No new Elections as Head of State Does Not Have the Power – Court Rules

FAST supporters meeting the party leaders and lawyers after the court decision.

By Lagi Keresoma

APIA, SAMOA – 17 MAY 2021: The new elections called by the Head of State for this Friday 21 May, cannot proceed as it was not issued under any legal authority and is accordingly voided.

So concluded the 28 page Supreme Court decision delivered by the His Honour the Chief Justice Satiu Simativa Perese at 3.00 this afternoon.

The other presiding judges were Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala Warren.

“We respectfully tender our view and judgement that the Head of State does not have the power to call for a fresh elections as he did on 4 May 2021 for 21 May 2021,” said His Honour.

The decision also highlighted that:

• There is no lawful basis for the Head of State calling for a new election on 21 May 2021;
• The writ issued under section 52 of the Electoral Act 2016, dated is not issued under any legal authority and is accordingly voided;
• The declaration made above means the result of the April 2021 general election and the relevant writs associated to the results continues to be valid and lawful;
• The Head of States attention is directed to the requirements of Article 52 and the Head of States obligations under the Constitution to call a meeting of the Legislative Assembly within 45 days of the holding of the general election.

The Faatuatua i le Atua Samoa ua Tasi – FAST party challenged the Head of States proclamation as unconstitutional and unlawful and was heard by the Court last Friday.

His Honour stated that the Head of State provided his reasons for the proclamation and acted on what he believes is the best outcome for Samoa.

“There is no basis for any suggestions that the Head of State acted with malevolence,” His Honour stated.

Based on the issues raised from this legal challenge, His Honour said that the Court is mindful that the office of the Head of State should have access to public funding and resources and independent legal advice.

“In the 21^st century, the burden of the office has greatly increased, and much of the work is concerned with implementing the Government of the day’s advice, and in that regard it is appropriate for the Head of State to receive advice from the Attorney General as mentioned in Article 44(2),” said Chief Justice Satiu.

Laaulialemalietoa Leuatea Polataivao (on megaphone) with lawyers thanking the supporters.

As for costs, $20,000 talā is awarded to the applicants to be paid within 30 days of the delivering the decision.

Outside court, the FAST Party Deputy leader, Laaulialemalietoa Leuatea Polataivao said the decision has opened everything and he acknowledged the country’s support and prayers as well as the lawyers.

FAST leading counsel, former Attorney General, Taulapapa Brenda Heather Latū said the decision means no election as proclaimed by the Head of State.

In front of the Court front steps, hundreds of FAST supporters in bright red were waving Samoan flags and singing hymns once the decision was relayed to them.

La’auli and the lawyers met with the supporters and thanked them for their support and invited them all to the FAST party camp for the evening prayer service.

It was the FAST party’s second victory in court in one day. Later in the evening, care taker Prime Minister said on the state owned radio that the decisions will be appealed.

Tuilaepa also did not acknowledge the 26 members FAST claims to have saying HRPP has 25 members to FAST’s 24 plus two Independents.

FULL DECISION HERECOURT DECISION FAST Party & Ors v Attorney General & Ors (Decision)