The panel of Supreme Court Justices who ordered the convening of Parliament within seven days say the Head of State's recent late night proclamation is “in excess of his constitutional powers” and his office should be bipartisan.

The conclusion reached by the Court was embedded in their ruling delivered on Thursday, where it referred a stay of execution on the Parliament meeting brought by the Attorney General to the Court of Appeal for adjudication.

The Attorney General, Savalenoa Mareva Betham-Annandale had filed for the stay of execution on the Parliament convening until the Court of Appeal determined their appeal. Justice Vui Clarence Nelson, Justice Lesatele Rapi Vaai and Justice Fepuleai Ameperosa Roma had made necessary orders in the circumstances on Friday last week to convene Parliament within seven days. 

The Court in the same decision declared that the swearing-in by the Fa’atuatua i le Atua Samoa ua Tasi (F.A.S.T.) party on 24 May 2021 unconstitutional and unlawful. 

It also ruled that failure to convene Parliament would constitute a change of circumstances, which would justify the Court revisiting the issue of the “principle of necessity” and whether the doctrine that was invoked is valid so that the business of lawful governance of the nation can proceed.

Parliament did not meet on Monday this week, the date when the Court-ordered seven days for the Legislative Assembly to meet expired.

Instead, the Head of State, His Highness Tuimalealiifano Sualauvi Vaaletoa II defied the Court order, announcing in another proclamation on Sunday night that the Court had no jurisdiction to call for Parliament meeting and that only he alone can set the time and place for the House to sit.

His Highness said that the Legislative Assembly cannot meet as there is no clear majority, revoking his 20th May proclamation and calling for the Parliament to convene on 2 August 2021.

He added that if the matter is not resolved by August “I will consider other options available to me”. 

But the Supreme Court in its judgement handed down on Thursday – that also referred the latest challenge by the Attorney General to the Appellate Court – noted that the Head of State has no powers to avoid his constitutional obligations. 

The Court said any proclamation that is not consistent with his 20th May proclamation and includes the Head of State’s latest late night proclamation on Sunday evening would therefore be declared null and void. 

The Justices also expressed disappointment over the Head of State’s position which they noted should be “bipartisan non-political office similar to that of the Governor General in New Zealand”. 

“As is clear from previous decisions of the Court, the requirement in article 52, Constitution of Samoa is that the power of the Head of State to summon parliament ‘at such times and at such places’ as designated by him is expressly made subject to the proviso that the Legislative Assembly ‘shall meet no later than 45 days after the holding of the General Election," the Supreme Court said. 

“To this end the Head of State properly and lawfully issued his proclamation dated 22 May 2021 summoning a meeting of parliament within the prescribed time. 

“This Court in the discharge of its sworn duty and function to interpret and uphold the Constitution and the rule of law by its judgements dated 17 May 2021 and 23 May 2021 found that article 52 ‘does not give the Head of State the power to avoid or disavow’ his constitutional obligation to summon Parliament no later than 45 days after a General Election.”

Furthermore, the Court said the fact that any subsequent proclamation inconsistent with this constitutional obligation, such as the one issued on 22 May 2021, is in excess of the Head of States Constitutional powers and would therefore be null and void.

“In reaching this conclusion, the Court continues to uphold the lawful and proper proclamation of the Head of State dated 20 May 2021 summoning Parliament,” the Court judgement stated. 

“As stated in the decision of 28 June 2021 at paragraph [61]: Regrettably the Constitutional mandate of article 52 has therefore still not been satisfied which in turn casts serious doubts on the legitimacy of tenure of the present caretaker administration. It is beyond time to give full force and effect to the Head of State Proclamation of 20 May 2021 convening the 17th Parliament of Samoa.” 

Considering time is of the essence and the last minute filing of the challenges, the Court said it seems to the Attorney General is “procrastinating in an effort to delay expeditious and final adjudication of this matter”.

“This is consistent with the latest late night proclamation issued by the Head of State on Sunday 04 July 2021 around 10 pm lambasting a judgement that was issued some six days earlier,” the Court said. 

“On 6th July 2021 the respondents responded to the application and seeking further orders essentially to enforce the decision of 28 June 2021 as well asking for a hearing date this week. 

“Unfortunately, members of the Court have been engaged in hearing ongoing election petitions and have thus been unable to attend to this matter until now.”

The Justices noted that the Head of State “has now taken the extraordinary and unprecedented step of purporting to convene parliament on 2 August 2021 subject to certain conditions being met”.

“If not - he seems to believe he has under the Constitution unlimited powers to ‘consider other options available to me’ presumably including further delaying a convening of Parliament if he sees fit to do so.

“At least that seems to be what he is being advised.

“The caretaker Prime Minister and his administration sadly now including the Head of State which ideally should be a bipartisan non-political office similar to that of the Governor General in New Zealand, on several occasions since the decision, have publicly defied the Supreme Court order and continued with attacks on the court’s integrity and independence. “Notwithstanding the fact that it is the court in any functioning democracy that is charged with the responsibility of interpreting the Constitution and pronouncing on the law.

“A fact championed on many previous occasions by the very same personages.” 

The Supreme Court also addressed issues on the doctrine of the “separation of powers” which Samoa accepted upon independence as evidenced by the Constitution. 

It made reference to the 18th Century French philosopher Charles Montesquieu, who wrote “there is no freedom if the power to judge is not separate from the Legislative and the Executive power”. 

The Court then said: “In the Court's view the circumstances have now materially changed. It is also of the view that the current climate of ongoing turmoil and uncertainty may well now justify the operation of the doctrine of necessity to validate the events of the 24 May 2021 swearing-in outside the chambers of Parliament so that the business of lawful governance of the nation can proceed.

“It is however clearly apparent to us that whatever decision we make will be appealed by the unsuccessful party to the Court of Appeal.” 

The Supreme Court ruled it was “severely concerned that some 90 days has now elapsed since the 2021 general election”. 

This is twice the time mandated by article 52 for Parliament to meet, the Justices said and why they considered that time is of the essence in the matter. 

“If this Court were to hear full submissions and arguments on the various applications filed this would entail further delays,” it stated. 

“The Court would also require time to evaluate all aspects of the matter and render a comprehensive written decision for such to be of any value to the Court of Appeal. 

“We consider the Court of Appeal to be no less capable of undertaking such a task. 

“Being mindful of these factors and the challenges to the orders of the court and the fact that the Court of Appeal is already seised of the issue, we have decided pursuant to articles 70(1)(b) and 75(1)(a) of the Constitution to refer all of these applications to the Court of Appeal of Samoa to hear and finally determine.” 

The Court of Appeal will call the matter for mention on Friday afternoon to schedule a day for the hearing.