By Fuimaono Dylan Asafo*
Opinion - The current situation in Samoa raises the question of how the former Prime Minister, Tuila'epa Sa'ilele Malielegaoi, and potentially other members of the Human Rights Protection Party (HRPP), can be held accountable for continuing to undermine the judiciary and the new FAST-led government.
In my view, in addition to the existing contempt applications - the former Prime Minister and other members of the HRPP can also potentially be held accountable under the Crimes Act 2013, specifically under Section 41, which criminalises 'inciting to hostility' as follows:
A person is liable to imprisonment for a term not exceeding 2 years who with the intention of undermining the authority of the Government of Samoa, or to incite violence or hostility against the Government of Samoa, or between different classes of inhabitants of Samoa, or to change any matter affecting the laws, government, or Constitution of or any religious observance of Samoa:
A convoy of supporters of Samoa's former Human Rights Protection Party government descend on Apia for a protest against the judiciary. Photo: Samoa Observer
(a) uses or speaks any words; or
(b) publishes anything,- in circumstances where there is a present risk of lawlessness, violence or disorder in Samoa.
The operation (or in other words, application and interpretation of) of section 41 must be a "reasonable restriction" on the fundamental rights to freedom of speech and expression and peaceful assembly without arms as protected in Article 13 of the Constitution, which states:
"(1) All citizens of Samoa shall have the right:
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that sub-clause in the interests of national security, friendly relations with other States, or public order or morals, for protecting the privileges of the Legislative Assembly, for preventing the disclosure of information received in confidence, or for preventing contempt of Court, defamation or incitement to any offence."
'Inciting to hostility'
In my view, charging and convicting the former Prime Minister (and potentially other members of the Human Rights Protection Party (HRPP) with "inciting to hostility" under section 41 would be a "reasonable restriction" of their constitutional rights under Article 13.
This is because the speech and conduct by the former Prime Minister (and other members of the HRPP) go beyond even the most scathing and offensive criticisms that an opposition party can make towards a government. Rather, there is clear evidence that the Prime Minister's disparagement of the judiciary intends to: undermine and undo the very existence of the FAST-led government; and incite hostility against the judiciary for performing its constitutional functions.
Dylan Asafo Photo: supplied
For example, the former Prime Minister claimed that the judiciary plunged Samoa into "the law of the jungle" and that the recent decision by the Court of Appeal has no precedence, like all substantial cases of this magnitude, and they have done this knowing full well their decision cannot be appealed."
More concerningly, the former Prime Minister and the HRPP have organised protests in Samoa to incite hostility against the judiciary and to encourage people throughout Samoa to join him in demanding the resignation of the Chief Justice and other judges. This comes after attempts to remove the Chief Justice through Judicial Service Commission have failed due to their baseless and frivolous nature.
Importantly, the former Prime Minister is doing all of this "in circumstances where there is a present risk of lawlessness, violence or disorder in Samoa", as required by section 41. This is arguably demonstrated by high tensions between the HRPP (including its supporters) and others seeking to protect the judiciary both online and in person. To be clear, while there have not been any examples of actual "violence, lawlessness and disorder" yet, the former Prime Minister's continued efforts to have the people reject the decision of the Court of Appeal mean that there continues to be a "present risk of violence, lawlessness and disorder" which is what section 41 requires.
The fact that the Prime Minister cancelled the protest in Savai'i (when the people of Salelologa chose to exercise their customary rights to prevent the rally passing through their village) does not negate the fact that they are still actively "undermining the authority of the Government of Samoa" and inciting hostility against the Government of Samoa".
"Overall, I believe that there is a strong legal basis for the former Prime Minister (and potentially other members of the Human Rights Protection Party (HRPP) to be charged with "inciting to hostility" under section 41 of the Crimes Act 2013."
However, in my view, it is worth considering whether is best and most pragmatic for the police and the judiciary not to charge and convict the former Prime Minister (and potentially other members of the HRPP) with this offence - at least in the current circumstances.
FAST pursuing contempt applications
This is because the FAST party are already pursuing contempt applications, and the negative consequences of pursuing this additional bold action are likely to outweigh any potential positive consequences. These negative consequences include the expenditure of the police and judiciary's already scarce time, energy and resources. This expenditure may be wasteful when it is likely that the former Prime Minister (and potentially other members of the HRPP) will eventually exhaust themselves and as their supporters slowly but surely realise the baseless and futile nature of their claims. Another unintended consequence of pursuing this bold action is increasing tensions even further by radicalising the HRPP's supporters who are unaware that they are being misled and exploited by the former Prime Minister and the HRPP to support their desperate attempts to regain power.
Samoa's new FAST party cabinet in its first meeting. Photo: Eyespy Radio (Samoa) 87.5
Therefore, it appears that aside from existing contempt applications, other appropriate courses of action, for now, exist outside the law. These actions include the media continuing to call out further attempts by the former Prime Minister and the HRPP to undermine the judiciary and FAST-led government as wrong and unjust. Another useful form of action that can be taken by other leaders of nations and global institutions is continuing to issue statements supporting the judiciary and FAST-led government. But perhaps the most effective action that can be taken is by the Samoan people themselves through the power of conversation. In other words, the real solution could lie in Samoans (both in Samoa and abroad) having hard, tense and difficult conversations with their aiga, loved ones and community members who support HRPP's actions about how they are being used and manipulated by people who no longer have Samoa's best interests at heart.
* Fuimaono Dylan Asafo is a law lecturer at the Faculty of Law at the University of Auckland, he holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland.
