Application to Recuse Chief Justice Dismissed, Court to Deliver Decision in a Timely Manner

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31 March 2021, Apia Samoa. The Court dismissed an application by HRPP’s Aliimalemanu Alofa Tuuau to have His Honourable Chief Justice Satiu Simativa Perese disqualified from sitting on the much anticipated appeal to decide if the minimum number of women in Samoa’s Parliament should be five or six.

Counsel for HRPP, Aumua Ming Leung Wai, had submitted Chief Justice Satiu was a relative of FAST leader and Prime Minister Elect Fiame Naomi Mataafa. This was also widely publicised by a later-retracted press release by the Attorney General last week, and also mentioned by HRPP elected MPs on radio and television talk back shows.

A second application, also dismissed by the Courts, requested for an overseas-based judge to take the place of His Honour the Chief Justice.

The decision to dismiss both applications was handed down by Justice Tafaoimalo Tologata Leilani Tuala-Warren, who said the application was an attempt to undermine the integrity of the Chief Justice, noting the submissions put forward did not meet the high threshold required for a judge to have to stand down from a case. Justice Tafaoimalo further noted the familial ties referred to by the applicant, dated back at least four generations.

With the application for recusal dismissed, Justice Tafaoimalo then concluded that there was no need for a panel to consider the request for an overseas judge.

The matter then moved into a substantive hearing this morning, before a presiding panel of Judges chaired by His Honourable Chief Justice Perese as President of the Court of Appeal, with Justice Tuala-Warren and Justice Fepuleai Ameperosa Roma.

The Office of the Electoral Commissioner was represented by Queens Counsel Paul Rishworth of Britomart Chambers who participated via zoom. Mr Rishworth’s practice comprises litigation and advice on matters of public law, with a focus on human rights and anti-discrimination law.

FAST and Alatua i Sisifo’s successful candidate, FAST MP Seuula Ioane, were represented by Mauga Precious Chang and Muriel Lui, assisted by Mr Benjamin Keith of Thorndon Chambers, also participating via video link from Wellington. No stranger to Samoa, Mr Keith is the son of Victoria University Law Professor Sir Ken Keith who was a Judge in Samoa’s 1982 landmark Constitutional case of Sapaia Olomanu, where matai suffrage was challenged. His areas of expertise include Bill of Rights and Human Rights, Public and Constitutional Law.

At the end of the hearing, the Chief Justice announced the Court reserves its decision, and gave his assurance that a judgment would be delivered “as soon as possible”.

In a press statement received from the Registrar of Courts Moliei Simi-Vaai, she confirms “The Court will deliver its decision in a timely manner whilst the presiding panel is given valuable time to deliberate and commit their decision in writing”.

“I le faai’uina ai o le Faamasinoga o iloiloga i le mataupu Apili i le va o le Komesina o Faiga Palota & Aliimalemanu Moti Alofa Tuuau ma le Vaega Faaupufai a le FAST & Seuula Ioane, sa faailo ai e le Peresetene o le Faamasinoga o Iloiloga Apili, le Afioga i le Faamasino Sili Satiu Simativa Perese, o le a taoto lana faaiuga seia toe fofogaina mai le aso e tuuina mai ai”.

The Supreme Court decision being appealed was delivered by a three-judge panel chaired by then Acting Chief Justice Niava Mata Tuatagaloa, with Justice Leiataualesa Rapi Vaai and Justice Vui Clarence Nelson. They declared the warrant of election issued by Head of State HH Tuimalealiifano Vaaletoa Sualauvi II, appointing Aliimalemanu Alofa Tuuau as an additional Member of Parliament, unconstitutional and void.

The appointment of HRPP’s Aliimalemanu Alofa Tuuau as an additional Member of Parliament four days after the official results were published, was on the basis of Article 44(1A) which stated, “the constitution requires a minimum of 10% of parliament’s seats shall be occupied by women members”.

The question of 5 or 6 women has grave impacts on the results of Samoa’s April 9th general election, first announced as 25 HRPP – 25 FAST – 1 Independent. As Independent Tuala Tevaga Ponifasio moved to join FAST giving them a majority to declare victory, the Electoral Commissioner activated the 10% Constitutional minimum requirement for women in Parliament, creating a hung Parliament of 26:26.

FAST challenged and won the first round in the Supreme Court, with HRPP launching and appeal immediately.

The question of Aliimalemanu’s seat ultimately decides the fate of Samoa’s government in the next 5 years. If the Supreme Court decision is upheld, then FAST maintains its one seat majority. If the Appeals Court should decide on 6 women MPs, the deadlock would return the country to the polls.

On the eve of Independence Day 01st June, Samoans are receiving notices and public statements from two Prime Ministers. Prime Minister Elect Fiame Naomi Mataafa and Caretaker Prime Minister Tuilaepa Sailele Malielegaoi.

A peaceful march of just over 2,000 women was held along the streets of Mulinuu going  towards Samoa’s Parliament and Courthouse compound today.

Many were also walking around asking women to sign a petition intended to be given to the Court.


Marieta H Ilalio