Head of State’s flawed Parliament proclamation

Neroni Slade, one of Samoa's most eminent international jurists, whose experience includes being a judge on the International Criminal Court in The Hague, Samoa's former Ambassador to the United Nations and a long-serving Attorney-General, wrote to the Samoa Observer on Tuesday to express his reading of the constitutional issues at the heart of Samoa's current political crisis.

Dear Sir,

Re: Head of State Proclamation on August sitting of Parliament: your issue 5 July 2021

It is wrong and completely unfair to impute ‘disregard and disrespect’ to the Supreme Court Judges and the judgement delivered last Friday, 28 July 2021. Before open vilification, the judgment deserves to be read properly and in its entirety.

Key parties were well represented, and their submissions heard and dealt with carefully and in detail.

The Attorney General’s application, motivated by the need to ensure ‘legal certainty’, was that the swearing-in of FAST representatives, conducted in the absence of the Head of State, was unconstitutional and unlawful. The Court agreed and held the swearing-in to be void and of no effect.

However, the Court was also concerned that the clear mandate of Article 52 of the Constitution (that the Legislative Assembly “shall meet not later than 45 days after the holding of a general election”) remained unsatisfied. As the judgement noted, “it is beyond time to give full force and effect to the Head of States’ Proclamation of 20 May 2021 convening the 17th Parliament of Samoa.”  The Court accepted the concession from counsel for the Attorney General that “expeditious action” would be required by all “relevant actors.”    

The Attorney General’s application was brought under the Declaratory Judgments Act 1988, an Act which enabled the Court to issue discretionary declaratory orders “necessary in the circumstances” and which are binding on the Government. 

As detailed in the judgment (para. 66 (iv) (1) and (2)), the first two of the declaratory orders read as follows:

1. The Proclamation of the Head of State dated 20 May 2021 is to forthwith be given full force and effect by the Applicant (the Attorney General) without further delay or procrastination; 

2. The Applicant to advise the Clerk of the Legislative Assembly and all other relevant parties or “relevant actors” as the case may be to comply with the said Proclamation and convene the Parliament of Samoa within 7 days hereof so that Parliament may discharge its constitutional and other functions in accordance with Part V of the Constitution and the Standing Orders of Parliament. 

From the above, it is clear that the orders issued by judgment of the Court are based entirely on the fact of an existing proclamation made by the Head of State. 

And that being so, it is difficult to see how there can be any basis for any suggestion of “disregard and disrespect” of the powers and the position of the Head of State or of the Court’s judgment amounting to a threat or usurpation of such powers and position. Rather, what seems to be at issue (as, correctly, reflected in declaratory order (2) above) is not so much the “power” but the action required for the discharge of a solemn constitutional responsibility at a most critical time in the life of the nation.

In this judgement the Bench comprised senior, highly experienced and careful Judges. Samoa is fortunate in that by any measure, Judges of the Supreme Court are, in my personal estimation, of the highest standards. They deserve the fullest public respect and support.  

Judges are the public face of justice, the true guardians of the rule of law. As explained in the judgment (para. 58), the rule of law subjects and governs “one and all from the Head of State down to the ordinary citizen”. There is not one above the supremacy of the rule of law and of the Constitution.

The Constitution of Samoa is for “we the people”, created by and given to the people through a hard-fought and highly democratic process. Samoa was never a monarchy, does not need or deserve monarchical powers.

From one who has legal and judicial experience of Samoa and internationally.

Tuiloma Neroni Slade   


    

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