Court of Appeal Decision Clarifies Mis-Representations Made by Protestors

"what is neglected to be mentioned is that the legal authority and the powers of the Head of State arise only under the Constitution; he does not have any other authority which sits alongside, or which trumps the Constitution".

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The Samoa Judiciary have been under attack since the Court of Appeal declared the tent swearing-in of 26 elected members of the Legislative Assembly lawful. The decision essentially ended a 40-year rule of the Human Rights Protection Party in Samoa, and handed the reigns to the newly established FAST party.

The Judgement was handed down by Chief Justice Satiu Simativa Perese as President of Samoa’s Court of Appeal, with Justice Niava Mata Tuatagaloa and Justice Tologata Tafaoimalo Leilani Tuala-Warren. The three judges together with Partners of Latu Law firm, Matafeo George Latu and Taulapapa Brenda Heather Latu have since been the focus of name-shaming personal attacks and public outbursts from the HRPP leader, Tuileapa Dr Sailele Malielegaoi.

In the past week Tuilaepa has called for the Chief Justice and Supreme Court Justices to step down, and launched a public campaign on the basis that the Judiciary are “destroyers of the Constitution” because they have “disrespected and dismantled the unquestionable powers of the Head of State”.

HRPP political car rally held in Upolu Monday 2nd August 2021.

The attacks on the Judiciary and Latu Law have been fueled by three separate political rallies held by HRPP in the past 7 days. Party members and supporters have joined the call for the Judiciary to step down, with protest banners echoing the message from Samoa’s former Prime Minister that the Samoa Judiciary are corrupt (piopio) and their corrupt decisions (faaiuga piopio) have taken away the powers of the Head of State and trampled on the Constitution (soli faavae).

Despite the public name calling and belittling remarks toward the Judiciary of Samoa, there has so far been no voice to defend the Chief Justice and Supreme Court judges.

In response to media questions the Registrar of the Supreme Court also the CEO of Justice, Moliei Vaai, confirms the Judiciary does not comment when politicians publicly debate their decisions and refers the public to sections of the Court of Appeal to “clarify issues that are currently being mis-represented”.

“The Judiciary has a long standing practice of not entering into public debates conducted in the media about decisions of the Court with political leaders or their advisers,”

“The Judiciary respectfully refers all interested parties to the Court of Appeal decision dated 23 July 2021 that sets out the Court’s views..”

The public are referred to paragraphs 60 & 61 that explain the Constitutional role and limited powers of the Head of State, concluding that he is ‘a servant, and not a master’ of the Constitution.

60.  It may not be a well-known fact that the Head of State, except as otherwise provided in the Constitution, has no option but to comply with the advice of the Cabinet or the Prime Minister; such advice is deemed to be accepted by the Head of State after a period of 7 days. When the Head of State issues a proclamation such as the one he issued on the 4th of July 2021, in which he speaks about a direct threat to the legal authority, powers and integrity of Office of the Head of State – what is neglected to be mentioned is that the legal authority and the powers of the Head of State arise only under the Constitution; he does not have any other authority which sits alongside, or which trumps the Constitution. Respectfully, the Head of States authority is to do what he is told to do by Cabinet or the Prime Minister as his responsible Minister. He is like everyone else, a servant of the Constitution, not its Master.

61.  The meaning of the Constitution is a matter for the Court, not a titular head such as the Head of State. The HOS powers are primarily ceremonial and administrative.

In addition, there is paragraph 64 where the Judgment outlines the powers of the Judiciary as an independent arm of government.

64.  The Constitution reposes in the Supreme Court the original, appellate and revisional jurisdiction and stood it possessed and able to exercise all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa. These important powers have been given to the Judiciary, the independent arm of government, which has the duty to protect the Constitution and uphold the rule of law….

The former Prime Minister of Samoa who led the country for just under 23 years has stated in his public comments that the Judiciary are the least of the three pillars of Samoa’s democratic governance structure. “O le pito vaivai lava lea”.

 

The public are also referred to sections 89-97 of the judgment, to further clarify the role of the Head of State, and the repercussions of his failure to comply with the Constitutional requirement that he convene Parliament following a general election, and allow members elected by the people, to be sworn-in.

That part of the decision is dedicated to the question of whether the Head of State is the only authority that can swear in office holders. It concludes that the role of the Head of State is a ceremonial one and by the Head of State’s failure to attend and carry out his duties as set out in the Constitution, Matafeo George Latu acting as a Notary Public was a suitable replacement.

Is the Head of State the only entity who can swear in the office holders?

  1. This argument arises by virtue of the express reference in the Constitution to the Head of State being the person to administer the oaths of office, with respect to the Speaker and the Prime Minister. Both of those positions are recognized as the leaders of their respective parts of the separation of powers – the Parliament and the Executive. The Chief Justice is also sworn in by the Head of State.
  2. Whilst in the normal course of events, it is undoubtedly the case that the Head of State carries out that function, we consider the role to be ceremonial, as is the case with most instances where a titular head of state administers the oath of office. The Head of State ‘s administration of the oath brings gravitas to the occasion.
  3. This year however was remarkably different to the normal course of events of other years. The events this year could not have more starkly highlighted gaps in the Constitution. What if the Head of State decides not to attend the swearing in? Who then or does the event simply not take place? What if the Deputy Head of State refuses to attend the swearing in to administer the oath? Does it mean the Independent State of Samoa has no Legislative Assembly following a general election until the Head of State or his Deputy Head of State decide to attend to carry out their ceremonial duties? These are the very issues which have arisen in this case.
  4. We do not consider that the framers of the Constitution would ever have thought possible that the Head of State would deliberately stay away from the swearing in of Parliament. But this year he has. The Head of State made that decision the day before the day he had earlier proclaimed to be the appointed day for the swearing in of the XVIIth Parliament of Samoa.
  5. We should reflect that the Head of State at his swearing in gave his Oath to God as follows:
      I,……,swear by Almighty God that I will uphold the dignity of the office of Head of State, and will justly and faithfully carry out my duties in the administration of the Independent State of Samoa in accordance with the Constitution and the law. So help me God.
  6. Having lawfully convened a meeting of the Legislative Assembly, by his Proclamation dated 20 May 2021, the Head of State had a duty to not just attend the meeting he called, but to administer the oaths of office to those who asserted their Constitutional rights to govern Samoa under the authority of the Constitution, he swore to uphold.
  7. We do not overlook the overarching purpose of Part V of the Constitution is to provide for the establishment of Parliament in Samoa. Such a purpose cannot be the subject of capriciousness or the politics of the moment.
  8. We reject the notion that the framers intended the administration of the oath of office to rest solely on the Head of State, and that is because as was eloquently submitted by Mr Robert Lithgow QC, on behalf of the Samoa Law Society, the person who makes the oath gives his or her oath to God and not to the Head of State. We consider that the act of swearing in the relevant Offices and members of the Legislative Assembly, is a ceremonial role. It is, by the Constitution, a duty which is allocated to the Head of State. However, if he does not attend the ceremony, then someone else can carry out that ceremonial function.
  9. We therefore determine that where the Head of State fails or refuses to carry out his Constitutional duty to swear in the incoming government at a convening of Parliament he has earlier called, and which proclamation has been endorsed by the Supreme Court, the Constitutional purpose of forming a Legislative Assembly can be facilitated by someone else carrying out that ceremonial duty.
  10. The facts of this case are that when the Clerk did not answer his name, because he had gone home, Ms Heather Latu, formerly Samoa’s longest serving Attorney General was appointed the Acting Clerk. Ms Heather Latu then moved for the swearing in of Mr Papali’i who had been selected by FAST to be the Speaker. The oath was administered in accordance with the terms of the Constitution by a Mr Matafeo George Latu. It is noteworthy that Mr Latu was at the time one of FAST’s lawyers, an officer of the Supreme Court, but that it was in his capacity as a Notary Public, an office which is acknowledged worldwide, that he administered the Oath of Office. We endorse Mr Latu as an appropriate substitute for the Head of State to carry out the ceremonial function of the Head of State to swear in the Speaker.
  11. The Speaker having been validly sworn in, we consider that at that time there was a meeting of the Legislative Assembly of the XVIIth Parliament of the Independent State of Samoa.

Sina Retzlaff