Samoan law lecturer at Auckland University Fuimaono Dylan Asafo writes for the Samoa Observer about the Head of State's Sunday night order and its effect on our current political impasse. 

The Head of State’s proclamation for parliament to meet on 2 August 2021 is unconstitutional for two very clear reasons.

Firstly, the Head of State’s justification for their proclamation that Samoa’s two dominant parties “don’t have a majority” to lead is categorically false. It is clear to all that FAST has 26 seats, while HRPP has 23 seats (now 21 with another H.R.P.P. seat voided today). Therefore, the Head of State’s proclamation is an attempt to spread misinformation and cast doubt on the legitimacy of FAST’s majority and the results of the general election of 9 April 2021 as a whole. 

Secondly, the Head of State does not have unlimited powers to call parliament whenever he sees fit. In fact, all of his powers are subject to a number of important limitations and conditions stated in the Constitution. 

In regards to the Head of State’s specific power to call for parliament to convene – this power is provided in Article 52 of the Constitution, which states in full: 

“52. Meetings of the Legislative Assembly: 

The Legislative Assembly shall meet at such times and at such places as the Head of State appoints from time to time in that behalf by notice published in the Samoa Gazette and recorded in the Savali: 

PROVIDED THAT the Assembly shall meet not later than 45 days after the holding of a general election and at least once in every year thereafter, so that a period of 12 months shall not intervene between the last sitting of the Assembly in one session and the first sitting thereof in the next session.”

Here, we can see that even though the Head of State does have the power to appoint the time and place for parliament to convene – he can only exercise this power provided that (in other words, ‘on the condition that’) they do so within 45 days of the general election. 

As we all know, the Head of State himself deliberately violated Article 52 when he willfully refused to be present for the meeting on 24 May 2021 - which he originally called for himself in his valid and lawful proclamation of 20 May 2021 (which complied with Article 52

Therefore, the fact that the Head of State is now relying on (and misinterpreting) the very article in the Constitution that he chose to violate is deeply ironic and concerning. It shows his blatant disregard for the Constitution and mistaken belief that he is above the law. However, because Samoa is a democracy with a Constitution, the Head of State cannot pick and choose which lines in the Constitution he wants to follow, and he cannot just pretend that important lines (stating the limits and conditions of his powers) do not exist. 

The Head of State has also claimed that: “The Supreme Court has no jurisdiction to order the convening of Parliament as I, the Head of State of the Independent State of Samoa, have the powers to appoint the time and place for the meeting of the Legislative Assembly”. 

This claim is wholly incorrect and is a deliberate, if not desperate, misrepresentation of Samoa’s constitutional arrangements as a constitutional democracy. These arrangements follow that the constitutional duty of the judiciary is to interpret and apply the Constitution (see Article 73(1)) and to hold the executive branch (including the Head of State) accountable whenever they breach the Constitution and encroach on the powers of parliament or the judiciary. This function is essential for preventing government corruption and tyranny. 

Therefore, because the Head of State violated Article 52 of the Constitution, the Supreme Court had every right (in fact, the lawful duty) to interpret the Constitution, uphold the Head of State’s proclamation of 20 May 2021 (which complied with Article 52) and order parliament to meet within seven days in the unprecedented circumstances.  

It is also very important to note that the Supreme Court and the Court of Appeal have been extremely respectful and deferential to the Head of State to date. Instead of holding the Head of State accountable for his unlawful and unconstitutional actions, the courts have carefully framed the Head of State’s actions as being due to poor legal advice from the Office of the Attorney General and any other potential advisors, not the Head of State’s failings or moral character. 

However, to protect Samoa’s democracy, this great and unreciprocated respect and deference must come to an end. Now, tt is time for the courts – or, more importantly, the people of Samoa - to stand strong, be courageous and take action against the tyrannical actions of the Head of State, Tuilaepa, the HRPP and the Office of the Attorney General (among others). 

In my view, a few of the courageous steps that must be taken are: 

1. As per Supreme Court’s ruling on 28 June 2021, the Courts must now hold the swearing-in ceremony of 24 May 2021 constitutional under the doctrine of necessity and thus recognise the FAST-led government as the legitimate government of Samoa. The court can do this by rejecting any attempt by the Attorney General or others to appeal the Supreme Court’s ruling on 28 June 2021, or it can be done by the Court of Appeal later if the appeal is going to go through. In its statement or judgement, the courts should also call on leaders of Aotearoa New Zealand, Australia and the wider Pacific region to recognise the legitimacy of its decision and the FAST-led government while also recognising that Samoa is an independent and sovereign nation. 

2.The Samoa Law Society, or any of its members, must bring disciplinary proceedings against the Attorney General (and any other relevant lawyers in their office) on the grounds of their professional misconduct under the Lawyers and Legal Practice Act 2014. This misconduct is not only evident in their willful failure to advise the Head of State (and others) to follow the Supreme Court’s ruling on 28 June 2021 (per the Court’s very explicit orders for them to do so)  – but due to a series of efforts by them to undermine the court’s authority and integrity. In my view, the Attorney General’s flagrant disregard for the judiciary, the Constitution and the rule of law should result in their disbarment. 

3. As soon as practically possible, the people of Samoa must call on the FAST-led parliament to remove the Head of State on the grounds of “misbehaviour” under Article 21(1) of the Constitution. Sadly, it is time for all to accept that the honour, integrity and legitimacy of the Office of the Head of State have been compromised by Tuimalealiifano Va’aletoa Sualauvi II and that he is no longer fit and able to hold office. This call for his removal must not be misconstrued as a threat of harm or statement of ill-will towards the current Head of State personally (NOTE: I say this as it is inevitable that certain people will attempt to frame it as such in bad faith). Rather, this call must be seen as a necessary act that recognises the unfortunate, if not tragic, reality that the current Head of State has lost his way. 

4. While every effort must be made to preserve peace and avoid any physical violence or conflict, if the police need to be called upon to allow the FAST-led parliament to convene per the court’s rulings, they are obligated under law to do so. 

Section 5 of the Police Services Act 2009 states that the functions of the police are to “act all times and perform such duties and exercise such powers in accordance with this Act and any other lawful authority, for: the maintenance of law and order throughout Samoa; the preservation of peace in Samoa…and the enforcement of the law generally.” 

Furthermore, the oath of office for police states (per section 7 of the 2009 Act): “I ........ do swear that I will well and truly serve the Independent State of Samoa in the Police Service, without favour or affection, malice or ill will until I am legally discharged; that I will see and cause the peace of the Independent State of Samoa to be kept and preserved; that I will prevent to the best of my power all offences against the same; and that while I continue to hold office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law. So help me God.”

The emphasis on “law” in the 2009 Act is significant. Some may argue (incorrectly) that the police serve at the pleasure of the caretaker Prime Minister and the Head of State. However, this argument is unsupported by any “law” or the Constitution. Article 111 of the Constitution states that “law” in Samoa comes only from custom, parliament and the judiciary interpreting and applying the “law” in times of dispute. The “law” is not created or determined by the executive, especially in situations where the executive is clearly acting unlawfully. 

I propose these steps knowing that at this point, many people in Samoa might understandably be exhausted and tempted to support a new general election to bring this tense and long drawn out constitutional crisis to an end. Indeed, this has been the aim of Tuilaepa and the Head of State for months now. 

However, it is critical for Samoa’s democracy that the outcome of the general election of 9 April 2021 is upheld. This is because the current Head of State, Tuilaepa, the HRPP and the Office of the Attorney General (among others) have made it very clear that they are willing to do whatever it takes to remain in power - including undermining any general election results that are not in their favour. 

In other words, even if a new general election does take place, there is no guarantee that these parties will not just abuse their powers again to remain in power. To put it simply, these parties cannot be relied upon to act in good faith and according to the Constitution. 

Therefore, allowing their desperate attempts to undermine the general election of 9 April 2021 to succeed would give in to tyranny and render Samoa’s Constitution meaningless. The people of Samoa cannot allow this to happen. The time for courage is now.