The Minister of Prisons and Correctional Services, Tialavea Tionisio Hunt, has the "authority" to declare a building or land a prison.
That’s the opinion of the Attorney General, Lemalu Herman Retzlaff, in relation to the ongoing saga involving two notorious convicts who had been moved to the Apia Police station after a failed mass prison break plan last year.
Tagaloasa Filipaina and Ovaleni Poli have been housed at the Apia Police station since the incident last December.
But they have hired a lawyer to fight the decision in Court.
Last week, Supreme Court Justice Vui Clarence Nelson ruled that the Apia Police Station is not by law a prison.
But in an email to the Commissioner of Police, Fuiava Egon Keil, the Attorney believes the prisoners don’t have to be moved.
The Commissioner of Prisons and Correctional Services, Taitosaua Edward Winterstein, is copied on the email.
“Justice Nelson was not asked to decide if the detention was unlawful, he was asked to decide if there is a case to answer,” the letter reads.
“He was dealing with the preliminary stay application, not the actual Court case itself. We have re-read the decision and reconsidered para 17 and we are of the view that HH’s comments cannot therefore mean that the Applicants’ detention at Apia Police station is unlawful.
“He is saying that the Applicants have an arguable case that the detention given his determination that the Order is invalid. The matter needs to be set down then to argue.”
Lemalu goes on to say that the prisoners therefore can still be detained in the Apia Police station “until the actual case is heard by the Court and a definite determination is given as the lawfulness or otherwise of their detention at Apia Police station.”
The Attorney General also points out that the Government can easily remedy the situation “by having Apia (Police station) declared a Prison.”
“We have looked at the Prisoner’s and Corrections Act 2013 considering our discussions (and) the reasons why they were transferred to Apia Station,” he said.
Lemalu quoted section 16 of the Prisoner’s Act, which gives the Minister the power to declare a building or land a prison.
He adds that the Commissioner also has the power under Section 16 (4) to make arrangements for prisoners to be kept at a location designated by the Commissioner as a temporary prison.
“Either option can be taken immediately,” he said.
“It is recommended that these steps be taken as we cannot have persons we need to hold in Apia for whatever public reason in future, claiming that cells are not a prison.”
It was not possible to get a comment from Minister Tialavea yesterday.