Commissioner hasn’t breached duties, termination not warranted, lawyer argues

“Like any big organization, there are times when they are faced with issues due to the poor work performance of the workers. The most likely person the public looks at to blame is the head of the organisation even though he/she is not personally responsible. The Ministry of Police is no exception”

Diana Roma, the lawyer representing the suspended Commissioner of Police, Lilomaiava Fou Taioalo, before a Commission on Inquiry looking into his performance, is steadfast.

She believes the allegations against her client have not been proven and therefore his services should not be terminated. The point was made yesterday during the last day of the Commission of Inquiry.

The Commission is chaired by the Ombudsman, Maiava Iulai Toma. The other members of the Commission are Gatoloai Tili Afamasaga and Su’a Tanielu Su’a. They are being assisted by lawyers, Sine Lafaiali’i-Koria and Sefo Ainu’u from the Office of the Attorney General.

Yesterday, the lawyers made their final submissions, wrapping up the three-week Inquiry.

“To conclude, the Commission may find at the end of the inquiry that there are short coming in the performance of the Commissioner but our submissions are that the Commissioner offered reasonable explanations towards the matters raised in light of the Tafaigata report which we submit does not amount to a breach of his duties,” Mrs Roma argued.

“We also submit that the complaints made during the previous inquiry are not necessarily representative or indicative of the public’s view of the Commissioner ability to perform his duties. Least it is forgotten that there are other duties that were well performed by the Commissioner for the good of the Ministry and the community as a whole.”

According to Mrs Roma, given the magnitude of the Ministry, “the Commissioner may at times delegate his authority to his subordinates. Like any big organization, there are times when they are faced with issues due to the poor work performance of the workers. The most likely person the public looks at to blame is the head of the organisation even though he/she is not personally responsible. The Ministry of Police is no exception.

“All in all, we respectfully submit that the allegations against the Commissioner does not amount to a breach of his duties or affect the confidence of the public in his abilities and therefore should not form the basis to terminate the Commissioner’s service.”

Mrs Lafaiali’i Koria disagreed. She argued that a number of allegations against the Commissioner were proven and that he failed to conduct his duty appropriately.

In the end, Chairman Maiava closed Inquiry, saying their report will be submitted to Cabinet next week.

Here is Lilomaiava’s lawyer’s submission in full:

INTRODUCTION / BACKGROUND

This Commission of Inquiry (COI) was a direct result of the COI for Tafaigata Prison. The later was prompted because of an anonymous ghost letter alleging misconduct by Police officers within the Tafaigata Prison.

The COI for Tafaigata heard from 144 witnesses consisting of police officers, prisoners, former prisoners and members of the public. The Commissioner through his counsel requested that he be cited as a party to the inquiry before it started since it was an inquiry into allegations of mismanagement and misadministration of the Tafaigata Prison and other related issues. The Commissioner has a right to hear allegation concerning him and be able to defend himself in person or through counsel. The COI noted this concern by the Commissioner but denied his request stating that the inquiry may not be able to fully discharge its duties if he was made a party.

However, he was given the chance to appear before the COI and give evidence in his defence if he was adversely affected by any evidence. We felt that this was not the same as most people say something that is often false if the person concerned is not present. This is especially true in cases where people hold grudges and are very bitter. The Commissioner was until at the very late stages of the inquiry cited as a party. The Commission completed its inquiry and submitted its report to Cabinet in February 2014.

Cabinet in its meeting of 6 May 2014 considered the report and found that there were matters that were not covered in the previous inquiry. It confirmed that a new COI be established under section 55 (4) of the Police Services Act 2009 to inquiry into the performance or capacity of the Commissioner. Section 55(4) states that “[b]efore a decision to terminate under subsection (1) an inquiry into the performance or capacity of the Commissioner…shall be undertaken: (b) as is otherwise determined by the Prime Minister, after consulting with the Attorney General, provided that, in the case of the Commissioner only, the Ombudsman is made an additional member of any Committee of Inquiry appointed by the Minister or the Prime Minister under this Act to consider any matter relating to the disciplining of the Commissioner”

The COI consists of the same members as the previous inquiry and their terms of reference (TOR) were to:

Inquire into the capacity and performance of the respective duties of the Commissioner of the Samoa Police Service, Lilomaiava Fou Taioalo (the Commissioner”) by:

Inquiring into the conduct and performance of the Commissioner in light of the findings in the COI – Tafaigata Report February 2014; and

Inquiring into whether the conduct of the Commissioner in paragraph (a)(i) above breached the respective duties of the Commissioner; and

Inquiring into whether, in paragraph (a)(i) above, the Commissioner behaved in a manner likely to affect the confidence of the community in the respective abilities of the Commissioner

Report back to Cabinet within 4 weeks on matters relating to its findings in paragraph (a) above; and

Make recommendations to Cabinet based on its findings in paragraph (a) above, regarding the appropriate action to be taken by Cabinet with regards to the Commissioner.

Counsel Assisting in her opening submissions stated that they were relying on the report of the COI - Tafaigata and will not be calling any witnesses. However, they will be asking the Commissioner questions concerning issues or allegations from the report. Given that it was a new inquiry with new TOR our concern regarding the process was raised to the Commission. We submitted that a fresh process should be made to the inquiry by calling witnesses in the presence of the Commissioner and allowing him the opportunity to cross examine. The COI had heard evidence in the previous inquiry and was relying on that evidence in dealing with the present new inquiry. The risk in our respectful view was that in the previous inquiry, the Commissioner was not until at a very late stage made a party. The Commission noted our concern but continued as is. We also raised the concern that the Commissioner needs to be informed of particulars of allegations, if any, relating to breach of his duties and the diminished public confidence in him.

ALLEGATIONS / ISSUES
MATTERS RELATING TO TAFAIGATA PRISON

Absence / lack of regulations, Policies, Guidelines pursuant to the Prisons Act 1967 which governs the management of the Tafaigata Prison (p9 of Tafaigata Report)

Pa Sima – only the Commissioner can put someone in the pa sima, when in reality any officer can do this.

Weekend parole – no guidelines/policy in place regarding determination of how one is entitled to this (section 26 – the Commissioner may issue prison rles and general instructions for the guidance of the officers and members of the Service and prisoners provided such rules and instructions are consistent with the Act)

Treatment of prisoners – different treatment of prisoners – e.g. case of Semi Samau

Dalton case

The handling of the Dalton case

Action which followed after the death of Dalton

Action regarding the handling of mental patients by the Police

Officers at Tafaigata

Absence of a Contract of employment for former AC Tafaigata – how is the AC’s performance reviewed by the Commissioner as the head of the Police Service?

Interaction between Officers and Prisoners

Handling by the Commissioner of the prisoner’s project money as highlighted in the Auditors report 2012-2013

The problem with the lack of Officers at Tafaigata – what action was taken if any to curb this

Senior Officers drinking in compound such as the Superintendent at Tafaigata – what action was taken

MATTERS RELATING TO THE MAIN SERVICE

No contract for all the Assistant Commissioners

Professional Standard Unit (PSU) - a number of cases which have been left open, no action, irregularities in the way things handled by the PSU. Monitoring by the Commissioner of the work of the PSU as the head of the Police Service.

Examples;

Lotu tamaiti in lock up