A.G.’s conduct queried

By Sarafina Sanerivi 26 February 2017, 12:00AM

Police Commissioner; Fuiavailili Egon Keil, did something “unheard of” when he approached the Chief Justice, His Honour Patu Tiava’asu’e Falefatu Sapolu, to ask for a warrant of arrest against the Director of the National Prosecution Office (N.P.O.), Mauga Precious Chang.

But that’s not all was “unusual” about it. He was apparently accompanied by the Attorney General, Lemalu Hermann Retzlaff, during the visit to see the Chief Justice.

The allegation was raised by the former Attorney General, Aumua Ming Leung Wai, during the proceedings of a Cabinet appointed Tribunal to determine the future of the National Prosecution Office (N.P.O.). 

Held at Tuana’imato, the Tribunal is chaired by Sir Robert Grant Hammond, with the other members including Tuiloma Neroni Slade and Alalatoa Rosella Viane-Papali’i.

Aumua is Mauga Precious Chang’s lawyer. During the proceedings, Aumua questioned Lemalu if it was correct that he had gone with the Police Commissioner to ask for a warrant to arrest Mauga.

Lemalu replied that it was “incorrect.”

Aumua then asked him again if he meant that he didn’t go with the Police Commissioner but Lemalu said: “No, I went with him."

“But you can see in my supplementary affidavit that I explained to the Assistant Commissioner, Samoa Mulinu’u as to why I went. 

“And I would ask all the members of the Tribunal to refer to my second supplementary affidavit. I had responded to this question and explained why I went.”

Lemalu told the Tribunal he had advised Fuiavailili against going to Chief Justice.

 “But the Police Commissioner said he has a relationship with the Chief Justice and he would still approach him and speak to him about whether it was possible,” Lemalu said. “So I had to attend.”

But Aumua objected.

 “You are the chief (legal) advisor to government,” he put it to Lemalu.

“You were to advise the Police Commissioner that if he were to get a warrant of arrest from the C.J, then that should be the end of the matter.”

Lemalu agreed. He said he advised the Police Commissioner, but Fuiavailili insisted that he would go and talk to the Chief Justice anyway. 

“And because he wanted to go, I thought I should be there too … that’s why I was there.”

At that point, the Chairperson of the Tribunal, Justice Hammond interrupted.

He asked defense counsel about the connection of this matter to the purpose of the Tribunal. 

Aumua replied that “there is a conflict of interest there for Ms. Chang.” 

He clarified that the main reason Mauga did not delegate her prosecutorial powers to the Attorney General was because of a “conflict of interest. 

“Mr. Attorney General went with the Police Commissioner to try and obtain a warrant of arrest against Ms. Chang. Obviously there is a conflict of interest there for Ms. Chang,” Aumua said. 

Justice Hammond then allowed the questions from the defense counsel. 

Aumua continued to question Lemalu about why he accompanied the Police Commissioner. 

“Firstly, I was there as an advisor to the government,” Lemalu responded.

“I advised him (the Police Commissioner) that what he was asking for, was never done in Samoa before. 

“I wasn’t there asking for a warrant of arrest, I was there as an advisor to the Chief Justice and protector of the Judiciary.”

But Aumua was not impressed.

He said Lemalu was contradicting himself.

 “You first said that you were there as an “Advisor to Government” and then later on changed to “Protector of the Judiciary,” asked Aumua. 

Lemalu responded: “I was there as an Advisor to the Chief Justice. He (the Police Commissioner) took my advice and decided to ask the C.J. himself.”

Aumua asked Lemalu whether he was there asking the Chief Justice for legal advice, to which Lemalu said no.

 “Or were you there allowing the Police Commissioner to ask the Chief Justice for legal advice?” asked Aumua. 

“No I was allowing the Police Commissioner to hear affirmation of what I had advised him to do. Because of the unusual nature of the request, I felt like I had to be there,” Lemalu said.

But Aumua reiterated that a warrant was not necessary at all and it was “unusual” to carry out such a practice in Samoa. 

Aumua also asked Lemalu if he was related to the Police Commissioner, to which Lemalu flatly said “no”.

He also denied a claim from Mauga’s legal team that he offered to withdraw the charges against Mauga if the charges against the Police Commissioner were withdrawn. 

 “According to Ms. Muriel Lui, you wanted to withdraw the charges against the Police Commissioner, and in return, you would withdraw the charges against Ms Chang. Is this correct?” Aumua asked. 

To which Lemalu replied, “That’s incorrect. I never spoke to anyone about withdrawing the charges.” 

Aumua also asked Lemalu if he had also mentioned to Ms Lui that the Minister also wanted to do the same. Lemalu replied that he never said such a thing. 

“I never said that the Minister wanted the charges withdrawn.”

The Tribunal’s work started Monday. Central to the Tribunal’s work is the investigation of the conduct of the suspended Director of the National Prosecution Office, Mauga Precious Chang, and her associate, Muriel Lui.

Ordered by Cabinet last year, the Tribunal is answerable to Prime Minister Tuilaepa Sailele Malielegaoi.

Mauga was suspended by Cabinet last August following a Police investigation and review by an independent prosecutor of charges filed against her. 

Her suspension was for an initial period of three months while her case underwent standard judicial process. 

The charges against her have since been dismissed but the decision is being appealed.

In her absence, Acting Director, Muriel Lui assumed the responsibilities and duties of the Director of the National Prosecution Office.

However, in October last year, Ms. Lui was also suspended by Cabinet. 

“Cabinet has noted the continued refusal of the suspended Acting Director of N.P.O and suspended Director of N.P.O to properly perform powers and duties to uphold the rule of law and objectivity of the criminal justice system,” a statement from Cabinet said at the time.   

“Cabinet acknowledges that the actions of Ms. Lui and Ms. Chang have created unnecessary conflicts between government departments while diminishing public confidence in law enforcement processes and the justice system in Samoa.

“Furthermore, the validity of the establishment of the National Prosecution Office will also be reviewed to ensure the statutory responsibilities and powers are treated with greater transparency, accountability and respect.

“The Tribunal will be appointed on the grounds that Ms. Chang and Ms. Lui have not used the statutory powers given to them in an appropriate manner and they have breached Civil Service Values and Code of Conduct under the Public Service Act 2004, as applied to them under section 15 of the N.P.O Act 2015.” 

By Sarafina Sanerivi 26 February 2017, 12:00AM

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