Vaai v Fa'afisi [2009] WSSC 50 (6 May 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

CP52/05

BETWEEN:

ASIATA SALEIMOA VAAI
of Siusega & Satupaitea, Barrister & Solicitor and Member of Parliament
of the Legislative Assembly of Samoa.
Plaintiff

AND:

TOLEAFOA FA’AFISI of Fasito’o-uta,
former Speaker of the Legislative Assembly of Samoa, but now Minister of Police & Prisons;
and TOLOFUAVALELEI FALEMOE LEIATAUA of Leulumoega,
Speaker of the Legislative Assembly of Samoa;
sued jointly and in their official capacity as hereinabove prescribed,
and for and on behalf of the Parliament of Samoa.
Defendants

Presiding: Justice Kellam

Counsel: F Vaai-Hoglund for plaintiff
D Kerslake and A Lesa for defendants

Date of Hearing: 23 April 2009
Ruling: 6 May 2009

RULING OF JUSTICE KELLAM ON STRIKE OUT MOTION

1. On 13 May 2005 the plaintiff, who at all material times was a member of the Legislative Assembly of the State of Samoa commenced proceedings against the Privilege and Ethics Committee of the Parliament and five named defendants. Those defendants were all members of Parliament and included the then Speaker of the House and the Prime Minister.

2. On 10 March 2008 an amended statement of claim was filed. It is that statement of claim upon which the plaintiff now relies. There are now two defendants, the former Speaker of the House, Toleafoa Faafisi and the present speaker of the House, Tolofua Leiataua who are said to be sued "jointly in their official capacities for and on behalf of the Parliament of Samoa."

3. I have before me an application made on behalf of the defendants to strike out the amended statement of claim.

The background facts

4. The plaintiff alleges that in consequence of letters which he wrote to the International Parliamentary Union and to the Commonwealth Parliamentary Association, he was found guilty of contempt by the Privileges and Ethics Committee of the Parliament. The letter in question is said to have made complaint of the treatment of "opposition parliamentarians" in the debate proceedings of the House. The letter was also published in the Samoa Observer newspaper. On 5 April 2005 Parliament passed a resolution accepting the findings of the Privileges and Ethics Committee that the plaintiff had committed an act of contempt of Parliament. An order was made suspending the plaintiff from Parliament for a period of 4 months from that datea resu result of that order the plaintiff was precluded from attending the next parliamentary session between 31 May and 23 June 2005.

The Plaintiff’s claim

5. The Statement of Claim makes the following assertions in respect of the suspension of the plaintiff from parliament:

1. By paragraph 8 that his suspension without pay "was unreasonable and violated his fundamental right of personal liberty to participate in, and represent himself and his constituency in" Parliament.
   
2. By paragraph 9, and in the alternative, that the "deprivation of his parliamentary pay and salary violated his fundamental right of political free speech."
   

100. By paragraph 10, and in the alternative, that the "non payment of his parliamentary pay and salary violated his fundamental right not to have his property compulsorily acquired, except under authority of law."
     

4. By paragraph 11, and in the alternative, that the "Samoan Parliament has no authority to refuse, withhold or deprive" the defendant of his parliamentary pay.
   

The Strike out Motion

6. The defendants rely upon the following three grounds in support of this motion.

1. The proceedings are statute barred – It is submitted that by reason of s.3, 24 and 31 of the Legislative Assembly Powers and Privileges Ordinance 1960 (The Ordinance) the defendants cannot be subject to these proceedings.
   
2. No cause of action is disclosed against the defendants by the amended statement of claim.
   

100. The proceeding brought by the plaintiff is frivolous, vexatious and an abuse of the Court’s process.
     

The principles relating to the jurisdiction of the Court to strike proceedings out.

7. Rule 70 of the Supreme Court (Civil Procedure Rule) 1980 grants the Court jurisdiction to order that the proceedings be struck out in circumstances where "no cause of action is disclosed."

8. In Enosa v Samoa Observer Company Limited [2005] WSSC 6 at p 5 the Chief Justice stated as follows:

"The principles governing the exercise of the Court’s jurisdiction on a motion to strike out a statement of claim on the ground that it does not disclose a cause of action has (sic) been discussed in so many cases before the Samoan Court that they have become well known. The jurisdiction to strike out a statement of claim for disclosing no reasonable cause of action must be sparingly exercised. The factual allegations in support of the claim are assumed to be true and correct. The jurisdiction will only be exercised where it is very plain and obvious that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed."

This statement of principle was further elaborated by the Chief Justice in Bluesky Communication Limited v Attorney General [2007] WSSC 58 when he said:

"... It will only be exercised in a plain and obvious case where it appears from the material before the Court that the plaintiff’s cause of action is so clearly untenable that it cannot possibly succeed and is bound to fail."

9. In addition to the power granted under Rule 70, there can be no doubt that the Supreme Court of Samoa has an inherent jurisdiction to stay or dismiss a pleading or an action which is frivolous, vexatious or an abuse of process. See Enosa v Samoa Observer Company Limited and Kneubuhl v Liugalua [2000] WSSC 29.

10. I return to the grounds upon which the defendants rely.

Statute bar of proceedings

11. As stated above the defendants’ rely upon ss 3, 24 and 31 of the Ordinance.

Section 3 states:

Immunity from proceedings –

No member of the Legislative Assembly shall be liable to any civil or criminal proceedings in respect of:

1. Any speech or debate in the Legislative Assembly or a committee thereof;
   
2. Any words written in a report to the Assembly or any committee thereof or in any petition, bill, motion, or other matter brought or introduced by him therein".
   

Section 24 states:

Restriction on evidence as to certain matters –

No evidence relating to any of the following matters, that is to say:

1. Debates or other proceedings in the Assembly;
   
2. The contents of the minutes of evidence taken or any documents laid before a committee of the Assembly or any proceedings or examinations held before any such committee, - by any member or officer of the Assembly or any stenographer employed to take minutes of any such evidence or proceedings or in respect of any of the matters specified in paragraph (b) by any person who was a witness before the committee shall be admissible in any proceedings before a Court or person authorised by law to take evidence unless the Court or such last-mentioned person is satisfied that permission has been given by the Speaker or the Chairperson of the committee (as the case may require) for such evidence to be given.
   

Section 31 states:

Court not to exercise jurisdiction over acts of Speaker or officers –

Neither the Speaker of the Assembly nor any other officer shall be subject to the jurisdiction of any Court in respect of the exercise of any power conferred on or vested in him or her by or under this Ordinance or the Standing Orders of the Assembly or the Samoa Amendment Act 1957 (NZ).

12. The above provisions in the Ordinance can be summarised as follows:

1. Section 3 grants immunity to members of the Assembly insofar as they relate to speeches and debates in the Assembly or any written reports to the Assembly or a committee.
   
2. Section 24 provides that evidence may not be brought before a court insofar as it relates to debates or proceedings within the Assembly or the contents of any documents brought before the Assembly.
   

100. Section 31 provides that the defendants are not amenable to the jurisdiction of any court in respect of the exercise of any power conferred on them.
     

13. It is submitted on behalf of the defendants that the above sections invoke a parliamentary privilege. The defendants, through their counsel have made careful and detailed submissions in support of their argument that ss 3, 24 and 31 of the Ordinance involve or invoke a parliamentary privilege and the by reason thereof the proceedings brought by the plaintiff should be struck out. Reference to numerous authorities was made in support of the argument advanced by them. I shall not repeat those authorities here except to say that I accept that the sections of the Ordinance to which they refer do qualify as parliamentary privileges of individual members of Parliament.

14. The response of the plaintiff to this argument is first, that ss 3 and 31 of the Ordinance do not apply in these proceedings as the claim is not brought against the defendants in their individual capacities as members of Legislative Assembly, or against the Speaker in an individual capacity, but rather, and as pleaded, against them in their representative and official capacities as representing Parliament. I consider it is arguable that as much as ss 3 and 31 provide immunity to the defendants in their individual capacity, the immunity from suit does not apply to circumstances whereby they are sued in a representative capacity.

15. That argument is supported by what was said by Lord Cooke in delivering the judgment of the Court of Appeal in Ah Chong v Legislative Assembly of Western Samoa [1996] WSCA 2 at 5:

"The plaintiff sues the Legislative Assembly of Western Samoa as first defendant, the Attorney-al eral on behalf of the Prime Minister and Government as second defendant ... We have reservations about the somewhat novel course of naming a House of the legislature as a defendant. It is not a body corporate and we doubt whether it can sue or be sued. The orthodox procedure would be to sue Ministers or the Speaker or other officer who might seek to enforce decisions of the House alleged to be invalid."

16. True it is that the above Statement from Ah Chong is dicta but to my mind it is highly persuasive dicta indeed.

17. As to s 24 of the Ordinance, the question of what evidence may be admissible in due course in the hearing of the proceeding will be a matter for the court. I find it difficult to accept that s 24 of the Ordinance means that the contents of the published debates of the Assembly are not admissible in Court. In all common law countries it is common for parliamentary debates to be in evidence before Court, particularly as an aid to statutory construction.

18. For the above reasons, I do not conclude that it is apparent that the claim made against the defendants will fail by reason of the sections of the Ordinance relied upon by the defendants. As stated above, in my view, it is arguable that they can be sued in a representative capacity, notwithstanding their entitlement under s 3 of the Ordinance to individual immunity from suit as members of the Assembly.

19. I turn now to the second principal argument advanced on behalf of the defendants in this strike out application.

Is there a cause of action?

20. It is appropriate to consider first the question of whether the pleadings reveal a cause of action.

21. In delivering the judgment of the Court of Appeal in Ah Chong v Legislative Assembly of Western Samoa Lord Cooke said:

"There is a well-settled principle that what is said or done within the walls of a Legislative Assembly cannot be questioned in the Court. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from interfering in Parliamentary proceedings .... Generally speaking a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time".

22. However, having stated that principle the Court recognised that in some circumstances there may be limits to the principle. It said

"One limit must be that a written constitution such as that of Western Samoa may place upon the Courts some duty of scrutinizing Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for a legislative assembly to determine the effect of its own orders and to depart from them if the Assembly sees fit, a Constitution may displace the presumption by making compliance with the standing orders a condition of the validity of the legislation, or, no doubt the validity of other steps rather by the Assembly".

23. In my view the question as to whether the plaintiff has a viable cause of action is to be determined by consideration of whether, or not, it is beyond argument that the Legislative Assembly has unfettered power to suspend a member without pay for a period, in this case, of four months. The defendants submit that it is so beyond argument. Counsel for the defendants submits that the first step is found in Article 53 of the Constitution which provides that subject to the Constitution, the Legislative Assembly "may make, amend and repeal Standing Orders regulating its procedure".

24. The next step is that the Standing Orders, by Order 192, give Parliament a power to treat certain acts or omissions as a contempt. Standing Order 193 sets out a list of non-exhaustive examples of what may be treated by Parliament as a contempt. However, Standing Orders do not provide for any penalty for such contempt.

25. The next step is that s 21 of the Ordinance also sets out circumstances under which a member of the Assembly may be guilty of contempt, and the manner of punishment of such contempt. The defendants point first to s 21 (4) of the Ordinance, which they submit provides clear power to the Assembly to find a Member of Parliament guilty of contempt, and to suspend him from the service of Parliament "for such period as it may determine". Section 21(5) provides that no salary or allowance shall be payable to such a suspended member of the Assembly during his time of suspension. It is submitted that the suspension of the plaintiff from the Assembly was in accordance with those provisions, and that the power of the Assembly to have suspended the plaintiff from Parliament for four months is beyond argument.

26. However, as is pointed out by counsel for the plaintiff s 21 (1) of the Ordinance sets out four circumstances whereby a member of the Assembly may be guilty of contempt. They are as follows:

1. Being a member of (my copy the published Ordinance contains the word "or" but that must be an error) a Committee of the Assembly who publishes to any person who is not a member of the Committee any evidence given to the Committee before it has been reported to the Assembly; or
   
2. Assaults or obstructs a member of the Assembly within the Chamber or precincts of the Chamber; or
   

100. Assaults or obstructs any officer of the Assembly while in the execution of his duty; or
     

4. Is convicted of any offence under the Ordinance.
   

Clearly the finding of contempt in question was not on the basis of an offence under s 21 (a) (b) (c) or (d) the Ordinance.

27. It is argued on behalf of the plaintiff that s 21 (1) of the Ordinance covers the field of contempts which are punishable by suspension under s 21 (4) of the Ordinance, and as the contempt alleged against the plaintiff was not of such a nature, the suspension of the plaintiff was beyond power. It is argued that as the Standing Orders do not give power to suspend, such power is exclusive to the types of contempt nominated by s 21 (1) of the Ordinance. I do not consider that argument to be so fanciful that it is certain to fail. As I understand it the plaintiff relies upon the same argument to support his claim that the Assembly had no authority to deprive him of his salary. If it is arguable, as I consider it is, that the alleged contempt was not one covered by s 21 of the Ordinance, and there thus was no express power to punish the plaintiff by suspension, there was clearly no power to so deprive him of his salary.

28. The question of the power of parliament to punish for contempt, as distinct from its power to judge for itself what is contempt, is not as straightforward as it may at first appear. There is no doubt that the English Parliament has exercised the power to punish for contempt for many centuries, however that power is said by some academic writers to be a judicial rather than a legislative power. See Constitutional and Administrative Law – O. Hood Phillips and Paul Jackson – Sweet and Maxwell 6th Edn at 245. That power is inherent in the Houses of the British Parliament for the historical reason that they are part of the High Court of Parliament.

29. The Australian Constitution by s.49 states expressly that the powers and privileges of both Australian houses of Parliament are "as declared by Parliament and until declared shall be those of the House of Commons of England" as at the date of establishment of the Commonwealth of Australia. Hence in R v Richards [1955] HCA 36; [1955] 92 CLR 157, the High Court of Australia declared that the Speaker of the House of Representatives, upon the resolution of Parliament, had power to commit a person for breach of privilege and that an application for writ of habeas corpus should be refused by the High Court.

30. However no such power is granted by the Constitution of Samoa.

31. The Constitution of Samoa refers to the offence of contempt of Parliament in only one place and in the following terms in Article 62.

62. Privileges of Legislative Assembly – The privileges, immunities and power of the Legislative Assembly, of the Committees thereof and of Members of Parliament may be determined by Act.

PROVIDED THAT no such privilege or power may extend to the imposition of a fine or to committal to prison for contempt or otherwise, unless provision is made by Act for the trial and punishment of the person concerned by the Supreme Court.

32. However, the Crimes Ordinance 1961 grants power to the Legislative Assembly to punish for contempt in the following terms:

"7. Offences not to be punishable except under the Law of Western Samoa – No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Britain or the Parliament of the United Kingdom.

PROVIDED THAT nothing in this section shall limit or affect the power or authority of the Legislative Assembly or of any court to punish for contempt.

33. As stated above both s 21 (1) of the Ordinance and Orders 192 and 193 of the Standing Orders give Parliament power to treat certain Acts as contempt. However, the Standing Orders contain no power to punish for such contempt. Section 21(4) of the Ordinance does give power to the Assembly "by resolution" to reprimand or to suspend from the service of the Assembly. As is clear from Article 62 of the Constitution of Samoa, power to fine or imprison for contempt of Parliament resides only in the Supreme Court of Samoa, and then only with specific statutory authority.

34. In my view there is a serious question to be tried as to whether, or not, the power of the Assembly to punish by suspension, contained in s 21(4) is confined to those contempts described in s 21(1) of the Ordinance. Furthermore, if the power is not so confined the question of whether or not the power to suspend extends to a finding by the Assembly of contempt of the nature described in the Standing Orders 192 and 193 is a serious question to be tried. A further question arises as to whether or not an unfettered power to suspend a member of Parliament from the service of Parliament for such a long period as in this case, is inconsistent with the Constitution, as is argued by the plaintiff.

35. For the above reasons, I am not satisfied that it can be said that no cause of action is disclosed by the pleadings, nor do I consider that it can be said that the proceeding brought by the plaintiff is hopeless, frivolous, vexatious or an abuse or process.

36. That said however, the plaintiff should be required to further amend the amended statement of claim so as to articulate properly the argument which was advanced before me to the effect that the Standing Orders of Parliament contain no power to suspend or to deprive the plaintiff of his Parliamentary salary and that by reason thereof the suspension of the plaintiff was beyond the power of the Assembly.

37. In the circumstances the strike out motion brought by the defendants should be dismissed.

38. Costs reserved.

HONOURABLE JUSTICE KELLAM