Samoan Head of State’s proclamation wrong, expert says


A legal expert has added his voice to those who say Samoa’s Courts have the final say on constitutional issues, not the Head of State or the Government.

Samoa’s FAST party holds 26 seats, to the HRPP’s 21 seats. But there are more electoral petitions to come.

Earlier this week, the Head of State issued a proclamation claiming the Supreme Court had usurped his powers by ordering parliament to sit; and that the Court had shown flagrant disregard, and disrespect, of the powers of the Head of State.

That came after the Supreme Court ruled parliament must sit by Monday 05 June, and warned any attempt to obstruct that sitting would be considered as contempt of court and parliament.

Parts of the 28 June decision are being appealed by the caretaker Human Rights Protection Party. The HRPP is also asking the justices involved in the 28 June decision to recuse themselves on any contempt issues (that matter is adjourned until 12 July)

But John Upton QC told Midday Report the Head of State’s (HOS’s) claims about his legal powers and constitutional authority were wrong.

“With due respect to the Head of State… the courts have the final say on Samoa’s constitution. The parliament makes the law, the courts actually interpret it. In this case, we’re looking at the interpretation of the constitution, and the court has spoken last week in what was a clear and thoughtful decision,” he said.

Upton said he’s been involved with Samoa and its constitution “over the years”, and says it requires the HOS to accept the advice he’s given.

“He’s clearly acting on advice… but the advice … is not good advice. It’s clearly wrong in my view,” he said.

Parliament needed to sit urgently, he said.

“It’s absolutely critical they get on … [because] they have to pass a budget. Without a budget, whatever money is spent is spent illegally. And the people who are involved in spending the money from the prime minister down are personally liable for the consequences.”

While the 28 June Supreme Court ruling said the FAST party’s impromptu swearing-in ceremony on parliament’s grounds was illegal, it spelled out an alternative way forward if Parliament did not sit in accordance with its instructions.

Upton said the court could now reconvene to validate the arguments around the doctrine of necessity, a well-known doctrine of law that had been successfully used in Fiji and Grenada.

“The Court… could actually say what happened in the swearing in the tent in front of parliament was valid,” he said.

“They have got power to get things on track if they think it appropriate,” he said.