Was the Swearing In Legal? AGs Argue For and Against

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025 May 2021, Apia Samoa. The Caretaker government hit back immediately after the swearing in ceremony held on Parliament grounds on Monday 24th May where FAST party leader Fiame Naomi Mataafa was sworn in as Prime Minister and 12 other elected FAST members, sworn in as Cabinet Ministers.

Attorney General Savalenoa Mareva Betham-Annandale issued a public notice declaring the ceremony unconstitutional. A second press release from the Office of the Attorney General outlined sections of the Constitution requiring Parliamentarians to be sworn in by the Head of State. It is now also confirmed that the Attorney General has acted on the threat, “persons involved in these unlawful proceedings are subject to civil and criminal prosecution under the law”.

Former Attorney General and lawyer for FAST Taulapapa Brenda Heather-Latu has also issued a statement outlining the legal basis of the process followed, which Taulapapa says, is justified according to the doctrine of necessity because Parliament is constitutionally required to convene within 45 days of a general election. Hitting back to Savalenoa’s threat of pressing charges, Taulapapa questioned the professionalism of the AG and says it is ironic the AG would threaten treason charges against validly appointed Members of Parliament, Prime Minister and Cabinet.

The Legal Arguments

Article 52

Taulapapa reiterates in her statement that Parliament MUST convene within 45 days after a general election, under Article 52 of the Constitution, ie by Monday 24 May 2021.

We observe that the issue of Article 52 is not addressed in the Attorney General’s releases, nor in the Public Notice issued by the (retired/still) Speaker of the House Leaupepe Toleafoa Faafisi.

We do see Article 52 being specifically mentioned in the Supreme Court decision handed down by the 3-judge bench of Chief Justice Satiu Simativa Perese, Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala-Warren.

In delivering the judgment that declared unlawful a proclamation by the Head of State for Samoa to return to the polls, the Supreme Court goes further to remind the Head of State of Art 52 and makes this order under 94(4) of their judgment:

94(4). The Head of State’s attention is directed to the requirements of the Art 52 and the Head of States obligation under the Constitution to call a meeting of the Legislative Assembly within 45 days of the holding of a General Election.

The Supreme Court again refer to Article 52 in their judgment of Sunday 23rd May 2021.

Warrants of Election

Prior to the 26 members being sworn-in, warrants of election dated 12th and 16th April signed by the Head of State declaring 51 Members of Parliament elected following general elections were read out loud.

Taulapapa reminds us that, “those warrants were declared valid last Monday”. The same Supreme Court decision mentioned above that ruled out fresh elections, reinstates the official results for Samoa’s 2021 General Elections.

94(1). There is no lawful basis for the Head of State calling for a new election on 21 May 2021;
94(2). The writ issued under s.52 of the Electoral Act 2016, is not issued under any legal authority and is accordingly void;
94(3). The declarations made above mean that the result of the April 2021 General Election and the relevant writs associated to the results continue to be valid and lawful;

Proclamations to Convene Parliament

The Head of State issued a Proclamation dated 20 May 2021 to convene Parliament, (although it wasn’t published until Friday afternoon, 21st May).  One day later, on Saturday night, an email from the Press Secretariat informed Samoa that Parliament would not convene on Monday 24th May.  As if it were just another meeting cancellation amongst colleagues and not the swearing in of 51 elected members representing every citizen of Samoa, the Proclamation (dated 22 May 2021) suspends the official opening of Parliament “until such time as to be announced and for reasons that I will make known in due course“.

Taulapapa summarises it in three points. “The HOS made an Order to call Parliament on 20 May 2021. He purported to revoke that on 22 May 2021. We had that revocation set aside as unlawful on 23 May 2021”.

The Supreme Court Orders of Sunday 23rd May issued by the Chief Justice together with the same team of Justice Tafaoimalo Tologata Leilani Tuala-Warren and Justice Vui Clarence Nelson; found the first HoS Proclamation lawful – it met Article 52 of the Constitution, and it followed the direction in 94(4) of their recent judgment.

The Attorney General has since issued a release that she was bullied into Chambers on Sunday

Taulapapa says that if Parliament had not convened, “it would well have resulted in the Head of State calling for fresh elections using the normal timeframes of 7-9 months, leaving the Caretaker in place to clean out the pantry over an 8 month period, which was the caretaker plan after the illegal snap election’ didn’t eventuate”.

The Swearing In Ceremony

The Attorney General sets out detailed and specific parts of the Law with respect to the swearing in of Members of Parliament. She details the process if the Head of State is not available, and so on and so forth. However, Taulapapa states in her release, that none of that matters because the process followed was under extraconstitutional circumstances in accordance with the doctrine of necessity.

The Attorney General states:

“The Speaker before he or she assumes the duties of the Speaker must be sworn in by the Head of State: (see Article 49 (2) of the Constitution). The Speaker then swears in the Member of Parliament: (see Article 61 of the Constitution). The Council of Deputies may take over the role of Head of State but only in the circumstances where the Head of State is incapacitated or absent (not in the Samoa): (see Article 23 (2) of the Constitution). However, the Chief Justice may take over the duties of the Council of Deputies, if no Council of Deputies has been elected: (see proviso to Article 25 (1) of the Constitution.)  Those circumstances have not occurred. The Head of State is neither incapacitated nor absent; and there is an elected Council of Deputies, present.”

Taulapapa says none of the above applies to this swearing in because the caretaker Prime Minister, as caretaker Minister of the Legislative Assembly ordered the Head of State and the Clerk of the Legislative Assembly not to assist.

Taulapapa says the Speaker issuing a notice to cancel everything is in breach of Supreme Court Orders of the 17th and 23rd of May, and he should be held in contempt.

Taulapapa says that where the normal procedure cannot be followed for whatever reason….the elected Members acting together as the representatives of the people can then resolve to make alternative arrangements to address the refusal of public officials to perform their functions.

“Logically if the HOS could stop a swearing in of a Government he didn’t like, could the country be held to ransom ? No… so let the people’s representatives decide what they will do”.

“The Head of State and Council of Deputies were asked and refused to assist. The Clerk of the House was asked and refused to assist, and Parliament House was locked”.

Taulapapa says members assembled at Mulinuu at 5pm on the afternoon of Monday 24th May 2021, were declared elected by warrants issued 12th and 16th April – and there being 26 of them, they satisfied a quorum.

“They resolved to appoint an Acting Clerk to preside until the Speaker was chosen by resolution. The speaker then swore in the rest of the Members, as well as the Prime Minister and Cabinet Ministers,” said Taulapapa.

“Due to the refusal of the officeholders to assist, the Assembly made the necessary resolutions for other persons to step in their place,” adds Taulapapa, “and those decisions are justified according to the doctrine of necessity”.

The Speaker

What we know as a general public is that Hon Leaupepe Toleafoa Faafisi publicly retired before the dissolution of Parliament, having announced that he would not be contesting his seat at the 9th April elections. We also know that the invitations for the XVIIth sitting of Parliament widely distributed on Friday 21st May were invites from the Clerk of the Legislative Assembly, not the former Speaker who suddenly reappeared on Sunday to issue a Public Notice.

However the Attorney General now says Leaupepe remains the Speaker even after the resolution of Parliament, and the Court has no jurisdiction over him, offering the below legal arguments.

“In terms of the Speaker of the Legislative Assembly and his powers after dissolution of Parliament, he retains all his powers as Speaker until a new Speaker is sworn in: (see section 30 of the Legislative Assembly Powers and Privileges Ordinance 1960 (the ‘Ordinance’). The actions of the Speaker, in the exercise of his or her power, are not subject to the jurisdiction of the Court: (see section 31 of the Ordinance.) Those powers include the authority to grant, or refuse, entry to the Chambers or Precinct of the Legislative Assembly: (see sections 14 and 15 of the Ordinance). “Chamber” is defined to mean ‘a place in which the Legislative Assembly sits in session for the transaction of business.’ Whereas “Precinct” refers to accommodation for strangers, members of the public, media- to name a few; and the entire building in which the Chamber of the Assembly: (see section 2 of the Ordinance. Also see Standing Order 191(1)(e)). Any attempts by any other persons to conduct a swearing in of any Member of the Legislative Assembly is unlawful, and unconstitutional”.

What Now?

With both sides of the political saga now declaring themselves the presiding Government, and each side declaring the others’ actions as unlawful, more Court cases can be expected before the people of Samoa can finally see stability following its April 9th General Elections.

It seemed notwithstanding the legal arguments, that public servants continue with their work and it is business as usual in government offices, Ministries and State Owned Enterprises this week.


Sina Retzlaff