Court Determined to Decide Legality of HoS Authority Before New Elections

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Three-judge bench of Justice Vui Clarence Nelson, CJ Satiu Simativa Perese II, Justice Tafaoimalo Leilani Tuala-Warren.

Published 8pm Wed 12 May  Updated 4am Thur 13 May 2021. The Supreme Court of Samoa has prioritised as a matter of urgency the application by Faatuatua i Le Atua Samoa ua Tasi (FAST) challenging a writ handed down by the Head of State, directing the nation to return to the polls next week.

Chief Justice Satiu Simativa Perese has set the substantive hearing for this Friday 14th May 2021 at 9am.

A second metion was called this morning before the Chief Justice, aided by Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala-Warren.

Presiding Justices over landmark case – CJ Satiu Simativa Perese, Justice Tafaoimalo Leilani Tuala-Warren and Justice Vui Clarence Nelson.

The Parties 

Latu Lawyers led by former Attorney General Taulapapa Brenda Heather-Latu are representing all four Applicants. The first being all FAST MPs, the second applicant is the FAST political party; while the third applicant is Luātua Semi Epati who wishes to stand as a candidate in the elections but is unable to. The fourth applicants to the challenge are two registered voters, with grievances for being made to go through the entire process all over again.

The Office of the Attorney General (AGO) and the Office of the Electoral Commissioner (OEC) are the first and second respondents, while the Human Rights Protection Party (HRPP) is the third respondent represented by another former Attorney General of Samoa, Tuatagaloa Aumua Ming Leung Wai.

Last Friday 

Last Friday, the Court acknowledged the urgency of the FAST motion to consider the constitutionality of the Head of State’s writ for new elections, as well as an application for an interim order to stop the 21st May new elections.

In response the CJ set down Thursday 13th May 2021 for the substantive hearing.

Chief Justice Satiu had made it clear, “If the power has been properly exercised, then the second election needs to go on.. but if the Court finds that there is no basis for the second election, then the country needs to be advised and electors need to be advised, as a matter of priority”.

Key Issues for Counsel Submissions 

The Chief Justice had also established the key issues for Counsels to consider in their submissions as 1) What is the source of the Head of State’s power to call a new election? and 2) What is the source of the Head of State’s power to void the results of the first election?

Counsel for HRPP submitted his proposed defense as a third issue – ie the exercise of Reserve Powers of the Head of the State, as well as justiciability or the limitations of legal issues over which the Court can exercise its judicial authority.

Issues from Today

The Chief Justice sought Counsels’ views on the hearing date, and the timeframe for filing final submissions, given an application by the Attorney General that the hearing be pushed to Monday next week, seeking time to engage a Queens Counsel (QC) from New Zealand. The Court also referred to a letter received from the Attorney General requesting to be removed as a party.

Attorney General Savalenoa Mareva Betham Annandale and Assistant AG/Head of Civil Litigation, Fuimaono Sefo Ainuu.

Taulapapa raised the concern on behalf of her clients that if a hearing were to be held next Monday, that would make it difficult for the Court to deliver a decision before pre-polling of elections, set for Wednesday 19th May 2021.

Taulapapa also confirmed they had engaged a Wellington-based Barrister, who was available to appear as Lead Counsel on Friday morning.

In relation to the timeframe for filing submissions, Taulapapa indicated they were prepared to have final submissions and responses filed by the next day (Thursday).

“That is facilitated by the fact that your Honor has already identified the issues that Counsels need to focus on”, said Taulapapa.

In relation to the Attorney General’s request to be removed as a party, Taulapapa said she was strongly opposed to the AG leaving proceedings, and simply participate as Attorney to the OEC.

“If there is to be a more important Constitutional case in this Jurisdiction in the next decade.. we seek the benefit of their attendance and contribution to issues that relate to the interpretation of the Constitution under which her Office is created,” said the former Attorney General.

Taulapapa then referred to an application put forward by the Samoa Law Society (SLS); to act as an amicus curiae or “friend of the Court”.

Taulapapa told the Court that if the AG were to be relieved from participating as the Principal Law Officer in Samoa then the Samoa Law Society would be of great benefit to the Court. An amicus curiae is someone who is not a party to a case but may assist a Court by offering information, expertise, or insight that has a bearing on the issues in the case.

Fuimaono Sefo Ainuu attempted to put forward their  reasons for pushing the date back to next Monday. The QC sought by the Office of the Attorney General was not available and said to be presently on another case..

The Chief Justice interjected. “Let’s just pause here Mr Ainuu… Have you advised the Queens Counsel that they have rank in New Zealand and not here in Samoa?..

“Before instructing them, you surely should have asked whether or not the Queens Counsel was available to appear this week?..”

Chief Justice Satiu reminded Fuimaono that the nation needed to go to the polls on Wednesday next week; as Taulapapa had earlier put forward.

“Your suggestion is that this Court sits on Monday and brings together a decision on Tuesday, affecting what might happen on Wednesday.. do you see the difficulty in that situation?”, said the Chief Justice.

Counsel for HRPP Aumua Ming Leung Wai

Counsel for HRPP, Aumua Ming Leung Wai supported the Attorney General’s request for the hearing to be put back to Monday 17th on the basis that the issues were more complex than they had first appeared.

“Over the weekend I have come to realise that the issues are very very complex requiring a lot more research, requesting material from overseas..”, said Aumua.

“We cannot rush the submissions for the Court and that is why I fully support the timetabling suggested by Madame Attorney..”

Aumua told the Court that Counsel for the Applicants should clarify what the issues are, and submit their positions to issues first.

“It is not appropriate for the Applicants to receive our defense first, and then they provide their submissions,” said Aumua.

Aumua added that the Applicants had not addressed areas such as the issue of reserve powers in their submissions.

The Chief Justice told Mr Leung Wai that the issue of reserve powers was his defense, and that the motions filed by Taulapapa have set out an adequate summary of the challenge, to which he would be able to respond.

Decision

The Court maintained its position that the matter required the highest priority given the nation was due to go back to the polls next Wednesday.

“We do not accept that this matter be delayed to Monday 17th of May. It may well suit the first, second and third respondents.. but this is a matter of national importance..

“We do not accept the Counsels submissions for delay in order to engage overseas Counsels..” said Chief Justice Satiu.

Parties seeking overseas Counsels were asked to liaise with the Court Registrar to set up audio visual arrangements.

The Court did not accept the letter by the Attorney General requesting she be removed as a party and directed the AG to instead, submit a proper application to clearly set out reasons for the request.

Chief Justice Satiu Simativa Perese has set this Friday 14th May 2021 for the substantive hearing with all submissions due by 12pm tomorrow, Thursday 13th May.


Marieta H Ilalio