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Aiafi v Speaker of the Legislative Assembly [2009] WSSC 65 (8 July 2009)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA


IN THE MATTER:


of the Declaratory Judgments Act 1988 and the Constitution of the Independent State of Samoa


AND:


IN THE MATTER:


of the Electoral Act 1963, and Standing Orders of the Parliament of Samoa.


BETWEEN:


LEALAILEPULE RIMONI AIAFI
Member of Parliament for Faleata i Sisifo,
PALUSALUE FAAPO II
Member of Parliament for Safata,
AEAU PENIAMINA LEAVAI
Member of Parliament for Falealupo,
LEVAOPOLO TALATONU
Member of Parliament for Gagaeemauga No 2,
FUIMAONO NAO’IA TE’I
Member of Parliament for Falealili,
MULIPOLA OLIVA
Member of Parliament for Aiga i le Tai,
VAAI MAFASOLIA PAPU VAELUPE
Member of Parliament for Vaisigano No 1,
MOTUOPUAA UIFAGASA AISOLI
Member of Parliament Vaisigano No 2,
TOLUONO FETI
Member of Parliament for Palauli.
Applicants


AND:


SPEAKER OF THE LEGISLATIVE ASSEMBLY
First Respondent


AND:


ELECTORAL COMMISSIONER
appointed pursuant to the Electoral Act 1963.
Second Respondent


Counsel: R V Papalii and T R S Toailoa for applicants
M V Peteru for first respondent
D Kerslake for second respondent


Hearing: 29 June 2009
Conclusions: 1 July 2009
Judgment: 8 July 2009


JUDGMENT OF SAPOLU CJ


Background


  1. The nine applicants are Members of Parliament. They were elected to Parliament in the 2006 general election.
  2. In the 2006 general election, the applicants Lealailepule Rimoni Aiafi, Vaai Mafasolia Papu Vaelupe, Motupuaa Uifagasa Aisoli and Toluono Feti contested the election as Independent candidates and were elected as Members of Parliament for the territorial constituencies of Faleata i Sisifo, Vaisigano No 1, Vaisigano No 2 and Palauli respectively. In the same general election, the applicants Aeau Peniamina Leavai, Fuimaono Naoia Te’i, Levaopolo Talatonu and Mulipola Oliva were candidates for the Samoa Democratic United Party (SDUP) and were elected as Members of Parliament for the territorial constituencies of Falealupo, Falealili, Gagaemauga No 2 and Aiga ile Tai respectively. The other applicant Palusalue Faapo II contested the 2006 general election as a member of the Human Rights Protection Party (HRPP) and was elected as one of the two Members of Parliament for the territorial constituency of Safata.
  3. The four applicants who had been elected to Parliament as Independents represented their constituencies in Parliament as Independent Members of Parliament. The four applicants who were elected to Parliament as members of the SDUP resigned from that political party in or about 2007 and 2008. The effect of their resignations was that these applicants became Independent Members of Parliament. The applicant Palusalue Faapo II who had been elected to Parliament as a member of the HRPP later resigned from the HRPP in 2008 and also became an Independent Member of Parliament.
  4. In or about December 2008, the launching of a new political party called the Tautua Samoa Party was widely publicised in the media. The members of this new political party are the nine applicants. Their stated purpose in setting up their new political party is to target the next general election in 2011. The Tautua Samoa Party has not been registered as a political party.
  5. At the sitting of the Legislative Assembly on Wednesday 21 January 2008, the applicant Lealailepule Rimoni Aiafi informed the Honourable Speaker of the Legislative Assembly, the first respondent, about the establishment of their new political party, the Tautua Samoa. The first respondent then announced that he will give his ruling on the basis of the Standing Orders the next day.
  6. The next day, 22 January 2009, the first respondent announced during the sitting of the Legislative Assembly that the applicants were to notify him in 21 days of their membership of the Tautua Samoa Party. The first respondent also stated, inter alia, that the formation of the Tautua Samoa Party is a breach of s.15 F (4) of the Electoral Act 1963.
  7. Following the announcement by the first respondent, all the applicants submitted letters variously dated from 26 January 2009 to 10 February 2009 indicating that they considered themselves as Independent Members of Parliament. In his letter dated 26 January 2009, the applicant Lealailepule states that the purpose for the establishment of the Tautua Samoa Party was to target the next general election in 2011 but the applicants were aware that such a political party could not be recognised in Parliament during the current parliamentary session because of s.15 of the Electoral Act 1963 and Standing Order 20.
  8. In March 2009, as the Court was informed from the bar, the proceedings of the Legislative Assembly were adjourned.
  9. At the next sitting of the Legislative Assembly on Friday 29 May 2009, the first respondent made an announcement, the effect of which was to disqualify the applicants in terms of s. 10 (j) of the Electoral Act 1963 from holding their parliamentary seats making those parliamentary seats vacant in terms of Article 46 (2) of the Constitution. It also appears from the announcement by the first respondent that the reason for the disqualification of the applicants from their parliamentary seats was because their formation of a new political party was in breach of s.15 F (4) (a) and (b) of the Electoral Act 1963.
  10. In the same announcement, the first respondent directed that the applicants were to return to their respective territorial constituencies for by-elections to be held. This seems to be based on Article 48 of the Constitution which provides for the filling of a vacancy which has occurred to the seat of a Member of Parliament in terms of Article 46 (2) of the Constitution and s. 10 of the Electoral Act 1963.
  11. Sometime on Friday afternoon 5 June 2009, the applicants, through their counsel Ms R V Papalii, filed an ex parte motion for an interim injunction and a motion for declaratory orders against the first respondent. I left for overseas on Sunday 7 June 2009 without any knowledge of the applicants motions which had been filed on 5 June.
  12. On Monday 8 June 2009, Vaai J ordered that the applicants motions were to be served on the first respondent (who was then the only respondent) by Wednesday 10June 2009. His Honour also set the motions down for first mention on 22 June 2009.
  13. In the special issue of the Savali of 8 June 2009, the Honourable Deputy Speaker of the Legislative Assembly issued a public notice purportedly pursuant to s.46 (1) of the Electoral Act 1963 that the applicants parliamentary seats were vacant pursuant to the ruling of Mr. Speaker of 29 May 2009 and Article 46 (2) (d) of the Constitution. A similar public notice was published in the issue of 12 June 2009 of the Samoa Observer newspaper. The first respondent was overseas at those times.
  14. On Monday 15 June 2009, when the Legislative Assembly was re-convened, the applicants turned up to Parliament but were ordered by the first respondent to leave which they did.
  15. On 22 June 2009 the applicants filed a new motion to join the Electoral Commissioner as second respondent, a first amended motion for interim injunctions against the first and second respondents, and a first amended motion for declaratory orders against the same respondents. The respondents consented to all three motions being filed.
  16. The motion for an interim injunction against the Electoral Commissioner as second respondent was heard on 24 June 2009. I was not satisfied on the submissions by counsel for the applicants which were opposed by counsel for the second respondent that an interim injunction should be granted and therefore did not grant an injunction. Leave was granted to the applicants to revisit their motion for an interim injunction against the second respondent on Monday 29 June when the motions against the first respondent and the motion for declaratory orders against the second respondent will be heard.

Proceedings


  1. At the hearing on 29 June 2009, the two motions that the Court had to deal with were the applicants’ first amended motion for interim injunctions against the first and second respondents and their first amended motion for declaratory orders against the same respondents. Counsel for the applicants in their submissions did not revisit the question of an interim injunction against the Electoral Commissioner as second responded. So the motion for interim injunctions insofar as it relates to the second respondent is now denied.
  2. The motion for interim injunctions insofar as it relates to the Honourable Speaker of the Legislative Assembly as first respondent seeks two orders:
  3. A number of grounds are cited in support of the motion. I need not list those grounds. Insofar as they are relevant to the decision of the Court, they will be dealt in this judgment.
  4. The second motion by the applicants seeks a number of declaratory orders. Insofar as they are relevant, those declaratory orders may be stated as follows:
  5. Counsel for the Electoral Commissioner, the second respondent, pointed out in his submissions that the declaratory orders sought by the applicants are really directed at the first respondent and not the second respondent. In fact only the first respondent is mentioned and not the second respondent. Counsel for the second respondent then submitted that the applicants’ motion for declaratory orders should be struck out to the extent that it cites the electoral Commissioner as second respondent.
  6. In my view, counsel for the second respondent is correct. The applicants motion for declaratory orders is struck out and dismissed to the extent that it relates to the second respondent.
  7. What remains for the Court to deal with are the applicants motion for an interim injunction and motion for declaratory orders against the first respondent.

Relevant provisions of the Constitution


  1. Article 2 of the Constitution provides:

" (1) This Constitution shall be the supreme law of Samoa.


" (2) Any existing law and any law passed after the date of coming into force of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void."


  1. Article 13, as far as relevant, provides:

"(1) All citizens of Samoa shall have the right –


"(a) ...;

"(b) To assemble peaceably and without arms; and

"(c) To form associations or unions; and

"(d) ...


"(2) ...


"(3) Nothing in sub-clauses (b) or (c) of clause (1) shall affect the operation of any existing law or prevent the State from making any law in so far as that existing law or the law so made imposes reasonable restrictions on the exercise of either or both of the rights conferred under the provisions of those sub-clauses in the interests of national security or public order, health or morals.


"(4) ...


  1. Article 15, as far as relevant, provides:

"(1) All persons are equal before the law and entitled to equal protection under the law


(2) Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of ... political or other opinion ..., or any of them.
  1. Part V of the Constitution which relates to Parliament then provides in Articles 46:

"(1) ...


"(2) The seat of a Member of Parliament shall become vacant –


"(a) Upon his death; or

(b) If he resigns his seat by writing under his hand addressed to the Speaker; or
(c) If he ceases to be a citizen of Samoa; or
(d) If he becomes disqualified under the provisions of this Constitution or of any Act."
  1. Article 47 then provides:

"All questions that may arise as to the right of any person to be or to remain a Member of Parliament shall be referred to and determined by the Supreme Court."


  1. Article 48 which provides for the filing of vacancies in Parliament states:

"Whenever the seat of a Member of Parliament becomes vacant under the provisions of clause (2) of Article 46, the Speaker shall, by writing under his hand, report the vacancy to the Head of Sate, and the vacancy shall be filled by election in the manner provided by law."


  1. Article 50 which provides for the office of Deputy Speaker, insofar as relevant, provides:

"(1) ...

(2) ...

(3) Subject to the provisions of this Constitution, the functions conferred under the provisions of this Constitution upon the Speaker shall, if there is no person holding the office of Speaker or if the Speaker is absent from Samoa or is otherwise unable to perform those functions, be performed by the Deputy Speaker."


  1. Article 53 which provides for the Standing Orders of Parliament states:

"Subject to the provisions of this Constitution, the Legislative Assembly may make, amend and repeal standing orders regulating its procedure."


Relevant provisions of the Electoral Act 1963


  1. Section 10 of the Electoral Act 1963, which specifies the events in which the seat of a Member of Parliament shall become vacant, provides, insofar as relevant:

"The seat of a Member of Parliament shall become vacant on the occurrence of any of the events specified in Article 46 (2) (a), (b) or (c) of the Constitution, and in addition he or she shall be disqualified from holding his or her seat:


" ...


(j) If the Member acts in accordance with the provisions of section 15 F (4) (a) and (b)."


  1. Section 47 provides:

" Where a vacancy occurs at a time when there is no Speaker or the Speaker is absent from Samoa, the Head of State shall cause a like notice to be inserted in the Gazette, and the like proceedings to be taken as are provided for in section 46".


  1. Part II A of the Act which was recently introduced by the Electoral Amendment Act 2005 then provides a system for the registration of political parties which are eligible for registration, the establishment and maintenance of a register of political parties, and the grounds for de-registration of a political party.
  2. What is noticeable about political parties under Part II A is that the terms "political party", "eligible political party" and "registered political party" are not defined in the Act. Whilst this omission gave rise to arguments from counsel for the applicants, I am of the view that in terms of Part II A of the Act, a "political party" is not synonymous with an "eligible political party" which seems to mean a political party that is eligible for registration. A "political party" which is eligible for registration because it satisfies certain requirements provided in Part II A would be an "eligible political party"; a political party that does not satisfy those requirements would not be an "eligible political party". Until an "eligible political party" has been registered, it is only an "eligible political party". Once registered, an "eligible political party" becomes a "registered political party". A political party will cease to be a "registered political party" when it is de-registered.
  3. It would appear from s.15 B (1) (v) under Part II A that one of the requirements for a political party to qualify as an "eligible political party" is that it has at least 100 current financial members who are eligible to enroll as electors or voters. One of the grounds on which a registered political party can be de-registered is when the number of its current financial members falls below 100. Counsel for the applicants, when asked by the Court, said that the Tautua Samoa Party has about 30 financial members. If that is so, then the Tautua Samoa Party is not an "eligible political party" under Part II A and therefore does not qualify for registration.
  4. Section 15 F of the Act which is crucial to these proceedings then provides:

"Notwithstanding any other law, including but not limited to Standing Orders:


"(1) Subject to subsection (3), a Candidate elected as a Member, where the ballot paper for such election cites the Candidate’s membership of a political party, shall sit in the Legislative Assembly as a member of that political party during the term for which the Candidate was so elected.


(2) Subject to subsection (4), a Candidate elected as a Member, where the ballot paper for such election cites the Candidate as independent (meaning the Candidate is not a member of a political party at the time of election), may, prior to taking the oath of allegiance, join a political party in the manner provided by Standing Orders and thereafter such elected Candidate shall sit in the Legislative Assembly as a member of that political party during the term for which the candidate was so elected.

(3) Subject to subsection (4), a Candidate elected as a Member, where the ballot paper for such election cites the Candidate’s membership of a political party and upon electi9on, but prior to taking the oath of allegiance, it appears that such political party does not have sufficient membership to be recognised as a political party in the Legislative Assembly under standing Orders, may, prior to taking the oath of allegiance, join another political party or become an independent in the manner provided by Standing Orders and thereafter the elected Candidate shall sit in the Legislative Assembly as a member of such other political party or as an independent, as the case may require, during the term for which the Candidate was so elected.

(4) Where:

the seat of such Candidate as a Member of Parliament shall become vacant and such Candidate shall be disqualified from holding such seat."


  1. Perhaps I should also refer at this point to the new s.56 A of the Act which provides:

"(1) Where a name is shown on a nomination paper or other document in which a candidate lists a registered political party, the Commissioner may require confirmation of such candidates eligibility to claim that accreditation.


(2) No unregistered political party shall be recognised by the Commissioner."


Relevant provisions of the Standing Orders


  1. Standing Order 20 which provides for the recognition of parties in Parliament provides:

"(1) At the commencement of each Parliament any group of members of not less than eight shall be recognised as a party in Parliament on its leader notifying the Speaker.


Provided that the party is registered as a party by the Electoral Commissioner pursuant to section 15 A of the Electoral Act 1963.


(2) A party must inform the Speaker of:


(a) the name of the party;
(b) the identity of the leader and deputy leader;
(c) its Parliamentary membership;

"Provided that the matters specified in (1) and (2) of this Order are notified before the members take the Oath of Allegiance.


(3) The Speaker must be informed of any change in matters specified in (2) of this Order.

(4) ...

(5) A party that has been recognised as a party in Parliament shall lose its recognition if its membership falls below eight Members of Parliament.

(6) For parliamentary purposes:

"(a) any member who takes the Oath of Allegiance before he is notified under a party as required by (2) (c) of this Order shall be recognised as an independent member for the duration of the parliamentary term;


(c) any member who ceases to be a member of a party under which he was notified as required by (2) (c) shall be recognised as an independent member for the rest of the parliamentary term

(7) In the period between a general election and the Assembly electing a Speaker, the matters specified in (1) and (2) of this Order may be notified to the Clerk".

Discussion


  1. Because of the urgency involved in these proceedings, it is not possible to deal with every major issue raised by counsel in their submissions or to deal with every such issue in depth. The Court has to give its decision promptly.
  2. What I propose to do is to deal in depth with the one issue which I see to be the decisive issue to the outcome of these proceedings and then to comment on some of the other important issues that were argued by counsel in their submissions.

(a) The applicability of s.15 F (4) (a) and (b) of the Electoral Act 1963


  1. At the heart of these proceedings is s.15 F (4) (a) and (b) of the Electoral Act 1963. The decisive question is whether s.15 F (4) (a) and (b) applied to the applicants so as to justify their disqualification as Members of Parliament, declaring their parliamentary seats vacant, and calling for by-elections. The question is one of both fact and law and the answer to it determines the outcome of these proceedings.
  2. Article 46 (2) (d) of the Constitution provides, inter alia, that the seat of a Member of Parliament shall become vacant if he becomes disqualified under the provisions of any Act.
  3. The relevant Act for present purposes is the Electoral Act 1963. Section 10 (j) of the Act provides that if a Member of Parliament acts in accordance with the provisions of s.15 F (4) (a) and (b), he would be disqualified from holding his parliamentary seat and his parliamentary seat shall become vacant. It was pursuant to s.15 F (4) (a) and (b) that the first respondent purported to disqualify the applicants from holding their parliamentary seats because in the opinion of the first respondent, the applicants by forming a new political party were in breach of that provision.
  4. The nub of the matter is, therefore, whether the applicants by their actions were in breach of s.15 F (4) (a) and (b). This requires consideration of the relevant provisions of the Act, in particular the provisions of Part II A.
  5. Part II A of the Act contains six provisions. These are s.15 A to s.15 F. Section 15A provides for the registration of an "eligible political party" and the establishment and maintenance of a register of political parties.
  6. Section 15.B provides for the making of an application for registration of an eligible political party to the Electoral Commissioner, the persons who may make such an application, the information to be provided in an application for registration, the type of information that will not be accepted in an application for registration, and the authority of the Electoral Commissioner to determine whether an eligible political party can be registered.
  7. Even though the terms "party" and "political party" are used in some of the provisions of s.15B, it is clear that what is contemplated by the use of those terms is an "eligible political party" because s.15B (1) speaks only of an application for registration by an eligible political party. There is no mention of any other type of party that may apply for registration.
  8. I have already pointed out that the term "eligible political party" is not defined in the Act. However, it is clear from s.15B (2) (v) that one of the requirements for a political party to qualify as an eligible political party is that it must have at least 100 current financial members who are eligible to enroll as electors or voters. The Tautua Samoa Party, as the Court was informed by counsel for the applicants, has about 30 current financial members. So in terms of s.15B, the Tautua Samoa Party would not qualify as an eligible political party. It follows that it is not qualified to apply for registration under s.15B and it has not done so. It is therefore still unregistered.
  9. Section 15C then provides for the registration of a political party by the Electoral Commissioner; s.15D provides for inspection of the register of political parties by members of the public; and s.15E provides for the de-registration of a political party.
  10. It is clear from ss.15A to E under Part II A that the intention of Parliament in enacting those provisions was is to provide a system of registration for political parties which are eligible for registration and the grounds on which a registered political party can be de-registered.
  11. When it comes to s.15F there is no reference to a "registered political party". Section 15F speaks only in terms of "a political party". This gave rise to counter arguments from counsel for the applicants who submitted that the term "political party" used in s.15F means registered political party and counsel for the first respondent who submitted that the term "political party" in s.15F means any political party, registered or unregistered.
  12. With respect to the persuasive submissions put to me by counsel for the first respondent, I am of the clear view that the term "political party" used in s.15.F is restricted in meaning to a "registered political party". It does not include an unregistered political party. Counsel for the applicants are therefore right in their submissions.
  13. Section 15.F (1) provides that a candidate elected as a Member of Parliament, "where the ballot paper for such election cites the candidates membership of a political party", shall sit in the Legislative Assembly as a member of that political party during the term for which the candidate was so elected. Thus s.15F (1) is referring to a successful election candidate who had contested the election as a member of a political party and his name had appeared on the ballot papers as a member of that political party.
  14. Section 56 (1) then provides that the ballot papers used at any election shall be in From 7. The specimen ballot paper in Form 7 shows that where a candidate is contesting an election as a member of a political party the name of the candidate and that of his political party are shown on the ballot papers. Where a candidate is contesting the election as an Independent the name of the candidate and the word "Independent" under his name are shown on the ballot papers.
  15. Section 56 (3) then provides that every ballot paper shall contain a list of all the persons nominated as candidates who have not withdrawn their nominations. So the names of the candidates which appear on the ballot papers for an election are taken from the nomination papers for that election.
  16. If one then turns to s.48 which provides for the nomination of candidates for an election, it is there provided that every nomination form shall be in form 5. If one refers to Form 5, it is there shown that if a nominated candidate is contesting the election as a member of a political party, then he must state the name of his political party in his nomination form, or if he is an independent candidate then he must state in his nomination form that he is an independent candidate.
  17. Section 56 A (1) of the Act provides that where a candidate whose name appears on a nomination paper or other document lists a particular "registered political party", the Electoral Commissioner may require from the candidate confirmation of his eligibility to claim that accreditation.
  18. Section 56 A (2) then explicitly states that "no unregistered political party shall be recognised by the Electoral Commissioner".
  19. Thus it is clear from s.48 and s.56 A that the only political parties that may be accepted and whose names may be shown on the nomination papers for candidates at an election are registered political parties. The Electoral Commissioner is expressly required not to recognise any unregistered political party.
  20. But the names of candidates and their political parties which are shown on the ballot papers are, in terms of s.56 (3), taken from the nomination papers. Because only the names of registered political parties may be shown in the nomination papers, it necessarily follows that the political parties whose names appear in the ballot papers are registered political parties because the ballot papers are prepared from the nomination papers.
  21. It must, therefore, follow that when s.15F (1) refers to "a candidate elected as a Member, where the ballot paper for such election cites the candidate’s membership of a political party", what is meant by "political party" is a registered political party and not an unregistered political party. This is because only the name of a registered political party may be shown on the ballot papers.
  22. This interpretation of the term "political party" used in s.15F (1) to mean a "registered political party" would be consistent with the scheme of Part II A of the Act which provides for a system of registration of eligible political parties. It would be surprising, given the clear intention of Parliament under Part II A to establish a system for the registration of political parties, if the names of unregistered political parties are allowed to appear in nomination and ballot papers used at an election. The Electoral Commissioner is also expressly required under s.56 A(2) not to recognise unregistered political parties.
  23. This interpretation of the term "political party" to mean a "registered political party" is also reflected in Standing Order 20 which deals with the recognition of parties in Parliament. The proviso to Standing Order 20 (1) provides that a party that is recognised in Parliament must be a party that is "registered as a party by the Electoral Commissioner pursuant to section 15A of the Electoral Act 1963".
  24. By the same process of reasoning, the term "political party" used in ss.15F (2) and (3) which also contain references to ballot papers used at an election, must mean "registered political party".
  25. Section 15F (4) under which the applicants were disqualified from holding their parliamentary seats refers in para (a) to an elected candidate who is or becomes a member of a "political party" in accordance with s.15F (1), s.15F (2) and s.15 F (3). So the term "political party" used in s.15F (4) (a) relates back to "political party" in the preceeding subsections 15F (1), 15F (2) and 15F (3). I have already concluded that the term "political party" used in s.15F (1), s.15F (2) and s.15F (3) means a "registered political party". It follows that the term "political party" used in s.15F (4) (a) must also mean the same thing.
  26. Likewise, the term "political party" used in s.15F (4) (b) must also mean a registered political party. Parliament must be taken to be consistent in the meaning of a particular term used in the same section of an Act unless there is a clear indication to the contrary. There is no such clear indication to the contrary with regard to the use of the term "political party" in s.15 F (4) (b).
  27. Furthermore, section 15F (4) (b) provides that an elected candidate who subsequently resigns from "such political party" and becomes a member of another political party during the parliamentary term for which he was so elected shall be disqualified from holding his parliamentary seat which shall become vacant. The words "such political party" in s.15F (4) (b) clearly relate back to "political party" in s.15F (4) (a) which means a registered political party. So the term "political party" used in s.15F (4) (b) must also mean a registered political party.
  28. Now the applicants Lealailepule, Vaai, Motupua’a and Toluono were elected as Independent Members of Parliament in the 2006 general election and not as members of a registered political party. The applicants Aeau, Fuimaono, Levaopolo and Mulipola were elected as Members of Parliament in the 2006 general election as members of the SDUP which is a registered political party. And the applicant Palusalue was elected to Parliament in the same general election as a member of the HRPP which is also a registered political party.
  29. Subsequently, in 2007 and 2008 Aeau, Fuimaono, Levaopolo and Mulipola resigned from the SDUP. In terms of Standing Order 20 (6) (b), they would then become Independent Members of Parliament for parliamentary purposes. Palusalue resigned from the HRPP in 2008. He also became an Independent Member of Parliament. The other four applicants who were elected as Independents in the 2006 general election continued to remain as Independents.
  30. Towards the end of 2008, the applicants grouped together and launched a new political party the Tautua Samoa Party to target the 2011 general election. They said that they did not register their newly formed political party as they were concerned they might be disqualified from holding their parliamentary seats. However, it is clear that the Tautua Samoa Party could not have been registered as a political party even if the applicants had wanted to because they have only 30 financial members. One of the requirements for a political party to become eligible for registration is that it must have at least 100 current financial members who are eligible to enroll as electors or voters. So if the applicants had applied for registration of their newly formed political party, their application would have been rejected by the Electoral Commissioner.
  31. As already pointed out, the reason for the disqualification of the applicants from Parliament was their formation of a new political party which was said to be in breach of s.15F (4) (a) and (b) of the Electoral Act 1963.
  32. In my respectful view, s.15F (4) (a) and (b) of the Act did not apply to the applicants. Section 15F (4) (a) and (b) only applies to a Member of Parliament who is elected as a member of a registered political party but subsequently resigns from that registered political party and becomes a member of another registered political party.
  33. Even though the applicants Palusalue, Aeau, Fuimaono, Levaopolo and Mulipola were elected to Parliament as members of registered political parties and subsequently resigned from those parties and later became members of the newly formed Tautua Samoa Party, the Tautua Samoa Party is not a registered political party. It is not even a political party that is eligible for registration as a political party. Section 15F (4) (a) and (b) therefore does not apply to them.
  34. As for the applicants Lealailepule, Vaai, Motupua’a and Toluono, they were elected to Parliament as Independents and not as members of a registered political party. They could not, therefore, have resigned from a registered political party and become members of another registered political party because they were Independents and not members of any political party, registered or unregistered. Furthermore, these applicants did not become members of a registered political party because their newly formed Tautua Samoa Party is not a registered political party.
  35. I accept the submission by counsel for the first respondent that the apparent intention of Parliament in enacting s.15F (4) (a) and (b) was to prevent party-hopping and party-changing by Members of Parliament between elections. But that cannot apply to the applicants Lealailepule, Vaai, Motupua’a and Toluono because as Independent Members they did not move from one political party to another political party.
  36. As s.15F (4) (a) and (b) presently stands, the only type of party-hopping that will result in the disqualification of a Member of Parliament is to move from one registered political party to another registered political party between elections. That does not apply to the applicants Palusalue, Aeau, Fuimaono, Levaopolo and Mulipola because they did not move from one registered political party to another registered political party as the Tautua Samoa Party is not a registered political party.
  37. For the foregoing reasons, I have come to the conclusion that the decision by the first respondent to disqualify the applicants from holding their parliamentary seats, declaring their parliamentary seats vacant, and calling for by-elections pursuant to s.10 (j) of the Act is not supported by the provisions of s.15F (4) (a) and (b).
  38. I will grant declaratory orders on that basis. That should conclude this matter in favour of the applicants.

(b) Freedom of association


  1. One of the major issues raised on behalf of the applicants by their counsel is that s.15F (4) (a) and (b) of the Electoral Act 1963 is inconsistent with the freedom to form associations guaranteed under Article 13 (1) (c) of the Constitution. It was, therefore, submitted by counsel for the applicants that s.15F (4) (a) and (b) should be declared void in terms of Article 2(2) which provides that any law which is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.
  2. I do not propose to come to any decision on this part of the submissions by counsel for the applicants. In not doing so, no discourtesy is intended to counsel for the applicants and the amount of work they have put into the preparation of their well presented submissions. The issue is of major parliamentary significance. I prefer to leave this issue for further arguments and consideration in another case where it will arise again. I have also decided in favour of the applicants’ motion for declaratory orders. I would only like to make the following comments.
  3. Political parties are a form of association. The freedom to form associations provided under Article 13 (1) (c) is a fundamental right. It includes the right to form political parties.
  4. Any law, including an Act of Parliament, which imposes any restriction on the exercise of the right to form associations will be void in terms of Article 2(2) unless such restriction is permitted by the exception provided under Article 13(3).
  5. Article 13(3) permits the State to make any law in so far as such law imposes "reasonable restrictions" on the exercise of right to form associations in the interests of national security or public order, health or morals.
  6. There was no dispute that s.15F (4) (a) and (b) does impose a restriction on the right to form associations which includes the right to form political parties. In these proceedings that means the applicants’ right to form and become members of the Tautua Samoa Party without being disqualified as Members of Parliament and going to by-elections.
  7. Counsel for the first respondent submitted that the restriction imposed by s.15F (4) (a) and (b) on the applicants’ right to form a new political party is a reasonable restriction on that right in the interest of public order. Counsel further submitted that Parliament’s purpose behind the enactment of s.15F (4) (a) and (b) was to prevent defections by Members of Parliament from one political party to another political party between elections and thus create instability within Parliament. Such instability, according to counsel for the first respondent, has a ripple effect which can affect public order.
  8. Counsel for the first respondent also referred to the Electoral (Integrity) Amendment Act 2001 which was enacted by the New Zealand Parliament following concern about the incidence of party-changing by Members of Parliament between elections. Section 55A of that New Zealand legislation provides in sub-section (1) that it applies to every Member of Parliament except a Member who was elected as an Independent. Subsection (2) then provides that the seat of a Member of Parliament shall become vacant if the Member of Parliament ceases to be a parliamentary member of the political party for which that Member was elected to Parliament.
  9. Counsel for the first respondent also referred to the decision of the Supreme Court of New Zealand in Prebble v Huata [2004] NZSC 29 where the provisions of the Electoral (Integrity) Amendment Act 2001 (NZ) were discussed.
  10. I think the point that counsel for the first respondent was making here is that the restriction imposed under s.15F (4) (a) and (b) on party-hopping by Members of Parliament between elections is not without overseas precedent. There is similar legislative restriction on party-hopping enacted in New Zealand. Because New Zealand is a democratic society, legislative restriction on party-hopping by Members of Parliament is an acceptable restriction within a democratic society. In my view, closer examination is required of the nature of that restriction in New Zealand, the reasons for its enactment, and the parliamentary environment in which it operates.
  11. It is clear to me that Parliament’s intention in enacting s.15F (4) (a) and (b) was to prevent party-hopping or party-changing by Members of Parliament between elections. In that way parliamentary stability may be maintained. However, it is not so clear whether the restriction imposed by s.15F (4) (a) and (b) on the right to form political parties is a "reasonable restriction" on the exercise of that right "in the interests of public order" in terms of the exception provided in Article 13 (3).
  12. Apart from the question of what interpretation should be given to the term "public order" in Article 13 (3), evidence should have been produced in proper form to show that the restriction imposed under s.15 F (4) (a) and (b) on the right to form political parties is a reasonable restriction in the interests of public order. It should also be normal practice that when the constitutionality of an Act of Parliament is challenged in Court, the Attorney General be invited to appear on the issue of constitutionality. It does not seem appropriate that a lawyer from the private bar should have to defend the constitutionality of a provision of an Act of the Parliament of the country. That is not because the Court does not have confidence in the ability of experienced counsel for the first respondent for I do have confidence in the ability of counsel for the first respondent who conducted the case for the first respondent in a very able manner.
  13. In the circumstances, however, I have decided to leave the question of whether s.15F (4) (a) and (b) is in violation of the right to form associations provided under Article 13 (1) (c) of the Constitution for further arguments and consideration in another case.
  14. Likewise, I have decided to leave for further consideration in another case the question of whether s.15 F (4) (a) and (b) is in violation of Article 15 (2) of the constitution which provides, inter alia, that no law shall subject any person or persons to any restriction on grounds only of "political or other opinion".

(c) Motion for interim injunctions


  1. I do not have to decide whether the interim injunctions sought by the applicants against the first respondent as Speaker of the Legislative Assembly are an appropriate form of relief to be issued against the first respondent. The usual form of relief to be sought in this type of situation, before considering any other form of relief, are declaratory orders. I have decided to deny the motion of interim injunctions on the basis on which the injunctions are sought.
  2. The first interim injunction sought by the applicants is to stop the first respondent from implementing his decision annulling the appointment of the applicants as Members of Parliament and the holding of by-elections in their constituencies.
  3. The decision by the first respondent to disqualify the applicants from holding their parliamentary seats is a past event and may not now be injuncted. The direction by the first respondent for the applicants to return to by-elections is also a past event and may not now be injuncted.
  4. The holding of by-elections which have been set in motion by the decision of the first respondent to disqualify the applicants from holding their parliamentary seats is a matter now in the hands of the second respondent, the Electoral Commissioner, pursuant to the relevant provisions of the Electoral Act 1963. In that regard, the second respondent will be acting in terms of the requirements of the Act and not under direction from the first respondent.
  5. It is, therefore, not appropriate to grant the first interim injunction sought by the applicants.
  6. The second interim injunction sought by the applicants is to order the first respondent to maintain the status quo and permit the applicants to represent their constituencies as Members of Parliament and to attend sittings of the Legislative Assembly pending the determination of these proceedings.
  7. An interim injunction is an equitable remedy. As such it is discretionary. I have already granted declaratory orders on 1 July 2009 declaring the decision of the first respondent to disqualify the applicants from holding their seats in Parliament and calling for by-elections to be outside the scope of the relevant provisions of the Act. That should be sufficient relief for present purposes.

(d) Public notices


  1. One of the issues that was raised by counsel for the applicants in support of the motion for declaratory orders is that the public notices by the Honourable Deputy Speaker of the Legislative Assembly which were published in the issue of the Savali of 8 June 2009 and of the Samoa Observer newspaper of 12 June 2009 pursuant to s.46 (1) of the Electoral Act 1963 are invalid. These were public notices that the parliamentary seats of the applicants were vacant pursuant to the ruling of the first respondent of 29 May 2009 and Article 46 (2) of the Constitution. The first respondent was overseas at the times of those public notices.
  2. The Court was not requested to make a declaratory order on this issue but because it was addressed somewhat extensively in the submissions of counsel for the applicants and the first respondent I will briefly say something about it.
  3. I accept the submissions by counsel for the applicants that both public notices are invalid. In the first place, s.46 (1) provides that any vacancy that occurs to the seat of a Member of Parliament shall be published in the Gazette, not the Savali or a local newspaper. The term "Gazette" is defined in s.2 (1) of the Act to mean the Samoa Gazette.
  4. Furthermore, under s.46 (1) it is for the Speaker to give public notice in the Gazette of any parliamentary vacancy. Section 47 then provides that where a parliamentary vacancy occurs when there is no Speaker or the Speaker is absent from Samoa, it is His Highness the Head of State to cause a like notice to be published in the Gazette.
  5. Counsel for the first respondent argued that s.47 does not apply because the parliamentary vacancies in this case occurred when there is a Speaker and the Speaker was in Samoa. She further argued that in terms of Article 50 (3) of the Constitution, if the Speaker is absent from Samoa, his functions shall be performed by Deputy Speaker. Because the Speaker was overseas at the relevant time, it was for the Deputy Speaker to issue the public notices.
  6. In spite of the persuasiveness with which these arguments were put by counsel for the first respondent, I am not able to accept them. It is true that the parliamentary vacancies in this case occurred while the first respondent was in Samoa for he declared the vacancies. But those vacancies did not end at the same time that they occurred. The vacancies continued to occur and exist when the first respondent went overseas and after he returned to Samoa.
  7. Furthermore, Article 50 (3) of the Constitution provides, inter alia, that if the Speaker is absent from Samoa, the functions conferred upon the Speaker under the provisions of the Constitution shall be performed by the Deputy Speaker. The function of giving public notice in the Gazette of a parliamentary vacancy is not one of the functions conferred upon the Speaker under the Constitution. It is a function of the Speaker provided under s.46 (1) of the Electoral Act 1963. So Article 50 (3) does not apply.

Conclusions


  1. For all the foregoing reasons, I have come to these conclusions:

(i) The decision by the first respondent to disqualify the applicants in terms of s.10(j) of the Electoral Act 1963 for contravening s.15F (4), (a) and (b) of the Act is not supported by those provisions of the Act and therefore falls outside the terms of those provisions; and


(ii) The decision by the first respondent for the applicants to return to their territorial constituencies for by-elections does not have the necessary foundation under the relevant provisions of the Electoral Act 1963.


  1. Counsel to file submissions as to costs in 7 days.

CHIEF JUSTICE


Solicitors
Toa Law for applicants
M V Peteru Law Firm for first respondent
Attorney General’s Office, Apia for second respondent

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