CP 158/2006

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Constitution and Standing Orders 20 (1) (5)

BETWEEN:

SAMOA DEMOCRATIC UNITED PARTY (SDUP)
a duly registered political party
First Applicant

AND:

ASIATA SALEIMOA VAAI of Siusega and Satupaitea, 
MULIPOLA OLIVA MULIPOLA of Manono uta, 
TUIA FUATOGI PUA LETOA of Ululoloa and Safata, 
LEVAOPOLO TALATONU of Vaitele uta and Saleaula, 
TAUA FARAIMO of Salailua,
All Members of Parliament.
Applicants

AND:

TOLOFUAIVALELEI FALEMOE LEIATAUA of Leulumoega, 
Speaker of the Legislative Assembly
Respondent

Presiding: Justice Kellam 

Counsel:F Vaai-Hoglund for applicants
S Rimoni for respondent

Date of Hearing: 3 May 2009
Ruling: 6 May 2009

RULING OF JUSTICE KELLAM

Strike out motion by the Respondent

1.	In these proceedings the Court is concerned with a motion by the respondent to strike out the applicants’ amended notice of motion filed on 7 March 2008, which seeks a declaration that certain Standing Orders of Parliament are invalid, and for an order of mandamus to remedy alleged violation of the fundamental rights of the plaintiffs.

Background 

2. 	The background facts are that at all material times the first applicant, Samoa Democratic United Party ("SDUP"), was a political party registered under the Electoral Act in 1964. The second applicants were at all material times members of Parliament.

3. 	Following general elections in March 2006, the SDUP was recognized in Parliament as a political party. It then had ten members of Parliament as its membership. At all material times the Standing Orders of Parliament (by Order 20(1)) provided that subject to certain formalities any group of members of not less than eight were to be recognized as a party. The Order provided further (by Order 20(5)) that a party that had been recognized as a party in Parliament would lose its recognition if its membership fell below eight members.

4.	Following a change in leadership of the SDUP, its parliamentary membership fell to six members in or about September 2006. On 13 November 2006, the respondent, the Speaker of the House, announced in Parliament that as the membership of the SDUP party had fallen below eight persons, recognition of the party under the Standing Orders was lost.

5.	On 8 December 2006 the SDUP and its then members sought interim injunctive relief by way of notice of motion. The relief sought was an order restraining the Speaker of the Assembly from not recognizing the SDUP as a party. In effect what was sought was a mandatory injunction compelling the Speaker to recognize the SDUP as a party, notwithstanding the requirements of Standing Order 21(5). Subsequently the motion was refused by the Chief Justice. See Samoa Democratic United Party v Leiataua [2007] WSSC 15. 

6.	Also on 8 December 2006 a notice of motion seeking a declaration that Standing Order 20 is invalid and an order of mandamus against the Speaker was filed. An amended notice of motion dated 31 March 2008 was filed subsequently. On the same day, a summons was issued by the SDUP and its members, the statement of claim seeking a number of orders, including mandamus and compensation. An amended statement of claim was filed on 7 March 2008.

7.	On 9 June 2008 the respondent issued a notice of motion to strike out both the amended statement of claim and the amended notice of motion. It is that notice of motion filed on behalf of the respondent with which I am here concerned.

Concessions made by Counsel for the applicants upon the hearing of the respondent’s motion to strike out

8.	On 30 April 2009 the applicants filed a memorandum of discontinuance of the statement of claim. However, the memorandum stated that the applicants intended to continue with the amended notice of motion for a declaration of invalidity of Standing Order 20 and mandamus to remedy violation of fundamental rights. However at the commencement of the hearing of the strike out motion counsel for the applicants informed me that they wished to abandon their claim for mandamus. Furthermore, counsel informed me that the applicants no longer sought to argue that Standing Order 20 is in breach of Articles 6 (1), 13 (1)(a), and 13 (1) (c) of the Constitution. The applicants however, do seek to argue that Standing Orders 20 (1) and (5) are in breach of Article 15 of the Constitution and seek a declaration to that effect.

9.	Accordingly, the only issue now for determination by me is the question of whether or not the applicants’ motion seeking a declaration that Standing Orders 20 (1) and (5) are in breach of Article 15 of the Constitution and should be struck out.

The submissions of the applicant

10.	As stated above and by reason of the concessions made by counsel, the applicants’ notice of motion is now constrained to a discrete argument relating to Article 15 of the Constitution of Samoa.

11.	Article 15 of the Constitution provides as follows: 

15.	Freedom from discriminatory legislation – 

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

2)	Except as expressly authorized 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 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.

3)	Nothing in this Article shall –

a)	Prevent the prescription of qualifications for the service of Samoa or the service of a body corporate directly established under the law; or

b)	Prevent the making of any provision for the protection or advancement of women or children or of any socially or educationally retarded class of persons.

4)	Nothing in this Article shall affect the operation of any existing law or the maintenance by the State of any executive or administrative practice being observed on Independence Day:

Provided that the State shall direct its policy towards the progressive removal of any disability or restriction which has been imposed on any of the grounds referred to in clause (2) and of any privilege or advantage which has been conferred on any of those grounds.

12.	The argument of the applicants is that the Standing Orders of Parliament are a law within the meaning of Article 111 (1) of the Constitution.

Article 111 (1) defines "Law" as follows:

Any law for the time being in force in Samoa; and includes this Constitution, any Act of Parliament and any proclamation, regulation, order, by-law or other act of authority made thereunder, the English common law and equity for the time being in so far as they are not excluded by any other law in force in Samoa, and any custom or usage which has acquired the force of law in Samoa, or any part thereof under the provisions of any Act or under a judgment of a Court of competent jurisdiction.

13.	It is argued that Standing Orders 20 (1) and (5) are unconstitutional in that they breach the applicants’ rights to freedom from discrimination on the grounds of political opinion as guaranteed by Articles 15 (1) and (2) of the Constitution. It is submitted that in prescribing a parliamentary membership of at least eight persons, the Standing Orders discriminate against political parties such as the first applicant, and also discriminate against members of Parliament who are members of political parties that the respondent considers have less than eight members. It is argued that political parties with less than eight members, and members of Parliament who are members of those political parties, are expressly subject to a disability or a restriction on the grounds of their political opinions. It is argued that the fact that they adhere to a certain political stance or view, and form a political unit or entity through which they present that political stance or view, is "brought to bear against them in that they are expressly not recognized if they do not have the requisite number in Parliament". Conversely it is argued that those political parties with more than eight members, and the members of Parliament who belong to such parties, are "expressly conferred a privilege or an advantage on the grounds of their political opinions".

14.	It is submitted further that the disabilities or restrictions caused by the non-recognition of a political party in Parliament impact, not only upon the party but upon its members who are serving as members of Parliament, with the loss of title and salaries in the cases of the Leader and Deputy Leader of the Party, loss of funding for party activities and loss of identity for members when they are arbitrarily classed as independents. On the other hand, it is argued that the privileges and advantages conferred on a political party having more than the requisite number of seats are obvious. Indeed it is submitted that in the present circumstances where only one party has more than the requisite number of seats a circumstance of monopoly arises in terms of official recognition and in the use of budgetary funds for political development.

15.	Counsel for the applicants made reference to Efi v Attorney General for Samoa [2000] WSSC 22 where the following passage appears:

Whilst it is true that the Constitution is silent about the position of Leader of the Opposition, his role and those of the Opposition in a Westminster-style Parliamentary democracy, as Samoa has, are to be implied.

As to how the common law sees the Opposition, reference is made to Halsbury’s Laws of England (4th Edn.) Volume 8 para 218, in which the learned authors state:

"Her Majesty’s Opposition performs essential functions in both Houses of Parliament, criticising the work of the Administration in power and continuously offering an alternative Administration to the electorate ..... The constitution of a Parliamentary Opposition originated, and still operates for the most part, as part of a de facto two-Party system in which the Government has a majority in the House of Commons and its opponents belong largely to one other Party. While the Opposition in the Commons cannot usually prevent the passage of government business or defeat government motions, it is by convention accorded full right to discuss and criticise the work of the government in debate and by question in each House. In this way the difficulties involved in implementing government policy are exposed and the development of government by a secretive oligarchy is impeded."

The functions of the official Opposition, and of its Leader, in the Legislative Assembly of Samoa are, I think, similar to those mentioned in the passage just quoted. I am persuaded that they are essential parts of the exercise, in the political context, of the right to freedom of expression conferred by Article 13(1) (a) of the Constitution.

It is argued on behalf of the applicants that the effect of Standing Order 20 is that an "essential part of the exercise" of the right to freedom of expression is curtailed by the discriminatory nature of the Order.

The submissions of the Respondent as to why the Notice of Motion should be struck out

16. 	In written submissions placed before the Court, the respondent relied upon two arguments:

a)	That the applicants had brought the proceedings against the wrong party;

b)	That by reason of section 3 and 31 of the Legislative Assembly Powers and Privileges Ordinance 1960, the respondent is immune from suit and the proceedings are statute barred.

Wrong Party

17.	The written submissions filed on behalf of the respondent contained an argument that the respondent was the incorrect party to the proceeding and relied upon Ah Chong v Legislative Assembly of Western Samoa [1996] WSCA 2 as authority for the proposition that the "proper party to these proceedings should be the Legislative Assembly". However this argument was but faintly pressed before me in oral submissions after I suggested to counsel for the respondent that if anything, the Ah Chong case is authority for the opposite. In delivering the judgment of the Court of Appeal in Ah Chong, Lord Cooke said:

We have reservations about the somewhat novel course of naming a House of the legislature as a defendant. It is not a body corporate and we doubt whether it can sue or be sued. The orthodox procedure would be to sue Ministers or the Speaker or other officer who might seek to enforce decisions of the House alleged to be invalid. 

18.	As I observed in the course of oral argument, the above statement is dicta, but to my mind it is dicta of a most persuasive nature. In my view, the naming of a House of legislature as a defendant is indeed novel. Indeed, in the limited time available to me for research, I was unable to find such a case other than Ah Chong, in the jurisprudence of the UK, Australia, New Zealand and Samoa. It appears to me to be clear that, as Lord Cooke stated, the appropriate procedure is to sue Ministers, or the Speaker or other officer who might "seek to enforce decisions of the House alleged to be invalid". That is precisely what the applicants have done in the proceedings now before me. The Speaker did enforce the Standing Orders which the applicants now challenge as being void on the basis of being unconstitutional. Accordingly, as was in effect conceded by counsel for the respondent, there is little substance in the argument that the respondent has been incorrectly named as a party to these proceedings. 

Are proceedings statute barred?

19.	As stated above, the respondent relies upon sections 3 and 31 of the Ordinance.

20.	Section 3 provides:

3.	Immunity from proceedings – No member of the Legislative Assembly shall be liable to any civil or criminal proceedings in respect of:

(a)	Any speech or debate in the Legislative Assembly or a committee thereof;

(b) 	….

It is argued on behalf of the respondent that s.3 (a) applies to these proceedings as the proceeding is brought against the Speaker "in his official capacity as the Speaker of the Legislative Assembly and concerns an announcement, that is a speech, by the respondent in the Legislative Assembly as an enforcement of Standing Orders 20 (1) and (5)."

21.	There can be no doubt that s.3 of the Ordinance provides members of the Legislative Assembly with personal immunity from suit for anything said in the Assembly during the course of a speech or debate or in committee. However, the respondent is not sued in his personal capacity. Counsel for the applicant argues that the Standing Orders are administered by the Speaker in his role as the Head of the Legislative Assembly. 

22.	In my view the argument referred to in the preceding paragraph is tenable and I do not conclude that the proceeding brought by the applicant is bound to fail by reason of s.3 (1) of the Ordinance.

23.	I turn now to s.31 of the Ordinance which provides as follows:

Neither the Speaker of the Assembly nor any officer shall be subject to the jurisdiction of any Court in respect of the exercise of any power conferred on or vested in him by or under this Ordinance or the Standing Orders of the Assembly or the Samoa Amendment At 1957 (NZ).

24.	The respondent submits that in announcing that the first applicant was no longer recognized by Standing Orders, he was exercising a power conferred or vested in him by such Standing Orders, and that he was doing so to enforce the observance of Standing Order 20(5). I have no difficulty in accepting that was so, and that subject to one issue, there can be no doubt that this Court should refrain from interfering in the exercise of such a power by the Speaker. That one issue is that in circumstances where it can be established that there is a breach of the Constitution, a Court may be entitled to inquire into the validity of the action of the Legislative Assembly, or the action of the Speaker or of a Committee Chairman. The principle is stated clearly in Ah Chong. 

There is a well-settled principle that what is said or done within the walls of a legislative assembly cannot be questioned in the Courts. It is recognised that the respective constitutional roles of the Courts and Parliament normally require the Courts to refrain from intervening in Parliamentary proceedings. Conflicts between the judicial and legislative organs of the State are to be avoided as far as possible. Generally speaking, a body such as the Legislative Assembly of Western Samoa is left free to regulate and determine its own internal procedure from time to time………..

Of course, like all principles this one has its limits and they are not always easily discernible. One limit must be that a written constitution such as that of Western Samoa may place upon the Courts some duty of scrutinising Parliamentary proceedings for alleged breaches of constitutional requirements. Thus, while normally it is for a legislative assembly to determine the effect of its own orders and to depart from them if the Assembly sees fit, a Constitution may displace that presumption by making compliance with the standing orders a condition of the validity of the legislation or, no doubt, of the validity of other steps taken by the assembly. But we agree with McLelland J in Namoi Shire Council v Attorney-General for New South Wales [1980] 2 NSWLR 639, 645, that the Court would lean against such an interpretation………..In the present case Sapolu CJ would have required ‘irresistible clarity’. Possibly, in our respectful opinion, that puts the test a little high, but certainly any real ambiguity would be resolved in favour of non-intervention.

25.	However the question to be considered by me is, in all the circumstances, whether it is reasonably arguable that Standing Orders 20 (1) and (5) are inconsistent with Article 15 of the Constitution. Or, perhaps put the other way, is such an argument so hopeless, without substance and groundless that it cannot succeed?

26.	In my view there is considerable weight in the argument advanced by the respondent that Article 15 of the Constitution does not apply in the circumstances of this case. In Attorney-General and Ors v Saipaia [1982] WSCA 3; [1980-1993] WSLR 41 the Court of Appeal gave consideration to the ambit and extent of Article 15 in the context of the Electoral Act 1963. In that case the Court of Appeal considered the proceedings of the Constitutional Convention which led to the adoption of the Constitution of Samoa. It referred to a number of passages from the Convention proceedings relating to Article 15 (2) and in particular to a statement made by the Constitutional adviser to the Western Samoan Government and a remark made by him that Article 15 (2) did not extend to political rights. The judgment of the Court continued: "In other words, the Convention proceeded on the advice and basis that the equality guarantee of Article 15 did not prevent discrimination in important political rights".

27.	It is argued by the respondent on that basis, that the right of a political party and its members to be recognized in Parliament is a political right and is thus outside of the purview of Article 15. 

28.	Furthermore, even if Article 15 does apply it is argued that Standing Orders 20 (1) and (5) do not violate the principle of equality of treatment that is at the heart of Article 15. Counsel for the respondent relied upon Sia v Peteru [1998] WSSC 37 where Young J identified the question to be considered as follows:

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 realized 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.

29.	Counsel for the respondent referred me to Hansard of 20 August 1997 as evidence of the Parliamentary policy underpinning Standing Orders 20 (1) and (5). I will not repeat what was put before me save to say that a reading of the speech of the then Prime Minister establishes that the Standing Orders under consideration were introduced in 1997 so as to prevent members of Parliament switching from one party to another during a Parliamentary term and in order to achieve stability in Parliament. Indeed, it would appear that originally thirteen members were required to form a Parliamentary party, that number reducing to eleven members, then to nine members and then to eight. The Prime Minister said that those reductions were made so as to ensure that the opposition (which it would appear after each election had ever dwindling numbers of members) should continue to be recognised as a party.

30.	Accordingly, even if Standing Orders 20 (1) and (5) are subject to Article 15, about which proposition I have grave doubt, there is a good argument that the circumstances under which the Standing Orders in question operate, are such that they fall within the power of Parliament to regulate its own processes and procedures. If that is so it is well arguable that any discrimination has an objective and reasonable justification and indeed is based on the public interest in having a stable parliament.

31.	Accordingly, I consider that the case advanced by the applicant is not without serious difficulty. I would have had little difficulty in striking out the amended statement of claim seeking compensation of "$100,000 for breach of each of the Plaintiff’s fundamental rights" and the claim for "a mandamus to compel the defendant to recognize the first plaintiff as a party" and to "promulgate a Standing Order that is non-discriminatory in recognition of political parties in Parliament". However, what is sought now is merely a declaration that pursuant to Article 15 of the Constitution, Standing Orders 20 and 5 are void.

32.	The notice of motion filed on behalf of the respondent on 9 June 2008 seeks that the applicant’s amended notice of motion be struck out in its entirety. It does so pursuant both to Rule 70 of the Supreme Court (Civil Proceedings) Rules 1980 and pursuant to the inherent jurisdiction of the Court. Insofar as Rule 70 is concerned the cause of action is clearly disclosed. It is a claim seeking a declaration that Standing Orders 20 (1) and (5) are invalid on the grounds that they are in conflict with Article 15 of the Constitution.

33.	Insofar as the respondent seeks to rely upon the inherent jurisdiction of the Court, through his Counsel he submits that the claim is frivolous, vexatious or an abuse of Court process because the claim 

i.	discloses no cause of action;

ii.	is an attempt to interfere or hinder with the power and functions of the respondent, the Legislative Assembly and Parliament;

iii.	has been brought for the improper purpose of causing embarrassment to the respondent;

iv.	has been brought for the improper purpose of furthering the applicants’ political interests.

34.	I am not satisfied that any of these grounds have been made out. In the end result, and although I have some real doubt as to the applicants likely prospects of success, the exercise of an inherent power to strike out a proceeding or a part of a proceeding is discretionary. As stated in Halsburys Laws of England 4th Edn and Vol 37 and quoted by Wilson J in Kneubuhl v Liugalua [2000] WSSC 27:

It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases.

35.	The issue here is one of public importance. The effect of Standing Orders 20 (1) and (5) in the circumstances which applied in September 2007 meant that there was no opposition party. Although Standing Order 21 provides that the Leader of the Opposition is the leader of "the largest party in terms of its parliamentary membership which is not in government, or in coalition with a Government party" there of course was no recognized party other than the party which formed the Government. It may well be that the Standing Order is well within the power of the Assembly, but it appears to me that such a conclusion would be better reached after full argument in the proceeding and not by me upon a strike out motion. It follows that the motion should be refused.

36.	That said however, it appears to me to be clear that the applicants should be ordered to serve and file an amended notice of motion reflecting the concession made before me as to the manner in which the proceeding is to be pleaded. That is, the amended pleadings should reflect the fact that the only remedy now sought by the applicants is a declaration as to the non-validity of Standing Orders 20 (1) and (5) by reason of their lack of constitutionally based upon Article 15 of the Constitution. I would also grant leave for the applicants to amend their pleadings so as to rely upon Article 13(1) in the manner referred to in Efi v Attorney General as set out in paragraph 15 above. 

37. Costs reserved.

HONOURABLE JUSTICE KELLAM