APIA, 26 JULY 2021 (TALAMUA ONLINE) —- The Court of Appeal has declared the swearing in of the 26 FAST Party MPs on 24 May 2021 was consistent with the Constitution, the Supreme law of Samoa and therefore lawful.
The 33 page decision delivered late Friday, also declared that “for the avoidance of doubt, that there has been lawful government in Samoa since 24 May 2021, and that lawful government is the FAST Party which holds the majority of seats in Parliament.”
The panel comprising the Chief Justice, Satiu Simativa Perese, Justice Niava Mata Tuatagaloa and Justice Tafaoimalo Leilani Tuala-Warren consequently ruled that the Court no longer recognises the caretaker government 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.”
As a consequence, the FAST Party having been constitutionally sworn in on 24 May 2021, are entitled to take office. “However for the avoidance of doubt and confusion, we consider that they should take power from the date of this judgement.”
The decision also places prominence on the Constitution as the country’s supreme law that derives the powers of the Head of State. It also determined that the Supreme Court has the power to make orders directing the convening of parliament.
The ruling also said the Head of States Proclamation and assertion of his power on the 4th July 2021, marks behaviour which is out of line with the functions of that high office under the Constitution.
“The Head of States assertion that the Supreme Court has no jurisdiction to order the convening of Parliament is misconceived.
“The Office of the Head of State derives its powers exclusively from the Constitution. 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 52.
“As we found, the Head of State has shown a basic lack of understanding of his Constitutional role and 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 that question may at times fall on the Supreme Court.”
The Court of Appeal’s decision also overturned the earlier Supreme Court decision which determined the 24 May 2021 swearing in unconstitutional.
“We find the swearing in, is in and of itself Constitutional and lawful, and there is no need to consider the doctrine of necessity.”
“Given our decision, we do not need to consider the AG’s appeal as to the terms of the orders 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.
“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 ad therefore 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 judgement and the declarations contained within.”
The Court of Appeal determined that the Supreme Court is the guardian of the Constitution, and it will continue to protect and maintain the rule of law and democracy under the Supreme law.
The Court then dismisses the Appeal in its entirety and upheld the Respondents cross-appeal.
“We declare that the swearing in carried out on 24 May 2021 at the Tiafau Malae of elected members of Parliament, to be consistent with the terms of the Constitution, the Supreme law of Samoa and therefore lawful. “For the avoidance of doubt, this means that there has been lawful government in Samoa since 24 May 2021, and that lawful government is the FAST Party which holds the majority of seats in Parliament.” …. PACNEWS