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Court of Appeal of Samoa |
IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU
CA 07/09
BETWEEN:
THE SAMOA PARTY, LE TAGALOA PITA a matai of Sili,
TUPUANAI AVAIOI a matai of Vailele, FEO NEMAIA ESAU a matai of Samauga
Appellants
AND:
THE ATTORNEY GENERAL
sued in respect of the Independent State of Samoa
Respondent
Coram: Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher
Counsel: H M Aikman QC & I T F Hikaka for Appellants
D Mortimer SC, P N Bednall & S Rimoni for Respondent
Hearing: 7-9 October 2009 and 3-5 May 2010
Judgment: 7 May 2010
JUDGMENT OF THE COURT
A) The appeal is dismissed
B) Costs are reserved
REASONS OF THE COURT
Table of contents
1 Introduction
5 The Constitution
12 The Electoral Act
13 The contentions of the appellants
16 (1) The appellants have rights under s 9 of the Constitution with which the proviso is inconsistent
25 (2) The appellants have rights under Art 15 of the Constitution with which the proviso is inconsistent
30 (3) The proviso to s 105(1) EA is inconsistent with the Constitution and is therefore void under Article 2(2)
46(1) The option of prosecution
46(2) The right of petition by the Electoral Commissioner
46(3) Measures designed to protect a person’s vote from being unlawfully influenced, or miscarrying before the vote
46(4) Policy factors
56 Decision
Introduction
1. Did Parliament act within its authority by legislating that only the Electoral Commission and candidates who secured more than 50% of the votes of the successful candidate may bring an election petition? That is the question presented for the decision of this Court by the Samoa Party and members who were candidates at the last Parliamentary election. For reasons that follow the answer is yes.
2. By the Constitution of Samoa Parliament has full authority to make laws. But to the extent that any law is inconsistent with the Constitution itself the law is void, because the Constitution is the supreme law. The task of determining whether and if so to what extent there is inconsistency is conferred by the Constitution on the Supreme Court, from which appeals lie to this Court.
3. This appeal is from a decision of Sapolu CJ rejecting a challenge by the Samoa Party and three of its members (whom we will together call “the Samoa Party”) challenging the constitutionality of the proviso to S 105(1) of the Electoral Act 1963. That subsection states:
Election petitions –
(1) an election petition may be presented to the Supreme Court by one or more of the following persons:
- (a) A person claiming to have had a right to be elected or returned at the election;
- (b) A person alleging himself or herself to have been a candidate at the election;
PROVIDED HOWEVER THAT no petition can be filed by a person who polled less than 50% of the total number of votes polled by a person elected or returned at the election.
(c) The [Election] Commissioner, in considering the public interest, in his or her own motion:
- (i) On the question of whether a candidate is qualified to be a candidate;
- (ii) Where there are allegations of breaches of this Act.
(emphasis added)
4. The Samoa Party is duly registered under s 15C of the Electoral Act as a political party. The other appellants were unsuccessful candidates in the 2006 General Election who were prevented by the proviso to s 105(1) from bringing an election petition against the successful candidate in their respective electorate.
The Constitution
5. The Constitution of Samoa, given to themselves by its people,[1] is Samoa’s supreme law.[2] A general power to make laws is conferred by the Constitution on Parliament, but is subject to the provisions of the Constitution.[3] Any law which is inconsistent with the Constitution is void to the extent of the inconsistency.[4] So whereas in almost all respects the powers of the Parliament of Samoa are unlimited, the Constitution imposes certain limits. In this exceptional sphere the Samoan people have entrusted to the Courts the responsibility for determining the limits of Parliament’s authority.
6. Questions relating to the interpretation or effect of the Constitution are determined by the Supreme Court.[5] The jurisdiction of the Court of Appeal extends to constitutional issues.[6]
7. A Constitution is so called because it constitutes the legal structure of the state which has adopted it. In the case of Samoa it followed a meticulous process[7] which included a Constitutional Convention in 1954, a United Nations Visiting Commission in 1959 and the further Constitutional Convention in 1960, facilitated by expert advisers, which culminated in the adoption of the Constitution on 28 October 1960. It is therefore the task of all who exercise public authority to seek to discern with precision exactly how this Constitution requires their functions to be performed.
8. The Samoan Constitution is to be construed in the light of its preamble which begins with the sacred heritage that authority is to be exercised by the people of Samoa within the limits prescribed by the commandments of God. It recites that Samoa should be an Independent State based on Christian principles and Samoan custom and tradition. It records that:
...the State should exercise its powers and authority through the chosen representatives of the people;
that there should be:
secured to all the people their fundamental rights;
that:
the impartial administration of justice should be fully maintained;
and, in the final recital, that:
the integrity of Samoa, its independence and all its rights should be safeguarded.
9. While counsel on both sides disavowed reliance on the final “integrity” provision as material to our decision, we see it as a further pointer to the values proclaimed by the framers of the Constitution to which, as its interpreters, the Courts should pay heed.
10. Under the Constitution of Samoa the primary authority is, appropriately, Parliament which is the primary lawmaker.[8] With its double legitimacy as the chosen representatives of the people[9] and as composed of matai who are versed in both Christian principles and Samoan tradition,[10] its jurisdiction is emphatically of the kind described by the jurist Hans Kelsen :
The Parliamentary legislature is rarely constrained by limiting restrictions...[11]
11. In this case the first focus of consideration, to which we return, is the text of the Constitution, hammered out with such care. The primary issue is whether the proviso to s 105(1) is rendered void by Art 2 of the Constitution which states;
2. The Supreme Law - (1) This Constitution shall be the supreme law of Western Samoa.
(2) Any existing law and any law passed after the date of coming into force of this Constitution which is consistent with this Constitution shall, to the extent of the inconsistency, be void.
The Electoral Act
12. The second focus is the Electoral Act, enacted by Parliament under its legislative authority conferred by the Constitution. This Court, like the Supreme Court, has no jurisdiction to entertain any question concerning the election or its result. For good reason Samoa, by Part X of the Electoral Act, confines such jurisdiction to a specially constituted division of the Supreme Court whose decision is final. So this case concerns the future rather than the past.
The contentions of the appellants
13. The appellants seek the following relief:
Declarations under articles 2(2) and 4(2) of the Constitution that:
(a) Article 47 requires that there be a proper mechanism by which the right of any person to be or to remain a member of Parliament
can be referred to and determined by the Supreme Court.
(b) Article 47, read in the context of the Constitution as a whole, creates a right (as part of the proper mechanism) for those qualified
to vote in an electorate to seek a determination by the Supreme Court as to the right of any person to be elected as a member of
Parliament for that electorate.
(c) Section 104 of the Electoral Act 1963 provides that this mechanism shall be by way of electoral petition.
(d) The right under Article 47 creates a civil right guaranteed by article 9(1) exercisable by any person qualified to vote in that
electorate.
(e) The right to bring a petition should be extended equally to all persons qualified to vote in that electorate under Article 15(1).
(f) Section 105(1), as amended by section 31 of the Electoral Amendment Act 1995, is inconsistent with the Constitutional requirement under article 47 in that it:
(i) Does not permit a person who voted or had a right to vote at that election to bring an electoral petition; and
(ii) Is confined to candidates in that election who polled at least 50% of the total number of votes polled by the person elected
or returned at that election.
(g) Section 105(1)(a) of the Electoral Act 1963 (prior to the 1995 amendment) is consistent with the Constitution; and
(h) The proviso to section 105(1)(a) and (b) of the 1995 Amendment Act is inconsistent with the Constitution.
14. For the avoidance of doubt, section 105(1)(c) of the Electoral Act 1963 (as amended in 2009) is consistent with the Constitution.
(1) They do so on the grounds:
(2) the appellants have rights under s 9 of the Constitution with which the proviso is inconsistent;
(3) they have rights under s 15(1) of the Constitution with which the proviso is inconsistent;
(4) the proviso to s 105(1) of the Electoral Act is inconsistent with the Constitution and is therefore void under Article 2(2). While this last is not claimed as a personal right the appellants assert standing to bring the issue before the Court in the public interest.
15. The first two grounds assert infringement of what the Constitution classifies as “Fundamental Rights” which are the subject of Part 2. They include such basics as the rights to life, to personal liberty and to freedom from inhuman treatment and from forced labour. The rights relied upon are headed “Right to a fair trial” (Art 9) and “Freedom from discriminatory legislation” (Art 15).
(1) The appellants have rights under s 9 of the Constitution with which the proviso is inconsistent
16. This was the appellant’s primary ground of appeal. Art 9(1) states:
Right to a fair trial - (1) In the determination of his civil rights and obligations or of any charge against him for any offence, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public, but the public and representatives of news service may be excluded from all or part of the trial in the interests of morals, public order or national security, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice.
17. They argued:
(1) It is common ground that inherent in the Constitution is that elections should be free and fair;
(2) the right to vote is a “civil right” within the meaning of Art 9(1);
(3) such right must encompass a consequential right to challenge an election that is not free and fair;
(4) the enactment of the proviso to s 105(1) excludes such right for all save the Electoral Commission and candidates who receive more than 50% of the votes of the successful candidate;
(5) the proviso is therefore inconsistent with the Constitution and is void under Art 2(2).
18. They cited in support of (2) North American authority including Baker v Carr[12] and Oregon v Mitchell [13] where Douglas J held:
The right to vote is a civil right deeply embedded in the Constitution.
They also cited Begum v Tower Hamlets London Borough Council[14] which showed that the European authorities relied upon by the Supreme Court were based on a Convention which had contemplated adding a further category to “civil rights”, so it came to be read narrowly. They submitted that the Chief Justice had erred relying upon authority of the European Court of Human Rights distinguishing civil rights from political rights and in following an earlier judgment of the Supreme Court[15] which had done the same.
19. The Attorney cited in response the observation of Stephen J, which we adopt, as to the need to examine with care the particular characteristics of the Samoan constitution, which may well differ markedly from others.[16]
20. Two earlier judgments of this Court illustrate the fallacy of assuming that, important though it is, the right to vote in Samoa is a right conferred by the Constitution. In Attorney-General v Saipa’ia it was held that the Constitution conferred no right of universal franchise. And in Le Tagaloa Pita v Attorney-General[17], after Parliament by amendment to the Electoral Act had enacted such right, this Court rejected a challenge to the reform as infringing the former exclusive right of Matai to vote. The ratio of each decision was that the Constitution, unlike those in North America, did not itself pronounce on who might vote but left that topic for Parliament to resolve.
21. The current position in Samoa is that, while non-Matai may vote; only Matai may become Members of Parliament. That result is statutory, enacted by the Electoral Act, but is not constitutional in the sense that it is prescribed by the Constitution. It is therefore open to Parliament to continue to reform the law as to voting without requiring constitutional amendment.
22. Since the Constitution confers no right to vote, the argument that a constitutional right to vote must be accompanied by a constitutional right to challenge an election result cannot succeed. Any personal right to vote and to challenge the result because of infringement of such personal right will depend on statute, not constitutional law. But the relevant statutory provision is that contained in s 105.
23. Art 9 can be invoked only where the litigant involved can demonstrate a justiciable right. We do not characterize the public interest in free and fair elections as creating a justiciable right in any person. The “right” at stake is to be found, if at all, at public law, to which we return under (3).
24. There being no personal constitutional right either to vote, or to challenge an election, it follows that the appellants’ first ground fails.
(2) The appellants have rights under Art 15 of the Constitution with which the proviso is inconsistent
25. The argument based on Art 15 fails for similar reasons. It provides:
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.
26. The appellants contend that in terms of Art 15(1) candidates who receive less than 50% of the winner’s vote are the subject of discrimination when compared with those who receive more than 50%.
27. But Art 15(1) is not to be read in isolation from 15(2).
28. Read as a whole Art 15 is dealing with the familiar human rights problems of discrimination by reference to deep-seated personal characteristics, not failure to meet a certain percentage vote at a particular election.
29. While we have considered the argument in principle, it is inconsistent with both of the judgments cited at [20] above. They were followed by this Court in Mulitalo v Attorney-General.[18] We are not persuaded to adopt a contrary view.
(3) The proviso to s 105(1) EA is inconsistent with the Constitution and is therefore void under Article 2(2)
30. The Appellants have identified two constitutional rights they submit are to be implied into the Constitution: a) a constitutional right of voters to participate in elections which are free and fair and b) a constitutional right to bring proceedings by way of an election petition to ‘enforce’ free and fair elections.
31. In advancing this ground the Samoa Party does not contend that the black letter of the language carefully chosen by the framers of the Constitution yields a clear and simple answer. Rather it invites the Court to look behind the text of the Constitution to the principles that underlie it and which the Court may infer as integral to it.
32. There is notable Australian authority supportive of such course. It was not suggested by the Attorney that the appellants lacked standing to embark upon it. In Roach v Electoral Commissioner,[19] which concerned the validity depriving short term prisoners of the right to vote, Gleeson CJ appears to have accepted that in Australia:
...questions respecting the extent of the franchise and the manner of its exercise affect the essentials of a system of representative government...in providing for these fundamentals the Constitution makes allowance for the evolutionary nature of representative government as a dynamic rather than purely static instrument. Ultimately, the issues in the present case concern the relationship between the constitutionally mandated fundamentals and the scope for legislative evolution.
33. In that case the majority held a statute invalid as infringing constitutional constraints necessarily implicit in the otherwise broad legislative mandate. Regard was had to the expansion of the franchise in Australia, well in advance of that of the United Kingdom. So too in Lange v The Commonwealth [20] it held that freedom of communication was an indispensable incident of the representative government mandated by the Australian Constitution.
34. But as Sir Anthony Mason CJ warned in Australian Capital Television Pty Ltd v Commonwealth (No 2)[21]:
It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution (Australian Nal Airways Pty. Ltd. v. The Commonwealth[22]). The form former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument. Thus, the founders assumed that the Senate would protect the States but in the result it did not do so. On the other hand, the principle of responsible government - the system of government by which the executive is responsible to the legislature - is not merely an assumption upon which the actual provisions are based; it is an integral element in the Constitution (The Engineers' Case[23]). In the words of Isaacs J. in The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley[24]: "It is part of the fabric on which the written words of the Constitution are superimposed.
35. In McGinty v Western Australia[25] Sir Gerard Brennan CJ stated:
Constitutional Implications
11. Implications are not devised by the judiciary; they exist in the text and structure of the Constitution and are revealed or uncovered by judicial exegesis. No implication can be drawn from the Constitution which is not based on the actual terms of the Constitution, or on its structure. However, as an implication will be applied in a particular case to a specific factual situation, it may be expressed in terms relevant to that situation. Although the Court was divided in Australian Capital Television Pty Ltd v The Commonwealth ("ACTV"), there was nothing in any judgment to cast doubt on the approach then taken by Mason CJ:
" It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure...."
(emphasis added)
The judgment continues:
12. Although the term "representative democracy" is useful to explain the text on which the implied freedom depends, the term is not to be found in either the Constitution of the Commonwealth or the Constitution of Western Australia. It is logically impermissible to treat "representative democracy" as though it were contained in the Constitution, to attribute to the term a meaning or content derived from sources extrinsic to the Constitution and then to invalidate a law for inconsistency with the meaning or content so attributed. The text of the Constitution can be illuminated by reference to representative democracy but the concept neither alters nor adds to the text...
36. In Australian National Airways v The Commonwealth[26] Dixon J made a practical point:
We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications.' ... The only emendation that I would venture is that I would prefer not to say 'making implications', because our avowed task is simply the revealing or uncovering of implications that are already there.
37. We therefore turn to consider that argument. In doing so we bear in mind that the 1901 Australian Constitution, which contains no Bill of Rights, is now a century old and that the warnings of the High Court of Australia against departing from the text by engaging in judicial innovation may be even more justifiable in the case of the more modern Samoan document.
38. We also recognize that under Art 111 of the Constitution “law” includes the common law of England. In the Irish decision The South Division of Meath Case[27] it was held that:
Freedom of election is at common law absolutely essential to the validity of an election, and if this freedom be prevented generally the election is void at common law and...it matters not by what means the freedom of election may have been destroyed...The statute law not only leaves this common law intact, but supplements it by stringent enactments visiting candidates and all others with severe penalties for interfering with the purity or freedom of elections either directly or indirectly.
39. We do not doubt that among the public interests inherent in the Samoan constitution is an interest in free and fair elections. But the question at this point is whether an election system that fails to include a right to challenge by way of petition for every voter is inconsistent with the Constitution. Rephrased, the question is whether the public interest in free and fair elections is adequately secured by other means.
40. The appellants’ argument that they may sue to enforce a constitutional right to free and fair elections and an ability to bring proceedings by way of an election petition striking down the proviso to s 105(1) in order to enforce them requires examination of whether those interests are already sufficiently protected. In Victoria v The Commonwealth[28] Windeyer J, in identifying the role of implication in constitutional interpretation, said:
Implications of The Moorcock kind give content and consequences to written contracts. Implications of a different kind may aid the interpretation of statutory provisions. That is because these must always be read as parts of a whole and with due regard to the subject with which the statute deals. In each case an implication means that something not expressed is to be understood. But in the one case this involves an addition to what is expressed: in the other it explains, perhaps limits, the effect of what is expressed.
(emphasis added)
It is in the latter sense that implications have a place in the interpretation of the Constitution. If the implication is not practically necessary it will not be made. That requires a value judgment whether, as a practical matter, the legislative scheme is not merely different from what a judge might like to see but so deficient that the Court must declare that what has been removed. is something fundamental to the operation of the Samoan constitution so the enactment is inconsistent with it..
41. It is at first sight striking that there should be removed from the Samoan electoral regime the general right to bring an election petition that entered the law of England in 1769[29] and for which counsel for the Attorney could offer no equivalent in any comparable jurisdiction. Every state must equip itself with safeguards against the election of persons who are disqualified from standing or who engage in corrupt practice.[30] How can a system provide meaningful protection against infringement if not merely voters but even some candidates are not free to bring an election petition?
42. There is intellectual appeal in the notion that in Part X of the Electoral Act, “Election Petitions”, Parliament has set up the electoral petition regime as the paradigm for dealing with allegations of disqualification or corruption. It starts with s 104(1) which can be read as suggestive of a code:
104. Method of questioning election - (1) No election and no declaration of result or report to the Head of State shall be questioned except by petition complaining of an unlawful election or unlawful declaration or report (in this Act referred to as an election petition) presented in accordance with this Part.
43. It states the 7 working day time limit for presenting petitions.[31] It entails exacting both security[32] and a statutory declaration from the plaintiff of innocence of corrupt or illegal practice;[33] the case is dealt with before two or more Supreme Court judges; there is special provision for priority of trial;[34] special procedures and admission of evidence normally inadmissible are provided;[35] there is no right of appeal.[36]
44. That may be compared with the options: criminal prosecution with its high standard of proof and exacting ethical rules for prosecutors, potential for stay by the Attorney and lack of control over appeals; petition by the Commissioner who is subject to the same time limit as any other plaintiff; action by Parliament. Why should the Court not simply conclude that the removal of at least the right of the runner-up to petition infringes the implied constitutional obligation to provide a system calculated to deal in a practical manner with disqualification or corrupt practices? That was what the Electoral Commission recommended in 2000 and 2001 although not in 2006.
45. The short answer is that the Court has no power to impose its own ideas; it may do no more than say whether the Constitution has been infringed. The longer answer is found in an understanding of the details of the electoral system. They are as follows:
46. In reply to a question from the Court counsel for the Attorney submitted that the true enquiry is not from a position of ‘desirability’, or ‘adequacy’, or ‘reasonableness’ in a merits sense, or by only looking at part of the picture. They contended:
The option of prosecution
(1) There is no basis in the evidence to suggest that a private or state prosecution for election corruption would move any more slowly to conclusion than an election petition, especially given that the prosecutors and the courts appreciate the need for election outcomes to be finalized. The evidence shows that the 2006 elections petitions took very many months to complete. The Attorney rejects the proposition that the criminal process rights and safeguards available to an accused person (including Art 9 of the Constitution) can inhibit ascertaining the truth..
The right of petition by the Electoral Commissioner
(2) The Electoral Commissioner deposed in this Court about how closely he deals about elections with the ordinary people of Samoa, and their candidates, and what a close and small society Samoa is. His reporting function in s 15(3A)(d) would require him to have a close knowledge of how each election was conducted, and the statutory duty in s 4 will, for example, apply to each officer in each polling booth on election day, and in the lead up.
Measures designed to protect a person’s vote from being unlawfully influenced, or miscarrying before the vote
(3) The considerable provisions in the legislative scheme about voter qualification registration, identification, secrecy, independence, scrutiny of polling and ballot papers, the existence of a wide range of offences in the Act, and all the other measures designed to protect a person’s vote from being unlawfully influenced, or miscarrying before the vote. The standard for constitutional validity is not that a vote is in fact unlawfully influenced or miscarries, because a provision has in a given factual circumstance failed to achieve its object. Further it is an obvious inference from the evidence that petitions are not always brought even when there is a legal entitlement to do so: an outcome of “no corrupt candidate in Parliament” can never be achieved but not because of these standing provisions, rather because of all the other complex factors which operate on individual decisions whether or not to bring an election petition (including undue influence).
Policy factors
(4) All the factors which in a policy sense are capable of explaining why Parliament chose a tight standing restriction on election petitions. Parliament does not, for constitutional validity, have to “justify” its legislative choice in a policy sense to the Courts, nor justify any perceived ‘unfairness’ which might be said to arise from it. That would be to place the Courts above Parliament in a way the Constitution does not contemplate. The threshold is far more onerous than that.
(5) For example, linking the legal entitlement to publicly challenge a Matai as corrupt, or having been corruptly elected, to the possession in the accuser himself or herself of Matai status is entirely understandable in Samoan society.
(6) Samoa is a developing country, it is poor, its resources are always overstretched and elections petitions are very expensive in all the ways set out in the evidence. Parliament has chosen to limit expenditure on petitions by limiting access to them, while providing through the Act for a thorough and proactive electoral system prior to voting.
(7) Petitions have real consequences for the fabric of Samoan life. A recurring theme of the 2006 Electoral Commission of Inquiry was stated by the Inquiry to be ‘The destructive impact of Electoral petitions upon the peace and harmony of villages, districts and indeed families”. Parliament has given some prominence to this by placing tight standing limits and it is within its legislative power to do so.
47. Each of these points was debated by the appellants. In the end the Court must decide whether the appellants have shown that the practical operation of the congeries of factors tending to protect the integrity of Samoan elections has fallen below a constitutionally legitimate standard. That evaluation is the responsibility of this Court.
48. In approaching it we have examined the approaches to constitutional interpretation discussed in the six states considered in Jeffrey Goldsworthy Interpreting Constitutions[37], the three in Christian Behrendt Le Juge Constitutionel[38] as well as cases from other jurisdictions cited by counsel, notably the European Court of Human Rights.
49. We accept Goldsworthy’s
holistic conception of a constitution as more than the sum of its written provisions: as a normative structure whose provisions are, either explicitly or implicitly, based on deeper principles, and ultimately on abstract norms of political morality that are the deepest source of its authority”.[39]
We endorse his subsequent analysis:
Consider also the extent to which courts should remedy failures on the part of the constitution’s founders to expressly provide for problems, even if they should have foreseen them. When interpreting statutes, judges usually refuse to rectify failures of that kind, on the ground that the legislature should do so. But when dealing with a constitution, they should arguably be more willing to provide a solution. If a constitution fails to achieve one of its main purposes, the potential consequences are grave. They include the danger of constitutional powers being abused, of the democratic process or the federal system being subverted, and of human rights being violated. ...On the other hand, legalists worry that such reasoning can be used to justify extensive judicial rewriting of the constitution, especially if the founders’ purposes are pitched at a very abstract level (‘they wanted to achieve a just society, and this is necessary to achieve justice’). Legalists deny that judges are ‘statesmen’, appointed to fill the shoes of the founders and continue the task of constitution-making as an on-going enterprise.
One conclusion that should be drawn from this brief discussion is that constitutional interpretation is an extraordinary difficult enterprise, which requires striking an appropriate balance between competing, weighty considerations.[40]
50. Of the vast jurisprudence we have been particularly assisted by the leading South African decision State v Makwanyane [1995] ZACC 3. That concerned the very different context of capital punishment. But certain of the observations of Chaskelson P are of application in contexts removed from the highest level human rights at stake in that case:
51. In the present context "reasonableness and necessity" does not import any power in the judges to adopt their own opinion of what form of legislation might be appropriate. "Reasonableness" here relates to the ultimate test: whether the total legislative package passes muster against the requirements of the Constitution. Where the question of consistency with s 2(2) concerns not human rights but public entitlement to adequate systems calculated to secure free and fair elections, which must be inferred from the Constitution, a test of substantial adequacy is in our view appropriate.
52. We have considered the affidavits on both sides not in order to make particular findings of fact but to assist us to achieve the understanding of conditions in Samoa of which an informed citizen would be aware.
53. Having tested the arguments of each side on such basis we have concluded that, in current conditions, there is no demonstrated inconsistency between the proviso to s 105(1) and the Constitution. The reasons may be summarized:
(1) For candidates who pass the 50% threshold the right to bring an election petition remains. That factor is no doubt diminished by the tendency for numbers of candidates to increase and the prospect of splitting the competing vote.
(2) The right to bring a criminal prosecution, which if successful will unseat the winner, is retained, albeit with a seven day limitation period even shorter than the tight seven working days for a petition. The power of the Attorney to stay a prosecution has been employed in Samoa only on grounds upheld by this Court as wholly proper.[41] Our own experience of the conduct of the Attorney and of Crown counsel in Samoa has been of exemplary concern for the rule of law. There is no basis to apprehend the kind of conduct which in Mohit v DPP of Mauritius[42] led to judicial review of the stay jurisdiction
(3) We place particular weight on the new power of the Election Commissioner to bring an election petition. We were told of an occasion when counsel for the Commissioner are said to have reversed their submissions following a ministerial intervention. R (On The Application of Corner House Research and Others) v Director of The Serious Fraud Office[43] shows the difficulty and sensitivity of the exercise of public functions which lack the systemic independence of the courts, in that case involving a highly respected Director of the Serious Fraud Office whose conduct was ultimately endorsed by the House of Lords. But we would expect that the Commissioner will exercise meticulous care to demonstrate vigilant and energetic performance of those functions. Indeed there is now the opportunity for the Commissioner to serve as a recipient of concerns expressed by members of the public and election candidates and bring focus and the authority of that high office against all forms of electoral misconduct. The outstanding success internationally of the Ombudsmen shows what can be achieved.
(4) We accept the submission of the Attorney as to the importance of the systemic factors listed at 46(3).
54. We recognize the need for a sense of proportion in appraising the factors listed at 46(4). The decision in the education case R v East Sussex County Council ex parte Tandy[44], that the importance of the human rights considerations made cost an immaterial consideration, is unrealistic in the present context. The reason this Court sits only twice a year (until recently it was once) is that Magna Carta’s prohibition of judicial delay can receive only a reasonable response, not an immediate one. Like free and fair elections and access to medical care, the response may properly be limited to what is proportionate.
55. In the end, having rejected the appellants’ claim to a Part 2 right to bring an election petition, we also reject their claim to a declaration of inconsistency. Certainly to restore to voters, or even to runners-up, the right to bring an election petition would provide still greater protection of the public interest in free and fair elections. But Parliamentarians, faced with the harsh reality of securing revenue, are answerable not to the Court but to the community as to how they allocate it. For a court to rule otherwise would place it, not Parliament, in breach of the Constitution unless that course was essential to achieve the electoral standards it requires. That has not been established.
Decision
56. The appeal is dismissed.
57. Costs are reserved. We record that the proceeding has served the high public interest of clarifying why removal of a safeguard, seen as necessary since the 18th century, does not infringe either the specific integrity provision or the additional implied requirements of the Samoan Constitution. That has been held by the Privy Council in New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 as telling in reduction in whole or in part of an order for costs.
HONOURABLE JUSTICE BARAGWANATH
HONOURABLE JUSTICE SLICER
HONOURABLE JUSTICE FISHER
[1] Preamble
[2] Article 2(1)
[3] Article 43
[4] Article 2(2)
[5] Article 73 read with Article 80
[6] Sections 75 and 80-81
[7] Summarised by this Court in Sapa’ia (Olomalu) v Attorney-General [1980-1993] WSLR 41
[8] Art 43
[9] Preamble to the Constitution fourth recital
[10] Second recital
[11] He contrasted the constitutional role of the judiciary, which he described as “negative legislator”. The passage is cited in Behrendt Le Juge Constitutionnel (Brylant 2006) at xxxi
[12] 369 US 186 (1962)
[13] 400 US 112 (1970)
[14] [2003] 2 AC 430
[15] Sia v Petaru [1988] WSSC 37
[16] Attorney-General ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 57:
“The principle of representative democracy does indeed predicate the enfranchisement of electors, the existence of an electoral
system capable of giving effect to their selection of representatives and the bestowal of legislative functions upon the representatives
thus selected. However the particular quality and character of the content of each one of these three ingredients of representative
democracy, and there may well be others, is not fixed and precise. I take each in turn. The extent of the franchise; whether it extends
to all residents or to all residents over a given age or is restricted, perhaps, to male British subjects over twenty-one, maybe
with a superadded property qualification and whether more or less replete with disqualifications on grounds of incapacity or criminality
or the like, it will none the less constitute an enfranchisement of electors. The electoral system, with its innumerable details
including numbers and qualifications of representatives, single or multi-member electorates, voting methods and the various methods,
including varieties of proportional representation, whereby the significance and outcome of the votes cast may be determined; in
each there is scope for variety and no one formula can preempt the field as alone consistent with representative democracy. Again
the wide range of legislative functions which a legislature thus elected may possess is so clear in our federal polity, with its
history of a variety of colonial legislatures, that it requires no elaboration
[17] CA7/95 18 December 1997
[18] 20 December 2001
[19] (2007) 233 CLR 162, 186
[20] (1996) 186 CLR 302
[21] [1992] HCA 45; (1992) 177 CLR 106 at 30
[22] (1945) 71 CLR , per Dixon J. at p 81
[23] (1920) 28 CLR, per Knox C.J., Isaacs, Rich and Starke JJ. at p 147
[24] [1926] HCA 8; (1926) 37 CLR 393, at p 413)
[25] (1996) 186 CLR 140, 168
[26] (1945) 71 CLR 29, 85
[27] [1892] Election Petitions 130, 139
[28] (1971) 122 CLR 353, 401-2
[29] 12 Geo3 XVI An act to regulate the trials of controverted elections, or returns of members to serve in parliaments
[30] The fictional Eatanswill election, said to have taken place in 1827 and recounted in Dickens’ The Pickwick Papers, satirizes the problem. See also Posala v Su’a [2006] WSSC 29 at 5-9 and 14.
[31] s106
[32] of $2000: s 107
[33] s107A
[34] s111(7)
[35] S115
[36] ss110; 117
[37] Oxford (namely the USA, Australia, Germany, India, Canada and South Africa)
[38] France, Belgium and Germany
[39] 322
[40] 324
[41] Teo v Attorney-General [2001] WSCA 7. There the appellant had chosen not to bring an election petition. This Court found that the Attorney-General had properly considered
the public interest as well as the interests of the parties to the prosecution.
[42] 2006 UKPC 20
[43] [2008] UKHL 60
[44] [1998] UKHL 20; [1998] AC 714
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