Claims that Parliament cannot meet until all seats are filled and petitions and by-elections final and additional Women MPs added, are contrary to what the Constitution requires.
The Constitution very clearly states that Parliament MUST meet within 45 days following a General Election. There is no ambiguity about this. In addition, Section 56 of the Constitution very clearly states that:
“The legislative Assembly shall not be disqualified for transaction of business for reason of any vacancy among the members of Parliament, including any vacancy not filled at a general election, and any proceedings therein shall be valid notwithstanding that some person who was not entitled to do so sat or voted in the Assembly or otherwise took part in the proceedings.”
Section 56 ensures that the meeting of Parliament within the 45-day period is not delayed just because some seats have not been filled or have become vacant due to the elected member having lost their seat or resigned or for any other reason.
It also makes it clear that should someone later be found ineligible, as would be the case of an elected MP whose seat is declared void following an electoral petition, this does not invalidate any decisions made by Parliament.
This is for two reasons.
First it ensures that Parliament meeting is NOT delayed or dependent on the Court hearing and deciding of all electoral petitions. This has never been the practice and the Caretaker Prime Minister and Head of States insistence on it is contrary to both law and practice.
And second it is to ensure that the results of Parliament’s first meeting are not rendered illegitimate. Keep in mind that should later changes in the composition of Parliament result in a shift of numbers, parliament can have a vote of no confidence which if successful will result in a change of government. Therefore, preventing Parliament from meeting on the mere possibility that the numbers may change is not only illogical but irrelevant because the parliamentary system and the Constitution already have measures in place for such an event. As it is such changes have already occurred in the history of Samoa.
This is because it is vital that a newly elected Parliament meet as soon as possible to elect a Speaker and Prime Minister so that Parliament can commence the work it has been elected to do and so that a Prime Minister mandated and empowered by the authority vested in him/her by Parliament can form a government that has the confidence of the new Parliament. In this case, the XVIIth Parliament.
The reason why the Constitution prioritises a newly elected Parliament to meet is because the previous Parliament has been dissolved and with it their mandate to govern. The Executive Branch of government: Prime Minister and his/her administration derive their power and authority from Parliament which bestows these on them by virtue of electing the Prime Minister. This is NOT a power that Parliament gives up once the Prime Minister has been elected. The Prime Minister must maintain the confidence of Parliament to stay in power. If a Prime Minister loses that confidence, it means that Parliament, as the representatives of the People, no longer has confidence in the Prime Minister and has withdrawn their support from the Prime Minister.
When that happens, there is a change of government. This means that the Prime Minister and Cabinet are accountable to Parliament. Any power and authority vested in the Prime Minister comes from Parliament as Parliament alone can bestow that power upon him/her. At the same time Parliament retains the power to strip a Prime Minister of such powers.
It is very important to understand this because the Prime Minister’s power comes from the Parliament which is composed of the people’s elected representatives. So ultimately the power that the Prime Minister wields is ONLY wielded because the representatives who have been elected by the people, have in turn elected the Prime Minister. It is vital that people understand this.
Somehow people have come to assume that the Prime Minister is all powerful and has the final say in everything but the Constitution and the democratic principles upon which the nation of Samoa was founded, says something completely different. The Prime Minister is a servant of the People, and only holds office with their consent through the powers vested in their elected representatives who sit in Parliament.
This is something that is profoundly important for people to understand. Once you understand this it becomes clear why a newly elected parliament MUST meet as soon as possible.
During the period between Parliament being dissolved and a new Parliament being elected the Prime Minister who was elected by the previous Parliament only remains in place as a Caretaker Prime Minister. The term alone is significant and weighed with meaning. It means that the Caretaker Prime Minister is there ONLY as Caretaker until the New Parliament elects a Prime Minister.
It does not matter if the Caretaker Prime Minister is going to be the one that the new Parliament elects. They need to elect someone as only they have the mandate to do this. Until they do so the caretaker is just a caretaker and has no legitimacy beyond a caretaker role. This is clear in the Constitutional provision that requires the Head of State to terminate a Caretaker Prime Minister who has not resigned within 7-days of the new Parliament meeting.
Remember, the Caretaker Prime Minister’s powers and authority no longer exist since the Parliament that elected him has been dissolved. They are only there to keep the government functioning. This is standard practice in all democracies. It is also the practice for no new policies to be implemented after Parliament has been dissolved as the mandate of government has ended and caretaker administration has no legitimate right to do anything other than keep the wheels of government oiled and running.
Another vital reason for Parliament to meet as soon as possible and elect a Prime Minister is because ONLY Parliament can pass laws. The annual budget is passed by Parliament as an Appropriation Act. Such an Act can and should only be produced and passed by a Government that has the support of the newly elected Parliament.
All government expenditures MUST be approved by Parliament. This is a power reserved for Parliament. While there are emergency measures to allow government to operate for a short period this is only for emergencies and only for a short period. AND at the end of the day Parliament still needs to approve that spending.
At the moment since Parliament has not meet within the 45 days a serious breach of the Constitution has occurred. We now have a Caretaker Government which is still occupying offices and using powers to which their mandate is now in serious doubt.
This is why Parliament meeting on time is critical. It is also why the Constitution specifically makes provisions to ensure that Parliament meets.
Another factor which makes this clear is that section 57 of the Constitution states that the Quorum for the Legislative Assembly is based on the total number of members of parliament EXCLUDING vacancies. In other words, the calculation of the quorum is based on the total number of eligible members of parliament at any given time excluding vacancies. That means that the quorum is NOT based on 51 seats but on the number of seats that are filled. This is to prevent a minority from holding Parliament hostage by refusing to attend Parliament as with what occurred on the 24 May 2021.