Unlawful detention of prisoners under review

By Rula Su’a – Vaai

APIA, SAMOA – THURSDAY 24 MAY 2018: The two prisoners held suspect for plotting a major prison breakout from Tafaigata last February, continue to be locked up at the Apia Central Police Station, despite a ruling by His Honour Vui Clarence Nelson that detaining the prisoners at Apia Police Station is unlawful.

In the Supreme Court this week, an exparte motion to uphold the decision came for mention before Justice Leiataualesa Daryl Clarke. The motion was filed by Counsel Lealiifano Dr. Iopu Tanielu, challenging the respondent that further detention of the prisoners in the Police Station in Apia is unlawful and that the Order by the Minister of Prisons that the Apia Police Station is a prison, is invalid under s16 of the Prisons and Corrections Act 2013.

Tanielu also made an application for an order to allow counsel Pa’u Tafaogalupe Mulitalo who represented the applicants, so he can have access to visit the prisoners.

“Your Honour, I apply for an order to allow Mr Mulitalo to visit the applicants as he has been denied access by the police to visit the prisoners,” said Tanielu.

Pa’u told Talamua that the police told him that, his (legal) practice certificate is suspended and until the suspension is revoked and his practice certificate is reissued, the police cannot allow him to visit the applicants – a decision be believes violates the prisoner’s constitutional rights under article 6 of the Constitution.

The Prosecution asked the court for an adjournment so they can file their response as they have just heard about the application for an order to allow Pa’u Mulitalo to visit the prisoners.

Last month, Justice Vui Clarence Nelson delivered his ruling in the matter of Prisons and Corrections Act 2013, Police Services Act 2009 and the Ombudsman Act 2013 saying “the applicants have an arguable case that the Apia Police Station is not by law a prison and the motion by the prosecution is strike out.”

Despite of the ruling, the Attorney General, Lemalu Herman Retzlaff advised the Police Commissioner, Fuiavaiilili Egon Keil that the prisoners do not need to be removed, saying Justice Nelson was not asked to decide if the detention was unlawful, but to decide if there is a case to answer.

“Therefore the prisoners/applicants can still be detained at Apia Police Station until the actual case or the substantive matter is heard by the court and a definite determination is given as to the lawfulness or otherwise of their detention at  Police Station.”

Lawyer Mulitalo hit back at the legal advice by the Attorney General sayings it was “wrong and misconceived.”

He added  “while it may be legal for the Minister of Prisons, to appoint the Apia Police Station as a prison under section 16 (1)  of the Prisons and Corrections Act 2013, however the declaration is challengeable in the Court of Law.”

The Prime Minister and Minister of Police Tuilaepa Lupesoliai Sailele Malielegaoi during his weekly news programme with Talamua said the police are doing what is right in keeping the prisoners for public safety.

“I do not know what they are arguing about – the prisoners rights. He is eating, drinking and being kept in a good cell, some lawyers have mental disabilities,” said Tuilaepa.

The matter is adjourned to 04 June for Prosecution to file a response.