Samoa’s Court of Appeal, which sat on Friday with a view to determining a case that could finally settle a three-month long national political impasse, has been told that it has the constitutional power to force Parliament to convene.
The question of whether the courts have the legal right to convene Parliament, or whether that power is exclusively vested in the Head of State, lies at the heart of a question that has left Samoa without a new Government more than 100 days since it held national elections.
Joining the case not as a directly affected party but as an intervenor, the Samoa Law Society (SLS) said the constitution gives the courts the ultimate powers to overrule other parts of the law.
This contradicts claims by the existing caretaker Government and its refusal to commit to a Parliamentary sitting: that only the Head of State and not the court may convene Parliament.
(If Parliament would convene, the election winning Fa’atuatua i le Atua Samoa ua Tasi (FAST) party would have the numbers to form a new Government if Parliament were to convene, ousting the Human Rights Protection Party’s (HRPP) current caretaker Government).
In their submission in the Appeal Court on Friday, Robert Lithgow QC, acting for the SLS said their concern primarily was upholding the rule of law, the bedrock of which is the nation’s constitution.
He said the society supports the courts’ supremacy but does not do so with any regard to the political outcome of its conclusions.
But he said something has stood in the way of the Legislative Assembly convening despite its clear power to force Parliament to sit within a day.
When that order is made, Lithgow said there must be no ‘ifs’ or ‘buts’ and should it wait until a court application is made it is exactly what constitutional law must avoid.
He said the constitution, as the supreme law of the land, could not be “bolted” down by interested parties but it had a broader, higher purpose: protecting the central interests of the Samoan people as expressed by them in their recent election.
Lithgow also submitted that the question of whether the Government changes after forthcorthcoming by-elections may eventually lead to a change in the current composition of Parliament was not at all relevant.
Unlike New Zealand, that doesn’t have a Constitution, Lithgow says the Constitution gives the Court all the powers necessary to make the laws of Samoa work and operate.
“Any law or legislative instrument that is inconsistent with that gives way [to the Constitution],” the lawyer said.
“The courts of New Zealand don’t have the wide power given to you by your constitution.
“In some countries it’s other bodies but in Samoa it’s the court starting with the Supreme Court and then the Court of Appeal…”
The appellant in the matter is the Attorney General; the FAST party is the respondent.
The Attorney General is seeking to stay the execution of part of a decision made by the Supreme Court that ordered Parliament to meet within seven days.
The HRPP, whose leader, Tuila’epa Sa’ilele Malielegaoi has repeatedly refused to concede the court’s ability to deliver orders on Parliament’s sitting, is the other party in the proceeding.
The Law Society, which takes a neutral position in the appeal, submits that Article 52, notes the Legislative Assembly shall meet where the Head of State appoints from time to time.
But Lithgow said at the second part of the Article is a legal concrete wall: one that prevents Parliament from being called more than 45 days after a national election is held.
(In the case of the 09 April election that period expired on 24 May. On that day day the FAST party held its own informal swearing-in ceremony that was also struck down as unconstitutional by the most recent Supreme Court decision calling for Parliament sit within seven days.)
Lithgow agreed that the current delay and lapse in legal obligation would be entirely consistent with the proposition that the Head of State (HOS) is functus officio (past the point at which he may make his own decisions about Parliament sitting) under those provisions.
Lithgow says he means no disrespect to the Head of State’s other rules, such as making advice on emergency powers; but the window in which he was legally obliged to call Parliament to sit has since closed (functus).
In addition to ordering that Parliament sit within seven days, the earlier Supreme Court ruling concluded that an ad-hoc swearing in event held on the lawns of the Legislative Assembly, on the final, 45th day after the election was deemed unconstitutional. The swearing in was attended by 26 F.A.S.T. M.P.s-elect but not public officials such as the Head of State. Their roles, the gathered members voted, would be replaced by a vote, including a vote on who would serve as Parliament’s Speaker or the Clerk of the Legislative Assembly.
The Law Society also addressed the proposition that the election of the Speaker couldn’t have occurred because the Head of State wasn’t present at the purported event.
Lithgow pointed out that under the constitution it is necessary for the Speaker to be elected and deemed to be duly elected and the expression shall be endorsed by the Assembly.
The Speaker’s sworn oath is administered by the Head of State but Lithgow asked the hypothetical question of what should happen if the Head of State is not present for whatever reason.
He says the Speaker’s oath in the constitution, reminds those being sworn in of their allegiance to the Almighty God and the obligations of the office.
The lawyer argued that the Head of State is merely given a ceremonial task to administer the oath; the oath is not to the Head of State himself.
“The Head of State does not add anything to the meaning of the oath or the obligation that the office holder or the elected representative takes on,” said Lithgow.
“What happens if the Head of State and the Executive Council decline to involve themselves for whatever reason and can’t get there [… and serve that] administrative function?
“A normal proposition would be or using fancy legal term of cy-près or nearest or closest. Somebody has got to do it; it doesn’t stop because the oath administrator can’t make it.”
(The cy-près doctrine in English law allows the court to amend a legal document to enforce it “as near as possible” to its original intent in cases when it is impossible, impracticable or illegal to enforce under its original terms.)
The law society submitted that the cy-pres doctrine could be something that the Court of Appeal considered as part of its decision on the issue of who was to administer and take the oath; and if the actions of FAST party in choosing their own administrator were insufficient.
Lithgow says there has to be a meeting of the Assembly in the future because none has taken place already, long past the date at which it is legally mandated.
He says the court was entitled to anticipate that the Head of State may not be there and so the question returns to who is going to perform the swearing-in.
He added that this is precisely the reason an anticipatory order made to be sure that the Legislative Assembly convenes.
“The Government is a creation of the Legislative Assembly and the Legislative Assembly comes from the constitution not the other way around,” the Law Society’s barrister said.
“Obviously we can look at what happens to date with many frustrations and to have opinions about what other people should and shouldn’t have done.
“The answer has to be found in the constitution.
“[The] Supreme Law of Samoa creates the Head of State; the Head of State who holds that office from time to time has powers and [its office] also has simple administrative tasks to be part of the ceremonial chain…”
But refusing to administer the oath simply is not a constitutional option available to the Head of State; he is bound to act within the rules of the constitution.
“You [the Courts] on the other hand have original appellate jurisdiction to exercise all judiciary powers necessary to administer the laws of Samoa,” he said.
“So bluntly that would be Samoa requires a Legislative Assembly to meet within 45 days, when it’s not done who has the backup authority to make sure it happens then that must be you.”
Another issue addressed by the Samoa Law Society in their submission were the orders from the Supreme Court that ordered convening of parliament.
The society said the Supreme Court may have worked on the assumption that various constitutional actors and the Head of State would obey the court and obey the order.
Parliament did not, as ordered, convene within the seven days the Supreme Court ordered but its orders were instead appealed by the Attorney-General who sought to recall the order.
That motion is being supported by the HRPP party.
The Law Society is saying that actions from the constitutional actors speak louder than words and that those involved simply refused to do what the court had ordered.
“An ordinary language is what more do you need to know if they won’t do it,” said Lithgow.
He said this could possibly allow the court to reach the conclusion that the impromptu swearing-in of FAST. Members-elect outside the lawn of Parliament was in factright because other constitutional actors would go on to frustrate the demands of the law.
That is separate from whether they were compelled by the Constitution, that they had to meet and had had no choice; that it had to be done, he submitted.
“They gave it the best go,” the QC said.
“If they made mistakes [FAST’s] primary proposition is they were near enough because the critical issue is to have a Legislative Assembly.”
He maintained the constitution must not be locked down by interested parties to prevent its job of upholding the interests of the people of Samoa and the expression of their will at the election.
By contrast, in their submission, the Attorney-General’s Office, represented by barrister Paul Rishworth, QC, outlined their grounds of appeal were prompted by the confusing nature of the Supreme Court’s decision, which was handed down last month.
He submitted the orders made were beyond the scope of the Attorney-General to give effect to; she had been instructed to advise other constitutional actors to convene Parliament within seven days.
According to Rishworth the orders made were premised on an unwarranted finding of delay and procrastination and related to a proclamation that related to a passed or lapsed date.
He argued the orders were incapable of being executed because they required a new proclamation which could not be made by the Attorney-General but only the Head of State
“In the court below if the Assembly is invalid then the matter stops there,” the court heard.
“The Constitution speaks on what happens next.
“But surprisingly with the judgment [from the Supreme Court] it not only answered the question, it made further orders about what the Attorney-General should do.
“The framing of the case by the court below is that the Attorney-General was not representing the government but representing something else on a personal capacity other than for the Government.
“We strongly oppose that and appeal the orders as [ambiguous in regard to] the nature of the Attorney-General…”
Rishworth maintained that the Attorney-General did not appear in her personal capacity but only in that of her role as the Attorney-General under the constitution.
He said the Attorney-General brought the current proceeding to seek clarity and there was nothing inconsistent about having done so.
He submitted that the Supreme Court was given a question to answer on the validity of the swearing-in and it was wrong to deliver other orders that were not part of that sole question (such as when or if Parliament should convene).
Lithgow also made submissions for the HRPP.
He said the party supports the motion from the Attorney-General for the court to recall part of its decision relating to the sitting of Parliament and whether it required that the “doctrine of necessity” should be revisited or if the Attorney-General could be ordered to advise key actors about the ruling
Lithgow also told the Appellate Court that there is a new question that needs to be answered: namely, when the constitution’s counting down of the 45 days post- election sitting requirement begins and what happens should it pass by.
He said the question of uncertainty cuts both ways saying that the Head of State’s political judgement is consistent with his decision on when to calculate the 45 days.
The HRPP lawyer also submitted that the Attorney-General while providing legal advice to key constitutional figures should not being equated as being their representative to the proceedings.
His point is that if the court is to make orders on the Government and other parties that are not represented in the appeal it without them having a say in the matter.
But Chief Justice, Satiu Simativa Perese, told the lawyer that the Attorney-General was instructed to serve all parties with the current proceeding so they could choose whether to follow them or not.
He said that all the parties including the Head of State, caretaker Prime Minister and others were served and were given the opportunity to be party to the case.
Only the Speaker on behalf of his lawyer Ruby Drake appeared out of courtesy but did not want to be party to the proceeding.
The FAST overseas lawyer that participated via video link Ben Keith had contested the arguments from the Attorney-General
Keith said the orders from the Supreme Court were neither excessive nor unfair to the Attorney-General
He said there were proper grounds on which the court could exercise its discretion to afford such declaration as it considered necessary.
The grounds for the declarations as made, he said, were raised through the respondent’s pleadings and were in issue in argument before the Court.
More concretely, he said, the circumstances giving rise to the declarations and the continued non-compliance with article 52.
“There is no imprecision or confusion in the three orders they required mainly that the Parliament convene in accordance with Article 52,” he said.
“The orders made by the Court below were necessarily made in terms of the constitutional role of that office under article 41.
Even if a new proclamation had been required the premise of the orders of the court below is that the head of State will act in accordance with the orders of the Court including where necessary with the advice of the Attorney-General…”
The Apellate Court was chaired by Chief Justice Perese sitting with Justice Niava Mata Tuatagaloa and Justice Tafaoimalo Leilani Tuala-Warren.
Its decision has been reserved and will be delivered before 02 August.
SOURCE: SAMOA OBSERVER/PACNEWS