Indefinite Suspension of Opposition MPs Unconstitutional, Court heard

By Lagi Keresoma

APIA, SAMOA – 11 AUGUST 2022: Counsel Peter Lithgow for the Human Rights Protection Party Leader, Tuilaepa Sailele Malielegaoi and Member of Parliament for Faleata No 3 Lealailepule Rimoni Aiafi, presented to Court yesterday that the indefinite suspension of his clients from Parliament was inconsistent with the Constitution of Samoa.

“It is inconsistent with the Constitution because it undermines the rights and duties of an MP to serve his district and people of Samoa,” said Lithgow.

The essence of the argument is the suspension of the Applicants from Parliament for an indefinite time, “in other words, the date when the suspension starts is known but not when it finishes,” argued Lithgow.

Tuilaepa is the first Applicant and Lealailepule as the second Applicant, the Speaker Papalii Li’o Ta’eu Masipa’u as the Respondent and the Samoa Law Society as the Amicus Curiae (an impartial adviser in the court case.)

Applicants seek a Declaratory & Coercive orders
The focus of the Applicants case is for a declaratory order against the Speakers’ decision to suspend them indefinitely on the 24 May 2022.

Lithgow argued that the decision was illegal and unlawful and should be declared void.

They also sought a coercive order to void the suspension and reinstate the Applicants to their full position as MPs as the decision was “unconstitutional and unlawful.”

The other argument was that Parliament breached the principles of natural justice by failing to give Tuilaepa a chance to be heard on the issue of penalty before it was imposed, and that the Speaker was wrong in handing over the complaint against the Applicant to the Privileges and Ethics Parliamentary Committee without legal basis.

The Respondents’ lawyer Benjamin Keith opposed the motion for the orders and sought the Court dismiss the motion and any remedy or review sought by the Applicants.

“Benjamin Keith argued that the motion was wrong in law by trying to get the Court to review or question the responsibilities of Parliament and its Parliamentary Committee.” He also pointed out that the claim by the Applicants that the Court has jurisdiction to hear their claim and grant remedies based on the Constitution, is wrong.

Keith said the Court has no such jurisdiction and that the Constitution upholds the authority of Parliament, and that the motion was an abuse of process, and that the Applicants are questioning internal matters pertaining to Parliament.

A question of privilege and not contempt
During submissions, Lithgow raised the point that when the Speaker handed over the complaint against the Applicants to the Privileges & Ethics Committee, it was on the basis that the Committee will deal with the Applicants breach of Parliament privileges.

However, Lithgow said the Committee rather than dealing with the question of privileges, treated it as a contempt of Parliament matter.

“It was referred to the Committee not in relation to contempt but a question of privileges,” said Lithgow.

Prior to the Applicants indefinite suspension, they were both found guilty of contempt of Court hence the complaint against them to the Committee.

Seia iai se aso – Until such time & the culture of an apology 
Central to the argument of “indefinite suspension” was its interpretation and both Chief Justice Satiu Simativa Perese and Supreme Court Senior Justice Vui Clarence Nelson touched on the  link of the words “until such time” to a cultural aspect.

“It is almost three months since the suspension, and the Court wondered why the Applicants did not consider an apology as a remedy for their reinstatement to Parliament.“.

Chief Justice Perese said Tuilaepa has over 30 years of experience as an MP, yet there was no evidence of any steps taken to remedy the situation.

Keith’s local counterpart Taulapapa Brenda Heather-Latū also pointed out that an apology in the Samoa culture no matter how serious a matter, is well accepted.

On the interpretation of “until such time” Vui said it has a much broader meaning and is common in a village council setting and often used by orators.

He pointed out the Speakers’ exact words in his decision were “seia iai se aso”.

He said it could mean another day, or another time indicating it could be tomorrow or next week, but there is a certain time, which is different from an indefinite time.

“Until such time does not mean indefinite,” said Vui.

Hard to say the apology was fully heartfelt
Lithgow informed the Court that Lealailepule did apologize in Parliament, however the Christopher Finlayson QC for the Samoa Law Society who acted as an Amicus Curiae, questioned the sincerity of the apology.

Based on the wording in Samoan of the apology recorded in the Hansard, Finlayson said it was very difficult for him to determine if Lealailepule’s apology was sincere and genuine.

He said if the Applicants apologized, that would have been their way back into Parliament.

“They did not need the Legislative to tell them what to do, they knew what needed to be done,” said Finlayson.

The Court’s decision is reserved.

The presiding Judges were Chief Justice Satiu Simativa Perese, Senior Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala-Warren.

Counsels for the Applicants were Peter Lithgow and Aumua Ming Leung Wai.

Counsels for the Respondent were Benjamin Keith, Taulapapa Brenda Heather Latu & Matafeo George Latu.

Christopher Finlayson QC and Alex Sua for the Samoa Law Society.