NELSON’S APPEAL

Evening Star, Issue 21706, 28 April 1934, Page 10

NELSON’S APPEAL

SAMOA SEDITION CASE FULL COURT RESERVES DECISION [Per United Press Association.] ' WELLINGTON, April 27. The hearing of the Nelson appeal was continued to-day in full court. Mr Currie, who is appearing with Mi Johnstone for the respondent, replied to the appellant’s submission that section 45 of the Samoa Act was ultra vires because it was not in accordance with the terms of the mandate. He said the course adopted by New Zealand in dealing with Samoa was not exceptional, and similar legislation had been passed dealiug with other Now Zealand dependencies, such as the Cook Islands, which were actually part of the British Empire. A mandated territory was not treated any differently from our own territory. A mandate document was like a treaty or other document under which His Majesty obtained authority over a territory. The provisions of such a document could not be looked at by municipal courts except in so far as they had been adopted by the Legislature!. , Whether Now Zealand complied with the provisions or not was not a matter for the New Zealand courts. If the terms of the mandate were exceeded the matter would be one t-r (linlomatic representations, if the ciuestion were raised outside New Zealand. or for political discussion if raised inside of New Zealand. In no case would it be a matter for consideration by the New Zealand courts.

Replying on behalf of appellant, Mr Cooke dealt first with his submission that the regulations were ultra vires because they sub-delegated the powers of the Governor-General in Council to the Administrator. He said the respondent’s case was based on the assumption that under section 45 the Go-vernor-General in Council was not exercising delegated powers, but was in the nosition of a supreme or plenary Legislature. This assumption was the corner stone of the respondent’s case, and was an outstanding and glaring fallacy. The powers of the G"--' r>ie’--General in Council were confined to those conferred by .the Samoa Act, and he had no residuary jurisdiction from the Imperial Order in Council which preceded it. The powers under section 45 to make regulations were delegated powers conferred on a subordinate body. It was impossible for the Governor-General in Council to be a plenary body, since its powers were hedged around by numerous restrictions in the Samoa Act. It could not. for instance, touch any part of the code of law which was laid down m that Act. What Uhc appellant complained of was not the delegation of its legislative powers bv the Xcw Zealand Parliament to the Governor-General m Council, but the sub-delegation of such

powers by the Governor-General in Council to the Administrator. Continuing, Mr Cooke submitted that the word “ lines " in sections 45 and 46 meant linos in penal proceedings. Even if, however, it did not have that meaning, the Governor in Council under section 45 was a subordinate body exercising delegated powers, and there was no power under the section to prescribe imprisonment. The' power to make rules did not imply- power to prescribe imprisonment. If the contention of the Crown were correct it would mean that there was no limit to the nature of the penalty that the Gover-nor-General in Council could impose, and life imprisonment, or tven the death penalty, could bo prescribed There was no justification for spelling such power out of the words of the statute. Referring to his submission that section 45 was ultra vires because it involved a general-’delegation, counsel submitted that the' Samoa Act showed that the powers contained in it must be exorcised subject to the terms of the mandate, and that it was the right and duty of this court to exercise a controlling jurisdiction in that respect. Furthermore, the mandate was not irrevocable, but could bo revoked by the League, of Nations. Counsel 'for the respondent had endeavoured to distinguish between the meaning of “ seditious ’’ as used in the regulations and as used in section 102 of tho Samoa Act dealing with the offence of seditious conspiracy; Ip it it was submitted by Mr Cooke that tho word " seditious ” was used in tho regulations in the same sense as that in which it was used in section 102. The regulations were made in January. 1920, he said, just after the disturbance which led to the death of Tamasese, at a time when the Man was considered dangerous to tho public safety and its purpose seditious. The regulations were plainly directed at a body whose members intended to carry into effect a seditious intention within the meaning ot section 102, so that for what was substantially the same offence a person charged under section 102 received a constitutional trial, but if he were charged under the regulations he was deprived,of such trial. If the respondent’s contention was correct, it would be possible for the whole of the Samoan criminal code to be nullified by regulations of the type under consideration. Dealing with this question of the sentences, counsel amiin declared that the worst things against Nelson were his correspondence with Andrew, and that was due to the dominion of Andrew over Nelson. Whatever the policy of the Man might be. Nelson’s own policy was to keep peace, and ho was concerned to see that the law was not broken in any way. Ho was a man of irreproachable character, his one fault being a blind and erroneous, but genuine, belief that the Samoans had grievances and that ho could ho]p to right those grievances. Ho might have been a fool, but he had rot been a knave. The offences were purely political, and exile, and not imprisonment, was plainly tho appropriate punishment. Nelson had already been in prison or in custody for the best part of a mouth. The

demands of justice would be met by reducing the term of iinnrisonment_ to that already suffered and by reducing the form of exile to a reasonable period. That alone would be painful chough, involving as it did the loss of' bis home, absence from business, and substantial financial loss. The court reserved its decision.-