This is an interesting story.
Back in the late nineties when Tofilau Eti Alesana was prime minister, and Tuilaepa Sailele Malielegaoi was his Minister of Finance, life in Samoa was a chaotic politically, and all of us working at the Samoa Observer were worried, in fact pretty scared.
The Samoa Observer then was a toddler trying to walk straight, and Tofilau and his cabinet ministers were having great fun taking potshots at it, in the form of mind-bending lawsuits.
Those were truly exciting times.
In one of Tofilau’s defamation claims where his lawyers were expatriates, his legal fees totalled $WS783,000. Later in Parliament, Tuilaepa submitted Tofilau’s fees for approval and approval was smartly granted. Those fees were provided for in the government’s 1998-99 budget.
Sometime later, Tuilaepa requested a further $400,000 in connection with the same claim, and again approval was granted.
Now that was when the government announced the establishment of the law called Printers and Publishers Act 1994.
It said from then on, that law would allow top government officials from the prime minister down to leaders of state ministries and corporations, the use of public funds to pursue defamation claims against “newspapers.”
In other words, the new law was designed to stop “newspapers” from publishing stories that are deemed threatening to government leaders; which is to say it was a campaign aimed at putting a stop to the disclosure of alleged government corruption.
Incidentally, the word “media” was poignantly absent in the announcement. And it was pretty clear why. Only “newspapers” were targeted by the campaign.
The rest of the “media”, which included radio and television, were not; they were alright; they were not a threat then and they are not a threat today.
At the time, the Leader of the Opposition, Tuiatua Tupua Tamasese, made his opposition known.
Describing the new law as unconstitutional, he told Parliament: “This decision breaches freedom of speech guaranteed by the Constitution.
“The Prime Minister does not worry about money because the government is paying.
“However, the ‘Observer’ is bound to be hurt financially whether it wins or not, since it is paying for its own legal fees.
“And if this is what will be happening to newspapers, their freedom to express themselves as it’s required by the Constitution, cannot be protected.
“The Prime Minister and other government officials will keep on suing them for defamation, knowing well they do not have to part with a cent of their own.”
When one of the paper’s legal fees arrived, it amounted to $230,000, a substantial amount well beyond the paper’s financial capabilities.
There was no way we could pay them all at once, and it was frightening thinking about it.
“What are we going to do now?” Jean asks.
“Well,” I reply. “Let’s go to the bank. Set up an appointment with Mr Kelsh.”
“Today, tomorrow, the sooner the better.”
Mr Peter Kelsh is the Managing Director of the Bank of Western Samoa.
We have been banking with B.W.S. for sometime now so that we have been able to establish a pretty good relationship with them.
As we entered his office that afternoon Mr Kelsh was waiting.
That meeting turned out to be the shortest one we’ve ever had with a bank manager, and the most satisfactory one too.
“So what can we do for you?” he asked after we’ve sat down.
Jean and I look at each other.
So I start: “We have some legal fees to pay.”
“I know that,” he says. “How much?”
He was told the amount.
“Well, you have to pay them,” he said.
“You have a cheque book, don’t you?”
“Then just go and sign your cheques and pay your legal fees.”
For a moment I just sit there speechless. Although Mr Kelsh’s words are sweet music to the ear, the abruptness with which he has made his decision also makes it sound somewhat surreal.
I’ve been expecting more questions, details of repayment conditions and whatnot, but apparently this is a special case so that all those silly things are not needed.
We say thank you, the meeting ends, we stand up, and walk out the door.
That night, alone in the house, I say to Jean: “Someone is looking after us. He’s certainly thinking what the government is doing is not right. I think I know who that someone is.”
Jean says nothing.
She is deep in thought.
On 16 September 1998, another trial is about to be concluded.
This is Tofilau’s claim of criminal libel made against the editor of the Samoa Observer, and Justice Sir Gordon Bisson is presiding.
The penalty is six months in jail.
Today His Honour is delivering his judgement.
The courtroom is packed.
His Honour denies Tofilau’s full claim of $550,00 and awards him $75,000 instead.
On the P.M.’s claim of damages for $400,000, His Honour said he took into account that “the plaintiff was only 12.5 percent successful”, and awarded him $50,000.
Now that got me thinking; in my book, the plaintiff is either 100% successful or he is nil successful. Is His Honour saying the plaintiff is 12.5% honest and 75.5% dishonest?
In my book, the court’s ruling is absurd! The way I see it, honesty is 100%. Nothing more. Nothing less.
His Honour told the court: “I did not take into account the fact that the Prime Minister’s case was being funded by the Samoan Government.”
Now again, in my book, that’s drivel. I’m reminded that the prime minister had engaged the services of two legal firms – one is Australian and the other is Samoan - in an attempt to close the newspaper down, and put its editor behind bars.
His legal costs were being paid for by the public, so what kind of circus are we conducting here?
Justice Bisson said he also took into account that if Tofilau had “elected to give evidence in the usual way in support of his case, there would have been a substantial saving in time and expense.”
Still, when it was known that the plaintiff would not get in that box because he refused to give evidence, perhaps the court should have ruled the trial could not continue.
After all, he had been convicted of the crimes in question that he’d earlier denied, and now that the truth had been established, the idea that the defendant would still be made to pay did not sound like justice to me at all in those days.
Still, later in Parliament, the leader of the Opposition, Tuiatua Tupua Tamasese, had the last say.
He asked: “Where else in the world does a government pay for the legal fees of a Prime Minister when he sues a newspaper?”
The answer then was none. It remains the same today.