SAMOAN IN PRISON.

New Zealand Herald, Volume LXVI, Issue 20177, 11 February 1929, Page 11

SAMOAN IN PRISON.

THE CASE OF TAMASESE.

LEGALITY OF MOVE CHALLENGED

THE HABEAS CORPUS ACT.

.The legality of tho proceedings leading Jo tho imprisonment of tho Samoan chief .lamascso in the Auckland prison was argued for two and a-half hours before Justice Blair in tho Supremo Court pn Saturday. Tamascso was sentenced to six months' imprisonment for refusing to Pay a poll tax of £1 16s. Mr. Hall Skclton, for Tamasese, applied for a rule nisi for tho issue of a writ of habeas corpus on the ground that tho warrants or orders under which Tamasese is detained were made without jurisdiction, and that tho original warrant for the arrest of lamasese for contempt of Court was illegal and void in that it was an attempt to uso criminal procedure to collect a civil debt which was in contravention of section 76, subsection 1, read with section 207 of subsection 1. of the Samoa Act, 1921.

Mr. Meredith, Crown solicitor, and with him Mr. Hubble appeared to oppose the rulo being mado absolute. His Honor at the closo of the hearing intimated that ho could tako lime to consider the position, and ho would endeavour to give judgment to-morrow.

His Honor said he had not Ihe relevant documents before him, but only free translations of them. He had an affidavit setting out tho result of cables Mr. Skclton sent to his agent in Samoa, but that conflicted with tho affidavit signed by Mr. Skclton. Tamasese said that on or about November 27, 1928, judgment was given against him for taxes. He did not pay the said judgment and consequently a warrant for his arrest was issued. According to another affidavit the judgment was given much earlier in tho year.

Difficulty for Judge. His Honor said his difficulty was that ho was asked to adjudicate upon the effect of ceitain documents none of which ho had seen and none of which was before the Court. The most they had was a free translation by various people.

Mr. Meredith said lie had cabled for an official report and the answer showed that the facts set out in Mr. Skelton's affidavit were entirely incorrect. His Honor said there was really no material before the Court on the point about tho illegality of tho warrant for arrest.

Mr. Skelton said Tamasese was arrested and charged with contempt of Court on tho same day, and when he pleaded guilty he was sentenced and committed. Next day they charged him with the same offence. Mr. Skelton said if his client's statement was correct the authorities issued a civil summons, a warrant for arrest and an order for committal on -the same day. That was altogether tiltra vires. His Honor said tho argument was founded on assumption. It was no use trying to speculate about a lot of tilings that might have happened. When counsel got admittedly correct copies of the documents no doubt tho matter would be heard quite quickly. The sooner the records were hero the better. Jurisdiction Contested.

Turning to tho other contention, that tho warrant under which Tamasese was detained was without jurisdiction, Mr. Skelton submitted that section 210 of the Samoa Act, 1921, was ultra vires iri that it overrode section 12, chapter 2 of the Habeas Corpus Act, 1679. Section 210 gave power to deport for imprisonment, and section 12, chapter 2, held that no person should bo imprisoned beyond the seas. In some respects this case was unique in tho constitutional history of the British Empire. The submission he made was that the King could not give power to repeal ono of tho constitutional laws of the British Empire in force in New Zealand and made in forco by tho Act in Samoa. The Habeas Corpus Act was not set aside in any shape or form. When the King in Council legislated for the colonies lie was bound by the constitution la'ws that formed tho bulwarks of British liberty. Counsel said his client believed ho was being ruled by tho law of New Zealand, modified to meet exceptional circumstances that might arise. Instead of getting New Zealand law tho Samoan people found they were getting the law applicable to wild and savage people. Ho contended an Act could not bo passed by which men sentenced to six months' imprisonment in New Zealand could be transported to serve their sentences in Samoa. That was the converse of his argument. He contended that tho deportations had been an extra dose of punishment to take Tamasese away to conditions ho was not used to.

"Don't Like Strange Gaols." His Donor: They don't like strange gaols. They like tho gaol they havo been used to. (Laughter). Counsel said tho decision given by the Court would have a great effect on the mind of this man and of his 8000 followers. The Samoans wanted fo know exactly where they sfood. In one breath they were fold they were British and in flie next that they were foreigners. Were they to bo under tho ordinary law that New Zealanders enjoyed ?

Mr. Meredith said he understood Mr. Skelton's point was that Tamaseso was being held under an illegal warrant, and that his imprisonment contravened the Habeas Corpus Act. That went to the root of the question whether there was power to pass section 210 of the Samoa Act. New Zealand's power to legislate was given by tho mandate derived from tho Council of the League of Nations, and it had been decided in Tagaloa's case that this authority might ho invoked. Tho League had given New Zealand fho fullest powers of legislation and administration over Samoa. It was given tho widest discretion to legislate in whatever form it thought, fit in the interest/ of the natives, apart from certain restrictions in regard to slavery, firearms. and intoxicating liquors. It might apply New Zealand law, but it was not mandatory to do so.

Mr. Skelton: Have the Samoans any means of objecting? His Honor: It is not, for (he Samoans. It is for the League of Nations. Object of the Act.

Air. Meredith said in accordance with its powers New Zealand had passed the Samoa Act. including section 349, which incorporated English law up to 1840, but expressly excluded any portion of that law that was contrary to the Samoa Act. If section 210 was contrary to the Habeas Corpus then it was expressly provided for. The New Zealand Legislature had tho same right or power to legislate for Samoa as for New Zealand, but the legislation it passed was not necessarily the same for both.

His Honor said the mischief that the Habeas Corpus Act was designed to prevent was tho sending of men away to outlandish countries. In the O'Brien case, for instance, the Government had had the temerity to send an Irishman to Ireland, and ho naturally objected, and made use of the Habeas Corpus Act. "You want Samoans to be treated as New Zealandcrs," said His Honor to Mr. Skelton. "Don't thoy put naughty New Zcalandcrs in New Zealand gaols ?" Mr. Skelton said they did not transport them, say, from Invercargill to serve sentence in Apia. Mr. Meredith argued that if Habeas Corpus had been amended, which he did not admit, the New Zealand Legislature had full power to do so. Under the mandate tho fullest powers wero given to New Zealand, and those powers were absolutely unfettered. _ _ « His Honor reserved docision.