Court
The Court did not Rule to Stop the Convening of Parliament
By Lagi Keresoma
APIA, SAMOA – 25 JUNE 2021: His Honour the Chief Justice, Satiu Simativa Perese has emphasized that they did not declare that the convening of Parliament relies on the activation of Article 44(1A) (that deals with the additional woman member of parliament).
His Honour today delivered their ruling on a declaratory motion filed by the FAST Party Leader, to clarify the Court of Appeals ruling of 2 June 2021 that had been subject to various interpretations by the caretaker Prime Minister and his party against the transition of power.
“Any interpretation or argument to the effect that the Court did rule on the interaction of article 44(1A) and 52 and what those rulings meant, are wrong,” he ruled.
He also clarified that “any suggestions that both parties the Faatuatua I le Atua Samoa ua Tasi (FAST) and the Human Rights Protection Party (HRPP) both hold 26 seats each, is also wrong.”
“FAST had 26 seats and HRPP 25. A further seat may be added following any by-elections, but there is no certainty that Article 44(1A) is required if a woman secures a seat in the by-election,” His Honour said.
The Court also found the claim against Aliimalemanu unnecessary as there was no real reason for her to be involved.
He pointed out that the Court of Appeal’s ruling set aside the appointment of Aliimalemanu under Article 44(1A).
The clarification ruling came about when the Applicants (FAST) raised the concern of misinformation supposedly used to justify the retention of power and failure of the previous Government to transition power to FAST.
FAST counsel Benjamin Keith pointed out that the ruling on the 2 June 2021”is being held out in public as saying something that it has not.”
The Court noted that the only affidavit before the Court in relation to the issue at hand was by FAST leader and Prime Minister elect Fiamē Naomi Mata’afa.
Tuilaepa gave Fiamē conditions to convene Parliament
Fiamē’s affidavit referred to her meeting with the Caretaker Prime Minister Tuilaepa Sailele Malielegaoi who would agree for Parliament to meet if:
- Parliament will convene if Aliimalemanu is allowed to sit as a member of Parliament;
- He believes her appointment is still valid and HRPP retains the number of 26;
- That if Fiamē were to agree to have Ali’imalemanu in, Parliament cannot convene unless all current election petitions and by-elections are done and;
- He will remain in office as custodian Prime Minister until that time.
The Chief Justice said Fiamē’s affidavit deserves a response although counsel for the Attorney General’s office Fauimaono Sefo Ainuu said “it’s irrelevant.”
“We consider the making of that submission to be an exercise of poor judgement,” said Chief Justice Satiu of the Attorney Generals view.
He said the uncontested evidence before the Court which is highly relevant to the issues the Court must decide is that there was a meeting between Fiamē and Tuilaepa where Tuilaepa asserted that:
- HRPP continues to have 26 members despite the Court of Appeal decision on 2 June 2021 and;
- That the Constitution does not permit Parliament to convene until all election petitions and any by-elections are done.
“This evidence supports the Applicants case that the terms of the 2 June 2021 decision are not being obeyed, and whilst there may be negotiation tactics in the assertions, nevertheless, they are what they are, and they are unchallenged therefore unacceptable misinterpretation of the law,” said the Chief Justice.
The ruling also touched on whether the Court of Appeal has the power to reopen its decisions.
Constitution applies and so does the rule of law
“Samoa is in uncharted legal and constitutional waters, but what is certain is that the Constitution applies and therefore the rule of law applies,“ His Honour said.
“We consider that there is insufficient evidence before the Court to enable us to determine whether any of the persons who have provided interpretation contrary to the terms of paragraph 20 of this decision were made maliciously, carelessly or otherwise,” said the Chief Justice.