Last Friday the Supreme Court ruled that it had discovered an “ulterior motive” behind the prosecution of a former electoral commissioner and subsequently stayed the proceedings.

It was the first major Court proceeding in recent years that highlighted instances of abuse of process linked to a Government, with evidence tendered by the applicant during the hearing making the Human Rights Protection Party (HRPP) Administration at that time appear complicit.

Papalii Malietau Malietoa, a former electoral commissioner of Samoa, successfully argued before the Court last Friday to have 12 charges filed against him stayed permanently with the Supreme Court Justice, Lesatele Rapi Vaai ruling in his favour.

The front page article (Court finds ‘ulterior motive’ behind charges) in the 16 October 2022 edition of the Sunday Samoan reported on the Court’s verdict, and the concerns that Justice Vaai raised in relation to the role of the Police and the Office of the Attorney General.

Dissecting the facts of the case, the Court pointed to a four-plus years gap between a Public Service Commission (PSC) investigation into the conduct of Papalii – which recommended he be fined for his misdemeanours relating to his tampering of duty travel documentation – and the decision by Police on the instructions of the then Attorney General, to slap the former election chief with 12 criminal charges, over four years after the commission’s investigation.

Among the evidence that was tendered during the proceedings was a letter from the Office of the Attorney General addressed to the Police Commissioner, which Justice Vaai cited during the hearing.

“…the letter supports the applicant’s contention that there was ulterior motive for the filing of charges some four years after the event [PSC investigation],” said Justice Vaai. 

“Obviously the initiative to lay the charges came from the Office of the Attorney General which had all the relevant information for over four years. 

“Common sense dictates that in or about February 2019 there was a reason or reasons for the report not only to reappear but to be treated with urgency by the Attorney General….the prosecution has remained silent. Its silence tips the balance.” 

In his conclusion, Justice Vaai said the question is not whether the prosecution should have been initiated, but whether the Court should permit its processes to be employed in a manner which gives rise to unfairness. 

“The initiation of the criminal charges against the applicant was for an ulterior motive and if allowed to continue would lead to the misuse of the Court process,” said Justice Vaai. 

“It will be inconsistent with the recognised purpose of the administration of criminal justice and will prejudice the integrity of the judicial system. It constitutes an abuse of process.”

Papalii’s submission in Court that he was charged by the Police due to his public opposition to the Government-supported Alaoa Dam construction project is damning of the former Administration.

Obviously the evidence that was submitted during the Court proceedings by Papalii is substantial, that it compelled the presiding Justice to question the intent of the Police and the Office of the Attorney General, and to reach the conclusion that the 12 criminal charges are tantamount to abuse of process.

The question every law abiding citizen should be asking after reading the Court’s verdict delivered last Friday is how can this happen in Samoa in this day and age? 

Sadly, this is an example of how powerful people can use institutions of State to maliciously prosecute fellow citizens, who are only exercising their rights of protest as a platform to show their opposition to a Government-supported project.

The rationale behind the protest against the Alaoa Dam construction project, a multimillion joint venture by the Government and the Asian Development Bank, were concerns in the impact areas that the project proponents did not follow the required social safeguard policies and public consultations with families and villages.

Having covered this issue extensively, the Samoa Observer was also mentioned in the affidavit submitted by the Papalii, and we can vouch for the fact that we believe not all affected families were consulted and there was indeed cause for concern. 

Nonetheless we find it incredulous that the former Administration, based on the findings of this proceeding, went after one man simply because he opposed the project. And the Police acted on trumped up charges without undertaking their own investigation to assess and corroborate the evidence, which would have led them to the 2014 PSC investigation and the findings that recommended that the matter be resolved administratively, and Papalii only pay a fine as a penalty.

The million dollar question now is who within the Office of the Attorney General at that time instructed the Police to charge Papalii with the 12 criminal charges?

The Office of the Attorney General at that time obviously got the instructions from the government of the day but who exactly within the Administration or even in the previous Cabinet gave those instructions?

We ask this question because with the Supreme Court last Friday staying the criminal proceedings against Papalii, the State i.e. the Police and the Office of the Attorney General are now vulnerable to being sued for damages by the former electoral commissioner.

Papalii got a good case against the State, should he wish to pursue the matter, but there are individuals who made those decisions behind the scenes in the corridors of power and they should be held accountable.

Yet again, thanks to the Judiciary and the Courts for continuing to uphold Samoa’s Constitution and the rule of law, which ensures ordinary men and women can sit at the same table with the powerful and have equal access to the dispensation of justice.

Looking at the hurdles that the former election chief had to overcome prior to last Friday’s Court ruling, the actions of officials within key State agencies such as the Office of the Attorney General confirms how some of them operated with impunity and without regard for the rule of law.

Sadly, we can only surmise that last year’s Constitutional Crisis following the general election was a culmination of that modus operandi, in cahoots with HRPP politicians and bureaucrats who felt no sense of obligation and accountability to the Constitution and the people of Samoa.

The former election chief's case confirms that we must not take our democracy and the ideals it stands for for granted and continue to be vigilant of our Political leaders and Government officials and the powers they continue to exercise on our behalf.