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Human Rights Protection Party (HRPP) Inc v Masipa'u [2021] WSSC 79 (12 November 2021)

IN THE SUPREME COURT OF SAMOA
Human Rights Protection Part (HRPP) Inc. & Ors v Masipa’u [2021] WSSC 79 (12 November 2021)


Case name:
Human Rights Protection Party (HRPP) Inc. & Ors v Masipa’u


Citation:


Decision date:
12 November 2021


Parties:
HUMAN RIGHTS PROTECTION PARTY{HRPP) INC (First Applicant) and HON TUILAEPA LUPESOLIAI SAILELE MALIELEGAOI; HON LAUOFO FONOTOE NUAFESILI PIERRE LAUOFO; LEALAIPULE RIMONI AIAFI; SULAMANAIA FET AIAI TAUILIILI TUIVASA; LENATAI VICTOR FAAFOITAMAPUA, HON TAPUNUU NIKO LEE HANG, ALE VENA ALE, HON LOAU SOLAMALEMALO KENETI SIO, HON SALA FATA PINATI, LUPEMATASILA GALUMALEMANA TOLOGATA TOGIA TILE LEIA, LEAANA RONNIE POSINI,
HON TUUU ANASII LEOTA, FUAAVA SULUIMALO AMATAGA, MAUU SIA OSI PUEPUEMAI, ALAIASA MOEFAAUOUO MALAGAITUTOGIAI SEPULONA MOANANU, PESETA VAIFOU TEVAGAENA, HON FAIMALOTOA KIKA STOWERS AH KAU, HON LAUTAFI FIO SELAFI PURCELL (Second Applicants) v HON PAPALII OLOIPOLA MASIPA’U (Respondent)


Hearing date(s):
16 September 2021


File number(s):
MISC222/21


Jurisdiction:
CIVIL


Place of delivery:
Supreme Court of Samoa, Mulinuu


Judge(s):
Chief Justice Satiu Simativa Perese
Justice Niavā Mata Tuatagaloa
Justice Tologata Tafaoimalo Leilani Tuala-Warren


On appeal from:


Order:
This Court has the authority under Article 70 to give a generous interpretation to the words and principles which are used to establish government, as may be necessary to administer the laws of Samoa, including of course the Constitution. We accordingly acknowledge the existence of an implicit Constitutional intention and imperative for the swearing in of duly elected and qualified members to take place at the earliest appropriate opportunity following a general election. This interpretation is consistent with the Court of Appeal’s approach in AG v Latu [2021] WSCA 6, and means the unsworn applicants must be sworn in, forthwith.

Costs are to lie where they fall.


Representation:
A M Leung Wai and L Sio for First and Second Applicants
K Koria for Respondent


Catchwords:
Oath of Allegiance – elected Constituency members – General Election 2021 – Parliament – Speaker of the House – swearing in


Words and phrases:
“Swearing in of elected members of the Legislative Assembly”


Legislation cited:
Constitution of the Independent State of Samoa 1960, Articles 2, 4, 9(1), 15, 44, 44(1), 44(3), 45, 46, 47, 49, 52, 53, 56, 57, 58, 59, 61, 62, 70, 111;
Electoral Act 2019 ss. 84, 84(2);
Legislative Assembly Powers and Privileges Ordinance 1960 s. 31;
Standing Orders, r. 14.


Cases cited:
Ah Chong v Legislative Assembly [1996] WSCA 2;
Attorney General v Latu [2021] WSCA 1;
Attorney General v Saipaia (Olomalu) & Ors (1980-1993) WSLR 41;
Bradlaugh v Gosset(1884) XII QBD 271;
Fatupaito (Lesa Erika) v Public Service Board of Appeal (1980-1993) WSLR 10;
“Interpreting the Constitution – Words, History of Change” Monash University Law Review (Vol 40. No 1);
Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters New Zealand Ltd, Wellington, 2021);
Malifa v Sapolu [1999] WSSC 47;
Minister of Home Affairs v Fisher [1908] A.C. 319;
Ngaronoa & Ors v Attorney General & Ors [2018] NZSC 123;
Pita v Attorney General [1995] WSCA 6;
Vaai v Sivanila [2008] WSSC 73.


Summary of decision:

MISC222/21


IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU


IN THE MATTER OF:


Articles 4, 44, 45, 46, 47, 52, 61 of the Constitution of the Independent State of Samoa


A N D:


IN THE MATTER OF:


The Declaratory Judgments Act1988 and the Government Proceedings Act 1964


A N D:


IN THE MATTER OF:


The Electoral Act 2019


BETWEEN:


HUMAN RIGHTS PROTECTION PARTY (HRPP) INC an incorporated society registered under the Incorporated Societies Ordinance 1952


First Applicant


A N D:


HON TUILAEPA LUPESOLIAI SAILELE MALIELEGAOI; HON LAUOFO FONOTOE NUAFESILI PIERRE LAUOFO; LEALAIPULE RIMONI AIAFI; SULAMANAIA FET AIAI TAUILIILI TUIVASA; LENATAI VICTOR FAAFOITAMAPUA, HON TAPUNUU NIKO LEE HANG, ALE VENA ALE, HON LOAU SOLAMALEMALO KENETI SIO, HON SALA FATA PINATI, LUPEMATASILA GALUMALEMANA TOLOGATA TOGIA TILE LEIA, LEAANA RONNIE POSINI, HON TUUU ANASII LEOTA, FUAAVA SULUIMALO AMATAGA, MAUU SIA OSI PUEPUEMAI, ALAIASA MOEFAAUOUO MALAGAITUTOGIAI SEPULONA MOANANU, PESETA VAIFOU TEVAGAENA, HON FAIMALOTOA KIKA STOWERS AH KAU, HON LAUTAFI FIO SELAFI PURCELL, Duly elected members of the Legislative Assembly of Samoa


Second Applicants


A N D:


HON PAPALII OLOIPOLA MASIPA’U, Speaker Legislative Assembly.


Respondent


Presiding Judges: Chief Justice Satiu Simativa Perese
Justice Niavā Mata Tuatagaloa
Justice Tologata Tafaoimalo Leilani Tuala-Warren


Counsel: A M Leung Wai and L Sio for First and Second Applicants
K Koria for Respondent


Hearing: 16 September 2021


Judgment: 12 November 2021


JUDGMENT OF THE COURT

  1. This case raises yet another novel issue of considerable public importance; does a speaker have the power to refuse to swear in duly elected members of the Legislative Assembly on the basis that those members did not recognise the legitimacy of the Government?
  2. We have already answered this question in the negative. On 16 September 2021, this Court made the following declarations:
    1. Pursuant to Art 61, the Oath of Allegiance is required to be administered to all Members of Parliament before they can sit or vote in the Legislative Assembly.
    2. The Applicants are Members of the Legislative Assembly by virtue of Art 44.
    3. The Respondent has an obligation to administer the Oath of Allegiance under Standing Order 14.
    4. The Respondent is obliged to carry out the obligation forthwith to fulfil the requirements of Art 61 of the Constitution of the Independent State of Samoa.
    5. Costs are reserved.
  3. In brief we noted that we did not consider it appropriate for duly elected members of Parliament should be refused the opportunity to attend Parliament and be duly sworn in at the earliest opportunity. Such denial cannot be protected by the principle of non-intervention. We observe the nub of the issue was the Speaker’s refusal of the opportunity to attend Parliament and to be duly sworn in at the earliest opportunity; it is not merely the refusal of an opportunity to attend Parliament. As will become plain in our discussion, any duly elected person may enter the Legislative Assembly or Parliament, but they can only carry out the function of being duly elected constituency members after they are sworn in.
  4. We set out our reasons below. First a brief chronology:

THE ISSUES

  1. There is one issue which arises: when must the duly elected members of the Legislative Assembly be sworn in?
  2. Where there are no express answers to be found in the legislation, the issue requires a careful analysis of the relevant parts of the Constitution and related law.
  3. We begin by identifying the relevant Constitutional provisions relied on by the Applicants, or which we consider to be relevant.

CONSTITUTION

  1. The Constitution establishes the Independent State of Samoa as free and sovereign; and article 2 provides that the Constitution itself is the supreme law of Samoa.
  2. The law of Samoa is defined in article 111:
  3. Part V is headed PARLIAMENT.
  4. It follows that the formation of Parliament depends on the establishment of a Legislative Assembly, which is defined in Article 111 as meaning the Legislative Assembly constituted under the provisions of Article 44.
  5. Parliament’s function is to make laws for Samoa:
  6. The Constitution having established a Parliament and its declared function, attention then turns to the establishment of the Legislative Assembly.

Membership of the Legislative Assembly

  1. This process is regulated by Articles 44, 45, 46, 47 and 52.
  2. The applicants relay on Article 45 to demonstrate that they meet the qualification criteria to be members of the Legislative Assembly:
  3. Tenure of office of members is also relevant. The applicants’ rely on Article 46 to demonstrate that their tenure as qualified members is extant as none of the criteria justifying disqualification apply.

(c) if the Member ceases to be a citizen of Samoa; or

(d) if the Member becomes disqualified under the provisions of this Constitution or of any Act.

(3) Despite Articles 13 and 15, an Act may provide that the seat of a Member of Parliament becomes vacant during his or her term of office:
  1. The applicants point to the lack of any application to the Supreme Court under Article 47 which questions the right of the applicants to be or to remain a Member of Parliament:
  2. Subject to the respondent’s submission made in reply to the application that he was entitled to refuse to swear in the applicants because the applicants did not acknowledge the legitimacy of the government or his incumbency, which we discuss below, we record that Article 47 has not been raised either in this or in separate/contemporaneous proceedings questioning the right of any of the applicants to be a Member of Parliament.
  3. Finally we note that where the seat of a member becomes vacant, the vacancy is to be filled by the holding of an election:

The Office of Speaker

  1. The Applicants did not rely on Article 49, but we consider that it is relevant to understanding the context of the role of the Speaker and how that Office is filled:
  2. Highlighted in the passage above is an example of the Constitution setting out who is to take an Oath of Allegiance – the Head of State. The Head of State’s sombre Constitutional duty facilitates the incumbency of the high office of Speaker of the Legislative Assembly.
  3. Article 49 sets out two pathways to the mantle of the Office of Speaker; the traditional method in sub article (1) of an election by the members following a general election, or the deemed duly elected route in sub article (1A). Whichever of the pathways is used, the Speaker must still take his Oath before assuming office.
  4. The Applicant’s rely on Article 52:

52. Meetings of the Legislative Assembly - The Legislative Assembly shall meet at such times and at such places as the Head of State appoints from time to time in that behalf by notice published in the Samoa Gazette and recorded in the Savali: PROVIDED THAT the Assembly shall meet not later than 45 days after the holding of a general election and at least once in every year thereafter, so that a period of 12 months shall not intervene between the last sitting of the Assembly in one session and the first sitting thereof in the next session.

  1. We consider that Articles 49 and 52 appear to be inextricably linked by virtue of the events which are to happen at the first meeting of the Legislative Assembly following the holding of a general election. By article 49(1) the Constitution directs the selection and swearing in of a Speaker, unless the speaker is deemed to have been appointed under article 49(1A). Article 52 on the other hand directs that the first meeting of the Legislative Assembly is to be held within 45 days of the holding of the general election.

Procedural matters

  1. We acknowledge the importance of Article 53 which empowers the making of Standing Orders to regulate the procedure of the Legislative Assembly:

Core function of Members of the Legislative Assembly

  1. The Constitution sets out the broad principle that Parliament is to make the laws of Samoa. Articles 56 and 57 provide crucial rights and powers central to this task.
  2. Finally, we note articles 61and 62:

61. Oath of allegiance - Except for the purpose of enabling this Article to be complied with and for the election of a Speaker, no Member of Parliament shall sit or vote in the Legislative Assembly until the Member shall have taken and subscribed before the Assembly an Oath of Allegiance in the form set out in the Third Schedule.

(emphasis added)
62. Privileges of Legislative Assembly – The privileges, immunities and powers of the Legislative Assembly, of the committees thereof and of the Members of Parliament may be determined by Act:
PROVIDED THAT no such privilege or power may extend to the imposition of a fine or to committal to prison for contempt or otherwise, unless provision is made by Act for the trial and punishment of the person concerned by the Supreme Court.
  1. The applicants in this case rely on articles 4, 44, 45, 46, 47, 52, and 61. However, none of the articles which the applicants submit to be relevant expressly nominate a specific time as to when the duly elected members of Parliament are to be sworn in by the Speaker.
  2. Article 61 provides that the member must be sworn in before they sit or vote in the Legislative Assembly. But in this case the Legislative Assembly has already begun to sit and work its way through the Legislative program, with none of the Applicants anywhere in sight.
  3. In the absence of an express provision, this Court needs to interpret the constitution to see whether a time for swearing in must necessarily be implied in order to make sense of the constitutional process for the formation of a government. To undertake this task we firstly need to discuss the principles of constitutional interpretation applicable in Samoa.

THE APPROACH TO CONSTITUTIONAL INTERPRETATION

  1. We begin with recognising a decision of His Honour Chief Justice St John, in Fatupaito (Lesa Erika) v Public Service Board of Appeal (1980-1993) WSLR 10, a decision delivered on 15 October 1980:
  2. The issue in Fatupaito was whether the Public Service Board of Appeal was bound to conduct its proceedings in accordance with the fundamental rights preserved in Article 9(1) of the Constitution. Clearly, in those early days, nascent judicial interpretation of the constitution identified that constitutional interpration was either broad or narrow.
  3. The Learned Chief Justice in later decisions came down on the broad approach side of how constitutions should be interpreted. In AG v Sapipa’ia (Olomalu) & Ors, a series of unreported decisions on the constitutionality of certain provisions in the Electoral Act 1963 were claimed to be void as against article 15 – equality and equal protection under the constitution, His Honour approved Lord Wilberforce’s approach to the interpretation of constitutions in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] A.C. 319.
  4. On appeal, the Court of Appeal endorsed the Chief Justice’s reliance on Fisher. The appeal is reported at AG v Saipaia (Olomalu) & Ors (1980-1993) WSLR 41. The distinguished panel of jurists on the Court of Appeal held:
  5. The phrase austerity of tabulated legalism is explained by the Court of Appeal to refer to an approach which gives primary attention to the words used, but being on guard against any tendency to interpret them in a mechanical or pendatic way. His Honour Justice Nelson was guided by the generous interpretation approach in Vaai v Sivanila [2008] WSSC 73, as follows:
  6. Giving a generous interpretation to constitutional provisions is an approach which has received the approval of The Right Honourable Dame Sian Elias Chief Justice of New Zealand (as she was) in Ngaronoa & Others v Attorney-General & Ors [2018] NZSC 123 at paragraph 114:
  7. We again endorse the position that the approach to constitutional interpretation requires the court to give primary attention to the words used, but that it should guard against interpreting them in a mechanical or pendatic way. However, we caution that a generous interpretation is not the same thing as judicial law making, which the Court should not do.
  8. We respectfully consider the approach counselled in Fisher’s case, further explained in Saipaia Olomalu is settled law, and was followed by the Court of Appeal in AG v Latu [2021] WSCA 6. In that case the Court of Appeal dismissed an argument that the the formation of the Samoan Government on 24 May 2021 was unlawful because the Head of State had not personally sworn in the Speaker. The Court held:
  9. We consider there are other grounds, applicable to Samoa, which justify a generous approach to interpretation of our Constitution and refer to the observations of the Hon Chief Justice Robert French AC of Australia:[1]
  10. The vast potential for unknown and unimagined fact scenarios, and in some cases Samoa’s particular history and social structure means justice before the Courts will rarely be able to be served by a tabulated and legalistic approach.[2] As we continue to grow into our Constitution we will evolve and develop principles of interpretation so as to maintain public confidence in the administration of justice in our country. As our Courts have acknowledged, the Constitution is a living and evolving thing: Pita v AG.[3] The Court has a duty to balance competing values, and in this regard we refer to a decision of Supreme Court in Malifa v Sapolu,[4] where Moran J referred to an observation of His Honour Justice Bisson, who was a member of the Court of Appeal which decided the Saipaia Olomalu appeal. Moran J noted:[5]
  11. In this case this Court has never before been faced with an application such as this concerned with the Speaker’s refusal to swear in duly elected members of the Parliament to the Legislative Assembly. Who would have imagined this fact scenario? Yet an answer must be found. And it must be found from within our Constitutional framework.

WHY IS THE HON. SPEAKER OBLIGED TO ADMINISTER THE OATH TO THE APPLICANTS?

Are the Applicants Members of Parliament?

  1. The Legislative Assembly consists of one member elected for each of 51 electoral constituencies: article 44(1). Art 44(3) links the Constitution to the Electoral Act 2019 (“Electoral Act”), which prescribes in s. 84:

Declaration of result of poll:

(1) When all the ballot papers have been dealt with under Division 2, the Commissioner, having ascertained the total number of votes received by each candidate, must immediately declare the result of the poll including the number of votes received by each candidate by giving public notice in the prescribed Form and report the result of the poll to the Head of State.
(2) Upon receipt of the report under subsection (1), the Head of State shall:
(a) receive from the Commissioner the return of the writ issued by the Head of State to the Commissioner to conduct elections; and
(b) by warrant under his or her hand declare the successful candidate or candidates to be elected.
(3) Where there is an equality of votes between candidates and the addition of a vote would entitle one of those candidates to be declared elected, the Commissioner must immediately apply to a District Court Judge for a recount under section 85, and that section applies accordingly, except that no deposit is necessary.
  1. Affidavits filed in support of the application were deposed by Lauofo Fonotoe Nuafesili Pierre LAUOFO and Lealaipule Rimoni AIAFI, both dated 14 September 2021. Mr Lauofo produced as exhibit “A” a copy of the declaration made by the Head of State pursuant to s.84(2), dated 16 April 2021. The declaration refers to the names of the 48 members elected at the General Election. This list of names includes the names of all of the 18 second applicants.
  2. The Head of State’s Statutory declaration performs two functions relevant to the issues in this matter. First, under the terms of the Electoral Act the named persons are by warrant declared to be the successful candidates. Second, the declaration appears to us to satisfy the requirement in article 44(1) of one person or member being elected for each of 51 electoral constituencies.
  3. Accordingly we find that the 18 applicants are members of the Legislative Assembly.

How are the Second Applicants to be sworn in?

  1. Upon being satisfied the second applicants are members of the Legislative Assembly, the next issue to consider is how are they required by law to be sworn in.
  2. Article 61 provides for the requirement that a member to take the Oath of Allegiance before that member shall sit or vote in the Legislative Assembly, the Constitution is silent as to who is required to administer the oath. So it follows that the timeframe within which the swearing in must take place is between the issue of the Head of State’s declaration pursuant to s.84(2) and before the Member is able to sit or vote in the Legislative Assembly. Standing Order 14 is relevant:

Jurisdiction issue

  1. Mr Koria submitted that the Court does not have jurisdiction to inquire into the application of Standing Orders Rule 14. In support of this submission he relied on s. 31 Legislative Assembly Powers and Privileges Ordinance 1960 (“the Ordinance”), and on the common law principle of non-intervention.
  2. Section 31 provides as follows:
  3. The Court of Appeal referred to the common law principle of non-intervention in Ah Chong v Legislative Assembly[6]. We set out the relevant passage from that decision:

Of course, like all principles this one has its limits and they are not always easily discernible.

  1. Mr Koria submitted s.31 of the Ordinance was a codification of the common law principle.
  2. Respectfully, we consider Mr Koria’s argument suffers from the following difficulties:

What does the Constitution seek and when must members take the oath of office?

  1. We consider, respectfully, there are at least three Constitutional principles which are most relevant in this case. The first, and an often unspoken principle is that the Constitution established a Central Government to govern the whole of Samoa. The second is that the Constitution creates an Independent State. Third, this State exercises its powers and authority through the chosen representatives of the people.
  2. These principles are made effective by:
  3. The swearing in of duly elected members is a fundamental step towards satisfying and establishing these constitutional bodies and processes, upon which nationhood is founded; the success of the Constitution as the supreme law of Samoa therefore relies on the duly elected members giving their oath to God, upon whom Samoa is founded. This Court has the authority under Article 70 to give a generous interpretation to the words and principles which are used to establish government, as may be necessary to administer the laws of Samoa, including of course the Constitution. We accordingly acknowledge the existence of an implicit Constitutional intention and imperative for the swearing in of duly elected and qualified members to take place at the earliest appropriate opportunity following a general election. This interpretation is consistent with the Court of Appeal’s approach in AG v Latu [2021] WSCA 6, and means the unsworn applicants must be sworn in, forthwith.

Costs

  1. Costs are to lie where they fall.

HONOURABLE CHIEF JUSTICE
HONOURABLE JUSTICE TUATAGALOA
HONOURABLE JUSTICE TUALA-WARREN


[1] The Hon Chief Justice Robert French AC – “Interpreting the Constitution – Words, History and Change” Monash University Law Review (Vol 40. No 1), 29, 31
[2] Saipaia Olomalu p 56
[3] [1995] WSCA 6
[4] Malifa v Sapolu [1999] WSSC 47,
[5] Above p
[6] [1996] WSCA 2,
[7] (1884) XII QBD 271
[8] P A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters New Zealand Ltd, Wellington, 2021) at 14.2.1

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