Former Prime Minister Tuilaepa Dr. Sailele Malielegaoi says he has evidence of wrongdoing by the Court of Appeal that removed him from Government but is declining to provide details.

Tuilaepa was asked during a press conference held at the H.R.P.P.’s Headquarters at Petesa on Tuesday about the party’s plans following its political rallies against the court. The party's third political rally is scheduled to take place this week in Savai'i.

He initially said he could not talk about the H.R.P.P.’s future plans. 

“I can’t talk about that right now. Leave that for another time. Yes, we do have plans but I won’t tell you what it is at this time because there are some things I cannot speak on at this time,” the H.R.P.P. leader said.

“Do you not understand what I have said? Do you know that I am a politician? You are not a politician. You are [with the] media, a gossiper. I cannot tell you.”

After he was pressed twice more by the Samoa Observer about what the H.R.P.P. has planned after its rallies, Tuilaepa questioned the reporter, asking: ”What media are you from?”

When the reporter replied they were with the Samoa Observer he launched into a criticism of the newspaper.

“Now I understand. Your newspaper has misled people. The reason I am asking where you are from is because you are new here. This is the practice of this newspaper: what I say is always twisted,” he said.

“All you care about is making money but you are not delivering the message. I will not tell you our plans”.

The H.R.P.P. leader vehemently maintains the decision delivered by the Court of Appeal on 23 July that validated the Government under the Faatuatua i le Atua Samoa ua Tasi (F.A.S.T.) party leader Fiame Dr. Naomi Mata’afa, is not in line with Samoa’s Constitution.

Tuilaepa said the swearing-in ceremony administered by F.A.S.T. attorneys Matafeo George Latu and his wife Taulapapa Brenda Heather-Latu sets a “strange” precedent that paved the way for anyone – Savai’i, Manono or Aleipata if they wanted – to set up a new Government at their own will.

The court decision handed down by Chief Justice His Honour Satiu Simativa Perese, Justice Niava Mata Tuatagaloa and Justice Tafaoimalo Leilani Tuala-Warren, is not anchored by the Constitution, and therefore has no weight and “hangs in the air,” he said.

When development partners learn of the alleged discrepancy, Tuilaepa claims all funding from development’ partners will be cut.

“Savai’i, Manono or Aleipata could install their own Government because of the decision made by the three of them – Chief Justice Perese, Justice Tuatagloa and Justice Tuala-Warren – it can be done because the swearing-in ceremony held under the tent and administered by this married couple, businesspeople,” Tuilaepa said.

“The three judges say it is okay. Savai’i could make their own Government, Manono could too but this is not why we have a Government. That means any Government can easily be deposed…when other countries learn of this, all development funding will be cut. That is why, on our side, we are worried.”

The new Prime Minister Fiame, F.A.S.T. Deputy Leader Laauli Leauta Schmidt, the judges and former Head of State Tui Atua Tupua Tamasese do not understand the gravity of the situation, he said.

He said that funding from development partners are based on an agreement that recipients abide by the rule of law and democratic principles.

Many of the nations who have expressed support for Fiame “are wrong because…they believe the court decision was right but when they know the details,” it will jeopardise funding from development partners, said Tuilaepa.

The only judges who do understand what is in store for the country are Supreme Court Justices Vui Clarence Nelson and Lesatele Rapi Vaai.

“Those are the judges who delivered the decision that this Government is unlawful,” Tuilaepa said.

H.R.P.P. will host another political rally in Savai’i because they believe the F.A.S.T. Government is unlawful.

“When Governments know what is happening in our country, when they understand this, no more funding will be sent and then we will revert back to where we came,” said the H.R.P.P. leader.

The party has no worries for their planned rally in Savai’i. H.R.P.P. is taking their demonstration to the Big Island in response to requests from their supporters in Savai’i, said Tuilaepa.

“This is the reason we are scheduling these political rallies. We tried the angle of a cultural solution. We tried a religious solution. We also hoped that the judiciary will look at our petitions for its consideration that justice will be done. All these three systems failed so what can we do? We must now turn to the political solution and that is what we are doing now,” he said.

“The whole purpose of our previous rallies and the third scheduled for this week is to elaborate and explain very clearly to our people the situation we are in and get the feedback from them. The actual situation we are in now is that now permissible as per the decision of 23rd July for any group to establish their own Government whether it is under a tent or whether it is under a coconut tree. All they have to do is get somebody to swear them in and then report it to Chief Justice Satiu and he will give his blessing.”

The H.R.P.P. is trying to elaborate for the people what will happen but it was impossible while they were in charge of the Government, said Tuilaepa.

They could have been charged and it was conflict of interest for the H.R.P.P. to call out the judiciary while he was in power, he added.

Their party is trying to argue their point “from outside of Government,” Tuilaepa said.

“The decision was to take effect immediately, we did not have time to say hello and good-bye to the staff, we did not even have time to say farewell to the local diplomatic community who live here. It was so hurriedly done and we gathered that the Chief Justice wanted to fly away to attend to some kind of family event, ignoring all together a call by the Head of State that Parliament would be summoned to meet on the 2nd of August…we have to abide by the decision of the Appeal Court,” he said.

“In effect, the Appeal Court forgave the decision by the Supreme Court which declared that the swearing in ceremony that was conducted under the tent was illegal, contravened the provisions of the Constitution, void and therefore had no effect. 

“The Constitution stipulates that the Head of State is the one that would summon Parliament and would perform the swearing-in ceremony. Now a different interpretation has been made by the Chief Justice, Leilani and Niuva. All our legal advisors have informed us that decision has no legal basis at all.”

The only remedy to the “new” and “very wrong interpretation” issued by the Court of Appeal is for Parliament to pass laws to rectify the decision.

It would require a two-thirds majority vote in the House, said Tuilaepa. 

Only H.R.P.P. could pass such laws.

“The F.A.S.T. Government will never do it because they are the beneficiaries of this very strange decision,” said Tuilaepa.

“It’s the kind of decision that has never been made in any part of the Commonwealth and I hope the international organisations and the representatives of New Zealand and Australia will advise their Governments accordingly.”

The H.R.P.P. leader claimed their rallies are a kind of “political action” to let everyone know that their party will stand up to fight for the rule of law as enshrined in Samoa’s Constitution, he added.

“The Constitution that we spent years and years fighting for…fighting for our independence, an independence that would rest on the rule of law and the Constitution to ensure that our people enjoy peace and tranquility and to be able to speak our minds freely and to attend whatever faith we believe in and to live happily in this God-given country of Samoa,” Tuilaepa said.

The Court of Appeal, in its 23 July decision, found that the swearing in on 24 May 2021 satisfied the requirements of the Constitution as to the legitimate convening of the Legislative Assembly and the valid appointments made at that meeting.

The justices noted “there is not in reality a lot of difference between the findings of this Court and that of the very learned members of the Supreme Court.”

“Indeed, it can be said that the response to the Supreme Court’s direction to convene Parliament – which that Supreme Court was able to so order, has put a new light on the Head of State’s actions around the 22nd to the 24th May 2021,” the ruling states.

“We consider that had the Head of State’s unambiguous rejection of the Supreme Court’s jurisdiction been clear at the time of the Supreme Court hearing, we consider that the Supreme Court may well have come to a different conclusion concerning the legality of the 24th May 2021 swearing in. It is plain to us that the Supreme Court’s decision relied on the good faith of the relevant actors who all owe obligations under the Constitution to give effect to the order to convene. Regrettably, such reliance was misplaced.”

The Constitution is the supreme law of Samoa, and as such the Supreme Court has all original, appellate and, revisional jurisdiction and possesses and exercises all the jurisdiction, power, and authority, which may be necessary to administer the laws of Samoa, which obviously includes the Constitution of Samoan the judgment, continues. 

The Supreme Court therefore has the power to make the orders directing the convening of Parliament.

“The Head of State’s Proclamation and assertion of his power on the 4th July 2021 marks in our view behaviour which is out of line with the functions of that high office under the Constitution. The Head of State’s assertion that the Supreme Court has no jurisdiction to order the convening of Parliament is misconceived,” says the court ruling.

The Office of the Head of State derives its powers exclusively from the Constitution, the Court of Appeal points out. 

“Whether the Head of State has any other source of power is not a matter that was argued before this Court, and it is a topic which is best left to a more appropriate time. In this matter, we only consider the scope of the Head of State’s powers with respect to the convening of the Legislative Assembly and a swearing in ceremony, under Art[icle] 52,” the ruling continues.

“As we have found, the Head of State has shown a basic lack of understanding of his Constitutional role and an equally basic lack of understanding about the role of the Supreme Court and the scope of the Court’s powers under the Constitution. We see it as beyond reproach that the Supreme Court can order the Head of State to convene Parliament if that is what the Constitution requires. Who determines when Parliament may be convened may, at times, fall on the Supreme Court.”

This Court determined that the swearing in on the 24th May 2021 was in compliance with the terms of the Constitution, and it is lawful.

“In summary, we overturn the Supreme Court decision which determined the 24th May 2021 swearing in to be unconstitutional,” the ruling states.

“Given our decision, we do not need to consider the Attorney General’s appeal as to the terms of the orders which were made against her. Whilst they have some academic interest, in terms of finding solutions to the current political impasse, we consider them to be red herrings.”

Having been constitutionally sworn in on 24 May 2021 the F.A.S.T. party was entitled to take office. the court found.

“However, for the avoidance of doubt and confusion, although the F.A.S.T. Government were entitled to take power on the 24th May 2021, we consider that they should take power from the date and time of this judgment,” the court decision states.

“We consequently validate the caretaker Government's actions up until the time and date of this judgment and note that from this point, the Court does not recognize them as the Government of the Independent State of Samoa, because of the fact that there is a new Government.”

That recognition will obviously change should the result of the by elections and any adjustments under Art 44(1A) give them the majority of seats of the Legislative Assembly, the ruling continues.

“We also note that any action taken individually or collectively by those who have been in the caretaker Government role, from this point forward, in the name of a caretaker Government, will be regarded by the Court as unconstitutional and unlawful, and therefore of no effect. Further that the said actors are personally liable for any actions that they take. It is now for the new Prime Minister and her Government to give effect to this judgment and the declarations contained within,” states the court decision.