Attorney General v Latu [2021] WSSC 34 (8 July 2021)

IN THE SUPREME COURT OF SAMOA
Attorney General v Latu & Ors [2021] WSSC 34 (08 July 2021)

Case name:	Attorney General v Latu & Ors
Citation:	[2021] WSSC 34
Decision date:	08 July 2021
Parties:	THE ATTORNEY GENERAL (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):	08 July 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) & S. Ainuu for the Applicant B. Keith (via video-link) & M. Lui for the Respondent
Catchwords:	Constitution related issue – convening of Parliament
Words and phrases:	“doctrine of the separation of powers”
Legislation cited:	Constitution of the Independent State of Samoa 1960, Articles 52; 70(1)(b); 75(1)(a); Declaratory Judgments Act 1988; Government Proceedings Act 1974.
Cases cited:
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.

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) & S. Ainuu for the Applicant

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

Hearing: 08 July 2021
Ruling: 08 July 2021

RULING OF THE COURT

Background.

1. In its judgment of the 28^th June 2021(“the decision”), the Supreme Court declared the swearing in by the Respondents of the Speaker and other officials outside the chambers of Parliament on 24 May 2021 to be void and of no effect. It also ordered:
   • “[66] (iv) We therefore in terms of the Application brought by the Applicant make the following declaratory orders which we deem to be “Orders necessary in the circumstances”:
   • The Proclamation of the Head of State dated 20 May 2021 is to forthwith be given full force and effect by the Applicant without further delay or procrastination;
   • The Applicant to advise the Clerk of the Legislative Assembly and all other relevant parties or “relevant actors” as the case may be to comply with the said Proclamation and convene the Parliament of Samoa within 7 days hereof so that Parliament may discharge its constitutional and other functions in accordance with Part V of the Constitution and the Standing Orders of Parliament.”
2. The 7 days referred to above expired on Monday 05 July 2021 at 4pm.
3. The prevailing circumstances at the time in the courts view did not justify the application of the doctrine of necessity to validate the swearing in by the Respondents outside Parliament. But the court was satisfied that there were clear attempts to derail the convening of Parliament in accordance with the Constitution. It was also mindful that there may be ongoing efforts to prevent proper Constitutional processes. The indicators were and are obvious to the court and to everyone.
4. It was for that reason the court put in place the order in para 66(iv)(4) which reads:
   • “(4) Failure to convene Parliament in accordance with the above and the 20 May 2021 Proclamation of the Head of State in our opinion would constitute a change of circumstances that would justify the Court revisiting the issue of necessity and whether the doctrine now requires to be invoked in the Respondents favour and declare that the swearing-in of 24 May by the Respondents in these circumstances is valid so that the business of lawful governance of the nation can proceed”.
5. On Monday 05 July 2021 the Applicant filed a Motion to Stay execution of the decision as well as a Motion to Recall the above part of the decision. We are given to understand the Applicant also filed on 05 July 2021 an application direct to the Court of Appeal for leave to appeal the decision in particular paragraph 66(iv)(4) thereof. They elected to do so without following the normal process of first seeking leave from this court. This means however that the Court of Appeal is now seised of these proceedings.
6. On Tuesday 06 July 2021 the Applicant filed motions for leave to amend their Stay and Recall applications on various grounds.
7. Considering time is of the essence and the last minute filing of these challenges, it seems to us the Applicant is procrastinating in an effort to delay expeditious and final adjudication of this matter. This is consistent with the latest late night “Proclamation” issued by the Head of State on Sunday 04 July 2021 around 10pm lambasting a judgment that was issued some six (6) days earlier.
8. On 06 July 2021 the Respondents responded to the Application and seeking further orders essentially to enforce the decision of 28 June 2021, as well asking for a hearing date this week.
9. Unfortunately, members of the Court have been engaged in hearing ongoing election petitions and have thus been unable to attend to this matter until now.
10. We note Parliament has not been called as ordered and the Head of State has now taken the extraordinary and unprecedented step of purporting to convene Parliament on 2 August 2021 subject to certain conditions being met. If not he seems to believe he has under the Constitution unlimited powers to “consider other options available to me”; presumably including further delaying a convening of Parliament if he sees fit to do so. At least that seems to be what he is being advised.
11. The caretaker Prime Minister and his administration sadly now including the Head of State, which ideally should be a bipartisan non-political office similar to that of the Governor General in New Zealand, on several occasions since the decision have publicly defied the Supreme Court order and continued with attacks on the courts integrity and independence. Notwithstanding the fact that it is the court in any functioning democracy that is charged with the responsibility of interpreting the Constitution and pronouncing on the law. A fact championed on many previous occasions by the very same personages.
12. The doctrine of the ‘separation of powers’ which we accepted upon Independence as evidenced by our Constitution is derived from the noted 18^th C French philosopher Charles Montesquieu. He wrote –
    • “There is no freedom if the power to judge is not separate from the legislative and the executive power.”
13. In the courts view the circumstances have now materially changed. It is also of the view that the current climate of ongoing turmoil and uncertainty may well now justify the operation of the doctrine of necessity to validate the events of the 24 May 2021 swearing-in outside the chambers of Parliament so that the business of lawful governance of the nation can proceed.
14. It is however clearly apparent to us that whatever decision we make will be appealed by the unsuccessful party to the Court of Appeal.

Conclusions

15. After urgently reviewing all the salient facts and the applications and responses filed and hearing counsels on the matter, we have come to the following conclusions:
    • (i) As is clear from previous decisions of the court, the requirement in article 52, Constitution of Samoa is that the power of the Head of State to summon Parliament “at such times and at such places” as designated by him is expressly made subject to the proviso that the Legislative Assembly “shall meet no later than 45 days after the holding of the General Election...”
    • (ii) To this end the Head of State properly and lawfully issued his Proclamation dated 20 May 2021 summoning a meeting of Parliament within the prescribed time.
    • (iii) This Court in the discharge of its sworn duty and function to interpret and uphold the Constitution and the Rule of Law by its judgments dated 17 May 2021 and 23 May 2021 found that article 52 “does not give the Head of State the power to avoid or disavow” his Constitutional obligation to summon Parliament no later than 45 days after a General Election.
    • (iv) Ipso facto any subsequent Proclamation inconsistent with this Constitutional obligation such as the one issued on 22 May 2021 is in excess of the Head of States Constitutional powers and would therefore be null and void. In reaching this conclusion, the Court continues to uphold the lawful and proper Proclamation of the Head of State dated 20 May 2021 summoning Parliament.
    • (v) As stated in the decision of 28 June 2021 at paragraph [61]:

“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.”

Ruling

16. We are severely concerned that some 90 days has now elapsed since the 2021 General Election. This is twice the time mandated by article 52 for Parliament to meet. Hence why we consider time to be of the essence in this matter.
17. If this court were to hear full submissions and argument on the various applications filed this would entail further delays. The court would also require time to evaluate all aspects of the matter and render a comprehensive written decision for such to be of any value to the Court of Appeal. We consider the Court of Appeal to be no less capable of undertaking such a task.
18. Being mindful of these factors and the challenges to the orders of the Court and the fact that the Court of Appeal is already seised of the issue, we have decided pursuant to articles 70(1)(b) and 75(1)(a) of the Constitution to refer all of these applications to the Court of Appeal of Samoa to hear and finally determine. In relation to the application for Recall, it seems to us from the detail of the application this operates in fact as a further appeal of the terms of the decision of the Supreme Court and should be so treated.
19. The present proceedings will therefore be called before the Court of Appeal at 12 noon tomorrow Friday 09 July 2021. We expect the Applicants application direct to the Court of Appeal for leave to appeal the decision will also be mentioned at that time.
    

JUSTICE NELSON
JUSTICE ROMA
JUSTICE VAAI