Some senators unhappy with AG’s response to Senate resolution requesting an IP

Pago Pago, AMERICAN SAMOA — Attorney General Fainu’ulelei Alailima-Utu has finally responded to the Senate resolution submitted to his office last month, requesting that he petition the Chief Justice to appoint an Independent Prosecutor to investigate the misuse of the unbudgeted and unobligated revenue of Fiscal Year 2023.

However, the AG’s response has further infuriated the senators.

In his letter to Acting Governor Laapui Talauega E.V. Ale, AG Fainu’ulelei specifically mentions Government Treasurer Malemo Tausaga’s name as the individual to be investigated by the Independent Prosecutor.

“This is formal notice that the Attorney General’s Office filed last Friday afternoon March 1, 2024, an application to the High Court for Appointment of an Independent Prosecutor regarding Treasurer Malemo Tausaga’s alleged violation of the anti-deficiency law under the American Samoa Code Annotated (ASCA) 10.0601.

“I am grateful to Governor Lemanu and you for allowing my Office to do our work without interference or undue influence,” the AG wrote.

Senator Malaepule pointed that while it was good that the AG had finally acted on their resolution, he expressed his disappointment with the Fainu’ulelei’s letter and the mention of Treasurer Malemo’s name without any investigation on his part to justify it.

“My understanding of the law is that one is presumed innocent until proven guilty,” Malaepule quoted. “And the attorney general of all people should be aware of this. However, he has specifically alluded that Treasurer Malemo Tausaga had allegedly violated the anti-deficiency law without any mention that he had conducted a preliminary investigation and that according to his findings, there is sufficient evidence which warrants a detailed but fair and impartial investigation by an Independent Prosecutor.”

Senator Togiola T.A. Tulafono echoed Malaepule’s sentiments and quoted Section 4.0802 (e) of the American Samoa Code Annotated which he explained spells out in detail, the steps that must be included in the AG’s petition to the court.

Togiola declared that the AG’S letter does not follow these instructions.

“The AG’s letter that we received this morning, does not follow the rules and regulations required by law, and the AG did not carry out the duties required of him before submitting his petition to court,” Togiola stated. “I interpret it as an act of intentional dishonesty and I suspect his petition will be denied by the court because it is unethical and incomplete.

“That is, not only does he forward someone’s name for further investigation for alleged violation of the law without any valid grounds, but he also did not conduct a preliminary investigation to ascertain according to his findings, if the matter should be referred to an Independent Prosecutor for further investigation.”

He explained that it is the Independent Prosecutor’s job to conduct a fair and impartial investigation into the matter and ascertain beyond a reasonable doubt that a certain individual(s) has violated the law, then and only then, will he be able to state the name(s) of that individual in his report and recommendation on what should be done or when charges are filed against that individual.

Togiola expressed his disappointment over what he described as the AG’s lack of diligence and honesty in the performance of his duties, and his disregard for the Senate’s concerns about the misuse of government funds.

“Why does he have to acknowledge the governor and lieutenant governor ‘or allowing my Office to do our work without interference or undue influence’ as he states in his letter?” he asked.

“He doesn’t need to do that because the power vested in the Office of the Attorney General to investigate and make decisions independently is guaranteed and protected under the law!

“Also, if the AG carries out a preliminary investigation and reveals that according to his findings, he has come to a conclusion that there are no valid reasons for the appointment of an Independent Prosecutor to continue the investigation and therefore, the matter will be dismissed, the matter will end there.”

The Vaifanua senator and former governor who is also a lawyer by profession concluded by reiterating that this was due to the power vested in the Office of the Attorney General by the law.

However, he pointed out that if the AG does not carry out his sworn duties, not only does the law become irrelevant and has no bearing in this case, the Senate resolution which raised the issue becomes moot.

Togiola proposed that Senate President Tuaolo Manaia Fruean send a letter to AG Fainu’ulelei informing him of the Senate’s displeasure and to demand an explanation of the discrepancy shown in his petition to the court.

Tuaolo however stated that he is tired of sending letters and suggested that the AG be subpoenaed so that they could listen to what he has to say about the matter.

AG Fainu’ulelei has been subpoenaed to appear before the Senate on Thursday before the Fono takes its mid-term break after Friday this week.