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Attorney General v Latu [2021] WSSC 31 (28 June 2021)

IN THE SUPREME COURT OF SAMOA
Attorney General v Latu & Ors [2021] WSSC 31 (28 June 2021)


Case name:
Attorney General v Latu & Ors


Citation:


Decision date:
28 June 2021


Parties:
THE ATTORNEY GENERAL (First Applicant) v MATAFEO GEORGE LATU, TAULAPAPA BRENDA HEATHER LATU, PAPALII LIO MASIPAU, and VE’ATAUIA FAATASI PULEIATA (First Respondents) & MEMBERS OF POLITICAL PARTY FAATUATUA I LE ATUA SAMOA UA TASI (‘FAST’): FIAME NAOMI MATAAFA; LAAULIALEMALIETOA LEUATEA POLATAIVAO SCHMIDT; LEATINUU WAYNE SO’OIALO; OLO FITI AFOA VAAI; TUALA TEVAGA IOSEFO PONIFASIO; VALASI LUAPITOFANUA TOOGAMAGA TAFITO SELESELE; MULIPOLA ANAROSA ALE MOLIOO; TOESULUSULU CEDRIC POSE SALESA SCHUSTER; TOELUPE POUMULINUKU ONESEMO; SEUULA IOANE; MATAMUA SEUMANU VASATI SILI PULUFANA; TEA TOOALA PEATO; NIUAVA ETI L. MALOLO; PAPALII LIO OLOIPOLA TAEU MASIPAU; VAELE PAIAUA IONA PAIAUA SEKUINI; MAGELE FIAUI; FEPULEAI FAASAVALU FAIMATA SU’A; SEUAMULI FASI TOMA; LEOTA LAKI LAMOSITELE; MASINALUPE MAKESI MASINALUPE TALITAU TUVALE; MANULELEUA PALETASALA TALITAU TOVALE; FESOLAI APULU TUSIUPU TUIGAMALA; LAGAAIA TIATUAU TUFUGA; FAUALO HARRY SCHUSTER; AGASEATA VALELIO TANUVASA PETO; AUAPAAU MULIPOLA ALOITATUA (Second Respondents)


Hearing date(s):
21 June 2021


File number(s):
MISC 139/21
MISC 140/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Justice Vui Clarence Nelson
Justice Fepulea’i Ameperosa Roma
Justice Lesātele Rapi Vaai


On appeal from:


Order:


Representation:
P. Rishworth QC (via video-link) & A. Ainuu for the Applicant
B. Keith (via video-link) & M. Lui for the Respondent


Catchwords:
Constitution related issue – Rule of Law – coup d'etat


Words and phrases:
“questioning whether convening of Parliament unconstitutional and unlawful” – “questioning whether swearing in unconstitutional and unlawful” – “45 day time limitation” – “interpretation of Constitution” – “doctrine of legal necessity”


Legislation cited:
Constitution of the Independent State of Samoa 1960, Part V; Articles 33(1); 33(3)(a); 41; 41(2); 42; 44(1); 44(1A); 47; 49; 49(2);50; 51; 52; 53; 55; 57; 61; 71;
Declaratory Judgments Act 1988 ss. 2; 11;
Electoral Act 2019 s. 116;
Government Proceedings Act 1974;
Lawyers and Legal Practice Act 2014 ss. 3(2)(a); 3(2)(d);
Legislative Assembly Powers and Privilege Ordinance 1960;
Standing Orders, Rule 85


Cases cited:
Ah Chong v Legislative Assembly [1996] WSCA 2;
Attorney General v Saipaia Olomalu [1982] WSCA 1;
Attorney General of the Republic of Cyprus v Ibrahim & Ors [1964] Cyprus Law Reports 195;
FAST & Ioane v Electoral Commissioner & Tuuau at first instance. (Misc 80/21 judgment dated 17 May 2021) and on appeal (CA 04/21 judgment dated 02 June 2021);
FAST & Others v Attorney General, Electoral Commissioner & HRPP Misc121/21 & Misc120/20 judgment dated 17 May 2021;
FAST & others v Attorney General, Electoral Commissioner & HRPP Misc121/21 & Misc 120/20 dated 23 May 2021;
Humieu v Attorney General [1997] SBCA 9;
Jackson v Attorney General [2009] WSSC 73;
Mulitalo v Attorney General [2001] WSCA 8;
Parliamentary Practice in New Zealand 4th Ed. 2017;
Republic of Fiji v Prasad (No. 2) [2001] FJLawRp 120;


Summary of decision:

MISC139/21
MISC140/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER:


of Part V of the Constitution of the Independent State of Samoa;


A N D:


IN THE MATTER:


of the Declaratory Judgments Act 1988; and the Government Proceedings Act 1974.


BETWEEN:


THE ATTORNEY GENERAL, appointed under Article 41 of the Constitution.


First Applicant


A N D:


MATAFEO GEORGE LATU, TAULAPAPA BRENDA HEATHER LATU, PAPALII LIO MASIPAU, and VE’ATAUIA FAATASI PULEIATA having held themselves out as or assuming the roles of the Constitutional and/or Officials mainly authorities of the Head of State, Honourable Speaker, Clerk of the Legislative Assembly, the Registrar of the Court, Cabinet Secretary, and the Attorney General


First Respondents


A N D:


MEMBERS OF POLITICAL PARTY FAATUATUA I LE ATUA SAMOA UA TASI (‘FAST’): FIAME NAOMI MATAAFA; LAAULIALEMALIETOA LEUATEA POLATAIVAO SCHMIDT; LEATINUU WAYNE SO’OIALO; OLO FITI AFOA VAAI; TUALA TEVAGA IOSEFO PONIFASIO; VALASI LUAPITOFANUA TOOGAMAGA TAFITO SELESELE; MULIPOLA ANAROSA ALE MOLIOO; TOESULUSULU CEDRIC POSE SALESA SCHUSTER; TOELUPE POUMULINUKU ONESEMO; SEUULA IOANE; MATAMUA SEUMANU VASATI SILI PULUFANA; TEA TOOALA PEATO; NIUAVA ETI L. MALOLO; PAPALII LIO OLOIPOLA TAEU MASIPAU; VAELE PAIAUA IONA PAIAUA SEKUINI; MAGELE FIAUI; FEPULEAI FAASAVALU FAIMATA SU’A; SEUAMULI FASI TOMA; LEOTA LAKI LAMOSITELE; MASINALUPE MAKESI MASINALUPE TALITAU TUVALE; MANULELEUA PALETASALA TALITAU TOVALE; FESOLAI APULU TUSIUPU TUIGAMALA; LAGAAIA TIATUAU TUFUGA; FAUALO HARRY SCHUSTER; AGASEATA VALELIO TANUVASA PETO; AUAPAAU MULIPOLA ALOITATUA.


Second Respondents


Coram: Justice Vui Clarence Nelson
Justice Fepulea’i Ameperosa Roma
Justice Lesātele Rapi Vaai


Counsel: P. Rishworth QC (via video-link) & A. Ainuu for the Applicant

B. Keith (via video-link) & M. Lui for the Respondent


Hearing: 21 June 2021
Submissions: 21 June 2021
Judgment: 28 June 2021


JUDGMENT OF THE COURT

  1. By Notice of Motion dated 24 May 2021 the Applicant seeks orders under the Declaratory Judgments Act 1988:
  2. In submissions, counsel for the Applicant approached the matter on the basis that the essential question is whether the purported meeting on 24 May 2021 of 26 of the 51 candidates elected at the 09 April 2021 General Election was a valid meeting of the Legislative Assembly of Samoa. He suggests this is a mixed question of fact and law but there is no dispute as to the essential facts. The legal issue is whether the meeting satisfied the requirements of the Constitution and therefore brought the 17th Parliament of Samoa into being.
  3. If the answer to the question is the Legislative Assembly has not validly met then the position remains that it must do so pursuant to the original Proclamation of the Head of State dated 20 May 2021, notwithstanding the expiry of the 45-day time limitation. Counsel quite properly conceded that expeditious action would be required in this regard by “relevant actors” but would not be drawn into identifying what or by whom.
  4. If on the other hand the answer be that the Legislative Assembly has been lawfully convened and the purported appointments are valid as a matter of law and must be recognized, then certain consequences need to flow. Most relevantly removal of the current caretaker Administration and if necessary the implementation of articles 33(1) and 33(3)(a) of the Constitution which relevantly provide:
  5. While not addressed constitutionally, “session” is defined by the Standing Orders of Parliament as inter alia “sittings of the Legislative Assembly commencing when the Assembly first meets after being constituted ........or after its prorogation or dissolution at any time.......” This accords with the understanding of a “session” in New Zealand which is the period of parliamentary activity between an opening of Parliament and its prorogation, dissolution or expiration: McGee on ‘Parliamentary Practice in New Zealand’ 4th Ed, 2017 at p144.
  6. This is an analysis with which we agree.
  7. Counsel for the Applicant in answer to the court also clarified a matter which puzzled the court, viz the capacity in which the Applicant brings these proceedings. The intitulement suggests the Attorney brings the application on her own behalf rather than on behalf of those she is constitutionally charged with advising pursuant to article 41(2) of the Constitution. In submissions counsel stated the Attorney is motivated by the need to ensure “legal certainty”.
  8. We welcome and are encouraged by this approach. There has been of late much misinformation and misinterpretation of recent decisions of this court publicly disseminated by prominent political and other figures in our community. Aimed at undermining the integrity independence and status of the Court and its rulings and thereby the Rule of Law in Samoa. As noted in FAST & Others v Attorney General, Electoral Commissioner & HRPP Misc121/21 & Misc120/20 judgment dated 17 May 2021:
  9. We trust the Attorney will address these matters with the same vigour intent and purpose as the present application. The primary duty of every lawyer no less the Attorney General in accordance with his or her oath sworn before God is to the Court and to uphold the Constitution and the Rule of Law: sections 3(2)(a) & (d) of the Lawyers and Legal Practice Act 2014. This should always remain his or her focus no matter the situation.

Relevant Constitutional provisions

  1. The relevant Constitutional provisions requiring consideration are contained in Part V of the Constitution and are set out below for ease of reference:

Principles of Constitutional interpretation

  1. The Constitution is the supreme law of the land. Issues as to interpretation of its provisions have come before the courts on a number of previous occasions. From these can be divined the various principles as to its interpretation.
  2. It is settled law that –
  3. This has been adopted and followed in numerous subsequent decisions of the court including Mulitalo v Attorney General [2001] WSCA 8 and Jackson v Attorney General [2009] WSSC 73; and more recently FAST & Ioane v Electoral Commissioner & Tuuau at first instance. (Misc 80/21 judgment dated 17 May 2021) and on appeal (CA 04/21 judgment dated 02 June 2021).
  4. Clearly, constitutional interpretation involves in the language of Olomalu “giving primary attention to the words used” or as noted in the Supreme Court in FAST & Ioane v Electoral Commissioner & Tuuau:
  5. In addition, as noted by the Court of Appeal in Olomalu in a passage adopted and recently applied by this court in FAST & others v Attorney General, Electoral Commissioner and HRPP Misc 121/21 & Misc 120/20 judgment dated 17 May 2021:

Background facts

  1. On 09 April 2021 the country went to the polls to elect members of the 17th Parliament of the Independent State of Samoa. The results of the Poll were publically declared by the Electoral Commissioner on 16 April 2021 and the relevant Warrants of Election were issued by the Head of State the same day.
  2. In the evening of 20 April 2021 the Electoral Commissioner and Head of State purported to activate article 44(1A) of the Constitution and appoint a further female candidate ostensibly to comply with the 10% minimum quota of female representation in the Legislative Assembly. These actions were held to be unlawful and unconstitutional by the Supreme Court at first instance, affirmed on appeal by the Court of Appeal: Electoral Commissioner and Tuuau v FAST & Ioane CA04/21, CA05/21 judgment dated 17 May 2021.
  3. A further attempt by the Head of State acting in our view on poor quality advice to call for fresh elections was also ruled by this court on 17 May 2021 to be in excess of his constitutional powers and accordingly unlawful: FAST & others v Attorney General, Electoral Commissioner and HRPP Misc 121/1 & 120/20.
  4. In that judgment the court stated at paragraph 94:
  5. It is common ground that the 45-day time limit expired on Monday 24 May 2021.
  6. On 20 May 2021 the Head of State by Proclamation summoned Parliament and declared the “Official Opening of the 17th Parliament of the Independent State of Samoa” would be held “on Monday 24th May 2021 at 9:30 am at Mulinuu.” The supplementary affidavit dated 18 June 2021 of the Clerk of the Legislative Assembly confirms that he consequently attended to preparations for this meeting including issuance of the necessary invitations to members elect and their invitees as well as erection of a tent outside the Maota Fono or Parliamentary Chamber to cater for the general public and any overspill of attendees. The Clerk had also on Saturday 22 May 2021 hosted a tour of the Parliamentary Chamber for new members and advised the Second Respondents he and his staff were preparing the relevant documentation for the Monday Opening.
  7. Things at this stage appear to have been on track for the Monday 24 May 2021 Opening of Parliament. This proved however to be but a calm before the storm.
  8. On the night of Saturday 22 May 2021 a new Proclamation was issued by the Head of State purporting to suspend his Proclamation of 20 May 2021 “until such time as to be announced and for reasons that I will make known in due course.” To date the referred reasons have not been made known. It is that Proclamation which has resulted in the current turmoil and uncertainty which our God-fearing law abiding and culturally enriched country and forbearers would not have contemplated.
  9. A Public Notice dated Sunday 23 May 2021 was also issued by the retired but caretaker Speaker of the House purporting to postpone “the official swearing in of Parliament scheduled for tomorrow Monday 24th May 2021” until further notice.
  10. The Clerk in his affidavit dated 24 May 2021 relates that separate to that, the caretaker Speaker wrote directly to him “to cancel all preparations and secure the Chambers of the Legislative Assembly.” He adds that the caretaker Speaker instructed him to hand over the keys to the Chamber which he did, being later informed the keys had been delivered to the private residence of the caretaker Speaker. He advised the Second Respondent of these developments about 10:30 am the morning of Monday 24 May 2021 as well as the fact that the Head of State would not be attending.
  11. An urgent application on 23 May 2021 by the Respondents to invalidate the 22 May 2021 Proclamation was heard by the court after Sunday church services and was dealt with on an interim Pickwick basis. In its written judgment FAST & others v Attorney General, Electoral Commissioner & HRPP Misc121/21 & Misc 120/20 dated 23 May 2021 the Court certified the terms of its earlier judgment of 17 May 2021 declaring valid the results of the 09 April 2021 General Election and directing the attention of the Head of State to the requirement under article 52 of the Constitution to call a meeting of the Legislative Assembly within 45 days of the General Election. The Court further declared that the Proclamation dated 20 May 2021 complied with article 52 and that any purported revocation including the Proclamation dated 22 May 2021 that was inconsistent with the said Proclamation would be unlawful and of no effect. The Head of State, Attorney General and Clerk of the Legislative Assembly were ordered to be immediately notified and served with the Courts decision but it is not known when they actually were.
  12. The events that unfolded on Monday 24 May 2021 are a matter of public record. The Parliamentary Chamber remained locked as witnessed by the Judges themselves who in response to the customary invitation appeared to attend the Opening of the 17th Parliament. To find the doors of the Parliament of the country locked. The Judiciary accordingly withdrew as eventually did the Respondents. The Clerk eventually appeared later that Monday morning and told the Respondents he was merely following the orders of his superiors. Apart from the caretaker Speaker he does not identify in his affidavit which “superiors” he was referencing
  13. The present application arises in this background and is the result of a ceremony held at about 5:00 pm that Monday in the tent outside Parliament by the Second Respondents officiated by the First Respondents. The essential features of that ceremony for present purposes was the election of the second named First Respondent (“Taulapapa”) as Acting Clerk of the Legislative Assembly, the election of the third named First Respondent (“Papalii”) as Speaker, the swearing-in of Speaker Papalii by the first named First Respondent (“Matafeo”) who is a duly appointed notary public, the swearing-in of the 26 Second Respondents as Members of Parliament by Speaker Papalii, the swearing-in of Honourable Fiame Naomi as Prime Minister by Matafeo, and the swearing-in of 13 Ministers of Cabinet again by Matafeo. It is this ceremony and purported swearing-in that the Applicant says was unconstitutional and unlawful.

The Applicants case

  1. The Applicant argues the swearing-in was unconstitutional and unlawful for a number of reasons:

(a) Clerk – it is submitted that the law is clear in its terms. There must be present at a meeting of the Legislative Assembly the Clerk of the Legislative Assembly who at the first meeting of a new Parliament by virtue of Part II of the Standing Orders of Parliament plays a pivotal role in the proceedings. Rule 3 provides that in the absence from duty of the Clerk, “the Deputy Clerk of the Legislative Assembly or a person appointed by the Speaker to act as Clerk” shall preside. Clearly the Clerk was absent but no Deputy Clerk has been appointed as required. Neither can the Speaker appoint an ‘Acting Clerk’ as the Speaker himself had not at the time been appointed. In these circumstances it was not open to the Second Respondents as elected members of the Assembly to appoint Taulapapa as Acting Clerk.

(b) Speaker – it is further submitted the Constitution articles 49(1) and (2) are clear. The first function of the newly constituted Legislative Assembly is to elect a Speaker in accordance with article 49. Further is the crucial requirement in article 49(2) that the Speaker after being elected must take his oath in the prescribed form before the Head of State and no other person. This was not done here.

(c) Members of Parliament – the Constitution article 61 provides that no member shall sit or vote in the Legislative Assembly unless he/she shall have taken the prescribed oath. The Constitution does not provide before whom the oath is to be taken but Standing Order 14 requires it be administered by the Speaker. The Applicants argument being that if the Speaker has not been properly sworn-in then he lacks the capacity to swear-in any other Members of Parliament.

  1. The Applicant says the sum of all these deficiencies is the swearing-in ceremony conducted by the Respondents under the tent at Mulinuu on 24 May 2021 lacked legal and constitutional authority and must be declared unlawful.

Case for the Respondents

  1. The Respondents primary argument is the swearing-in ceremony was necessitated by the fact that:
  2. It is further submitted that the requirements of the Standing Orders of Parliament are not justiciable before the Court, a matter recognized by the Court of Appeal in Ah Chong v Legislative Assembly [1996] WSCA 2 where it said:
  3. In any event, provisions in the Standing Orders of Parliament do not prevail over the Constitution - in support of which counsel relies on the decision of the Solomon Islands Court of Appeal in Humieu v Attorney General [1997] SBCA, 9 at 25.
  4. The failure of other Constitutional officers such as the Head of State, Chief Justice, members of the Judiciary and the Attorney General to attend is stated to be a regrettable but inevitable consequence of the unlawful actions of the caretaker Speaker and others referred to above and should not operate to defeat the efficacy of the swearing-in.

Discussion

  1. The first order sought by the Applicant (see paragraph 1(i) above) can be easily disposed of. Indeed counsel for the Applicant quite responsibly did not seek to rely on this ground of the Motion.
  2. The Saturday 22 May 2021 Proclamation was found by the Supreme Court in its judgment dated 23 May 2021 to be “unlawful and of no effect”: FAST & others v Attorney General & Electoral Commissioner Misc 121/21 and 120/20. This judgment remains current and in force. In particular the judgment reaffirms in paragraph 18(i) the validity of the 20 May 2021 Proclamation and declares it to be in full force and effect. That Proclamation was issued pursuant to the Head of States powers under article 52 and it called for the convening of the 17th Parliament of Samoa at 9:30 am at Mulinuu on Monday 24 April 2021. The purported Opening on Monday 24 May 2021 was therefore fully sanctioned by the Constitution.
  3. As to the argument that the Opening was contrary to the Public Notice and direction of the caretaker Speaker, as noted by the Respondents, once Parliament was summoned by the Head of State on 20 May 2021, the caretaker Speaker of the House became functus officio and incapable of exercising any further powers or control as Speaker. Accordingly he had no legal or other authority to issue the Public Notice and directions to the Clerk on 23 May 2021. These being invalid, they should have been ignored by all concerned. His actions were also in clear violation of the Supreme Court judgment of 23 May 2021 and were contrary to the terms of the 20 May Proclamation itself, a Proclamation issued by the Head of State who by virtue of article 31(1) of the Constitution is the head of the Executive Branch of Government. No more needs to be said in this regard.
  4. The other issue raised of the non-appearance of the Head of State is the subject of other grounds of the Motion and will be addressed thereunder.
  5. The second and third Orders sought by the Applicant (paragraphs 1(ii) and 1(iii) above) is the crux of these proceedings. As noted it is an assertion that the swearing-in ceremony held around 5:00 p.m. that fateful Monday 24 May 201 was for various reasons unconstitutional and unlawful. To evaluate the arguments it is necessary to examine the relevant Constitutional and other provisions of the law and in our view, the additional matter of customary practice.
  6. For present purposes the starting point is article 52 and the requirement that the Legislative “shall meet” no later than 45-days after a General Election, “at such times and at such places” as designated by the Head of State. No issue was taken with the matter of advertisement; we do not consider it, it is properly governed by the Acts Interpretation Act 2015 in any event.
  7. As noted above, the rules of Constitutional interpretation require that primary attention be given to the words used and what they mean. It seems to be common ground that a meeting of the majority of members of the Legislative Assembly is a “meeting” as such of the Legislative Assembly. At least there was no argument that this was not so. A contrary view of course would mean the Assembly could never constitutionally meet until all members were present and would allow a minority to prevent meetings of the Assembly. That would be contrary to the whole scheme and intent of representative and responsible Parliamentary Government as laid out in Part V of the Constitution.
  8. The dispute centers around the 45-day requirement which the Respondents argue is mandatory and not directive i.e. it must be complied with. On that basis they argue that given the unlawful constraints imposed by various parties, the Respondents met in the best manner they could considering the circumstances in order to fulfil their Constitutional obligations. Satisfaction of this requirement trumps adherence to the usual processes of a Parliamentary swearing-in.
  9. We cannot agree. When the Head of State issued his Proclamation dated 20 May 2021 we have no doubt he contemplated that the Opening of Parliament would occur as stipulated and in the normal manner of such an event. He would not have considered there would be further efforts to subvert and sabotage the process.
  10. That there were clear attempts to derail the Constitutional process is beyond question. These included the purported suspension Proclamation of 22 May 2021, the cancellation of invitations, instructions to lock the Parliament, the surrender of keys to a by then unauthorised party and so forth. But this does not alter the fact that the swearing-in took place “at a time and place” not contemplated by the Proclamation or authorised by section 2 of the Legislative Assembly Powers and Privilege Ordinance 1960 which makes the appropriate “place” by definition the Parliamentary Chamber.
  11. It is also clear that the requirements of Part II of the Standing Orders of Parliament have not been observed. These regulate the procedure to be followed on the first day of a meeting of a new Parliament. They relevantly provide for the Clerk of the Legislative Assembly and no other to attend to various matters including the endorsement of the appointment of the Speaker and Deputy Speaker as required by articles 49 and 50 of the Constitution, the swearing-in of the new Speaker by the Head of State and no other as mandated by article 49(2) of the Constitution, and the swearing-in of Members of Parliament, the Prime Minister and members of Cabinet.
  12. We fully accept of course the proposition enunciated by the Court of Appeal in Ah Chong that the Court should not intervene in matters occurring before Parliament. Also that the provisions of the Constitution are paramount. We do not however view requiring compliance with the Standing Orders of Parliament as interference with the internal procedures of Parliament. Parliament is free to regulate its own processes as it sees fit, this is separate and distinct from the court requiring that the Standing Orders of Parliament giving effect to Constitutional provisions must be followed. We see no conflict between the Constitution and Standing Orders in this regard, rather that the latter mechanises and supports what is required by the former.

Custom and culture

  1. There is a further reason for invalidating the swearing-in ceremony undertaken by the Respondents. This is rooted in our custom and culture.
  2. We begin by reminding ourselves of that part of the Preamble to the Constitution which says that Samoa is an Independent State based on “Christian principles and Samoan custom and tradition.”
  3. We also remind that since Independence the leaders of this nation have been sworn in by the Head of our State and in respect of Members of Parliament the Prime Minister and Cabinet, by the Speaker in the presence of the Head of State, the Council of Deputies, the Chief Justice and various other constitutional officers such as the Clerk of the Legislative Assembly, the Attorney General, President of the Lands and Titles Court, Chairman of the Public Service Commission, Chief Auditor and now the Ombudsman. Initially sworn-in by the joint Heads of State as at Independence and subsequently by a single Head of State. These have always been occasions of great solemnity befitting the status of the offices and personages involved and they have always been carried out in the ‘Maota Fono’ wherever situated. The occasion being invariably witnessed by the leaders of the main religious denominations, senior public servants, members of the Judiciary, prominent community figures, senior matais of the country as well as the public at large. An occasion of great ‘mana’ and ‘mamalu’. To the extent that we believe these occasions have been elevated to the level of a custom and tradition.
  4. Article 71 of the Constitution requires that the Court take into account the customs of the country. We do not consider that the ceremony in question has satisfied these customary requirements. It would seem to us to also be a denigration of the occasion if this Court were to recognise as lawful constitutional and valid the ceremony that occurred in a tent outside the Parliamentary Chamber attended by only the media the Respondents and their supporters.
  5. We also bear in mind the unique nature of the Chambers or the ‘Maota Fono’ itself as a “place”, as being one steeped in historical and cultural significance, the recognized home of our forefathers. It is the cradle that birthed our Independence, the place where we formally cast aside our colonial shackles and took the first steps as an independent, sovereign and modern nation. Where over the years Parliament has given substance to “the thoughts views and feelings of the far-seeing fathers of our Nation “(Tofilau Eti Alesana writing in the Preface to ‘Samoa – the making of the Constitution’ (2002) by Lauofo Meti, two historical giants upon whose shoulders we are privilege to stand). One who figured prominently in this journey was the father of the leader of the Second Respondents who in a memorable speech reminded the United Nations in New York of the value of tradition, of the proverb of the tree with indestructible roots deeply and firmly imbedded in the soil of culture. We are most reluctant to sanction a practice whereby the swearing-in of our Parliament and executive Government could legitimately occur outside of such a “place”.

Necessity

  1. The Respondents place much emphasis on their actions on the day in question being justified by the doctrine of legal necessity. They say that in the circumstances that prevailed they had no other option but to proceed with the swearing-in in the manner they did.
  2. The doctrine is well established in law. It is usually employed to bestow legal validity on something invalid to avoid a greater evil such as that caused by a legal vacuum. Its most common use is to validate a coup d’etat brought about by the illegal seizure of power by some armed group. One such example comes from our neighbour Fiji in Republic of Fiji v Prasad (No 2) [2001] FJLawRp 120, a case arising out of the year 2000 coup whereby Commodore Frank Banimarama of the Fiji Armed Forces seized the reins of Government. There, a full Bench of the Fiji Court of Appeal said:
  3. Quite obviously these sorts of conditions did not prevail in Samoa on 24 May 2021. The doctrine of necessity in its strictest sense would therefore not avail the Respondents; at least not in the circumstances existent on 24 May 2021.
  4. We also understand the Respondents to be using the term in a more generic sense i.e. that it was necessary to swear-in a Parliament and a Government in order that the elected Second Respondent majority could fulfill the Constitutional mandate of article 52 and bring into being a representative Government capable of passing urgently needed fiscal and other measures in particular a Budget, and assume the task of executive Government of the nation, one which they have been elected to undertake. In this regard they seek the Courts legal endorsement of their actions.
  5. However noble the motives and aspirations of the Respondents, we are unable to sanction the swearing-in ceremony that took place on 20 May 2021. As noted it does not satisfy elements of custom and tradition or the criteria for invoking the legal doctrine of necessity. We are also of the view there were still other options available to the Respondents. They could have sought the further urgent intervention of the Court in directing the Clerk and other “relevant actors” to proceed with implementation of the 20 May Proclamation of the Head of State and/or in respect of unlocking of the Parliamentary Chamber and premises. The history of this whole matter shows the courts of Samoa have at all times remained ready to adjudicate on urgent constitutional applications at very short notice.
  6. Should these circumstances however change if for example the Applicant and other “relevant actors” do not expeditiously implement the 20 May 2021 Proclamation of the Head of State and call Parliament, the court should and would revisit the issue in the light of changed facts and decide if the doctrine of necessity now has application. And if so whether the swearing-in of 20 May 2021 in these circumstances should be legally recognized and validated so that the business of lawful governance of the country can proceed.

Decision

  1. The Constitution is the supreme law of the land: article 2, Constitution. On 28 October 1960 the people of Samoa adopted the Constitution: Preamble, Constitution. Everyone is accordingly subject to its rule, it governs one and all from the Head of State down to the ordinary citizen. This is what is meant by the phrase ‘the Rule of Law’.
  2. The intent and provisions of the Constitution are clear and unambiguous: after a General Election the Legislative Assembly is to meet within 45 days, no exception permitted. The Legislative Assembly comprises the 51 elected members from the various electoral constituencies, excluding any member whose election has been voided by the Court pursuant to section 116 of the Electoral Act 2019 for commission of corrupt practices. Together with any additional female member or members appointed pursuant to article 44(1A) of the Constitution to fill the womens quota if required, a matter now clarified by the Court of Appeal in Electoral Commissioner & Aliimalemanu Moti Momoemausu Alofa Tuuau v FAST & Seuula Ioane CA 04/21 judgment dated 25 June 2021.
  3. The Head of State by Proclamation dated 20 May 2021 properly summoned a meeting of the Legislative Assembly at Mulinuu at 9:30 am on Monday 24 May 2021. The purported meeting and swearing-in conducted by the Respondents at 5:00 pm on Monday 24 May 2021 in a tent outside the Parliamentary Chamber in the absence of various constitutional officials, dignitaries and others did not in our view meet the Constitutional and other requirements for a meeting of the Legislative Assembly or an Opening of the 17th Parliament of Samoa.
  4. Regrettably the Constitutional mandate of article 52 has therefore still not been satisfied which in turn casts serious doubts on the legitimacy of tenure of the present caretaker administration. It is beyond time to give full force and effect to the Head of States Proclamation of 20 May 2021 convening the 17th Parliament of Samoa.
  5. It seems reasonably clear that the executive arm of the Government has deliberately and unlawfully prolonged the calling of Parliament for plainly political reasons. In so doing it has ignored various rulings of the Supreme Court and Court of Appeal of the country leading to a constitutional breach which can only be repaired once Parliament meets.
  6. The Rule of Law must be able to provide relief against such a breakdown at least until such time as the constitutional breach can be remedied. To do otherwise would mean the Courts are in the invidious position of having to “cross its arms and do nothing but witness the complete paralysis of the judicial power, which is one of the three pillars of the State,” and thereby the collapse of the Rule of Law: Attorney General of the Republic of Cyprus v Ibrahim & others [1964] Cyprus Law Reports 195.
  7. The Applicant has brought this application under the Declaratory Judgments Act 1988. There are two notable features of that legislation: firstly the jurisdiction thereunder is wide and any declaratory judgment or order made is purely discretionary. Section 11 of the Act provides:
  8. Secondly the Act by section 2 binds the Government. It provides:

Orders

  1. For the reasons aforementioned:

JUSTICE NELSON
JUSTICE ROMA
JUSTICE VAAI

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