generations it has been a well-recog-nised principle of English law that a person cannot be required to serve his sentence outside the country in which he was convicted. Of course this principle can be varied at any time by the Imperial Parliament, as was actually the case with regard to sentences of penal servitude in certain colonies. But it was argued that the King, acting by himself, could not. depart from such a law and, if he could not do so, it followed that he could not authorise the New Zealand Parliament to do it. This argument really raised two questions. The first —could the New Zealand Parliament validly legislate at all for Samoa? The second —if it could do so, what provision could it properly put in such legislation? A case heard in Wellington last year decided that the New Zealand Parliament had a legal right to legislate for Samoa and to pass the Samoa Act.

This decision was a unanimous one concurred in by five judges. Mr. Justice Blair has now answered the second question by deciding that the New Zealand Parliament acted within its powers in authorising the imprisonment of convicted Samoans in New Zealand. In qtber words, the position arising under the mandate is that New Zealand may properly legislate for Samoa; that so long as she keeps within the scope of her mandate she has legislative cowers that are as wide, in like circumstances, as those of the Imperial Parliament, and that for what she does in Samoa she is accountable only to the Council of the League. So far as I have been able to discover, these views are held and have been advanced by the leading academic and professional men who have written on the subject.