Ongoing uncertainty may well now justify the doctrine of necessity: Samoa Supreme court


The current (political) climate of ongoing turmoil and uncertainty, may well now justify the operation of the doctrine of necessity to validate the events of the 24 May 2021 swearing-in outside the chambers of Samoa Parliament so that the business of lawful governance of the nation can proceed.

So ruled the Supreme Court late Thursday on the motion by the Attorney General to stay the Supreme Court 28 June decision to convene parliament within seven days and failing to do so will justify revisiting the issues of necessity and whether the doctrine to be invoked and declare the swearing on of 24 May valid.

On Monday, 05 July, the last of the seven days the court ordered for Parliament to convene, the Attorney General filed to appeal the decision. They also filed an application direct to the Court of Appeal “without following the normal process of first seeking leave from the Supreme Court which means the Court of Appeal is now seised of these proceedings.”

On Tuesday, 06 July, the respondents, the FAST Party and others, sought further court orders to enforce the 28 June 2021 decision and asked for a hearing this week.

According to the Supreme Court decision, [7]“Considering time is of the essence and the last minute filing of these challenges, it seems to us the Applicant is procrastinating in an effort to delay expeditious and final adjudication of this matter.

“This is consistent with the latest late night “Proclamation” issued by the Head of State on Sunday 04 July 2021 around 10pm lambasting a judgement that was some six (6) days earlier.”

According to the ruling, [11] “The caretaker Prime Minister and his administration sadly now including the Head of State, which ideally should be a bipartisan non-political office similar to the Governor General of New Zealand, on several occasions since the decision, have publicly defied the Supreme Court Order and continued attacks on the courts integrity and independence. Notwithstanding the fact that it is the court in any functioning democracy that is charged with the responsibility of interpreting the Constitution and pronouncing on the law. A fact championed on many previous occasions by the same personages.”

The court also highlighted the doctrine of “separation of powers” which Samoa accepted upon Independence as evidenced by its Constitution.

“There is no freedom if the power to judge is not separate from the legislative and the executive power.”

When the Supreme Court declared void the swearing-in outside the Parliament chambers on 24 May 2021, it said the prevailing circumstances at the time in the courts view, did not justify the application of the doctrine of necessity to validate the swearing-in.

“But the court was satisfied that there were clear attempts to derail the convening of Parliament in accordance with the Constitution. It was also mindful that there may be ongoing efforts to prevent proper Constitutional processes. The indicators were and are obvious to the court and to everyone.”

In its conclusions, the Supreme Court upheld its previous decision that the Head of States Proclamation of 20 May 2021 to convene parliament on 24 May was proper and lawful.

The subsequent Proclamation the Head of State issued on 22 May 2021 to cancel the convening of Parliament, “is in excess of the Head of States Constitutional powers and would therefore be null and void.”

Article 52 of the Constitution gives power to the Head of State to summon Parliament “at such times and at such places” as designated by him is expressly made subject to the proviso that the Legislative Assembly “shall meet no later than 45 days after the holding of the General Elections…”

In its ruling, the court said, “We are severely concerned that some 90 days has now elapsed since the 2021 general elections. This is twice the time mandated by article 52 for Parliament to meet. Hence why we consider time to be the essence in this matter.”

The court has ruled to refer all the applications on this matter to the Court of Appeal of Samoa to hear and finally determine at 1200 noon today, Friday 09 July 2021.

The decision was by the panel of Judges that included Justice Vui Clarence Nelson, Justice Fepuleai Ameperosa Roma and Justice Lesatele Rapi Vaai.