NEWSROOM: 25 June - 01 July 2006

Court rules on Sagaga le Falefa election petition
01 July 2006 - Source: Ministry of Justice (Supreme Court)

The Supreme Court in Samoa has explained its verdict regarding the election petition filed against the winning Sagaga le Falefa Member of Parliament, Solamalemalo Keneti Sio, by losing candidate Patea Satini Epati who lost his seat after the 31 March election. The full text of the court's ruling is as follows.

IN THE SUPREME COURT OF SAMOA, HELD AT APIA. IN THE MATTER: of the Electoral Act 1963 & Amendments.

AND: IN THE MATTER: of the Territorial Constituency of Sagaga le Falefa BETWEEN SOLAMALEMALO KENETI SIO of Faleula, a candidate for election Applicant

AND PATEA SATINI EPATI of Lotoso'a Saleimoa, a candidate for election.
First Respondent

AND: THE ELECTORAL COMMISSIONER of Apia.
Second Respondent

Coram: Chief Justice Sapolu, Justice Slicer QC, Justice Shepherdson QC Counsel: Mr. Faaiuaso for Applicant, Mr. Enari for First Respondent, Mr. D Clarke for Second Respondent

Hearing: 22 June 2006
Judgment: 22 June 2006

On 22 June 2006 the above-named applicant by his counsel Mr Faaiuaso moved this Court for orders:-
(a) varying and/or setting aside the orders of the Court made on 11 May 2006 on Election Petition filed by Patea Satini Epati (Petitioner) against Solamalemalo Keneti Sio (First Respondent) and in which the Electoral Commissioner was named Second Respondent.
(b) Enlarging time to file that application; and (c) Staying proceedings until the "present" application is dealt with.

After hearing argument from Mr Faaiuaso and Counsel for the first and second respondents - the first respondent neither supported nor opposed the application - this Court on the 22 June denied the above three applications saying that it would later deliver its reasons.

These then are those reasons. Matters began on 31 March 2006 when a general election was held for the Legislative Assembly of Samoa. The results of that day's poll in the various territorial constituencies were declared by the proper official but in some constituencies the declared results provoked election petitions commenced under the Electoral Act 1963.

Each of these petitions was filed in the Supreme Court of Samoa usually by the candidate who had polled the second highest number of formal votes. Frequently too, such petitions complained of corrupt or illegal practices by the candidate who had polled the highest number of formal votes. Frequently too, that candidate filed in the same Court what was called a " counter" or " cross" petition based on alleged corrupt or illegal practices by the second placed candidate.

There were a number of petitions filed in the court (excluding cross petitions). Part X of the Electoral Act deals with (inter alia) "ELECTION PETITIONS" and Part X includes "Trial of Election Petition". We shall return to this Part shortly.

The application presently before this court sets out a number of grounds one of which reads:-
"(d) That the Court's decision of 11 May 2006 did not take into account the Acts Interpretation Act 1998 as neither the Court nor counsels (sic) or the parties were aware of that Amendment"

The application then goes on to say in effect that "had the Court been made aware of the existence of the Acts Interpretation Act 1998 section 2 sub-section(2), the Court would have found and concluded that the publication of the Official Results of the Poll in the Gazette of 13 April 2006, would have been for the purposes of the Electoral Act 1963, sufficient publication of the notice, without having to await the separate publication of the Official Results in the Savali of 20 April 2006".

Grounds (g) and (h) which are remarkable for their speculation read:- "(g) That the Court would have gone on to further conclude that for the purposes of section 106 (1) of the Electoral Act 1963 the Official Results of the Poll were publicly notified by the Commissioner on the 13th day of April 2006. (h) That the Court would have further concluded that the seven (7) days for filing election petitions commenced on the 14 April 2006 and expired on 20 April 2006 and accordingly, the Petition filed by Patea Satini Epati against Solamalemalo Keneti Sio and the Commissioner was filed out of time"

No supporting affidavit accompanied the application with the result that the application said very little of events concerning the 11 May 2006 and subsequently.

These events have much to say as to how this Court should deal with the application now before it.

The orders of 11 May sought to be revisited are set out in "Conclusions of the Court delivered by Sapolu CJ" Vaai J was the other member of that Court.

We point out that the 11 May Order was made by the Court dealing with Election Petitions under Part X of the Electoral Act 1963. Parties dissatisfied with the judgement of the Chief Justice and Vaai J sought leave to appeal or cross appeal the judgement. The applications for leave were heard by what we shall call the Electoral Court who decided on 25 May 2006 (and whose reasons for judgement were delivered on 9 June 2006) that there was no appeal to the Court of Appeal because of the provisions ofs.117 of the Electoral Act which is to found in " Part X -ELECTION
PETITIONS" (to which we have already referred).

Part X consists of s.104 - s.132 (both inclusive). S.117 appears in that sub- Part X dealing with "Trial of Election Petition" and it reads:- 117. Decision of Court to be final. All decisions of the Supreme Court under this Part of this Act shall be final and conclusive and without appeal, and shall not be questioned in any way.

We pause to point out that s.110 reads:- "110 Court and place of trial - Every election petition shall be tried by two or more judges of the Supreme Court at such place nominated by the Court"

This Court (differently constituted) has had cause to construe s.117 a number of times. In their Honours' reasons for judgment delivered in the present matter on 9 June 2006 their Honours decided, following earlier decisions that s.117 is a valid exercise of power and operates to bar an appeal. (see p25 of reasons)

We point out also that at p16 of the reasons for judgment delivered 9 June 2006 the Court said "Previous challenges to the operation of the Act, s.117, both in part based on claimed inconsistency have been rejected by this Court in Vaai Kolone & Ors vs Fao Avau & Ors unreported Court of Appeal 17 July 1982 and Vaai v Lene (1996) WSCA 8"

The end result of the applications moved by Mr Faaiuaso in this Court is that this Court will declare them to be nullities.

Next in deference to the purported applicant's claim that the decision of the original Court was wrong, we refer him to the decision of the Supreme Court of Fiji at Suva in Singh and Prasad [2002] FJSC2. This too was a decision concerning an electoral petition.

In that case Eichelbaum and Beaumont JJ in a summary of their joint judgment dealing with a question of law said (inter alia) that although the Court considered that the interpretation the Court of Disputed Returns placed upon the Electoral Act was wrong neither the Court of Appeal nor the Supreme Court has any power to intervene because Parliament has provided that the question of interpretation involved must be finally decided by the Court of Disputed Returns.

These comments apply equally to the provisions of the Electoral Act 1963.

S117 in the Electoral Act is based on long standing precedents. Parliaments the world over have legislated that questions arising out of an election have to be brought to early finality so that Parliament can be constituted and go about its essential work. They have achieved this by setting up special tribunals and enacting legislation such as s117.

We add that there is no denial of remedy here. The constitution Article 4, is not involved. The applicant's argument is not that he was denied a hearing but is that he is dissatisfied with the outcome and now wants to have a "second bite of the apple". Many litigants are. But that is different from what is protected by Article 4.

Even if we accepted that this Election Court had power to set aside the orders on the basis that the reasoning behind them was incorrect, we would have dismissed the application nevertheless.
Briefly stated, our reasons for that statement are:

(1) The basis, namely the existence of the amendment to the Acts Interpretation Act (a matter referred to by the Court of Appeal) was neither brought to the attention of Sapolu CJ and Vaai J, nor argued. Nor is it fresh evidence.
(2) It does not follow that had the matter been argued the outcome would have been different. It was a matter of statutory interpretation.
(3) There were two bases advanced at the original hearing, namely the separate issues of "holiday" and "notice".

Even if we conclude that reference to the amendment shows error in the reasoning on "notice", the other matter of "holiday" remains unresolved. We would then be required to embark on a fresh hearing or remit the "holiday" matter back to the original election court.

The short answer to the applicant is that we cannot, and will not, uphold the application.

In the result, we declare that the applications of 22nd June 2006 are nullities.

Chief Justice Sapolu
Justice Slicer QC
Justice Shepherdson QC

Solicitors:
Richard Faaiuaso's Law Firm for petitioner
Kruse Enari & Barlow for First Respondent
Attorney General's Office, Apia for Second Respondent
 

Samoa supports WHO guidelines on creating safe places to swim
30 June 2006 - Source: eventpolynesia.com

Samoa has welcomed the first-ever first-ever international guidelines on how to create safe places to swim and bathe. The guidelines aim to protect people from the  risks associated with swimming pools, spas and other recreational bathing areas.

Globally, swimming, bathing and spas are becoming more popular. However, as more people use water for recreation, poor design, maintenance, management and use of these areas increase the risk of spinal injuries, disease and even death. Accumulating evidence and experience shows that many of these accidents and much of this disease can be prevented through simple measures.

WHO's new guidelines give state-of-the-art information on how to ensure swimming pools, spas and other recreational bathing areas are safe.

The Guidelines for Safe Recreational Water Environments: Swimming Pools and Similar Environments include both specific values for contaminants and a set of recommended best practices to support safe management and use of recreational waters, pools and spas and prevent unnecessary disease and injury. They address a wide range of hazards, including the improper use of recreational facilities and how improvement could prevent drowning and injury; risks from poor water quality; the contamination of facilities such as pools and hot-tubs; and air quality in indoors bathing facilities.

The Guidelines point towards simple, achievable measures that have been shown to be effective in protecting health. These include: effective supervision by lifeguards, which can mitigate or prevent a range of health problems; better water quality and ventilation management, which can control exposure to toxic chemicals; and improving the way children's 'accidental faecal releases', and the outbreaks of disease which they can cause, are dealt with.

"We are seeing an ever-greater use of rivers, lakes, pools, spas and other bathing facilities, worldwide and year-round, in both developing and developed countries.|

While in principle this is a positive development from the health perspective, unfortunately the benefits are tempered by rising rates of death, injury and disease associated with their use," said Dr Maria Neira, Director of WHO's Department of Public Health and the Environment.

"So much of this disease, disability and death is preventable. These Guidelines are part of WHO's efforts to save lives and prevent injury and disease."

"The purpose of facilities such as swimming pools and spas is to provide access for people with all abilities to enjoy their chosen aquatic pursuit, whether fitness, fun or friendship, in a healthy and safe manner."

The launch of these Guidelines will help to better manage and protect the people who use them. Lifesavers worldwide applaud the World Health Organization in taking this initiative," said Alan Whelpton, President of the International Life Saving Federation.

Some of the major infectious risks for users of substandard recreational waters include gastroenteritis outbreaks associated with the presence of, for example, Cryptosporidium or E.coli, and non-gastroenteritis outbreaks associated with the presence of, for example, Legionella spp in pools, spas and whirlpools.

A recent outbreak of pool-related illness due to Cryptosporidium (which is found in human faeces) in the United States in 2005, for example, is reported to have affected at least 1800 people and caused the closure of an entire amusement park.

"This is a welcome and timely initiative from WHO," added Mr Joth Singh, Director of the Caribbean Environmental Health Institute. "For regions like ours which now depend on tourism year-round, and where seasonal demand can vary significantly from Christmas and summer peaks to winter and hurricane-season troughs, we will have access to the best practice on how to manage our pools and other tourist facilities most efficiently and safely."

Under normal circumstances, outbreaks of legionellosis are relatively small in comparison, but they can often be more dangerous than those caused by other microbiological agents. Several studies have isolated Legionella spp. from spa waters: in a study in Portugal, for example, 288 Legionella isolates from 14 sites were identified. France, Japan and Spain have also reported the presence of
Legionella spp bacteria in natural spas. The large number of positive samples indicates a potential risk to users of thermal waters, especially those people that are undergoing inhalation treatment with thermal water, or those using hot tubs, natural spas or taking a shower.

More than 60 experts from 20 countries contributed to these Guidelines. The Guidelines are intended for a variety of different stakeholders with interests in ensuring the safety of pools and similar recreational water environments: national and local authorities; facility owners, operators and designers (public, semi-public and domestic facilities); special interest groups; public health professionals; scientists and researchers.

These Guidelines complement Volume I of the same series - Guidelines for safe recreational water environments (coastal and freshwaters) - and also relate to the WHO publication entitled Water Recreation and Disease, Plausibility of Associated Infections: Acute Effects, Sequelae and Mortality.
 

Search on for Miss Samoa 2006/2007 contestants
29 June 2006 - Source: eventpolynesia.com

The search is now on for young women interested in running for the 2006-2007 Miss Samoa beauty pageant this September.

The age group for contestants is 18-26 years of age and the deadline for entries is 1 August.

Current Miss Samoa, Falute Sauvao Vaauli, told eventpolynesia.com that they are looking at confirming ten girls, but this should not be a deter anyone from entering.

The invitation is also extended to girls of Samoan descent living overseas.

They can either compete in their country's Miss Samoa competition (e.g - Miss Samoa New Zealand) or fly over to Samoa to be part of the local competition.

Overseas countries like New Zealand, the United States of America and Australia usually hold their own pageants within their respective Samoan communities with the winners flying to Samoa to compete in the official Miss Samoa.

This year's successful beauty queen will represent Samoa at the Miss South Pacific pageant to be held in New Caledonia later in the year.

Last year, Australia fielded two contestants, Miss Brisbane and Miss New South Wales. But it is uncertain whether they will again provide two entries this year after opposition from some countries over Australia having two contestants.

Samoa was one of the founding countries of the Miss South Pacific Pageant which saw four past Miss Samoa title-holders going on to win the Miss South Pacific Title.

Many Samoans remember fondly the clean sweep from 1996-1998 when Verona Tapu Ah Chong (now Parker), Maryjane Mckibbon (now Schwenke) and Cheri Robinson, won the title back to back.

The Miss Samoa Pageant is always the highlight and finale of the Teuila festival which is celebrated on the first week of September every year.
 

Faleatiu youths guilty of murder, jailed for life
28 June 2006 - Source: eventpolynesia.com

It took the Supreme Court assessors just three hours to reach a guilty verdict against three youths of Faleatiu up on murder charges yesterday.

The youths will now serve life sentences as prescribed by Justice Lesatele Rapi Vaai.

The three men; 23 year old Kirifi Lealaitagomoa, 37 year old Lealofi Palau Faisauvale, and 17 year old Iosua Savusa were found guilty of causing the death of a man on New Year's eve last year.

The court trial lasted two weeks and was held at the National Council of Churches hall at Mulinuu.

The charges arose from an incident which saw the accused trio using a firearm to kill the victim, then continue their assault on other families living inland at Satapuala, destroying their properties and burning down houses.

Other victims were young children who told the court how they begged for their lives, when the accused kidnapped them on gunpoint. They were later tied to a tree and threatened with their lives. Two of the children were admitted to the National Hospital in Moto'otua with gunshot wounds.

The incident, according to testimonies delivered before the Court, started when the village penalized some of the village people. The seriousness of the penalties warranted "mu le foaga" or destroying and burning of family properties, if the original penalty was not carried out.

The defence lawyer, Toleafoa Toailoa Solomona, presented a strong argument citing the "inconsistency" in evidence provided by the prosecution. He pushed for the assessors to take special note of the three lists of names provided by the police, and the statement signed by witnesses while the case was nearing completion.

Toleafoa also highlighted some of the testimonials which stated that police tried to bribe witnesses by giving them money. Vaitoelau Brown of Faleatiu testified that "a police officer offered her $300."

Five youths were originally charged but as the case progressed, the court noted that the accused men all told the same story from the beginning of the trial, but differed in several areas, which resulted in two of the men changing lawyers. Their case is now before Chief Justice Patu Tiavaasue Falefatu Sapolu.

Kirifi, Iosua and Lealofi will appear again in court on 10 July to answer to charges of arson and kidnapping.

Families of the accused said they would appeal the decision while the family of the victims are relieved and happy at the verdict.

Toleafoa and Rosela Tuuga led the defence representing the accused while Attorney General, Brenda Heather-Latu supported by Komisi Korea and Precious Chang were the prosecuting lawyers.
 

Police officers under investigation on sex charges
27 June 2006 - Source: eventpolynesia.com

Police have launched a tribunal investigation into two of their officers alleged to have committed indecent acts, one on a junior female police officer. This was confirmed by Assistant Police Commissioner, Papalii Lio Masepau.

The investigation was warranted when information regarding complaints against the two police officers reached the Apia headquarters.

The allegations of sexual harassment between a Senior Sergeant and a fellow policewoman and one of another police officer raping a woman under police custody, has angered the public. There are now concerns over the security and the safety of the public from police, an ironic twist given the role of the police as protectors of the community.

The accused officers are currently under suspension pending investigation. One of the accused is alleged to be the head of the Tribunal sector.

According to eventpolynesia.com sources, the case of the custodian victim is now in the hands of the Samoa Victim Support Group (SVSG).

This is not the first time police have been under investigation on these grounds.

Earlier this month, the police came under attack from the family of a young man who allegedly died while under police custody. The subsequent allegations are negligence on the part of the police that caused the young man's death.

A separate incident involving a young couple happened inside the police station.

According to information from the police, a woman went to the station to a file a complaint against her husband, who turned up later and assaulted her in front of police. The husband then turned the sharp object on himself. Both the woman and her husband were seriously wounded.

The incident was denied by Assistant Police Commissioner Papalii Lio Masepau, saying it happened outside the police office.

Catholic Church promotes two local priests to Monsigner
26 June 2006 - Source: eventpolynesia.com

The Catholic Church in Samoa conducted several ordinations for various priests to ascend to higher honours last weekend, and one of the main occasions was the elevation of Father Joseph Stowers and Father Lui Tevaga to the rank of Monsignor.

Archbishop Alapati Mataeliga conducted two separate events; one which saw the elevation of Tevaga and Stowers to Monsigner and other, which saw four deacons promoted to catechists.

The Monsignor ceremony was held at Leauva'a while the catechists' ceremony was held at the Cathedral church in Mulivai.

The elevation of the two priests to Monsignor (or Bishops) last Friday was not only "long overdue but a well deserved position for them," according to Archbishop Alapati.

Fathers Joseph and Lui have served the church at various parishes for more than a decade. Some of the parishes they serve at had paid tribute to their rise, with some parishers describing them as true servants of God and "humble and ready to help."

While they may have shared the same honour they however are very different men.

Bishop Tevaga "is out spoken, hard but kind," according to Church authorities.

Bishop Stowers on the other hand is "shy and keeps a low profile, and is always ready to help anyone in need."

The ceremony was said to be very important because since Alapati's elevation to the position of Archbishop, the post he held previously has been vacant.

The honour was requested by the late Cardinal Pio Taofinuu and was granted in 1984.

Alapati said mystery surrounds the delay in notification of Samoa regarding the posts. In 2004, when Alapati was attending a conference in Rome, he took up the issue and was told that the request was granted in 1984. Holy Father Pope Benedict of the Vatican then endorsed the new appointment.

According to the rankings of Catholic officials, after the Holy Father, the Pope sits on the top before the Cardinals, then the Archbishops. The Monsignor or Bishops followed by several other holy positions such as Fathers, Priests and others, follow from there.
 

Samoa counts down to 2007 Games as facilities near completion
25 June 2006 - Source: eventpolynesia.com

Phase one of the 2007 South Pacific Games preparations is almost realized with most of the sporting facilities now completed.

Samoa's preparations for 2007 has gone full speed with the games now just 14 months away.

According to South Pacific Games Authority (SPGA) Chief Executive Officer, Fonoti Etuale Ioane "work is progressing well and most of the facilities will be opened before the end of the year."

For lawn bowls, four new green courts have been allocated with two at the Tuanaimato Sports Complex, one at Apia Park and one at Sogi.

Archery's new range is located at the western side of Tuanaimato with the cricket fields facing from the other side. Also at Tuanaimato are two new beach volleyball courts with three indoor courts. A hockey field is also situated on the western side of the complex. A field for Australian Rules is still undergoing strategic planning.

Other sports such as squash and table tennis also have their own venues.

There is still much work to be done to the main stadium at Apia Park, including erecting new stands to increase seating capacity. The opening and closing ceremony will be held at Apia Park and ST$40 million is being spent on its upgrading, the majority of funds courtesy of the Chinese government. Athletics will be held at the Park while all other sports will be conducted at the Tuanaimato complex and other venues around Apia.

So far the Aquatic center and Soccer fields have impressed international sports bodies. The two facilities are considered the best in the pacific, including New Zealand and Australia.

The weightlifting facility is also rated highly within the region. According to Paul Coffa, Oceania weightlifting coach and trainer, this was part of the reason why the weightlifting body decided to move the Oceania weightlifting academy to Samoa, because of the new "state-of-the-art arena."

Tuanaimato has come along way since nearby village residents took the land as their own, which ended in a stand off with the police. Turning the bush area then into a state of the art complex has taken a lot of time, effort and money. The recently passed government budget saw the South Pacific Games 2007 getting over SAT$37 million tala.
 

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