Samoa Tourism Development Act Lawful: Attorney General

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Private lawyer says act’s language worded poorly

By Sophie Budvietas

APIA, Samoa (Samoa Observer, July 15, 2013) – An act that gives the Samoan Tourism Authority (STA) the right to prevent publication and prosecute critics does not contravene Constitutional protections of freedoms of speech.

So says Attorney General, Aumua Ming Leung Wai in an email to the Sunday Samoan.

The Act, passed by Parliament last year, states that comments the Authority finds false, misleading or prejudicial – damaging – could trigger court action seeking penalties of up to WST$5,000 [US$2,118] or three months in jail.

Section 13 (1)a of the Constitution of Samoa states that "All citizens of Samoa shall have the right... To freedom of speech and expression."

The Constitution specifies only "reasonable" restrictions on those freedoms when it comes to national security, friendly relations with other states, public order and morals, the privileges of Parliament, contempt of court, confidentiality and incitement.

Asked for a comment, Attorney General Aumua confirmed the Tourism Development Act 2012 was cleared through his office.

His office, he said, "either drafts the laws for Samoa or checks laws that are drafted by drafting consultants. They bring to my attention any provision in draft laws that contradicts, or could contradict, the Constitution.

"I also check personally all draft laws before I certify that they are appropriate as to form and substance for consideration by Cabinet and referral to Parliament.

"There are times where I would also pick up myself a provision that may contravene the Constitution and will therefore remove or modify it."

Lawyer Leota Raymond Schuster

However, leading lawyer, Leota Raymond Schuster says the amendment may or may not be unconstitutional but it is certainly confused.

The Tourism Development Act has given STA "more powers than they could ever imagine," Leota told the Sunday Samoan.

He says there are a number of issues with the provision 38 of the Act – that it is "worded so badly" it "almost cancels itself out."

Responding to questions from the Sunday Samoan, Leota, who is the President of the Samoa Law Society, emphasized he could only express his personal view, not that of the Society.

He was particularly interested in the part which contains provisions aimed at "Preservation of the reputation of the destination."

Under the new act, the STA now has power, the Act reads, to "undertake or authorize prosecutions and exercising (sic) lawful controls over publication of false, misleading and out-of-date information or that which is prejudicial (hurtful) to public perception of Samoa, publishing correction of a fact or detail or any other act necessary to preserve Samoa’s reputation as a tourism destination."

Attorney General Aumua said this was not an uncommon provision.

"Assistance for prosecutions can be obtained from Police or my Office if a Government Corporation does not have prosecutors," he said.

"I also have the power under the Constitution to discontinue prosecutions where appropriate."

Aumua said his office would assist the STA in prosecutions if he was asked and if it was appropriate.

But Leota countered this, saying under this provision "therein lies further problems" for the STA.

"If it has given STA the powers to prosecute, it’s more power than they would ever imagine they would get," he said.

"Because they probably never conceived in their life that they would be doing any prosecution – unless they go through some sort of training for them to be able to prosecute.

"Usually, it’s either the police or the Attorney General’s office that does prosecutions - they do prosecution for the ministries as well."

He said there have been powers granted to ministries to prosecute under their regulatory provisions to police issues pertaining to them.

For example – environmental issues when people don’t get the right licenses to mine, he said.

"Those are understandable, [but] not under STA," said Leota.

According to the Attorney General, however, this is not the first time powers of this nature have been given to a state enterprise.

Other government corporations such as the Land Transport Authority and the National Provident Fund have similar powers.

Aumua offers a reason as to why prosecution powers were included in the Act.

"Samoa has very limited natural resources when compared to other countries," he said. "Tourism therefore plays a major role in the economy of Samoa and its people. It is therefore imperative that Samoa’s tourism industry is protected.

"Hence, section 38 of the Act is intended to prevent the publication of information that is false and intended to cause harm to Samoa’s reputation as a tourist destination (but see the section for completeness)," he wrote, emphasizing the words ‘false’ and ‘intended’ in capital letters.

"However, the ultimate ‘judge’ in interpreting and enforcing this provision is the Court, not STA."

According to Leota, any case would have to be brought before a judge before any publication was prevented.

One issue is the fact the provision is worded as a civil law clause, but ends with a criminal penalty.

"Which is a bit confusing because for a civil proposition, you would require a balance of probabilities as a matter of proof," he said.

According to Leota, a ‘balance of probabilities’ sees the judge weighs both sides and then decides on whose version is to be accepted or not. Criminal penalties however require a higher standard of proof – beyond reasonable doubt.

"So if they can’t prove it to the standards to beyond a reasonable doubt in any criminal proceedings then they can’t convict the person of the charge," Leota says.

"But here, there are two standards being applied; there is a civil standard and a criminal standard - which standard is to be applied will be interesting."

"I suppose they’ll say it’s like a de facto clause in terms of a civil provision."

Leota also expressed his views on the penalty for the offence if a person is to be found guilty.

"The penalty is quite serious. 50 penalty units for $100 a unit - it’s substantial - and three months imprisonment maximum or both," he said.

"So it’s quite a substantial penalty if someone is alleged to have breached this."

Leota said the provision was akin to defamation law where the appropriate penalty would be a civil suit.

"If someone says something incorrect or defamatory or one that brings the reputation of the STA into disrepute," he says.

He says under deformation law companies and people are the same in terms of legal standing.

"They can both be defamed," he said.

Section 3 of the Samoa Tourism Act states that: "The Authority is a body corporate with perpetual succession and a common seal and is capable of – (a) Acquiring, holding and disposing of real and person property; (b) Suing and being sued; (c) Doing and suffering all other acts and things as bodies corporate may lawfully do and suffer."

But Leota says the "STA is not necessarily an individual or a company it’s an SOE established under Government by Cabinet directive."

He says for this reason – whether they fall under the defamation law is interesting because they would have to be defined as to whether or not they are an entity.

"If they are then the laws of deformation may apply," he said.

"Right now I don’t think they come under the defamatory provisions of legislation. But there is a good reason why they shouldn’t because the industry itself suggests that it should be open to expressions of interest whether for or against, depending on how they operate, here and everywhere else in the world."

He said under defamatory law when person is subject to untrue remarks which may cause injury and be detrimental to their economic wellbeing they have the right to find relief in the courts.

"But STA is not really that sort of an entity," he says. "It’s the same as a ministry. I mean you can’t sue a ministry that’s associated to Government (based on) something defamatory, unless it’s (aimed at) a person in the ministry."

He said having to prove what was prejudicial to a public perception of Samoa was a pretty wide sort of standard to prove.

"It’s worse than proof beyond a reasonable doubt; innocent until proven guilty," he said. "You would have to do a survey to get that sort of public perception.

"So if I say something I can almost assure that they need to go out and survey - what this guy said - do you think its detrimental?

"And how many can they gather to suggest that that’s the public perception? Is 10 enough? Is 20 enough? Is 500 enough? Or is it 1,000?

"So if someone is concerned, the manner in which it’s drafted makes it difficult for them to prosecute, and makes it easier for the person being charged under this law to get out of it."

"So it’s almost cancelled itself out – not only would they waste money bringing any prosecution, they waste time."

Aumua said not to confuse subsections (sic) (3) with subsection (1) of section 38.

He said section 38(3) is the offence provision upon which a criminal charge can be based.

If a person is charged under section 38(3) it was not necessary to prove "prejudicial to a public perception.

"What must be proved beyond reasonable doubt would be the elements/ingredients of the offence contained in section 38(3), i.e. information that is false AND intended or may have the tendency to cause harm to the reputation of Samoa as a tourism destination," said Aumua.

"As for section 38(1), that section is not the offence provision.

"Section 38(1) is where you have taken the quote of ‘prejudicial to a public perception’ from.

"Section 38(1) may be used to support STA, for example in an injunction (which is a civil matter) to stop or remove a false publication.

"The burden of proof here would be on the balance of probabilities and it is really for the Court to decide."

When Aumua was asked whether or not this clause was included because as a public body the STA does not fall under the defamation law he said" I don’t see the relevance of defamation law to STA and therefore do not agree with your line of question here.

"Defamation law is like a minefield and limited in that you can defame a natural person but not a country or a company for example.

"The purpose here is not to protect the reputation of STA, but to protect Samoa’s tourism industry from the publication of false information intended to cause harm to such industry.

"As stated in my earlier email, the tourism industry is very important to Samoa’s economy.

"People should be deterred from publishing FALSE statements that could affect Samoa’s tourist industry.

"Yes the burden of proof is higher for criminal matters but STA must be able to act to defend Samoa’s tourism industry in appropriate circumstances from false publications.

"If there is no section 38, people can publish false information intended to harm Samoa’s tourist industry and STA or Samoan government will be very limited in the actions it can take to prevent such behavior.

"Defamation laws would also not offer any assistance at all here because, as stated earlier, you cannot bring an action based on the defamation of a ‘country’s reputation’ under defamation law."

Mr. Schuster also raised the issue of the provision’s jurisdiction – that it is written for beyond Samoan boarders.

"This is anyone – not just here it’s also anywhere else," he said.

"That would be interesting. I don’t know how they will bring a charge and bring a person under the criminal penalty, because you can sit in Australia and say something about the authority so how are they going to enforce that?

"So the enforcement, certainly outside of Samoa, is going to be difficult."

He said in this regard the provision is unenforceable.

"Absolutely it’s unfair, and it’s unenforceable in terms of if a person does it from outside Samoa," he said.

"It’s unfair that its jurisdiction then is limited in Samoa alone. I mean that could be easily done by just limiting its jurisdiction to here but it doesn’t it extends its jurisdiction outside of Samoa by reading this provision.

"And that speaks for the provision not being written properly."

Aumua said it would be difficult but possible if the person is in Samoa or comes to Samoa.

"I see from your questions that you are focusing purely on freedom of speech, but the Government is looking at the issue from the side of protecting the tourist industry.

"I don’t see any problem with prosecuting a person who publishes false information with the intention of harming Samoa’s tourist industry.

"The decision to charge a person for an offence is never taken lightly and that all relevant factors must be taken into account."

Leota said the real concern any person who may find themselves inadvertently having said something that may be in breach of this provision.

"But the good thing about it is that it is worded so badly that we probably have a pretty good degree to get out of it because of the way the legislation is drafted."

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