The Supreme Court this morning heard an urgent motion from the Human Rights Protection Party (HRPP) seeking declaration orders to state that the actions of the Speaker in disallowing its elected members to be sworn in, are unlawful and/or unconstitutional.
HRPP secured 25 elected members following the April 9th general elections, now down to 18 following the final results of election petitions where 7 by-elections are expected.
Representing HRPP, former Attorney General Aumua Ming Leung Wai argued that his clients’ rights have been breached under Article 9 – Freedom of Movement, Freedom of Assembly and Right to a Fair Trial. The Court was asked to issue an order that would allow the swearing-in of HRPP elected members, so that they may exercise their right to represent the respective constituencies in Parliament.
“Your Honours this is the third day that my clients have tried to enter Parliament.. the police are acting on orders from the Speaker,” said Aumua who described the confinements to HRPP members over the events of this week as ‘shackles’ imposed on them by the Head of the Legislative Assembly.
The motion was heard at 9am this morning on a pick-wick basis by a three-judge bench of Chief Justice Satiu Simativa Perese, assisted by Justices Niava Mata Keti Tuatagaloa and Tologata Tafaoimalo Leilani Tuala-Warren.
During deliberations the Doctrine of Non-Intervention between the Court and Parliament that protects the independence and integrity of the Speaker as the Head of Parliament was discussed at length.
“We have worded our motion carefully in view of the doctrine of Non-Intervention your Honours,” said Aumua, “however in these circumstances the Constitutional rights of my clients have been infringed”.
In relation to Non-Intervention Justice Tologata Tafaoimalo Leilani Tuala-Warren said that as guardians of the Constitution, interventions are made when rights under the constitution have been breached. Justice Niava asked Aumua what his position was,”Does the Constitution trump the Doctrine of Intervention?”.
Justice Tologata also pointed Counsel to Article 44 of the Constitution where candidates are deemed Members of Parliament once elected. Aumua agreed that Article 44 has been breached, and argued that the Speaker is obligated by law to administer the Oath of Allegiance required of all Members of Parliament, including his clients.
Article 44(1) states that.. “the Legislative Assembly shall consist of one member elected for each of 51 electoral constituencies, having names, and comprising of villages or sub-villages as are prescribed from time to time by Act (Electoral Act)”. It further states under 44(4) that, “Members of the Legislative Assembly.. shall be known as Members of Parliament.”
Representing the Speaker of Samoa’s Legislative Assembly senior lawyer Leiatualesa Komisi Koria requested an adjournment to be able to take instruction from his client at 1pm when Parliament breaks.
Chief Justice Satiu adjourned to 2pm this afternoon, however, warned Counsels that the matter was being heard on a pick-wick basis, and a decision was being handed down today given the urgency of the matter because Parliament is currently in session.
This is not the first time the Courts have applied the pickwick basis during this national political crisis. Samoa Global News Contributor, Vincent A. Matatumua Vermeulen explains that the Court proceeds on a pickwick basis in order to “prevent imminent mischief and irremediable harm.”
“The Court can do this in situations that are time sensitive when the Court needs to address something “as soon as possible” in order to prevent a wrong/harm from being committed simply because of a time sensitive situation and especially when such procedures are being used by the respondent to deliberately prevent the applicant from seeking relief from Court”.