A notice of motion for a Declaratory Judgment and Restraining Orders against the caretaker government of Prime Minister Tuilaepa Sa’ilele Malielegaoi has been struck out by the Supreme Court.
The decision was delivered by Justice Elizabeth Aitken yesterday, who ruled that the motion filed by the leader of the Tautua Samoa Party, Palusalue Fa’apo II, was political.
She therefore accepted an application by the Assistant Attorney General, Muriel Lui, for the motion to be struck out. Ms. Lui had argued that the lawsuit was a gross abuse of Court processes and should be dismissed.
In delivering her decision, Justice Aitken ruled that the proceeding was politically motivated.
“Having carefully considered the submissions, I have no doubt at all that the proceedings brought by the Leader of the Opposition are politically motivated,” said Justice Aitken.
“It is an understatement that I struggle to understand the argument from the applicant.
“As best as I could (the claim) is once the Minister of Finance resigns in April 2014, the entire Cabinet should’ve resigned and by failing to do so they have acted unlawfully.
“Such an argument has no foundation at all…article 33 of the constitution specifically provides for the resignation of Ministers without any such consequences.
“As for argument they (Cabinet) have collective responsibility, they were regrettably incoherent and could be comprehensively irrelevant.”
Justice Aitken said the applicant and his counsel have no understanding of the law in relation to their proceedings and had made no attempt to understand it before filing proceedings.
She pointed out there was no statement of claim filed in Court – only a short affidavit from the applicant referring to resignation of former Minister of Finance, Faumuina Tiatia Liuga and general misuse of public funds.
Lawyer Leota Suatele Manusegi represented Palusalue. He was assisted by Lei’ataualesa Jerry Brunt.
About the Government Proceedings Act, Justice Aitken said it covers proceedings of the same nature.
“The act expressly prohibits the Court from granting injunctive relief against government,” she said.
“In section 12 of that Act, it is clear and when counsel of applicant was confronted with it, he was unaware of the Government Proceedings Act as a whole and fails to appreciate its significant.
“Unsurprisingly he was unable to respond when given the opportunity (to respond).
“Counsel (for applicant) was repetitively pressed for reasons of delay of the proceedings he could not or would not provide any explanation.
“The absence of such explanation, the incoherent nature of the argument, the lack of understanding of procedure requirement, the profound lack of any legal basis and the nature of submissions filed leave me no doubt that these proceedings have been moved for politically motivation.”
Lastly, Justice Aitken had put it to Leota that being a lawyer in the matter was a clear conflict of interest with him being a candidate in the upcoming General Election.
Leota responded that he is an independent candidate and his motive was to achieve “justice for the people of Samoa.”
Filed in the Supreme Court on 10 February 2016, the motion, among other things, had asked the Court to prohibit “all members” of Cabinet or the caretaker government “from applying to be candidates in the upcoming General Election.”
Palusalue had sought a Declaratory Judgment to say that the caretaker Cabinet “does not have the legal capacity to conduct the executive functions of government of Samoa.”
According to the Motion, the respondent’s legal incapacity is evolved from the violation of the constitution of Samoa clause 32 (1) by violating the doctrine of Collective Responsibility as provided by the constitutional provision as cited above.
The section of the Constitution referred to here reads: “(1) There shall be a Cabinet of Ministers, who shall have the general direction and control of the executive government of Samoa and shall be collectively responsible therefore to Parliament.”
Additionally Palusalue sought orders to;
(a) Restrain the Cabinet and or Caretaker Government in its role as a Caretaker Government from exercising the executive power of the Government of Samoa (“the government”).
(b) Restrain the Respondent from making any decision affecting the administration of the government.
(c) That the restraining orders in (a) and (b) above are back dated to the day when the violation of the Constitution occurred through the resignation of the former Minister of Finance, infringing the doctrine of collective responsibility as provided in clause 32 (1) of the Constitution.
(d) Restrain all members of the Respondent including the former Minister of Finance from applying to be candidates in the upcoming General Election.
(e) That the Head of State to appoint a new Caretaker Government.
(f) Directing that the costs of the Applicant of and incidental to this application including Solicitor – Client costs, and the order thereon be fixed and be costs in the cause payable by the Respondent or as the case may be.”