Head of State Says No Party Has a Majority, and Hits Back at Supreme Court Judgment to Convene Parliament

Sunday 4 July 2021, Apia Samoa. The Head of State Tuimalealiifano Vaaletoa Sualauvi II has broken his silence and handed down a proclamation, aired on the Government of Samoa Facebook page at 11:30pm Sunday night, 4th of July 2021.

Silent for six weeks since his 22nd May proclamation to suspend the convening of Parliament, His Highness Tuimalealiifano Sualauvii II has now called for the XVIIth Parliament of Samoa to convene on Monday 2nd August, but not necessarily to form a Government, because according to the Head of State, no party has the majority of parliamentary seats, because the number of seats is uncertain at this time and will continue to be the case until the conclusion of any by-elections.

I, Tuimalealiifano Sualauvi II, the Head of State, in accordance with Article 52 of the Constitution of the Independent State of Samoa, have selected 2 August 2021, at 9:30am, as the date of the official opening of the XVIIth Parliament of the Independent State of Samoa, at the Maota Fono in Mulinuu.

Widely shared on social media within hours of being posted, the Head of State’s proclamation goes on to touch on various issues currently being debated between the two parties at the heart of Samoa’s current political stand-off, mostly repeating the positions taken by the caretaker government.

Read out only in Samoan, the Head of State says no political party has the majority of seats and therefore no elected Member of Parliament has the support of the majority of Members of the Legislative Assembly, to be the Prime Minister of Samoa.

The Head of State further adds that the date he has chosen (2 August 2021), is a date on which matters he mentions will be made clear, and if there are no solutions by that date, then he will consider another option although he does not say what that may be.

HH Tuimalealiifano goes systematically through his points, mostly centered around the notion that Parliament cannot convene without six women MPs, and that the number of MPs is uncertain at this time.

“First, confirming members of the Legislative Assembly”.

The Head of State says that at this time, the number of members for the Legislative Assembly (Fono Aoao Faitulafono) is not clear, in order to lawfully and officially call the XVIIth Parliament of Samoa.

The Head of State then goes on to refer to the same Articles the Caretaker Prime Minister has referred to in public statements.

That is, under Article 111 of the Constitution of Samoa, the Legislative Assembly is required to be constituted under the provisions of Article 44 – and Article 44 states that the Legislative Assembly shall consist of one member elected for each of the 51 electoral constituencies, and not have less than six women.

“Out of the 51 constituencies, 5 women were elected, which did not achieve the 10% required by the Constitution”, says the Head of State.

“Second. The Additional Seat for Women under Article 44(1)(A) of Samoa’s Constitution has not been officially appointed at this time”.

The Head of State says the Court of Appeal has found that there should be an additional seat to make up six women in Parliament;

“That means the total number of Members of the Legislative Assembly is now officially 52, and not 51”.

“Thirdly. If Parliament Convenes Without the Additional Woman, it would not satisfy the requirements of the Constitution and the rights of the holder of the additional women’s seat”.

“Fourthly. The Decision of the Court of Appeal makes it clear that the Court is of the view that Article 44(1)(A) can only come into force at the conclusion of the general election, and at the conclusion of election petitions under the Electoral Act, and at the conclusion of by-elections”.

“Five. At this time, one woman Member of Parliament has resigned, and two await Court petitions”.

“That means that these three women MPs may be replaced by other women MPs at the conclusion of by-elections, and that would keep the number of members of the Legislative Assembly to 52, in accordance with Article 44(1)(A) of the Constitution”.

“If this is the case, then there may be change to the total number of members of the Legislative Assembly, in order to satisfy the 10% of women’s seats in Parliament”.

“There is No Party with the Majority of Seats of Parliament..because there is uncertainty in the result of election petitions, and the result of any consequent by-elections, there is therefore also at this time, uncertainty about which Party has the majority of seats of the Legislative Assembly”. 

“That means, a Speaker and a Deputy Speaker cannot be appointed and confirmed, and similarly, the appointment and confirmation of a Prime Minister cannot be carried out, because there is no Member of Parliament that has the majority support of Members of the Legislative Assembly, to become a Prime Minister”.

“O lona uiga. E le mafai foi ona filifilia ma faamaonia se Fofoga Fetalai, ma se Sui Fofoga Fetalai, faapena foi mo le filifilia ma le faamaoniga o le tofiga o se Palemia, talu ai, ona e leai se Sui Usufono e mafuli iai le faatuatuaga o se vaega toatele o Sui Usufono o le Fono Aoao Faitulafono, e avea ma Palemia. 

“Since the requirements of the Constitution for Members of Parliament cannot be met at this time, Parliament should not convene”.

No Official Parliament, No Official Speaker, No Official By-Elections. Due to the Court decision that the application of Article 44 is done after by-elections, there is now uncertainty on the convening of Parliament at this time, in order to satisfy the requirements of the Constitution. 

Difficulty in Adhering to 45 Days. The decision of the Court of Appeal has given rise to a situation of uncertainty that has made it difficult to convene Parliament.

“If there are no solutions to the issues raised by the date set above (2 August 2021), then I shall look look into other relevant options”.

“I le fai fuafua e tusa ai ma mataupu ua taua i luga, pe afai ua le mafai ona maua se fofo o faafitauli i le aso ua atofaina i luga, o le a ou toe iloilo ai loa, nisi tulaga talafeagai”.

“I also state that the Supreme Court has no authority to call Parliament to convene, as it is only I, the Head of State of the Independent State of Samoa, who has the authority to call a date and a time for Parliament to convene”.

The Head of State then adds that the Supreme Court decision handed down on the 28th of June 2021, has overstepped its boundaries and shows disregard for the position of the Head of State.

“Faasiliaupule ma le aaitui i le tofiga mamalu o le Ao o le Malo”.

“To set down a judgment that calls for Parliament to convene within 7 days of its decision is to undermine the authority of the Head of State under section 52 of the Constitution, because it is only I who can call Parliament to convene “.

The Head of State then hits back at the Supreme Court judgment that stated anyone who obstructs the convening of Parliament shall be held in contempt of Court, contempt of Head of State Orders (referring to the 20th May proclamation to convene Parliament) and contempt of Parliament

“I lau faitau iai, o se faasopoaupule lea i le tulaga taualoa ma le mamalu o le tofiga ma le malosiaga faalefaavae o le Ao o le Malo, ma le Palemene o le Malo Tutoatasi o Samoa.

Tuimalealiifano ends by stating that this proclamation supercedes the proclamation dated 20th May 2020, upheld by the Courts, adding that he prays any further unlawful use of the Head of State’s powers and authority, will not happen again.

The malelega ends abruptly without any reference to the political unrest the country is in, nor a message to a nation divided by a political crisis that is now going onto its fourth month since the April 9th general election.

Note: This article is based on the Samoan version read out by Head of State posted and shared widely on Facebook. The full English version issued by email but not read out by His Highness, can be read here.

Head of State Proclamations Since the Crisis 

Since the April 9th general election, the Head of State has issued three proclamations that have been overturned by the Courts. Each time the Judiciary have noted their respect for the Head of State of Samoa, saying he was being ill-advised.

The proclamation calling fresh elections, the warrant of election to appoint Aliimalemanu Alofa Tuuau as and additional Member of Parliament, and the proclamation to suspend the convening of Parliament.

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 Head of State 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 swear in elected members from the April 9th general election.

His Highness Tuimalealiifano Sualauvi Vaaletoa II stated in that 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 a Supreme Court judgement of Sunday 23 May 2021, 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 highlighted 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.”

Samoa’s political crisis continues and enters its fourth month since the April 9th general elections.

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