In re the Constitution, Mulitalo v Attorney-General of Samoa [2001] WSCA 8 (20 December 2001)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

IN THE MATTER of the Constitution of the Independent State of Samoa

AND

IN THE MATTER of an application to the Supreme Court
pursuant to Article 4 of the Constitution

AND

IN THE MATTER of an application to the Supreme Court
pursuant to the Declaratory Judgments Act 1988
as certain provisions of the Electoral Act 1963

AND

IN THE MATTER of an application to the Court of Appeal pursuant to Article 80(3)
of the Constitution based on a Certificate given by the Supreme Court
pursuant to Article 80(1) of the Constitution
that the constitutional issue of the consistency of sections 44, 45 and 45A
of the Electoral Act 1963 as inserted by
sections 15 and 16 of the Electoral Amendment Act 1995
with provisions of Article 64 of the Constitution was wrongly decided

BETWEEN

MANOO LUTENA MULITALO
(Falelatai & Samatau), and
TIATIA LELAULU LEOTA
FAUMUINA MAPESONE (Palauli le Falefa)
Appellants

AND

THE ATTORNEY-GENERAL of Samoa
Respondent

Coram: The Hon. Sir Ian Barker, (presiding)
The Rt Hon. Sir Ian McKay
The Hon. Justice Robertson

Hearing: 22 November 2001

Counsel: A J Pereira for Appellants
Attorney-General (Brenda Heather-Latu),
Raymond Schuster and Damas Potoi for Respondent

Judgment: 20^th December 2001

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

The two appellants were part of a group of five matai who commenced proceedings in the Supreme Court which in their eventual amended form sought by various routes:

(a) A DECLARATION by this Honourable Court pursuant to Article 4 the Constitution of Samoa and also pursuant to the Declaratory Judgments Act 1988 that the provisions of section 3 of the Electoral Amendment Act 2000 (No. 8) and the provisions of sections 2 and 3 of the Electoral Amendment Act (No. 2) 2000 (No. 10) are inconsistent with the Applicants' rights under Articles 14 and 15 and the law-making powers of Parliament under Article 43 of the Constitution of Samoa and are therefore void;

(b) AND FOR A FURTHER DECLARATION that section 44 of the Electoral Act 1963 is inconsistent with the clear provisions of Article 64 of the Constitution and the said section 44 is therefore also void;

(c) AND AN ORDER that the Respondent do pay to the Applicants their costs of these proceedings;

(d) Such further or other order as may appear just, and may appear necessary or desirable to give effect to any other order made herein.

The respondent applied to strike out the proceedings and generally opposed the relief sought on the grounds that -

1. THE Applicants have not identified a cause of action in the amended motion for relief:

Particulars

1.1 The Applicants have failed to identify the specific rights or freedoms which they seek to have enforced by this action;

1.2 The Applicants have failed to identify in what manner Articles 14 and 15 are relevant it terms of the general factual allegations which have been made and in particular:

• What property has been taken compulsorily and by whom;

• What right or interest over land or property has been acquired compulsorily and by whom;

• What disability or restriction has been applied to them.

1.3 The amendments to the Electoral Act 1963 cited by the Applicants are made pursuant to Article 45 of the Constitution and are specifically excluded from the application of Article 15(3)(a).

1.4 The amended motion for relief fails to disclose a cause of action under Part 2 of the Constitution for breach of contract, tort or any other cause of action in law.

2. THE Applicants have not clarified that they have standing, to bring the action, i.e. that they qualify as potential candidates under the previous 12 month residential requirement.

3. IN THE ALTERNATIVE the Applicants have not established their claim:

Particulars:

2.1 There is no evidence before the Court to support the general allegations made on behalf of the Applicants namely:

• That the amendments in question have resulted in the compulsory removal or acquisition of any property or interest in property which is owned by the Applicants as required under Article 14;

• That the amendments in question have discriminated against the Applicants specifically and are beyond the exclusion in Article 15(3)(a);

• That the amendments in question have discriminated against the Applicants in any manner including on the grounds of political opinion.

4. THE Applicants have no basis in law to seek to:

• Usurp the authority of Parliament to make laws under Article 43;

• Usurp the authority of the Head of State to issue warrants under section 44 of the Electoral Act 1963.

5. IN THE ALTERNATIVE should the Court find that the amendments have breached any provision in Part II of the Constitution that the Court exercises its discretion to make no grant of relief having regard to the unreasonable delay in bringing the proceedings given that the increase in the residential requirements was assented to on 6 July 2000 and the Applicants proceedings filed on Friday, 26 January 2001 - some six months after the alleged action arose and only five weeks before the conduct of the general election.

Following a hearing on 31 January and 2 February 2001, the Chief Justice in a reserved judgment delivered on 9 February struck out the amended statement of claim was and dismissed the motion for declarations.

The Chief Justice described the background thus -

The five applicants are matais. Each one of them is from a different territorial constituency. All of them having been living overseas. They returned to Samoa at different times more than twelve months ago. Each one with the intention to run in his territorial constituency in the forthcoming general election which is now set to be held on 2 March 2001. The reason for each one of the applicants returning to Samoa more than twelve months ago, was because of a new residential qualification introduced in 1995 to the Electoral Act 1963 for any person who may run as a candidate in a parliamentary election. This new residential qualification is in section 5(3) of the Electoral Act 1963. That provision says that a person will be disqualified from being a candidate at a parliamentary election if he has not resided in Samoa for a period of not less than twelve months at the time his nomination is lodged with the Chief Returning Officer.

Since the return of the applicants to Samoa, Parliament, acting on the report of a parliamentary select review committee, has twice amended the Electoral Act 1963, to change the residential qualification for a person to qualify as a candidate in a parliamentary election.. The first change was made by the Electoral Amendment Act 2000 (No. 8) which came into force on 6 July 2000, the date on which the Act was assented to by the Head of State. That amendment increased the residential qualification period from twelve months to three years. That three year period was to be calculated on the basis that an intending candidate should live in Samoa for at least ten months of each year for a consecutive three year period ending on nomination day for a Parliamentary election. The ten months period for each year would not include any period of temporary absence from Samoa because of official duties. Subsequently, Parliament again amended the residential qualification by the Electoral Amendment Act 2000 (No. 10) which came into force on 7 November 2000, the date on which that Act was assented to by the Head of State. The effect of that amendment was to reduce the period of ten months for which an intending candidate should live in Samoa in each year to 240 days. As a consequence of the first amendment, the applicants are disqualified from being candidates at the forthcoming general election. The effect of the second amendment is to make it more impossible for the applicants to become candidates in that general election.

The applicants feel they have been unfairly treated under the changes made to the residential qualification for someone to become a candidate at a parliamentary election. They say they had arranged their affairs to return and live in Samoa for not less than twelve months prior to the forthcoming general election, on the basis of the then existing twelve months residential qualification.

The Chief Justice considered the challenges which had been advanced on the basis of alleged breaches of Articles 14 and 15 of the Constitution. As much as they are relevant, these Articles provide:

14. Rights regarding property - (1) No property shall be taken possession of compulsorily, and no right over or interest in any property shall be acquired compulsorily except under the law which, of itself or when read with any other law:

(a) requires the payment within a reasonable time of adequate compensation therefore; and

(b) gives to any person claiming that compensation a right of access, for the determination of his interest in the property and the amount of compensation to the Supreme Court; and

(c) gives to any party to proceedings in the Supreme Court relating to such a claim the same rights of appeal as are accorded generally to parties to civil proceedings in that Court sitting as a court of original jurisdiction.

15. Freedom from discriminatory legislation - (1) All persons are equal before the law and entitled to equal protection under the law.

(2) Except as expressly authorized under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status or any of them.

(3) Nothing in this Article shall -

(a) prevent the prescription of qualifications for the service of Samoa or the service of a body corporate directly established under the law; or

(b) prevent the making of any provision for the protection or advancement of women or children or of any socially or educationally retarded class of persons.

Other constitutional provisions which arise for consideration include Articles 44 and 83:

44. Members of the Legislative Assembly - (1) The Legislative Assembly shall consist of:

(a) One member elected for each of forty-five territorial constituencies having such names and comprising such nu'u or pitonu'u or nu'u or pitonu'u as are prescribed from time to time by Act;

(b) Members elected by those persons whose names appear on the individual voters' roll.

(2) The number of members to be elected under the provisions of subclause (b) of Clause (1) shall be determined under the provisions of the Second Schedule.

(3) Subject to the provisions of this Constitution, the mode of electing members of the Legislative Assembly, the terms and conditions of their membership, the qualifications for electors, and the manner in which the roll for each territorial constituency and the individual voters' roll shall be established and kept shall be prescribed by law.

(4) Members of the Legislative Assembly shall be known as Members of Parliament.

Part VII The Public Service

83. Interpretation - The "Public Service" means the service of Samoa; but does not include service remunerated by way of fees or commission only, honorary service, or service in any of the following capacities, namely as -

(a) Head of State; or

(b) a member of the Council of Deputies; or

(c) Prime Minister or a Minister; or

(d) Speaker or Deputy Speaker; or

(e) a Member of Parliament; or

(f) a Judge of the Supreme Court or any other judicial officer; or

(g) Attorney-General; or

(h) Controller and Chief Auditor; or

(i) a member of the Public Service Commission who is not an employee of the Public Service at the time of his appointment to be a member of the Public Service Commission; or

(j) an officer of police or an officer of prisons; or

(k) a member of any uniformed branch of any defence force.

The Chief Justice, in concluding that no breach of the constitution had occurred, noted the specific provisions of Article 44 and the interrelationship between Articles 44 and 15 as determined by this Court in Attorney-General v Sapaia Olomalu and Others [1980-1993] WSLR 41 and Le Tagaloa Pita and Others v Attorney-General (1995) (C.A. 7/95: unreported judgment delivered on 18 December 1995).

In the Saipaia case at 60, it was said:

When the Constitution is considered as a whole, we do not think. that the question is left in any true obscurity. Parliamentary electoral qualifications are a special subject, outside the purview of Article 15 and not dealt with at all in Part II of the Constitution. Such provisions as the Constitution makes on the subject are to be found in Part V.

and later:

We have already given our reasons for holding that Article 15 does not govern parliamentary electoral rights. Accordingly, we see no conflict between it and Article 44(3).

The Chief Justice rejected an attempt to distinguish the reasoning in Saipaia and Le Tagaloa from the circumstances of the present case. Further, the Chief Justice considered Articles 111(1), 83 and 15, and noted:

Article 111(1), as far as relevant, provides:

'Service of Samoa' means service in any capacity in Samoa; and includes service in any of the capacities named in subclauses (a) to (k) inclusive of Article 83.

A Member of Parliament is named in Article 83(e). Reading Article 111(1) together with Article 83 (a) to (k), it would be clear that the office of Member of Parliament is one of the capacities within the expression ‘Service of Samoa'. And Article 15(3) clearly provides that nothing in that Article shall prevent the prescription of qualifications for any of the capacities within the service of Samoa. This must mean that nothing in Article 15 shall apply to the prescription of qualifications for being a Member of Parliament or a candidate at a parliamentary election. This negates the foundation of the whole argument for the applicants that Article 15 should apply to the prescription of qualifications to become a Member of Parliament or for being a candidate at a parliamentary election. I accept the submission by the Attorney-General that Article 15(3) excludes the application of Article 15 to qualifications for candidates at a parliamentary election.

Finally, the Chief Justice rejected the contention that the qualifications for being a candidate at an election are prescribed under the Electoral Act 1963 pursuant to Article 44(3). He held that they were covered by Article 45 and that in any event that provision was not subject to Article 15.

The Chief Justice therefore held the constitutional challenges were without substance. Whether the statutory amendments were unfair or not, he held there was no ground for declaring either electoral amendment unconstitutional and therefore void.

Almost as a necessary corollary of the conclusions which had been reached, the Chief Justice also struck out the amended statement of claim, noting:

A statement of claim is supposed to plead matters of fact to support a cause of action. The amended statement of claim is overloaded with matters of law such as legal opinions and legal arguments with very little fact. One gets the clear impression that the amended statement of claim is actually another written legal argument. But that is not what a statement of claim is supposed to do. As a consequence, no facts have been pleaded to disclose a cause of action and no cause of action has been demonstrated either in tort, contract restitution or whatever.

We agree with the Chief Justice's criticisms of this document which clearly infringes the requirements of a proper pleading in the respects described by the him.

In this Court, both in his comprehensive written material and in his exhaustive oral submissions, Mr Pereira ranged over a very wide spectrum. He raised many issues in support of his application to have the two 2000 Electoral Amendments declared to be void as inconsistent with the Constitution. However, at its heart, the appeal had a narrow focus.

First, he submitted that the reasoning of this Court in Saipaia was in error and so was the application of it in Le Tagaloa. He contended there was now recognised to be a "new paradigm" which is rooted in the Preamble to the Constitution when it declares that Samoa is a State based on Christian principles and Samoan custom and tradition.

Secondly, in conformity with this new paradigm, the Court must intervene to correct the unfair consequences of this Parliamentary action.

Thirdly, Article 15 is of critical importance especially in the preservation of the rights to a wider franchise which Parliament has now provided.

Mr Pereira did not further pursue an argument based on inconsistency with Article 14.

In our view, the proper starting point for determining this appeal is the Constitution. The Constitution is supreme. Although Parliament has full legislative powers, they are always subject to the Constitution (Article 43).

For this case the critical provision is Article 45 which provides:

45. Qualifications for Membership - (1) Any person shall be qualified to be elected as a Member of Parliament who -

(a) is a citizen of Samoa; and

(b) is not disqualified under the provisions of this Constitution or of any Act.

(2) If any person other than a person qualified under the provisions of Clause (1) is elected as a Member of Parliament, the election of that person shall be void.

In our view this could not be more clear or unequivocal in its meaning. To qualify to be elected as a Member of Parliament, a person must be both a citizen and not disqualified under the provisions of the Constitution or any Act of Parliament.

The Constitution in its terms has recognized that Parliament can lay down qualifications. That is what it has done on its face in Part II of the Electoral Act 1963. This Court has twice held that Part V of the Constitution is not affected by Part II. In Mr Pereira's submission this Court was in error on both occasions. Assuming that he is correct, what would be the effect?

First, it must be noted that Article 15(3) specifically notes that nothing in Article 15 prevents the prescription of qualification for the service of Samoa. The provisions of Articles 83(e) and 111(1) mean this must include prescribing qualifications for Members of Parliament. In the clearest possible language, the Constitution removes the ambit of Clause 15 from the subject matter in issue.

Secondly, even if that were not the case, the discriminatory factors which are contained in Article 15(2) do not include anything to do with voting or elections.

Mr Pereira submitted that "political opinion" should be read so as to encompass that situation. We reject that submission. Although the Constitution is the supreme law and although it is to be read generously, the Courts do not have the power or ability to go beyond the clear and unequivocal words used. General words in the Preamble are not a mechanism whereby the Courts can extend beyond the clear boundaries contained in the Constitution. The Preamble sets the scene within which the powers and responsibilities established by the Constitution are to be exercised, but they are not a general licence to avoid the clear words which have been employed.

Accordingly, we are satisfied that the two amendments to the Electoral Act passed in 2000 are not inconsistent with the Constitution. That conclusion is also in accordance with the reasoning and approach of this Court in Saipaia and Le Tagaloa with which we respectfully concur. We are satisfied that the learned Chief Justice was correct in concluding that this present case is not distinguishable from them.

Further, despite the clear passion and ingenuity of counsel in advancing every possible challenge to these previous decisions, we are totally satisfied with the correctness of their approach. We should note that, although this Court in hearing every case, will be open to persuasion as to new interpretations on any matter, the need for certainty and stability are also fundamental tenets in any constitutional interpretation. The Court will not lightly embark on a new approach unless there are compelling reasons for doing so. There are no compelling reasons in this case. We reiterate the cautionary approach discussed in Le Tagaloa at p.23 when it was said:

The caveat is that, if either the appellants or the second respondent had been able to raise a real doubt about the correctness of the Saipa'ia Olomalu reasoning, there would have arisen the question whether in a constitutional matter where the law had appeared clearly settled after a full examination by this Court, it would be right for the Court to entertain the possibility of departing from that precedent. A Constitution is a living and evolving thing. The course of its development by judicial interpretation should not be dramatically reversed on no more than finely balanced arguments. But, in view of the conclusion that we have reached after a fresh examination of the entrenchment issue, this aspect calls for no further reference.

Essentially, this was a case about the appellant's sense of grievance that Parliament had changed the qualifications to be a Member of Parliament with the result that some people who had lived overseas and who would have been eligible to stand under the previous legislation could no longer do so. Whether that is unfair is not a matter for the Courts to judge. If what Parliament did was within the powers vested in it by the Constitution, there is no basis for Court intervention. The appeal inasmuch as it relates to that issue cannot succeed. Similarly, the amended statement of claim was unsustainable in its form, and in its substance it disclosed no valid cause of action.

The challenge with regard to the timing of the election and processes which occurred pursuant to Sections 44, 45, and 45A of the Electoral. Act is misconceived. Article 64 does nothing but provide a maximum period within which an election must occur after Parliament has been dissolved. An Act which provides for some shorter time period is not inconsistent.

The relief sought is refused.

Solicitors:
A J Pereira, Apia, for Appellants
Attorney-General's Office, Apia, for Respondent