Former Chief Justice Calls for Fresh Elections

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The Government Press Secretariat has issued a press release translating an interview by former Chief Justice Patu Tiavasue Falefatu Sapolu who puts forward his views on the current political stand-off.

The former CJ had registered to be a candidate for the Human Rights Protection Party at the 9th April general election however he later had to withdraw his nomination for health reasons after he was medivac’d to Auckland for treatment prior to elections.

Patu has publicly stated a call for fresh elections, saying there cannot be a majority until a political party reaches a number higher that 26. The former CJ goes on to interpret the decision of Samoa’s Court of Appeal and reinforces the HRPP stance that Parliament cannot convene until all six women have been decided.

Amidst the political stand-off where the public are receiving messages from two Prime Ministers, the former Chief Justice says only the Head of State can remove a Prime Minister and says the caretaker government have every right to be governing at this time.

The interview is published in verbatim below.

FORMER CHIEF JUSTICE PATU DEFENDS THE CONSTITUTION & CALLS FOR FRESH ELECTIONS.

(NOTE; The following is the English Translation from the television interview by the Former and Retired Chief Justice Patu Tiava’asue Falefatu Sapolu with TV1 Samoa on June 12th 2021.

As the longest serving C.J. for 26 years until his retirement in 2019, Patu shares his views on the recent Court of Appeals decision recognizing the 10% minimum requirement or 6 Women MP’s to sit in Parliament based on the results of the 2021 General Elections on April 9th 2021. The English transcript is disseminated for the information of the General Public.)

HON. PATU TIAVA’ASU’E FALEFATU SAPOLU TVI INTERVIEW HOST: TAULEALEAUSUMAI SIOELI ALOFAIFO. Saturday 12th June 2021 – TV1 SAMOA 8p.m.

TSA: Tonight we are speaking with Patu Tiavaasu’e Falefatu Sapolu in this special programme to discuss the current constitutional crisis in Samoa. I wish to introduce Patu Tiavaasu’e Falefatu Sapolu who is well known to all us as he served for many years as the Chief Justice of our country.
At the present time, those supporting HRPP are of one view and those supporting FAST hold other views. Tonight, we would like to seek clarification about many of the outstanding legal questions. This evening, TV1 has invited Patu Tiavaasu’e Falefatu Sapolu, retired Chief Justice to speak on some of the many outstanding questions in order to enlighten our country.

Greetings lau Afioga Patu….

PATU greets the Host – Thank you for the invitation and I am humbled to be invited especially during this time.

TSA: The recent Court of Appeal case decided that 6 women should represent the 10% minimum under the Constitution and that we should await the conclusions of the petition cases and bi elections before deciding the number of additional women members. Please kindly clarify to us, what does this mean?

PTFS: There are 3 important issues and decisions before us
Firstly, the Court of Appeal decision of 2nd June 2021 has clarified that the 10% minimum of 51 elected members of Parliament should be 6 and not 5, as the Supreme Court had earlier decided. In my view of the Court of Appeal decision if, after a general election, 6 women or more are elected, then the 10% provision will have been satisfied within 51 elected members and in accordance with article 44. of the Constitution.
However, if after a General Election, 6 women are not elected by general election, then additional women MPs will have to be chosen to attain the number of 6, being 10% of 51, as determined by the Court.

Secondly, Aliimalemanu Alofa Tu’uau’s seat was declared void by the Court of Appeal so this reduced the number of HRPP seats from 26 to 25 and thus giving 26 seats to FAST and 25 to HRPP. Because the parties had held an equal number of seats prior to this, the question of holding a snap election arose, due to Aliimalemanu’s seat being voided.

Thirdly, the Court of Appeal decided that we will only know whether Ali’imalemanu Alofa could still become the 6th additional woman to the current 5 successful candidates elected in April this year and the fact is, that this can only be determined after the petitions and bi elections have been dealt with.
It is only at that point in time that we can know whether an additional woman member or members is required or not. It is only when the current petitions are completed and bi elections have been held, that we can be certain of what number of additional women is required to complete the 6, required by the law.

There are 2 types of Members of Parliament in Art. 44 of the Constitution; there are 51 elected members, 1 from each of the 51 districts of the country, together with women members referred to as “additional members” and the number of any additional members depends upon whether the 10% requirement is achieved through general election, or by appointment, to ensure that the number of women members number is never less than 10% of all elected members.
That part of the Court decision clearly states that to satisfy this provision (Art. 44) the number of women can be 6 upwards, as long as there is never less than 10% women members in Parliament. Secondly, the Appeal Court decision departed from the Supreme Court decision and effectively reduced the number of members from 26 to 25 for the HRPP and thirdly, we will only know and be clear about how many additional women members there will be, or whether there is a need for any further women members, after the hearing of petitions currently being heard and also the holding of bi elections.

Taulealeausumai and our country of Samoa, the difficulty facing us that this is to be the process we must now follow, to await the completion of bi elections for only then can we determine any additional women members.

So I put this question, what if, after the bi elections there are further petitions lodged to challenge those bi elections and we must go back to Court again?
What will be our position if that is the case? It could mean uncertainty and instability for Parliament and the decision making processes of our country and that is a troubling reflection on my part.

TSA: Thank you Patu, you have explained the Appeal Court decision in detail. So with the current situation that FAST has 26 members and HRPP 25, my question is: Can Parliament be convened now?”

PTFS: The answer is no…

TSA Why?

PTFS: I will directly address your question about the Legislature as described in Article 111, which clearly details the Legislature as being comprised by Article 44 of the Constitution.
Article 44 of the Constitution describes that Parliament is comprised of 51 elected members from a general election and additional women members of not less than 10% of 51.
So at this time, if someone asks me “How many women are there at the moment? Has the 10% minimum been satisfied? ”My answer is: NO.
The uncertainty continues because the Court of Appeal has now stated that this determination of the number of additional women members must wait until after the petition hearings and after bi elections are held and only then can we determine whether there is a need for additional women members or not. If there is a need for additional women members, then how many? The Constitution states that Parliament is comprised of 51 Members of Parliament and including not less than 10% of women members.
Therefore, at this time it is uncertain. So it’s difficult or if not impossible for Parliament to convene when the 10% of women members is not finalized with certainty, we must wait until this is determined before Parliament is convened.
There is a further challenge that hasn’t been discussed but is also contained in the Constitution that is the connection between the full number of the members of Parliament, which means elected members and additional women members and the majority of the full number of Members of Parliament.
I’d just like to state that if at this point in time we have 5 members and we need to add another 1 to make up 6 women members, that means we will have a total of 52 members of Parliament.
Half of 52 is 26 but that is not the term used, rather it is the English word “majority”, which does not mean half of the total, it means half of the total plus 1 to attain a majority in other words it must be more than half.
If after the petitions and bi elections there are 4 women elected we will need 2 women to attain 6 to satisfy the 10%. If there are only three then we need to add another 3 women members to satisfy the requirement for 6 members to satisfy the 10%.
So according to the full complement of Parliament required to convene, it is currently uncertain but is dependent upon the outcome of the petition hearings and the bi elections.
The majority will also be uncertain because if there is 52 members of Parliament then 26 is half but that is not a majority, it is only half.
The Constitution does not state: “If you attain half and the other side does not attain half, then your party can become the new Government the Constitution says, one party must attain a majority.
Therefore if there are 52 or 53 members, the majority is not 26.5 the majority must be put up to 27.
So these are some other difficulties that I have observed, that have arisen since the decision of the Court of Appeal.
Taulealeausumai, Article 32(2) of the Constitution states that the Head of State appoints the Prime Minister, from the Members of Parliament that command the majority of the Members of Parliament.
So what is the majority at this time? That is undetermined at this point in time because the petitions and the bi elections have not been completed.
It is not until we have the results of all these preliminary matters and 6 additional members are included within the 51 members, it is only then that 26 can be considered a majority of 51.
But at the time, when Aliimalemanu Alofa was part of the equation and there were 26 members per party, the majority was not 26 it would have to be 27, and now Aliimalemanu Alofa’s seat has been voided, the situation is one of uncertainty because we do not know how many women’s additional seats will be required, so the question is, where is the majority at this time? The answer is, no one knows.
If we consider Article 49 of the Constitution it clearly states, the Speaker of the House is appointed by the party that commands the majority of members of the House, or the total members of Parliament in excess of half, of the Members of Parliament.
The question of where the majority is at this time, the answer must be, it is unclear and it will only be clear after the petitions have been heard and bi elections have been held, because only then can the Speaker of the House be appointed in Parliament.
The same applies to the appointment of the Deputy Speaker, who can only be appointed from a party that commands the majority of the House or is supported by a number of Members of Parliament in excess of half.
In my respectful view, the word “majority of all Members of Parliament” includes not only the Members of Parliament we currently have but includes new members who will be elected after the hearing of election petitions and holding of bi elections.
Therefore we are in a period of uncertainty at this time if we were to convene Parliament with FAST holding 26 and HRPP 25 seats, at this time, it would not be in compliance with the clear terms of the Constitution.
The Constitution does not state, the party with the higher numbers of Members of Parliament should appoint the Speaker of the House and the other party cannot. No.
The Constitution states that the person to be appointed as the Speaker of the House should be a member of the party commanding the confidence of the majority of the House.
It is clear under the Law, that the first item of business for any Parliament when it is convened after a General Election is to appoint a Speaker of the House according to the Constitution.
Therefore if it is not possible to appoint a Speaker of the House according to the Constitution and it is not possible to appoint the Deputy Speaker of the House according to the Constitution, then what sort of Parliament will we have? How can it be? Has there ever been a Parliament in the Commonwealth of Parliaments that has operated without a Speaker of the House?
It was interesting for me to hear Hon. Lealailepule MP on the “Good Morning Show” – Lealailepule stated that the terms and conditions of the Constitution are interconnected and should not be considered independently of each other. One article affects another and one article explains another article.
For that reason one must consider all parts of the Constitution and its requirements, in case one only takes into consideration one or two aspects of the Constitution, while forgetting that there are other articles of the Constitution that stated what steps should be followed and taken because they are interconnected. There is a close connection between the majority of the Members of Parliament, the total number of additional women members and the total number of Members of Parliament.
These matters are all interconnected and must be considered together and one part will be affected by other articles of the Constitution.

TSA: Thank you Patu, if I understand correctly from your explanation, the interconnected matters have come about from the recent Court of Appeal decision. Judging from the decision in my personal opinion, the Court has tried to satisfy both the HRPP and FAST. That is my personal view about the Court of Appeal decision.
But maybe if we had just gone back to the polls as the Head of State had proclaimed, on the 21 May 2021, maybe everything would have been resolved by now, there wouldn’t be further conflict, there could have been a clear decision as to which Government would have come in, and you and I would not be having this discussion today.
What do you say?

PTFS: Some people have said to me : “Patu, if only the people were given another opportunity to decide, this situation would have been resolved by now and allow the country to decide whichever Government is to lead the country, because we do not understand all these laws.
So when I hear this wise advice from our traditional elders, it is comforting to hear and maybe they are correct, if we had taken that path that these matters would be concluded and resolved in an amicable way, having given the authority to the people to decide who should govern.
In that manner, the Court would not be the decision maker nor anyone else, but it would have been decided by the mandate of the people of Samoa to choose their elected representatives and give certainty as to who would lead the country for the next 5 years.

TSA: FAST has 26 members and HRPP 25 at this point in time and you have clearly outlined the conditions required for Parliament to convene. FAST are advocating that they should take over Government now and HRPP should leave the governing of the country now.
FAST also gave HRPP an ultimatum to leave 48 hours after negotiations fell through, however HRPP are adamant that for them to leave at this stage is unconstitutional. What is your opinion on this?

PTSF : Article 32 (2)of the Constitution is very clear, the Head of State appoints the Prime Minister who is chosen from the membership of the party that the Head of State is satisfied, commands the confidence of the majority of Members of Parliament.
If we look at Article 33, of the Constitution the conditions upon which the Head of State, may terminate the position of the Prime Minister is described.
There is no provision in the Constitution for anyone, other than the Head of State, to terminate the position of the Prime Minister.
That power is reserved solely for the Head of State, and it is stated in the Constitution.
The Head of State can terminate the term of a Prime Minister if he or she is no longer a Member of Parliament or if Parliament should pass a motion of no confidence in the Prime Minister because Parliament no longer had any trust in the Prime Minister and also in his Government.
In other words, the first situation has never occurred and neither has the second, so what this really means is that the elements of the Constitution have never been satisfied or met.
Then we come to the third part of this article 33, which states that The Head of State shall terminate the Prime Minister in the first sitting of parliament after a vote has been taken and this should be done within 7 days. Because Parliament has not been convened, therefore part 3 of this article cannot be satisfied.
In my humble opinion, this part of the Constitution should be carefully considered, regarding the termination and removal of a Government
Because it is the Head of State who appoints the Prime Minister and it is the Prime Minister who then appoints the Ministers of Cabinet.
Therefore if the Head of State suddenly terminates a Prime Minister according to this article, his Cabinet is automatically dismissed.

TSA: My other question, there are many statements by Hon. Laauli of FAST that public servants should act independently in the execution of their public duties, in particular the Ministry of Police, they should not act for either party but they should remain independent in their duties and in particular in upholding the law. What is your view on this particular situation?

PTFS: The ideal situation is that Public Servants should not be involved in party politics, so as not to affect decision making of Government.
We should also remember, that with party politics everyone takes an interest or has a view, even public servants and people outside of public service participate in General Elections, just as public servants do. They to have their rights and their needs, they too will decide to vote for a candidate from a particular party, it’s human nature to do so, but once they perform their duties as public servants, I believe they must act independently.
To give a brief example, if I am a doctor and a patient is brought to me for attendance, the doctor should not ask what party affiliation the patient is, before determining the treatment to provide the patient, that should never be the case. Rather, the patient should be attended to according to the Doctors’ duty as a doctor and according to one’s calling as a Public Servant of the Government.
It’s the same for a lawyer, if a Defendant seeks legal advice, the lawyer should never inquire as to whether the client’s political affiliation is FAST or HRPP, before determining whether to represent the Defendant or not.
I am referring specifically to the fact that the performance of the duties of public servants should be executed independently and impartially, just as TV1 should be accessible to any member of the public for broadcasting services, that is the mandate of your company.
TSA – Patu, at this time FAST is stating that they should be governing the country while HRPP is stating that it is unlawful to do so.
What if the Court should order, or FAST should give the Commissioner of Police a request that Tuila’epa and the HRPP should leave office?
PTFS: Pursuant to Article 33 of the Constitution only the Head of State can remove the Prime Minister and his Government.
It is the Head of State that appointed the Prime Minister and it is he, alone who removes the Prime Minister, it cannot be that the Head of State appoints the Prime Minister and a political party or the Court removes the Prime Minister.
The Court cannot interfere in politics, these matters are referred to the political judgment of the Head of State of our Government, to decide whether to terminate the service or “tautua” of a Prime Minister.
But the power and duty is inherent to the Head of State to exercise.
This is the first time that it has ever happened, that someone has performed the Constitutional duties and exercised the powers of the Head of State. I do hope that this will never re occur, a second time.

TSA: Therefore Patu, only the Head of State may terminate the Prime Minister’s appointment and there is no consent from the Head of State to terminate the Hon. Tuilaepa Sailele Malielegaoi as Prime Minister and his Cabinet… is that correct?

PTFS: That is correct Taulealeausumai, that is so.

TSA: Does that mean that for now, Government public servants should continue to obey the directions and instructions of the Caretaker Government led by Hon. Tuilaepa Sailele Malielegaoi and the HRPP?

PTFS: They should indeed do so, as they are respectfully referred to as the “arms and legs” of Government whichever party is Government of the day, the public service must respect and continue their “tautua” of the Government of the day.
At this time Hon. Tuilaepa Sailele Malielegaoi and the HRPP caucus are leading Government, so the public service should support the HRPP led Government that is currently at the helm.
Thank you for the invitation to speak today I appreciate the opportunity.