The Supreme Court has declared void the suspensions of Tuilaepa and Lealailepule, stating that the MPs may resume their duties as Members of the Legislative Assembly immediately (as at the date of this decision).
Human Rights Protection Party Leader and former Prime Minister Hon Tuileapa Sailele Malielegaoi, and HRPP Secretary, Lealailepule Rimoni Aiafi were both suspended following a complaint filed with the Speaker, by Deputy Prime Minister Hon Tuala Tevaga Ponifasio.
As required by Parliament Standing Orders, the Speaker referred the complaint to Parliament’s Ethics and Privileges Committee, who then recommended the two MPs be suspended without pay, “until such time” – “sei iai se aso”.
The Legislative Assembly upheld the Committee’s recommendation on 24 May 2022. The suspended MPs took the matter to Court.
The hearing was held before a three judge panel of the Supreme Court led by Chief Justice Satiu Simativa Perese, with Senior Supreme Court Justice Vui Clarence Nelson and Justice Tafaoimalo Tologata Leilani Tuala-Warren.
In its 33-page decision the Supreme Court ruled that the process taken by Parliament to suspend Tuilaepa and Lealailepule breached their constitutional rights. The Court declared the decision to suspend them without being heard, as void.
The decision finds that although the Privliges and Ethics Committee did meet with Tuilaepa and Lealailepule during their inquiries into the allegations against them – the accused MPs were not given “the right to be heard as to penalty“.
The Court makes it clear that they do not have an opinion as to the Contempt of Parliament.
However at the time the decision was being made as to what penalty to impose, the accused MPs should have been given the right to be heard. The process.
The Supreme Court agreed with the grounds submitted by Aumua Ming Leung Wai on behalf of the HRPP MPs, that the Legislative Assembly breached the principles of natural justice when Tuilaepa “was not afforded the opportunity to be heard on the issue of penalty before penalty was imposed (procedural impropriety)”.
The decision outlines Tuilaepa’s efforts to request for the Privileges and Ethics Committee report to be tabled the following week when he could attend Parliament, as he had been in isolation upon his return from a World Rugby AGM in Europe.
Reads the Supreme Court decision; “The Hon Tuilaepa also advised the Hon Speaker of his movements in that he was being asked to attend an international meeting in Europe on behalf of the Samoa Rugby Union. The Hon Tuilaepa’s return to Samoa from his committments was unavoidably delayed through no fault of his own..
“To compound matters, on 24 May 2022, in accordance with the State of Emergency rules, he had to undergo the isolation requirement for travellers..
“There is no unwillingness on the part of the Applicants to participate in the inquiry in a timely way..
“Yet the Assembly, despite requests from the Opposition to adjourn the discussion until the Hon Tuilaepa was out of mandatory isolation, nevertheless pushed on with its determination to discuss the Committee’s report on 24 May 2022..
“We do not understand the reluctance to adjourn for a week given that the serious matters complained about had occured many months before,” reads the Court decision.
The Court stressed the importance of the process, that requires Parliament to abide by its Constitutional duties to allow those accused the right to be heard as to penalty.
The Court goes as far as stating: “If it is not a process to which the Parliament is familiar, then it should become familiar with the obligation to hear from the “accused” not just in relation to the substantive charge itself, but also the penalty”.
Tuilaepa was not given the chance to be heard because he was not in Parliament that day, however, the Court also found that Lealailepule, although present in Parliament, wasn’t given adequate time to be heard.
As stated in the Supreme Court decision: “We consider the Hon Tuilaepa’s Article 9(1) rights to be heard as to penalty by the decision maker were breached. Although the pleading of breach of natural justice is made only with respect to the Hon Tuilaepa, we consider that it should also apply to the Hon Lealaipule.
“It is difficult to discern how the respondents could be prejudiced by such an amendment. Indeed while the Hon Lealailepule was physically present and took part in the general debate, it is clear from our reading of his responses that he may have needed further time to prepare an adequate response on the issue of penalty.
The Court again stresses their decision is based on the process, and clarify that they are not expressing a view on the merits of Tuileapa and Lealailepule’s defence to the charge of contempt of Parliament and what they might say in relation to a penalty imposed on them.
“We are only concerned with the question of process,” states the decision.
“Whether the Hon. Tuilaepa, of considerable political and parliamentary experience and skill, would have been able to use his 10 minutes of debate to persuade his colleagues to not suspend him is not a matter for this Court. He was entitled to be heard, and he was not”.
The Court decision also states that Parliament may choose to revisit the process that has been breached, bring it in line with the Constitution, and then possibly arrive at the same conclusion.
States the Court decision: “We consider the treatment of both of the Applicants rights to natural justice with respect to penalty were inconsistent with their rights preserved under Article 9(1) of
the Constitution. We accordingly declare that the part of the Assembly’s motion which
purports to suspend the Applicants is void as at the date of the declaration in this
judgment..
“It may be that the Assembly may wish to revisit the penalty aspect, consistently with the Constitution, but that is entirely a matter for that body..
“However, as at the date of this decision, there is no lawful impediment in the way of the Applicants resuming their duties as members.”
As to the question of whether the indefinite suspension is unlawful or unconstitutional, the Supreme Court notes that the penalty imposed, of “sei iai se aso” can be interpreted within the context of Samoan custom of how village fono or village council chiefs impose penalties – with the expectation that an apology and reconciliation should follow.
However the Court then also referred to the many post-election petitions that involved varying definitions of cultural practices, and warns against ad-hoc interpretations when applying custom.
“We note the Hon Valasi Selesele used the Samoan language when he introduced the P & E
Committee’s report and recommendations to the Assembly. The relevant Samoan language version of the phrase in the Report and Hansard is “se’i i ai se aso”.
“In the Samoan custom, this saying may generally mean in a village fono or village council chiefs and orators’ environment that a decision concerning a penalty imposed by the village leaders stands until such time as proper apologies are tendered and there is reconciliation between the parties in dispute”.
“But we refrain from deferring to our own experiences as matai to explain the cultural significance of certain cultural practices. What is meant by a cultural phrase should be dealt with by express pleadings and evidence. That has not been done in this case. As Courts, around the Pacific region in particular, search for cohesion between culture and law, our Court needs to guard against delivering ad hoc interpretations and decisions”.
Does the Court have Jurisdiction?
The Speaker had protested in his submissions, that the Court did not have jurisdiction to hear the motion or grant relief. The Court disagreed with the Speaker, and refers to previous judgments including more recent constitutional cases where the principal of non-intervention was found to not apply in cases where constitutional rights had been breached.
The Supreme Court decision states:
“The Court of Appeal’s decision in Ah Chong, held that the principle of non-intervention, like all principles, has limits which are not always easily discernible..
“Further that this Court has a duty to scrutinize Parliamentary proceedings for alleged breaches of constitutional requirements. We agree with the Court of Appeal’s determination which we are bound to follow as the basis for the Court having jurisdiction in this matter”..
“In principle therefore we respectfully reject the Hon. Speaker’s protest to the jurisdiction of this Court to hear the Applicant’s Motion or to grant relief..
“The grounds of the Hon. Speaker’s opposition are founded on the law of parliamentary privilege in jurisdictions without a Constitution that obliges the Court to declare void any existing law and any law which is inconsistent with the Constitution”.
Below is the decision found on Pages 31-32 published in verbatim.
Decision
For the foregoing reasons, the Court finds:
(a) The Assembly resolved to approve the Committee’s report with respect to liability and penalty. We consider the Court has jurisdicition to scrutinise all these intramural decisions of the Assembly pursuant to its express duty under the Constitution to declare “any existing law…which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
(b) The relevant law in this case concerns Parliament’s disciplinary rules arising under the Legislative Assembly Powers and Privileges Ordinance 1960, Parliament’s Standing Orders, and the customs of the Assembly, and their application. We find these disciplinary rules and practice do not give the persons who are the subject of adverse recommendations by the Privileges and Ethics Committee, the opportunity to be heard as to penalty before the Assembly. This is a failure which breaches a fundamental plank of the rules of fairness that are secured in Article 9(1) of the Constitution – the right to be heard.
(c) The Assembly’s resolution as to the Applicants’ liability for the contempt of Parliament, was not itself directly challenged, and so there is no reason for this Court to consider much less disturb that finding.
(d) There was a strongly run argument that the suspension was indeterminate. We hold the
suspensions are not indeterminate and do not engage the principles and rights in Article
44 of the Constitution. On the facts, we consider that even had we found the suspension
to have been indeterminate and therefore in breach of Article 44, this did not necessarily mean that liabilty was not properly made out.
(e) However, we consider the treatment of both of the Applicants rights to natural justice with respect to penalty were inconsistent with their rights preserved under Article 9(1) of
the Constitution. We accordingly declare that the part of the Assembly’s motion which
purports to suspend the Applicants is void as at the date of the declaration in this
judgment..
It may be that the Assembly may wish to revisit the penalty aspect, consistently with the Constitution, but that is entirely a matter for that body..
However, as at the date of this decision, there is no lawful impediment in the way of the Applicants resuming their duties as members.
(f) Costs are to lie where they fall. This is another significant public interest case.
