A Look at Samoa’s Parliament after By-Elections and the Requirement for Constitutional Amendments

Lautimuia Uelese Vaai’s solid win of the Vaimauga 3 by-election held Friday 24 February 2023 gives the ruling FAST party a 32 seat majority in Parliament.

After 21 years of the Vaimauga 3 seat being held by HRPP through Papalii Niko Lee Hang, Lautimuia secured the seat with a margin of over 449.

Samoa’s Legislative Assembly is currently made up of 53 Members of Parliament; 51 Constituencies plus the 2 Women’s Seats (required by the Constitution).

The current sitting is 32 FAST, 18 HRPP and 3 Independents.

Changes to the Constitution requires a two thirds majority vote of the Legislative Assembly. That is 2/3 x 53 = 35.3

Should the three Independent MPs decided to vote with the Government on a proposed constitutional change, that’s 35 votes.

The Constitution requires a 2/3rd majority of Parliament and two thirds is 35.3

Does that mean 36 votes are required? Or can we round it down to 35?

We saw during the Constitutional Crisis how “at least” was interpreted by the Courts for the 10% minunum women’s seats.

The Courts did not round to the nearest number.

The Courts upheld that 10% was a floor or minimum requirement set down by the Law.

10% of 51 is 5.1 so 5 seats won’t cut it. Five seats does not satisfy the minimum requirementseat because, well, 5 is below 5.1 said the Court of Appeal. Therefore, 6 is the number required.

By the same logic, does that mean 35.3 cannot be rounded off to 35, and 36 votes are required to satisft the 2/3rd majority?

In any case, to avoid another public debate on percentages and decimal points and rounding to the nearest number, it would be good for us to all be on the same page as to what “two thirds majority” of Parliament means in terms of the number.

Samoa’s Constitution 

Samoa’s constitution has had its fair share of amendments over the years. Some good, some politically motivated and therefore, not so good.

During the Constitutional Crisis, the Supreme Court expressed concern that amendments were being passed “as if an ordinary legislation were being amended“. The Court urged the Legislative Assembly to pass future amendments by “a comprehensive process including full and extensive prior consultation.”

Some Examples of Amendments

An early Constitutional amendment in 1991 saw the term of Parliament extended from three years to five years. There were no public consultations. There was no referrendum prior to this change. The Parliamentarians themselves decided it was in the best interest of the country to hold elections every five years instead of three. Hmm, whose best interest?

In 1997, in response to Controller and Chief Auditor Sua Rimoni Ah Chong’s tabling of an Annual Report revealing widespread corruption by government ministers, an amendment to the constitution changed the Chief Auditor’s term of appointment from a life-tenure to three years, and also allowed the Chief Auditor to be removed with a simple majority vote in Parliament.

(These changes were reversed in 2014 when the Auditor was made an independent Office of Parliament, and the term was extended from three years to twelve years. The threshold for removal was also raised from a simple majority to a two-thirds majority.)

In 1997 the Constitution was amended to change our country’s name from “Western Samoa” to “Samoa”. This was pretty awesome.

In 2005, the mandatory retirement age of judges was raised from 62 to 68. There are a lot of Judges from Supreme to District and also at LTC who are fit and healthy and definitely seem to be in their prime as they approach the age of 70. Perhaps this needs to be reviewed. 

In 2010 the Constitution was amended to allow MPs to be removed from office if they changed political parties. The amendment was triggered by MPs wanting to move away from the ruling party at the time. Definitely politically motivated, but why couldn’t these laws have been kept within the Electoral Act and away from the Constitution?

In 2013 the Constitution was amended to ensure Samoa’s Parliament would always comprise of at least 10% women. The activation of this confusingly worded though well intended Article 44 after a close 2021 general election was a trigger for Samoa’s Constitutional and Political Crisis.

Sadly, the very women this Constitutional amendment set out to support ended up being victims of the process and Court cases that followed.

In 2017 a clause was added to Article 1 declaring that Samoa was “a Christian nation founded on God the Father, Son and Holy Spirit”. The best Constitutional Amendment to have been passed, and will ever be passed, in the writer’s opinion.

In 2019 Constitutional amendments  limited the Head of State’s appointment to two terms. There were also amendments made to change the title from O le Ao Mamalu o le Malo to just O le Ao o le Malo. And while the Government of the day was at it, there were also changes made to the process of appointing the Head of State, giving it to the ruling caucus instead of Parliament.

In 2020 we are still facing ramifications of the controversial Constitutional amendments made alongside the Lands and Titles Act to separate and establish an Appellate Court for LTC. These amendments also made it easier to remove Judges of the Supreme Court. The amendments triggered the resignation of Hon Fiame Naomi Mataafa from the HRPP as Deputy Leader and from Cabinet as Deputy Prime Minister of Samoa (11 September 2021)

So as history would have it, there have been both positive and negative amendments to Samoa’s Constitution.

The current Government have indicated that a review of some of these amendment clauses is needed – such as Article 44, and the amendments affecting the Head of State. There is also the question of whether or not the term of the Prime Minister should be limited to two (ten years).

To pass any Constitutional amendments, would we need 35 or 36 votes in Parliament?

Most probably 36.

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