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Malielegaoi v Speaker of the Legislative Assembly of Samoa [2025] WSCA 7 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
Malielegaoi & Anor v Speaker of the Legislative Assembly of Samoa & Anor [2025] WSCA 7 (19 June 2025)

IN THE COURT OF APPEAL OF SAMOA
HELD AT MULINUU

BETWEEN:

TUILAEPA LUPESOLIAI DR SAILELE MALIELEAGOI

First Appellant

A N D:

LAUOFO FONOTOE NUAFESILLI PIERRE LAUOFO

Second Appellant

A N D:

SPEAKER OF THE LEGISLATIVE ASSEMBLY OF SAMOA

First Respondent

A N D:

THE ATTORNEY GENERAL

Second Respondent

Hearing: 13 June 2025

Coram: Hon. Justice Harrison
Hon. Justice Asher
Hon. Justice Young

Appearances: R. Harrison K.C, Fuimaono S. Ainuu, Faimalomatumua M. Lemesio, for Appellants
B. Keith & Taulapapa B. Heather-Latu for the First Respondent
Su’a H. Wallwork-Lamb & C. Finlayson K.C. for Second Respondent
Judgment: 19 June 2025

JUDGMENT OF THE COURT

Introduction

1. On 26 February 2025 the Legislative Assembly of the Samoan Parliament voted on the third and final reading of the Constitution Amendment Bill (the Bill). Article109 of the Constitution provides:
   • 109. Amendment of Constitution - (1) Any of the provisions of this Constitution may be amended or repealed by Act, and new provisions may be inserted in this Constitution by Act, if a bill for any such purpose is supported at its third reading by the votes of not less than two-thirds of the total number of Members of Parliament (including vacancies) and if not fewer than 90 days elapse between the second and third readings of that bill:
   • PROVIDED THAT no bill amending, repealing or adding to the provisions of Article 102 or the provisions of this proviso shall be submitted to the Head of State for assent until it has been submitted to a poll of the electors on the rolls for the electoral constituencies established under the provisions of Article 44 and unless it has been supported by two-thirds of the valid votes cast in such a poll.
   • (Note – the use of the term “electoral constituencies” formerly known as “territorial constituencies” as amended by the Constitution Amendment Act (No.3) 2019, No.10 only comes into effect on the day the Head of State dissolves the Legislative Assembly under Article 63(4) of the Constitution for the 2021 general elections as per Article 1(2) of the Constitution Amendment Act (No.3) 2019, No. 10).
   • (2) A certificate under the hand of the Speaker that a bill has been passed under the provisions of clause (1) shall be conclusive and shall not be questioned in any Court.
2. On that third reading 36 Members of Parliament including the Speaker voted in favour of the Bill, constituting the two thirds majority necessary for its passage into law. The Bill would not have reached the two thirds threshold without the Speaker’s support. The Speaker then certified the passage of the Constitution Amendment Act 2025 under Article 109 (2) of the Constitution. The Head of State gave his assent on 28 February. The Prime Minister notified that the Amendment Act was to come into force on 9 April 2025.
3. The Honourable Tuilaepa Lupesoliai Sailele Malielegaoi was one of the 16 Members of Parliament who voted against the Bill at its final reading. He filed a challenge in the Supreme Court to all four procedural stages of the Bill on the ground that Article 58 (2) of the Constitution disentitled the Speaker from voting on the Bill. Article 58 provides:
   • 58. Voting - (1) Except as otherwise provided in this Constitution, every question before the Legislative Assembly shall be decided by a majority of the votes of the Members of Parliament present.
   • (2) The Speaker, or the Deputy Speaker or any other Member of Parliament while presiding over a sitting of the Legislative Assembly in the absence of the Speaker, shall not have a deliberative vote but, in the case of an equality of votes, shall have a casting vote.

Supreme Court

4. The Chief Justice dismissed the challenge in an admirably comprehensive judgment given under constraints of urgency on 9 May 2025^[1]. Tuilaepa now appeals. We appreciate the cooperation of the parties and their counsel in preparing and arguing this appeal under similar constraints of urgency.
5. The judgment under appeal contains a concise explanation of the background circumstances of the Bill, its substance and the history of its passage through the Legislative Assembly.^[2] It is unnecessary for us to replicate that summary here. We note that all counsel accept its accuracy.
6. It is only necessary for us at this juncture to recite what Mr Keith and Mr Finlayson KC for the Speaker and the Attorney General respectively rely upon as the ratio of the Chief Justice’s judgment as follows:
   • “[36] In my view, Parliament has permitted the Speaker to vote in two-thirds majority votes. It is the only sensible way to read arts 58 and 109. This conclusion follows from a plain reading of art. 109(1), which unlike in the case of simple majority votes, does not contain an expression that a speaker is not to have a deliberative vote. The prohibition sought to be introduced into art. 109(1) arises by way of an interpretation of art. 58 which is not supported by the language used in that clause.
   • [37] Mr. Keith’s argument that had Parliament wanted to impose a prohibition, they would have done so appears compelling; it would have been carried out by using the same type of language used to establish the prohibition against voting in simple majority votes. And as Mr. Finlayson submits Parliament knew that it was removing the two-thirds votes from the ambit of art. 58. In other words, the fact that Parliament did not apply the prohibition should be extended to or indeed follow the voting practice provided for in another part of the Constitution.”

Analysis

7. In support of the appeal Mr Harrison KC challenges the Supreme Court’s ratio. He submits that the plain unqualified meaning of Art 58 (2) is that the mandatory words “ ..shall not have a deliberative vote..” apply to the Speaker whenever he or she is presiding over the Assembly including when the Constitution requires a decision by a two thirds vote. He posits a near absolute constitutional prohibition on the Speaker ever exercising a deliberative vote - that is, a vote on the merits of a question before Parliament - in the Assembly. The sole exception is that expressly provided for by Art 58 (2) where “...in the case of an equality of votes...” he or she shall have a casting vote. In his submission Art 109 must be read subject to and is governed by Art 58 (2).
8. Mr Harrison submits that this interpretation is supported by a textual analysis of Article 58. He advances a disjunctive construction of its two components. On his reading Art 58 (1) governs the quantum of votes required for determining questions coming before the Assembly, with the introductory exception excluding from the bare majority rule those provisions of the Constitution which expressly require a two thirds vote.
9. Mr Harrison submits that Art 58 (2) deals with a distinctly different subject – that is, the circumstances in which the Speaker can cast a vote. He submits that its language establishes two separate and independent constitutional constraints on voting by the Speaker. The first, with which this challenge is concerned, is absolute and unqualified in barring the Speaker from exercising a deliberative vote other than where the Constitution expressly allows. The second constraint, he says, is not relevant here because it is a strict limitation on the right to vote which relates back to the requirement in Art 58 (1) that “...every question before the Legislative Assembly shall be decided by a majority of votes of the Members of Parliament present”. We disagree, as we shall shortly explain.
10. We reject Mr Harrison’s disjunctive analysis, both as between Art 58 (1) and (2) and internally within Art 58 (2) itself. His analysis runs contrary to the inclusion within one statutory provision of two elements which when read successively have a plainly conjunctive purpose. That purpose requires, first, that unless otherwise provided questions shall be decided by a majority of votes (Art 58(1)) and, second, that in such cases the Speaker shall not have a deliberative vote except where there is an equality of votes and he or she may exercise a casting vote (Art 58 (2)). and the vote is both deliberative and casting.
11. This two-pronged unity of purpose is obvious. The first is the overriding precept of majority voting; the second limits the Speaker’s right of participation in that majority process and is designed to preserve the Speaker’s procedural neutrality except where his or her vote is required to pass deadlocked legislation.
12. We also reject Mr Harrison’s severance of Art 58 (2) into two internally separate constraints. In our view, there is only one constraint; the entitlement to exercise a casting vote expressly permits, not constrains, the Speaker’s entitlement. Moreover, that right to cast what Mr Keith calls a substantively decisive vote, necessarily a determinative vote, in the case of a deadlock is directly relevant to the interpretation of the disputed constitutional provisions. It enshrines the Speaker’s right to vote on the merits where his or vote will determine the result.
13. In this sense it may be said that Art 58 (2) allows the Speaker to vote where his or her vote counts, just as he may do under Art 109 (1). The absence of the Speaker’s vote will never count in the result where a majority is required unless the result is deadlocked. The plain language of Art 58 (2) supports the view that the Constitution should not be construed in the absolutist fashion favoured by Mr Harrison.
14. We are satisfied that Art 58 is a discrete provision which is limited in its application to the standard parliamentary requirement of majority support for a legislative enactment. Its relevance to this issue lies in its affirmation that even in that situation the Speaker is entitled to vote, consistent with the precept of constituency representation, where that vote will be decisive. It requires an artificiality of language to extend its effect to a vote under Art 109 (1). A perversity would result in construing the Constitution to allow the Speaker to exercise a deliberative and thus decisive vote in cases where a simple majority was required while disqualifying him or her from voting on an issue of such importance that a two thirds majority was required, what Mr Keith describes as a super majority.
15. The absence of an express prohibition in Art 109(1) only reinforces that conclusion. We agree with the Chief Justice^[3]
    • “[40]. If that analysis of art. 58 is wrong, one only needs to turn to the wording in art. 109(1), to see that the Applicants’ interpretation cannot be correct. Art. 109(1) provides for one of the matters Parliament removed from the simple majority ambit of art. 58. Clearly, art. 109(1) unlike art. 58, does not refer to a speaker being prohibited from casting a deliberative vote. This suggests as a matter of interpretation that having provided for a prohibition in relation to simple majority votes, Parliament intended there should be no similar prohibition in relation to two-thirds votes. This means the Speaker is permitted to vote in a two-thirds matter.
      
16. The necessary consequence of our rejection of Mr Harrison’s submission based on the meaning and application of Art 58 (2) is that Art 109 (1) unequivocally authorizes the Speaker to exercise his or her vote on a constitutional amendment in the same manner as any other member. It follows that we endorse the judgment of the Chief Justice, and the ratio of his decision cited above.
17. We record that counsel helpfully referred us to background material to the drafting of the Constitution, academic writing and to earlier decisions of this Court and Commonwealth authorities. However, we agree with Mr Finlayson that the Constitution is uniquely Samoan, and little assistance is to be gained from other jurisdictions in circumstances where Art 109 speaks unequivocally for itself in preserving the Speaker’s right to vote on all constitutional amendments.
18. We also heard argument on the meaning of Art 109 (2) and whether it has a privative effect as ousting the Supreme Court’s jurisdiction to determine this application. In view of our finding that the application fails anyway we do not need to decide the question on this appeal.

Result

19. The appeal is dismissed.
20. The Supreme Court made an order staying the date on which the Constitutional Amendment Act was to come into force from 9 April 2025 until further order. That stay order is now discharged with the effect that the Act can come into effect on a date suitable to the government.
21. The Supreme Court made no order as to costs on the ground that the application raised important constitutional issues. Neither of the respondents sought costs in this Court and accordingly we do not make an order.
22. We thank counsel for their constructive arguments in addressing the grounds of this appeal at short notice.
    

HON. JUSTICE HARRISON
HON. JUSTICE ASHER
HON. JUSTICE YOUNG

^[1] Malielegaoi & Anor v The Speaker of the Legislative Assembly of Samoa &Anor [2025] WSSC 32 (9 May 2025).
^[2] See at [5] – [13]
^[3] Judgment at [40]