Electoral Commissioner v FAST Party [2021] WSCA 3 (2 June 2021)

IN THE COURT OF APPEAL OF SAMOA
Electoral Commissioner & Anor v F.A.S.T. Party & Anor WSCA 3 (02 June 2021)

Case name:	Electoral Commissioner & Anor v F.A.S.T. Party & Anor
Citation:	WSCA 3
Decision date:	02 June 2021
Parties:	ELECTORAL COMMISSIONER (First Appellant) & ALIIMALEMANU MOTI MOMOEMAUSU ALOFA TUUAU (Second Appellant) v FAATUATUA I LE ATUA SAMOA UA TASI (F.A.S.T. PARTY) (First Respondent) & SEUULA IOANE (Second Respondent)
Hearing date(s):
File number(s):	CA04/21
Jurisdiction:	CIVIL
Place of delivery:	Court of Appeal of Samoa, Mulinuu
Judge(s):	Chief Justice Satiu Simativa Perese Justice Tologata Tafaoimalo Leilani Tuala-Warren Justice Fepuleai Ameperosa Roma
On appeal from:	Supreme Court of Samoa, Mulinuu
Order:	We dismissed the Second Appellant’s application to appoint an overseas Judge to the composition of the Court of Appeal.
Representation:	P. Rishworth QC (via video-link) & S. Ainuu for the First Appellant P. Lithgow (via video-link) & M. Leung-Wai for the Second Appellant B. Keith (via video-link), P. Chang & M. Lui for the First and Second Respondents
Catchwords:	Constitution related matter
Words and phrases:	“Inclusion of overseas non-Samoan Judge to preside over matter” – “interests of justice”.
Legislation cited:	Constitution of the Independent State of Samoa 1960 Article 74(1)(a); 74(1)(b).
Cases cited:
Summary of decision:

CA 04/21

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

IN THE MATTER:

Articles 44 and 47 of the Constitution of the Independent State of Samoa

A N D:

IN THE MATTER:

Declaratory Judgments Act 1988

A N D:

IN THE MATTER:

the Electoral Act 2019

BETWEEN:

ELECTORAL COMMISSIONER appointed under the Electoral Commission Act 2019

First Appellant

A N D:

ALIIMALEMANU MOTI MOMOEMAUSU ALOFA TUUAU,

Second Appellant

A N D:

FAATUATUA I LE ATUA SAMOA UA TASI (F.A.S.T. PARTY)

First Respondent

A N D:

SEUULA IOANE, candidate for the Constituency of Alataua i Sisifo

Second Respondent

Coram: Chief Justice Satiu Simativa Perese
Justice Tologata Tafaoimalo Leilani Tuala-Warren
Justice Fepuleai Ameperosa Roma

Counsel: P. Rishworth QC (via video-link) & S. Ainuu for the First Appellant
P. Lithgow (via video-link) & M. Leung-Wai for the Second Appellant

B. Keith (via video-link), P. Chang & M. Lui for the First and Second Respondents

Judgment: 2 June 2021

REASONS FOR RULING ON INCLUSION OF AN OVERSEAS JUDGE

Introduction

1. Further to the Second Appellant’s Application to recuse the Honourable Chief Justice from the panel hearing this appeal, she sought to include an overseas non – Samoan Judge in its composition. She relied on Article 74 (1)(a) & (b) of the Constitution.
2. The Application was opposed by the Respondents.
3. We dismissed that second application and said given our conclusion on the recusal application, that it was not necessary to consider the application for the inclusion of an overseas non – Samoan judge. We also said that our reasons will be made available. These are those reasons.

The Constitution

4. The relevant parts of Article 74 of the Constitution as amended by the Constitution Amendment Act and found in the Consolidation of Laws as at 3 March 2021 state:
   • 74. Number of Judges - (1) Any three (3) Judges of the Court of Appeal may exercise all the powers of the Court:
   • PROVIDED THAT:
   • (a) for every sitting of the Court of Appeal, the majority of Judges shall be retired Supreme Court Judges or Supreme Court Judges; and
   • (b) in the interest of justice, one of the three (3) Court of Appeal Judges may be an overseas non Samoan Court of Appeal Judge appointed under sub-clause (2)(c) of Article 73; and
   • ...
5. The validity of the amendments to Article 74 is a matter that was raised by the Court on 27 May 2021 given the differences in provisions relating to the composition from an assented copy that was made available to the Honourable Chief Justice. We have received no explanation as to how these errors occurred.

Second Appellant’s Submission

6. In any event, the contention for the Second Appellant is that Article 74(1)(a) & (b) effectively provides for the majority of the panel to be Samoan Judges who will preside with an overseas non – Samoan judge.
7. Mr Leung Wai submitted that this is probably the most important constitutional case, that everyone has a connection to it and that it would be in the interests of justice that an overseas judge is appointed so as to comply with the provisions of Article 74.

Respondents’ Submission

8. Mr Keith submitted for the Respondents that whilst everyone might have a connection to the case, the appointment of an overseas judge is only triggered by the ‘interests of justice’ requirement. He referred to problems that such appointment will pose including further delay given the urgency in which the parties and the Court have treated this appeal; and the involvement of the Attorney General in the appointment when she has in other proceedings, contested the composition of government. He argued that in these circumstances, the ‘interests of justice’ do not require the appointment of an overseas judge.

Discussion

9. For the reasons advanced by the Respondents, we are not satisfied that the ‘interests of justice’ require that an overseas judge be appointed to the panel hearing the appeal.
10. By suggesting that we need an overseas non-Samoan judge to sit on this Constitutional case, the Second Appellant is effectively saying that it is unsuitable for only Samoan judges to hear this appeal. This case concerns the interpretation of the Constitution of Samoa. Samoa has reached a point where Samoan judges have the knowledge, capacity and competence to deal with Constitutional issues.
11. We are also mindful that this Court has most recently heard and ruled on a stay application by the Second Appellant of the Supreme Court decision under appeal. No application for the appointment of an overseas non-Samoan judge was made then, until recently when the Court assigned the date for hearing the appeal.
12. For the above reasons, we dismissed the Second Appellant’s application to appoint an overseas Judge to the composition of the Court of Appeal.
    

CHIEF JUSTICE PERESE
JUSTICE TUALA-WARREN
JUSTICE ROMA