A.G. says pickwick service unfair

The Attorney General, Savalenoa Mareva Betham-Annandale has alleged a special sitting where she was served on a pick-wick basis on Sunday was unfair and favoured the Fa’atuatua i le Atua Samoa ua Tasi.

A pickwick is a practice whereby the respondent to an exparte application is invited to appear at the hearing without the need to file written submissions. 

In two separate Press Releases from Savalenoa, she said the hearing on Sunday last week breached her rights to a fair hearing.

That matter was in relation to a proclamation from the Head of State on Saturday night suspending the convening of Parliament on Monday this week. 

Savalenoa insisted the sitting breached the Civil Procedures Rules that govern the Supreme Court process. 

But in a written decision of that sitting, Chief Justice, His Honour Satiu Simativa Perese, Justice Vui Clarence Nelson and Justice Tafaoimalo Leilani Tuala-Warren detailed why they proceeded on a pick-wick basis. 

“When a Court proceeds on a pick-wick basis it does so in order to prevent imminent mischief and irremediable harm,” said the Justices.

“The court does so in situations which are time sensitive and where urgent redress is being sought to prevent irreparable and uncompensatable damage.”

The Justices say that the Supreme Court has jurisdiction pursuant to its own inherent jurisdiction and rule 206 of the Civil Procedure to deal with cases that arise and for which no form or procedure is provided under either Judicature Ordinance and Supreme Court Rules. 

According to the decision, the A.G. appeared and advised the Court that she did not appear for anyone but only appeared as a courtesy to the Court. 

“After an exchange with the bench, the attorney elected to leave and did not use the opportunity afforded by the pick-wick service to listen to the application and to make submissions as appropriate to advance the interest of her clients, the government and the Head of State,” the Court ruled.

“But she was given every opportunity to do so which is why the Court ordered copies of this exparte application be provided to her.

“Not served as she maintains because of course documents cannot be formally served on a Sunday as per rule 26 of the Supreme Court Civil Procedure Rules 1980.”

The Court noted the A.G. filed a notice of opposition later on the evening of 23 May 2021. However by that time the Court has already granted the orders sought.

The Justices of the Court emphasised the seriousness of the issue of the 22 May 2021, proclamation suspending the meeting of the Legislative Assembly cannot be overstated.

“The Head of State on 20 May 2021 had ordered that parliament be convened in accordance with the Constitution, steps required to be properly taken by the Constitution follow a general election,” the decision states.

“As constitutional issue the Court is bound in accordance with its sacred duty to uphold the Rule of Law and the Constitution of the Sovereign and Independent State of Samoa to promptly meet and consider whether the Head of States purported suspension of a proclamation properly and lawfully made by him two days earlier was lawful.

“It is accepted that in the ordinary course of events, the Court does not sit on a Sunday and the rules provide that service of a document cannot be made on a Sunday.

“However, we were of the firm view that the importance of the constitutional issue and the urgency of the circumstances called on the Supreme Court to sit and consider the application as a maintenance of the rule of law issue.”

The Court said the A.G. was served on pick-wick basis so that her high office had a chance to become fully aware of the ex parte application and hopefully provide constructive submissions. The Court wishes and needed to hear from the Attorney General, but she declined the opportunity relying on procedural rules.

“We consider such reliance completely missed the point – Samoa was on the verge of entering a new legal and constitutional space,” said the Justices.

“The Court needed to consider whether there was a proper basis for the suspension of the clear requirements of the Constitution.

“In the end we had little option in the absence of the Attorney General and reasons from the Head of State but to consider this issue from the inferences that could be properly drawn from the proclamation document itself which purports to rely on the constitutional authority of the Head of State and article 52 itself.”

Lastly, the Court reiterate they do not make any criticism of the Head of State but it is clear that he had been poorly advised and then left undefended before the Court.

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