Malifa v Sapolu [1999] WSSC 47 (30 March 1999)

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Counsel: L L Stevens QC and H J Schuster for the Applicants
M S Jacobs QC and S Jacobs for the Respondents
B P Heather Attorney General Intervening

Dates of Hearing: 27,28,29,30 and 31 July and 1 August 1998
Final Submissions Received: 4 November 1998
Decision: 30 March 1999

THE PUBLICATION	4
THE PROSECUTION	4
THE CONSTITUTIONAL CHALLENGE	5
THE PRE-EMPTIVE STRIKES	7
Strike One - Article 13 has no application to S84 Crimes Ordinance 1961	7
Strike Two - The Joe Hollywood letter does not merit constitutional protection	9
Standing	12
THE APPROACH TO THE CONSTITUTIONAL CHALLENGE	12
Fair large and liberal construction	12
Foreign jurisprudence	13
Presumption of Constitutionality	15
CRIMINAL LIBEL IN SAMOA	18
The Common Law	19
Common Law Defences	23
Statutory Refinement	24
Summary	26
Shortcomings in the law of criminal libel	27
THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION - ARTICLE 13	28
The burden of proof	29
Is the Law of Criminal Libel a Reasonable Restriction on the Exercise of the Right to Freedom of Speech and Expression?	30
1. Is the legislative objective of protecting reputation sufficiently important to justify limiting the fundamental right to freedom of speech and expression?	33
2. Are the measures designed to meet the legislative objective rationally connected to it?	35
3. Do the means used impair the right or freedom any more than is necessary to accomplish the objective?	36
Mens rea	36
Scope of the law of criminal libel	38
Available defences	39
Context - political statements	39
Lange v Atkinson	39
Unpalatable v Unconstitutional	41
THE RIGHT TO A FAIR TRIAL - THE PRESUMPTION OF INNOCENCE - ARTICLE 9	46
THE RIGHT TO PERSONAL LIBERTY ETC -ARTICLES 6 & 10	47
Vagueness	47
THE RIGHT TO BE FREE FROM DISCRIMINATORY LEGISLATION -ARTICLE 15	49
RESULT	50
APPENDIX	52

Misatauveve Joe Hollywood is a Samoan. He lives in New Zealand. He wrote a letter to the editor of the Samoa Observer. The letter was published in the Samoa Observer of Friday 6 June 1997.

The letter was allegorical in style. It recorded the author's dream in which the then Prime Minister Tofilau Eti Alesana was vilified as a man so base and debilitated that when he died the ground in which his dead body was buried would be so barren that even the Samoan tobacco would not grow in it.

The letter and its translation is appended to this judgment. Those parts of the letter said to be defamatory of the then Prime Minister are shown in italics.

Tofilau Eti did not sue for damages. Instead he instructed his solicitor, Katalaina Maka Sapolu, to bring a private prosecution against the publisher of the Samoa Observer, Savea Sano Malifa, and its Samoan editor, Fuimaono Fereti Tupua, charging them with the crime of defamatory libel contrary to s 84 Crimes Ordinance 1961.

84. Defamatory libel - (1) Every one who publishes a defamatory libel is liable to imprisonment for a term not exceeding 6 months.

(2) To publish a defamatory libel means to do any act which confers upon the person defamed a right of action for damages for libel.

(3) In a prosecution under this section the burden of proof shall be determined by the same rules as in an action for damages for libel.

(4) In a prosecution under this section it shall be no defence that the libel is true unless the publication thereof was for the public benefit.

(1) The Court upon the hearing of a charge pursuant to section 84 of the Crimes Ordinance 1961 in respect of the publication of a defamatory libel, may receive evidence as to the publication being for the public benefit, and as to the truth of the defamatory libel, and as to any other matter which might be given in evidence by way of defence in a civil action by the person charged.

(2) In any proceedings under section 84 of the Crimes Ordinance 1961 it shall be a good defence that the defamatory matter published by the person charged was true, and that the publication thereof was for the public benefit; but no evidence of the truth of that matter shall be admissible until and unless the person charged proves that, assuming the matter so published to be true, the publication thereof was for the public benefit.

The publisher and editor have responded to this prosecution by challenging the constitutionality of the criminal law under which they are being prosecuted.

Article 2 provides that the Samoan Constitution is supreme law. Any statute inconsistent with its provisions is, to the extent of that inconsistency, void.

(2) Any existing law and any law passed after the date of coming into force of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

Part II of the Constitution sets out the fundamental rights of the Samoan citizen.

The applicants ask the Court to enforce their fundamental rights and, to this end, they invoke Article 4 of the Constitution:

4. (1) Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.

(2) The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part.

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law or prevent the state from making any law insofar as that existing law or the law so made imposes reasonable restrictions on the exercise of the right conferred under the provisions of that sub-clause ........ for preventing ............ defamation .....

The applicants claim that s 84 Crimes Ordinance 1961 and s 17 Defamation Act 1992/1993 infringe their constitutional right to freedom of speech and expression in that the restrictions that those enactments impose upon the right of freedom of speech and expression for preventing defamation are not "reasonable restrictions".

15. (1) all persons are equal before the law and entitled to equal protection under the law.

(2) Except as expressly authorised under the provisions of this Constitution, no law.... shall either expressly or in its practical application, subject any person or persons to any disability or restriction ...... on grounds only of..... political or other opinion.. ...

It is further claimed that the reverse onus provided for in s 17(2) Defamation Act 1992/1993 is inconsistent with the applicants' fundamental right to a fair trial, in particular, their right to be presumed innocent until proved guilty according to law.

(3) Every person charged with an offence shall be presumed innocent until proved guilty according to law.

Finally it is contended that the law creating the criminal offence of defamatory libel is so vague and uncertain that it contravenes a fundamental precept of justice which requires offences to be properly defined by law.

In that regard Articles 6 and 10 of the Constitution are invoked with emphasis respectively placed on the words "in accordance with .law" (Article 6) and "defined by law" (Article 10).

6. (1) No person shall be deprived of his personal liberty except in accordance with law.

10. (1) No person shall be convicted of an offence other than an offence defined by law.

By way of a pre-emptive strike Mr Jacobs has fired a double salvo designed to sink the applicants' constitutional boat in the Apia harbour before it can put to sea.

It is submitted that the constitutional right to freedom of speech and expression contained in Article 13(1) has no application to the Crimes Ordinance 1961 and that, consequently, there is no constitutional provision with which s 84 Crimes Ordinance 1961 can be said to be "inconsistent" and void by virtue of Article 2(2). That, submits Mr Jacobs, is a complete answer to the constitutional challenge.

Mr Jacobs submits that the Crimes Ordinance 1961 is a pre independence statute because it was enacted in 1961. It was therefore "an existing law" as at 1 January 1962 when the Constitution came into force. By virtue of Article 13(2) of the Constitution the constitutional guarantee of freedom of speech and expression did not apply to the Crimes Ordinance because "nothing in sub-clause (a) of clause 1 (of Article 13) shall affect the operation of any existing law". There is therefore no constitutional provision with which s 84 can be said to be "inconsistent" (Article 2(2)).

If I have correctly captured the effect of Mr Jacobs' submission then I must say that it proceeds upon a misreading of Article 13(2).

That sub-section provides that the constitutional right to freedom of speech and expression shall not affect the operation of any existing law insofar as that existing law imposes reasonable restrictions on the exercise of the right to freedom of speech and expression for a variety of purposes including the prevention of defamation.

Article 13(2) does not put existing law beyond the scope of the fundamental right of freedom of speech and expression. Article 13(2) merely permits the existing law (and any new law) to impose restrictions upon the exercise of the right provided they are reasonable.

Mr Jacobs variously and colourfully describes the Joe Hollywood letter as "gutter trash, an ugly and viciously and defamatory libel, pure character assassination," and a "publication dripping with vitriolic venom... (which) should be found to be beyond the pale and not deserving of any constitutional protection".

In Mr Jacobs' submission the Joe Hollywood letter does not merit constitutional protection. It fails to enliven any core value which informs the constitutional right to freedom of expression.

Numerous expositions of these core values are to be found among the authorities cited to me by counsel. For a concise statement of the various values informing the right to freedom of expression I respectfully adopt the following passage from the judgment of Huband and Philp JJ.A in R v Stevens (1995) 96 C.C.C. (3d) 238 at 266-7.

Judges of the Supreme Court have continued to relate freedom of expression with the flowering of democracy and the interchange of ideas which are indispensable to a healthy society.

Thus, in the Keegstra case, Dickson C.J.C., writing for the majority, expanded upon the fundamental role of freedom of expression in our democratic process. He wrote (at p 48):

At the core of freedom of expression lies the need to ensure that truth and the common good are attained, whether in scientific and artistic endeavours or in the process of determining the best course to take in our political affairs;

The connection between freedom of expression and the political process is perhaps the linchpin of the s 2 (b) guarantee, and the nature of this connection is largely derived from the Canadian commitment to democracy. Freedom of expression is a crucial aspect of the democratic commitment, not merely because it permits the best policies to be chosen from among a wide array of proffered options, but additionally because it helps to ensure that participation in the political process is open to all persons. Such open participation must involve to a substantial degree the notion that all persons are equally deserving of respect and dignity. The state therefore cannot act to hinder or condemn a political view without to some extent harming the openness of Canadian democracy and its associated tenet of equality for all.

In its earlier per curiam judgment in Ford v Quebec (Attorney-General) (1988), 54 D.L.R. (4th) 577 at p 617 [1982] 2 S.C.R. 712, 10 C.H.R.R. D/5559, the court adopted the values justifying the constitutional protection of freedom of expression that were summarized by Professor Thomas I Emerson in his article, "Toward a General Theory of the First Amendment" (1963), 72 Yale LJ. 877 at p 878:

The values sought by society in protecting the right to freedom of expression may be grouped into four broad categories. Maintenance of a system of free expression is necessary (1) as assuring individual self-fulfilment, (2) as a means of attaining the truth, (3) as a method of securing participation by the members of the society in social, including political, decision-making, and (4) as maintaining the balance between stability and change in society.

The court also approved the three "rationales" referred to by Professor Robert J Sharpe in his article, "Commercial Expression and the Charter" (1987), 37 U.T.L.J. 229 at p 232:

The first is that freedom of expression is essential to intelligent and democratic self government..... The second theory is that freedom of expression protects an open exchange of views, thereby creating a competitive market-place of ideas which will enhance the search for the truth... The third theory values expression for its own sake. On this view, expression is seen as an aspect of individual autonomy. Expression is to be protected because it is essential to personal growth and self-realization.

While the differences between Samoa and Canada are many and manifest, there is no difference which would detract from the force of the above analysis all of which, in my judgment, is true of any democratic country which cherishes freedom of speech and expression and the uninhibited participation by its citizens in the political process.

How then is the publication of the Joe Hollywood letter to be judged in the light of the values informing freedom of expression in the political arena.

If it be the case that, in Samoa, not all expression merits the protection of the constitutional guarantee, a point which it is unnecessary for me to decide, the publication of the Joe Hollywood letter is not beyond the pale that marks the limit of such protection.

When read as a whole the letter as published, while clearly defamatory, does not descend to the nadir of vicious malevolence exemplified by the publications which exercised Huband and Philp JJ.A. in Stevens.

While any value in the publication is difficult to detect, the fact that it is expressed in allegorical terms by which any meaning is sought to be conveyed in a disguised form, and the fact that the letter published in Samoan has been translated into English for the benefit of the Court, a process in which meaning may be corrupted or lost, both call for caution to be exercised before dismissing it out of hand as a valueless diatribe unworthy of constitutional protection.

Furthermore it is an expression of a political nature critical of a politician in high office and there is a particular premium upon protecting the right of freedom of political expression. As was said by Justice Brennan delivering the opinion of the United States Supreme Court in The New York Times Co, v Sullivan [1964] USSC 40; 376 US 254 at 269:

"Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

Finally it is relevant that the applicants are not the authors of the Joe Hollywood letter. They are respectively the publisher and editor of a newspaper which, arguably, has an obligation to publish the political views of its readers (subject of course to the law of defamation and any defence of qualified privilege). This point was recognised by Huband and Philp JJ.A in Stevens where they said that the same words may or may not be deserving of charter protection depending upon the context of their publication. Publication of racist remarks might not enjoy protection whereas their republication by a journalist might be protected if the journalist thereby served "an educational and informational purpose and thus fulfilled a societal objective." (ibid 275)

Without wishing to express any view about the availability in the present case of the defence of qualified privilege, the fact that the applicants, as publisher and editor of a newspaper, have published a reader's letter to the editor is a contextual factor militating in favour of constitutional protection.

For these reasons I conclude that the applicants' publication of the Joe Hollywood letter cannot be said to fall outside the guarantee of the applicants' right to freedom of expression.

Standing:
Before leaving matters pre-emptive it is as well to deal with one further preliminary point. Mr Jacobs has submitted that the applicants lack standing to make their constitutional challenge.

That cannot be so. They are defendants in a criminal proceeding charged with an offence. In their own defence they are entitled to raise the constitutionality of the law under which they are prosecuted. That could have been achieved without an Article 4 application. The fact that the issue has been brought to Court in the form of such an application does not alter their standing - R v Big M Drug Mart Ltd 18 DLR (4th) 321.

The Constitution is the supreme law of Samoa and any laws inconsistent with its provisions shall, to the extent of the inconsistency, be void (Article 2).

Its objects include securing to all the people their fundamental rights (preamble).

Its provisions are to be given a large and liberal interpretation and are not to be "cut down... by a narrow and technical construction". Edwards v Attorney-General for Canada [1929] 3 WWR 479 at 489 (PC).

We have already indicated our agreement that the Constitution should be interpreted in the spirit counselled by Lord Wilberforce in Fisher's case. He speaks of a constitutional instrument such as this as sui generis; in relation to human rights of 'a generous interpretation avoiding what has been called the austerity of tabulated legalism'; of respect for traditions and usages which have given meaning to the language; and of an approach with an open mind. This involves, we think, still giving primary attention to the words used, but being on guard against any tendency to interpret them in a mechanical or pedantic way. In this spirit we turn to the provisions of the Constitution now relevant. Attorney General v Saipa'ia (Olomalu) Samoa Court of Appeal 14-16 July 1982 at p 58.

Comparison with constitutions of other countries and with international instruments may be instructive especially in identifying the values that underpin the fundamental rights and in determining the approach to be taken to determining the constitutionality of impugned legislation.

Mr Stevens has relied upon Canadian jurisprudence and the approach adopted by the Supreme Court of Canada to the interpretation of that country's Charter of Rights and Freedoms. The comparison is appropriate.

The constitutional instruments of both Canada and Samoa entrench fundamental rights and freedoms. In neither case are those rights and freedoms absolute. Legislative encroachment is permitted where such encroachment can be justified.

In the context of comparison between the constitutions of Canada and the United States it has been said that Canadian Courts seeking to elucidate the meaning of charter guarantees that have counterparts in the United States Constitution "should be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in very different circumstances..." R v Rahey (1987) 23 C.C.C. 3d 289 at 325 La Forest J.

Similar caution was expressed by the Court of Appeal in Olomalu at p 56 concerning the unique provisions of the Samoan Constitution for Territorial Constituencies and an individual voters roll.

While the similarities between the Canadian and Samoan constitutional instruments justify careful consideration of Canadian jurisprudence, there are significant differences between the two.

Section 1 of the Canadian Charter which permits legislative encroachment upon fundamental rights and freedoms is an over-arching provision applicable to all of the guaranteed rights and freedoms. There is no similar over-arching provision in the Samoan constitution where encroachment is permitted in relation to selected rights and freedoms but not for all. This difference may produce a different answer to the question whether impugned legislation in fact violates any constitutionally guaranteed right or freedom.

The Canadian approach is to ask first whether impugned legislation violates any guaranteed right. If it does then the second question is whether such violation is justified, an exercise which involves balancing on the one hand the values that inform the constitutional right and, on the other hand the values that underpin the legislative objective of the impugned legislation. The tendency is to readily find that a fundamental right has been violated leaving value judgments to the second phase of the enquiry.

This approach is exemplified in R v Keegstra (1990) 61 C.C.C. (3d) 1 where the Supreme Court, by a majority, held that legislation prohibiting hate propaganda violated the right to freedom of expression but upheld the legislation as a justifiable limit on that right.

The question whether legislation violates a constitutional right might not be so readily answered in the affirmative where, as in Samoa, not all constitutional rights permit of legislative encroachment (e.g. the right to a fair trial).

Moreover the test for justification of encroachment is differently expressed in the Canadian and Samoan Constitutions.

The former permits only "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

Article 13(2) refers to "reasonable restrictions on the exercise of the right [to freedom of speech and expression] ...... for preventing .... defamation".

The difference may produce different results, particularly on the question of where the burden of proof lies on the issue of the constitutionality of impugned legislation.

Finally the question of the constitutionality of impugned legislation inevitably involves the balancing of values referred to above. The balance may come down differently in different jurisdictions, a point made by Sir Gordon Bisson with reference to the respective values of Samoa and New Zealand:

"Samoa has retained the offence of criminal libel, which New Zealand has not, showing the importance in Samoan society attached to reputation" - Tofilau Eli Alesana v Samoa Observer Supreme Court of Samoa 6 July 1998 p 21.

In short, the jurisprudence of other countries, especially Canada, is valuable and instructive but its application to Samoa calls for caution. Differences between constitutional instruments and differences over competing values may produce different results.

When approaching the issue whether impugned legislation is constitutional there is a "presumption of constitutionality".

I do not take this phrase to mean that legislation is presumed to conform to the Constitution until the contrary is proved. Rather it is a shorthand expression of the proposition that the legislature must be taken to have its constitution in mind when enacting legislation and should be presumed to legislate in conformity with it.

The presumption finds expression in the following extract from the speech of Lord Diplock in Attorney General of the Gambia v Momodou Jobe [1984] 1 AC 689, an appeal to the Privy Council from a decision of the Court of Appeal of the Gambia.

The draftsmanship of those provisions of sections 8 and 10 of the Act, which their Lordships have just been examining, is characterised by an unusual degree of ellipsis that has made it necessary to spell out explicitly a great deal that is omitted from the actual words appearing in the sections and has to be derived by implication from them. In doing so their Lordships have applied to a law passed by the Parliament in which, by the Constitution itself, the legislative power of the Republic is exclusively vested, a presumption of constitutionality. This presumption is but a particular application of the canon of construction embodied in the Latin maxim magis est ut res valeat quam pereat * which is an aid to the resolution of any ambiguities or obscurities in the actual words used in any document that is manifestly intended by its makers to create legal rights or obligations. In passing the Act by the procedure appropriate for making an ordinary law for the order and good government of The Gambia without the formalities required for a law that amended Chapter III of the Constitution the intention of Parliament cannot have been to engage in the futile exercise of passing legislation that contravened provisions of Chapter III of the Constitution and was thus incapable of creating the legal obligations for which it purported to provide. Where, as in the instant case, omissions by the draftsman of the law to state in express words what, from the subject matter of the law and the legal nature of the processes or institutions with which it deals, can be inferred to have been Parliament's intention, a court charged with the judicial duty of giving effect to Parliament's intention, as that intention has been stated in the law that Parliament has passed, ought to construe the law as incorporating, by necessary implication, words which would give effect to such inferred intention, wherever to do so does not contradict the words actually set out in the law itself and to fail to do so would defeat Parliament's intention by depriving the law of all legal effect. ibid 702

[* Ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void). A document should be construed in such a way as to give effect to it rather than in a way which would render it nugatory. - New Zealand Law Dictionary (2nd Ed) G.W. Hinde.]

This stratagem is known as "reading down" and is only permissible where the language of the statute will bear the valid limited meaning as well as the invalid extended meaning. The Court then stipulates that the limited meaning be selected. It is to be distinguished from severance in that severance involves holding part of the statute to be invalid whereas reading down achieves its remedial purpose by interpretation - Hogg Constitutional Law of Canada 4th Ed. pp 399 and 871.

The test for severability is that laid down by Viscount Simon in Attorney-General for Alberta v Attorney-General for Canada [1947] AC 503 at 518:

"The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all."

This test was restated and applied by the Privy Council in Attorney-General v Jobe (at 703). The case is an illustration of judicial resort to both stratagems of implication of necessary terms and of severance in order to give effect to the presumption of constitutionality.

Does the law of defamatory or criminal libel in Samoa infringe any of the applicants' constitutional rights?

To answer these questions it is necessary to determine what the law of criminal libel is in Samoa.

The Crimes Ordinance 1961 does not purport to codify the law of criminal or defamatory libel. Indeed s 84 does not create the offence of defamatory libel. It provides a maximum punishment, it defines "publish a defamatory libel", it stipulates where the burden of proof lies and it provides for the defence of truth. Issues of truth and public benefit are further refined by s 17 Defamation Act 1992/1993.

The offence of criminal or defamatory libel is and remains a creature of the common law.

Publication of libel - if any person shall maliciously publish any defamatory libel, every such person, being convicted thereof, shall be liable to fine or imprisonment or both, as the Courts may award, such imprisonment not to exceed the term of one year.

This section created no new offence but merely limited the amount of punishment that might be given to a man guilty of the old common law offence - R v Munslow [1895] 1 Q.B.758 Lord Russell CJ 761.

"Law" means any law for the time being in force in Western Samoa; and includes this Constitution, any Act of Parliament and any proclamation, regulation, order, by-law or other act of authority made thereunder, the English common law and equity for the time being in so far as they are not excluded by any other law in force in Western Samoa, and any custom or usage which has acquired the force of law in Western Samoa or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction. Art 111(1).

The adjective "English" is descriptive of the system and body of law which originated in England and is not descriptive of the Courts which declare such law - L v L Court of Appeal of Samoa C.A. 21-93 28 March 1994 p6.

The development of the law of criminal libel has been traced by the English Law Commission in its working paper No. 84 "Criminal Libel" published in November 1982.

The commission commenced its historical survey of the principal stages in the development of criminal libel with the offence of scandalum magnatum (slander of magnates) first created by statute in 1275.

"None be so hardy to cite or publish any false news or tales whereby discord or occasion of discord or slander may grow between the King and his people or the great men of the realm; and he that doth so shall be taken and kept in prison until he hath brought him into the Court which was the first author of the tale." (3 Edw 1 Stat:Westm. prim., c.34)

This offence and its subsequent re-enactments provided the foundations upon which the Star Chamber was to fashion the law of libel. The essence of criminal libel was the prevention of loss of confidence in government.

The Court of Star Chamber was established in 1488, only 12 years after Caxton had set up his first press at Westminster. That Court -

"regarded with the deepest suspicion the printed word in general, and anything which looked like criticism of the established institutions of Church or State in particular a publication of which the Star Chamber disapproved would be punished as either a blasphemous or else as a seditious libel. At the same time, the Star Chamber was anxious to suppress duelling. To this end it would punish defamatory libels on private citizens who had suffered insult thereby, in the hope that this remedy would be more attractive to the person insulted than the issue of a challenge to fight." - JR Spencer "Criminal Libel - A Skeleton in the Cupboard" [1977] Crim. L.R. 383.

The Star Chamber was concerned more with public order and a desire to punish a defendant for his wickedness. By contrast the common law courts which developed the tort of defamation were concerned with the damage caused to the victim's reputation.

A principal difference between the two was that, in the case of criminal libel, truth was not a defence. Indeed the fact that a defamatory statement was true might be more likely to result in a breach of the peace "for as the woman said, she would never grieve to have been told of her red nose if she had not one indeed" - W Hudson "A Treatise on the Court of Star Chamber" published 1791. Hence the aphorism "the greater the truth the greater the libel".

That remained the law of England until the Libel Act of 1843 "Lord Campbell's Act" which made truth a defence to a prosecution for libel provided the defendant could prove both that it was true and "that it was for the public benefit that the said matters charged should be published" (s6 Libel Act 1843).

This is still the law in England. By comparison truth remains an absolute defence to a civil action for libel.

Because the law of criminal libel had as its rationale the preservation of public order it is unsurprising that the tendency to cause a breach of the peace became regarded as an element of the crime - R v Labouchere [1884] UKLawRpKQB 312; (1994) 12 QBD 320. 322-3.

However, the correctness of this proposition was called into question by R v Wicks (1936) 25 Cr.App.R. 196 where the Court of Criminal Appeal held that the prosecution had neither to allege in the indictment nor to prove that the libel in question was likely to cause a breach of the peace.

"It is true that a criminal prosecution for libel ought not to be instituted, and, if instituted, will probably be regarded with disfavour by Judge and jury, when the libel complained of is of so trivial a character as to be unlikely either to disturb the peace of the community or seriously to affect the reputation of the person defamed..... There is..... no ground for the suggestion made at the Bar that it is incumbent upon the prosecution to prove that the libel in question would have been unusually likely to provoke the wrath of the person defamed, or that the person defamed was unusually likely to resent an imputation upon his character. We find no support for this theory in any judgment. On the contrary, the law remains what it was stated to be by Mansfield CJ., in Thorley v Lord Kerry, when he said: 'there is no doubt that this was a libel, for which the plaintiff in error might have been indicted and punished; because, though the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt and ridicule; for all words of that description an indictment lies." 172-173. Du Parcq J.

The House of Lords has since confirmed the correctness of this ruling deciding unanimously in Gleaves v Deakin [1979] 3 W.L.R. 665 that, even if at one stage a tendency to lead to a breach of the peace had been an essential element of criminal libel, it had ceased to be so now.

"A criminal libel must be a serious libel. If the libel is of such a character as to be likely to disturb the peace of the community or to provoke a breach of the peace, then it is not to be regarded as trivial. But to hold as du Parcq J. did, in my view rightly, that the existence of such a tendency suffices to show that the libel is a serious one, is a very different thing from saying that proof of its existence is necessary to establish guilt of the offence." 487 Viscount Dilhorne.

From this historical synopsis it may be concluded that, while a tendency to disturb or provoke a breach of the peace may, at one time, have been regarded as an essential element of the offence of criminal libel, that's no longer the case. What is necessary is that the libel is a serious one:

"Now there is a distinction between a criminal libel and a civil libel. A criminal libel is so serious that the offender should be punished for it by the state itself. He should either be sent to prison or made to pay a fine to the state itself. Whereas a civil libel does not come up to that degree of enormity..... When a man is charged with criminal libel, it is for the jury to say on which side of the line it falls. That is to say, whether or not it is so serious as to be a crime." - Goldsmith v Sperrings Ltd [1977] 1 WLR 478, p 485 Lord Denning MR.

As with the civil action, the interest which the law of criminal libel seeks to protect is reputation but it is only the most serious attacks upon reputation which will justify the intervention of the criminal law.

3. that is defamatory in the sense that it tends to lower the complainant in the estimation of right thinking members of society generally or' to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule or to convey all imputation on him disparaging or injurious to him in his office, profession, calling, trade or business (28 Halsbury (4th Edition) 10).

Whether the common law offence contains any mental element and, if so, what that mental element is, is a matter of some controversy.

For example, in Stevens Twaddle JA after carefully reviewing English authorities concluded that the preponderance of English case law at the end of the 19th century seemed to favour the view that malice or an intent to defame was an ingredient of criminal libel, albeit a state of mind which might be presumed from the clearly defamatory nature of the publication - Stevens 301.

This view of the common law was adopted by the Supreme Court of Canada in R v Lucas File No 25177, 2 April 1998, Cory J p 15.

On the other hand the House of Lords in a majority decision in R v Lemon [1979] A.C. 617 held that an intention to blaspheme was not an element of the crime of blasphemous libel. In R v Wicks (1936) 25 Cr.App.R. 168 the Court of Criminal Appeal stated that the offence of criminal libel, like the ton, was one of strict liability.

"It was recognised at the end of the 18th century that libel was an exception to the general rule that mens rea was necessary to constitute a criminal offence." - ibid 173 du Parcq J.

In its working paper No. 84 the Law Commission was constrained to observe that "there is no clear statement in any of the modern authorities as to the precise extent to which mens rea is required in criminal libel" (para 3.12).

The scope of the common law offence of criminal libel is determined not only by its ingredients but also by the available defences.

As has been seen, justification or truth is not a defence to a charge of criminal libel but the defences of privilege and fair comment are available.

Examples of absolute privilege include statements made in the course of judicial or parliamentary proceedings, communications between solicitor and client, statements made by one officer of state to another in the course of duty etc. – Law Commission Working Paper No. 84 para 3.20.

The defence of qualified privilege applies to a wider range of situations but may be defeated on proof by the prosecution that the defendant was motivated by "express malice" in making the publication. An absence in belief of the truth of the defamatory matter is generally conclusive evidence of malice.

Examples of qualified privilege include statements made in the performance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive them, statements made in the protection of a common interest to a person sharing the same interest, fair and accurate reports of judicial or parliamentary proceedings etc. - Law Commission Working Paper No. 84 para 3.20.

Whether the defence of fair comment on a matter of public interest applies to criminal libel has been the subject of very little authority.

According to Halsbury the defence of fair comment is in the nature of a general right and enables any member of the public to comment on matters of interest. It applies only to expressions of opinion, however, and not to defamatory statements of fact - 28 Halsbury's Laws of England (4th Edition) para 131.

The defence of fair comment is defeated by proof of actual malice - Halsbury para 132.

84. Defamatory libel - (1) Every one who publishes a defamatory libel is liable to imprisonment for a term not exceeding 6 months.

(2) To publish a defamatory libel means to do any act which confers upon the person defamed a right of action for damages for libel.

(3) In a prosecution under this section the burden of proof shall be determined by the same rules as in an action for damages for libel.

(4) In a prosecution under this section it shall be no defence that the libel is true unless the publication thereof was for the public benefit.

On its face s 17(2) would appear to place a burden of proof upon the defendant to prove only that the publication (assuming its truth) was for the public benefit.

However, s 84(3) Crimes Ordinance stipulates that the burden of proof in prosecutions for defamatory libel is to be determined by the same rules as in an action for damages for libel. In a civil action justification is an affirmative defence. The burden of proof is on the defendant 28 Halsbury's Laws of England 4th Edition para 16. In the absence of any express provision to the contrary in the Defamation Act 1992/1993, the incidence of the burden of proof of truth is determined by s 84(3) Crimes Ordinance 1961. The civil rule applies. The onus of proving justification is on the defendant.

Part II Defamation Act 1992/1993 makes certain provisions concerning civil proceedings for defamation. Notable among them are the following:

- defence of justification not to fail by reason only that the truth of every charge is not proved (s9).

- defence of fair comment not to fail by reason only that the truth of every allegation of fact is not proved.

Like their English counterparts (Defamation Act 1952) these provisions which broaden the scope of defences in civil actions, have no application to criminal proceedings for defamatory libel.

Further provisions of the Defamation Act 1992/1993 do apply to both civil and criminal proceedings.

Under Part IV of the Defamation Act 1992/1993, the publication of reports of proceedings of the Legislative Assembly or of any committee thereof and of any court of justice enjoy qualified privilege which may be defeated upon proof of malice.

So too do media publications of a wide range of reports including reports of proceedings of legislatures and courts of justice outside Samoa, reports of public enquiries and public meetings etc. The qualified privilege is lost if the defendant fails or refuses to publish an adequate explanation or contradiction. To come within the umbrella of this qualified privilege the subject matter of the report must be of public concern and its publication must be for the public benefit.

These provisions do not limit or abridge any privilege subsisting immediately before the commencement of the Act.

Whether an intention to defame is a necessary ingredient of the offence has yet to be decided.

The common law defences of privilege (absolute and qualified) and of fair comment are available to a defendant who bears the burden of proving them upon the balance of probabilities. Specific instances of qualified privilege are provided for in Part IV Defamation Act 1992/1993. Once established the defences may be defeated by proof of actual or express malice.

The defence of justification or truth is available by virtue of s 17 Defamation Act 1992/1993 but only if the publication (assuming its truth) was for the public benefit. The burden of proving both truth and public benefit is on the defendant. The standard of proof is the civil standard.

In its report to Parliament in September 1985 the English Law Commission identified what it saw as shortcomings in the law of criminal libel:

4.2 Although section 6 of the Libel Act 1843 provides a defence of the truth of the publication in criminal proceedings, the truth of the words complained of is a complete defence to a civil action, while in criminal proceedings the defendant must, by virtue or this section, prove not only that the defamatory matter is true, but also that its publication was for the public benefit. Thus in what is a serious criminal offence, not only is the burden on the defendant to prove the truth but, even if proved, it is not by itself a complete defence; he is obliged in addition to prove a matter which is remarkably vague in content and unsuited, in our view, to be a criterion of criminal liability. To convict a person for telling the truth unless he can prove publication for the public benefit seems to us objectionable in principle; it is doubly so, where the burden of proving al1 these matters lies, not upon the prosecution, but upon the defendant. Further, a defendant may be convicted even though he has published what he honestly and reasonably believed to be true; thus the offence constitutes an exception to the general rule that a person acting under a mistaken belief as to the existence of facts which, if true, would give him a defence, commits no crime. These features of the offence, and the manner in which they work in combination with each other, go to the very nature of criminal libel and, in our view, make it unacceptable in modem conditions.

4.3 Other shortcomings of the common law offence, while less fundamental, appear almost equally difficult to justify. Criminal libel is wider than the tort because the Defamation Act 1952, which broadens the scope of defences in civil actions, does not apply to criminal libel. Among the provisions which by virtue of this Act apply to civil, but not criminal, libel, are -

(ii) section 5, which in substance widens the scope of the defence of justification;

(iv) section 7 (and Schedule), relating to the qualified privilege of newspapers in respect of certain reports and other matters;

(v) section 9(1), which extends to broadcasts the statutory defence of qualified privilege covering the publication of extracts from Parliamentary papers; and

(vi) section 9(2) which extends to broadcasts the protection conferred on newspapers by section 7.

There is in our view no reason in principle why such restrictions upon liability should be confined to civil actions for defamation.

4.4 The common law may also be criticised on account of its vagueness and absence of any clear mental element. We have noted that only serious defamations are criminal; the law does not penalise trivial defamations. But this requirement, which it seems is for the jury to assess, is not linked to any criterion by which it is to be applied. As it stands it amounts merely to a rule that, if the jury regard the conduct as sufficiently serious to find it criminal, that conduct amounts to an offence; we regard this as unacceptable. It is uncertain whether proof is needed of an intention to defame and, on one view of the law, the offence requires only an intent to publish the matter complained of. This again we regard as unsatisfactory in a serious offence triable only on indictment.

Subject to what follows on the subject of mens rea, these criticisms may all be fairly levelled at the law of criminal libel as it stands in Samoa.

Having expounded the law of criminal libel in Samoa, attention may now turn to the questions first posed:

Does the law of defamatory or criminal libel in Samoa infringe any of the applicants' constitutional rights?

There can be little doubt that the law of criminal libel, a creature of the common law refined by s 84 Crimes Ordinance 1961 and the Defamation Act 1992/1993, infringes the constitutional right to freedom of speech and expression.

A law which proscribes expression which tends to lower a person in the estimation of right thinking members of society generally (to adopt but a part of Halsbury's definition of a defamatory statement) necessarily impacts upon the freedom to publish one's view about that person. This is of particular significance in the political arena where lowering the estimation of one's political foes in the minds of thinking members of society generally is the aim of the game. Such expression is not just tolerated but is vital to a healthy democratic society.

The important issue is not whether the right to freedom of expression is infringed by law proscribing defamation but rather whether a proper balance is achieved between the right to express one's view freely and the limitation on that right which the law of criminal libel constitutes.

The fact that the law proscribing defamation restricts the right to freedom of speech and expression is recognised by Article 13(2) of the Constitution itself. Restriction or encroachment is to be permitted provided it is reasonable.

Reasonableness is a value judgment calling for the balancing of the values informing the right to freedom of speech and expression on the one hand against the values underpinning Parliament's objective in proscribing defamation on the other and then deciding whether the restrictions imposed go further than is reasonably required to achieve that object. It is the s 13(2) issue which is pivotal to the applicant's constitutional challenge.

It would seem to me to accord with principle that the party alleging a state of affairs bears the burden of proving it. Thus the applicants who assert that their constitutional rights have been infringed bear the burden of proving that proposition.

One who challenges the constitutionality of a statute assumes the burden of proving that it is unconstitutional Fitts v Kobb 779 F.Supp.1502 (DSC 1991).

In de Freitas v Ministry of Agriculture [1998] UKPC 30; [1998] 3 WLR 675 the Privy Council said that "it was for the applicant to show that the restraint, with its qualification, was not reasonably justifiable in a democratic society and their Lordships are persuaded that that has been shown to be the case" (ibid 685).

That conclusion was reached however in relation to a constitutional limitation permitting restrictions that were "reasonably required......... except so far as that provision......... is shown not to be reasonably justifiable in a democratic society".(emphasis added)

The reverse is the case in Canada where the party seeking to uphold the constitutionality of impugned legislation bears the burden of proof. That result flows from the s 1 requirement for reasonable limits to "be demonstrably justified in a free and democratic society". (emphasis added)

In the present case the wording of Article 13(2) gives no indication of where the burden of proof lies. I would hold that the onus of proving that the impugned law is unconstitutional rests upon the applicants who allege it.

Is the law of Criminal Libel a Reasonable Restriction on the Exercise of the Right to Freedom of Speech and Expression?

Section 1 of the Canadian Charter of Rights and Freedoms sets out the constitutional test for permissible limitations upon guaranteed rights and freedoms. Section 1 is an overarching provision applicable to all guaranteed rights and freedoms.

By comparison the Samoan Constitution contains no such overarching provision but is selective in identifying only some rights and freedoms which permit of limitation. In the context of freedom of speech and expression that limitation is found in Article 13(2).

For ease of comparison the relevant provisions of the Canadian Charter of Rights and Freedoms and the Samoan Constitution may be recited.

- freedom of thought, belief, opinion and expression including freedom of the press and other media of communication.

Section 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Article 13(2) nothing in clause (1)(a) shall affect the operation of any [law] insofar as that [law] imposes reasonable restrictions on the exercise of the right......... for preventing..... defamation.

The process by which Canadian Courts determine the s 1 issue has been authoritatively set forth in the seminal Supreme Court decision of R v Oakes [1986] 1 S.C.R. 103 ("the Oakes analysis").

The threshold question is to determine the purpose and object of the legislation. Only if this is of sufficient importance to warrant overriding the constitutionally protected right or freedom need the Court then pass on to consider the issue of proportionality - Stevens 252 Scott CJM.

The Oakes analysis is to be found in the following extract from the judgment of the Supreme Court delivered by Dickson CJ.

To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R v Big M Drug Mart Ltd., supra, at p 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Second, once a sufficiently significant objective is recognized, then the party invoking s 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R v Big M Drug Mart Ltd., supra, at p 352. Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the object in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R v Big M Drug Mart Ltd., supra, at p 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance" - 138-139.

In arriving at this analysis Dickson CJ placed emphasis upon the words "free and democratic society" as a relevant contextual element in the interpretation of s 1 which required the Court to be guided by values and principles essential to a free and democratic society (136). He further concluded that the word "demonstrably" clearly indicated that the onus of justification was on the party seeking to limit the right (137).

The words "as can be demonstrably justified in a free and democratic society" are absent from Article 13(2) where all that is required of the impugned law is that it impose "reasonable restrictions".

This raises the question whether the Oakes analysis is appropriate to the interpretation of Article 13(2).

In Woods v Minister of Justice, Legal and Parliamentary Affairs [1994] 1 LRC 359 the phrase "reasonably justifiable in a democratic society" was considered by the Supreme Court of Zimbabwe:

"What is reasonably justifiable in a democratic society is an elusive concept. It is one that defies precise definition by the Courts. There is no legal yardstick, save that the quality of reasonableness of the provision under attack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual....." (362).

That statement was later adopted by the same Court in a brace of cases, Nyambirai v National Social Security Authority [1996] 1 LRC 64 and Retrofit v Posts and Telecommunications Corp [1996] 4 LRC 489.

"...... the Court will look to three criteria in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary or excessive. It will ask itself whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right (ii) the measures designed to meet the legislative objective are rationally connected to it and are not arbitrary, unfair or based on unreasonable considerations (iii) the means used impair the right or freedom no more than is necessary to accomplish the objective." (506)

The Privy Council in de Freitas accepted and adopted this three-fold analysis of the criteria relevant to determining whether a limitation is arbitrary or excessive which in turn is a measure of the quality of reasonableness - (ibid 684 Lord Clyde).

In deciding whether the law of criminal libel for Samoa imposes "reasonable restrictions" on the exercise of the right to freedom of speech and expression it is therefore appropriate to ask whether the restriction imposed is arbitrary or excessive which, in turn, involves the three-fold analysis adopted by the Privy Council in de Freitas.

1. Is the legislative objective of protecting reputation sufficiently important to justify limiting the fundamental right to freedom of speech and expression.

48. Is the goal of the protection of reputation a pressing and substantial objective in our society? I believe it is. The protection of an individual's reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society. Preventing damage to reputation as a result of criminal libel is a legitimate goal of the criminal law.

49. In Hill, supra, it was emphasized that it is of fundamental importance in our democratic society to protect the good reputation of individuals. On behalf of a unanimous court it was observed at p. 1175:

Although much has very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws....

Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person..... A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

The societal values underpinning the fundamental right of freedom of speech and expression have been dealt with elsewhere in this judgment. The objective of proscribing seriously defamatory attacks upon reputation is sufficiently pressing and important to override the charter freedom.

The value of a person's reputation is very high indeed, especially in Samoa where authority and respect for authority is deeply ingrained in the Samoan culture. To so defame a man as to seriously lower him in the estimation of his fellows is to deal a severe blow to his pride and dignity, to undermine his authority and standing. to offend his family and even insult his village.

Quite apart from the objective of protecting reputation, a further Parliamentary purpose to be served by proscribing seriously defamatory publication may be identified.

If the defamation is sufficiently serious to justify the intervention of the criminal law then violence may ensue. The ancient rationale for the offence of criminal libel, namely preservation of public order, is unlikely to be beyond the objectives which Parliament intended to serve by preserving the offence of defamatory libel.

An example of that very Parliamentary objective is to be found in a unique provision of the Road Traffic Ordinance 1960. It is a defence to a charge of failing to stop and ascertain injury after a traffic accident that the motorist was in fear of physical violence from bystanders.

44. Duties of drivers in cases of accidents (1) Where an accident arising directly or indirectly from the use of a motor vehicle occurs to any person or to any horse or vehicle in charge of any person, the driver of the motor vehicle shall stop, and shall also ascertain whether he has injured any person, in which event it shall be his duty to render all practicable assistance to the injured person including transportation of that person to hospital.

(6) It shall be a defence to any charge of failing to comply with the obligations imposed on a driver by subsection (1) of this section if he satisfies the Court that he had reasonable grounds to apprehend violence from bystanders if he stopped his vehicle, and that he forthwith with all reasonable expedition reported the accident as provided in subsection (2) of this section.

Ready resort to violence as a response to serious affront remains a condition of modern Samoa which Parliament would seek to curb. Article 13(2) permits of a reasonable restriction on the exercise of the right to freedom of speech and expression in the interests of public order.

2. Are the measures designed to meet the legislative objective rationally connected to it?

The legislative objective is to protect the citizen from serious damage to his reputation and, arguably, preserve public order.

It recognises that seriously defamatory truth can be just as damaging as seriously defamatory falsehood. Publication of seriously defamatory truth is not proscribed provided there is a public benefit to be gained from publication. The absence of any public benefit robs the truthful publication of any justification because serious harm is done to reputation to no good end.

Whatever criticisms may be levelled at the law of criminal libel in Samoa, it cannot be said to be arbitrary, unfair, or based on unreasonable considerations. I conclude that the law of criminal libel is rationally connected to the legislative objective.

3. Do the means used impair the right or freedom any more than is necessary to accomplish the objective?

Whether an intention to defame is an essential ingredient of the common law offence of criminal libel is uncertain.

In the final analysis I have to determine the common law applicable in Samoa. As Bisson J said in Tofilau, in the context of differences in approach between English precedent and the precedent of other jurisdictions, "the Western Samoa Courts will select or evolve the solution which they adjudge to be the most suitable for the society of Western Samoa". (ibid p20)

In the context of a choice between conflicting lines of authority on the issue of mens rea, the same is true. It is for the Courts of Samoa to develop the common law along the line most suitable for the society of Samoa.

If mens rea is the issue upon which the constitutionality of the law of criminal libel is to stand or fall, then the presumption of constitutionality (as previously defined) will require a decision that in Samoa mens rea or the intention to defame is a necessary ingredient of the offence of criminal libel.

Moreover, such a decision is consistent with the line of authority cited by Twaddle JA in Stevens pp 299-301 from which he concluded that "the preponderance of English case law at the end of the 19th century seems, therefore, to favour the view that malice, or intent to defame, was indeed an ingredient of criminal libel, albeit a state of mind which might be presumed from the clearly defamatory nature of the publication". (ibid 301)

In considering the meaning to be given to the Canadian statutory measure at issue in Stevens Twaddle JA at p 302 took as his starting point Sweet v Parsley [1969] UKHL 1; [1970] AC 132 House of Lords where Lord Reid stated:

"Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. This means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea." (148)

Mr Stevens submits that s 84(2) Crimes Ordinance 1961 defines publishing a defamatory libel as "any act which confers upon the person defamed a right of action for damages for libel". He submits that this tends to suggest that no mens rea is required because it is not necessary to prove an intention to defame in order to obtain damages for libel in the civil law.

That "tendency to suggest" is not determinative of the issue. Even if s 84 codified the law of defamatory libel in Samoa this would remain a case "where no clear indication either way" is given on the issue of mens rea.

The presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did and the presumption of constitutionality that manifests itself in the rule of construction under which an impugned statute ought to be construed whenever possible in such a way as to make it conform to the constitution, both point to the same result. In Samoa mens rea or an intent to defame is an essential ingredient of the offence of criminal libel.

The law criminalises the publication of defamatory statements which, when viewed objectively, are seriously defamatory and not trivial.

The publisher must intend to defame in the sense that he must intend either to lower the complainant in the estimation of right thinking members of society generally or cause him to be shunned or avoided or expose him to hatred, contempt or ridicule, or convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business (28 Halsbury (4th Edition) 10.

It matters not that the statement is a false statement which the publisher honestly believes to be true.

The following defences are available to a defendant who bears the burden of proving them upon the balance of probabilities.

1. That the statement is true provided that the defendant proves that publication is for the public benefit.

2. That the statement is published on an occasion of privilege (absolute or qualified).

3. That the statement amounts to an honest expression of opinion or fair comment.

Privilege and fair comment are defeated by the prosecution's proving that the publisher was actuated by express malice.

The publication which is the subject of these proceedings is in the nature of political comment upon the ability of a public figure to discharge his office. It is published not by the author but by the publisher and editor of a newspaper in the form of a letter to the editor.

Against this contextual background a high value is to be placed upon freedom of expression. This bears upon whether a provision that restricts the right is "reasonable".

"The more worthy the activity, the more difficult it is to justify a limit on it. On the other hand, a limit on activity which is harmful to another and far removed from the values embodied in the freedom of expression can more readily be justified." - Lucas para 89.

In this context of political statement the scope of the defence of qualified privilege is relevant.

Generally speaking the defence of qualified privilege requires in the publisher a legal, social, or moral duty to publish the defamatory statement to those who have a corresponding interest in receiving it.

Thus the defence is not available to one who has shouted the defamation from the rooftops instead of confining publication to the legitimately interested recipients.

It follows that publication to all the world via the media is likely to defeat any defence of qualified privilege.

In New Zealand political statements enjoy wide protection. The defence of qualified privilege is available in relation to the general publication by the media of statements defamatory of members of Parliament, past present or aspiring, concerning their fitness to hold public office.

"We hold that the defence of qualified privilege applies to generally published statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to be members, so far as those actions and qualities directly affect or affected their capacities (including their personal ability and willingness) to meet their public responsibilities. The determination of the matters that bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern." - Lange v Atkinson [1998] NZLR 44 at 428.

Unlike the High Court of Australia (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96) the New Zealand Court of Appeal rejected any requirement for the publisher to act reasonably:

"The basis of qualified privilege is that the recipient has a legitimate interest to receive information assumed to be false. How can that interest differ simply because the author has failed to take care to ensure that the information is true?" - p469-470

The decision of the New Zealand Court of Appeal has been considered and followed by the Supreme Court of Samoa in Tofilau (Bisson J at p 27).

Thus, in Samoa, publication of statements to all the world defamatory of members of Parliament, past present or aspiring, that reflects upon their capabilities to meet their public responsibilities is protected by qualified privilege whether or not the publisher acted reasonably provided that he is not shown to have been actuated by express malice.

Thus it is the case that in the area of political statement where there is a high value placed upon the right of freedom of expression, the criminal law which impinges upon that right is itself restricted in its application by a widely available defence. Thus is some balance achieved between the right to freedom of expression on the one hand and the right to preservation of reputation on the other.

Notwithstanding the wide scope of the defence of qualified privilege, unpalatable features of the Samoan offence of defamatory libel remain.

Principal among them is the feature that truth is no defence unless the defendant can show that publication was for the public benefit.

In a time when the preservation of public order was the legislative objective of restricting freedom of expression, a restriction upon the right to publish the truth could be readily regarded as a reasonable encroachment upon freedom of speech and expression. Violence was no less likely to ensue because the seriously defamatory publication happened to be true. Indeed "the greater the truth the greater the libel" and the greater the likelihood of violent retribution.

Where, however, the legislative objective is the protection of reputation, the justification for a restriction on the right to publish truth is less apparent.

Why should a citizen be subject to criminal sanction because he has seriously damaged the reputation of a fellow citizen by publishing the truth about him?

The answer lies in the importance placed upon protection of reputation from serious harm.

That importance, and the damage done by the seriously defamatory publication, are not diminished simply because the reputation may not be deserved.

Nevertheless it cannot be denied that, in considering the weight to be given to freedom of speech and expression, the freedom to publish truth is of far greater value than the freedom to publish falsehood. The right to publish truth should not be readily encroached upon.

An appropriate balance might therefore be achieved by allowing for the publication of seriously defamatory truth where such publication serves some public interest. Publication of seriously defamatory truth is to remain prohibited where it serves no good purpose and amounts to no more than the gratuitous destruction of a person's good name.

In Samoa freedom of speech and expression will prevail over the right to protection of reputation where the publication of seriously defamatory truth serves a public interest. Where no public interest is served by the publication, protection of reputation prevails.

Moreover, it is not to be overlooked that preservation of public order might well survive in Samoa as a legislative objective to be promoted by proscribing the publication of seriously defamatory truth.

If that is so then a restriction upon the right to publish truth might more readily be described as a "reasonable" restriction upon freedom of speech and expression than would be the case if protection of reputation were the sole objective.

"Public benefit" has been described by the English Law Commission as "remarkably vague in content and unsuited to be a criterion for criminal liability". (See Report on Criminal Libel September 1985 cited above.) That assessment commands respect.

Nevertheless it may be observed that the phrase has caused little trouble in the United Kingdom since it appeared in s 6 Libel Act 1843 (Lord Campbell's Act). No reported cases have grappled with its meaning.

In Australia "public benefit" has been interpreted to mean that the public generally who are interested in the publication benefit thereby. M'Isaacs v Robertson 35 S.C.R. 51 per Stephen CJ noted in NSW Digest (1862-84) 283 at 285.

In the end, understanding of a simple concept is not assisted by paraphrase. Like the term "reasonable doubt" the meaning of the term "public benefit" is not advanced by elaboration.

In any given case, whether the publication can be said to be for the public benefit or not is unlikely to be difficult to determine as the dearth of reported cases on the subject would seem to indicate.

That the burden of proof of truth and public benefit should both rest on the defendant has been criticised, not only by the English Law Commission, but also by Lord Diplock in trenchant terms in Gleaves v Deakin.

"The examination of the legal characteristics of the criminal offence of defamatory libel as it survives today, which has been rendered necessary in order to dispose of this appeal, has left me with the conviction that this particular offence has retained anomalies which involve serious departures from accepted principles upon which the modern criminal law of England is based and are difficult to reconcile with international obligations which this country has undertaken by becoming a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (cmd.8969).....

My Lords, under article 10.2 of the European Convention, the exercise of the right of freedom of expression may be subjected to restrictions or penalties by a contracting state, only to the extent that those restrictions or penalties are necessary in a democratic society for the protection of what (apart from the reputation of individuals and the protection of information received in confidence) may generically be described as the public interest. In contrast to this truth of the defamatory statement is not in itself a defence to a charge of defamatory libel under our criminal law; so here is a restriction on the freedom to impart information which states that are parties to the Convention have expressly undertaken to secure to everyone within their jurisdiction. No onus lies upon the prosecution to show that the defamatory matter was of a kind that it is necessary in a democratic society to suppress or penalise in order to protect the public interest. On the contrary, even though no public interest can be shown to be injuriously affected by imparting to others accurate information about seriously discreditable conduct of an individual, the publisher of the information must be convicted unless he himself can prove to the satisfaction of a jury that the publication of it was for the public benefit.

This is to turn article 10 of the Convention on its head. Under our criminal law a person's freedom of expression, wherever it involves exposing seriously discreditable conduct of others, is to be repressed by public authority unless he can convince a jury ex post facto that the particular exercise of the freedom was for the public benefit; whereas article 10 requires that freedom of expression shall be untrammelled by public authority except where its interference to repress a particular exercise of the freedom is necessary for the protection of the public interest." - 667-668

Lord Diplock went on to lament that the bringing of private prosecutions "has brought into the light of day the present sorry state of the law of criminal libel in this country". (667-668)

It is, of course, the case that Samoa is not a signatory to the European Convention. That does not rob His Lordship's criticism of its sting.

It may well be the case that the law of criminal libel in Samoa is in need of substantial reform. It may well be the case that, if the Samoan Parliament were to reassess its objectives and the means of achieving them, a very different law of criminal libel might be codified.

That is not the business of the Courts. Whether a "better" or "more enlightened" law of criminal libel might not be fashioned is not the issue.

The issue is, given the present Parliamentary objectives that have been identified as underlying the legislative refinements to the common law of criminal libel, does the current state of the law impair the right of freedom of speech and expression any more than is necessary to achieve those objectives?

Put another way, the question is not whether the current law of criminal libel is the best that can be created but rather whether the law we have is a reasonable restriction on a constitutional right.

That question is not to be answered according to rigid and inflexible standards. The law is not to be struck down as an excessive encroachment upon a fundamental freedom just because it does not impair that freedom to the absolute minimum extent possible.

".... in describing the criteria comprising the proportionality requirement, the court has been careful to avoid rigid and inflexible standards. That seems to me to be essential. Given that the objective is of pressing and of substantial concern, the legislature must be allowed adequate scope to achieve that objective. It must be remembered that the business of government is a practical one. The Constitution must be applied on a realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane. In interpreting the Constitution, Courts must be sensitive to ... 'the practical living facts' to which a legislature must respond. That is especially so in a field of so many competing pressures as the one here in question." R v Edwards Book [1986] 2 SCR 713, 55 CR (3d) 193 at 259 La Forest J.

Placing upon the defendant the burden of proving the defences that Parliament has allowed does not amount to an unnecessary impairment of the right to freedom of speech and expression.

Indeed, to place the burden on the prosecution to negative truth and public benefit beyond reasonable doubt could well compromise the accomplishment of the Parliamentary objectives - see the references to Keegstra and to the McKay Committee on Defamation under "Right to a Fair Trial" below.

In the final analysis I am not persuaded that the law of criminal libel as it stands in Samoa impairs the right to freedom of speech and expression any more than is necessary to accomplish Parliament's objectives.

It follows that the law of criminal libel in Samoa is a reasonable restriction upon the exercise of the right to freedom of speech and expression.

Unlike Article 13 freedom of speech and expression, Article 9 right to a fair trial contains no limitation clause justifying encroachment on the right. That right includes the presumption of innocence:

(3) Every person charged with an offence shall be presumed innocent until proved guilty according to law.

Even though an express limitation on the right is absent provisions such as Article 9(3) are considered to have an implicit degree of flexibility.

This implicit flexibility allows a balance to be drawn between the interest of the person charged and the state - Attorney-General of Hong Kong v Lee Kwong-Kut [1993] 3 WLR 329, 341 (Privy Council).

The golden thread to be found throughout the web of the English criminal law that it is the duty of the prosecution to prove the prisoner's guilt was expressed by Viscount Sankey LC in his famous statement to be subject to any statutory exception:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. -Woolmington v Director of Public Prosecutions [1935] AC 462, 481.

Such statutory exceptions include provisions for reverse onuses of proof. Whether such provisions achieve a fair balance between the interests of the person charged and the state will depend upon "whether, under the provision in question, the prosecution is required to prove the important elements of the offence: while the defendant is reasonably given the burden of establishing a proviso or an exemption or the like......" Lee Kwong-Kut 344.

The essential elements of the offence of criminal libel have been identified. The prosecution bears the burden of proving them beyond reasonable doubt.

Issues such as truth, public benefit, privilege, and fair comment are no part of the elements of the offence.

These are matters of "exemption or the like" of which the burden of proof may reasonably be placed upon the defendant.

Indeed, with regard to the defence of truth, the Supreme Court in Keegstra upheld the reverse onus as a reasonable limit upon the presumption of innocence because "if the defence of truth were too easily available then the pressing and substantial objectives of Parliament in preventing such harm (from hate propaganda) would suffer unduly" - head note p 7.

In New Zealand the McKay Committee on Defamation 1977 considered the reverse onus provision in relation to the defence of truth and concluded that, to change it, was undesirable because of the "difficulties of proving negatives under the laws of evidence" - Lange v Atkinson [1997] 2 NZLR 22.33. Elias J.

The law of criminal libel in Samoa and the reverse onuses of proof for which it provides do not infringe the applicants' constitutional right to a fair trial.

Mr Stevens submits that it is a principle of fundamental justice that no law may be so vague and uncertain that an accused person would find it difficult to defend the charge against him or her. Such a vague and uncertain law would offend against Articles 6(1) and 10(1) of the Constitution:

10(1) No person shall be convicted of an offence other than an offence defined by law.

In Lucas it was said that a law is vague if it does not provide "an intelligible standard according to which the judiciary must do its work" and, further, a vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria (para 29). However, at paras 36-39, a note of caution was sounded. Words and phrases may not always be measured with scientific precision. All an enactment can do is enunciate some boundaries which create an area of risk. The conclusion that the words of a statute might be subjected to various shading of interpretation did not mean that they were unacceptably vague. Finally:

"The Court will be reluctant to find a disposition so vague as not to qualify as "law" under s 1 in limine, and will rather consider the scope of the disposition under the "minimal impairment" test." -para 39.

Those elements and the available defences have been identified in this judgment. The fact that they are not readily apparent does not render the law "vague". Neither does the fact that the common law is uncertain in the sense that it continues to evolve, render the law so vague that it should be struck down as unconstitutional.

It is true that phrases such as "public benefit" lack precision as does "serious" defamation but those are matters best considered under the test of "reasonableness" of the legislative restriction of the right to freedom of expression.

I would decline to strike down the common law offence of criminal libel as refined by statute on the grounds of vagueness.

Mr Stevens submits that s 84 Crimes Ordinance 1961 and s 17 Defamation Act 1992/1993 together constitute an improper restriction on "political or other opinion" thereby breaching the provisions of Article 15(2).

15(1) all persons are equal before the law and entitled to equal protection under the law.

(2) Except as expressly authorised under the provisions of this Constitution, no law.... shall either expressly or in its practical application, subject any person or persons to any disability or restriction.... on grounds only of...... political or other opinion.....

The submission was not developed but neither was it abandoned, therefore be dispatched. It should therefore be dispatched.

Article 15 is directed against laws which discriminate between people upon certain grounds including their political opinions.

The offence of criminal libel is a creature of the common law as refined by the Crimes Ordinance and the Defamation Act. The law of criminal libel applies to everyone. No-one may seriously defame another. The fact that the defamatory publication occurs in the context of the expression of a political point of view is no excuse. The law makes criminals of those who commit a criminal act - not those who express political opinions.

In any event, even if the impugned laws were discriminatory, Article 15(4) is a complete answer to the constitutional challenge, at least as far as the common Law and s 84 Crimes Ordinance 1961 is concerned (the Defamation Act post-dates Independence Day).

4. Nothing in this Article shall affect the operation of any existing law or the maintenance by the State of any executive or administrative practice being observed on Independence Day:

Provided that the State shall direct its policy towards the progressive removal of any disability or restriction which has been imposed on any of the grounds referred to in Clause (2) and of any privilege or advantage which has been conferred on any of those grounds.

If the common law and s 84 are discriminatory, whether standing alone or in combination with s 17 Defamation Act 1992/1993 then, as an existing law at the date that the Constitution came into force, it survives subject only to the obligation upon the State to progressively remove the discriminatory legislation.

I am satisfied that the offence of criminal libel as it exists in Samoa, a creature of the common law with statutory overlay, infringes the applicants' constitutional right to freedom of speech and expression. That infringement, however, is justified as a reasonable restriction on the right and is not therefore inconsistent with the Constitution.

I am further satisfied that the offence of criminal libel as it exists in Samoa does not infringe any of the applicants' other constitutional rights.

The order staying the hearing of the criminal libel charge against both applicants is vacated. The matter may proceed to trial.

Leave is granted to the respondents and the Attorney General to file and serve written submissions as to costs within 20 working days of the date of delivery of this judgment. The applicants will have a further 20 working days to file submissions in reply.

Leave is reserved to the parties and to the Attorney General to apply generally for any further orders or directions consequent upon this judgment.

Mai lo'u aumau ai i nuu ese, mo Ekalesia e fia i Sisifo ma Sasa'e. o auega lava nei i Korinito, o mea uma na a'u va'ai i ai i a'u miti.

Ona a'u nofo-tata a'e ai lea i luga, ma a'u iloa atu se tagata o tagi lotulotu, ae ou te le'i mautinoa, poo ai, ae pe aisea, fo'i?

Na a'u faalogo fo'i lea i le 'au-tusiupu ma le 'au-toea'i'ina, ua latou osofa'i i lona Malo, talu Ie Tusi uliuli e i ai le ata o loo feavea'i solo, e le 'au-mata puiti. Na a'u fesili atu fo'i lea i Ie na i lona itu vaivai, poo fea eo mai ai nei tagata?

Faauta, ua latou faailoa mai, o nisi emaii Asia i Sasa' e, ma Asia lata maio Na a'u va'ai fo'i i atumauga o Ao Papa'e (Aotearoa) i se ua faamaufaailogaina, oi lona
muaulu mata'itusi o le SIS o fautuaina lona Malo, e uiga i nei tusi uli Jaiti, ua faatau i tupe e miliona ma miliona o Tala ($) Amerika.

Ona auina mai ai lea mo a 'u se ua onomea i ana lava teuga ma tautala maio Ona a 'ufesili atu ai lea i Ie alii poo ai ea ja, a o feafo 'j Ie toeaina, ua seasea lava ona
toe va 'aia i Ie Televise Samoa pe faafofogaina fo 'i lona tagivale i Ie Leilio 2AP, aemaise ai lona ata i lana nusipepa o Ie Savali?

Ona tulei mai ai lea o ia, 'O a'u lava lenei ua ia filifilia e avea ma ona fofoga tau momoli, o ia, aemaise lona Malo.

'Ona a'u matua tete'e ai lava lea, aua, ou te le i fai atu lava mo lenei, pau lea, afai ua suamalie mo ia le faaaoga o meatotino faitele a Ie atunuu, e le agava'a fo'i la isea se avanoa mo le Ta'ita'i o le Itu Agai, e saunoa ai i le Televise Samoa, le Leitio 2AP, poo le nusipepa foi o le Savali?

Ua a'u nofo tata a'e lea ma a'u tautala to 'atasi ai lava, 'Aisea, najia Palemia ai, ae ua lefaa-Palemia lona 'ai 'aiuli lea ua tojia e avea mafofoga o le Malo?'

Ona a'u saga 'ata faamaela to 'atasi ai lava lea, aua ua atagia mai ua matua le mautonu nei lava ma gapelu si alii. ua faasolo ina gase lona pa'u i faiga a le nusipepa lenei o le Samoa Observer.

Ona a 'ufai atu ai lava lea, 'Go Samoa Observer! Go Samoa Observer! Hit him! Hit Him hard he'll soon crumble to pieces.

Ona a'u tomumu lea pe aisea ua a'u faa-Igilisi ai fua lava, ae Ie faa-Samoa pea. ana a'u tago ai lava lea o a'u ia, ua matua po la'u gutu toetoe lava a mafa'i i la'u lima agavale, ma ua matua tiga ai lava lea e pei o le tiga o le taina o se tatau a se soga'imiti.

Ona o'o mai ai lea o le pogisa faafuase'i ilea vaipanoa i lea lava itu aso, e peiseai o le i'uga lea o le lalolagi.

Peita'i, na pei o le pa mai a se faititili le ta 'alili, pau mai o le si 'ufofoga o Tulisapelu le Tupu Tama 'ita 'i o Seoli, ma a'u iloa atu fo 'i le ti 'apolo o tau faapili mai i ona tua ma faapea mai, 'Faauta! Sauni! Nofo sauni nei loa ua le o toe mamao ni ona aso i le foga 'ele 'ele, ona matou faatasi ai lea linei, aua o lena ua saga valevale matua lava ia, ma ua toeitiiti lava ona maliu faafuase 'i lea ua so 'a ele namu... ia po o le lago fo 'i. Amene. Amene. Ma toe Amene.

Ona a'u to'otuli ai lea ma moe'i'ini a'u mata, ona ua i'ivi lava nei mata e faafesagai ma le meaola, ma a'u faapea atu ai lea, 'Tama, a o afea e tuli ai e le tamaloa le ua tofia e avea ma fofoga o le Malo e faapei fo'i ona ia faia i le Pule ma Su'etusi Sili......" po o le Komesina fo'i o Leoleo? le tamaloa i Ie suiga o le Tulafono Faavae o le atunuu, ma alualu 'ese atu ai lava i fafo ma le Ma'afala le Pule ma Su'etusi Sili.'

Ona a 'u iloa atu fo'i lea o le ti 'apolo o suigia'i solo mai i lala ku 'ava o le faato 'aga i Etena, ma faaetoeto taufaalili mai lona laulaufaiva e peaisea'i o fai mai, 'o ia lava lenei e le gata ina oti Ie agaga, oti le tino, a o le a faapena fo 'i ona oti atu ai ma le oga'ele 'ele e ta 'oto ai lona tino, o le a matuafaamalaiaina e le toe ola ai lava se tapa 'a Samoa.

Ona a'u fesili atu ai lea, ae pe faapefea la le 'ai'aiuli-Ona tali mai ai fo'i lea o Satani, a le alofa fo'i ia ma fai mea pi'opi'o tau faa' ole' ole ia Samoa, o lena i'uga lava lena.

Na a'u toe fesili atu fo'i lea pe faapefea le toeaina i le Falema'i? Ona fai mai ai lea o le ti'apolo o le a faasaoina lava leaga ma te suaf faatasi.

Ona a'u matua faafitioti ai lava lea i le ti'apolo, ou te matua leiloa lenei tagata. Ona matua osoliliu ai lava lea o le meaola i le te'i ma suigi mai lea sukamolo ilea sukamolo, ma vala'au mai pe ou te fia 'ai i se sukamolo pula ve'ave'a.

Ua faapea fo'i ona tali mai le ti'apolo e faapena lava ona faia i ai, pe a le 'alo ese i latou mai faaosoosoga i totonu o le Maota, o lona uiga, ia 'aua lava ne' i toe faalogo pe toe fefe i le Palemia, ae ia faia lava ona tiute ma ana faai'uga, e tusa ai ma lona malosi faaletulafono, tuto'atasi faa-Palemene e faamalumalu ai i lona
tofiga e avea ai o ia ma Ofisa Sinia o le Palemene, ae le o se sui o le HRPP.

Ua lulu le ulu o le ti'apolo ma agatonu mai ai lea ia te a'u ma musumusu mai i la'u taliga i lena lea malu taufaase'e e peisea'i o faatosina mai i la'u agaga mo lona ia lava Malo.

Peita'i sa ia le mafai lava ona gausia atu ai la'u nei faatuatua e ui lava ina e sease a ona a'u alu i le lotu i Aso Sa (e tutusa pau ai lava i ma'ua ma le Faatonu o lenei nusipepa o le Samoa Observer).

Fai mai le meaola, 'Afai o ia lava lenei e vaaia fela 'ua 'iga ma va 'ale le Sa-viii, o loo i ai nei lava mo ia se galuega faapitoa i la 'u nei Malo, na te pulea ai le tufatufaina atu o pea 'apa 'au mo agelu o Seoli ae le o le Lagi,' na saga faarnanino lelei mai lava e le ti'apolo lena mo a'u.

E faatolusefulumalelua ona a'u fesili atu, ona fai mai ai lea o le ti'apo)o, 'Mr Hollywood, e le o gala ea ia te oe se isi?'

Ona tau oso mai lea o la'u ita, peita'i sa mafai lava ona pulea la'u amio ma le onosa'i. Va a'u faatauanau atu fo'i lea, 'Afai e moni au, e te le faailoa mai nei la isea?'

Ua misimisi le aulamu o le ti'apolo ma 'ata taufaapili mai, a ua a'u saga faatauanau atu pea lava se'ia ta'u mai le uiga o lana tupua.

Ona a'u fai atu ai lea poo le toeaina la e i le Falema'i, ae fai mai le ti'apolo ua uma ona a'u ta'u atu lena. Na 'au matua paso ona otegia ai lea o a'u e le meaola ma fail mai, 'Ae gala ea faapefea ia te oe faagutugutulua?'

Ua faarno'i mai mo a'u le ti'apolo ma ia ta'u mai ai se isi fo'i tupua mo a'u i lona faapea mai lea, 'E faia lava ia ma Tua'efu a o lona ltumalo e aofia ai Tua'efu.'

Ua i ai i o'u laugutu le tali o lana fesili peita'i, ua a'u ala ita a'e nei i luga ina ua pasasa le po i lo'u gutu. I lo'u manatu, o le ti'apolo, ae paga lea, ua saga ote mai nei le fafine ma a'u ala ai i luga.

Fai mai le fafine, 'ua faafia ona ou fai atu e fai le lotu moe fai Ie lotu moe ma lou miti so'o? E faapefea ona e maua se filemu pe a le faia sau lotu moe? 'Ona ia saga ote mai lava lea, Pau lea o la'u miti i aitu miti i aitu miti i aitu. Ai fo'i o au teine na ua e moevavale i ai.'

Ua 'ata la'u ava ma ote mai, 'E te saga ta'uta'u mai so'o isea lua te agai ma lua atuga ma lena faipule?'

Ona ou toe manatunatu ai lava lea e faapei ona faia e Letufuga ma Le'aula i i le la tupua lilo na mate'ia e Li'o, e ui laa ina sa moetu ai le tamaloa Si'umu i le malae e pei ona ta'ua i le tusi o le Sliaga a le Va'atele, po o le Findings of the Big Canoe.

Ua faatauanau mai pea mo a'u la'u ava se'i faamatala atu la'u miti sa fai. Ona faapena lava lea ona a'u fai e pei lava ona a'u va'ai atu i ai i la'u miti e pei lava ona a'u faainatalaina atu nei.

Ona taufaapili mai lava lea o ia ma fai maio 'Muamua, sa masani ona e fai mai e te miti ia Iesu, e miti i le 'Aupaia uma ma e miti fo'i i le 'Ausagato ma le 'Ausagata, a o lea ua e miti ia i latou uma i Seoli. Aisea?'..

Ona a'u saga lagona ai lava lea o le fefe i le faamata'u mai o la'u ava, 'Sipela mai la le ULUFOA ta moe aua, o lau miti o soso'o nei, e fai i teine?'

O mea uma lava nei, ua a'u saga va'ai atu pea lava i ai e pei o se faa'aliga i mea e o'o mai ma e ao lava ona tatou mata'itu ne'i tagitu'i i tatou i mauga ma papa e mafuli maio

Manatua Filipaina ma Marcos? Manatua Papua Niu Kini ma Pokenivile na se'i talu ai nei? Manatua Fiti ma Sitiveni Rabuka? Manatua Mobutu Sese Seko ma Kogo?

Aua a fiu le onosa'i, ona o'o mai lea o le ita. A mavae le ita, ona felelei ai loa lea o lima.

From my living in foreign lands, for numerous churches in the West as well as the East. These are wailings in Corinthians which I had seen through my dreams.

I was awakened suddenly and I saw someone crying uncontrollably. I was not sure who he was or why he was crying.

I heard from the scribes and the elders they have attacked his government over the little black book bearing a photo being carried around by the slant eyed ones. I then questioned the individual who was on his weak side where these people came from.

Behold, they have acknowledged some came from far East Asia, and Asia nearby. Then I saw in the mountain ranges of long white clouds (Aotearoa) an individual with the letters SIS marked on his forehead giving counsel to his government on these black books being sold for millions and millions of US dollars.

Then it was brought forth to me a suitable and well adorned individual who came and talked to me. I asked this man who he was and what ever happened to the old man who is hardly ever seen on Televise Samoa, or his cries heard over Radio 2AP or his picture in his newspaper, the Savali?

The man said, "I have been chosen to be the spokesperson, for him and in particular his government".

I vehemently protested for that was not asked for, if he has found it sweet to use public resources would it not be fitting to allow the Leader of the Opposition the opportunity to speak on Televise Samoa, Radio 2AP or his newspaper, the Savali?

I was suddenly awakened and said to myself, "Why remain the Prime Minister when the government spokesperson should be appointed Prime Minister?

Then I laughed aloud because it appeared he was undecided, exhausted and tiring from the actions by the Samoa Observer newspaper.

I then said, "Go Samoa Observer Go! Go Samoa Observer Go! Hit him! Hit him hard he'll soon crumble to pieces. "

I moaned to myself and wondered why am I speaking in English instead of Samoan. I then slapped my own face so hard I almost broke it with my left hand. I suffered pain just as excruciating as that inflicted on an individual being tattooed.

And like roaring thunder came the voice of Tuisapela, the reigning Queen of Sheol, I saw the devil teasing from behind who said, "Behold! Prepare and remain prepared as his days on earth are numbered, soon he would join us here as he is increasingly rambling incoherently from old age and may soon suffer a sudden death from being hit by a mosquito or a fly. Amen, Amen and Amen.

I then knelt with my eyes closed, as my eyes have grown tired from looking at the beast I said, "Boy, when is he going to get rid of the government spokesperson, like he did to the Controller and Chief Auditor and the Commissioner of Police?"

If it is easy for the camel to go through the eye of a needle, so it has been easy for the man to amend the Constitution of the country and thereby oust from under the breadfruit tree the Controller and Chief Auditor.

I had also seen the devil swinging around the branches of a kuava tree in the Garden of Eden pointing its tongue out as if saying, "This is the one who will not only die spiritually and physically but also the piece of earth in which his body will be buried will be barren, that even Samoan tobacco will not grow on it. "

I then asked about how his sidekick was? And the reply from Satan if he does not love, if he acts corruptly and deceitful to Samoa, he could also suffer the same fate." I then asked how the old man at the hospital was? The devil said, "He would probably be saved by his title Misa, because you see, we share the same name."

I then vehemently denied before the devil that I absolutely do not know this person except that his ancestors were related with those of the Leader of the Opposition. The devil then jumped in surprise swinging from one sukamolo branch to another; and he called to me if I wanted to eat a fully ripe sukamolo fruit.

I then asked about the Speaker and other Ministers. The devil replied he would suffer the same fate if he does not refrain from the temptation in the House meaning that he should not listen to or fear the Prime Minister but carry his job and make his decisions independently according to the legal parliamentary authority vested in him and thus he will be honoured as a senior member of Parliament not as a member of the HRPP.

The devil shook his head. He turned to me, whispered in my ear in his very soft gentle and deceitful voice as if he was tempting my spirit for his kingdom.

But he was unable to penetrate my faith although I rarely go to church on Sundays (A habit I share with the publisher of the Samoa Observer newspaper).

The devil added, "If this is the one who is the Minister of Transport and Civil Aviation, I have in my kingdom a very special job for him as the person who will be in charge of distributing pairs of wings for the angels, the angels of Hell not angels of Heaven, the devil made that point perfectly clear.

I had asked him thirty-two times when the devil said, "Mr Hollywood, are you not forgetting anyone else?

I was getting angry but I managed to control myself and was patient. Then I said to him, "If I was right why don't you acknowledge it?"

The devil chuckled and smiled teasingly as I beseeched him to give me the answer to his riddle.

Then I asked him if it was the old man at the hospital but he said I had already spoken on that. I got puzzled but the devil scolded me and said, "How can you not remember those who talk with a forked tongue?".

To which I replied "Aren't there thousands and thousands of those in Parliament."

The devil agreed with me then he told me another riddle. He said, "He is always at Tuaefu and his district includes Tuaefu."

I had the answer right on tip of my lips but I was angrily awakened with a powerful slap on my face. First I thought it was the devil but it was my wife who was scolding me as I was getting up.

She said, "How many times have I asked you to say a prayer before you go to bed so you don't dream?" How can you possibly get a peaceful sleep when you don't pray? "You always dream about ghosts I bet you were talking in your sleep about your girl friends."

My wife laughed and scolded me and said, "You keep talking about that representative as if you two were related let alone the fact that you are not even in the same age group."

Then on second thoughts I was reminded of Letufuga and Lea'ula and the case of their great riddle that Li'o had guessed correctly though the man from Siumu had slept while talking standing up in the village green as in the book, The Findings of the Big Canoe.

My wife urged me to tell her about my dream. So I did as I had seen in my dream just as I am describing now.

My wife said, "First you dreamed about Jesus, all the Saints, the "'Au Sagato and the 'Au Sagata," and now you dream about all those in Hell, why?"

I was overwhelmed and overcome with fear as a result of my wife's threats, "Spell ULUFOA broken head hit whilst you are asleep as my next dream is going to be about women."

These are the things I saw and revelations of events to come and those we must guard against lest the mountains and the rocks fall upon us.

Remember the Philippines and Marcos? Remember Papua New Guinea and Bougainville most recently? Remember Fiji and Sitiveni Rabuka? Remember Mobutu Sese Seko and Congo?

Because when patience runs out, anger arises. And when anger vanishes fist fights erupt.

28 October 1960	the Constitution was enacted.
16 December 1961	the Crimes Ordinance 1961 was enacted.
1 January 1962	both the Constitution and the Crimes Ordinance 1961 came into force.