In re the Electoral Act, Pita v Liuga [2001] WSSC 20 (19 July 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Electoral Act 1963 and its Amendments.

AND

IN THE MATTER of an Election Petition by TAGALOA PITA
against the election of FAUMUINA LIUGA
to represent the Territorial Constituency of Palauli Le Falefa.
Petitioner

AND

FAUMUINA LIUGA
of Safotulafai, a candidate for election.
First Respondent

AND

THE CHIEF ELECTORAL OFFICER,
Mulinuu.
Second Respondent

Coram: Sapolu CJ
Vaai J
Nelson J

Counsel: TV Eti for petitioner
TRS Toailoa for first respondent
Attorney-General Brenda Heather-Latu and KM Kwan for second respondent

Hearing: 4, 5, 6, 7, 8, 19, 20, 21, 22 June 2001
Judgment: 19 July 2001

JUDGMENT OF THE COURT DELIVERED BY SAPOLU CJ

Introduction

The official results for the 2001 general elections held on 2 March 2001 were declared by the Chief Electoral Officer, the second respondent in these proceedings, on 12 March by public notice in the gazette. The official results of valid votes polled by each candidate for the territorial constituency of Palauli Le Falefa were as follows:

Faumuina Liuga ; &##60;&<; &##10;& &##160; 520; 523

Fipuna &;&600;҈&ـ ټ&##160;< < &#160  #160; 200

aupua Sili n&##1600;҈&&#160 ҈& &##160;&160; #160; &##160;&160; #160;&#160 &#160 503

e p>LaloagPita&#160 ;ټ&##160;& &##ټ #160; #160; &##16;& ټ 460; 404<404

Faup>Faumuinamuina Liug Liuga, the first respondent in these proceedings, was acngly red ed as Member of Parliamentthe Palauli Le Falefa territorritorial rial constconstituenituency. Subsequently he was appointed as Minister of Works in the present government.

Following the declaration of the official results of the poll, the unsuccessful candidate Laupua Sili filed an election petition to void the election of the first respondent on a number of grounds. Subsequently Laupua Sili sought leave from the Court to have his petition withdrawn. It was then that the unsuccessful candidate Le Tagaloa Pita made application to the Court to have himself substituted as petitioner. That application was granted and Le Tagaloa Pita was substituted as petitioner. At the same time the Court, for reasons then given, allowed the substituted petitioner to proceed only on the allegation in the petition that the first respondent was not qualified to be a candidate in the 2001 general elections pursuant to s.5 of the Electoral Act 1963. An application for the first respondent to be allowed to file a counter petition against the substituted petitioner was denied as in terms of s.111 of the Act a counter petition may only be filed against a petitioner where he is claiming the seat for some person. The substituted petitioner has done no such thing.

Even though the essential question is whether the first respondent was qualified in terms of s.5 of the Act to run as a candidate in the 2001 general elections and be elected as a Member of Parliament, this case raises issues of wider importance for the purpose of Samoan law with which the Court has to deal. The first is, where there is conflict or difference between the English text and the Samoan text of a statutory provision which is to prevail. The second is whether in construing an ambiguous or obscure statutory provision the Court may look at parliamentary material such as Hansard for the purpose of construing such a statutory provision. This is the first time a Samoan Court has been directly confronted with these questions and has to make a determination thereon: Careful rather than hasty consideration was therefore called for.

Relevant constitutional and statutory provisions

Article 45 of the Constitution which prescribes the qualifications for parliamentary membership provides:

“(1) Any person shall be qualified to be elected a Member of Parliament who:

“(a) is a citizen of Samoa, and

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

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

Thus not only does Article 45 prescribe the qualifications for parliamentary membership, it also provides that the election as a Member of Parliament of any person who does not hold any of the prescribed qualifications shall be void. It follows that in this case if the first respondent did not hold any of the prescribed qualifications for parliamentary membership when he ran as a candidate in the general elections, then his election as a Member of Parliament must be void by virtue of Article 45(2).

Article 47 which is the relevant jurisdictional provision of the Constitution, then provides:

“The Supreme Court shall have jurisdiction to deal with all questions that may arise as to the right of any person to be or to remain a Member of Parliament”.

Thus the jurisdiction to determine the right of any person to be or to remain a Member of Parliament is vested by the Constitution in the judicial rather than the legislative branch of government.

Section 5 of the Electoral Act 1963, which is the relevant section of that Act, provides not only for the qualifications for parliamentary membership, but also for the circumstances when a person shall be disqualified for being an election candidate or for being elected as a Member of Parliament. Section 5(3) which prescribes a residential qualification requirement of 3 years for election candidates provides:

“A person shall be disqualified for being a candidate for, or being elected as a Member of Parliament representing a constituency, if he loses any qualification required to enable him to be registered as an elector of that constituency or that person has not resided in Samoa for a period equalling or exceeding 3 years ending with the day on which the nomination paper is lodged with the Chief Electoral Officer”.

Section 5(7) then provides the formula for calculating the aforesaid 3 years residential qualification requirement by providing:

“For the purposes of this section ‘resided in Samoa for a period equalling or exceeding 3 years’ shall mean a person has been in Samoa for at least 240 days in each year for a consecutive three year period ending on nomination day”.

Section 5(6)(a) – (d) provides the exemptions from the aforesaid 3 years residential qualification requirement. We will refer in detail only to section 5(6)(c) later in this judgment as it is the relevant exemption and the crucial provision in this case. But we must now turn to the relevant parts of the first respondent’s employment history with the United Nations Development Programme.

First respondent’s employment history with
United Nations Development Programme

The first respondent was initially employed by the United Nations Development Programme (UNDP) at its office in Apia for a number of years. In March 1986 he was appointed by the UNDP to Sudan where he carried out technical duties for two years. In July 1988 he was appointed by the UNDP to Bangladesh where he again carried out technical duties. Then about March 1991 he was posted by the UNDP to Hanoi in Vietnam as senior assistant resident representative. About June 1992 he was promoted to the post of deputy resident representative for the UNDP in Hanoi and the government of Vietnam accorded him full diplomatic status. This is the second highest post for the UNDP in Hanoi. In that post, one of the special assignments which was given by the United Nations to the first respondent was to negotiate with the government of Vietnam the hire of Vietnamese nationals for employment in the Hanoi office of the UNDP. The first respondent in his evidence described this as a very sensitive issue as the communist countries like China, North Korea and Vietnam would not permit the employment of their nationals in the local staff of any international organization including the United Nations, foreign embassies and high commissions. The reason in Vietnam for this, as it appears from the first respondent’s evidence, was the suspicion of foreigners and Vietnam’s dislike of the super-powers because of the memory of past wars in Vietnam which involved the super-powers. The first respondent’s two predecessors in Vietnam had tried to negotiate with the government of Vietnam the hire of Vietnamese nationals in the local staff of the United Nations and both were declared persona non grata by the government of Vietnam which means the government of Vietnam expelled them from the country without the agreement of the United Nations. Thus the special assignment which was given by the United Nations to the first respondent was a sensitive and difficult task indeed. It could have led to the first respondent being declared persona non grata or expelled by the government of Vietnam, as it was done to his predecessors, if the assignment was not properly handled.

According to the first respondent’s evidence, he then thought of a strategy to enable him to fulfil his special assignment and to achieve his goal for the United Nations. That strategy appears to have been to obtain for himself a Samoan diplomatic passport and to get the Samoan government to establish diplomatic ties with the government of Vietnam. Thus when the first respondent came to Samoa for home leave in December 1992 to January 1993, he met with the then Prime Minister, Honourable Tofilau Eti Alesana, and briefed the Prime Minister on his United Nations diplomatic status and the work he was doing for the United Nations in Vietnam. He also sought from the then Prime Minister the support of the Samoan government for his work with the United Nations. He also raised with the Prime Minister the question of establishing formal diplomatic ties between the government of Samoa and the government of Vietnam. The first respondent said in his evidence that the Prime Minister agreed to support and back him up to ensure that he would achieve what the United Nations wanted in Vietnam. The form of support that was given by the Prime Minister was the issuing to him of a diplomatic passport which is valid for ten years and the Prime Minister’s agreement to the establishment of diplomatic ties with the government of Vietnam.

The first respondent said he needed a diplomatic passport for several reasons. The first is for status and recognition in the eyes of the international community in Hanoi. In the world of international politics and diplomacy, he needed some weight behind him in his interaction with the senior officials of the government of Vietnam for the purpose of his official duties and in particular for the fulfilment of the special assignment which had been given to him by the United Nations. He also needed a Samoan diplomatic passport to assist him in his interaction with heads of foreign missions in Vietnam. A Samoan diplomatic passport would give him added recognition and status by showing to those he was interacting with that he was somebody of standing in his own country. That not only facilitated his access to senior Vietnamese officials, but it also enhanced his chances of succeeding in carrying out his official duties and special assignment for the United Nations. How he became known to the international community especially in Hanoi as the holder of a Samoan diplomatic passport was because his work with the United Nations involved him in a lot of travel to countries around the world including the United States. Such travel required him to obtain visas from the embassies or high commissions in Hanoi of the countries he visited and for that purpose his Samoan diplomatic passport accompanied his various applications for visas. In that way the fact he was the holder of a Samoan diplomatic passport and therefore must be someone of standing in his own country came to spread around the diplomatic community and became known to senior officials of the government of Vietnam.

In March 1994 formal diplomatic ties were established between the government of Vietnam and the government of Samoa. The first respondent was also successful in his special assignment without being declared persona non grata or expelled from Vietnam by the government of Vietnam as was the case of the first respondent’s two predecessors. As a result, the United Nations since that time has been able to hire Vietnamese nationals to its local staff in Hanoi.

The second reason given by the first respondent is that his work with the United Nations involved a lot of travel and he needed a Samoan diplomatic passport to facilitate his travels. There are also countries, for instance Russia and the USA, which do not recognise a United Nations passport called a laissez passer but recognise only a national passport. As the headquarters of the UNDP is in New York, the first respondent often had to travel to New York in the course of his work and usually he was issued a United States multiple visa straight away by a United States embassy when he presented his Samoan diplomatic passport as opposed to his United Nations laissez passer. When the first respondent went to Russia and Georgia on duties for the United Nations he also used his Samoan diplomatic passport as those countries would not recognise a United Nations laissez passer.

The third reason given by the first respondent was for protection and convenience. He said in countries with very large populations such as in Asia and Europe, national identification is very important. A United Nations passport does not show the holder’s nationality and thus can result in problems and difficulties. A diplomatic passport not only shows the holder’s nationality but also that the holder must be someone of standing in his own country. He mentioned examples of two problematic situations, one in Asia and one in Europe, where his Samoan diplomatic passport was of assistance to him.

Now after Vietnam, the first respondent was appointed in July 1995 as deputy resident representative for the UNDP in Pakistan. In May 1997 he was appointed chief administrator for the UNDP in Iraq. Then in July 1998 he was appointed deputy resident representative for the UNDP in India and in August 1999 he was transferred by the United Nations to the trouble spot in East Timor. His last appointment by the United Nations was to the Republic of Georgia from July to December 2000 when he returned to Samoa to run in the general elections held on 2 March this year. In all these appointments, the first respondent was using his Samoan diplomatic passport for his official duties and travel to countries which do not accept the United Nations passport. But when he comes to Samoa each year to see his family, he would use his United Nations laissez passer as such passport is accepted and recognised in Samoa. That brings us back to s.5(6)(c) of the Electoral Act 1963.

Is there a conflict or difference between the English and Samoan texts of s.5(6)(c) of the Electoral Act 1963

Section 5(6)(c) of the Electoral Act 1963 which is the crucial provision in this case was introduced to the principal Act by the Electoral Amendment Act 2000 (No. 8). It provides for an additional category of persons who are to be exempted from the 3 years residential qualification requirement for election candidates provided in s.5(3). This additional exempted category is provided in the English text of s.5(6)(c) as follows:

“A person who is appointed to a post in an international organization overseas under government sponsorship or nomination”.

In the Samoan text of s.5(6)(c), it is there provided:

“Se tagata e tofia e galue i se faalapotopotoga faava-o-malo i fafo e lagolagoina pe filifilia e le Malo”.

Looking at these two texts of s.5(6)(c), we are of the view that they do not convey the same meaning. The English text of the provision conveys a precise and restricted meaning compared to that conveyed by the Samoan text. It applies only to exempt from the 3 years residential qualification requirement for election candidates a person who is appointed under a government sponsorship or nomination to a post in an international organization overseas. It does not apply to a person who is not appointed to such a post under a government sponsorship or nomination or to a person who was only given government sponsorship for the performance of his official duties in such a post after his appointment. The use of the preposition “under” in the English provision links the making of an appointment to such a post to government sponsorship or nomination and makes government sponsorship or nomination for an appointment to such a post a pre-requisite for the application of the exemption in s.5(6)(c). As the word “nomination” is not material to the decision in this case, it will be unnecessary to continue to make mention of it when referring to s.5(6)(c).

Now the Samoan text of s.5(6)(c) in our view is less precise in meaning and is open to a wider interpretation than the English version. It applies to a person [appointed or who is appointed] to work in an international organization overseas and [supported or is supported] by government. The preposition “under” in the English text of the provision means “i lalo” in Samoan. Those words “i lalo”, however, do not appear in the Samoan text. But it is the word “under” in the English text which provides the link between the making of an appointment to a post in an international organization overseas and government sponsorship. It makes it clear that such an appointment must be made with or pursuant to a government sponsorship. That link does not appear in express terms in the Samaon text because of the absence of the words “i lalo”. As it stands, the Samoan text of s.5(6)(c) is open to three possible interpretations. Firstly, it may mean a person who is working in a post in an international organization overseas and is given support by the government is exempted from the 3 years residential qualification requirement; secondly, it may mean a person who is appointed to a post in an international organization overseas and is supported by the government is exempted from the same requirement; or, thirdly, it may mean a person who is appointed to a post in an international organization overseas with the support or backing of the government is likewise exempted from the same requirement. Clearly there is a difference or possible conflict in meaning between the Samoan and English texts of s.5(6)(c). A literal translation of the English text back into Samoan would read something like this:

“O se tagata e tofia i se tulaga i totonu o se faalapotopotoga faava-o-malo i fafo i lalo o le lagolago po o le filifiliga a le Malo”. (Emphasis added)

Put in this way the difference in the wording of the Samoan text of s.5(6)(c) and the literal translation back into Samoan of the English text becomes more clear. It shows the difference in the shades of meaning conveyed by the two Samoan versions of s.5(6)(c). It also highlights the fact that the words “i lalo” do not appear in the Samoan text but would appear in a literal translation back into Samoan of the English text.

When there is a difference or conflict between the Samoan and English texts of a statutory provision which prevails

The question now is which of the Samoan or English text of a statutory provision should prevail in the case of difference or conflict. A submission based on Article 112 of the Constitution was put forward by counsel for the petitioner that in event of difference or conflict between the Samoan and English texts of a statutory provision, the English text should prevail. We do not accept that submission as a general statement of principle. Article 112 provides:

“The Samoan and English texts of this Constitution are equally authoritative but, in case of difference, the English text shall prevail”.

We are of the view that Article 112 is speaking only in relation to a difference or conflict between the Samoan and English texts of the Constitution when the English text of the Constitution is to prevail. It is silent on the question as to which text is to prevail when there is a difference or conflict between the Samoan and English texts of a statute or statutory provision. There are several references in the Constitution to the expression “Act” or “Act of Parliament”, see for instance Articles 60(3), 102, 103, 109(1) 111, and 114. That clearly shows that Acts or Acts of Parliament were very much in the minds of the framers of the Constitution at the time they enacted the Constitution. Thus if the framers of the Constitution had intended to extend the application of Article 112 to differences or conflicts that may arise between the Samoan and English texts of an Act of Parliament, one would have expected them to make clear provision in the Constitution to that effect as one of the matters that is mentioned so often in the Constitution is Act of Parliament. The fact that the framers of the Constitution did not include such a provision in Article 112 when they could easily have done so, suggests that they did not intend Article 112 to apply to differences between the Samoan and English texts of an Act of Parliament.

Article 54, which was also mentioned in these proceedings, provides:

“(1) All debates and discussions in the Legislative Assembly shall be conducted in the Samoan language and the English language.

“(2) The Minutes and the debates of the Legislative Assembly, every bill introduced therein, every paper presented thereto, and all minutes of proceedings, minutes of evidence, and reports of committees of the Assembly shall be in the Samoan language and the English language”. (Emphasis added)

Again one would have thought that if the framers of the Constitution had intended the English text of a statute to prevail over the Samoan text in case of difference or conflict, the two places in the Constitution where they could have made provision to that effect would have been Article 54 or Article 112. But there is no such provision in those two Articles, or anywhere else in the Constitution for that matter. It follows in our view that there is nothing in the Constitution to show that when there is a difference or conflict between the Samoan and English texts of a statutory provision the English text shall prevail in every case.

We have also looked at the statutory law and there is no general provision in any statute which deals with the question of whether it is the Samoan or English text of a statute or statutory provision which prevails in the case of difference. If there was such a provision the appropriate place one would expect to find it would have been the Acts Interpretation Act 1974. But there is no such provision in that Act. It must therefore be for the Courts to decide in each case whether the Samoan or the English text of a statutory provision should prevail where there is a difference between the two.

In this connexion, the evidence given by the second respondent who is also the Clerk of the Legislative Assembly is that when the Electoral Amendment Bill 2000 (No. 8) was first tabled in the Assembly, it did not contain s.5(6)(c). It was during an adjournment during the second reading of the Bill that the Prime Minister, who was the Minister in charge of the Bill, instructed her as Clerk of the Legislative Assembly to draft the amendment which now appears as s.5(6)(c) of the Act. The instructions were given by the Prime Minister in Samoan and he also gave the Clerk in Samoan the words he wanted to be put in the amendment. Those are the words which now appear in the Samoan text of s.5(6)(c). The Clerk then translated the amendment into English and it is her translation which now appears as s.5(6)(c) of the English text of the Act. Both texts of the amendment were then put on notice to the Assembly in a supplementary order paper. The next day when the Assembly went into Committee of the Whole only the Samoan text was read out and not the English text. The Prime Minister then spoke in Samoan on the Samoan text of the amendment. After he spoke there was no other Member who spoke on the amendment. The question was then put by the Speaker and the amendment was passed.

It is thus clear that the original text of what is now s.5(6)(c) is the Samoan text as worded by the Prime Minister who was in charge of the Bill. The English text is a translation of the original Samoan text of the provision prepared by the Clerk. In such a case if there is a difference or conflict in meaning between the original Samoan text of a statutory provision and its English translation, the Samoan text should prevail. It is the traditional task of the Courts when construing a statutory provision to ascertain the intention of the legislature from the words used by the legislature in the statutory provision. Here, the words used by the legislature in s.5(6)(c) are in the Samoan text of the provision; the English text being a translation.

We have to point out, however, that we do not accept the general submission made by the Attorney-General in reply to a question from the Court, that as a matter of policy the Samoan text of a statutory provision shall prevail over the English text in every case of difference. There may be cases where the English text of a statute or statutory provision should prevail over the Samoan text in case of difference, for instance, a statute or statutory provision borrowed or copied from a foreign statute. In respect of such a statute or statutory provision the Samoan text will clearly be a translation of the English text; the original text will be the English text. There may be other circumstances where the English text of a statutory provision should prevail over the Samoan text. It will be for the Court to evolve and develop on a case by case basis the principles for determining which text of a statute or statutory provision is to prevail in case of difference. As this is the first case where the issue has arisen, it will be unwise to attempt to lay down in this case a list of guiding principles to be applied in every case where a difference arises between the Samoan and English text of a statutory provision.

As we have already indicated that the Samoan text of s.5(6)(c) is open to more than one possible interpretation, we will now turn to the possible use of parliamentary material as an aid to statutory interpretation.

Use of parliamentary material as an aid to statutory interpretation

For a very long time the English Courts had turned their face against the use of parliamentary material such as Hansard as an aid to statutory interpretation. As such the use of Hansard as an aid to statutory interpretation was prohibited. The rule against such use of parliamentary material has been called the “exclusionary rule”. As Lord Browne-Wilkinson in the House of Lords stated when delivering the leading judgment in Pepper v Hart [1992] UKHL 3; [1993] 1 All ER 42, 60:

“Under present law, there is a general rule that references to parliamentary material as an aid to statutory construction is not permissible (the exclusionary rule) (see Davis v Johnson [1978] UKHL 1; [1978] 1 All ER 1132; [1979] AC 264 and Hadmoor Productions Ltd v Hamilton [1981] 2 All ER 724; [1983] AC 191).... The exclusionary rule was probably first stated by Willes J in Millar v Taylor [1769] EngR 44; (1769) 4 Burr 2303 at 2322; [1769] EngR 44; 98 ER 201 at 217.

Even though in a few cases such as Ash v Abdy (1678) 3 Swan 664; [1678] EngR 85; 36 ER 1014 and Re Mew and Thorne (1862) 31 LJ Bey 87 some English Judges tried to relax the application of the exclusionary rule, it continued to apply as originally stated. It was not until recent years that the rule was relaxed in England to permit the reports of commissioners, including Law Commissioners, and white papers to be used only for the purpose of ascertaining the mischief a statute is intended to cure but not for the purpose of ascertaining the meaning of the words used by Parliament to effect such cure. The importance of Pepper v Hart [1993] 1 All E 42 is that it has taken the relaxation of the exclusionary rule a step further so that now reference may be made to Hansard as an aid to the interpretation of a statute. As Lord Browne-Wilkinson said at p.64:

“I have come to the conclusion that; as a matter of law, there are sound reasons for making a limited relaxation to the existing rule (subject to strict safeguards) unless there are constitutional or practical reasons which outweigh them. In my judgment, subject to the questions of the privileges of the House of Commons, reference to parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in Court to parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria”.

At p.69 His Lordship went on to say:

“I therefore reach the conclusion, subject to any question of parliamentary privilege, that the exclusionary rule should be relaxed as to permit reference to parliamentary materials where: (a) legislation is ambiguous or obscure, or leads to absurdity; (b) the material relied on consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear”.

In New Zealand, the Court of Appeal took the step of permitting reference to parliamentary material for the purpose of confirming a provisional interpretation, or identifying the mischief an Act is aimed at, or to clarify some ambiguity therein in Marac Life Assurance Ltd v Commissioner of Inland Revenue [1986] 1 NZLR 684. At p.701 Cooke J (as he then was) said:

“It is noteworthy that the inference arising from the statutes themselves is confirmed by the Financial Statement presented by the Minister of Finance in the House of Representatives on 28 July 1983 in moving the second reading of the Appropriation Bill. This, the 1983 Budget, was referred to in argument before us by counsel on both sides, each claiming support from it. A governmental statement in the House could not be allowed to alter the meaning of an Act of Parliament in clear conflict with it; but in my view it would be unduly technical to ignore such an aid as supporting a provisional interpretation of the words of the Act, or as helping to identify the mischief aimed at, or clarify some ambiguity in the Act”.

In the New Zealand High Court, Tompkins J in Alcan v Commissioner of Inland Revenue [1983] 3 NZLR 495 at p.506 accepted that the Courts can refer to Hansard to resolve an ambiguity in a statute and he also adopted the approach stated in Pepper v Hart [1992] UKHL 3; [1993] 1 All ER 42 by Lord Browne-Wilkinson at p.64. When Alcan’s case went to the New Zealand Court of Appeal in 1994 that Court also referred with approval to Pepper v Hart. In Television New Zealand v Prebble [1993] 3 NZLR 513 Cooke P at p.518 said:

“There is now no doubt that Hansard may be referred to, for sufficiently strong reason, as an aid to the interpretation of the intention expressed by Parliament in an Act; see in New Zealand for instance Marac Life Assurance Ltd v Commissioner of Inland Revenue [1986] 1 NZLR 694, 701, 708, 713, 716, 718 and in England Pepper (Inspector of Taxes) v Hart”.

Given these authorities, we have decided to adopt the relaxation of the exclusionary rule which prohibited reference to parliamentary material as an aid to the interpretation of a statute to the extent set out in the judgment of Lord Browne-Wilkinson in Pepper v Hart. We also take due notice of the added relaxation stated by Cooke J in Marac Life Assurance Ltd v Commissioner of Inland Revenue [1986] 1 NZLR 694, 701 that reference may be made to a governmental statement made by a Minister in Parliament for the purpose of promoting a Bill in order to support a provisional interpretation of a statute.

While it must be clear from the authorities that reference may be made to a clear statement in a parliamentary material as Hansard for the purpose of resolving an ambiguity, obscurity or absurdity in a statute or statutory provision, there is nothing in those authorities to show that those Members of Parliament who were involved in enacting a statute were called or required to testify before the Courts on what they meant or intended when they passed a bill into statute. As a matter of law such a course of calling to Court those Members of Parliament who were involved in the enactment of a statutory provision to explain their respective intentions for enacting such provision is unheard of, and counsel were not able to cite any authority in support of it. We therefore put aside the oral evidence given by the petitioner, the witness Afamasaga Faamatala Toleafoa a former Member of Parliament, and the Prime Minister as to what was their respective intentions and understanding of s.5(6)(c) at the time it was introduced and passed by the Legislative Assembly. The Court will consider only the parliamentary material in writing that was produced before the Court for the purpose of resolving any ambiguity in the Samoan text of s.5(6)(c). In doing so, we intend no discourtesy whatsoever towards the petitioner, Afamasaga or the Prime Minister.

That brings us to the question of whether s.5(6)(c) is ambiguous.

Is the Samoan text of s.5(6)(c) ambiguous?

We are of the view that the Samoan text of s.5(6)(c) is ambiguous. It is open to three possible interpretations. As already stated, s.5(6)(c) may firstly mean that a person who is working in a post in an international organization overseas and is given support by the government is exempted from the 3 years residential qualification requirement for election candidates; secondly, it may mean a person who is appointed to an international organization overseas and is supported by the government is exempted; or thirdly, it may mean a person who is appointed to a post in an international organization overseas with the support or backing of the government is exempted. We have used in what we have said the English word “support” instead of “sponsor” as the word “lagolago” is used in the Samoan text of s.5(6)(c). However, the word “sponsorship” used in the English text of the provision also contains an element of support in its own meaning. In our view the word “support” is the more natural and ordinary English translation of the Samoan word “lagolago” used in s.5(6)(c). In any event, whichever English translation of the word “lagolago” is adopted will not be crucial in this case.

Given that the Samoan text of s.5(6)(c) is ambiguous in having more than one possible meaning, reference to Hansard is permissible to see if assistance can be gained therefrom to resolve the ambiguity. In this regard, the Court turns to the speech in Hansard by the Prime Minister who had instructed the Clerk to draft the amendment now contained in s.5(6)(c) in order to see if it contains any clear statement as to the intention behind the provision. The Prime Minister, as already pointed out, was also the Minister in charge of the Electoral Amendment Bill 2000 (No. 8) which contains s.5(6)(c) when that Bill was before the House.

The Prime Minister spoke briefly in Samoan in the Legislative Assembly on s.5(6)(c). However, what he said clearly conveys what he intended by the provision. He said the “advice” (fautuaga) is specifically directed to those who are supported by the government and working in international organizations overseas but not to everyone who is working overseas. He then went on to say, this is specifically directed to those who are working and to those whose appointment had been supported by the government; those who are sponsored by the government or were given the support of the government and are officially working in international organizations overseas. It is thus clear from the Prime Minister’s speech that he intended the exemption in s.5(6)(c) to apply to those people working in an international organization overseas and have been given support by the government as well as those people whose appointment to a post in an international organization overseas was supported by the government. After the Prime Minister’s explanation no other Member spoke on the Bill. The question was then put and s.5(6)(c) was passed by the Assembly. The Bill was assented to by the Head of State and became law on 6 July 2000. In other words there is in this case a clear statement made by the Minister in charge of the Bill as to the effect of the ambiguous words of s.5(6)(c) of the Act. That must be the basis on which Parliament enacted the provision. And the intention behind s.5(6)(c) as explained by the Prime Minister must be attributed to the whole of Parliament as its intention.

A report of a parliamentary select committee that was set up to review the Electoral Act 1963 and a written submission presented by then Member of Parliament Afamasaga before that committee were also produced on behalf of the petitioner. The said report was approved by the Legislative Assembly on 13 April 2000. The Prime Minister and the petitioner were both members of the said parliamentary select committee but it is clear from the evidence the Prime Minister was not able to attend any of the meetings of that committee. The wording in Samoan of the recommendation of the select committee in relation to the matter which is now covered by s.5(6)(c) is different from the wording in Samoan of the provision that was prepared by the Clerk on instructions given by the Prime Minister and subsequently tabled by the Prime Minister before the House. The committee’s recommendation also includes spouses whereas the provision tabled by the Prime Minister does not include spouses. It is also clear from the evidence that when the Prime Minister promoted s.5(6)(c) in the House he made no reference to the report of the select committee. Neither did any other Member of Parliament.

The written submission that Afamasaga placed before the select committee, even though worded in English, appears from the petitioner’s evidence to have formed the basis of the Committee’s recommendation which, as already as mentioned, is differently worded from the Samoan text of the provision that was tabled and promoted by the Prime Minister in the House. Again neither the Prime Minister nor any other Member of Parliament referred to Afamasaga’s written submission when s.5(6)(c) was tabled and passed by the House.

We have only referred to these materials produced for the petitioner as much time was spent on them during the hearing of this election petition. However, they provide no clear indication of Parliament’s intention in enacting s.5(6)(c). The recommendation by the select committee is differently worded from the provision tabled by the Prime Minister and it is the provision tabled by the Prime Minister that was enacted into law and not the recommendation of the select committee or the written submission on which it was based.

For the reasons given, we are of the view that the exemption provided in s.5(6)(c) applies to those people working in a post in an international organization overseas and have been given support by the government as well as those people whose appointment to a post in an international organization overseas was made with the support or nomination of the government. That leads us to the question of whether the exemption provided in s.5(6)(c) applied to the first respondent as a candidate in the 2001 general elections.

Does s.5(6)(c) apply to the first respondent?

It is clear that the first respondent had been working overseas for the United Nations from 1986 to December 2000 when he returned to Samoa to run in the 2001 general elections held on 2 March. The question then is whether the first respondent had been given support by the government whilst working overseas for the United Nations. We are of the view that he was given such support by the then Prime Minister by the issuing to him in 1993 of a Samoan diplomatic passport valid for ten years which not only enhanced the first respondent’s chances of success in the special assignment that was given to him in Vietnam by the United Nations, but it also gave him some measure of protection and facility in travelling whilst working for the United Nations. The exemption provided in s.5(6)(c) therefore applied to the first respondent as a candidate in the 2001 general elections. Even though it is not strictly relevant, we do not see this conclusion as inconsistent with anything in the first respondent’s evidence that when he came to Samoa in October 2000 for White Sunday, he discussed with the Prime Minister his eligibility to run as a candidate in the up-coming elections under the new amendment and the Prime Minister who had been the Minister responsible for promoting the amendment in Parliament advised him he was eligible.

Conclusions

For all the foregoing reasons, the petition is dismissed. The petitioner is to pay costs of $600 to each of the respondents.

The Court will report its findings to the Honourable Mr Speaker.

Solicitors:
TAV Eti for the petitioner
Toailoa & Associates for the first respondent
Attorney General’s Office for the second respondent