Posted 24/5/2021, Republished with permission. Following the Supreme Court’s decision on Sunday the 23rd of May in which it heard the FAST party’s request for a ruling as to the legality of the Head of State’s proclamation rescinding his original declaration for parliament to meet on Monday the 24th of May (the last day by which the newly elected parliament could meet without breaching the constitution), the Attorney General issued a statement declaring that the Supreme Court was out of order in hearing the case because correct procedure in serving notice and convening the court had not been followed. However, she ignored the fact that when she had raised this the Court had responded that it was proceeding on a Pickwick basis. Yet this fact is vital as it changes everything.
It is not clear why the Attorney General chose not to acknowledge let alone address this crucial distinction in the case. Because of this lapse I think that it is necessary to explain what a Pickwick basis is so that people understand what it is and why it is relevant to this case. This should make things clearer and enable people to obtain a better understanding and deeper appreciation of the court’s decision.
The court proceeded on a Pickwick basis which is not a procedural breach. When the court proceeds on a Pickwick basis it is 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 defendant to deliberately prevent the plaintiff from seeking relief from court. The courts do not like it when people try and manipulate things to get away with things on technicalities, especially when this is done deliberately to pervert the course of justice and/or prevent one party from obtaining relief from the court.
Imminent mischief means a wrongful act or harmful act that is imminent (going to happen in the immediate future) if not stopped.
Irremediable harm refers to harm that cannot be remedied once it has occurred. This applies to things to which no remedy in law exists that can undo the harm caused or compensate for the harm caused.
Legal remedies seek to put the plaintiff or injured party back into the position they were before the harm was caused. So, for example if you expropriate (take) someone’s land the remedy for that, if the court rules that the land was illegally taken is to return the property to its rightful owner. If any damage has been done to property, then monetary compensation is awarded to compensate the injured party. The legal remedy essentially seeks to restore things to what they were before the wrong or harm was done.
However, when it is not possible for a harm to be undone or justly compensated this is irremediable harm. That is: NOTHING can undo or compensate for the harm or wrong done. This results in a terrible injustice and is something that the courts take very seriously and do all within their power to avoid and/or prevent from happening.
In the case of the proclamation to cancel the proclamation calling for Parliament to meet: if the case was NOT heard due to the technicality of no notice and the summons not being delivered in accordance with procedure then it would mean that it would not be possible to decide in time if the proclamation was legal or not. And more to the point if it was not legal then it would not be possible for the court to declare it void in time for that proclamation to be declared void and the previous declaration to be declared still valid in order for parliament to meet in time and avoid a serious breach of the constitution from occurring.
THIS is the core issue here. If there had been adequate time for procedure to be followed and the case to be heard and the deadline not to pass, the matter might have been decided differently. That is the court may have said “Okay … No you need to follow procedure etc.”
HOWEVER, Monday the 24th of May was the last day on which parliament had to be called by. Preventing it from meeting on Monday would result in a breach of the constitution. There is no way you can undo a breach like that. You cannot wind back time and have the 45th day occur again.
This is why the court heard the case on a Pickwick basis as that was the only way to prevent imminent mischief causing irremediable harm.
Note that this would have been the case regardless if the short time frame had been deliberately engineered by the Prime Minister and Attorney General or not. The mischief was imminent, and the harm was irremediable. Both key requirements were there.
However, I would think that the circumstances surrounding the situation are important to keep in mind. First there is the pattern of disdain and disregard for the court expressed by the defendants. This includes public statements by the Prime Minister that the court has no jurisdiction over him and the Attorney General’s interaction with the court which seems to imply the same.
Second there is the nature of the way in which things have been done including late night declarations and decisions being announced in a manner and way clearly intended to hinder and impede the plaintiffs from both challenging them and being able to obtain relief from the court. I do not think it would be going too far to say that the Prime Minister and Attorney General have acted in bad faith throughout the whole period since the election results were announced.
The courts are notorious for frowning on bad faith actors because it shows that those who engage in such acts are doing so deliberately and trying to avoid being held accountable. Using procedure to justify denying the right to seek a remedy from the court is the height of bad faith.
The fact that the Attorney General walked out after having been told by the Court that it was proceeding on a Pickwick basis underlines her distain for the court. It also highlights the fact that regardless of what the court said she was not accepting its authority.
To paraphrase Fiame Naomi Mataafa the court is the last bastion to which citizens must be able to go to in order to demand and obtain justice. When justice is denied that is something that threatens the rule of law as it cries out to remedied – the scales must be balanced and if it is not possible this is like a raw unhealing wound that festers.
Justice must be done, and the rule of law must be restored and maintained.
For reference we republish in verbatim Press Releases by the Supreme Court and the Attorney General, both issued Sunday 23 May 2021:
Supreme Court Statement following Sunday’s Special Sitting. Issued 4:22pm Sun 23 May 2021:
The Supreme Court took the unusual step of sitting in Chambers this morning to hear an Application from the Applicants FAST & Ors v Attorney General & Electoral Commissioner, made on a without notice basis, seeking Orders that the Court’s decision delivered on 17 May 2021 be certified according to its terms; and further application for an Order that the Proclamation dated 22 May 2021 which purports to countermand an earlier Proclamation dated 20 May 2021 calling for the convening of Parliament on 24 May 2021 be adjudged to be unlawful.
The Court directed that although the Applications were made on a without notice basis, the applications were, notwithstanding that today is a Sunday, were served on the Attorney General who has in the past appeared for the Head of State and Electoral Commissioner.
The matter was called this morning before the Court, the Attorney General rose to her feet and advised the Court that she had not been properly served with the Applicant’s applications, could not be served on a Sunday and that she had not read any of the documents. The Attorney General advised the Court that she had no instructions and was not appearing on behalf of any party. She took her leave.
Mrs Heather-Latu and Mr Latu spoke to their Application and the Court is satisfied that the terms of the 17 May 2021 judgment can be certified and should be certified by the Registrar. Further the Court has made an order on an interim basis that any purported revocation of the Head of State’s Proclamation dated 20 May 2021 summoning Parliament, is inconsistent with this Court’s declaration (judgment dated 17 May 2021 para 94(4)) and Article 52 of the Constitution, and is thereby unlawful and of no effect.
The Orders are to be served on the Clerk of the Legislative Assembly. The Registrar is directed to bring the Orders to the immediate attention of the Head of State and the Attorney General.
Press Release Issued by Attorney General 5:21pm Sun 23 May 2021.
PRESS RELEASE –
“AG WALKED OUT IN MIDDLE OF COURT”
This Press Release explains why the Attorney General “walked out” in the middle of “a urgent hearing that was presided over by Chief Justice His Honour Satiu Simativa Perese, Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala-Warren, on Sunday morning”.
1. To set the record straight, this press release contextualises Media Reports that I walked
out of a hearing of an application by FAST this morning.
2. Today, Sunday 23rd May 2021 at around 9am, Mr George Latu and a process server, turned up at my home, in an apparent attempt to serve an Application to the Court, on me. This attempt was apparently made on the instructions of the Court Registrar.
3. Out of courtesy to Mr Latu, a senior lawyer, my husband invited him to wait at the conference room of his office next door to my home, where I eventually met with Mr Latu.
4. I explained to Mr Latu that I was meeting him out of professional courtesy. He attempted to serve documents on me. I explained that I was refusing service and he said that he was acting on the instructions of the Court Registrar. I was not shown any such instructions and presumably, Mr Latu wanted to convey that message, because Rule 26 of the Civil Procedure (Supreme Court) Rules 1980 clearly prohibits service on a Sunday. Rule 26 reads;
a. When process may not be served or executed – No process shall be served or executed on a Sunday, or on Christmas Day, Good Friday, or Anzac Day. If any
process is so served or executed, the service or execution shall be void and have no effect.
5. Additionally, it seemed less than appropriate that I be summoned to a Court Hearing
without knowledge of the substance of the matter.
6. Mr Latu reiterated to me that he was only acting on instructions to serve the matter on me, before apologising for disturbing me on a Sunday.
7. I advised Mr Latu that, as courtesy to the Court, I would attend Mulinu’u for an in chambers meeting (i.e. a meeting in the Judge’s Chambers) to identify what the matter is. I had still not been served with any documents and Mr Latu and his process server
were invited to leave.
8. I arrived at the Court House at around 11:30am and waited, with Mr Latu and Mrs Heather-Latu, inside the Registrar’s Office. I enquired with the Registrar as to whether we would proceed to an in-chambers meeting and she confirmed that that was so.
9. We were called to the in-chambers meeting, which was actually being held inside the
Supreme Court #1. Upon the arrival of the Justices, the Deputy Registrar called out the
name of the matter, something more consistent with a hearing rather than an in-chambers
meeting. I rose to enquire whether we were there for an in-chambers meeting or a court
hearing to which the Honourable Chief Justice confirmed it was in-chambers.
10. I rose again to advise the Court I was not there to represent anyone as I had not been served and had no instructions.
11. Again the Honourable Chief Justice stated that I was served on a Pickwick basis and that
the application was essentially an ex parte, and whether I wished to respond or not, it did not matter. I rose again to object but was told to sit down.
12. The Honourable Chief Justice then invited Mrs Heather-Latu to speak to her application. At that point, it was clear to me that this gathering had been convened for a hearing and whatever application Mrs Heather-Latu had filed was about to start. I then politely rose again to advise the Honourable Court that I would take my leave as I felt it was not
13. I then walked out of what I had been advised to be an in-chambers meeting. It was clear
to me that it was actually a court hearing of an application of which I had not been duly served. Additionally, even if that attempt at service could be construed as service, it would have afforded little or no time for preparation, including taking instructions from the client, basic requirements for a fair hearing.
14. It is my respectful view that the right to a fair hearing and the principles of natural justice have to be duly observed and adhered to for all parties involved in a matter.
15. I will await the proper service of such matter at my Office at level 6 of TATTE Building,
where I will then be in a position to read and understand what has been filed and sought, take instructions and be in a position to file an appropriate response.