An independent Head of State’s Office necessary

Early this week on Monday – when the Supreme Court ruled on the constitutionality of the Head of State’s decision to declare the dissolution of the 9 April General Election results – there was a paragraph on the second last page of the 28-page judgement.

The paragraph was dedicated to the Office of the Head of State and highlighted the Court’s concerns about its independence and the need for the Office to have access to “independent staff and resources” including legal advisors.

“Finally, we note that, arising from this constitutional issue, it may be timely for the office of the Head of State to have access to publicly funded but independent staff and resources, including legal advisors,” stated the Supreme Court judgement. 

“In the 21st Century the burden of the Office has greatly increased. 

“Much of the work of the office 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, Art. 41(2); however, we consider that it would be prudent for the Head of State to have available extra support staff particularly when the need arises.”

In recent weeks, in the lead-up to and after the 9 April 2021 General Election, we have published editorials that expressed the need for our public office holders to remain impartial during and after an election period in order to retain the integrity of our government systems.

Regardless of how we view the position of the Head of State, whose appointment is often seen as ceremonial with limited powers, it remains at the apex of Samoa’s constitutional framework and as such should be independently funded and resourced in line with the Supreme Court’s recommendations.

And while Samoa’s Constitution is explicit on the Head of State “in the performance of his or her functions shall act on the advice of Cabinet, the Prime Minister or the appropriate Minister” (Article 26), having the funding and resources at one’s disposal to be able to make the best decision for the country and its citizens’ benefit remains critical.

Even giving the Office of the Head of State its own annual funding under the Executive Government’s budgetary process, which is subject to the Parliament during the budget session, would be a step forward.

Ultimately, we want an Office of the Head of the State that is ready to tackle the challenges of the 21st Century, and the constitutional crisis that the country now finds itself embroiled justifies the need for the reforming of the Office.

And with the dust yet to settle in the current crisis with the Attorney General, the Electoral Commissioner and the Human Rights Protection Party appealing Monday’s Supreme Court judgement in the Appellate Court, the jury is still out on whether the Head of State, His Highness Tuimaleali’ifano Vaaletoa Sualauvi II was privy to the best legal advice prior to his 4 May 2021 nationwide address that revoked the 9 April 2021 General Election results only to be overturned by the Court on Monday.

If the Appellate Court upholds the decisions of the Supreme Court early this week then someone should be held responsible for giving the O le Ao o le Malo the wrong advice which further plunged the country into the current crisis.

The Supreme Court on Monday cited the need for independent legal advisors without pointing its finger at any of the parties involved in that proceedings. 

And we acknowledge the wisdom of the Court in not going down that path in order to maintain the peace and civility in what is already a fragile environment.

Right now there is a yearning amongst citizens for our public officials to put the interest of the nation and more importantly the Constitution of the Independent State of Samoa first.

The separation of powers doctrine – with the Executive, the Legislature and the Judiciary working in tandem – cannot continue to be trampled on by leaders who think they are above the law.

In anticipation of the Appellate Court’s judgement, which hopefully would provide a clear path to conclude the government formation process and the sitting of the new XVII Legislative Assembly, we urge our leaders to exercise restraint while respecting the rule of law.

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