IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of Articles 2 and 4 of the Constitution.

AND:

IN THE MATTER: of section 105 of the Electoral Act 1963.

BETWEEN:

THE SAMOA PARTY a duly registered party under section 15C of the Electoral Act 1963.
First Plaintiff/Applicant

AND:

LE TAGALOA PITA Matai of Sili.
Second Plaintiff/Applicant

AND:

TUPUANAI AVAIOI IMOASINA Matai of Vailele.
Third Plaintiff/ Applicant

AND:

FEO NEMAIA ESAU Matai of Samauga.
Fourth Plaintiff/Applicant

AND:

ATTORNEY GENERAL sued on behalf of the Government of the Independent State of Samoa.
Defendant/Respondent

Counsel: P J Andrews for plaintiffs/applicants
S Rimoni and U W Fuimaono for defendant/respondent

Hearing: 29 July 2008
Final Submission: 11, 18, 27 August 2008
Judgment: 20 March 2009

JUDGMENT OF SAPOLU CJ

Proceedings

1.	These proceedings are concerned with a motion by the plaintiffs/applicants (hereinafter referred to as "the plaintiffs") against the Attorney-General as defendant/respondent seeking orders that the proviso to s.105(1) of the Electoral Act 1963 is unconstitutional and therefore void on the grounds that:

(a)	it is inconsistent with the Constitution of Samoa (hereinafter referred to as "the Constitution") and therefore void pursuant to Article 2 of the constitution;

(b)	it breaches the doctrine of separation of powers; or

(c)	it breaches the constitutional guarantee of a system of representative and constitutional government.

2.	It is clear from the written submissions by counsel for the plaintiffs that the provisions of the Constitution alleged to have been violated are Articles 9(1) and 15(1). Articles 45, 47 and 64 are also mentioned together with the Preamble but there is no sufficient elaboration as to how this would assist the plaintiffs.

3.	Counsel or the Attorney-General have opposed the plaintiffs’ motion on the following ground, namely, that:

(a)	the issue raised by the plaintiffs in their motion is hypothetical and the Court in the exercise of its discretion should refuse to deal with it;

(b)	Article 9 which is one of the two provisions of the Constitution specifically alleged by the plaintiffs to have been violated by the proviso to s. 105(1) of the Electoral Act 1963 does not apply in these proceedings;

(c)	the proviso to s.105(1) of the electoral Act 1963 is not inconsistent with or violative of Article 15 which is the other of the two provisions of the Constitution specifically alleged by the plaintiffs to have been violated;

(d)	the proviso to s.105 (1) of the Electoral Act 1963 does not breach the doctrine of separation of powers; and 

(e)	the proviso to s105 (1) of the Act does not breach Articles 45, 47 or 64 of the Constitution.

The relevant provisions of the Electoral Act 1963

4.	Section 105 consists of five sub-sections. The relevant sub-section is s105 (1) which, as amended by s31 of the Electoral Amendment Act 1995, provides as follows:

"Section 31 Election Petition – Section 105 of the principal Act is hereby amended by omitting the whole of sub-section (1) and in substitution therefore the following – 

"Section 105 – An election petition may be presented to the Supreme Court by one or more of the following persons:

"(a) A person claiming to have had a right to be elected or returned at the election;

"(b) A person alleging himself to have been a candidate at the election.

"Provided however that no petition can be filed by a person who polled less than 50% of the total number of votes polled by a person elected or returned at the election".

5.	The provisions of s105(1) which were replaced by s31 of the Electoral Amendment Act 1995 provided as follows:

"(1) 	An election petition may be presented to the Supreme Court by one or more of the following persons:

"(a) a person who voted or had a right to vote at an election,

"(b) a person claiming to have a right to be elected or returned at the election.

"(c) a person alleging himself to have been a candidate at the election".

6.	Thus prior to the enactment of s31 of the Electoral Amendment Act 1995, any elector, voter or candidate may present an election petition to the Supreme Court. After the enactment of s31, only a candidate who has polled 50% or more of the votes polled by the successful candidate may present an election petition. So there has been a reduction in the categories of people who may present an election petition.

7.	Section 104 of the Electoral Act 1963 which provides the method for challenging the result of an election provides, insofar as relevant, as follows:

"(1)	No election and no declaration of result or report to the Head of State shall be questioned except by a petition of an unlawful election or unlawful declaration or report (in this Act referred to as an election petition) presented in accordance with this Part of this Act".

8.	The time for the presentation of an election petition is provided in s106 which, insofar as relevant, provides as follows:

"(1)	Subject to the provisions of this section, an election petition shall be presented within 7 days after the day on which the Chief Electoral Officer has publicly notified the result of the poll".

9.	What s106 means is that an election petition is to be presented, not 7 days after the preliminary count and the announcement of the preliminary results which always takes place on election right, but 7 days after the public notification of the result of the poll.

10.	In terms of s80 of the Act, the public declaration of the result of the poll will only take place immediately after the procedures provided in ss76, 77 and 78 for the scrutiny of the electoral rolls and the procedures provided in ss79 and 80 for the official count have been completed. So, in effect, the period for presenting an election petition is more than 7 days after polling day.

11.	The election of a successful candidate at the poll may be declared void at the trial of an election petition on the grounds of electoral corrupt practices or illegal practices. Section 112 of the Act provides:

"Where a candidate who has been elected at any election is proved at the trial of an election petition to have been guilty of any corrupt practice at the election his election shall be void".

12.	Section 113 which avoids the election of a candidate for general corruption then provides:

"(1)	Where it is reported by the Supreme Court on the trial of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any candidate thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election, if he has been elected, shall be void.

"(2)	Except under this section, an election shall not be liable to be avoided by reason of the general prevalence of corrupt or illegal practices".

13.	Under s111(6), a respondent to an election petition which complains of an unlawful election declaration or report and claims that seat for another candidate may, at the trial of the election petition, adduce evidence to show that this other candidate was not duly elected. Section 111(6) provides as follows:

"(b)	On the trial of an election petition complaining of an unlawful election declaration or report and claiming the seat for some person, the respondent may give evidence to prove that that person was not duly elected in the same manner as if he had presented a petition against the election of that person"

14.	The practical outcome of s111 (6) has been that in a number of election petition cases that have come before the Supreme Court, a successful candidate has had his election declared void due to a finding of corrupt practice against him but the petitioning candidate is also found to have committed a corrupt practice or corrupt practices and both are disqualified from contesting the ensuing by-election. A third person is then elected at the ensuing by-election.

15.	Activities which amount to electoral corrupt practices are provided and made offences under ss95, 96, 97 and 98 of the Act whereas activities which amount to electoral illegal practices are provided under ss99 and 99A of the Act.

16.	Section 101 which is the penalty provision then provides:

"Every person who is guilty of any corrupt practice or any illegal practice shall be liable on conviction:

"(a)	In the case of a corrupt practice, to imprisonment for a term not exceeding one year or to a fine not exceeding or both;

"(b)	In the case of an illegal practice, to a fine not exceeding

17.	No election candidate who has been found guilty of a corrupt practice in an election prosecution has ever been sentenced to prison. That has certainly been the case in the nine general elections from 1976 to 2006.

The constitutional provisions relied upon by the plaintiffs

18.	Article 2 of the Constitution provides as follows:

"(1)	This Constitution shall be the supreme law of Samoa.

"(2)	Any existing law and any law passed after the date of coming into force of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void".

19.	Article 4 which provides for the enforcement of the fundamental rights provided under Part II of the Constitution provides as follows:

"(1)	Any person may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred under the provisions of this Part.

"(2)	The Supreme Court shall have power to make all such orders as may be necessary and appropriate to secure to the applicant the enjoyment of any of the rights conferred under the provisions of this Part".

20.	Article 9 which guarantees the right to a fair trial provides, insofar as it is relevant to the submissions for the plaintiffs, as follows:

"(1)	In the determination of his civil rights and obligations …, every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established under the law. Judgment shall be pronounced in public…"

21.	Article 15 which guarantees freedom from discriminatory legislation provides, insofar as it is relevant to the submissions for the plaintiffs, as follows:

"(1)	All persons are equal before the law and entitled to equal protection under the law.

"(2)	Except as expressly authorised under the provisions of this Constitution, no law and no executive or administrative action of the State shall, either expressly or in its practical application, subject any person or persons to any disability or restriction or confer on any person or persons any privilege or advantage on grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status, or any of them…"

22.	Article 45 which provides for the qualifications of a Member of Parliament states as follows:

"(1)	Any person shall be qualified to be elected as a Member of Parliament who -

"(a)	Is a citizen of Samoa;

"(b)	Is not disqualified under the provisions of this Constitution or of any Act.

"(2)	If any person other than a person qualified under the provisions of clause (1) is elected as a Member of Parliament, the election of that person shall be void".

23.	Article 47 which requires all questions relating to parliamentary membership to be referred to the Supreme Court provides:

"All questions that may arise as to the right of any person to be or to remain a Member of Parliament shall be referred to and determined by the Supreme Court".

24.	Article 64 then provides:

"There shall be a general election of the Legislative Assembly at such time within three months after every dissolution of the Assembly as the Head of State appoints by notice in the Samoa Gazette"

Background to the plaintiffs’ motion

25.	The background to the plaintiffs’ motion is to be found in the amended affidavits of Le Tagaloa Pita of 7 August 2008, Feo Nemaia Esau of 7 August 2008, and Sua Rimoni Ah Chong of 13 August 2008. These affidavits, insofar as relevant, are directed to the last parliamentary general election which was held on 31 March 2006.

26.	There is no record in the Court file that the amended affidavits by Leta’a Tanielu and the third plaintiff Tupuana’i Avaioi Imoasina which are referred to in the letter dated 15 August 2008 from the solicitors for the plaintiffs to the Registrar have been filed.

27.	As it appears from the amended affidavit of 7 August 2008 by Le Tagaloa Pita, the 2006 parliamentary general election was the first general election that was contested by the Samoa Party, the first plaintiff, as a political party. None of the candidates, including Le Tagaloa Pita, who ran for the Samoa Party in the general election was successful.

28.	Le Tagaloa Pita ran as an election candidate in the territorial constituency of Sagaga-le-Falefa which he had represented as a Member of Parliament for 27 years from 1970 to 2001. He deposes in his affidavit that he polled 481 votes in the 2006 general election whilst the successful candidate who is a member of the Human Rights Protection Party (hereinafter referred to as "the HRPP") polled 1,103 votes.

29.	Le Tagaloa Pita also deposes in his affidavit that had it not been for the 50% threshold requirement in the proviso to s105 of the Electoral Act 1963 he would have brought an election petition against the successful HRPP candidate.

30.	It also appears from Le Tagaloa’s affidavit that Sua Rimoni Ah Chong, the leader of the Samoa Party, was one of the very few unsuccessful Samoa Party who was able to bring an election petition given the 50% threshold requirement in the proviso to s105. It is not clear why the others of the very few unsuccessful Samoa Party candidates who were able to bring election petitions, given the 50% threshold requirement did not do so.

31.	Le Tagaloa then refers to the forty two territorial constituencies from which forty seven Members of Parliament are elected and the individual voters roll from which two Members of Parliament are elected.

32.	Le Tagaloa further points out that of the twelve election petitions brought in relation to the 2006 general election, seven were withdrawn, two were dismissed and three were upheld.

33.	Perhaps I should point out that in the election petitions that were upheld by the Court, in relation to the 2006 general election, the first was brought by a HRPP candidate against a successful opposition candidate. Both the petitioning candidate and the respondent candidate were found guilty of committing electoral corrupt practices and were disqualified from running in the ensuing by-election. A third party has become the Member of Parliament for the constituency concerned.

34.	The second election petition that was upheld by the Court was brought by an opposition candidate against a successful HRPP candidate. Both candidates were found guilty of committing electoral corrupt practices and were disqualified from running in the ensuing by-election. A third party is now the Member of Parliament for that constituency.

35.	The third election petition that was upheld by the Court was brought by the leader of the Samoa Party against a successful HRPP candidate. The election of the successful HRPP candidate was declared void on the grounds of electoral corrupt practices. However, the leader of the Samoa Party was later found guilty of electoral corrupt practice in a private prosecution that was brought against him by the HRPP candidate whose election was declared void. So both were disqualified from running in the ensuing by-election. A third party is now the Member of Parliament for that constituency.

36.	I have to say that my experience over the years election, with election petitions which involve allegations of electoral corrupt practice is that it is not uncommon that both the successful candidate at the general election and the unsuccessful candidate who petitions are found guilty of the same offence. Since the Act was amended to disqualify from running in an ensuing by-election a candidate against whom an allegation of electoral corrupt practice has been proven, it is also not uncommon that a successful candidate and the candidate who petitions are both disqualified from running in the ensuing by-election and someone else is elected as Member of Parliament for the constituency concerned. This is so notwithstanding that a finding of electoral corrupt practice does not seem to attract any social stigma against the guilty candidates.

37.	The fourth plaintiff Feo Nemaia Esau deposes in his amended affidavit of 7 August 2008 that in the 2006 general election he ran as a candidate for the Samoa Party in the territorial constituency of Gagaifomauga No.2. He polled 90 votes whilst the winning HRPP candidate polled 404 votes.

38.	Feo Nemaia Esau also deposes that no election petition was brought in relation to the results of the poll in his constituency in the 2006 general election even though some of the other unsuccessful candidates would not have been precluded by the proviso to s105 from doing so.

39.	Feo further deposes that he wished to bring an electoral petition to challenge the result of the poll but was unable to do so because of the proviso to s105 of the Act.

40.	Sua Rimoni Ah Chong who is the leader of the Samoa Party but is not named as a party in these proceedings, deposes, insofar as relevant, in his amended affidavit of 13 August 2008, that he ran as a candidate for the Samoa Party in the territorial constituency of Faasaleleaga No.4. The candidate for the HRPP in his constituency won the election but as he polled more than 50% of the votes polled by the successful HRPP candidate he was able to bring an election petition. The election petition by Sua Rimoni Ah Chong was successful and the election of the winning candidate was declared void by the Court.

41.	Sua Rimoni Ah Chong also deposes that following the outcome of his successful election petition, the candidate whose election had been voided brought a private prosecution against him on two charges of electoral bribery which is an electoral corrupt practice under s96 of the Act. One of these two charges was found proven. However, Sua says that he did not appeal the finding by the Court against him due to financial constraints and the uncertainty of an appeal outcome in his favour.

42.	Sua further deposes that he was the only Samoa Party candidate to bring an election petition as the vast majority of the Samoa Party candidates were precluded from filing petitions due to the proviso to s105.

43.	Counsel for the plaintiffs in certain parts of his extensive and thoughtful written submissions questions the objective behind the proviso to s105 as that of stable government. He seems to imply in his submissions that the effect, if not the objective, of s105 is to protect the political incumbents in office. This seems to hint at the HRPP which is the political party in power.

44.	It may, in my respectful view, be helpful in ascertaining the objective behind the s105 proviso to refer to the history of the HRPP in parliamentary general elections

45.	It is common knowledge of which I take judicial notice that the HRPP first contested a general election as a political party in the 1979 general election. It failed by one vote in Parliament to form a government. The general elections which followed in 1982, 1985, 1988 and 1991 when universal suffrage was introduced in Samoa were all won by the HRPP. All of that happened before the proviso to s105 was introduced by s31 of the Electoral Amendment Act 1995. It raises the question of whether the HRPP needed the s105 proviso in order to win a general election when it had won four consecutive general elections without the s105(1) proviso. It also raises the question of whether the objective behind the s105 proviso is to protect the political incumbents in office.

46.	After the s105 proviso came into force, the HRPP continued to win the 1996, 2001 and 2006 general elections with substantial majorities. This was after the term for Members of Parliament was extended from 3 years to 5 years. And the plaintiffs are not saying that the outcomes of those general elections were due to the s105(1) proviso.

47.	Furthermore, having regard to ss101, 102 and 103 which provide for prosecutions to be brought for electoral corrupt practices and illegal practices as well as s5(5) (b) which disqualifies an elected Member of Parliament from holding his parliamentary seat upon being convicted of an electoral corrupt practice, the question again arises whether the objective behind the s105 proviso was to protect incumbents in office. One would have thought that if that was indeed the objective behind the s105 proviso, then something should also have been done by the party in government to restrict the provisions relating to the prosecutions for corrupt practices. But nothing of the sort has been done even though the HRPP has always had a clear majority in Parliament.

Submissions by counsel for the plaintiffs

48.	In essence, the submissions by counsel for the plaintiffs may be stated as follows:

(a)	Article 9(1) of the Constitution guarantee the right of access to justice which is a fundamental and constitutional principle of the Samoan legal system.

(b)	The 50% threshold requirement in the s105(1) proviso of the Electoral Act 1963 is an arbitrary and capricious restriction on the plaintiffs’ right of access to justice and therefore violates Article 9(1).

(c)	The 50% threshold requirement also violates the plaintiffs right to "equal protection under the law" in terms of Article 15(1) of the Constitution in that if the objective behind the s105(1) proviso is stable government, then the 50% threshold requirement is a disproportionate response to the objective to be achieved. It offends against the requirement of "minimal impairment" of a right.

(d)	The doctrine of separation of powers is a key constitutional principle and is a necessary condition of the rule of law and democratic government which is entrenched by implication in the Constitution. An aspect of this important constitutional principle is that it is not for the legislature to usurp the judicial function of controlling and determining access to justice particularly in cases of abuse of power.

(e)	The proviso to s105(1) is a legislative violation of the constitutional principle of separation of powers.

(f)	The s105(1) proviso violates the freedom of communication between the people concerning political government matters which enables the people to exercise free and informed choice as electors.

49.	It should also be pointed out that the submissions by counsel for the plaintiffs involve criticisms of the judgment by Young J in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 37 where it was held that the proviso to s105(1) is not inconsistent with Article 15(1) of the Constitution. 

Submissions by counsel for the Attorney-General

50.	Like counsel for the plaintiffs, counsel for the Attorney-General made thoughtful submissions some of which are quite perceptive. In essence, these submissions may be stated as follows: 

(a)	The case by the plaintiffs raises for the Court’s consideration a hypothetical issue as there is no existing dispute between the parties in respect of which a decision of the Court will have immediate and practical consequence for any of them. Accordingly, the Court should not exercise its jurisdiction to determine the issue raised by the plaintiffs.

(b)	Article 9(1) relied upon by the plaintiffs does not apply to these proceedings for three reasons:

(i)	the proceedings by the plaintiffs is not based upon a determination of their civil rights or obligations;

(ii)	there is no dispute or contestation of a civil right between the parties; and

(iii)	if any right of the plaintiffs is in issue in these proceedings it is a political right and not a civil right.

(c)	If, however, Article 9(1) applies to these proceedings then the proviso to s105(1) is not in violation of that constitutional provision since anyone who cannot bring an election petition under s105(1) may still bring a private prosecution pursuant to s11 of the Criminal Procedure Act 1972 against a Member of Parliament alleging electoral corrupt practice. If such a prosecution is successful, the Member of Parliament concerned would be disqualified from holding his parliamentary seat under s10(e) of the Electoral Act 1963.

(d)	The power of the Attorney-General provided under Article 41(2) of the Constitution to discontinue a prosecution is only exercisable in the best interest of the public and, in any event, is reviewable by the Court where there is a "flagrant impropriety".

(e)	Relying on the judgment of Young J in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 37, the proviso to s105(1) does not violate Article 15(1).

(f)	The Court should only reconsider its previous decisions in constitutional cases with "great caution" or "for strong reasons" or "with grave concern". For the Court to reconsider a previous constitutional decision of its own, such decision must be shown to be "manifestly wrong".

(g)	The doctrine of separation of powers is implicit in the provisions of the Constitution. Under this doctrine the judicial power of the judicature cannot be infringed or usurped by the executive or legislature.

(h)	The proviso to s105(1) does not breach the doctrine of separation of powers for the following reasons:

(i)	it is not directed to the Courts but to unsuccessful candidates during an election;

(ii)	it does not interfere with the judicial process or affect the manner in which the Court is to deal with the litigation of election petitions; and

(iii)	it does not affect the jurisdiction of the Court to hear an election petition.

(i)	The proviso to s105(1) is also based on social issues rightly within the sphere of the legislature to consider and it is a proper exercise by the legislature of its power to make laws.

(j)	The proviso to s105(1) does not in any way impact upon the system of representative and responsible government to which Articles 44, 45, 46 and 64 of the Constitution give effect. The people of Samoa are still free to elect their parliamentary representatives and the candidates that poll the most popular votes at an election and meet the requirements of the Constitution and the Electoral Act 1963 are elected as their representatives in the Legislative Assembly.

51.	I do not propose to deal with all the issues raised in the submissions by counsel. I will deal only with the issues which I consider to be of major significance, especially those issues which are decisive to the outcome of these proceedings.

Is the proviso to s105(1) of the Electoral Act 1963 in violation of Article 9(1) of the Constitution?

52.	In order to understand whether the proviso to s105(1) of the Electoral Act 1963 is in violation of the right guaranteed by Article 9(1) of the Constitution it is essential to find out what the Article 9(1) right is about.

53.	The right embodied in Article 9(1) is the "right to a Court". The "right of access to a Court", though not expressed in Article 9(1), is by implication a fundamental aspect of the right stated in Article 9(1) which is the right to a fair trial.

54.	In Golder v United Kingdom (1975) 1 EHRR 524, E ct HR, the European Court of Human Rights when dealing with Article 6(1) of the European Convention on Human Rights (the Convention) which is identical in terms to Article 9(1) of our Constitution, said:

"The Court thus reaches the conclusion…that Article 6 para 1 (art 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a Court or tribunal. In this way the Article embodies the ‘right to a Court’, of which the right of access, that is the right to institute proceedings before Courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para 1 (art 6-1) as regards both the organisation and composition of the Court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing".

55.	Under English jurisprudence, the right of access to a Court is regarded as a constitutional right which forms part of the common law. In R v Secretary of State for the Home Department, ex parte Leech [1993] A11 ER 539, Steyn LJ stated:

"It is a principle of our law that every citizen has a right of unimpeded access to a Court. In Raymond v Honey [1982] 1 A11 ER 756 at p 760, [1983] 1 AC 1 at p.13 Lord Wilberforce described it as a ‘basic right’. Even in our unwritten constitution it must rank as a constitutional right".

56.	In R v Lord Chancellor, ex parte Witham [1997] 2 A11 ER 779, Laws J said at pp 787-788:

"It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen’s right of access to the Courts. It has been described as a constitutional right, though the cases do not explain what that means".

57.	Thus the right of access to a Court which is implicit in the right guaranteed under Article 9(1) of our Constitution, is also a common law constitutional right under English law.

58.	The right of access to a Court is, however, not absolute but may be subject to limitations. This is, for example, clear from the judgments delivered by the European Court of Human Rights in two recent cases, namely, Staroszczyk v Poland (2007) (Final judgment delivered on 29/07/2007) at paras 123, 124 and Stalkowska v Poland (2007) (Final judgment delivered on 9/07/2007) at paras 101,102. In both judgments the European Court said:

"The Court further reiterates that it would be inconceivable that Article 6(1) should describe in detail procedural guarantees afforded to parties in a pending lawsuit without also protecting the right of access to a Court which makes it in fact possible to benefit from such guarantees. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings (Golder v United Kingdom, judgment of 21 February 1975…). The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the Courts in view of the prominent place held in a democratic society by the right to a fair trial (see Airey v Ireland, judgment of 6 October 1979…). A restrictive interpretation of the right of access to a Court guaranteed by Article 6(1) would not be consonant with the object and purpose of the provision (De Cubber v Belgium, judgment of 26 October 1984…).

"However, this right is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State (Edificaciones March Gallego S.A. v Spain, judgment of 19 February 1998…). In this respect…the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved…"

59.	Thus the right of access to a Court is not absolute; it may be subject to limitations since the right by its very nature calls for regulation by the State. However, such limitations must not be so restrictive that they impair the very essence of the right. Furthermore, a limitation on the right must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim to be achieved.

60.	In my view, if Article 9(1) is applicable to the proviso to s105(1) then the question whether the limitation imposed by the proviso violates the right of access to a Court must be determined on the basis of whether (a) the limitation impairs the very essence of the right, and (b) whether the limitation pursues a legitimate aim and comply with the principle of proportionality.

61.	However, counsel for the Attorney-General submit that Article 9(1) is not applicable to the proviso to s105(1). One of the reasons advanced by counsel for the Attorney-General in support of their submissions is that Article 9(1) only applies to the determination of a person’s civil rights and obligations. The right in issue in these proceedings is not a civil right but a political right.

62.	I agree with counsel for the Attorney-General that Article 9(1) applies only to civil rights and not to political rights. This is clear from the jurisprudence of the European Court of Human Rights sometimes referred to as the Strasbourg Court.

63.	In the case of Pierre – Bloch v France (1997)( judgment of 21 October 1997) the European Court of Human Rights held:

"50. It [the Court] observes that, like any other parliamentary candidate, Mr Pierre – Bloch was required by law not to spend more than a specified sum in financing his campaign. The Constitutional Council held that the sum in question had on this occasion been exceeded and disqualified the applicant from standing for election for a year and declared that he had forfeited his seat, thereby jeopardising his right to stand for election to the National Assembly and to keep his seat. Such a right is a political one and not a ‘civil’ one within the meaning of Article 6(1), so that disputes relating to the arrangements for the exercise of it – such as ones concerning candidates’ obligation to limit their election expenditure – lie outside the scope of that provision". (emphasis mine)

64.	In Ferrazini v Italy (2001) (judgment of 12 July 2001) the European Court of Human Rights said:

"28. However, rights and obligations existing for an individual are not necessarily civil in nature. Thus political rights and obligations, such as the right to stand for election to the National Assembly (see Pierre – Bloch …), are not civil in nature, with the consequence that Article 6(1) does not apply".

65.	In Sarukhanyan v Armenia (2008) (Final judgment delivered on 27/08/2008), the European Court of Human Rights held:

"53. The Court observes that the proceedings complained of concerned the annulment of the registration of the applicant’s candidacy for the parliamentary election. Accordingly, they related to the exercise by the applicant of election rights, namely the right to stand in the parliamentary election. Such rights, by their nature, are political rights and fall outside the concept of ‘civil rights and obligations’ within the meaning of Article 6(1) of the Convention… As a consequence, this provision of the Convention does not apply to the proceedings in question".

66.	The position taken by the European Court of Human Right in relation to political rights and the non-application thereto of Article 6(1) of the convention has also been noted in Al Jedda v Secretary of State for the Home Department [2008] UKSIAC 66/08 where it is said:

"The Strasbourg Court has consistently made clear that there remain rights enjoyed by citizens and others within Convention States which are not civil, for example: political rights and obligations, disputes between administrative authorities and some (senior) state officials, the expulsion of aliens and tax matters: Ferrazini paragraphs 28 and 29".

67.	It is to be noted that the Strasbourg Court is the European Court of Human Rights.

68.	What the second, third and fourth plaintiffs are saying in these proceedings is that they ran as candidates for the Samoa Party in the 2006 general election but were unsuccessful. The total number of votes that each of them polled was less than 50% of the total number of votes polled by the successful candidate in each their respective constituencies. Each one of them wanted to bring an election petition to challenge the election of the successful candidate in his/her constituency alleging corrupt practices. However, they were all precluded by the proviso to s105(1) from doing so.

69.	Thus what the second, third and fourth plaintiffs had wanted to do was to challenge in Court the right of the successful candidates, in their respective constituencies, to be declared as duly elected Members of Parliament. This is at the heart of the plaintiffs’ complaint. Such a challenge, if it was open to the plaintiffs, would have involved a dispute as to the rights of the successful candidates to be declared duly elected to Parliament and to hold their parliamentary seats. But the right to be elected as a Member of Parliament is a political right, not a civil right to which Article 9(1) applies.

70.	The plaintiffs may say that because they were the losing candidates in the 2006 general election, they have no right to be declared elected to Parliament which is involved in these proceedings, only the successful candidates rights to be elected are in issue. That may be so. But the effect of what the plaintiffs say they wanted to do would have been to draw into a dispute the rights of the successful candidates to be elected. Such a dispute would be one over political rights and would fall outside the scope of Article 9(1). Just as Article 9(1) does not apply to the determination of a dispute over your political right. Both types of disputes involve political rights.

71.	If, however, I had concluded that the right at the heart of the plaintiffs’ complaint was a civil right, I would have adopted the approach of determining whether the proviso to s105(1) impairs the very essence of the right of access to a Court; and, furthermore, whether the proviso has a legitimate aim and then apply the principle of proportionality. In view of the conclusion I have reached that the right involved is a political right, it is not necessary to go down that path.

72.	For those reasons, I conclude that Article 9(1) does not apply. Accordingly, the proviso in s.105(1) of the Electoral Act 1963 does not violate Article 9(1).

Additional comments on the applicability of Article 9(1)

73.	As it appears from Golder v United Kingdom (1975) 1 EHRR 524, E Ct HR, the right of access to a Court embodied in Article 6(1) of the European Convention of Human Rights, which is identical in terms to Article 9(1) of our Constitution, is the right to institute proceedings before the Courts in civil matters. It is not necessary that there should be a prior determination of a party’s rights by a Court or tribunal before Article 9(1) can be invoked. The right may apply to proceedings that are pending and have not been determined by a Court.

74.	Counsel of the plaintiffs in his written submissions filed after the hearing of submissions on 11 August 2008, in response to the submissions presented at the hearing by counsel for the Attorney-General, refer to Article 47 of the Constitution and submits that Article 47 contemplates that the Supreme Court should have the power to determine the right of any person to be or to remain a Member of Parliament. He further submits that Articles 9 and 47 should be read together.

75.	Article 47 was never before raised in these proceedings. In any event, Article 9(1) refers specifically to the determination of a person’s "civil rights and obligati9ons" and from the jurisprudence of the European Court of Human Rights it is clear that a political right is not a civil night so that Article 9(1) does not apply to the determination of a person’s political rights.

Is the proviso to s105(1) of the Electoral Act 1963 in violation of Article 15(1) of the Constitution

76.	The question of whether the proviso to s105(1) of the Electoral Act 1963 is inconsistent with Article 15(1) of the Constitution and therefore unconstitutional was squarely before Young J in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 37 and His Honour gave a negative answer to that question in a considered judgment.

77.	It is clear from the submissions by counsel for the plaintiffs that he is urging this Court to re-visit the decision of Young J in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 31 and not to follow His Honour’s reasoning and conclusion in that case.

78.	Some guidance on the approach to be followed in an application for this Court to re-visit and depart from a previous decision of its own in a constitutional case may be found in the judgment of the High Court of Australia in Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 which is cited in the written submissions of counsel for the Attorney-General. In that case, Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ stated at pp101-102:

"This Court is not bound by its previous decisions. Nor has it laid down any particular rule or rules or set of factors for reopening the correctness of its decisions. Nevertheless, the Court should reconsider a previous decision only with great caution and for strong reasons. In Hughes and Vale Pty Ltd v New South Wales (1953) 87 CLR 49 at 102, Kitto J said that in constitutional cases ‘it is obviously undesirable that a question decided by the Court after full consideration should be reopened without grave reason’. However, it cannot be doubted that the Court will re-examine a decision if it involves a question of ‘vital constitutional importance’ and is ‘manifestly wrong’. Errors in constitutional interpretation are not remediable by the Legislature, and the Court’s approach to constitutional matters is not necessarily the same as in matters concerning the common law or statutes"

79.	Two points need to be stated in relation to the above passage. The High Court of Australia is at the apex of the judicial hierarchy in Australia. Secondly, our Constitution can be amended by Parliament though it is a more complicated process compared to amending a statute. That being said, what is said in Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 that it is undesirable for a constitutional question which has been decided by the Court in a previous case after full consideration to be reopened without grave reason, and that the Court will re-examine a previous decision of its own which involves a question of vital constitutional importance if it appears to be manifestly wrong, provides useful guidance in considering the application by the plaintiffs in these proceedings.

80.	In deciding whether the s105(1) proviso was unjustifiably discriminatory and therefore in violation of Article 15(1), Young J in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 37 referred to the decision of the European Court of Human Rights in the Belgian Linguistics Case (No.2) (1979-80) 1EHRR 252, E Ct HR and then stated:

"In the ‘Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (The Belgium Linguistics Case (No.2) EHRR 252 (European Human Rights Reports), the Court identified three questions to consider whether the principle of equality of treatment is violated.

"Firstly, the equality can be violated if the distinction drawn has no objective and reasonable justification.

"Secondly, proportionality between the means employed and the aim sought to be realised must be present.

"Thirdly, the distinction in treatment should be founded on an objective assessment of essentially different factual circumstances and should be based on public interest, striking a fair balance between the interests of the community and the safeguards of the Convention (Constitution)"

81.	In the commentary on Article 14 of the European Convention of Human Rights, which is similar to Article 15(1) and (2) of our Constitution, that is provided in Human Rights Law and Practice (1999) by Lord Lester of Herne Hill QC et al at pp.230-231 at paras 4.14.15 – 4.14.9, it is there stated:

"4.14.15: A difference in treatment will be held to be discriminatory (contrary to art 14) if it has ‘no objective and reasonable justification’. In order to prove such justification the respondent government must show that the difference in treatment pursues a ‘legitimate aim’, and that there is a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.

(a)	Legitimate aim

"4.14.16: The State must put forward a rational aim for any differential treatment proved by the applicant to have occurred; if it does not do so, the applicant’s claim under art 14 will succeed. The E Ct HR has accepted as legitimate for the purpose of the article aims (for example) of supporting and encouraging the traditional family, of protecting the labour market and public order, and of developing linguistic unity. 

(b)	Proportionality

4.14.17: If differential treatment is established by the State to pursue a legitimate aim, the E Ct HR will go on to consider whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. What is required is that the differences in treatment ‘strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention’. A claim of justification by a State may well fail if it is based upon generalisations without objective evidence in support thereof.

(c)	The margin of appreciation

4.14.18: Contracting States enjoy a margin of appreciation in relation to the question of justification, which depends upon the circumstances, subject matter and background of the case.

"4.14.19: The breadth of the margin of appreciation will vary according to the grounds upon which persons are differently treated. The E Ct HR has identified discrimination on certain grounds as particularly serious, with the result that very weighty reasons will have to be advanced by a State to justify such discrimination. Discrimination on grounds of sex, illegitimacy and nationality have been expressly stated by the Court to fall within this category. Discrimination on grounds of race (outside the sphere of nationality) has not been explicitly identified in this way, but it seems certain… that it will attract the same protection".

82.	The jurisprudence of the European Court of Human Rights is, of course, not binding on the Samoa Courts unless adopted by our Courts. But I have referred to the commentary in Human Rights Law and Practice (1999) as this is a case about human rights and in order to compare the approach stated in that text and the approach adopted by Young J in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 37. In my respectful view, the two approaches are substantially the same.

83.	Counsel for the plaintiffs does not really question the correctness of the legal approach adopted by Young J but its application. Where he seems to criticise the correctness of the approach adopted by Young J is when he submits that there should have been "minimal impairment" of the plaintiffs’ right of access to justice and their right to equality but Young J in his judgment makes no reference to the principle of "minimal impairment".

84.	Two observations need to be made about this part of the submissions by counsel for the plaintiffs. Firstly, no authority was cited to show that the right of access to justice, as described by counsel, is part of the right guaranteed under Article 15(1). It may be arguable that the right of access to justice is implicit in the words "entitled to equal protection under the law "used in Article 15(1). However, I prefer not to express any conclusive view on the matter in the absence of authority. There are decisions of the European Court of Human Rights already referred to in this judgment to show that the right of access to a Court of justice is implicit in the right to a fair trial stated in Article 6(1) of the Convention (Article 9(1) of our Constitution) but there is no decision of that Court which states that the right of access to a Court of justice is implicit in Article 14 of the Convention (Article 15(1) and (2) of our Constitution) which embodies the principle of equality.

85.	Assuming, without deciding, that the right of access to justice is implicit in Article 15(1) of our Constitution, such a right would not be absolute but may be subject to limitations, see, for example, Golder v United Kingdom (1975) 1 EHRR 524, E Ct HR, para 38; Staroszczyk v Poland (2007) (supra); Stalkowska v Poland (2007) (supra) in which it is stated that the right of access to a Court of justice is not absolute but may be subject to limitations. The approach which the European Court of Human Rights has adopted to determine whether a limitation by way of differential treatment is discriminatory and in violation of Article 14 of the Convention is the approach applied by Young J in Aiono Sia v Maiava Visekota Peteru (supra) to Article 15(1) of our Constitution. In fact the decision in Belgian Linguistics Case (No.2) (1979 -80) 1 EHRR 252, E Ct HR, para 9, which was applied by Young J in Aiono Sia v Maiava Visekota Peteru (supra) is a decision of the European Court of Human Rights,. 

86.	My second observation regarding that part of the submissions by counsel for the plaintiff which is under discussion here, is that the approach followed by the European Court of Human Rights in determining whether a measure of differential treatment is discriminatory and violates the principle of equality embodied in Article 14 of the Convention makes no specific reference to a requirement of "minimal impairment". Presumably, the nature and extent of any impairment of the principle of equality is taken into account when the Court considers the question of proportionality as a separate limb of its general approach when determining whether a measure of differential treatment violates Article 14. But "minimal impairment" is not mentioned as a separate limb or ingredient of the Court’s approach which is to be given separate consideration.

87.	I also remind myself of what was said by the High Court of Australia in Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 about reopening previous decisions of that Court – "the Court should reconsider a previous decision only with great caution and for strong reasons" and that in constitutional cases "it is obviously undesirable that a question decided by the Court after full consideration should be reopened without grave reason". The Court will, of course, reopen a previous constitutional decision of its own which is "manifestly wrong". Thus the general approach is that reopening decisions given by the Court in constitutional cases after full consideration is not something to be lightly undertaken without great caution, grave concern, and strong reasons.

88.	Adopting that approach to the challenge launched by counsel for the plaintiffs, I am far from being satisfied that it has been shown that the legal approach applied by Young J to determine the constitutionality of the proviso to s.105(1) in terms of Article 15(1) of the Constitution in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 31 is manifestly wrong or even wrong at all. In fact, Young J applied the approach followed by the European Court of Human Rights.

89.	I have also carefully considered the challenge launched by counsel for the plaintiffs to the correctness of the application of the legal approach adopted by Young J to the circumstances in Aiono Sia v Maiava Visekota Peteru (supra). With respect, I am again far being satisfied that His Honour was wrong or manifestly wrong in that regard. I am in respectful agreement with the application of the legal approach adopted by Young J to the circumstances of that case. In other words, the approach adopted by Young J was correct and its application to the circumstances was also correct.

90.	As to the concern expressed by counsel for the plaintiffs in his submissions about the possibility of the s.105(1) proviso having "the effect of rewarding the wealthy and dishonest successful candidates", my experience with election petition cases in this country, previously as counsel and now as a Judge, is that both "wealthy" and "poor" candidates have had allegations of electoral corrupt practices made and proven against them in relation to every general election held from 1979 to 2006. And there were eight general elections during that period of time.

91.	In fact in the general elections held during that period of time, there were many more election candidates you would not classify as "wealthy" who were the subject of allegations of corrupt practices before the Courts than election candidates you would classify as "wealthy". And such election candidates were not all from anyone of political party.

92.	The allegations of electoral corrupt practices that have been brought before the Courts over the years commencing from at least the 1979 general election were also not in relation to any particular constituency or part of the country. It has been nationwide. That had been the case even before the s.105(1) proviso was introduced by s.31 of the Electoral Amendment Act 1995.

93.	The concerns by counsel for the plaintiffs is legitimate. The same concern was also noted by Young J in Aiono Sia v Maiava Visekota Peteru (supra). But the concern can be met under s.103 of the Act which permits a prosecution to be brought against any person for a corrupt practice or illegal practice. That provision applies to "any person" without any restriction.

94.	I have also considered the submissions by counsel for the plaintiffs in relation to the case of Sua Rimoni Ah Chong v Mulitalo Siafausa Vui (2006) and the findings of Sherperdson and Slicer JJ in that case. In my respectful view, what was said in that case is far from sufficient to justify this Court in reopening and departing from the fully considered decision by Young J in Aiono Sia v Maiava Visekota Peteru (supra) that the proviso to s.105(1) of the Act does not violate Article 15(1) of the Constitution. In saying that, I am also mindful of the approach stated in Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 that a decision of the Court given in a constitutional case after full consideration is not to be reopened without great caution, grave concern and strong reasons.

95.	For all those reasons, I am not prepared to depart from the decision of Young J in Aiono Sia v Maiava Visekota Peteru [1998] WSSC 31. In my respectful view, that decision is correct and need not be reopened.

Is the proviso to s.105(1) of the Electoral Act 1963 in violation of the doctrine of separation of powers?

96.	The doctrine of separation of powers is embodied by clear implication in the Samoan Constitution by the provisions of the Constitution which establish the Executive, the Parliament and the Judiciary, the three principal organs of our democratic system of constitutional government. It is a common law principle of democratic and constitutional government whose existence does not depend on the Constitution but is now implicit in the Constitution and forms an integral part of the Constitution. As it was stated by Wilson J in Tuiatua Tupua Tamasese Efi v Attorney-General [2000] WSSC 22:

"This Court acknowledges the separate, independent and powerful roles of the Parliament and the Executive, and this Court has no wish or intention to interfere or, even in the slightest way, to challenge the notion of the separation of powers which is at the heart of Samoa’s system of constitutional government".

97.	The real difficulty with the doctrine of separation of powers and how it is to be applied to these proceedings is one of definition. What does the doctrine mean, more particularly in the context of the Samoan Constitution? This is a difficult and complex question. But before it can be said that the doctrine has been violated in this case, it is important to know what the doctrine means. 

98.	In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states of para 8.5.1, pp 255-256:

"The deceptively simple phrase ‘separation of powers’ embraces at least six overlapping ideas whose implications are not always mutually consistent.

"These identify the:

"(1) 	Differentiation of the concepts ‘legislative’, ‘executive’ and judicial;

"(2)	Physical separation between members of one branch of government and those of another;

"(3)	Isolation, immunity or independence of one branch of government from the actions or interference of another;

"(4)	Checking or balancing of one branch of government by the action of another;

"(5)	Coordinate status and lack of accountability of one branch to another; and

"(6)	Independence and security of tenure of the Judges

"Ideas 1 to 5 identify two major ambiguities. First, does the doctrine imply a physical or functional separation of powers? And secondly, does it imply a policy of checks and balances or isolation and immunity".

99.	Furthermore, there is no one universally accepted meaning of the doctrine of separation of powers throughout the countries with democratic systems of constitutional government. As it is also pointed out in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph at para 8.5.1, p.255:

"No formal separation of powers exists under the Westminster Constitution. The United States with its strict ‘paper separation’ lies at the other end of the continuum…Australia which combines a constitutional vesting of powers with British conceptions of responsible and monarchical government, lies somewhere in between. But even accounting for the differences between these countries, it may be questioned whether some constitutional features exemplify or violate the doctrine".

100.	The difficulty in defining or finding a generally accepted definition of the doctrine of separation of powers is further shown by the learned author of Constitutional and Administrative Law in New Zealand (2001) 2nd ed where he states at para 8.7, p.268:

"One writer believed the separation of powers doctrine was too imprecise to support or refute constitutional arrangements and policies. He thought it was seldom clear whether, and in what sense, a separation of powers existed, or what policy a separation of powers implied. However, this does not destroy the relevance of the doctrine for states that have interpreted it as meaning a particular thing. The United States, for example, interpreted it as requiring physical separation of the legislative-executive branches. The consequence of this separation is seen when Senate committees probe presidential or executive involvement in unpatriotic or illegal practices. Senate inquisitions exact an accountability seldom witnessed in Westminster Parliaments, where there is a merging of executive – legislative personnel. The doctrine of separation of powers has been equally influential when interpreted differently as in France with its Constitutional Council and distinctive droit administratif. Legislative and executive immunity from judicial review is a riveting feature of the French separation of powers. Even in New Zealand where the principle of separation of powers has no formal role, the distinctions between the primary functions of law – making, law – executing and law-adjudicating cannot be abandoned. The separability of the core functions of government –although of necessity interlocking and merging is a necessary condition of the rule of law and limited government".

101.	Perhaps, given the difficulty and complexity in defining the doctrine of separation of powers or finding a generally accepted definition or meaning for it, it is not surprising that the European Court of Human Rights has repeatedly stated that an alleged violation of the doctrine of separation of powers is not to be decided by applying the doctrine in the abstract. The alleged violation is to be decided by having regard to the requirements of the Convention.

102.	For example, in Sasilor Lormines v France (2006) (judgment of 9 November 2008) at para 71 and Pabla Ky v Finland (2004) (Final judgment delivered on 22/09/04) at para 34, the European Court of Human Rights reiterated that the principle of separation of powers is not decisive in the abstract. 

103.	In the cases of Pabla Ky v Finland (2004) (Final judgment delivered on 22/09/2004) at para 29 and Kleyn v The Netherlands (2003) (judgment of 6 May 2003) at para 193, the European Court stated:

"Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case – law (see Stafford v The United Kingdom…), neither Article 6 or any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question is always whether, in a given case, the requirements of the Convention are met".

104.	Counsel for the plaintiffs in his submissions states that it is not for the legislature to usurp the judicial function of controlling and determining access to justice particularly in cases involving abuse of power. I do not think any Court in Samoa will disagree with that. But the real question in these proceedings is whether the proviso in s.105(1) violates the doctrine of separation of powers.

105.	As the European Court of Homan Rights has pointed out with reference to the doctrine of separation of powers, no provision of the Convention requires compliance with any theoretical constitutional concepts regarding the permissible limits of interaction between the powers of the government and the judiciary. "The question is always whether, in a given case, the requirements of the Convention are met". The doctrine of separation of powers is not decisive in the abstract.

106.	With respect, it is not clear how the case of Hinds v The Queen [1976] 1 A11 ER 353 cited for the plaintiffs assists the plaintiffs Hinds dealt with the question of whether a particular legislation passed by the Jamaican Parliament to establish a particular type of Court to deal with firearms offences was constitutional or unconstitutional in terms of the Constitution of Jamaica. That is a different type of situation from the one in the present proceedings.

107.	It is also to be noted that in Hinds the Privy Council was divided three to two as to what should be the outcome of the appeal. So Hinds was not a unanimous decision of the Privy Council. It is also not clear from the material before this Court how authoritative Hinds is treated in other common law jurisdictions in relation to the doctrine of separation of powers. In the extensive discussion on the doctrine of separation of powers provided in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph pp 236-269, there is no mention of reference to Hinds.

108.	To the extent that there may be differences between Hinds and the approach by the European Court of Human Rights to the doctrine of separation of powers, I would respectfully apply in these proceedings the approach of the European Court which is more relevant to this case since it is an approach within the context of human rights.

109.	In the case of Liyanage v R [1966] 1 A11 ER 650 which was cited by counsel for the Attorney-General, the Privy Council had to deal with an appeal which raised the question of whether an Act of the Ceylon Parliament which changed the criminal law, the law of criminal procedure and the law of evidence under which the appellants were tried following an abortive coup de tat was in violation of the "Constitution of Ceylon" and more particularly the doctrine of separation of powers.

110.	It appears from the report of Liyanage v R [1966] 1 A11 ER 650 that at the time of that case what was meant by the "Constitution of Ceylon" was an Order in Council (the Ceylon Constitution Order in Council 1946) which gave power to the Ceylon Parliament to make laws for the peace, order and good government of the island. That was followed by the Ceylon Independent Act 1947 which was a statute of the UK Parliament. In other words, at the time of that case, Ceylon did not have a written Constitution like the Samoan Constitution. Its Constitution consisted of an Order in Council which gave to the Ceylon Parliament power to make laws for the peace, order and good government of the country a statute of the UK Parliament. It was in that context that the case of Liyanage v R arose from an abortive coup de tat and ended up before the Privy Council. 

111. 	It is therefore easy to understand why the Privy Council had to decide the constitutionality or otherwise of the legislation under challenge in that case on the basis of the common law doctrine of separation of powers rather than on the basis of a written Constitution, like the Samoan Constitution, because Ceylon did not have such a Constitution at that time. 

112.	If the type of situation that arose in Liyanage v R [1996] 1 All ER 650 were to arise in Samoa, there is no doubt that the constitutionality of the legislation in question would be determined on the basis of our Constitution rather than on the basis of common law principles. I say this for the following reasons. 

113.	The effect of the legislation that was challenged in Liyange v R was to try the appellants on offences which did not exist at the time they were alleged to have been committed, that is, the time of the abortive coup. The same legislation also drastically altered the law of criminal procedure and the normal rules of evidence to facilitate, if not ensure, the conviction of the appellants. If such a legislation were to exist in Samoa, it would violate Article 10(2) of our Constitution which expressly prohibits any person being found guilty of an act or omission which did not constitute an offence at the time it was committed. Such a legislation would also violate the right to a fair trial provided in Article 9. 

114.	Even though the Privy Council applied the common law doctrine of separation of powers in Liyanage v R when deciding that the legislation in that case was unconstitutional, Lord Pearce who delivered the judgment of the Privy Council noted the difficulty in defining and applying the doctrine. His Lordship stated at p. 659:

"[Their] Lordships are not prepared to hold that every enactment in this field which can be described as ad hominem and ex post facts must inevitably usurp or infringe the judicial power. Nor do they find it necessary to attempt the almost impossible task of tracing where the line is to be drawn between what will and what will not constitute such interference."

115.	As I understand the submissions by counsel for the plaintiffs, he is in effect saying that the proviso to s.105 (1) constitutes a usurpation by the legislature of the judicial function of controlling and determining access to justice, particularly in cases involving abuse of power. This is too general a way of putting the matter.

116.	The approach by the European Court of Human Rights, where the principle of separation of powers is raised in relation to the Convention, is to ask whether, in a given case, the requirements of the Convention are met. The principle of separation of powers is not decisive in the abstract. 

117.	Applying that approach to these proceedings, I have already decided that Article 9 (1) does not apply to these proceedings as it only applies to the determination of a person’s civil rights and obligations, but the rights which are in issue in these proceedings are political rights. I have also decided not to depart from Aiono Sia v Maiava Visekota Peteru [1998] WSSC 37 where Young J held that the proviso to s.105 (1) does not violate Article 15 (1).

118.	For all those reasons, I conclude that the proviso to s.105 (1) of the Electoral Act 1963 is not in violation of the doctrine of separation of powers. 

Is the proviso to s.105 (1) of the Electoral Act 1963 in violation of the constitutional guarantee of a system of representative and responsible government?

119.	In the plaintiffs’ statement of claim, it is pleaded as their third cause of action that the proviso to s.105 (1) of the Electoral Act 1963 is in breach of Articles 44, 45 and 64 of the Constitution which guarantee a system of representative and responsible government with members of the Legislative Assembly chosen through free and periodic elections.

120.	It is further pleaded by the plaintiffs under the same part of their statement of claim that the Constitution precludes the legislature from enacting laws which unduly restrict the right of a citizen to have access to the Courts, but that is the effect of the proviso to s.105(1). It is therefore submitted that the proviso to s.105 (1) is in breach of the principle of representative and responsible government. 

121.	Counsel for the plaintiffs, however, does not pursue or at least actively pursue with sufficient clarity in his submissions the point about the proviso to s.105 (1) being in breach of the principle of representative and responsible government said to be guaranteed in Articles 44, 45 and 64 of the Constitution.

122.	Counsel for the Attorney-General, on the other hand, have dealt extensively in their submissions with the alleged breach of the principle of representative and responsible government. Without intending any discourtesy to counsel for the Attorney-General and their thought submissions, I do not propose to further prolong this judgment by referring to their submissions as, in my view, the plaintiffs third cause of action can be dealt with quite briefly. 

123.	At the heart of the plaintiffs third cause of action is again the allegation that the proviso to s.105 (1) unduly restricts the right of access to justice of an unsuccessful election candidate unless he polled more than 50% of the total number of votes polled by the successful candidate. Even though the issue, as pleaded in the plaintiffs third cause of action, is brought under the umbrella of the principle of representative and responsible government, it is the same issue raised under the plaintiffs first and second causes of action which have already been dealt with in this judgment.

124.	I do not propose to further prolong this judgment by dealing with the same issue again. Suffice to say that the principle of representative and responsible government is too general and broad that I am not satisfied by the submissions by counsel for the plaintiffs that it has been breached by the proviso to s.105(1) as claimed in those submissions.

125.	In the context of New Zealand, the concept of "responsible government" is explained in Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph at para 1.3.3, p.8, where the learned author states:

"Responsible government promotes the principle of the parliamentary ministry. Under responsible government, the political arm of the executive (‘the Government’) is recruited from and located within Parliament. It is customary for the Prime Minister to recommend the appointment of…Cabinet Ministers…Responsible government implies the convention of ministerial responsibility to Parliament both collectively on the part of Cabinet for the overall performance of the Government, and individually by Ministers for the performance of their portfolios.

"Responsible government facilitates decision-making under a constitutional monarchy. The Crown acts always on and in accordance with ministerial advice. This convention requires that there must always be a Government that is capable of advising the Crown and accepting responsibility for the advice tendered. The persons appointed as the Crown’s advisers (‘the Government’) must be Members of Parliament who retain the confidence of the House…Under the convention of collective responsibility, the Government must resign if it is defeated in the House on a vote of no confidence".

126.	Again in Constitutional and Administrative Law in New Zealand (2001) 2nd ed, the learned author when discussing the concept of representative government" states in para 1.3.4. at p.9:

"Responsible government implies representative government, but the reverse does not necessarily follow… A representative legislature is a prerequisite of constitutional government and adheres to the ideals of liberal democracy. General elections are held every three years under the Electoral Act 1993, based on universal adult suffrage (the right to vote) and the secret ballot. A general election realises the people’s choice of government from among the contesting political parties".

127.	Stating the concepts of "responsible government" and "representative government" in those broad and descriptive terms, it is not possible to see from the submissions for the plaintiffs how the proviso to s.105 (1), within the context of the Electoral Act 1963, is in violation of the principle of representative and responsible government said by counsel for the plaintiffs to be guaranteed under Articles 44, 45 and 64 of the Constitution.

128.	For those reasons, I conclude that the proviso to s.105 (1) of the Electoral Act 1963 is not in violation of the principle of representative and responsible government as claimed for the plaintiffs.

Conclusions

129.	The plaintiffs’ motion is dismissed.

130.	Counsel to file memorandum as to costs in 10 days.

CHIEF JUSTICE