The Samoa Supreme Court’s final warning

Opinion: The Samoan Supreme Court has issued a final warning to caretaker prime minister, Tuila'epa Sa'ilele Malielegaoi, writes Dylan Asafo.

Yesterday, the Supreme Court held that the swearing-in ceremony held by the FAST party on 24 May 2021 was unconstitutional and unlawful.

In my view, a proper reading of the Supreme Court's judgement follows that the swearing-in ceremony is unconstitutional and unlawful, but only on one condition: that parliament meets within the next 7 days without any other attempts by Tuilaepa, the Head of State, the (former) Speaker, the Clerk of the Legislative Assembly, the 24 elected HRPP members and the Office of the Attorney General to prevent the peaceful transition of power.

With this condition put in place, the Supreme Court's decision is designed to give Tuilaepa, the Head of State, the (former) Speaker, the Clerk of the Legislative Assembly, the 23 elected HRPP members, and the Office of the Attorney General one last chance to uphold the rule of law. It also serves as a final warning to them that they are to allow the peaceful transition of power or else they will be held in contempt of court and the FAST's swearing-in ceremony will be found to be constitutional after all.

Unfortunately, to make this optimistic final warning, the Court's reasoning contained several flaws and shortcomings. However, despite these flaws, I do not believe that the decision on the whole was necessarily wrong in the circumstances.

Rather, I speculate that the Justices of the Supreme Court made this decision as they were mindful of the reality that political tensions in Samoa are high and that if they ruled FAST's swearing-in ceremony to be lawful and constitutional, they would have only further inflamed tensions - especially after the unfortunately unpragmatic decision of the Court of Appeal earlier this month and the ongoing dramas surrounding the election petitions and counter petitions.

Nevertheless, in the interests of making sure that there is a space for landmark court decisions to be openly dissected, discussed and debated, and to help guide future judges, lawyers and political actors who may be grappling with similar situations in the future - I outline some of these flaws in the Court's decision below.

1. On the ceremony being "unconstitutional and unlawful"

The Court adopted an imbalanced and incomplete approach to interpretation to finding that the swearing-in ceremony was "unconstitutional and unlawful". While the Court did acknowledge that there were "clear attempts to derail the Constitutional process", it nonetheless failed to scrutinise the wilful and calculated refusal of the Head of State (and others) to perform of the their duties (per its own orders on Sunday 23 May 2021) and find them unconstitutional.

Instead, it framed non-compliance with the Head of State's proclamation of 20 May 2021, the Legislative Assembly and Privileges Ordinance 1960, Articles 49 and 50 of the Constitution and Part II of the Standing Orders as being the failures and shortcomings of FAST. Due to this deliberate lack of balance here, the Court would be better placed to reject FAST's doctrine of necessity arguments later on.

2. On the ceremony "not satisfy[ing] elements of custom and tradition"

In perhaps knowing that its approach to constitutional interpretation was imbalanced and incomplete, the Court then employed another line of reasoning to back its decision - which is that the swearing-in ceremony "did not satisfy elements of custom and tradition".

The Court explained that it is empowered to take into custom into account per the preamble and Article 71 of the Constitution and stated that the swearing-in ceremony "did not uphold the customary requirements". The customary requirements they proposed are: (1) that the Head of State (and range of other important officials) must be present because the swearing-in is an "occasion of great mana and mamalu"; and (2) that the ceremony must be held in the "Chambers or the 'Maota Fono' itself as a "place" steeped in historical or cultural significance, the recognised home of our forefathers".

Once again, the Court's analysis here was imbalanced and incomplete. This is not only because it focused solely on how the actions of FAST "did not uphold the customary requirements", but because of their lack of attention to how the Head of State (and others) freely chose to reject the elements of custom and tradition themselves - and moreover, how their actions could be seen as violations of other Samoan customs, tradition and values as well.

It also appears that the Court did not give FAST the opportunity to provide any arguments on the custom and tradition. This again shows Court's deliberately imbalanced approach to later reject the FAST's doctrine of necessity arguments later on. Unfortunately, it also shows that there was a missed opportunity to further develop jurisprudence on this matter of customary law for judges and lawyers to be guided by in the future.

3. On the ceremony "not satisfy[ing]...the criteria for the doctrine of neccessity"

Following their imbalanced analysis above, the Court felt that it could then reject FAST's arguments arguing for the 'doctrine of neccessity' very briefly in 4 paragraphs.

After very briefly outlining what the 'doctrine of neccessity' is and the required conditions for the doctrine to be invoked as laid down by the Court of Appeal in Grenada in 1986, the Court stated that such "conditions did not prevail in Samoa on 24 May 2021".

In particular, the Court highlighted its view that the particular condition that "there must be no course of action reasonably available" was not satisfied. This was because it believed that FAST "could have sought the further intervention of the Court in directing the Clerk and other "relevant actors" to proceed with the 20 May proclamation of the Head of State" and moreover, that the "the history of this whole matter shows that the courts of Samoa have at all times been willing to adjudicate on urgent constitutional applications at very short notice".

What is noticeably missing from this analysis is the fact Tuilaepa, Head of State and others deliberately disregarded the Supreme Courts ruling of Sunday 23 May 2021. This is the very crux of FAST's arguments on why the 'doctrine of necessity needed to be invoked. On Monday 24 May 2021, Tuilapea (and others) made it very clear that they do not respect the constitutional authority of the courts. Since that day, this disrespect has only become more apparent, where the Court must be aware of the fact that the Tuilapea (and others) have disparaged the integrity of the courts, refused to appear for their contempt of court citations in court and have spread misinformation on the Court of Appeal's ruling to prevent parliament from convening. It is therefore bizarre for the Court to believe that if FAST went to them after being locked out of parliament on Monday 24 May 2021, that it would have made any difference.

The Court's deliberate failure to critically engage with the gravity of the lawless actions of Tuilapea (and others) meant that they were disinterested in dealing with the 'doctrine of necessity arguments in depth as required.

Final thoughts:
Even though I have outlined the flaws of the Court's decision, I wholeheartedly empathise with the difficult situations that the courts of Samoa have been put in since the general election of 9 April 2021.

The Court's decision yesterday, while imbalanced and incomplete, was its noble way of giving Tuilaepa, the Head of State and others one last chance to uphold the rule of law and restore political peace and democracy in Samoa.

In my view, the Court's decision yesterday, while imbalanced and incomplete, was its noble way of giving Tuilaepa, the Head of State and others one last chance to uphold the rule of law and restore political peace and democracy in Samoa.

While I cannot say that I would personally put so much faith in Tuilaepa, the Head of State and others due to their consistent and unapologetic disregard for the rule of law - I can still commend the Court for giving democracy in Samoa one more (and hopefully last) shot and I sincerely hope that its enduring faith in those parties will not prove to have been misplaced.

Fuimaono Dylan Asafo is a law lecturer at the Faculty of Law at the University of Auckland. He holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland.

This article reflects the opinion of the author and not necessarily the views of the University of Auckland.

Used with permission from RNZ, The Samoa Supreme Court’s Final Warning, 30 June 2021.

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