BANISHMENT OF SAMOANS

Dominion, Volume 21, Issue 15, 12 October 1927, Page 15

BANISHMENT OF SAMOANS

CASE BEFORE FULL COURT NEW ZEALAND’S POWERS UNDER MANDATE CASE FOR RESPONDENTS ARGUED DECISION RESERVED Decision was reserved by the Full Court yesterday in the case in which two Samoan chiefs—Tagaloa and Fuataga—are appealing against sentences of six months’ imprisonment imposed on them for disobeying orders of banishment. The chiefs were imprisoned under an ordinance of the Samoan Act of 1921 and New Zealand’s jurisdiction in passing that Act has been called into question by the appellants. The day was taken up in nearing the case for the respondents. On the Bench were the Acting-Chief Justice, Mr. Justice Sim, and Their Honours Mr. Justice Herdman, Mr. Justice Adams, Mr. Justice Reed, and Mr. Justice Ostler. Sir John Findlay, K.C.. and Mr. A. E. Harding appeared for the appellants, and Mr. M. Myers, K.C., and Mr. A. E. Currie for respondents. The tables of noth counsel were laden with bulky tomes, over 60 volumes being in evidence. Citations from a large number of works bearing on certain aspects of the question were made by both counsel. One volume relating to a south African case, and quoted from by respondent counsel, was unobtainable in New Zealand, and a copy of it had to bo obtained on loan from the Australian Commonwealth law library. Counsel for Respondents.

Mr. Myers said that whatever view tho Court might take on the question of its jurisdiction it was hoped, on his side, that the Court would express a view on tho questions that would arise in the case. Suppose for a moment, for purposes of argument—a proposition that was strenuously denied—that, by the Constitution Act some Imperial legislation was necessary to confer on New Zealand any duties, privileges or rights. That legislation, in fact, existed. "I want to make it clear,” said Mr. Myers, "that we do not in any way rely for New Zealand powers in Samoa on tho Constitution Act. Assuming for a mamont that any Imperial legislation is necessary, it exists in tho Imperial Treaty of Peace Act, 1919. When tho Act was passed the position was that tho Empire had been engaged in war and a peace hnd been concluded —a peace that bound not only Great Britain but tho Empire. My learned friend has suggested flint the mandate was not in turn granted in tho Treaty of Peace Act. That is so, but it was contemplated nnd conferred by tho treaty. New Zealand Regarded As a Nation. "Now Zealand for tho treaty of peace,” said Mr. Myers, "was regarded as a nation. If we require Imperial legislation, nnd it is submitted that it is only needed if we have to roly on tho Constitution Act, then that legislation exists.” Supposing that Sir John Findlay was right in assuming that all tho Samoan Acts by the Now Zealand Parliament were ultra vires, even then the respondents’ position was stilt sound, and did not alter the position one iota. There was a clause in the English Order-in-Council which provided that the New Zealand Executive by Order-in-Council could exercise authority to make laws for the peace, order nnd good conduct of the territory. His learned friend had said that for the purpose of tho order the New Zealand Parliament had no power whatever under the New Zealand Government. —the Executive. Tho Executive derived its authority from the Order-in-Council. Mr. Justice Ostler; Ho was convicted, under an ordinance made under an .Act and. not under an Order-in-Council. Sir John Findlay: That is my point. Mr. Myers: Assuming the legislation is bad—l contend that it is good—then the Order-in-Council is good. What the Banishment Amount to. "The banishments in this case,” proceeded Mr. Myers, "amount to this: Tho appellant who lives in a particular village there does certain acts that are complained of. Tn this particular case the order of banishment is in ordering him to go back to his own village and not be a source of nuisance in ■ another." Mr. Justice Adams: There .are no steps to exile from tho country. Mr. Myers: Oh no. I am only saying this because there has been so mucn talk of banishment. Mr. Justice Herdman: We are perpetuating what tho Germans did. Mr. Myers: Yes in this case it is shown on the papers before the Court that the appellant was ordered to go back to his own village. I don’t suggest that all these so-called banishments arc to go back to one’s own village, but it is so in a good many. Mr. Justice Herdman: This power of banishing a man means exile from a place. Mr. Myers: Hardly, exile speaks of leaving a country. Mg. Justice Ostler: Is it rather not. like a schoolmaster putting a certain area out of bounds. "These so-called banishments, said Mr. Myers, "are not punitive but intended to be preventive.” Mr. Justice Herdman: Even if we went to the extent of passing n law to exile a man from Samoa would that lie beyond our power? Mr. Myers: Probably our Parliament could legislate to do that. Counsel added that supposing as an illustration that a man in a district became very popular, but there was no suggestion of sedition against him, but around him may fie an undercurrent to make, him king. ’ He may bo perfectly innocent, but circumstances may necessitate his removal. "My point,” he said, "is that the Acts under clause three of the ordinance, which might justify the Administrator in taking action under that clause, do not constitute a legal offence at all. It can bo soon that tho clause may have to be applied to a person, and yet there would be no legal offence against him at all. I do submit that the manner in which the Administrator is satisfied is not examinable by Courts, because he as not acting judicially, buj. in his administrative capacity. I believe no order is made under clause three without being heard by the Administrator. Whether it was done in the present case I do not know, but if it is a fact that tho appellants were not heard their counsel should l ave called evidence to show such was the case. It is not the duty of tho prosecution, which has to prove making of the order and non-observance of the order.” Mr. Justice Reed: It was framed for putting in the hands of the Administrator what was formerly in tho hands of the neonlo of the village. Mr. Myers: That is so. The 1927 Act. Referring to tho contention of Sir John Findlay that the ordinance of 1912 should \ bo read into the Act of 1927. Mr. Myers submitted that there was foundation for such contention. "You cannot,” said at.insel. "construe one Act: in tho light of another passed many years before. Tho Act of 1927 was presumably to deal with Europeans, whose presence might be a. danger to tho good government of Samoa., and in doing so the Government apparently decided to codifv the law in this respect by making provisions for Samoans as well. Because the Legislature now thinks it proper to impose certain safeguards surely there was no foundation for the contention that those safeguards must ho read into some other .Act. Tlio Act of 1927 was not passed till a month or so after tho particular c-ases which the Court ie now inquiring into.

These banishments are not the first nnder the ordinance of 1922.” Mr. Myers submitted that the judgment of the Court below was right, and should stand. Mr. Currie also briefly addressed the Court. Sir John Findlay said that Mr. Myers relied on on order made under the Foreign Jurisdiction Act. but ho sul>initted that an order under this Act was entirely unappropriate for carrying out the spirit of the mandates. No jurist had yet suggested that sovereignty was conferred in case of mandates. Mr. Justice UMler: Oh. yes. “I submit.” said Sir John. “thaf Hie New Zealand General Assembly cannot, and is not competent to, carry out. the mandate, which involves extraterritorial