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Attorney General v Latu [2021] WSCA 6 (23 July 2021)

IN THE COURT OF APPEAL OF SAMOA
Attorney General v Latu & Ors [2021] WSCA 6 (23 July 2021)


Case name:
Attorney General v Latu & Ors


Citation:


Decision date:
23 July 2021


Parties:
ATTORNEY GENERAL (Appellant) v MATAFEO GEORGE LATU, TAULAPAPA BRENDA HEATHER LATU, PAPALII LIO MASIPAU and VEATAUIA FAATASI PULEIATA (First Respondents) & MEMBERS OF THE POLITICAL PARTY FAATUATUA I LE ATUA SAMOA UA TASI (‘FAST’): FIAME NAOMI MATAAFA: LAAULIALEMALIETOA LEUATEA POLATAIVAO SCHMIDT; LEATINUU WAYNE SO’OIALO; OLO FITI AFOA VAAI; TUALA TEVAGA IOSEFO PONIFASIO; VAIASI LUAPITOFANUA TOOGAMAGA TAFITO SELESELE; MULIPOLA ANAROSA ALE MOLIOO; TOEOLESULUSULU CEDRIC POSE SALESA SCHUSTER; TOELUPE POUMULINUKU ONESEMO; SEUULA IOANE; MATAMUA SEUMANU VASATI SILI PULUFANA; TEA TOOALA PEATO; NIUAVA ETI L MALOLO; PAPALII LIO OLOIPOLA TAEU MASIPAU; VAELE PAIAAUA IONA PAIAAUA SEKUINI; MAGELE SEKATI FIAUI; FEPULEAI FAASAVALU FAIMATA SU’A; SEUAMULI FASI TOMA; LEOTA LAKI LAMOSITELE; MASINALUPE MAKESI MASINALUPE TALITAU TUVALE; FESOLAI APULU TUSIUPU TUIGAMALA; LAGAAIA TIATUAU TUFUGA; FAUALO HARRY SCHUSTER; AGASEATA VALELIO TANUVASA PETO; AUAPAAU MULIPOLA ALOITATUA (Second Respondents); TUIMALEALIIFANO VA’ALETO’A SUALAUVI II, Head of State (Person directed to be served), LEAUPEPE TOLEAFOA FAAFISI, Caretaker Speaker (Person directed to be served), TUILAEPA LUPESOLIAI SAILELE MALIELEGAOI, Caretaker Prime Minister (Person directed to be served), NAFOITOA TALAIMANU KETI, LAUTAFI FIO SELAFI PURCELL, SALA FATA PINATI, LEAO TALALELEI TUITAMA, PAPALIITELE NIKO LEE HANG, LOPAOO NATANIELU MU’A, SILI EPA TUIOTI, FAIMALOTOA KIKA STOWERS, TI’ALAVEA FEA LENIU TIONISIO HUNT, AFAMASAGA LEPUIAI RICO TUPA’I, LOAU SOLAMALEMALO KENETI SIO-, FA’AOLESA T. KATOPAU AINU’U, Caretaker Cabinet Members (Persons directed to be served), TIATIA LIMA GRAEME TUALAULELEI, Clerk of the Legislative Assembly, (Person directed to be served), SAMOA LAW SOCIETY (Person directed to be served), HUMAN RIGHTS PROTECTION PARTY Inc. (HRPP) (Person directed to be served).


Hearing date(s):
16 July 2021


File number(s):
CA 07/21


Jurisdiction:
CIVIL


Place of delivery:
Court of Appeal of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Niavā Mata Tuatagaloa
Justice Tologata Tafaoimalo Leilani Tuala-Warren


On appeal from:
Supreme Court of Samoa, Mulinuu


Order:
The Supreme Court is the guardian of the Constitution, and it will continue to protect and maintain the rule of law and democracy under the Supreme law.
We come to the following conclusions;
(a) We dismiss the Appeal in its entirety; and
(b) We uphold the Respondents cross-appeal.
We declare that the swearing in carried out on 24 May 2021 at the Tiafau Malae of elected members of Parliament, to be consistent with the terms of the Constitution, the Supreme law of Samoa, and therefore lawful.
For the avoidance of doubt, this means that there has been lawful government in Samoa since 24 May 2021, and that lawful government is the FAST party which holds the majority of the seats in Parliament.


Representation:
F. S. Ainuu, L. Teueli and P Rishworth QC (via video link from NZ) for the Appellant
M. Lui and B Keith (via video link from NZ) for the Respondents
H. Wallwork and R Lithgow QC (via video link from NZ) for the Samoa Law Society
M. Leung Wai and P Lithgow (via video link from Australia) for the Human Rights Protection Party In.
R. Drake for Caretaker Speaker: Mr. Faafisi


Catchwords:
Constitution – Head of State’s powers – political impasse – Rule of Law – Democracy – Supreme Law of Samoa.


Words and phrases:
“Convening of Parliament” – “Was the swearing in ceremony Constitutional?”


Legislation cited:
Constitution Act 1986 (NZ), s. 19;
Constitution of the Independent State of Samoa 1960, Part III (Articles 16 to 30); Part V; Articles 4; 31; 32; 34; 35; 42; 44; 44(1); 44(1A); 49; 49(1); 49(1A); 42; 50; 52; 56; 57; 61; 70; 71; 111;
Declaratory Judgments Act 1988;
Government Proceedings Act 1974.


Cases cited:
Joseph on Constitutional and Administrative Law (5th ed).


Summary of decision:

CA07/21
IN THE COURT OF APPEAL OF SAMOA


HELD AT MULINUU


IN THE MATTER:


Part III (Article 16 to 30) Articles 31, 32, 34, 35, 42, 44, 49, 50 and 61 of the Constitution of the Independent State of Samoa;


A N D:


IN THE MATTER:


Article 4 of the Constitution; the Declaratory Judgments Act 1988; and Government Proceedings Act 1974;


BETWEEN:


ATTORNEY GENERAL appointed under Article 41 of the Constitution.


Appellant


A N D:


MATAFEO GEORGE LATU, TAULAPAPA BRENDA HEATHER LATU, PAPALII LIO MASIPAU and VEATAUIA FAATASI PULEIATA having held themselves out as or assuming the roles of the Constitutional and/or Officials mainly authorities of the Head of State, Honourable Speaker, Clerk of the Legislative Assembly, the Registrar of the Court, Cabinet Secretary and the Attorney General;


First Respondents


A N D:


MEMBERS OF THE POLITICAL PARTY FAATUATUA I LE ATUA SAMOA UA TASI (‘FAST’): FIAME NAOMI MATAAFA: LAAULIALEMALIETOA LEUATEA POLATAIVAO SCHMIDT; LEATINUU WAYNE SO’OIALO; OLO FITI AFOA VAAI; TUALA TEVAGA IOSEFO PONIFASIO; VAIASI LUAPITOFANUA TOOGAMAGA TAFITO SELESELE; MULIPOLA ANAROSA ALE MOLIOO; TOEOLESULUSULU CEDRIC POSE SALESA SCHUSTER; TOELUPE POUMULINUKU ONESEMO; SEUULA IOANE; MATAMUA SEUMANU VASATI SILI PULUFANA; TEA TOOALA PEATO; NIUAVA ETI L MALOLO; PAPALII LIO OLOIPOLA TAEU MASIPAU; VAELE PAIAAUA IONA PAIAAUA SEKUINI; MAGELE SEKATI FIAUI; FEPULEAI FAASAVALU FAIMATA SU’A; SEUAMULI FASI TOMA; LEOTA LAKI LAMOSITELE; MASINALUPE MAKESI MASINALUPE TALITAU TUVALE; FESOLAI APULU TUSIUPU TUIGAMALA; LAGAAIA TIATUAU TUFUGA; FAUALO HARRY SCHUSTER; AGASEATA VALELIO TANUVASA PETO; AUAPAAU MULIPOLA ALOITATUA;


Second Respondents


A N D:


TUIMALEALIIFANO VA’ALETO’A SUALAUVI II, Head of State


Person directed to be served


LEAUPEPE TOLEAFOA FAAFISI, Caretaker Speaker


Person directed to be served


TUILAEPA LUPESOLIAI SAILELE MALIELEGAOI, Caretaker Prime Minister


Person directed to be served


NAFOITOA TALAIMANU KETI, LAUTAFI FIO SELAFI PURCELL, SALA FATA PINATI, LEAO TALALELEI TUITAMA, PAPALIITELE NIKO LEE HANG, LOPAOO NATANIELU MU’A, SILI EPA TUIOTI, FAIMALOTOA KIKA STOWERS, TI’ALAVEA FEA LENIU TIONISIO HUNT, AFAMASAGA LEPUIAI RICO TUPA’I, LOAU SOLAMALEMALO KENETI SIO-, FA’AOLESA T. KATOPAU AINU’U, Caretaker Cabinet Members


Persons directed to be served


TIATIA LIMA GRAEME TUALAULELEI, Clerk of the Legislative Assembly


Person directed to be served


SAMOA LAW SOCIETY


Person directed to be served


HUMAN RIGHTS PROTECTION PARTY Inc (HRPP)


Person directed to be served


Coram: Chief Justice Satiu Simativa Perese

Justice Niavā Mata Tuatagaloa

Justice Tologata Tafaoimalo Leilani Tuala Warren

Counsel: F. S. Ainuu, L. Teueli and P Rishworth QC (via video link from NZ) for the Appellant

M. Lui and B Keith (via video link from NZ) for the Respondents

H. Wallwork and R Lithgow QC (via video link from NZ) for the Samoa Law Society

M. Leung Wai and P Lithgow (via video link from Australia) for the Human Rights Protection Party Inc.
R. Drake for Caretaker Speaker: Mr. Faafisi

Hearing: 16 July 2021
Judgment: 23 July 2021


JUDGMENT OF THE COURT

INTRODUCTION

  1. At its core, this appeal concerns the legitimacy of the events which unfolded at Tiafau with the issue of whether the XVIIth Parliament of the Independent State of Samoa was convened and the Faatuatua I le Atua Samoa ua Tasi (“FAST”) political party, with its majority of one, formed a new government on 24th May 2021.

BACKGROUND

  1. A General Election of the 51 constituency members of the Samoa Legislative Assembly was held on the 9th April 2021. The election was contested in large part by two main political rivals[1]. First there was the Human Rights Protection Party (HRPP), which had been in government for some forty years. Its longevity and dominance was such that during the last session of Parliament, the HRPP held over two thirds of the seats. The second main political party was a relatively new party – FAST, which was established less than a year before the election by a former speaker of a HRPP government.
  2. On election night both HRPP and FAST gained 25 seats apiece. An independent member, after a short period of consultation with the people of his constituency, decided to endorse and support FAST. This important step meant that FAST had or could call on the support of 26 seats, a working majority, in a Legislative Assembly.
  3. Around the time of the independent member’s decision to side with the FAST party, the Office of the Electoral Commissioner (OEC) recommended the appointment of a HRPP woman candidate as an additional member of Parliament to satisfy the constitutional guarantee of a minimum number of women members in Art 44(1A).
  4. The consequence of the OEC’s determination to recommend the appointment of the 6th woman member left the parties deadlocked at 26 seats apiece.
  5. This Court, on appeal, ruled on 2 June 2021 that the OEC could only recommend the appointment of the sixth woman as an additional member after all the electoral petitions and by elections, if any, had been completed, because it was not inevitable that recourse to the constitutional guarantee of 6 seats was needed. More women candidates might successfully win a by election of a seat vacated following a successful electoral petition against a winning candidate.

The facts relevant to the current proceedings

  1. On 20th of May 2021, the Head of State issued the following proclamation:
  2. This Proclamation dated 20 May 2021 was then, without notice, suspended, late on Saturday night 22nd May 2021. The following proclamation was issued from the Head of State:

PROCLO[A]MATION FROM THE HEAD OF STATE SUSPENSION OF THE OFFICIAL OPENING OF THE XVIITH PARLIAMENTOF THE INDEPENDENT STATE OF SAMOA

I, TUIMALEALIIFANO VA’ALETOA SUALAUVI II, O LE AO O LE MALO, HEAD STATE pursuant to my authority as the HEAD OF STATE OF SAMOA, including Articles 52 of the CONSTITUTION OF THE INDEPENDENT STATE OF SAMOA, I HEREBY SUSPEND my PROCLAMATION FOR THE OFFICIAL OPENING OF THE XVIIth PARLIAMENT dated 20 MAY 2021 until such time as to be announced and for reasons that I will make known in due course.
  1. Lawyers for FAST in response made an urgent application for directions/order and certificate consequent on declarations, dated 23 May 2021.
  2. In an extraordinary sitting, the Supreme Court (SC) convened on a Sunday for an urgent hearing at 11am, 23 May 2021. FAST’s urgent application was made on a without notice basis, but the Court directed that it be served on the Attorney General (AG) on a Pickwick basis.
  3. The essence of FAST’s urgent application was to seek declarations that the Head of State’s 20th May 2021 Proclamation was indeed a lawful proclamation, and that the Saturday suspension on 22 May 2021 was inconsistent with the SC’s decision of 17 May 2021 and Article 52 of the Constitution and therefore unlawful and of no effect.
  4. After hearing from Ms Heather Latu and Mr George Latu for FAST, and after affording the AG an opportunity to be heard – the AG appeared as a courtesy to the Court but declined to participate at the urgently convened hearing on the basis that she did not have instructions on the matter, the SC delivered an oral decision with its reasons delivered later in a written judgment.
  5. The SC made 3 orders:
    1. A permanent order that the Proclamation made by the Head of State on Thursday 20 May 2021 for the first sitting of the 17th Parliament of Samoa on Monday 24 May 2021 was made in accordance with the requirements of Art 52 of the Constitution and the declaration of the SC contained in paragraph [94](4) of the judgment of the court dated 21 May 2021, is lawful.
    2. An interim order that any purported revocation of the 20 May Proclamation, including the 22 May Proclamation is inconsistent with the declaration in paragraph [94](4) of the 21 May judgment and Art 52 of the Constitution and is thereby unlawful and of no effect, until further order of the court.
    3. A permanent order that the Clerk of the Legislative Assembly be served immediately with a copy of the orders as well as the AG and the Head of State.
  6. Order number 2 was made on an interim basis – until further order of the Court. The interim nature of the order was so the Head of State, with the limited time available, could apply to set aside the setting aside of his proclamation. The opportunity was not taken up immediately and an application to set aside was made by the AG on the 25th May 2021, but by then the opportunity to set aside the interim order was overtaken by events of 24 May 2021.
  7. It appears that following the making of the SC orders on the afternoon of 23rd May 2021, the Clerk of the Legislative Assembly, Tiatia Graeme Tualaulelei (“Mr Tualaulelei”), attended a FAST party caucus to discuss arrangements for the 24th May 2021 swearing in. The meeting was held at about 5pm in the afternoon.
  8. Plans for the swearing in began to unravel later that evening. Ms Heather Latu, counsel for the FAST party, deposed in her affidavit, dated 9 June 2021:
  9. In support of her sworn assertion that FAST were trying to work with the advice that the Head of State would not be attending the swearing in, Ms. Heather Latu exhibited a Memorandum dated 23 May 2021, which she prepared and sent to Mr Tualaulelei. The terms of this Memorandum are significant in the narrative of events for it attached various draft resolutions which placed the Clerk in the position of administering the Oaths that the Head of State was responsible to administer under the Constitution. Ms. Heather Latu noted that the reason for the Clerk’s extraordinary involvement was because of the extenuating circumstances of two Constitutional Office holders (the Head of State and the Deputy Head of State) being unwilling to perform their functions and duties under the Constitution.
  10. The Court notes that none of the events or matters discussed by Ms Heather Latu were challenged by Mr. Tualaulelei, either in his later affidavit dated 18 June 2021, or in any other affidavit. The material inferences we draw from Ms Heather Latu’s evidence are as follows:
  11. As we will discuss in due course, these findings of fact are critical in our assessment of the issues in this appeal.
  12. A further and unexpected turn of events happened some time later that Sunday evening when the Office of the Speaker of the Legislative Assembly became involved and issued the following public notice:
  13. At the Court of Appeal mentions, Mr Faafisi was directed to be served with the Notice of Appeal and Notice of Cross Appeal, together with a number of other persons noted on the intituling of this decision. At the Appeal hearing his Counsel filed a Memorandum advising that Mr Faafisi considered he had no Constitutional role in the convening of Parliament. In explanation of Mr Faafisi’s position the memorandum noted that his role was limited to being involved when the Clerk of the House informed him in respect of the Guest list, sitting of guests and the Order Paper.
  14. Mr Faafisi advised that he did not want to engage in the appeal. We are therefore unable to reconcile Mr Faafisi’s assertions though his lawyer of a minimalist or administrative role with the terms of his public announcement postponing the calling of Parliament, or the evidence of Mr Tualaulelei, who deposed on oath that Mr Faafisi directed that Parliament be locked and the key delivered to him, see below.
  15. The postponement of the opening of Parliament and the locking the Parliament’s doors based on a Proclamation which the SC had earlier in the day declared to be invalid, meant Mr Faafisi appears to have placed himself above the law. Although we note that Mr Faafisi’s actions were deeply regrettable in terms of the relationship between the Parliament and the Judiciary, we also recognise that the Constitution provides the complete answer to unwanted unconstitutional behaviour of its elected officials – a general election.

THE SWEARING IN

(a) Before the swearing in on 24 May 2021

  1. On the morning of the 24th May 2021, the share of constituency seats between the parties were FAST 26 and HRPP 25. The share of seats between the parties had been that way since 17th May 2021. As at 24th May 2021 the operative interpretation of Art.44(1A) as determined by the SC was that only 5 women members were guaranteed under the Constitution.
  2. Neither the Head of State’s purported suspension of the proclamation to convene Parliament until further notice, nor the Speaker’s postponement of the official swearing in, appeared to have any effect on many hundreds of Samoans who turned up to the historic Tiafau malae at Mulinuu. A large marquee was set up beside Parliament House, in which FAST members and supporters sat to await the convening of Parliament in Parliament House.
  3. All the members of the Judiciary, from the Supreme and District Courts, and Judges of the Land and Titles Court, entered Parliament grounds under Police escort at about 9.30am (the time nominated in the Proclamation of 20 May 2021). The Judiciary was unaware that the Head of State had already advised the Clerk, the day before, on Sunday, that he refused to attend the opening. The door to Parliament House was closed, and as the Chief Justice discovered, could not be opened. Mr Tualaulelei explains what happened as follows in his affidavit dated 24 May 2021:
    1. THAT today, Monday, 24 May 2021, at on or about 8:45am I arrived at my Office at the Assembly (Mulinuu), and shortly after some three (3) members of the Political Party Faatuatua ile Atua Samoa ua Tasi ('FAST') arrived at my Office and asked me to open the Chamber (where Parliament usually convenes).
    2. THAT I informed the FAST members that the scheduled Opening of Parliament has been postponed as per the Speakers Notice dated 23 May 2021 and his letter to me. I also informed the same members of the FAST Party that I will make an announcement to their Party outside regarding the Speakers decision.
    3. THAT on or about 10:30am, I made my way outside the Chamber and informed the FAST gathering there (outside of the Chamber) of the Speakers decision and reaffirmed the Head of State's Proclamation of 22 May 2021.
    4. THAT I also advised the FAST gathering, that the HOS will not be present to any planned gathering this morning.
    5. THAT the Honourable Speaker instructed me to hand over to him the keys of the Chambers of the Legislative Assembly, and I sent my Executive Assistant to hand over the keys to the Sergeant of Arms to be delivered to the Honourable Speaker. I was later informed that the keys were received by the Honourable Speaker at his residence.
    6. THAT pursuant to the Honourable Speakers Notice and his letter to me, the Chambers remained closed throughout the whole day, and to my knowledge no one entered the Chambers.
    7. THAT I left my Office at on or about 11:15am.
    8. THAT I did not return to the Chambers at Mulinuu for the rest of the day as I stayed away for the reminder of the day as the people from the FAST gathering might insist on opening the Chamber as they did earlier that morning.
  4. It is well to note that the Clerk is someone with long experience, his involvement with the Legislative Assembly extends to more than thirty years. He says he went home before lunchtime and watched the swearing in on a social media feed, just in case someone from FAST insisted on opening the Chamber, as they had tried to do earlier that morning.
  5. Mr Tualaulelei confirms that the Head of State was not in attendance at the swearing in, and that he considered the ceremony was unlawful and unconstitutional because of that and because the swearing in ceremony was not conducted by Officials.

(b)What happened at the swearing in

  1. Ms Heather Latu in her affidavit sets out in some detail the events of the swearing in, and they can be summarised as follows:

The motions were carried unanimously by all 26 elected Members present.

(f) The Speaker - Mr. Papali’i then took his Oath as prescribed under the Constitution administered by Mr. Latu.
(g) Upon being sworn in as Speaker, Ms. Heather Latu withdrew and the Speaker presided over the Assembly.
(h) All 26 Members were duly sworn in by the Speaker.
(i) The Speaker then put the question of whether any Member commanded the confidence of the majority of Members present, to which Hon Fiame Mata’afa responded in the affirmative. A resolution that the Hon Fiame Mata’afa commanded the majority of Members of the Legislative Assembly of Samoa was seconded and unanimously confirmed by all 26 Members, and the motion was carried.
(j) The Hon Fiame Mata’afa then took the Oath of the Prime Minister and the Speaker announced that the Hon Fiame Mata’afa had been duly appointed as Prime Minister.
(k) The Hon Fiame Mata’afa then announced her Cabinet and those persons had their Oaths administered by the Speaker.
  1. The AG did not challenge this account or sequence of events.

(c)What happened after the swearing in

  1. The short answer is nothing. There was no hand over of power, but further litigation as a result of the swearing in.

Proceedings in the Supreme Court-Decision of 28 June 2021

  1. On 25 May 2021, the AG made an Ex-Parte Notice of Motion for Interim Orders to stay and/or suspend any legal effect of the unconstitutional and unlawful FAST purported swearing in ceremony. The Respondents, in response, relied on the legal doctrine of necessity.
  2. The SC determined the issues in dispute as follows (as summarised);
(b) The First Respondents had no legal authority under the Constitution, Standing orders of the Parliament of Samoa or otherwise to swear-in or to officiate.
(c) It was unconstitutional and unlawful because the Head of State and other necessary constitutional officers were not present.
  1. The Court considered that if the answer to the question concerning the validity of the swearing in was in the negative – that the Legislative Assembly had not validly met, then the position would remain that Parliament must meet pursuant to the original Proclamation issued by the Head of State on 20th May 2021.
  2. Whilst acknowledging the existence of the doctrine of necessity, the Court declined to apply it to the matter before them. The court considered that the respondents still had other options available to them; they included the further urgent intervention of the court in directing the Clerk and other “relevant actors” to proceed with the implementation of the 20 May Proclamation of the Head of State and/or in respect of unlocking the Parliamentary Chamber and premises. The Court considered that if circumstances changed and the “relevant actors” did not expeditiously implement the 20 May 2021 Proclamation the Court should and would revisit the issue in the light of changed facts and decide if the doctrine of necessity now applied.
  3. The “relevant actors” have unequivocally rejected the SC’s order to convene the Parliament of Samoa within 7 days.
  4. Instead, the Head of State issued a Proclamation on 4th July 2021 (a Sunday) which called for the convening of Parliament on 2 August 2021 at 9.30am. The convening of Parliament on that date was conditional on the resolution of uncertainty as to membership of Parliament and his assertion that there was no clear majority. The Head of State considered that if this uncertainty had not been resolved by the 2nd August 2021 that he would consider other options available to him.
  5. The Head of State also said in the same proclamation:

FINALLY, through this PROCLAMATION, I REVOKE AND REPLACE my Proclamation of 20th May 2021, that called for the meeting of the XVII Parliament for Monday 24th May 2021. That Proclamation has lapsed and is of no effect at all.

THE APPEAL

  1. The appeal arrived in this Court in parts. The AG was granted leave to appeal the orders made against her. The Respondent was given leave to cross appeal the order that the swearing in was unlawful and unconstitutional.
  2. The SC also referred to this Court the issues which arose after the expiry of the order for Parliament to convene within 7 days. Section 13 of the Judicature Act 2020 allows the removal of proceedings from the Supreme Court into the Court of Appeal and on removal, the Court of Appeal has the same power to adjudicate on the proceedings as the Supreme Court.
  3. The Court granted leave to the Samoa Law Society and HRPP INC to act as interveners, and directed service on the caretaker Prime Minister, caretaker Deputy Prime Minister, the Head of State, caretaker Speaker, caretaker members of cabinet, and Clerk of the Legislative Assembly.

The issues

  1. The parties by way of joint Memorandum provided the Court with a set of issues. We consider the following to be the main issues:
    1. Was the swearing in ceremony held on the 24th May 2021 Constitutional?
    2. If the swearing in ceremony was not Constitutional, does the doctrine of necessity apply.
  2. There are several supplementary issues that will addressed in the Court’s analysis and discussion.

ANALYSIS AND DISCUSSION

Issue One: Was the swearing in ceremony held on the 24th May 2021 Constitutional?

  1. The Head of State’s 20th May 2021 Proclamation that the Parliament of Samoa be convened set out the time, date and venue for the highly anticipated event.
  2. The FAST swearing in took place on the 24th day of May, as proclaimed, but it was held later on that day at 5pm instead of 9.30am. This change of time appears to have been a concern to the SC.
  3. It turns out, as Mr Tualaulelei, deposed the Head of State had actually indicated, on Sunday the 23rd May 2021, his refusal to attend the swearing in on the 24th May 2021. We therefore do not consider the change in time to be a material difference, such that on its own it would negate a gathering which would otherwise materially satisfy the requirements of a swearing in. It was not only the Head of State who decided to stay away, for whatever his reasons, the Deputy Head of State also refused to attend the swearing in. The caretaker Speaker is another who failed or refused to attend the swearing in; according to Mr Tualaulelei, Mr Faafisi had been delivered the key or keys to the Parliament building. As earlier noted, Mr Tualaulelei was at Parliament on the 24th May 2021 but that at 11.15 am, in order to avoid requests to open the Parliament Building, he went home. The successfully elected members of the HRPP some of whom included caretaker cabinet members failed or refused to attend the swearing in.
  4. We are left to consider whether this litany of refusals or failures to attend means that there could not in those circumstances be a valid swearing in. We discuss this question below in our decision.
  5. We analyse what occurred on the 24th May 2021 by considering whether a meeting of the Legislative Assembly of the Parliament of the Independent State of Samoa took place at the Tiafau malae, notwithstanding the absence of the persons listed earlier.
  6. We intend to discuss the following issues:

(a) What is required for the convening of the Legislative Assembly

  1. Part V of the Constitution provides for a Parliament which consists of the Head of State and the Legislative Assembly: Art. 42.
  2. The Legislative Assembly is defined in Art 111 of the Constitution to be the Legislative Assembly constituted under Art 44. Under Art 44(1) the Legislative Assembly consists of one member for each of 51 electoral constituencies. Additional members may be added under Art. 44(1A).
  3. We consider that what is required for the convening of the Legislative Assembly requires us to look to see whether:

(b) Has the meeting been lawfully convened – the requirements of Article 52.

  1. The rules for the convening of the Legislative Assembly following a general election are set out in Article 52, which is in the following terms:

52. Meetings of the Legislative Assembly - The Legislative Assembly shall meet at such times and at such places as the Head of State appoints from time to time in that behalf by notice published in the Samoa Gazette and recorded in the Savali: PROVIDED THAT the Assembly shall meet “not later” than 45 days after the holding of a general election and at least once in every year thereafter, so that a period of 12 months shall not intervene between the last sitting of the Assembly in one session and the first sitting thereof in the next session.

  1. We consider that this Article gives the Head of State the power to appoint the time and place of a meeting of the Legislative Assembly, provided the first meeting is held not later than 45 days after the holding of a general election and once in every year thereafter. Mr Peter Lithgow for HRPP suggested that it is not for the Court but for the Head of State to determine when within that first 45 days he should call the first meeting of the Assembly. That must undoubtedly be correct, there will be a number of political or policy considerations that may not be properly justiciable which go to the settling on a suitable date. Mr Peter Lithgow however argued that it was for the Head of State to determine when “45 days” was to commence. We reject Mr Lithgow’s further proposition.
  2. We consider that the issue of when the 45-day period runs, is a question of constitutional interpretation, and it is for the Court to determine this pursuant to its independent role of interpreting the meaning of the Constitution. In our view the 45 days runs from the date of the General Election Returns from the Office of the Electoral Commissioner. This is the prevailing practice in Samoa. It is an interpretation which has credibility in constitutional jurisprudence. We, respectfully, agree with the Mr Robert Lithgow QC’s submission, on behalf of the Samoa Law Society, supporting the central proposition that the elected representatives must be facilitated to meet, elect a speaker, be sworn in and thereafter meet the functional obligations of the Constitution wherein the methodology of forming governments is achieved.
  3. Learned Professor Joseph in his seminal work Joseph on Constitutional and Administrative Law (5th ed)[2] , refers to the NZ equivalent – section 19 Constitution Act 1986 as a silent sentinel. Section 19 of the New Zealand Act is far less complicated than our Article 52, but its message is the same – the need to promptly convene Parliament after a general election:
  4. We note that the issue of when the time runs has been determined by the New Zealand Parliament to be 6 weeks after the day fixed for the return of the writs.
  5. As Professor Joseph notes, compliance with this section has resulted in close calls[3]:
  6. We consider that an argument that the 45-day period does not commence until after petitions and by elections, is inconsistent with the constitutional aim of convening the elected representatives so that they can form responsible and democratic government. We do not overlook the possibility of a different government being in power after the by elections, but that possibility does not justify the more important Constitutional imperative for Samoa of having a responsible government in place as soon as is reasonably possible after a general election.
  7. It may not be a well-known fact that the Head of State, except as otherwise provided in the Constitution, has no option but to comply with the advice of the Cabinet or the Prime Minister; such advice is deemed to be accepted by the Head of State after a period of 7 days. When the Head of State issues a proclamation such as the one he issued on the 4th of July 2021, in which he speaks about a direct threat to the legal authority, powers and integrity of Office of the Head of State – what is neglected to be mentioned is that the legal authority and the powers of the Head of State arise only under the Constitution; he does not have any other authority which sits alongside, or which trumps the Constitution. Respectfully, the Head of States authority is to do what he is told to do by Cabinet or the Prime Minister as his responsible Minister. He is like everyone else is a servant of the Constitution, not its Master.
  8. The meaning of the Constitution is a matter for the Court, not a titular head such as the Head of State. The HOS powers are primarily ceremonial and administrative.

(c)The Head of State’s power under Art. 52

  1. The issue is if the Head of State does not call Parliament within 45 days, whether the Head of State can nevertheless call Parliament for its first sitting after the expiry of the 45 days. This issue arises out of the Head of State’s proclamation dated 4 July 2021 purporting to convene Parliament for its first siting on the 2nd August 2021.
  2. We do not consider the Head of State has the Constitutional authority to convene the first sitting of Parliament after the expiration of the 45th day following a general election. The Head of State is by then functus, his power to call the first meeting has expired. The Head of State does not have the Constitutional authority to convene the first meeting whenever he likes after the 45th day, as he has purported to do in his 4th July 2021 proclamation. Once the time within which the power to convene expires, the Head of State or somebody on the Head of State’s behalf needs to apply to the Supreme Court for directions as to when the Parliament should be first convened.
  3. The Constitution reposes in the Supreme Court the original, appellate and revisional jurisdiction and stood it possessed and able to exercise all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa. These important powers have been given to the Judiciary, the independent arm of government, which has the duty to protect the Constitution and uphold the rule of law.
  4. We have highlighted above the relevant powers of the Supreme Court, which we consider is wide enough to give the Supreme Court the jurisdiction to do two things. First it may authorise the Head of State to convene the Legislative Assembly after 45 days in the event that that has not been possible, say as in the case where there has been a natural disaster or similar. Second, the Supreme Court itself may order the convening of Legislative Assembly where a Head of State fails or refuses to convene Parliament within 45 days of the general election. Associated with the Supreme Court’s jurisdiction to convene the Legislative Assembly, are ancillary powers to give effect to such a direction, whether these arising under the Supreme Court Civil Procedure Rules or its inherent jurisdiction.

(d) Relationship between Articles 44(1), 44(1A) and Art 52 – who is entitled to attend the meeting?

  1. This issue was made a live issue by the parties.
  2. The AG in her submissions suggested that the interaction of these Articles of the Constitution have not yet been determined by the Court. The AG argued that if Art 44(1A) prevailed over Art 52, then the calling of the Assembly must wait until Art (44)(1A) is complied with. In other words, the 45 days begins when the petitions and by elections have been concluded and a sixth woman member has been appointed. Mr Rishworth submitted that Art 44(1A) is both an additional reason that supports the Supreme Court’s conclusion that the “assembly” on 24 May 2021 was unlawful and unconstitutional, and a reason why that decision cannot now be revisited under the doctrine of necessity. Why? Because it cannot be necessary to validate an unlawful assembly when its unlawfulness rests on its non-compliance with the Constitution.
  3. Mr Rishworth then builds his submission by not starting with the plain words of the relevant provision and other relevant parts of the Constitution, but by looking outside of the Constitution and to the Constitution Convention debates. Here Mr Rishworth finds support for his suggested alignment of the two Articles. Mr Rishworth submits the simple point is that Art 44(1A) has introduced an imperative – a 10% female requirement – without which an Assembly does not meet the constitutional definition. Further support of his submission is that Art 44(1A) was introduced after Art 52, and its later enactment may tacitly relax the otherwise mandatory nature of Art 52 that the Assembly must meet within 45 days of a general election. Lastly, he submits that the two Articles need to be read together, and they can each be given effect by reading the provisions together to require postponement of Parliament’s convening until after the petitions and by elections – in the case where the minimum threshold of women members has not yet been met.
  4. We reject Mr Rishworth’s submissions. They are contrary to the relevant provisions of the Constitution.
  5. Firstly, we consider Article 44(1), which provides the following definition of who may be a member of the Legislative Assembly:
  6. The Legislative Assembly shall consist of one member elected for each of 51 electoral constituencies. As at 24th May 2021, this requirement had been satisfied – there was in fact one member who had been elected for each of Samoa’s electoral constituencies and therefore Article 44(1) is satisfied.
  7. We then turn to Article 44(1A), and this provides:
  8. The argument is that 10% of members must be women before there is a body known as the Legislative Assembly. Apparently, the ambiguity arises because of the use of the word “consist” in both Articles. On the one hand in Art 44(1) the Legislative Assembly consists of 51 constituency members, then on the other hand, by Art 44(1A) the Legislative Assembly is comprised of a minimum of 10% women. We think there is simply no merit in this interpretation, at all.
  9. It is clear that a meeting of the members of the Legislative Assembly is lawful even when there is fewer than 51 members present. Such a valid meeting arises under Art. 56 which provides.
  10. We consider Article 56 plainly provides that Parliament may be convened and shall not be disqualified for the transaction of business by reason of any vacancy – including any vacancy not filled at a general election. This may be a vacancy of a constituency seat or an additional woman member added under Art 44(1A), which this Court has already determined is a matter to be considered after the holding of by elections, if any.
  11. So, if less than the full complement of members can validly transact the business of the Legislative Assembly, as provided in Art 56, then is there a minimum number? Again, the Constitution provides a plain and clear answer.
  12. Article 57 of the Constitution refers to a quorum:
  13. The quorum for the Legislative Assembly to transact business – such as say the swearing in of its members, is said to be one-half of the total number of Members of Parliament (excluding vacancies).
  14. We consider that Articles 56 and 57 mean:
  15. In practical terms Art 57 when applied to the facts of this case means that for the Legislative Assembly to validly meet there must be at least half of the 51 constituency members (under Art 44(1)). The Art 44(1A) possible vacancy is expressly excluded from the total number of members to be used to determine the quorum. In this case the number of members who needed to be present is 25.5, which when rounded up is 26. All 26 members of the FAST party attended the swearing in.
  16. The fact that the HRPP members refused or failed to turn up to the convening of Parliament does not have any bearing on the legitimacy that the Constitution gave to the meeting of the members from FAST, whom for all intents and purposes had the necessary numbers to convene a Legislative Assembly on 24 May 2021.
  17. Any argument that the Legislative Assembly cannot be convened until all members are present fails and must yield to Articles 56 and 57.

(e)The effect of Article 49(1A)

  1. The meeting in our view turns into a Legislative Assembly when the meeting is called to order and business of the meeting is transacted. This occurs when the Speaker is appointed or endorsed, and the swearing in of the Prime Minister and Cabinet and the members of Parliament who are thereby entitled to vote in a meeting of the Legislative Assembly.
  2. We note the effect of Art. 49 which suggests to us that once the majority of members has selected a speaker, then that person is duly elected by operation of law. The relevant Articles are set out below.
  3. The interpretation of this exception is critical to our assessment of the question of the legality of the swearing in ceremony. We consider that Art 49(1A) legitimises the member nominated by the majority – FAST to be the Speaker – by operation of law. If therefore the Legislative Assembly met on the 24th May 2021 and they – being the majority, nominated and endorsed a member to be speaker, then in law, the Speaker has been duly elected.
  4. Why the operation of Art 49(1A) is highly relevant in the circumstances of this case is because it makes quite plain that although the Speaker is required to take his oath before the Head of State, he does so having already attained the position of Speaker under Art. 49(1A). In other words, the oath does not legitimise the speaker. In this circumstance the Head of States role to swear in the Speaker is ceremonial and can be undertaken by another, in the absence of the Head of State, for whatever reason.

WAS THE SWEARING IN CONSTITUTIONAL AND THEREFORE LAWFUL IN AND OF ITSELF

  1. From all of above, we consider that there has been satisfaction of a number of material requirements of the Constitution, which relate to Part V of the Constitution concerning the formation of a Legislative Assembly. We analyse as follows.
  2. We find the following events to have occurred on the 24th May 2021:

Is the Head of State the only entity who can swear in the office holders?

  1. This argument arises by virtue of the express reference in the Constitution to the Head of State being the person to administer the oaths of office, with respect to the Speaker and the Prime Minister. Both of those positions are recognized as the leaders of their respective parts of the separation of powers – the Parliament and the Executive. The Chief Justice is also sworn in by the Head of State.
  2. Whilst in the normal course of events, it is undoubtedly the case that the Head of State carries out that function, we consider the role to be ceremonial, as is the case with most instances where a titular head of state administers the oath of office. The Head of State ‘s administration of the oath brings gravitas to the occasion.
  3. This year however was remarkably different to the normal course of events of other years. The events this year could not have more starkly highlighted gaps in the Constitution. What if the Head of State decides not to attend the swearing in? Who then or does the event simply not take place? What if the Deputy Head of State refuses to attend the swearing in to administer the oath? Does it mean the Independent State of Samoa has no Legislative Assembly following a general election until the Head of State or his Deputy Head of State decide to attend to carry out their ceremonial duties? These are the very issues which have arisen in this case.
  4. We do not consider that the framers of the Constitution would ever have thought possible that the Head of State would deliberately stay away from the swearing in of Parliament. But this year he has. The Head of State made that decision the day before the day he had earlier proclaimed to be the appointed day for the swearing in of the XVIIth Parliament of Samoa.
  5. We should reflect that the Head of State at his swearing in gave his Oath to God as follows:
  6. Having lawfully convened a meeting of the Legislative Assembly, by his Proclamation dated 20 May 2021, the Head of State had a duty to not just attend the meeting he called, but to administer the oaths of office to those who asserted their Constitutional rights to govern Samoa under the authority of the Constitution, he swore to uphold.
  7. We do not overlook the overarching purpose of Part V of the Constitution is to provide for the establishment of Parliament in Samoa. Such a purpose cannot be the subject of capriciousness or the politics of the moment.
  8. We reject the notion that the framers intended the administration of the oath of office to rest solely on the Head of State, and that is because as was eloquently submitted by Mr Robert Lithgow QC, on behalf of the Samoa Law Society, the person who makes the oath gives his or her oath to God and not to the Head of State. We consider that the act of swearing in the relevant Offices and members of the Legislative Assembly, is a ceremonial role. It is, by the Constitution, a duty which is allocated to the Head of State. However, if he does not attend the ceremony, then someone else can carry out that ceremonial function.
  9. We therefore determine that where the Head of State fails or refuses to carry out his Constitutional duty to swear in the incoming government at a convening of Parliament he has earlier called, and which proclamation has been endorsed by the Supreme Court, the Constitutional purpose of forming a Legislative Assembly can be facilitated by someone else carrying out that ceremonial duty.
  10. The facts of this case are that when the Clerk did not answer his name, because he had gone home, Ms Heather Latu, formerly Samoa’s longest serving Attorney General was appointed the Acting Clerk. Ms Heather Latu then moved for the swearing in of Mr Papali’i who had been selected by FAST to be the Speaker. The oath was administered in accordance with the terms of the Constitution by a Mr Matafeo George Latu. It is noteworthy that Mr Latu was at the time one of FAST’s lawyers, an officer of the Supreme Court, but that it was in his capacity as a Notary Public, an office which is acknowledged worldwide, that he administered the Oath of Office. We endorse Mr Latu as an appropriate substitute for the Head of State to carry out the ceremonial function of the Head of State to swear in the Speaker.
  11. The Speaker having been validly sworn in, we consider that at that time there was a meeting of the Legislative Assembly of the XVIIth Parliament of the Independent State of Samoa.

Venue

  1. We respectfully differ from the decision of the learned members of the Supreme Court.
  2. That the convening of the first meeting of the Legislative Assembly was undertaken in a marquee points to the extraordinary steps which were taken by the Clerk and the Caretaker Speaker. The Caretaker Speaker’s determination to postpone the convening of Parliament and locking the door is unprecedented in Samoa’s history and the Clerk’s retreat to his home, and his reasons– the people from the FAST gathering might insist on opening the Chamber as they did earlier that morning.
  3. We consider that the important purpose behind the convening of Parliament should not be defeated by an inconvenient and unattractive or even undignified venue, because someone deliberately denied access to the Parliament of Samoa.

Tradition and Custom

  1. We are in agreement with the observations of the Court below concerning the role that tradition and custom play and how they make the convening of a new Parliament a day a matter of national pride and celebration. These are important cultural considerations that underpin public confidence in the formation of a new government, and in the application of the relevant constitutional rules.
  2. We, however, consider that the formation of a new government pursuant to the terms of the Constitution cannot be trumped by the failure to observe tradition and custom in circumstances where there has been obstruction to a traditional swearing in ceremony. Article 71 of the Constitution provides that the Court may take custom into account. We hold that if the consideration of custom is discretionary then it cannot be an imperative that custom must be carried out for a swearing in to take place.

FINDINGS

  1. We consider the swearing in on 24 May 2021 satisfies the requirements of the Constitution as to the legitimate convening of the Legislative Assembly and the valid appointments made at that meeting.
  2. Having come to the view that we have, we do not find that it is appropriate for us to consider the issues concerning necessity. Nor is it necessary for this Court to consider the terms of the appeal, which were primarily focused on the nature of the orders made by the Court below, as a consequence of that Court’s determination that the swearing in on 24 May 2021 was unlawful.
  3. We wish to add that there is not in reality a lot of difference between the findings of this Court and that of the very learned members of the Supreme Court. Indeed, it can be said that the response to the Supreme Court’s direction to convene Parliament – which that Supreme Court was able to so order, has put a new light on the Head of State’s actions around the 22nd to the 24th May 2021. We consider that had the Head of State’s unambiguous rejection of the Supreme Court’s jurisdiction been clear at the time of the Supreme Court hearing, we consider that the Supreme Court may well have come to a different conclusion concerning the legality of the 24th May 2021 swearing in. It is plain to us that the Supreme Court’s decision relied on the good faith of the relevant actors whom all owe obligations under the Constitution to give effect to the order to convene. Regrettably, such reliance was misplaced.
  4. The Constitution is the supreme law of Samoa, and as such the Supreme Court has all original, appellate and, revisional jurisdiction and possesses and exercises all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa, which obviously includes the Constitution of Samoa. The Supreme Court therefore has the power to make the orders directing the convening of Parliament.
  5. The Head of State’s Proclamation and assertion of his power on the 4th July 2021 marks in our view behaviour which is out of line with the functions of that high office under the Constitution. The Head of State’s assertion that the Supreme Court has no jurisdiction to order the convening of Parliament is misconceived.
  6. The Office of the Head of State derives its powers exclusively from the Constitution. Whether the Head of State has any other source of power is not a matter that was argued before this Court, and it is a topic which is best left to a more appropriate time. In this matter, we only consider the scope of the Head of State’s powers with respect to the convening of the Legislative Assembly and a swearing in ceremony, under Art 52. As we have found, the Head of State has shown a basic lack of understanding of his Constitutional role and an equally basic lack of understanding about the role of the Supreme Court and the scope of the Court’s powers under the Constitution. We see it as beyond reproach that the Supreme Court can order the Head of State to convene Parliament if that is what the Constitution requires. Who determines when Parliament may be convened may, at times, fall on the Supreme Court.
  7. This Court determines that the swearing in on the 24th May 2021 was in compliance with the terms of the Constitution, and it is therefore lawful.
  8. In summary, we overturn the SC decision which determined the 24th May 2021 swearing in to be unconstitutional.
  9. Given our decision, we do not need to consider the AG’s appeal as to the terms of the orders which were made against her. Whilst they have some academic interest, in terms of finding solutions to the current political impasse, we consider them to be red herrings.
  10. We note that the practical consequence of the declaration is that the FAST party, having been constitutionally sworn in on 24 May 2021 are entitled to take office. er, for the avoidance of d of doubt and confusion, although the FAST government were entitled to take power on the 24th We consequently validate the caretaker governments actions up unte time and date of this judgment and note that from this pois point, the Court does not recognize them as the Government of the Independent State of Samoa, because of the fact that there is a new Government. That recognition will obviously change should the result of the by elections and any adjustments under Art 44(1A) give them the majority of seats of the Legislative Assembly.
  11. We also note that any action taken individually or collectively by those who have been in the caretaker government role, from this point forward, in the name of a caretaker government, will be regarded by the Court as unconstitutional and unlawful, and therefore of no effect. Further that the said actors are personally liable for any actions that they take.
  12. It is now for the new Prime Minister and her Government to give effect to this judgment and the declarations contained within.

CONCLUSION

  1. The Supreme Court is the guardian of the Constitution, and it will continue to protect and maintain the rule of law and democracy under the supreme law.
  2. We come to the following conclusions;
  3. We declare that the swearing in carried out on 24 May 2021 at the Tiafau Malae of elected members of Parliament, to be consistent with the terms of the Constitution, the supreme law of Samoa, and therefore lawful.

CHIEF JUSTICE PERESE
JUSTICE TUATAGALOA
JUSTICE TUALA-WARREN

[1] There were also a number of independent candidates and candidates representing smaller political parties and or movemenets. As the election results show, all of the 51 seats are held by either HRPP or FAST members.
[2] At 19.7.5(3)
[3] Idem

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