Court asked to transfer prisoners

By Deidre Tautua – Fanene ,

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Tagaloasa Filipaina in Court yesterday.

Tagaloasa Filipaina in Court yesterday.

The hearing of the matter between the Police, Samoa Prison and Correction Services, notorious prisoner, Tagaloasa Filipaina and Ovaleni Poli, started yesterday.

The matter was called in the Supreme Court before Justice Vui Clarence Nelson. 

The two prisoners are represented by lawyer, Pa’u Tafaogalupe Mulitalo. The Police, Samoa Prison and Correction Services are represented by Jeffery Ainu’u of the Attorney General’s Office.

Pa’u is asking the Court for his clients to be transferred from Apia Police Station to Tafa’igata Prison.  

“Your honour, it really comes to a request for the applicant to be released to Tafaigata from the Central Police Station,” said Pa’u.

But Justice Vui questioned him, asking where in the law does it say the Court can make such order.

“What does the Court have to do with that,” asked Justice Vui.

“We don’t run the prisons.”

But Pa’u insisted he was seeking for an order from the Court.

“Your honour I am seeking for an order to allow the prisoners to be released from the Police station back to Tafaigata on the grounds that the Police station is not a prison,” said Pa’u. 

Justice Vui reiterated to the applicants to state where in the law does it say that the Court has the authority to interfere on how prison is run. 

“But where does it say the Court can make an order like that,” asked Justice Vui. “Where in the law does it say the Court can interfere in where prisoners are kept?

“There is no difference in what you are saying if the prisoner was at Vaiaata so what you are saying is that the prisoners who are at Vaiaata can also apply to the Court to be transferred to Tafaigata.”

Pa’u then told the Court that his argument is that the Police station is not a prison.

“I have no difficulty with what you are saying sir but I have a difficulty in relation to a Police station where these men are kept,” said Pa’u. “There isn’t any strong evidence to prove or to justify their ongoing detention in a holding cell at a police station.”

But Justice Vui insisted.

“But where does it say I can give you that order,” asked Justice Vui. 

“Show me the law. The Court has no jurisdiction to run the prisons. Sorry, I think this is a matter for the people who run the prison.

“The Court runs the Court not prison or prisoners.”

Pa’u refused to give up. He argued that the Court has the absolute power to make such order.

 “I don’t have absolute power,” Justice Vui responded.

“I have the power, the law gives me and what I am asking you is to show me where in the law it says I have the power to make this order.

“If you show me where, I’ll do it, but if you can’t show me where then I cannot do it. They are prisoners, they have been sentenced to serve a term of imprisonment so therefore the detention is lawful.

“Whether or not it is a prison, is beside the point?

“The point is you have to cite authority that says this Court can make the order you are seeking to grant a release to these men to be transferred from the Police station back to Tafaigata.” 

Pa’u then told the Court of section 34 of the Prisons Act. 

“So the transfer of prisoners from Vaiaata to Tafaigata or from Tafaigata to the hospital or anywhere that section talks about that but what we are talking about is the transfer from Tafaigata to a Police station is slightly different,” he said.

“So my argument is the fact that they are treating the Police station as a prison does not apply in that section, so there is an unlawful act there.”

Justice Vui asked Pa’u to clarify the unlawful act.

“The transfers of prisoners have to be undertaken in accordance to regulations and the use of commissioners orders,” he said.

“What is the unlawful act?”

Pa’u told the Court the unlawful act is where the Police are treating the Police station as a prison.

“The current law which is the Prisons and Corrections Act 2013, in section 16 subsection 4, it says the Commissioner may make arrangements for keeping prisoners in a location designated by the Commissioner as a temporary prison,” Justice Vui pointed out.

“That gives him power to designate the Apia Police station as a temporary prison,” he said.

Pa’u still wouldn’t budge.

“The question of temporary cannot be specified because we are talking about temporary accommodation then we are looking at maybe a few days a week or so,” he said.

“But in this case, these men have been held in the Police station cell for three months and there is uncertainty when they will be released by the respondent because their explanation is that these are high risk prisoners.”

Justice Vui responded: “Yes, but you are still missing the point,” he said.

“It doesn’t matter if they are held there for one week, one year or 10 years, that’s not the point. The point is where in the law it says this Court can direct the commissioner to transfer these men from there to Tafaigata. 

“It’s not how long they’ve been held there, the Commissioner has been given the power under the law to designate the Police station as a temporary prison.

“So where in the law does it allow the Court to give such order?

“And for you to succeed, you must say the law gives this much power to the Court to review these kinds of decision.”  

Pa’u then tried to bring in the court the Ombudsman’s Act where Justice Vui told him that he is not complaining to the Ombudsman but to the Court.

 “Don’t talk to me about the Ombudsman, this is the Court. If that is the case, then go complain to the Ombudsman and let the Ombudsman carry out his investigation,” said Justice Vui.

“This is not the Ombudsman’s Office, this is the Court.

“You are complaining to the Court and I’m saying to you to show me where it says the Court has the power to interfere with how prisons are run.

“And also you have not filed an affidavit to support your argument as well.

“So your argument is that the Apia Police Station is not a prison and whether the detention is unlawful. Your problem is you don’t have an affidavit and I can’t have you saying all of that.

“You can’t stand there and make these accusations when you know you did not file an affidavit. The rules are simple Mr. Mulitalo. Your clients have been down at the station for three months and therefore you had three months to prepare your case.

“So without an affidavit you can’t make these accusations.”

Pa’u then made an application to adjourn the matter so he can file an affidavit.

Justice Vui granted the application on the basis that everyone has the right to be heard from the applicants to the respondent.

The hearing continues today.

© Samoa Observer 2016

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