Ua toe faia‘ina foi le Sosaiete a Loia Samoa ina ua toe ave e le alii loia o Tuala Ponifasio i le Faamasinoga Maualuga lana tagi, e solitulafono le toe faasala o ia e aunoa ma ni mafuaaga tatau.
Ina ua faia‘ina muamua le Sosaiete a Loia i le Faamasinoga Apili i le tausaga 2012 lea na faaleaogaina uma ai faaiuga faasolitulafono a le Sosaiete a Loia lea na faasala ai Tuala mo le lua tausaga, na toe faia ai foi e le Sosaiete a Loia se isi faasalaga o le faamalolo lē tumau o Tuala. Ona toe ave foi lea e Tuala lea faaiuga i le Faamasinoga, ina ia faaleaogaina lenei faasalaga sa faia ia te ia, ma ia faia se poloaiga e faapea, o lenei faaiuga a loia e leai sona malosiaga poo se uiga, ona e solitulafono le faiga na mafua ai nei faaiuga.
O le faaiuga o lea faamasinoga sa tuuina mai e le Faamasino Sili, lana Afioga Patu Tiavaasue Falefatu Sapolu i lana faaiuga aso 15 Aperila 2013 na faamaonia ai le lē mulimulitaia e le Sosaiete a Loia o Tulafono a Loia e faavae ma limataitaiina ai galuega ma faaiuga fai a Loia. O lea na poloaina ai e lana Afioga i lana faaiuga tusitusia e faapea:
O le faaiuga lea na faia e le Sosaiete a Loia e faamalolo faavaitaimi ai Tuala, e solitulafono, e leai sona malosiaga ma ua faalēaogāina. I le faaiuga o le vaiaso na tea nei na toe poloaiina ai foi e le Faamasinoga Maualuga ina ia totogi atu uma e le Sosaiete a Loia ia Tuala, tau o le faamasinoga atoa ai ma totogi o loia na tulai mo Tuala e $48,000.00.
O lenei faamasinoga ua toe tulai mai ai foi le tele o faaletonu o lenei Sosaiete i ni faaiuga sa faia e uiga lava i lenei mataupu. Sa fesiligia ai foi le auai o le Loia Sili a le Malo e avea o ia ma sui i totonu o le Fono a le Sosaiete a Loia faapea lona auai i le fonotaga lea sa faia ai le faaiuga e faamalolo faavaitaimi Tuala e aunoa ma se faatagaga faaletulafono i lalo o le tulafono tusia a Loia.
Sa taumafai atu se fesootaiga i Samoa e fia maua se finagalo o le susuga i le peresetene o le Sosaiete a Loia Samoa, Afioga Leota Raydmond Schuster e tusa ai o lenei faaiuga faaiu ua toe tuuina mai e le Faamasinoga Maualuga, peitai e oo mai le taimi ua tuuina atu lenei tusitusiga e lolomi, e lei manuia lava taumafaiga ona sa tali mai se alii i le ofisa, ua oo i le taimi e tapuni ai le latou ofisa mo galuega o le aso. Sa taumafai foi mo se isi sui loia ma o se sui foi o lea Fono, ae o le tali lava lea e tasi, ua manava uma loia.
O vaega nei e tolu poo fesili tetele ia na tuuina atu e Tuala i le Faamasinoga e fesiligia ai le lē amiotonu o le faaiuga a le sosaiete:
• Pe na tuuina atu e le fono a loia ia Tuala se faataatiaga o ni ala manino ma talafeagai faaletulafono e faatautaia ai le faiga o a latou faaiuga. Ae pe na tuu foi e le Sosaiete se avanoa ia Tuala e tali mai ai i sona finagalo e uiga i se mataupu ua fuafuaina e faasaga ia te ia a o lei faia e le fono a Loia le faaiuga e faasala o ia? Pe na talafeagai ma amiotonu foi le auala na faatino ai le faia o le faaiuga e faasala Tuala e tusa ai ma le tulafono o le faamasinotonu e tusa ai o uiga masani (Natural Justice) ina ia fea ma amiotonu le iloiloina o se mataupu a o lei faia se faaiuga? Pe na iai ni mafuaaga tatau na tuuina atu ia Tuala e faailoa atu ai na faavae le faia o lenei faaiuga e faasala o ia i luga o ni mafuaaga tatau ma talafeagai?
• Pe na solitulafono le faaiuga a le Fono a Loia na faia e faasala Tuala i lalo o le Vaega 38 o le Tulafono Tusitusia a Loia, e auala mai lea i le faaaogāina sese e le Fono a Loia o le malosiaga faaletulafono o loo tuuina atu ia i latou i lalo o lea Tulafono?
• Pe na iai se faatagaga faaletulafono e faia ai e na o ni sui se toalima o le Fono se faaiuga e aunoa ma le atoa o le numera o le fono (7) sa tatau ona auai i le taimi e faia ai se faaiuga? A leai, o lona uiga ua solitulafono le faaiuga ma ua tatau ona faaleaogaina.
I se faaiuga tusitusia a le Faamasino Sili, lana Afioga Patu Tiavaasue Falefatu Sapolu, i le aso 15 Aperila 2013 i vaega nei o le talosaga a Tuala, na faamanino mai ai e lana afioga, e solitulafono uma faaiuga a le Sosaiete a Loia ma faamaonia ai solitulafono uma o vaega ia e tolu na tuuina atu e le tagi a Tuala i luma o le Faamasinoga mo sona finagalo.
Ta‘ua e Tuala, e tusa lava pe ua toe foi o ia i lana galuega ma toe faaauau lana auaunaga faaloia i le atunuu ma ua tele foi tupe e faaalu i lenei mataupu, ae tatau lava ia te ia ona faamamā lona igoa.
E tatau foi ona faasa‘o loia nei ua solomua ia i latou ona soli aiā tatau a tagata ae o i latou e tatau ona puipuia aiā tatau a tagata faaletulafono, ina ia malu tagata lautele mai aafiaga faapenei. E talitonu Tuala ana o ni faaiuga e fai i le loto mamā e lē ono tulai mai nei faafitauli ua lē gata ia te ia ae o le Sosaiete a Loia ua tele lona aafiaga ma le matagā.
Atonu ana o se sosaiete a le au suetusi poo ni inisinia ua tatau ai, ae o le Sosaiete a Loia lea e solomua le faaaogā sese o le tulafono i le faatinoga o nei mataupu tau i le tulafono ma fai ai a latou faaiuga sese ma le lē amiotonu.
The Law has spoken – Samoa Law Society decision unlawful – Costs of $48,000.00 to Tuala Ponifasio
The written judgement of His Honour Chief Justice Sapolu released 8 April 2013 outlined His Honour’s reasons for arriving at his conclusions 15 February 2013. The judgment means that the decision to suspend Mr. Ponifasio is void and the order to suspend him by the Samoa Law Society Council is set aside on the grounds of unlawfulness or illegality. The decision can also mean that every decision the Samoa Law Society Council has made in relation to Mr. Ponifasio is deemed unlawful and of no effect.
Take for example the third ground of the argument advance by Mr. Ponifasio in this case that the Council who made the decision to suspend him were made up of only 5 members and did not constitute the whole Council of 7 members as required by the Act therefore no quorum was present and therefore the meeting was unlawful. One of those members involved in the decision was the Attorney General Aumua Ming Leung Wai who is an ex-official member and should not have been in that meeting where the decision to suspend Mr. Ponifasio was made. As a result that meeting was declared illegal by the court because of no jurisdiction. The election of the Attorney General as an ex-official member on the Council was also raised in the proceedings as not in accordance with the Act.
The press conference of Leota Raymond Schuster on behalf of the Society in March 2013, a reaction to the above decision, contained comments such as ‘this is a complaint involving money, misuse of trust funds; we want to protect the public. He also made direct statements against Ponifasio saying this matter is far from over, the society will appeal the decision of His Honour the Chief Justice and take court action against the lawyer. Shuster also said that there will be further charges to be laid against Mr. Ponifasio.
In response to that press conference, Tuala advised the President of the Law Society or the Council of the Samoa Law Society for that matter to think carefully about their proposed actions against him as they are accountable to the members of the society and it’s the members of the Society and the reputation of the society that they represent. Tuala also suggested to the President of the Council to wait for the written judgment of His Honour before they contemplate taking any action.
Now His Honour’s judgment is released, Mr. Shuster and the Council are now fully informed of matters which took place during the hearing. Also by now the Council should be aware that everything the Council had decided on from the start in relation to this case had all been declared and ruled unlawful by the courts.
The question is what is the Law Society going to do next now they have the written
decision of His Honour?
According to Tuala, it is up to them what they want to do but Tuala thinks Mr Shuster and the Council should seek advice from some of the senior members of the society (those who have not been disqualified already by the courts in this process) or refer the matter to the general members of the Society for discussion and advice. This in his view should have been done before the Council of the Samoa Law Society decided to suspend him indefinitely. That decision now ruled unlawful by the Supreme Court last month.
The recent decision of His Honour Chief Justice highlighted the fact that every decision made by the Council of the Samoa Law Society in relation to this matter from day one including the laying of the charges from the outset is invalid and unlawful because they were made by only a few members of the Council and not the full Council. The involvement of the Attorney General in these decisions is also in question.
My advice to the President and those members of the council who have been involved in this matter would be that in the interest of the Law Society as a whole, the council must now seriously reassess its position in pursuing this matter any further. The Council has the evidence from my side and now the council can see both sides of the coin. The council must see that if they had not rushed to prosecute we would not have found ourselves in this mess.
The Council must also consider the following:
• Resources of the Society being spent unnecessarily in pursuing this matter
• The likelihood of the council’s success in determining the two charges that the council had re-laid against Tuala after the court of appeal’s decision last year.
These charges in reality have been outstanding for nearly three years and Tuala is still awaiting a rehearing as publicly stated by the Council after the Court of Appeal and the President Leota Raymond Shuster during his press conference in March 2013.
• Abuse of process and court’s time and everybody’s time
• That Tuala has already served the two year period of unlawful suspension.
• That according to Tuala if it was the Society’s purpose to treat him cruelly using the unlawful process they have put him through and the negative publicity created then the Society has succeeded as the impact and cost of the unlawful suspension has caused him and his family a lot of hardship and pain. They have achieved their purpose in that way.
• The embarrassment this case has caused the Samoa Law Society under the Council’s leadership as questions are now being asked as to the credibility of the society’s disciplinary procedure and decisions of the council. All the grounds Tuala advanced in the recent case have all been made out and the court has ruled against the decisions of the council. Tuala explained, this is not a society of engineers or accountants, it’s a society of lawyers who interpret and argue the law for the public and yet they are using the law wrongly against a member of their own society
• More questions will now be asked as to what had happened to all other complaints involving money against other senior lawyers during the past 3 years in which the secretary of the Law Society Rosella Papalii reported on in one of her interviews with a local reporter in 2010. Tuala said he also has copies of these complaints and they are very serious. They seem to have disappeared or swept under the carpet and using the case against him as a smoke screen. Perhaps we should also have a register of complaints against lawyers accessible to the public for the interest of justice and fairness? One obvious issue is related to Law Society’s secretary Rosella Papalii having been fined by her village as reported by Radio NZ for her affair with a married man, a client of hers and yet she has been a vocal member of the council in newspapers and had been involved in decision making relating to this matter
concerning Tuala. According to Tuala, members have an obligation to report, investigate and discipline members who do this sort of thing and yet the Council has ignored or turned a blind eye to this matter completely.
• It is in all our interests to protect the society from falling into disrepute. There is also a need for the society to accord some protection to its members like Tuala. Tuala said, the adversarial approach the council adopted against him during the tribunal hearing was a sad state of affairs and was a one way move designed to condemn and destroy a member of the society.
• Tuala also said that maybe it’s time for the current president, secretary and those members of the council involved in this matter from the beginning to step down and for a new competent, impartial and objective council to be elected at our end of April AGM.
• There is also a need to prevent further costs and liability to the society According to Tuala, at this point, the Council of the Law Society has made it very clear through Mr. Shuster’s one man press conference in March 2013 that the Law Society will not back down in prosecuting him again. Tuala’s advice to Mr. Shuster is to rethink what you are saying. Read the decision of His Honour and ask yourself if you are still capable of leading the society in handling this matter.
The involvement of the Attorney General in this matter was also questioned at the recent hearing. He has been involved right from the outset and in the decision making of the council when the Law Practitioner’s Act does not permit an attorney general to be in the council of the law society in the first place.
Mr. Ming Leung Wai was also involved in the meeting of a 5 member council that decided to issue an interim suspension order against Tuala. Not to mention that he has been in the forefront of this illegal prosecution from the start.
The decision to issue an interim suspension should never have been made in the first place. If the council had issued my practicing certificate as I was entitled to after the court of appeal’s decision to set aside the Tribunals first unlawful decision and give themselves time to think through what they were going to do next then we would never be in this position right now.
Another question is how the Law Society is going to compensate for the loss that Tuala has occurred as a result of these unlawful decisions which cost him his reputation, income and inability to practice his profession over a long period of time.
What Mr. Shuster had declared in his press conference is what he must now do as justice delayed without cause is an injustice in itself. But I urge the Council to rethink their actions carefully.
