"Unconstitutional" orders could be challenged in Court, lawyer warns

A senior lawyer in Samoa has warned that the Government could be taken to Court by anyone who believes certain State of Emergency (S.O.E.) orders has caused them undue costs or problems, despite the nation being coronavirus-free. 

The prominent member of the legal fraternity offered the opinion on the basis of anonymity for fear of reprisals and negative impact upon her "clients seeking the positive exercise of Government approval."

The Samoa Observer has chosen not to name the lawyer but to share the legal opinion amidst growing concerns from the community about the way the Government is coming up with S.O.E. restrictions and changing them at will. 

According to the lawyer, among the orders in place to protect Samoa from COVID-19, several could be considered a misuse of the emergency provisions. The lawyer argues that if the orders do not relate to protection Samoa from COVID-19 and are not “necessary or expedient” they are open to legal challenge and could be struck down as unconstitutional, having fallen outside of the Proclamation of Emergency’s powers.

“It is arguable that orders which: limit customary observances like funerals and celebrations; impose a Sunday ban on trading and commerce;  impose a Sunday ban on swimming and impose restrictions upon shops, businesses and sole traders to trade during specific times and days do not come within the purpose and authority of the Proclamation,” the lawyer said.

On top of this, the frequent alternations to the state of emergency orders have created a litany of problems for business owners and civilians alike.

“The constant change of unexplained, illogical, anti-business and pointless restrictions upon hotels, tourist ventures, small shops, supermarkets small businesses, farmers and people who sell produce to live, where no Covid-19 is present, has created extensive financial loss at every level of the community; failed businesses and failing businesses, increasing and unmanageable household debt; struggling families; hunger; depression; increased domestic violence and crime and social conflict.”

Based on this, the lawyer argues there is a reasonable legal basis to challenge any or all emergency orders that don’t fall under protecting Samoa from the pandemic.

The orders could be considered “unconstitutional, ultra vires and illegal with a potential claim for damages for the losses suffered by all companies, business and people who have suffered loss as a result of the enforcement of such illegal orders as proposed by the Cabinet.”

Under the Constitution of Samoa, the Head of State is authorised to declare a state of emergency with a Proclamation of Emergency if they believe that Samoa’s security or economy is under threat by “war, external aggression, internal disturbance or natural catastrophe.

“The orders must relate to the purpose of the Proclamation i.e. protecting against Covid-19 and for no other purpose, otherwise the orders may be challenged for being ‘ultra vires’ or outside the authority of the Proclamation and thus the Constitution, and may be potentially declared invalid and void should their validity be tested before the Supreme Court.

“Proposing Orders which are clearly outside the scope of the Proclamation would either be a mistake, or a cynical attempt to illegally expand the powers authorised by the Head of State.”

During the state of emergency, usual law-making processes are suspended in order to allow the necessary actions to be taken while danger is imminent. 

This makes tabling the orders before Parliament and debating them in the House essential, the lawyer says, in particular when it comes to restrictions on liberty and detention.

But in Samoa today this process is not necessarily as beneficial as it ought to be, they add.

“The benefit of this process where 47 out of 50 members belong to the same party which (illegally) restricts the free speech and expression of the views of its members is virtually removed.”

On whether the global coronavirus pandemic justifies a state of emergency there is no debate, but whether the emergency orders are being treated legally is under question.

The Head of State is supposed to personally review whether the state of emergency is still necessary and that emergency orders are “necessary or expedient.” This is a Constitutional requirement, the lawyer explains.

“There should be new emergency orders following each proclamation and not just a repeat of old emergency orders which include a week of fasting and prayer held in March – which suggests that the orders are not properly and competently revised and updated for the current circumstances, and contributing to the sense that they are not being properly and legally made with due and proper consideration.”

Recently the restrictions on trade and movement under the state of emergency have come under fire by the private sector and members of the medical community for being unnecessary and economically damaging.

The restrictions include limiting Sunday trade to just supermarkets, small stores, hotels and restaurants, each with their own sets of rules about how and when they can trade. Swimming at the beach or in rivers is banned on Sundays, and family celebrations of all kinds are restricted to just 100 guests and must finish by 10pm.

In an interview with the Samoa Observer, two expert epidemiologists Professors Nick Wilson and David Murdoch from the University of Otago said in the absence of COVID-19 thanks the Government's rapid response in March, the people of Samoa should expect to be able to move around freely.

“Given the success of Samoa’s border closures I am a bit surprised that you are not enjoying normal life within your country with no internal restrictions,” Professor Wilson said.

Professor Murdoch, who is an infectious disease specialist, said preventing transmission through social distancing measures is important but that should be done across the board if there is evidence of community transmission of the virus. In Samoa there is currently no community transmission, nor has there ever been.

“Is it going to be more transmissible at night? No, I don’t think so. Is there something unique about the day or night or different times of the week? No,” he said.

Hotels, beach fales and tourist attraction operators across Savaii and Upolu have been asking for Sunday trade and weekday opening hours to return to normal, as they depend on weekend business to keep them afloat in the absence of tourism.

To date several properties have said as much on the record, many others say they would rather keep their concerns to themselves for fear of further restrictions on business.

While introduced under the state of emergency for the prevention of COVID-19, Prime Minister Tuilaepa Dr. Sailele Maliegaoi has spoken publically about his religiously motivated desires behind the changes to Sunday trade, which so far include letting no-one but supermarkets and small stores open (which may operate from 3pm only).

In June, he told Radio 2AP he wants to crack down on “devilish ways” in Samoa like prostitution and abortion, and explicitly said he is using the state of emergency to get Samoan people used to having no commerce on a Sunday.

“We are trying to get us back; for now we are using the orders under the coronavirus state of emergency.

“Let us go back to keeping the commandments from God. There are rights that we should adhere but there are also rights that are questionable on my mind that is not relevant to God’s commandments.”

Tuilaepa said he has instructed the Attorney General’s office to draft a law to see Sunday restrictions made a permanent feature of Samoan law.

The Attorney General has not responded to requests for confirmation that this work has begun.

Read the full memo written by the senior lawyer in response to questions from the Samoa Observer:

07 August 2020

Proclamation of Emergency, Emergency Orders and the Constitution

Background
Where are the powers from?

The source of Emergency Powers is found in Part X of the Country’s Constitution which in summary:

1. Authorises the Head of State if His Highness is satisfied and acting in his discretion (after consultation with Cabinet)

‘…, that a grave emergency exists whereby the security or economic life of Samoa or of any part thereof is threatened, whether by war, external aggression, internal disturbance or natural catastrophe…,

May by proclamation called a Proclamation of Emergency declare that a state of emergency exists.  [Article 105(1)].

2. The proclamation remains in force for 30 days and the Head of State may issue a further proclamation before the current one expires but there is no legal basis to extend any Proclamation beyond 30 days

Comment
Because a Proclamation suspends the effect of existing laws, the process is intended to ensure that every time a Proclamation is made the current circumstances are reviewed by the Head of State and the Government to ensure that the state of emergency is necessary AND the Emergency Orders are each necessary.

3. The Proclamation ‘shall forthwith be laid before the legislative Assembly - if in session, if not in session then the Head of State appoints the time for the Assembly to meet acting in his discretion.

Comment
Tabling the Proclamation before Parliament is not to seek their approval as the Proclamation has already been made under the Constitutional Authority of the Head of State, but is to ensure that the country’s MP’s (and thus the representatives of all the electoral constituencies have the opportunity to debate and express their views on whether the State of Emergency is needed and whether the Emergency Orders are necessary on behalf of the community. It is during this debate that MPs would have the opportunity to express their views about the need for the Orders.

4. The Head of State during the Proclamation may make emergency orders which empower such authorities to make regulation rules or by laws.

5. The Emergency Orders are made by the Head of State as appeal to him to be necessary or expedient for:

• Securing the public safety;
  
  
• The defence of Samoa;
  
  
• The efficient prosecution of any war in;
  
  
• For maintaining public order which Samoa is involved and the supplies and services essential to the life of the community;
  
  
• Safeguarding the interests and maintaining the welfare of the community.

Comment
The Orders must relate to the purpose of the Proclamation ie protecting against Covid-19 and for no other purpose, otherwise the Orders may be challenged for being ‘ultra vires’ or outside the authority of the Proclamation and thus the Constitution, and may be potentially declared invalid and void should their validity be tested before the Supreme Court

Proposing Orders which are clearly outside the scope of the Proclamation would either be a mistake, or a cynical attempt to illegally expand the powers authorized by the Head of State.

6. The Emergency Orders must also be laid before Parliament when they are made (if Parliament is in session) or as soon as Parliament next meets.

Comment
Again as the Orders allow the suspension of the usual laws particularly in relation to detention and restrictions on liberty, the Orders made under the Proclamation must be tabled before Parliament to allow the views of MP’s to be aired….although the benefit of this process where 47/50 members belong to the same party which (illegally) restricts the free speech and expression of the views of its members, is virtually removed.

7. Detention under Emergency Orders is dealt with by an Advisory Board who must afford such people a proper hearing and cannot be detained longer than 3 months.  

Analysis
The Proclamation of Emergency is an extremely serious power which is exercisable by the Head of State at his discretion after being advised the recommended action by Cabinet.

In deciding whether to make such a Proclamation, the Head of State must decide that:

A grave emergency exists; or
The security or economic life of Samoa is threatened; or
The threat is from a certain category of events: war, external aggression, internal disturbance, natural catastrophe.

In the current case – a global pandemic would meet the definition of a ‘natural catastrophe’ and thus would justify the Proclamation first made in March 2020, and the specific measures under the resulting Emergency Orders which are taken to prevent the risk and actual spread of Covid-19, particularly to restrict the entry of persons outside the country and subject them to a mandatory quarantine period of 14 days (except the few arrogant entitled and selfish rule breakers) and the restrictions on the borders and those measures have worked successfully to protect the country from injection or the risk of infection.

Emergency Orders are then made at the discretion of the Head of State and after having declared the state of Emergency, which must relate directly to the purpose and reason for the emergency.

The same process of consideration for the Proclamation is also required for the Orders to ensure that any and all limitations picked upon personal rights and freedoms any and all limitations placed upon personal rights and freedoms are ‘necessary or expedient’ which means each and every Emergency Order must be linked and is required to the purpose of the Proclamation ie to protect the country from the risk from or actual infection from Covid-19.

To be consistent with the requirements of Part X of the Constitution there is a requirement for the Head of State to be personally satisfied that the Proclamation is still necessary and that each and every Emergency Order proposed by Cabinet is ‘necessary or expedient’ and is the Constitutional requirement to ensure such Orders are in fact valid.

A new Proclamation is required every 30 days after the Head of State has considered the current circumstances and in his discretion considers one is required.

There should be new Emergency Orders following each Proclamation and not just a repeat of old Emergency Orders which include a week of fasting and prayer held in March – which suggests that the Orders are not properly and competently revised and updated for the current circumstances, and contributing to the sense that they are not being properly and legally made with due and proper consideration.

It is arguable that:

• The Proclamation of Emergency and the purpose and reason for a State of Emergency to continue remains necessary to protect the country against the introduction and spread of Covid-19.  
  
  
• In that regard, any measures in the Emergency Orders which relate directly to that purpose are therefore consistent with the Constitution.
  
  
• However, any and all Emergency Orders which are not required for the protection of Samoa from Covid-19 and the country’s international borders or the quarantine of returning residents and all measures taken to prepare for any possible entry or contamination,  would not be ‘necessary nor expedient’ and would therefore open to legal challenge as being ‘ultra vires’ which means the Orders would be outside the authority of the Proclamation and open to challenge and to be struck down as Unconstitutional, invalid and therefore void.

The use of Emergency Orders (in circumstances where Samoa is Covid-19 free) to impose limitations on the rights and freedoms of Samoa citizens and residents for other or ulterior purposes or motives, would clearly be a misuse and abuse of the Emergency provisions under the Constitution, and it is arguable that Orders which:

• limit customary observances like funerals and celebrations;
  
  
• impose a Sunday ban on trading and commerce;
  
  
• impose a Sunday ban on swimming;
  
  
• Impose restrictions upon shops businesses and sole traders to trade during specific times and days;

 do not come within the purpose and authority of the Proclamation.

The constant change of unexplained, illogical, anti-business and pointless restrictions upon hotels, tourist ventures, small shops, supermarkets small businesses, farmers and people who sell produce to live, where no Covid-19 is present, has created: 

• Extensive financial loss at every level of the community
  
  
• Failed businesses and failing businesses
  
  
• Increasing and unmanageable household debt
  
  
• Struggling families
  
  
• Hunger
  
  
• Depression
  
  
• Increased domestic violence and crime
  
  
• Social conflict

What are the Remedies?

There is a reasonable legal basis to challenge all Emergency Orders which do not relate to the protection of the country from the pandemic as being Unconstitutional, Ultra Vires and Illegal with a potential claim for damages for the losses suffered by all companies, business and people who have suffered loss as a result of the enforcement of such illegal Orders as proposed by the Cabinet.