02 May 2017
Papalii John Taimalelagi
Chief Executive Officer
Ministry of Justice & Courts
1. In our Sunday, 23 April. 2017 edition, we ran the story of a search warrant being issued by the Deputy Registrar against the Samoa Observer. We have decided to write directly to you to convey our concerns about this especially its illegality.
2. Whist I was in Auckland with my wife, we were informed that Police had turned up to our Apia office asking for "Robert". Robert of course could not fathom if he had done something wrong. The Police officers however informed they had a search warrant to search Samoa Observer premises relating to information on a story the paper ran.
Caught by surprise and not wanting to tick off the officers, a very nervous Robert informed them that the Apia office did not store anything but for them to contact our newspaper Editor, Mataafa Keni Lesa at the Vaitele office as we were overseas.
3. Armed with the search warrant, the officers confronted Mataafa about searching our premises at Vaitele.
4. Up to this point, even to this date, we as owners of the paper are in the dark as to why this search warrant was issued in the first place.
Also we were never once informed at any stage of any possible crimes committed or suspected to have been committed by us, or the paper.
5. From the documents, which we took the liberty to make copies, it shows that an application for a search warrant dated 18/04/17 was lodged by the Ministry of Police for approval by a Supreme or District Court Judge/ Registrar. There is an affidavit by a constable Kurisi Kurisi which alleges that police were "investigating a harassment utilizing means of electronic communication case at the Samoa Observer, Vaitele." It further requested all information on an article entitled "Stop this madness" published in the paper on Wednesday 29/03/17. Information requested included, "name, village, date of birth, any contact numbers and date of publication".
6. The search warrant permitted all constables of Samoa, within one month from the date of the warrant to:
i) enter and search the Samoa Observer building, vehicle premises with such assistance as necessary and if necessary to use such force for making entry whether by breaking open doors windows or otherwise;
ii) to break open and search any box or receptacle for items referred to in 5 above for seizure.
7. According to the search warrant and application, the law relied on is s.83 of the Criminal Procedure Act 1972.
8. But according to our research, this law or Act has been repealed. It is now replaced by a Criminal Procedure Act 2016.
9. I am no lawyer, but the fact Police and similarly the Deputy Registrar who signed the approval of the warrant relied on this doomed law, immediately rang alarm bells in my head.
10. For me, this means the law relied upon is wrong and the search warrant should have never been approved by the Deputy Registrar in the first place.
11. Which brings me to my second point. The allegation made by Police against Samoa Observer was in my view of a serious nature. It calls into question legal issues that a Deputy Registrar who is not a lawyer cannot possibly have the proper legal training to understand. My question is, shouldn't it have been more fitting that a Judge of either the Supreme or District Court be given this search warrant application to determine? Perhaps if this was done, any Judge would have immediately noted the repealed law relied on and throw out the search warrant.
12. Another issue that a Judge would have immediately pick up on is what is the crime Samoa Observer is suspected to have committed? I mean this was the first question that came to my mind. Isn't a search warrant usually associated with a crime being committed? So what is Samoa Observer's crime to prompt Police to apply for a search warrant and Deputy Registrar approving it.
13. But then again what is a Deputy registrar doing determining such important issues? We made some inquiries as to his role and informed he was recently appointed as an ACEO for criminal and civil division of MJCA. So is he still a Deputy Registrar?
14. We also did some further research and noted the new Criminal Procedure Act 2016 now provides for search warrants under section 33. It says, "a Judge or Registrar" may issue a search and seize warrant or restraining order in the prescribed form..." It then goes on to list the situations in which a search warrant can be issued. At section 33 (4) it clearly says that "in this section "Registrar" does not include a Deputy Registrar".
15. This means that even if the application for a warrant was brought under the new law, the Deputy Registrar could not sign or approve the search warrant. This means he has abused his position and in my view he should be disciplined/dealt with accordingly. Equally the Ministry of Police should answer for their neglect and the harm it has done to us as a result of their illegal actions.
16. This brings to the fore the even more crucial concept of freedom of press. The issuing of the search warrant without any legal basis in the full knowledge there is no crime committed is an abuse of process and undermines the right of the newspaper to freedom of press/speech and its obligation to protecting its sources. Such neglect and abuse exposes the government to civil suit and who ends up paying? The people. Our people. Us the taxpayers.
17. As the Fourth Estate, it is prudent that the newspaper as a form of media and its freedom of press, be protected. It is hard to fathom that in this day and age, a search warrant can be allowed to be issued against a media outlet without firstly ascertaining that the application was properly made in the first place.
19. I sincerely hope I will not live to see the day this will happen again.
20. Given the Ministries involved in this matter, I have therefore copied accordingly for their information, the Commissioner of Police, Fuiavailii Egon Keil, Afioga Tuilaepa Sailele Malielegaoi as the Minister of Police Services, Afioga CJ Patu Falefatu Maka Sapolu as the head of Samoa’s judiciary, Afioga Faaolesa Katopau Ainuu as Minister of M.J.C.A., and Afioga Lemalu Hermann Retzlaff, Attorney General.
Ma lou fa’aaloalo tele,
Gatoaitele Savea Sano Malifa,
Chief Editor Samoa Observer,
cc: Fuiavailii Egon Keil, Police Commissioner
Hon. Tuilaepa Sailele Malielegaoi, PM & Minister of Ministry
of Police Services
Afioga CJ Patu F M Sapolu - CJ & head of Samoa Judiciary
Hon. Faaolesa Katopau Ainuu, Minister of MJCA
Afioga Lemalu Hermann Retzlaff, Attorney General.