23 July 2021 Apia Samoa. The Court of Appeal declared the swearing-in of 26 elected members of the Legislative Assembly on the 24th of May 2021 under a tent lawful and constitutional, and further declared the FAST party as the new Government of Samoa as of the time the decision was handed down.
Chief Justice Satiu Simativa Perese as President of Samoa’s Court of Appeal handed down the decision on Friday afternoon, with Justice Niava Mata Tuatagaloa and Justice Tafaoimalo Tologata Leilani Tuala-Warren.
“We consider the swearing-in on 24 May 2021 satisfies requirements of the Constitution as to the legitimate convening of the Legislative Assembly and the valid appointments made at that meeting”.
“We find that the swearing-in is in and of itself Constitutional and lawful and there is no need to consider the doctrine of necessity”.
“For the avoidance of doubt this means that there has been lawful government in Samoa since 24 May 2021, and that lawful government is the FAST party which holds the majority of the seats in Parliament”.
The Court of Appeal highlighted the Constitutional responsibilities of the Head of State of Samoa, going as far as stating the oath taken by Afioga Tuimalealiifano Vaaletoa Sualauvi II as part of their judgment.
The judgment considers the Head of State’s role in administering the swearing-in of Legislative Assembly members, as ceremonial.
“The Head of State’s administration of the oath brings gravitas to the occasion”.
The Court observed that this year was remarkably different to the course of events of other years.
“The events this year could not have more starkly highlighted gaps in the Constitution.”
Their Honours considered the unusual events that took place leading up to the 24th of May, including the call to convene and then suspend the convening of the XVIIth Parliament of Samoa by His Highness Tuimalealiifano Vaaeloa Sualauvi II over the weekend of 20 – 22 of May 2021.
“What if 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 oaths? Does it mean the Independent State of Samoa has no Legislative Assembly following a general election until a 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”.
“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 for the XVIIth Parliament of Samoa”.
“We should reflect that the Head of State at his swearing-in gave his Oath to God as follows:
I …… swear by our mighty God that I will uphold the dignity of the Office of the 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.”
The Court of Appeal therefore considered the actions of Matafeo George Latu acting as a Notary Public to administer the Oaths as lawful, and also endorsed the actions by Taulapapa Brenda Heather-Latu taking up the role of Acting Clerk of the Legislative Assembly, when the Clerk failed to attend when his name was called out.
“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 Papalii who had been moved by FAST to be the Speaker..”
The Court of Appeal has effectively ended the four-month long political crisis in Samoa by clarifying that the Faatuatua i Le Atua Samoa ua Tasi (FAST) political party is now officially the Government of Samoa.
“We note that the practical consequence of the declaration is that the FAST party having been constitutionally sworn in on 24 May 2021 are entitled to take office. However, for the avoidance of doubt and confusion, although the FAST government were entitled to take power on the 24th May 2021, we consider that they should take power from the date and time of this judgment”.
The Court of Appeal further upholds all decisions made by the Caretaker government between the 24th and the time and date of their judgment, but also declares that they no longer consider Hon Tuilaepa’s HRPP led government as the Government of Samoa.
“We consequently validate the Caretaker Government actions up until the time and date of this judgment and note that from this point, the Court does not recognise them as the Government of the Independent State of Samoa, because of the fact that there is a new Government.”
The 29 page judgment of the Court of Appeal will be published in full.
