Pita v Attorney General [1995] WSSC 1; Misc 14033 (22 August 1995)

IN THE SUPREME COURT OF WESTERN SAMOA
HELD AT APIA

MISC. 14033

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

AND

IN THE MATTER of the Electoral Amendment Act 1990, the Electoral Act 1963,
the Judicature Ordinance 1961 and the Declaratory Judgments Act 1988:

BETWEEN

LE TAGALOAPITA of Alafua and Sili, Member of Parliament,
FAAMATUAINU TALA MAILEI of Lufilufi,
AI ONO FANAAFI of Fasitoouta and Alafua,
TUAIMA LO FAAU TU of Mataiatu-uta,
MANUO SIUI of Lufilufi,
MOEFAAUO LEASO PAUESI of Lufilufi,
AUFAI UELESE AMOSA of Saleaula and Afega,
all Samoan Matais:
Applicants

AND

THE ATTORNEY GENERAL
on behalf lf of the REGISTRAR OF ELECTORS AND VOTERS
Respondent

Counsel: M M Bailey for respondent
A S Vaai and T Malifa for applicants

Hearing: 17 August 1995
Judgment: 22 August 1995

JUDGMENT OF CASEY,J

The applicants, who are all Matais, seek the following declarations:-

"(1) Section 5 of the Electoral Amendment Act 1990 is void pursuant to Article 2 of the Constitution of the Independent State of Western Samoa; and

(2) The Election of forty-five (45) Members of Parliament from Territorial Constituencies following the General Elections of 5th of April. 1991 is void".

In support they have filed affidavits, setting; out their background with descriptions of Samoan society and of the events leading to the adoption of clauses of the Constitution relevant to these proceedings. The Attorney-General challenged the admissibility of much of their contents and sought an order striking them out. It was refused by Lussick J on 11 October 1994 because he thought this objection could be more appropriately decided at the hearing of the main proceedings. It quickly became apparent that the disputed affidavits had no direct bearing on the interpretation of the Constitution, which was the only issue for resolution on the motion; but Ms Bailey had no objection to their being allowed to remain on the record insofar as they afforded helpful background material for the Court.
A Constitutional Convention of Samoan representatives set up in 1960 approved the adoption and enactment of the Constitution of the Independent State of Western Samoa which came into force on 1 January 1962. As Mr Vaai pointed out, it was developed as an "autochthonous" or homegrown constitution by Western Samoans themselves, not one imposed by outside entities. The members of the Convention had the advice and assistance of recognised international experts in its drafting. Article 2(2) provides that any law passed after the date it came into force shall be void to the extent that it is inconsistent with the Constitution. The Electoral Act of 1963 provided in section 16(1) that every person should. be qualified to be registered as an elector of a constituency if he is over 21, and the holder of a Matai title. There was a provision in subsection (2) for a separate class of "individual" voters, generally comprising non-Samoan citizens.

This section was enacted to implement the provisions of Article 44(3) of the Constitution, the full text of which is :-

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

(a) One member elected for each of 41 territorial constituencies having such names and boundaries and including such villages or sub-villages or villages and sub-villages as are prescribed from time to time by Act:

(aa) Four additional members being, one additional member elected for each of such 4 of those territorial constituencies as are prescribed from time to time by Act:

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

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

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

(The word "law" at the end of subclause (3) is defined in Article 111 as including any Act of Parliament).

Under section 5 of the Electoral Act 1963 only a person who is registered as an elector for any constituency may be elected as a member for that constituency. The effect of Article 44 and of these provisions of sections 5 and 16 of the Electoral Act was that, for the Samoan population, only Matais could vote and be Members of Parliament. This was changed by section 5 of the Electoral Amendment Act 1990 which repealed section 16 of the 1963 Act, and declared every adult citizen qualified to be an elector of a constituency if his name did not appear on the individual voters' roll. The effect was that Parliament by a simple majority introduced universal suffrage for Samoans, although only Matais still remained qualified to sit as members.

The applicants claim that entrenchment' of Matai suffrage is implicit in Article 44(1) when read in conjunction with the preamble and in the light of existing law and Samoan custom at the time the Constitution was adopted. They say that the former section 16 of the 1963 Electoral Act recognised this and that any amendment to universal suffrage could only be effected by a change in the Constitution. Under Article 109 Parliament can do this only by a two-thirds majority after a 90-day delay between the second and third reading of the bill.

Mr Vaai and Mr Malifa advanced attractively-presented submissions testifying the extent and depth of their research in support of the applicants' claims. At the outset they were confronted with the 1982 decision of the Court of Appeal in Attorney-General v Saipaia (Olomalu) (1980-93) WSLR 41, dealing with the effect of the anti-discrimination provisions of Articles 15(1) and. (2) on the former section 16 of the 1963 Electoral Act giving exclusive voting rights to Matais. The Court (Cooke P, Keith and Mills JJ) explored at length the relevant constitutional provisions and the matters leading to their adoption, the situation and status of Matais and the electoral provisions and their history. It concluded (contrary to the decision of the Supreme Court ) that Article 15(2) did not govern parliamentary electoral qualifications, holding them to be a special subject outside the provisions of Article 15 (p.60). Accordingly it held that sections 16 (dealing with Matai electors) .and 19 (Individual electors) were validly enacted under the Constitution, having found that Parliament possessed the power under Article 44:(3) to legislate about the qualifications for electors.

In the course of its judgment at p.60, the Court saw, in the difference between Articles 44(1.)(a) and (aa) on the one hand, and in Article 44(1)(b) on the other, an indication that there may be differences In the modes of election, and stated. that. the former "permits, but. does not. require, a system whereby only registered matais may be on the roll. and allowed to vote in the territorial constituencies" .Earlier at. p.56 it had accepted the Attorney General’s argument. that Matai suffrage was not entrenched by the Constitution, only that it was permitted. And then at p.64, in commenting on a forecast by Professor Davidson (the Constitutional Adviser to the Western Samoan Government) about the eventual development of a single electorate, the Court said it was “completely consistent with the position that the matai voting system would continue under the provisions of the Constitution unless and until altered by Parliament".

There can be no doubt from these passengers considered in the context of the judgment as a whole that the Court of Appeal was satisfied the Matai electoral preference reflected in the former. section 16 of the 1963 Electoral Act was not entrenched in the Constitution; and that their voting qualifications could be altered by Act of Parliament under the provisions of section 44(3) whenever it. was thought desirable to do so. And this is what Parliament did in section 5 of the Electoral Amendment Act 1990 leading to this challenge to its validity and to the election which followed.

That conclusion of the Court of Appeal is binding on this Court, unless it is to be regarded as obiter - that is, if. it was unnecessary for the Court to make such a finding in order to decide whether the former section 16 and section l9 of the Electoral Act 1963 were inconsistent with Article 15(1) and (2) Counsel for the applicants submitted that the conclusion about Matai franchise was indeed obiter and did not preclude this Court from deciding that their electoral preference was entrenched in the constituency provisions of Articles 44(3) and (aa). As I remarked during the hearing, even if the Court of Appeal's observations were obiter, I would be most reluctant to differ from the view of jurists of such eminence in this field as Sir Robin Cooke and Professor Keith.

In seeking to persuade me that they were mistaken, applicants' counsel commenced by citing the well-known remarks of Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319, to the effect that a constitutional instrument calls for principles of interpretation of its own, and that respect must be paid to its language and to the traditions and usages which have given meaning to that language. Although primary attention must be given to the words used, the Court must be on its guard against interpreting them in a mechanical or pedantic way. The Court of Appeal. referred to this passage and its survey of Samoan custom and tradition demonstrates that it had the approach advocated by Lord Wilberforce very much in mind.

The difficulty facing Mr Vaai and Mr Malifa was the clear language of Article 44 and the absence of any reference in it - or indeed anywhere else in the Constitution - to the entrenchment of Matai suffrage or of their exclusive right to be Members of Parliament. In his extensively researched submissions Mr Vaai argued that this was necessarily implicit in that Article, which dealt with matters in respect of which there was a long-established and universally recognised electoral practice reflecting the customary place of Matais in Samoan society. Because of this (if i may summarise his submission in this way) it "went without saying" in the Constitution that only Matais were to be constituency members and the electors for them. Mr Malifa advanced the same point, focussing more on language which he said could be given a meaning consistent with this view.

These submissions attempted to answer the very logical objection that if Matai preference was considered important enough to be recognised as an underlying assumption of the Constitution, it would have been a simple matter to make the position clear by expressly including it, instead of leaving it hidden behind language which on its face says something quite different.

The Court of Appeal referred to the Official Records of the United Nations Report of the Plebiscite Commissioner for Western Samoa showing that in the discussion leading up to the resolution of the Convention to adopt the Constitution the question of Universal Suffrage occupied an important place. It was recognised there was not wide support for this at the time among the broad mass of Samoans who wished to see the existing Matai preference maintained. The Court cited extracts from that Report, and from that of a United Nations Visiting Commission at pp ,51-53 of its judgment, indicating that a gradual evolvement to universal suffrage was hoped for by the United Nations Trusteeship Council, arid that the Plebiscite Commissioner way confident of this occurring over time.

The proceedings of the Convention were also discussed by the Court of Appeal and applicants' counsel provided the Court with a copy of the record of. debates and other material from which it can readily be seen that the possibility of universal suffrage at some future date was a live issue. I need only refer to the assessment made by Professor Davidson cited in an article by Peter J Bayne "The Constitution and the Franchise in Western. Samoa" in an undated extract from the Queensland Institute of Technology Law Journal, which formed part of the applicants' submissions. The following extract was quoted from p.390 of Professor Davidson's 1967 work "Samoa mo Samoa; The Emergence of the Independent State of Western Samoa" summarising the nature of the debate on a. proposal by Paitomaleifi. to introduce universal suffrage :-

"The restriction of candidature to matai brought, the proposal into line with opinion's that had previously been expressed by the Prime Minister, Viame, Mata'afa and others. Several members, including the Prime Minister, spoke in support of the motion. Paitomaleifi himself contended that universal suffrage would not harm ‘our dignified customs and traditions’, that a growing proportion of untitled people possessed a good education and wide - often including overseas - experience, and that Samoa would not be able to hold many of the most talented of its young people if they remained disenfranchised. None the less, it was clear that a great many members intensely disliked the proposal. The sense of strain which for a times gripped the convention was dissipated by Malietoa, in a carefully diplomatic speech. He likened the education of the present generation of Samoan children to the formation of a new crop of breadfruit. When the crop had reached maturity, a new stick would have to be cut for it to be fully harvested. In the meantime, the old stick would suffice. The motion was lost on the voices. A majority of members was clearly opposed to it; but - of significance for the future- several of those who had not raised their voices in its favour privately indicated that they would have supported it had provision existed for taking a decision by secret ballot".

Mr Vaai also quoted an earlier comment by Professor Davidson at p.377 in dealing with the assumption behind Article 44 : he said that :-

"the right to vote in the territorial constituencies would initially be limited to the matai; but this restriction was omitted from the Constitution itself, in order that the suffrage could be widened as soon as there was a majority in the assembly in favour of such a change".

Counsel submitted there was; no evidence that, this assumption was made known to Samoans, at least at the convention. However it would be quite unreal for the Court to ignore this conclusion by a highly respected and impartial adviser who had every opportunity to observe the workings of the Convention throughout its sessions.

The account he gives affords a rational explanation for the omission of any specific constitutional restriction in favour of Matai, supporting at least the tenable view - but in my opinion the correct view- that the Convention accepted that Matai rights should continue, but that the time could come when they should be altered ; and that provision for gradual change could be left to the good judgment of a Parliament which would still be dominated by Matais, without the need for possibly a series of amendments to the Constitution to effect gradual changes, which could be seen as derogating from its status as fundamental law. Such an approach accords with the ordinary meaning of the language of section 44 and leaves me in respectful agreement with the Court of Appeal’s view about Matai suffrage.

However, I am also satisfied that its remarks' on this point were not obiter. Applicants' counsel pointed out that they were made in a section of the judgment in which the Court was merely seeking to reinforce its earlier conclusion that Article 15 did not affect electoral qualifications. But in reaching that conclusion, the Court (as noted above)accepted the Attorney-General's assumption that Matai preference was merely permitted and that the Constitution was "deliberately flexible as to the franchise in the territorial constituencies, thus allowing the Parliament to widen the basis as and when that was found desirable". The Court said that this consideration answered an important point in the decision appealed from, so its view about Matai preference formed part of the reasons for its decision and should not be regarded as merely obiter. Indeed, the assumption underlying the whole judgment was that Matai electoral preferences were not entrenched. If they had been, the argument about the applicability of Article 15 to the former section 16 of the Electoral Act giving effect to that entrenchment would have proceeded on a very different basis. I find it difficult to believe that this Article could have operated to derogate from other constitutionally-protected provisions embodied in an Act of Parliament. Accordingly, the view adopted by the Court of Appeal that there was no such entrenchment was at the heart of its decision and in no sense can it be regarded as obiter.

I find, therefore, that, this Court is bound by the conclusion of the Court of Appeal that, Matai suffrage is not entrenched; but even if it were open to me to differ, for the reasons given above I respectfully agree with its view of the mater. The motion for declaratory judgment is accordingly dismissed.

Ms Bailey having indicated that in this event the Attorney General would not seek them, there will be no order for costs.

JUDGE