PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Samoa
You are here:  PacLII >> Databases >> Supreme Court of Samoa >> 2020 >> [2020] WSSC 89

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Vaai v Speaker of the Legislative Assembly [2020] WSSC 89 (14 December 2020)

IN THE SUPREME COURT OF SAMOA
Vaai & Anor v Speaker of the Legislative Assembly [2020] WSSC 89


Case name:
Vaai & Anor v Speaker of the Legislative Assembly


Citation:


Decision date:
14 December 2020


Parties:
OLO FITI AFOA VAAI (First Applicant) and FAUMUINA ASI PAULI WAYNE FONG (Second Applicant) v SPEAKER OF THE LEGISLATIVE ASSEMBLY (First Respondent) and ELECTORAL COMMISSIONER (Second Respondent)


Hearing date(s):
08 December 2020


File number(s):



Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Acting Chief Justice Tuatagaloa
Justice Tuala-Warren
Justice Clarke


On appeal from:


Order:
Accordingly, we make the following declarations:
(a) The First Respondent’s purported declarations that the First and Second Applicants seats are vacated is in breach of Article 47 of the Constitution and section 143 of the EA 2019 is therefore invalid and unlawful;
(b) The First Respondent’s motion to declare the Applicants seats vacated is declined for the reasons given; and
(c) The First Respondent is to pay the Applicants costs of $1,500.00 for each Applicant.


Representation:
M. Lui for First Applicant
Mauga P. Chang for Second Applicant
Luamanuvao K. Sapolu & Leota T. Leavai for First Respondent
Fuimaono S. Ainuu and T. Peniamina Amicus Curiae


Catchwords:
Members of Parliament – seats in Parliament vacated -


Words and phrases:
Motion by applicants to seek whether vacating seats unconstitutional and/or is a breach of Electoral Act 2019


Legislation cited:
Constitution of the Independent State of Samoa, Articles 2; 4(2); 46; 46(3); 46(3)(b); 47; 48; 53;
Criminal Procedure Act 2016 s. 18;
Electoral Act 1963 (repealed) ss. 15F(2); 44-45A;
Electoral Act 2019 ss. 4547(3); 140; 140(2); 140(4); 141; 141(2)(b); 141(2)(n); 141(2)(n)(i); 141(2)(n)(ii); 142; 142(1); 142(3); 142(6); 142(7); 143;
Parliamentary Standing Orders, 21; 21(6)(a).


Cases cited:
Aiafi v Speaker of the Legislative Assembly [2009] WSSC 65.


Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


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


A N D:


IN THE MATTER:


of the Electoral Act 2019 and Standing Orders of the Parliament of Samoa.


BETWEEN:


OLO FITI AFOA VAAI
First Applicant


FAUMUINA ASI PAULI WAYNE FONG
Second Applicant


A N D:


SPEAKER OF THE LEGISLATIVE ASSEMBLY
First Respondent


A N D:


ELECTORAL COMMISSIONER
Second Respondent


Coram: Acting Chief Justice Niavā M. Tuatagaloa
Justice Tologata Tafaoimalo L. Tuala-Warren
Justice Leiataualesa D. Clarke


Counsel: M. Lui for First Applicant

Mauga P. Chang for Second Applicant
Luamanuvao K. Sapolu & Leota T. Leavai for First Respondent
Fuimaono S. Ainuu and T. Peniamina Amicus Curiae


Hearing: 08 December 2020
Judgment: 14 December 2020


JUDGMENT OF THE COURT

Background

  1. The two applicants are Members of Parliament. They were elected to Parliament in the 2016 general election.
  2. In the 2016 general election, the First Applicant Olo Fiti Afoa Vaai (“First Applicant”) contested the election as an Independent candidate and was elected as a Member of Parliament for the territorial constituency of Salega 2. He then took the oath of allegiance as an Independent Member of Parliament (section 140(4), Electoral Act 2019 (‘the EA 2019”)).
  3. The Second Applicant Faumuina Wayne Fong contested the 2016 general election as an Independent and was elected for the Urban West Constituency as an Independent. Prior to taking his oath of allegiance, he however joined the Human Rights Protection Party (“HRPP”) (section 140(2), EA 2019, formerly section 15F(2) of the Electoral Act 1963 (repealed)).
  4. The First Applicant who had been elected to Parliament as an Independent represented his constituency in Parliament as an Independent Member of Parliament. The Second Applicant who had however following the 2016 General Election joined the HRPP, was in July 2020 sacked and removed from the HRPP and became an Independent Member of Parliament.[1]
  5. Between the 10th – 23rd October 2020 when the nominations for candidacy were open for the General Elections in 2021, the First and Second Applicants registered their nominations as candidates. The First Applicant for the Electoral Constituency of Salega 2 and the Second Applicant for the Electoral Constituency of Faleata 2. Both Applicants on their nomination forms declared their candidacy for the 2021 general elections for the Faatuatua i le Atua Samoa ua Tasi (“FAST”) party, registered as a political party on 30th July 2020.[2]
  6. On the 27th October 2020, the Second Respondent (hereinafter “the Electoral Commissioner”) received a telephone query from the Clerk of the Legislative Assembly “to say that the Speaker of the Legislative Assembly wishes to confirm which Party that Olo and Faumuina have registered under for the upcoming 2021 General Elections." (paragraph 44, exhibit R2, Affidavit of Electoral Commissioner). On the same day, the Electoral Commissioner wrote to the First Respondent to confirm that the Applicants have registered under FAST “for the upcoming 2021 General Elections (paragraph 45, exhibit R2, Affidavit of Electoral Commissioner).
  7. On 28th October 2020, both Applicants received letters from the First Respondent, the Speaker of the Legislative Assembly (“Speaker”) declaring their seats to be vacant.[3] Attached to both letters was the letter from the Electoral Commissioner dated 27th October informing the Speaker of both Applicants declaring their candidacy for FAST in the upcoming General Election.
  8. The Speaker in his letter dated 28th October 2020 stated, inter alia, that the Applicants’ seats are vacated according to Article 46 of the Constitution, sections 140(4), 141(2)(b) and 142(1) of the Act 2019 and Parliamentary Standing Orders 21(6)(a).
  9. On 2nd November 2020, both Applicants individually responded to the First Respondent rejecting his decision vacating their seats. On the same day, both Applicants each received from the Clerk of the Legislative Assembly letters of notification for the next sitting of Parliament on the 17th November.
  10. On the 9th November 2020, the salaries of both Applicants as Members of Parliament were ceased.
  11. On 12th November, the Clerk of the Legislative Assembly by letter informed both Applicants that his letters dated 2nd November were sent to them by mistake and that the Speaker’s decision vacating their seats remained.
  12. At the next sitting of the Legislative Assembly on Tuesday, 17th November, pursuant to Parliamentary Standing Orders 21(6)(a) the Speaker made an announcement that the seats held by both Applicants were now vacant.
  13. On 20 November 2020, both Applicants filed their Motion for Declaratory Orders the subject of these proceedings.

Proceedings

  1. These proceedings were initially brought against the Speaker of the Legislative Assembly as First Respondent and the Electoral Commissioner as the Second Respondent. On the date of hearing, proceedings against the Electoral Commissioner were struck out by consent. Costs were reserved, however the Office of the Attorney General were invited to remain in relation to any Constitutional issues that may arise.
  2. There are therefore two remaining motions before the Court. The first is a motion by the Applicants and the second is the motion by the First Respondent.

(a) Motion by the Applicants

  1. The motion by the Applicants seek for declaratory orders:

(b) Response and Counter Motion by First Respondent

  1. The First Respondent opposes the Motion for Declaratory Orders sought by the Applicants saying that “the First and Second Applicants are deliberately obfuscating their joining of the political party Faatuatua i le Atua Samoa ua Tasi (FAST) thereby vacating their seats in Parliament”.
  2. The First Respondent’s Counter-Motion seeks the following Orders from the Court:
  3. The Response and Counter-Motion is supported by Affidavits of Yonita Tuia and Timothy Fata of the Office of the Legislative Assembly.
  4. By these motions, the Court is essentially called to:

Relevant provisions of the Constitution

  1. Article 2 of the Constitution provides:
  2. Article 4(2) provides:
  3. Article 45 provides for qualifications as Members of Parliament:
  4. Part V of the Constitution which relates to Parliament then provides in Article 46:
  5. Article 47 then provides:
  6. Article 48 which provides for the filling of vacancies in Parliament states:
  7. Article 53 which provides for the Standing Orders of Parliament states:

Relevant provisions of the Electoral Act 2019 (“EA 2019”)

  1. Section 140 provides for Membership in relation to a Political Party within the Legislative Assembly as follows:
  2. Section 141 of the Electoral Act 2019 specifies the events in which the seat of a Member of Parliament shall become va provides, insofar as relevant:
  3. Section 142 is where a Member(s) is charge with vacation of seat, of relevance:
  4. Section 143 provides that the Speaker or Deputy Speaker shall declare the vacation of a Member’s seat if: (my emphasis) –
  5. For purposes and relevance to the present proceedings, section 2 defines the following:
    1. every 5 years from the date of the general elections; or
    2. the date from a bi-election until the next general elections.”

Relevant provisions of the Standing Orders (“SO”)

  1. Standing Order 21 provides for the recognition of parties in Parliament; of relevance:

Discussion

The Applicants’ Motion

  1. We will deal first with the Applicants’ Motion to declare that the First Respondent’s actions and/or his declarations of the vacating of their Parliamentary seats’ constitutes a breach of the EA 2019 and/or is unconstitutional.
  2. Article 2 of the Constitution states that the Constitution is the Supreme Law of Samoa. 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." That process of the determination of the rights of any person to be or to remain a Member of Parliament is then set out in section 142(1) of the EA 2019.
  3. In accordance with subsection 142(1), where the Speaker has reason to believe that a member’s seat has become vacant on the grounds set out in section 141, the Speaker must charge that member with that vacation, and if the Legislative Assembly is then sitting, must do so orally in the Assembly.
  4. On the 27th October, the Clerk of the Legislative Assembly made contact with the Electoral Commissioner on behalf of the First Respondent. He enquired on behalf of the First Respondent as to what Party the two Applicants had registered under. The Electoral Commissioner on the same day confirmed by letter to the First Respondent that both Applicants had registered with FAST for the upcoming election.
  5. As a result, the First Respondent then wrote separately to both Applicants on the 28th October 2020 headed “Avanoa ai o le nofoa o le Palemene”. In his letters, the First Respondent says that he has confirmation from the Electoral Commission that both members have registered as members of FAST for the upcoming election next year. He informed the Applicants that their seats are vacant and said that this decision had been made on the basis of sections 142(1), 140(4), and 141(2)(b) of the EA 2019, Standing Order 21(6)(a) and Article 46 of the Constitution.
  6. In this case, the Legislative Assembly was not then sitting so the First Respondent was not required to charge the Applicants orally in the Assembly.
  7. For the Applicants, it was submitted that these are not charges for the purposes of section 142 of the EA 2019. It was submitted that the letters cannot be both a charge as well as a decision to vacate the Parliamentary seats. Furthermore, even if they are ‘charges’, they are defective due to their form.
  8. The First Respondent through counsel contended that these letters constitute charges against the Applicants and it was noted that the letters to the Applicants refer to charging section 142(1) EA.
  9. Whilst the First Respondent’s letters to the Applicants are not in a charging form ordinarily associated with a ‘charge’ or ‘information, there are no form requirements under the EA 2019 for a charge to comply with. This can be contrasted for example with section 18 and Form 1 of the Criminal Procedure Act 2016. Whilst it is not in the form generally associated with a charge, we accept that the First Respondent’s letter to both Applicants in substance are charges for the purposes of the EA 2019. The First Respondent in his letters to the Applicants expressly refers to section 142(1) of the EA 2019.
  10. Section 142(3) then states that if a member charged does not admit the charge in writing, the First Respondent must refer the charge to the Supreme Court pursuant to Article 47 of the Constitution. We accept that both Applicants by rejecting the charges against them as seen in their letters dated 2 November 2020 did not admit the charges for the purposes of section 142(3) of the EA 2019. The Applicants responded to the charges against them stating “matuā teena malosi o lau faaiuga e pei ona tuuina mai”. Their response was unequivocal.
  11. Having not admitted to the charges, the First Respondent did not then refer the matter to the Supreme Court in accordance with article 47 of the Constitution and section 142(3) of the EA 2019. Relevantly in this context, there are only two ways that the First Respondent “shall” declare the vacation of a member of Parliament’s seat vacant:
  12. The Applicants rejected the First Respondent’s ‘decision’ conveyed in his letters dated 28 October 2020 and this Court has not ruled that the Applicants seats are vacated. That is now, in part, the purpose of these proceedings. We are therefore satisfied that the “declaration” by the First Respondent declaring the Applicants Parliamentary seats vacant was in breach of article 47 of the Constitution and section 143 of the EA 2019.
  13. The evidence also satisfies us that the Applicants have not been suspended from Parliament pursuant to section 142(6) of the EA 2019. This has implications for the pay and allowances due to the Applicants. The Clerk of the Legislative Assembly at page 23 of the transcript:
  14. Section 142(7) provides that a member who is suspended under this section is not entitled to any pay or allowance for the period of his or her suspension unless the Supreme Court rules that the Member’s seat has not been vacated. For the purposes of their pay or allowance, the members have not been suspended nor has the Supreme Court ruled on the matter.
  15. It would have been appropriate for the First Respondent to move a motion to suspend the First and Second Applicants given that they have denied the charges to await a decision of the Supreme Court in accordance with section 143 of EA 2019.
  16. We now turn to the First Respondent’s Motion to declare the Applicants seats vacant.

The Counter-Motion

  1. The counter-motion by the First Respondent seeks a declaration from the Court that the Applicants’ Parliamentary seats are vacant pursuant to article 46(3) of the Constitution and section 141(2)(b) of the EA 2019, namely, that they have vacated their seats as Independents by joining FAST during the Parliamentary term. The Motion is consistent with the charge laid by the First Respondent, namely, section 141(2)(b) of the EA 2019.
  2. Section 141(2)(b) of the EA 2019 provides:[4]
  3. In order for a seat to be declared vacant pursuant to section 141(2)(b) of the EA 2019, there are in our view three elements that must be satisfied by the First Respondent for the Court to make such declarations, namely:

and

(iii) That Member joined a political party during the Parliamentary term.
  1. We will apply these elements to the two Applicants separately, dealing first with the Second Applicant.

The Second Applicant (Faumuina Asi Pauli Wayne Fong)

  1. In his uncontested evidence, the Second Applicant contested the 2016 general elections as an independent and was elected as an Independent member. However, before taking his oath of allegiance, he joined the HRPP. In July of this year, he was sacked from the HRPP. He then became an Independent Member of Parliament.
  2. On these uncontested facts, whilst the first element is satisfied, namely, that the Second Applicant is presently an Independent Member of Parliament, the second element clearly is not satisfied. The Second Applicant was not elected as a Member of Parliament for a political party that does not have sufficient membership in Parliament to be recognized as a Party nor was he elected as an Independent that took the oath of allegiance as an Independent Member of Parliament.
  3. Consequently, we do not need to consider the third element of the charge pursuant to section 141(2)(b), namely, whether the Second Applicant had joined FAST during the Parliamentary term. In the event we are wrong, we however will do so when we turn to deal with the First Applicant, as the question of whether the First and/or Second Applicant ‘joined’ FAST turns on similar facts.
  4. The First Respondent’s Motion for the Court to declare the Second Applicant’s seat vacant for breach of section 141(2)(b) must accordingly fail.

The First Applicant (Olo Fiti Afoa Vaai)

  1. We now turn to the First Applicant and apply those elements we have set out in paragraph 51 above. We are satisfied that the First Applicant is:
  2. We accept that a “political party” for the purposes of section 141(2)(b) of the EA 2019 means a registered political party as provided for in Part 2 for similar reasons as set out by former Chief Justice Sapolu in Aiafi v Speaker of the Legislative Assembly [2009] WSSC, 65 though applied to the repealed provisions from the Electoral Act 1963 (repealed). It is not disputed that FAST is a registered political party.
  3. For the First Respondent, the contention is that the Applicants have both registered as candidates for FAST and the appearance of their names in the list of FAST Candidates is cogent evidence that they had ‘joined’ a political party, FAST The Respondent also relies on the Applicants activities with FAST such as the Party launches in Savaii and Upolu and hearsay statements attributed to the leader of FAST describing the First Applicant as “Deputy Leader” and the introduction of the Second Applicant as the ‘Teu oloa, o le Minista of Tupe lea o le tatou Vaega Faaupufai.”
  4. Both Applicants expressly state in their Supplementary Affidavits[5] that they have ‘joined’ FAST nor have they become registered or financial members of FAST They said to join FAST, you must (i) pay $1,000 and (ii) complete a MOU which you must sign for FAST to support you. In his evidence, the First Applicant stated:[6]
  5. For the Second Applicant, he states:[7]
  6. In his Supplementary affidavit,[8] the First Applicant does not deny that he has publicly supported and been involved in FAST activities but his involvement is to prepare for the 2021 general elections and be visible to his voters. He also states that the nomination forms are very clear, they are for the purposes of the general elections in 2021.
  7. In his Supplementary affidavit,[9] the Second Applicant similarly states that he does not deny having publicly supported and being involved in FAST activities but those are in preparation for the general elections and his campaign. He also states that the nomination documents declare that he will run under FAST for the 2021 general elections but not for the current Parliamentary term.
  8. When the Second Applicant was expressly questioned by counsel for the First Respondent concerning membership of FAST, the Second Applicant stated that membership, financial or non-financial, depended on the Laws, By-Laws or regulations of those bodies. He did not know what those were for FAST as he has not been given them. He stated in his evidence at page 14 of the transcript:
  9. A political Party is a registered entity under the EA 2019 with a Secretary and not less than 8 financial members who are eligible to enroll as voters. On account of this, a registered political party has the latitude to decide who and the criteria one needs to satisfy before becoming a member.
  10. In these proceedings, much was made about the completion of the nomination forms by the Applicants declaring themselves as FAST Candidates in their nomination forms as evidence of their having joined ‘FAST’. The form completed by the Applicants are forms provided for in the Electoral Regulations 2019 for nomination purposes required by the EA 2019 for the upcoming election. The completion of the nomination form and the identification of the party for which a candidate will contest the 2021 elections does not ipso facto mean they have ‘joined’ FAST at this point. It is a nomination document required by law to be lodged with the Electoral Commissioner to identify which Party you will run or whether as an Independent for the general elections in 2021. The nomination form does not mean the Applicants have joined FAST nor does it mean they are no longer Independent Members of Parliament. To join FAST requires a separate process altogether between the Applicants and FAST governed by the requirements of FAST for membership. No such evidence as we have said was proffered by the First Respondent.
  11. As the Electoral Commissioner himself perhaps most succinctly said in his evidence when cross-examined and re-examined:

Witness: Yes Your Honour.”

  1. In the Electoral Commissioner’s own acknowledgement, you can nominate for a party for the next election to which you are not a member. That is precisely what both Applicants say they have done and state that they will join FAST at a later point in time. That, according to the Applicants, would involve payment of the $1,000.00 fee to FAST and the completion of what they refer to as a MOU.
  2. The First Respondent has not discharged the onus of proving that the Applicants have ‘joined’ FAST for the purposes of section 141(2)(b). We are not satisfied that either Applicant has joined a political party, namely, FAST as a matter of law. There was no evidence led by the First Respondent setting out or establishing how a person “joins” FAST
  3. The true tenor of the First Respondent’s case on the evidence we have heard is to the effect that the Applicants have held themselves out as being members of a registered political party, namely F.A.S.T. That allegation best fits under section 141(2)(n) of the EA 2019. A charge against the Applicants on the basis that they having held themselves out during the Parliamentary term as representing or being a member of FAST may have had a stronger basis. However, section 141(2)(n)(i) does not apply to either Applicant. In terms of section 141(2)(n)(ii), that also does not apply to the First Applicant but may apply to the Second Applicant.[10]
  4. Charges on that basis by the First Respondent may have had more merit. However, the Applicants were not ‘charged’ by the First Respondent pursuant to section 141(2)(n)(ii) nor are declarations sought to declare their seats vacant pursuant to section 141(2)(n)(ii) of the EA 2019. As counsel for the First Respondent also stated in her submissions when questioned about the basis of the charges against the Applicants at page 42 of the transcript:
  5. In her submissions, counsel for the First Respondent suggested that to “join” a political party is a political act as opposed to a legal act to establish membership. Counsel however to her credit readily acknowledged when questioned whether she had legal authority to support her submissions at page 43 of the transcript:

Observation

  1. In her submissions, counsel for the First Respondent perceptively submitted that the case before the Court was [w]ith the greatest of respect this seems to be a rather unique case because in other jurisdictions the nomination of candidates do not close until after Parliament has dissolved so it’s very rare that situation would arise.” (our emphasis)
  2. Indeed, not only is that the case in other jurisdictions that nominations close after the dissolution of Parliament, it was also the case in Samoa under the Electoral Act 1963 (repealed).[11] With the passage however into law of the Electoral Act 2019, section 45 now provides that nominations for general elections shall be made within a period fixed by the Commissioner, by public notice, 6 months before the last date for general elections. The effect of this provision is that nominations for candidacy for general elections would generally be closed before the dissolution of Parliament. In that nomination process, it is a requirement that a Member of Parliament must declare whether they intend to contest that election as a candidate for a Party or as an independent.

Result

  1. Accordingly, we make the following declarations:

ACTING CHIEF JUSTICE TUATAGALOA
JUSTICE TUALA-WARREN
JUSTICE CLARKE

[1] Affidavit of Faumuina Wayne Fong at paragraph [2].
[2] Affidavit of Electoral Commissioner, Annexure “C”.
[3] Affidavit of Olo Fiti Afoa Vaai at paragraph [1]; Affidavit of Faumuina Wayne Fong at paragraph [6]; Affidavit of Tiatia Graeme Tualaulelei at paragraphs [3] and [4].
[4] See Article 46(3)(a) of Constitution.
[5] Exhibit A2 (Olo Fiti Vaai); Exhibit A4 (Faumuina Wayne Fong).
[6] Vaai & Anor v Speaker of the Legislative Assembly (8 December 2020) Transcript, p.4.
[7] Ibid. p.13.
[8] Exhibit A2.
[9] Exhibit A4.
[10] See Article 46(3)(b).
[11] See: sections 44 to 45A of Electoral Act 1963 (repealed).

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSSC/2020/89.html