Court declares F.A.S.T. Government; impasse over

By Matai'a Lanuola Tusani T - Ah Tong 23 July 2021, 12:00AM

The Court of Appeal ruled on Friday that the Faatuatua ile Atua Samoa ua Tasi (F.A.S.T.) party is the new Government of Samoa's bringing an end to three months of a national political stalemate.

The court, the highest in the country, found that a Government swearing-in ceremony conducted by the party itself on the lawns of Parliament on 24 May was in fact legally binding. That conclusion had the effect of immediately installing F.A.S.T as the nation's new Government and declaring that it had been so for nearly two months, with the Human Rights Protection Party (H.R.P.P.) of unlawfully occupying the office of the naton's "caretaker Government". 

The decision apparently brings to an end the 22 year reign of Tuilaepa Dr. Sailele Malielegaoi as the nation's Prime Minister. 

Under the court's order he will be succeeded by Samoa's first female Prime Minister, Fiame Naomi Mataafa.

In their conclusion, the Court of Appeal said for the avoidance of doubt Samoa has had a lawful Government since 24 May, namely that led by the F.A.S.T. party.

The decision also ends nearly four decades of uninterrupted political dominance by the Human Rights Protection Party (H.R.P.P.), which first won Government in 1982.  

A three-decade veteran of Parliament and former member of Tuilaepa's Government and Deputy Prime Minister, she quit the ruling party last September. Fiame took a stand over what she said were plans to dismantle the rule of law in the form of three proposed bills that were passed into law last December. Critics, including the nation's judiciary, said the court system overhaul and constitutional amendment undermined the independence of the judicial branch in Samoa's system of Government.  

Fiame led the newly created F.A.S.T. party to a slender one-seat victory 26-25 at the 9 April national elections after convincing independent candidate Tuala Iosefo Ponifasio to join its ranks. 

Since then the H.R.P.P.'s position on the floor of Parliament has weakened significantly. The number of seats controlled by the party has fallen by seven to reach just 18 M.P.s following successful post-election legal challenges brought against its election victors. The successful challengers will result in fresh by-election contests for the seats concerned.

The impromptu swearing-in was held on 24 May - the last day on which Parliament was obliged to meet after a national election according to a stipulation in the nation's constitution.

That ceremony, which was boycotted by H.R.P.P. members and the Head of State, was conducted before a majority of Members of Parliament, who were all F.A.S.T. members, and followed a Supreme Court order the day prior ruling that Parliament convene. 

But the ceremony was held outside the Legislative Assembly building after the former Speaker of the Parliament, Leaupepe Toleafoa Faafisi ordered that it be locked down. 

While the swearing-in was previously struck down by the Supreme Court the F.A.S.T. party argued that it needed to be held out of the "principle of necessity", namely to stop the breach of the constitutional requirement requiring that Parliament convene fewer than two months before an election. 

As of Friday it had been 105 day since the nation went to the polls and voted the H.R.P.P. out of Government but Parliament has not yet sat.

The appeal case was bright against a Supreme Court ruling late last month ordering that Parliament convene within seven days and warning that anyone who stood in the way of its orders could fact criminal penalties for frustrating the court's ruling 

The Chief Justice, His Honour Satiu Simativa Perese, alongside Justice Niava Mata Tuatagaloa and Justice Tafaoimalo Leilani Tuala-Warren delivered the decision at 4.30 pm this afternoon. 

The H.R.P.P. and the Head of State have previously ignored parts of court decisions compelling them to convene Parliament. They argued that they could not do so until all Members of Parliament were represented in the Legislative Assembly, particularly women M.P.s who are required to make up 10 per cent of all legislators under a constitutional mandate. 

The panel of Justices said it does not recognise the caretaker Government being legitimate and said it was unlawfully occupying office. 

The court also ruled that the role of the Head of State in swearing-in the Speaker and members of the F.A.S.T. are ceremonial roles to administer the swearing-in where the oath is to the Almighty God. 

The appeal from the Attorney General's Office was dismissed; the cross appeal from the F.A.S.T. party was instead upheld

The question of whether the court had the legal right to force Parliament to sit in cases where the constitution had been violated or its obligations to convene Parliament had been, or whether that power was exclusively vested in the Head of State, lay at the heart of the hearing for the appeal case, held last Friday. 

In that hearing, arguing on behalf of the Samoa Law Society New Zealand Q.C. Robert Lithgow said something had stood in the way of the Legislative Assembly convening despite the court's clear power to force Parliament to sit within a day.

He said the constitution, as the supreme law of the land, could not be “bolted” down by interested parties but it had a broader, higher purpose: protecting the central interests of the Samoan people as expressed by them in their recent election.

This Friday's decision came as a surprise to parties involved in the case, who had previously been under the impression that a decision would not be handed down until Monday next week.

A notification that a decision on the matter had been reached was only sent to involved parties at about five minutes past 4 pm on Friday afternoon with the decision handed down shortly after at about 4.30 pm.

The H.R.P.P. was added as a party to the Supreme Court case but no comment has yet been made by Tuilaepa or any of its other representatives. 

In late May, Tuilaepa promised to abide by any ruling by Samoa's highest court on the issue of the validity of the swearing-in.

By Matai'a Lanuola Tusani T - Ah Tong 23 July 2021, 12:00AM
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