This week, I have chosen to publish in full our written communications to the Commonwealth Secretariat in London, copied to the Commonwealth Parliamentary Association and Inter-Parliamentary Union for the information of our HRPP Supporters.

While the Court hearing is pending on a few issues we have requested the Court to address, I believe the illegal actions taken by the ruling Faatuatua i le Atua Samoa ua Tasi Party in Parliament and the Speaker, Papali’I Ta’eu Masipa’u, which deprived the Human Rights Protection Party Opposition members of their right of Free Speech warrant in-depth consideration also by the Commonwealth Special Committee for advice and any action necessary by CHOGM as well as by the Commonwealth Parliamentary Association and the Inter-Parliamentary Union, to return this Country to the Rule of Law, under which all members of the Commonwealth are committed to observe.

Tuilaepa Sailele Malielegaoi

Leader of HRPP

Letter to the Commonwealth

August 8, 2022

The Rt. Hon. Patricia Scotland, QC

Secretary General,

Commonwealth Secretariat

Marlborough House

London SW1Y 5HX

UNITED KINGDOM

Dear Secretary General,

Let me first congratulate you on your re-appointment as Secretary General at the recent CHOGM in Rwanda. I wish you all the best in your tenure for the next two years.

I write to you on two matters which you may wish to consider as a serious or persistent violation of Commonwealth fundamental political values that do not involve an unconstitutional overthrown of a democratically elected government. No doubt you were made aware of the political turmoil our country went through after the General Elections of 2021 following which, the two main political parties, the ruling Faatuatua I le Atua Samoa ua Tasi (FAST) Party and the Human Rights Protection Party (HRPP), engaged, and continue to be engaged, in litigation on a spectrum of electoral and constitutional issues.

Contempt of court proceedings

1.            FAST brought civil contempt proceedings against me and others for words uttered during the throes of the political crisis, which words were described as scandalizing the Court. A “Harmony Agreement” of 3 February 2022 was entered into between the said political parties aimed at settling all differences and move on for the benefit of our country and people, and to discontinue all actions and prosecutions under the electoral laws. Pursuant to the said Agreement, FAST applied to discontinue the contempt proceedings. The Supreme Court refused to accept the application for a discontinuance.

2.            The Supreme Court delivered its judgement on 23 March 2022. The Court found me and the Secretary of the HRPP, Hon. Lealailepule Rimoni Aiafi (Leala) as well as a third person, guilty of Contempt but did not impose any penalty. The Court took into account the spirit of the Harmony Agreement and agreed with the political parties’ objective that it was time for them to put election arguments behind them.

Complaint for alleged breach of parliamentary privileges and contempt of parliament

3.            On 28 April 2022, the Deputy Prime Minister, Hon. Tuala Iosefo Ponifasio, filed with the Speaker of Parliament a complaint against me and Leala for breaches of Parliamentary privilege and contempt of Parliament based on the words complained of in the Contempt of Court proceedings. Both Leala and I objected to the complaint and submitted to the Speaker that there were no valid grounds under the Standing Orders of Parliament and the Legislative Assembly Powers and Privileges Ordinance 1960 to support the alleged breaches and contempt or support the referral of the complaint to the Privileges and Ethics Committee. The Speaker decided to refer the matter to the Parliamentary Privileges and Ethics Committee.

Facts underlying the serious or persistent violation of Commonwealth fundamental values

Findings and Recommendations of the Privileges and Ethics Committee of Parliament.

4.            The report of the Privileges and Ethics Committee was tabled in Parliament on 24 May 2022. The Committee found that:

•             Parliamentary privileges have been breached and they were also satisfied that the Oath of Allegiance under Standing Order 14 and the Code of Parliamentary Ethics under Standing Order 15, were breached;

•             There was contempt of Parliament (although the conduct constituting contempt was not stated);

•             There was a breach of section 21(1)(d) of the Legislative Assembly Powers and Privileges Ordinance 1960 which states that “A member of the Assembly commits contempt of the Assembly who is convicted of any offence under this Ordinance.” (No reference was made to the conduct constituting contempt under the Ordinance).

•             The penalties for the above matters are provided for in Standing Order 187 (4) and Section 21 (4) and (5) of the Legislative Assembly Powers and Privileges Ordinance 1960 which respectively state:

SO 187(4): Where any member is guilty of Contempt of the Assembly, the Assembly may by resolution reprimand such member or suspend from the service of the Assembly for such a period as it may determine.

Legislative Assembly Powers and Privileges Ordinance 1960 Section 21(4): Where any member is guilty of contempt of the Assembly, the Assembly, by resolution, reprimand such member or suspend him from the service of the Assembly for such period as it may determine;

Section 21 (5) No salary or allowance payable to a member of the Assembly for the members service as such shall be paid in respect of any period during which the member is suspended. From the service of the Assembly under the provisions of this section.

5.            The report recommended:

i.              That the Members of Parliament from the Electoral Constituency of Lepa (me) and the Electoral Constituency of Faleata Number 3 (Leala), be suspended from the service of the Legislative Assembly commencing from the date the Legislative Assembly adopts the Report of the Privileges and Ethics Committee, until such date to be determined (seia iai se aso – Samoan version)).

ii.             That these members of the Legislative Assembly who have been penalized, are not eligible to be paid a salary or Parliamentary allowances in accordance with Standing Order 187 (5).

Standing Order 187 (5) states that “No salary or allowance payable to a member of the Assembly for the member’s service as such shall be paid in respect of any period).

6.            The report also recommended for “this Legislative Assembly and the Speaker to note the proceedings on this decision, to determine a date for the return of the members of the Assembly who have been penalized and especially, the way forward for the future.

Putting the motion to Parliament

7.            During the speeches made by the members of the Assembly on the report, the Prime Minister, Hon. Fiame Naomi Mata’afa, made a vehement personal attack on me in my absence due to COVID isolation requirements as I had just arrived from an overseas trip on the weekend before the Parliament session. She alleged matters which I reject as breaches of Parliamentary privileges or in contempt of Parliament, knowing well that I was not present to answer to her allegations. It was apparent from her irate expressions that she was behind the complaint lodged against me and Leala and our unlawful indefinite suspension which has the effect of unlawful expulsion from Parliament.

The Law and the effect of the indefinite suspension

8.            The suspension of me, Leader of the Opposition and another Opposition Member of Parliament indefinitely, not only prevents the Opposition from having a Leader in the House to lead on responses to Government, but also prevents and deprives the voices of our constituents being heard in Parliament on issues of national importance. This is totally against the principle of representative democracy.

9.            Both Leala and I are also members of Parliament’s Finance Committee. Our suspension, seven days before the budget was tabled and debated in Parliament, was obviously a manoeuvre to remove us before the budget debate. I am a former Financial Secretary, a former Finance Minister and former Prime Minister steeped in the development, as well as the Constitutional and Parliamentary processes for the debate, and passing, of the budget.

10.          The motion and subsequent endorsement by the FAST party of our indefinite suspension as the majority in Parliament, is a serious violation of Commonwealth democratic values in that it is denying the political voice of the Constituents. As Members of Parliament, we are being denied our freedom of expression in the budget debate and other matters of national interest. Although the genesis of the complaint by the Deputy Prime Minister was the contempt of court proceeding, the Prime Minister’s speech in Parliament complained of the manner in which I speak in Parliament. She adamantly stated that Leala and I should be taught a lesson and that our suspension will not be lifted unless we showed remorse or showed that we can act responsibly. The statement by the Prime Minister breaches our privilege and that of every principles of the Commonwealth to allow political space. It is, in my respectful view, a serious violation of Commonwealth fundamental democratic values which is continuing and will continue until the suspension is lifted on an undetermined date. This penalty contravenes Standing Order 187 (4) of the Parliament of Samoa which states that “where any member is guilty of contempt of the Assembly, the Assembly may by resolution reprimand such member or suspend him from the service of the Assembly for such period as it may determine.”

11.          On penalty and notwithstanding the Committee’s recommendation for Parliament to determine a date for our return, the Prime Minister spoke that “it is clear that Parliament has the prerogative on the period it imposes for its penalties. This means, until such date; that, is also the period.” This was a misleading statement of the recommendation by the Committee and a clear contravention of Standing Order 187 (4) in both its Samoan and English versions. Following from that misleading statement, the motion was put in general terms by the Speaker to the House on whether or not to endorse the report of the Committee. The motion was carried resulting in a suspension for an indefinite period of time. Its a reflection of the Prime Minister’s irrational view that Parliament should first monitor if my and Leala’s conduct changes before the matter is brought back to Parliament. This is acting in excess of any power Parliament has and is a serious and persistent violation of our constituents’ rights of representation in Parliament and our rights as duly elected members of parliament.

12.          In the history of the last 16 Parliaments of Samoa, here has never before, such an unlawful suspension.

13.          We have filed legal proceedings to assert our legal rights and challenge our unlawful suspension.

Engagement of the Secretary-General’s Good Offices

14.          I request that the engagement of your Good Offices be invoked to look into this serious violation of Commonwealth fundamental values consisting of the denial of the political voice of our two constituencies through our unlawful indefinite suspension, and the denial or restriction of our freedom of speech (by the Prime Minister saying they will monitor if our behaviour will change). Our indefinite suspension is continuing without any indication on when or whether, it will be lifted. I note that the circumstances you will take into account are not limited to the triggers set out in CMAG’s recommendation in its report which was adopted by the Commonwealth Heads of Government Meeting in 2011.

Unlawful conduct of the Speaker of the House

15.          The Speaker, Hon. Papalii Oloipola Taeu Masipau, stood as a FAST candidate for the 2021 General Elections. It is our respectful view that he has failed to conduct his role as Speaker, independently, of his political affiliations. By his actions, he has committed serious or persistent violations of Commonwealth fundamental values.

16.          On September 14 2021, the XVII Parliament of Samoa convened after the Samoa Court of Appeal overruled a Supreme Court decision and declared that the swearing in of the Speaker and FAST members of Parliament on 24 May 2021, was lawful and constitutional. The elected members of the HRPP, however, were blocked by the Police, in riot gear, from entering Parliament building. The Speaker refused our repeated requests to meet with us and continued Parliamentary proceedings while we sat in scorching heat awaiting a response. HRPP resorted to legal proceedings and the matter was heard on 16 September, 2021.

17.          The issue the Court had to decide was does the speaker have the power to refuse to swear in duly elected members of the Legislative Assembly on the basis that those members did not recognize the legitimacy of the Government?” After dealing with the applicable Articles of Samoas Constitution and the provisions of relevant legislation, the Court ruled that the Speaker did not have unfettered discretion to operate outside of the law and that it was imperative on him to swear in the duly elected HRPP members of Parliament forthwith. It was only after the Court’s ruling, that the Speaker swore in the 18 HRPP members of Parliament on 17 September 2021.

18.          Notwithstanding the Supreme Court’s ruling refered to in paragraph 17 hereof, the Speaker repeated another serious violation of Commonwealth fundamental democratic values which persistently denied political representation and the constitutional right of a member of Parliament to participate in Parliamentary proceedings. He refused to swear in an HRPP Member of Parliament, Aliimalemanu Alofa Tu’uau. Aliimalemanu was declared an MP under special measures introduced under Articla 44 (1)a of the Constitution for women’s representation in Parliament to be no less than 10% of seats in Parliament, after the 2021 general elections. Her warrant of appointment of 20 April 2021 was challenged and the appellate court decided that Aliimalemanu’s appointment was not to take effect until all the election petitions and any by-elections were concluded.At the conclusion of the by-elections, a warrant was issued by the Head of State on 30 November 2021 declaring Aliimalemanu and another woman MP, Fa’agasealii Sapoa Feagia’i, Members of Parliament. Faagasealii was elected to fill a seat vacated by an elected woman MP who resigned.

19.          The Speaker has a mandatory duty under the Constitution and Standing Orders of Parliament to administer the Oath of Allegiance at the first appropriate opportunity after the Member’s election. However, the Speaker, on 10 December 2021, decided to delay the swearing in on the basis that the validity of the Warrant of Appointment of the two woman MPs was disputed.

20.          The Speaker’s decision was challenged by Aliimalemanu and Fa’agasealii. The Court declared  that there was no Constitutional or other legal basis by which the swearing in should be further delayed or deferred.

21.          Secretary-General, these are only three examples of the Speaker’s lack of independence and unlawful conduct in the performance or non-performance of his duties, which have resulted, among other things, in depriving our constituents of proper representation in Parliament.

22.          The differential treatment with which the Speaker treated the complaint against me and Leala and a complaint lodged by Leala against the Deputy Prime Minister and a complaint by another HRPP MP against the Chairman of the FAST party, reflects serious violations of democratic values of the Commonwealth.

Engagement of the Secretary-General Good Offices

23.          In view of the described unlawful conduct of the Speaker in violation of Commonwealth democratic values, we foresee many more instances where abuse of the law and Standing Orders will continue. We seek the engagement of your Good Offices.

24.          I am copying the Secretary-General of the Commonwealth Parliamentary Association for any necessary action they may deem appropriate.

We shall be pleased to provide any further information required by your Office in order to fully consider these issues.

Tuilaepa Sailele Malielegaoi

Leader of HRPP

Letter to Patricia Scotland

The Rt Hon. Patricia Scotland Q.C.

Secretary General

Commonwealth Secretariat

Marlborough House

London SW1Y 5HX

UNITED KINGDOM

Dear Secretary General,

As former member of the Commonwealth Ministerial Action Group for two Terms representing the Pacific leaders that investigate reported instances of breaches of Democratic values and the Rule of Law that the Commonwealth members uphold, I wish to request the CMAG to consider in your next meeting Agenda the case of Samoa and the abuses of power by the present FAST Government in the suppression of the rights of free speech of members of our opposition Human Rights Protection Party.

You are already aware from the exchanges of communications in the early stage of this crises in our normally Peaceful State of Samoa. I attach for your ease of reference my letter to you dated 8 August 2022, for which I do not have a response from your office.

With the Faatuatua i le Atua Samoa ua Tasi Government now in power by virtue of the Court of Appeal decision on 23 July 2021 which overturned the earlier Supreme Court’s ruling that the FAST Government swearing in ceremony of 24 May 2021 was unconstitutional and illegal, a series of actions taken by the Government that were deemed illegal included the following:

1)            Denial of the Swearing of myself and 17 elected members of my opposition Party on 14 Sept 2021. The Police barricaded the Parliament grounds to prevent us from entering our Parliament House for the swearing ceremony. We asked the Court for its intervention and we were accordingly sworn in on 17th Sept 2021.

2)            Using its majority in Parliament, FAST again introduced a motion which suspended me as leader of the opposition and another of our members without pay indefinitely, that is, for eternity. The Court again ruled the suspension decision of Parliament illegal and we again resumed our duties as members of our Parliament.

3)            At the following meeting of Parliament, I and my colleague who were suspended were subjected again to another suspension motion by the Government, this time for 2 years suspension with-out pay. We have again sought the Courts ruling and a hearing has been set now for March 13th 2023.

4)            Several weeks ago a further motion was approved by FAST dominated Parliament for an amendment to our Standing Orders to ban me as leader of the Opposition and my suspended colleague from conducting any kind of interview with the Media. It also gave power to the Speaker to choose the leader of the Opposition.

5)            At about the same time, our PM removed the President of our Land and Titles Court by a letter from her, a power which only Parliament on a 2/3rds majority can do.

6)            These issues are with our Courts to decide. Recently Fiji Parliament also suspended the leader of the opposition for Three years but with pay. Fiji seems to follow our example.

7)            I am requesting CMAG to send over an investigative official to investigate our complaints and to report back for your decision. The normal checks and balances between 3 branches of Government in Samoa have been breached. Dictatorship does not occur only through the use of Arms. It can also be achieved through the tyrannical abuses of power of the majority, bending the Rule of Laws to achieve their evil intention. I will also send this note to the Secretary of CPA for its attention and any necessary actions.

Tuilaepa Sailele Malielegaoi

Leader of HRPP