Head of State Poorly Advised then Left Undefended Before the Court


28 May 2021, Mulinuu Apia Samoa. The full judgment of the Supreme Court handed down after a special sitting on Sunday 23rd May, clarifies many of the issues publicly debated after Court Orders declared the Head of State’s suspension of Parliament, unlawful.

Their Honours Chief Justice Satiu Simativa Perese, Justice Tafaoimalo Tologata Leilani Tuala-Warren and Justice Vui Clarence Nelson noted, as they had done in a previous judgment, that they “do not make any criticism of the Head of State, or attribute to him any malevolence”.

“It is clear that he has been poorly advised, and then left undefended before the Court”, states the decision.

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

As outlined by the judgment, the Court needed to consider reasons for the suspension, and their Honours had hoped the Attorney General could provide constructive submissions, instead Savalenoa by her own admission through a press release issued on the same day, had walked out of proceedings alleging the Court had not followed proper process.

Their Honours clarify in their decision that the Court “wished and needed to hear from the Attorney General,but she declined the opportunity relying on procedural rules

we consider such reliance completely missed the point,”

“Samoa was on the verge of entering a new legal and constitutional space. The Court needed to consider whether there was a proper basis for the suspension and of the clear requirements of the Constitution,” reads the judgment.

In considering the suspension unlawful the Supreme Court sets out its reasons, and once again refer to Article 52 of the Constitution, which their Honors had also done in a decision issued just six days prior, on Monday 17 May 2021, when they ruled against fresh elections and reminded the HOS of his obligation to convene the Legislative Assembly within 45 Days of a general election.

The Proclamation dated 22nd May 2021 issued late on Saturday night left the country in a state of shock and uncertainty, since more than 500 invitations as well as the programme for the official opening of the XVIIth Parliament of Samoa had already been issued by the Clerk of the Legislative Assembly on Friday; and the nation was preparing to finally swear in elected members from the April 9th general election.

His Highness Tuimalealiifano Sualauvi Vaaletoa II stated in the Proclamation that his prior declaration for Parliament to convene is suspended “until such time as to be announced and for reasons that I will make known in due course“.

In their judgement, their Honours state that, “the convening of the Legislative Assembly cannot be left until someone decides that it is time for Parliament to meet, whenever that may be“.

The Court highlights the lack of transparency in presenting no basis or offering any explanation as to why Parliament was being suspended.

The purported suspension was made without any reasons or explanation. We consider this is inconsistent with the degree of transparency necessary to guard against an arbitrary and improper exercise of power, a matter which applies to these types of discretionary decisions;

“This is particularly acute in the case of sensitive political situations such as that which has arisen”.

Their Honours say the seriousness of the Head of State’s proclamation to suspend Parliament from convening as required by the Constitution, cannot be overstated.

As a constitutional issue, the Court is bound in accordance with its sacred duty to uphold the Rule of Law and the Constitution of the Sovereign and Independent State of Samoa to properly meet and consider whether the Head of State’s purported suspension of a Proclamation properly and lawfully made by him two days earlier, was lawful.

Caretaker Prime Minister, Tuilaepa Sailele Malielegaoi held a press conference on Sunday afternoon to say he and his HRPP members refuse to be sworn-in until a decision was handed down by the Court of Appeal, alleging the Judiciary had acted outside the Law and State of Emergency Orders. The Attorney General and members of the legal fraternity within HRPP had also taken to television and media to publicly attack the process taken by the Supreme Court that Sunday morning.

Their Honours explain, “It is accepted that in the ordinary course of events, the Court does not sit on a Sunday, and the rules provide that service of a document cannot be made on Sunday. However, we were of the firm view that the importance of the Constitutional issue and the urgency of the circumstances called on the Supreme Court to sit and consider the application as a maintenance of the Rule of Law issue.”

The Court, being the Judges and staff, is also classified as an essential service pursuant to the current State of Emergency Orders of the Government of Samoa, and the Supreme Court has an inherent jurisdiction to act to promote the ends of justice. The Court is also empowered by section 32 of the Judicature Act to sit “in any part of Samoa and at any time or place”.

In relation to the Attorney General’s public statements that she was summoned to a Court Hearing without knowledge of the substance of the matter, insisting it was not an in Chambers meeting, the Court clarifies in their judgment that given the seriousness and urgency of the matter, the applicants were asked to serve the application on the Attorney General on a Pickwick basis.

As stated in the judgment: “This meant the Attorney General would have notice of the application and have an opportunity to appear when it was called in compliance with simple rules of natural justice”;

“When a Court proceeds on a ‘Pickwick basis’ it does so in order to “prevent imminent mischief and irremediable harm” (see Pickwick International Inc Ltd v Multiple Sounds Distributors Ltd [1972] 3 All ER 384)”.

“The Court does so in situations which are time sensitive and where urgent redress is being sought to prevent irreparable and uncompensatable damage“.

The Court also clarifies that it was an in Chambers hearing and no one other than the court staff and Counsel were present, but it was taken into a Courtroom so the audio recording facilities of the Court, not available in Chambers, could be used.

“In all other respects, it was a Chambers hearing..”

Following the special sitting the Court issued Orders declaring the suspension unlawful, upholding the Head of State’s original proclamation that Parliament shall convene Monday morning 24th May 2021 at 9:30am.

At exactly 9:30am Chief Justice Satiu Simativa Perese together with all members of Samoa’s Judiciary took a symbolic stance to follow the rule of law by walking from their Courthouse compound across to Samoa’s Fale Fono (Parliament House).

President of New Zealand’s Judges Association has since written to Chief Justice Satiu to convey their deep respect for the character and resilience of the Samoa Judiciary.

JANZ President Judge Gerard Winter acknowledged the Samoa Judiciary’s courage to uphold the law.

“Your walk to the doors of the Fale Fono alongside your judges and an otherwise simple act of knocking on that closed door of your Parliament, was a profound and brave demonstration of judicial independence and the rule of law”.

On Monday 31st May 2021, the day before Independence Day, the Court will hear two more matters, crucial to Samoa’s political crisis. The Court of Appeal will sit over the question of whether the minimum requirement of Article 44(1A) of Samoa’s constitution translates to 5 or 6 women. If 5, then general election results remains at 26-25 and FAST would be confirmed winners of the April 9th general election. If 6, Samoa would have a hung parliament of 26:26 and the nation would return to the polls.

The Court will also hear an application by the Attorney General, asking that the swearing in of FAST elected members on Monday 24th May, be declared unconstitutional.

Meanwhile in Samoa, the public are now receiving messages from two governments, one led by Prime Minister Elect Fiame Naomi Mataafa, and one led by Caretaker Prime Minister, Tuilaepa Sailele Malielegaoi.

All of this while the two crucial matters are pending before the Courts of Samoa.

The full judgement of the Special Sitting from Sunday 23rd May 2021 can be read here. 

Sina Retzlaff