Court to Decide if Head of State has Authority to Disregard Outcome of Election

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An application by Faatuatua i Le Atua Samoa ua Tasi (FAST) challenging a writ issued by the Head of State directing the nation to return to the polls in two weeks’ time was mentioned before Chief Justice Satiu Simativa Perese this afternoon.

The Chief Justice acknowledged that the substantive issue before the Supreme Court of Samoa was whether or not the Head of State had the power to order the writ and revoke warrants of appointment issued after Samoa’s 9th April 2021 general elections.

“In plain terms,” said Chief Justice Satiu, “whether there was power to make the writ and whether there was power to effectively void, or set aside, or disregard the outcome of the last election”.

The Court is prioritising proceedings for the latest challenge by FAST in response to what has been a rollercoaster of events since the first official announcement of general election results as HRPP – 25, FAST – 25 and Independent Tuala Iosefo Ponifasio – 1.

“My initial impression is that there is a real urgency to get to the heart of the issue. My view is that this matter should go to a substantive hearing as soon as possible”, said the Chief Justice.

Former Attorney General Taulapapa Brenda Heather-Latu represented four applicants. The first applicant being all FAST MPs represented by Fiame Naomi Mata’afa and Tuala Tevaga Ponifasio. The second applicant is the FAST political party, while the third applicant is Luatua Semi Epati who wanted to stand in the elections but was unable to. Two registered voters with grievances on being made to vote again are the fourth applicants.

The Attorney General and the Electoral Commissioner are the first and second respondents. The third respondent is the Human Rights Protection Party represented by another former Attorney General of Samoa, Aumua Ming Leung Wai.

Head of Samoa’s Civil Litigation, Fuimaono Sefo Ainuu appeared for the Office of the Attorney General and the Electoral Commissioner. Mr Ainuu told the Court that a Queens Council (QC) was being considered by the Office of the Attorney General. “My instructions are, it is likely, and we indicate tentatively that we intend to engage a QC.”

Chief Justice Satiu went ahead and set the matter down for a hearing to start on Thursday 13th May 2021 at 10am. “In making that direction, I’d like all submissions to be filed by midday Wednesday 12th

“The reason I am going to direct the hearing for next Thursday is because, 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”, explained the CJ.

The Chief Justice then asked Ainuu to report the urgency of the matter back to his office.

“Mr Ainuu when you report back to your office, if you could convey those thoughts to Madame Attorney General in relation to why this matter is being pushed through.”

Chief Justice Satiu deliberated with the two former AGs on the issues Counsels should focus their submissions on, listing two main issues as being, “what is the source of the Head of State’s power to call a new election, and what is the source of the Head of State’s power to void the first election?”

HRPP’s lawyer, however, put forward that another important issue was 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.

“One very important issue when it comes to the exercise of the Head of State’s reserve power, is justiciability, Your Honour,” argued Aumua.

Chief Justice Satui agreed with Aumua; prompting Taulapapa to interject..

“The issue of justiciability will be covered under whether or not he had the power, but I think it’s important to note that no one is above the law in this country,” said Taulapapa.

Mr Leung Wai responded that if justiciability applied then the Court would not be able to even look at the reserve power that was exercised by the Head of State.

The issue of the Head of State’s reserve powers was added to the list, and Chief Justice Satui informed Counsels that there would be a Court of three judges presiding next Thursday.