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Human Rights Protection Party (HRPP) v Attorney General [2025] WSSC 113 (17 December 2025)

IN THE SUPREME COURT OF SAMOA
HRPP & Anor v Attorney General & Anor [2025] WSSC 113 (17 December 2025)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

In the matter of an application for DECLARATORY ORDERS pursuant to the Declaratory Judgments Act 1988, and Articles 44(1A) and 44(1B) and 52 of the Constitution.

BETWEEN:

HUMAN RIGHTS PROTECTION PARTY (HRPP) A registered political party, at Petesa, Samoa

First Applicant

ALIIMALEMANU MOTI MOMOEMAUSU ALOFA TUUAU

Second Applicant

AND:

ATTORNEY GENERAL, sued for and on behalf of the ELECTORAL COMMISSIONER, Office of the Electoral Commissioner, Mulinu’u

First Respondent

AND:

FAATUATUA I LE ATUA SAMOA UA TASI (FAST), a registered political party, Tuanaimato, Samoa

Second Respondent

Counsel: M. Betham-Annandale for the First and Second Applicants

S. H. Wallwork, DJ Fong and V Leilua for First Respondent

P. Chang and M. Lui for the Second Respondent

Hearing: 8 December 2025
Judgment: 17 December 2025

JUDGMENT OF CLARKE J

Background

1. By Notice of Motion of 3 October 2025, the applicants seek declarations, in short, that:
   • (a) the first respondent contravened article 44 of the Constitution by failing to activate article 44(1A) after counting the ballots of the General Election of 29 August 2025;
   • (b) that the report on the results of the General Election submitted by the first respondent to the Head of State on 5 September 2025, without including votes polled by the additional woman member of the Legislative Assembly pursuant to article 44(1A) and 44(1B)(b) of the Constitution, is void to that extent;
   • (c) as a result of the first respondent’s failure, the Warrant of Election issued by the Head of State on 5 September 2025 is not in compliance with the requirements of articles 44(1A) and 44(1B)(b) of the Constitution and is also void to that extent;
   • (d) the lawful activation of article 44(1A) results in the second applicant becoming the additional woman member of the Legislative Assembly; and
   • (e) that a Warrant of Election for the second applicant be issued forthwith so that the second applicant be sworn in as a Member of the Legislative Assembly without further delay in light of article 52 requiring the Legislative Assembly to meet having been constituted properly, i.e in acordance with article 44 of the Constitution.
2. The applicants base their motion on the grounds that article 44(1A) ought to have been considered in light of article 52 and the definition of “Legislative Assembly” in article 111 of the Constitution, applying the doctrine of harmonious construction. The applicants further ask the Court to apply the “principle of distinguishing precedent” on the basis that the Court of Appeal did not rule on the interaction between articles 44(1A) and 52 of the Constitution. In summary:
   • (a) article 52 requires the “Legislative Assembly” to meet not later than 45 days after the holding of a general election”;
   • (b) article 111 defines the “Legislative Assembly” to “mean the Legislative Assembly constituted under the provisions of Article 44”; and
   • (c) article 44 provides for “Members of the Legislative Assembly” which includes the 10% requirement of 6 women Members of Parliament.
3. The respondents oppose the application on the basis that, in short:
   • (a) activation of articles 44(1A) and 44(1B) must await finalisation of electoral petitions and by-elections; and
   • (b) the Court of Appeal in Electoral Commissioner v FAST [2021] WSCA 2, Electoral Commissioner v FAST Party [2021] WSCA 5, Tuua v Leota [2022] WSCA 4 and Attorney General v Latu & Ors [2021] WSCA 6 has settled the law on this point.

B. The Relevant Constitutional Provisions

4. Before embarking on an analysis of the Court of Appeal judgments, it is necessary to set out the relevant articles of the Constitution that are at the centre of this application:
   • “44. Members of the Legislative Assembly - (1) Subject to the provisions of this Article, the Legislative Assembly shall consist of one member elected for each of 51 electoral constituencies having names, and comprising of villages or sub_villages as are prescribed from time to time by Act.

(1A) Subject to this Article, women Members of the Legislative Assembly shall:

• (a) consist of a minimum of 10% of the Members of the Legislative Assembly specified under clause (1) which for the avoidance of doubt is presently 5; and (b) be elected pursuant to clause (1) or become additional Members pursuant to clause (1B), (1D) or (1E).

(1B) If, following any general election:

(a) all members elected under clause (1) are men, the prescribed number of women candidates (if any) with the highest number of votes shall become additional Members; or

(b) less than the prescribed number of women candidates are elected under clause (1), the remaining prescribed number of women candidates (if any) with the highest number of votes shall become additional Members for the purposes of clause (1A).

(1C) Clause (1B) does not apply if the prescribed number of women are all elected under clause (1).

(1D) If the seat of an additional Member becomes vacant, it shall, despite Article 48, be filled by the woman candidate (if any) who has the next highest number of votes at the last election or general election.

(1E) Subject to Article 48, if a seat under clause (1) held by a woman becomes vacant, to which a man is elected to fill that vacant seat, the woman candidate (if any) with the highest number of votes from that election or the last election or general election shall become the additional Member.

(1F) If, in the selection of the required number of women under clause (1B), (1D) or (1E), two (2) or more candidates have equal number of votes, the additional Member shall be selected by lot before the Electoral Commissioner with the presence of the candidates or their authorised representatives and at least two (2) police officers.

(1G) If a woman candidate becomes an additional Member of a constituency (irrespective of a woman candidate being elected to that constituency), no other woman candidate from the same constituency shall become an additional Member unless there is no other woman candidate from any other constituency to make up the required prescribed number.

...

(4) Members of the Legislative Assembly (including additional Members) shall be known as Members of Parliament.

(5) In this Article, unless the context otherwise requires: “Additional Member” means a woman who is a Member of Parliament by virtue of clause (1B), (1D), or (1E) for the purposes of clause (1A); “Highest number of votes” means the percentage of the total valid votes in a constituency polled by a woman candidate; “Prescribed number” means the minimum number of woman Members of Parliament specified under clause (1A).”

5. Article 52 then provides:
   • “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.”
6. Article 111 then defines the “Legislative Assembly” as “the Legislative Assembly constituted under the provisions of Article 44.”

C. The Issues

7. The issues for my determination are:
   • (i) what do the Court of Appeal judgments say about the appointment of additional women Members of Parliament under article 44 of the Constitution to meet the 10% quota;
   • (ii) are those judgments binding on this Court; and
   • (iii) whether the doctrine of “harmonious construction”, with reference to article 52, permits this Court to distinguish those decisions in order to make the declarations sought.

D. The Court of Appeal Judgments

8. The first judgment is Electoral Commissioner v FAST Party [2021] WSCA 2 (2 June 2021). The Court of Appeal interpreting article 44(1A) stated “that an additional member/s can only be fulfilled once there is certainty about the outcome of a general election.”^[1] It held that under article 44(1B), additional women members may only be appointed after a general election, at a point of certainty - specifically after the resolution of electoral petitions and any resulting by-elections - because only then can the requirements of Articles 44(1B), (1C), (1E) and (1F) be properly applied. Premature appointments risk inconsistency with the constitutional guarantee of a minimum number of women Members of Parliament, as petitions or by-elections could alter constituency outcomes and render appointments illegitimate or excessive. The Court emphasized that once appointed, additional members cannot be unappointed, and that such appointments could undermine Parliament’s intent and the credibility of the process. The need for certainty is reinforced by the Electoral Act 2019, which allows elections to be voided for corruption, meaning votes relied upon by a candidate could later be invalidated. Given the extraordinary number of petitions then pending, the Court concluded that waiting until their determination ensured constitutional compliance and preserved the dignity of women’s representation.
9. In Electoral Commissioner v FAST Party [2021] WSCA 5 (25 June 2021), the Court of Appeal clarified its decision of 2 June 2025 stating at paragraph 20(a) it had not ruled on the interaction between articles 44(1A) and 52:
   • “That being so, it necessarily follows that the Court did not declare that the convening of Parliament, a state which is mandatory under Article 52, is dependent or relies on the activation of Article 44(1A).”
10. It is this issue – the relationship between the two provisions - that the applicants now raise before this Court.
11. In Attorney General v Latu [2021] WSCA 6 (23 July 2021), concerning the legitimacy of the swearing in ceremony on the grounds of Parliament at Tiafau (the tent swearing in), the Court of Appeal explained the background to its judgment of 2 June 2021. The Court of Appeal stated in Attorney General v Latu at paragraphs [3] – [6]:

“3. On election night both HRPP and FAST gained 25 seats apiece. An independent member, after a short period of consultation with the people of his constituency, decided to endorse and support FAST. This important step meant that FAST had or could call on the support of 26 seats, a working majority, in a Legislative Assembly.

4. Around the time of the independent member’s decision to side with the FAST party, the Office of the Electoral Commissioner (OEC) recommended the appointment of a HRPP woman candidate as an additional member of Parliament to satisfy the constitutional guarantee of a minimum number of women members in Art 44(1A).

5. The consequence of the OEC’s determination to recommend the appointment of the 6^th woman member left the parties deadlocked at 26 seats apiece.

6. This Court, on appeal, ruled on 2 June 2021 that the OEC could only recommend the appointment of the sixth woman as an additional member after all the electoral petitions and by elections, if any, had been completed, because it was not inevitable that recourse to the constitutional guarantee of 6 seats was needed. More women candidates might successfully win a by election of a seat vacated following a successful electoral petition against a winning candidate.”

12. Lastly, in Tuua & Ors v Leota & Ors [2022] WSCA 4, the Court of Appeal was principally concerned with the interpretation of article 44 of the Constitution in two key respects: (i) the minimum women’s representation and the application of article 44(1E); and (ii) the method of calculating the “highest number of votes” in accordance with article 44(5). The timing of appointments was not directly at issue, though the referred by way of background to the appointment of women members after completion of by-elections.^[2]

E. Are these Judgments Binding on this Court?

13. In Police v Faulkner [2005] WSSC 4, Sapolu CJ in a proceeding before the Supreme Court stated:
    • “Judgments of the Court of Appeal are of course binding on this Court. And when it comes from a world renowned jurist and highly respected Judge as Lord Cooke of Thorndon, as His Honour is now, it merits the full authority of the doctrine of stare decisis.”
14. The doctrine of stare decisis is a fundamental principle in Samoa’s legal system, where the Court of Appeal sits at the apex. The doctrine ensures that decisions of higher courts are binding on lower courts, promoting consistency, predictability and stability in the legal system. This Court is bound by the decisions of the Court of Appeal.

F. Can this Court Distinguish the Court of Appeal Judgments

15. The applicants case is that Parliament cannot properly convene pursuant to article 52 without first meeting the women’s quota requirements. The applicants therefore ask this Court to “distinguish” the earlier judgments of the Court of Appeal, applying the statutory interpretation doctrine of “harmonious construction”. Relying on the clarification by the Court of Appeal in Electoral Commissioner v FAST Party [2021] WSCA 5 (25 June 2021), this Court can distinguish the Court of Appeal’s decision in Electoral Commissioner v FAST Party [2021] WSCA 2 (2 June 2021), as:^[3]
    • “12. The Court of Appeal decision was decided on its merits and the arguments that were advanced before the Court at the hearing. It did not rule on the interaction between articles 44(1A) and 52....”
16. On that basis, the applicants argue that the principle of distinguishing precedent permits this Court to find that the appointment of additional women Members of Parliament to meet the constitutional minimum of six must be triggered before the first sitting of Parliament, required by article 52.
17. However, in Electoral Commissioner v FAST Party [2021] WSCA 2, the Court of Appeal expressly held that the “interpretation of article 44(1A) was that an additional member/s can only be fulfilled once there is certainty about the outcome of a general election.”^[4] The Court held that the point of certainty – was only after the resolution of electoral petitions and any resulting by-elections.
18. The Court of Appeal’s judgment is clear. This Court is bound by that judgment and the application of article 44, irrespective of whether or not the Court of Appeal considered article 52. In Re St Nazaire Co, Jessel MR stated:^[5]
    • “... it is a petition presented to a Judge of the High Court to rehear a decision of the Appeal Court, I should have thought that the mere statement of that would be sufficient to shew that the Judge below had no jurisdiction. It would be a wonderful result indeed if the Judicature Act empowered a Judge of an inferior Court to rehear a decision of the Appeal Court which perhaps had reversed his decision. Upon that theory, how long is the thing to go on? If the Judge below has this power, he may exercise it by reversing the decision of the Appeal Court where the Appeal had reversed his decision.” (emphasis added)
19. In substance, the applicants are asking this Court not to distinguish but correct the Court of Appeal’s judgment in Electoral Commissioner v FAST Party [2021] WSCA 2, for purported failure to consider article 52. Respectfully, this Court does not in my view have such jurisdiction to do so. There is no scope for this Court to depart from the Court of Appeal’s express ruling on the timing of appointments under article 44. On that basis alone, this motion must fail.
20. For completeness, I make two further observations. First, though the applicants challenge the Court of Appeal’s interpretation in Electoral Commissioner v FAST Party [2021] WSCA 2 concerning article 44 and the appointment of women members, the latter case of Attorney General v Latu [2021] WSCA 6 generally re-affirmed that earlier judgment. In determining the lawfulness of convening the XVII Parliament on 24^th May 2021, the Court referred to its earlier decision of 2 June 2021 and confirmed that Parliament had been lawfully convened, expressly taking into account article 52 of the Constitution – without the appointment of additional women members at the time.
21. In Tuua & Ors v Leota & Ors [2022] WSCA 4, a differently constituted Court of Appeal again revisited article 44. The Court made reference to the timing of appointment of additional women members pursuant to article 44 before addressing the minimum women’s representation^[6] and the method of calculating the “highest number of votes” under article 44(5). Since the judgment of the Court of Appeal in Electoral Commissioner v FAST Party [2021] WSCA 2, the timing of appointment of additional women members has been left undisturbed and re-affirmed, albeit by implication, in subsequent judgments.
22. Second, the applicants advance the doctrine of harmonious construction. The applicants argue that because the “Legislative Assembly” is defined as being constituted under article 44, the summoning of the Legislative Assembly under article 52 must necessarily include the additional women members. This gives to article 44 a harmonious construction with article 52.
23. Some insight into article 52 of the Constitution can be drawn from the Constitution Convention debates of 1960. The debates record Dr James Davidson’s explanation of article 52 as follows:
    • “The first part of Article 52 is of a machinery character providing for the summoning of meetings of the Legislative Assembly by the Head of State. The second part of the article, however, needs a few words of explanation. It is, of course, one of the first duties of the Legislative Assembly, when it meets after a general election, to choose a new Prime Minister, and therefore it is necessary to make sure that the Legislative Assembly is called together as soon as possible after a general election is over, in order that it shall have the opportunity of choosing the Prime Minister. On the other hand, there are often disputes over and (sic) election, and, if there have been several candidates, it may be necessary to enquire into whether the votes have been properly counted or it may even be necessary to have some sort of enquiry by the Court, if anyone makes an allegation of bribery of the kind that Mr Morgan referred to earlier this morning. The Working Committee thought that, if it was provided that the Assembly should meet no later than 45 days after the election, that would give plenty of time to clear up and (sic) disputes that there might be. Of course, if there were no disputes, then the Head of State could call the Assembly together much sooner after the election and would not have to wait for the whole period of forty five days.”
24. In Lu v Kiribai Police Services [2019] KIHC 73, Muria CJ explained the application of the rule of harmonious construction stating:
    • “41. The rule on statutory interpretation which promotes harmonious construction of statutes must be applied so that if there is disharmony between two independent provisions of law on the same subject matter, the specific provision must prevail. Put another way, general statute must give way to special or specific statute. This rule finds its origins in the Latin maxim “generalia specialibus non derogant:...”
25. Experience since the 1960 Constitution Convention shows that the 45 days contemplated to “clear up” any disputes following an election was optimistic. For example, following the 31 March 2006 general election, the final electoral judgment was not delivered until January 2007.^[7] The electoral petitions following this year’s general election also demonstrates the same. Yet despite such uncertainties, Parliament has convened and governments have formed.
26. While I understand the submissions made by the applicants, I do not see that the interpretation applied by the Court of Appeal to article 44 and the appointment of additional women members is in disharmony with article 52. The Court of Appeal explained in detail in Electoral Commissioner v FAST Party [2021] WSCA 2, why certainty was required before the appointment of additional women members, and Parliament has been able to convene.
27. The applicant’s interpretation also suggests that anytime there are fewer than 6 women Members of Parliament, Parliament cannot lawfully convene. This appears inconsistent with article 56 (Proceedings are valid) and 57 (Quorum). It would also mean for example that if during the 45 days following a general election, an elected Member of Parliament from one of the 51 Electoral Constituencies dies or has his or her seat declared void, Parliament could not convene until that seat was filled so that all 51 members were appointed. I do not see the Constitution as so prescriptive, nor such an interpretation particularly practicable.

G. Result

28. This Court is bound by the Court of Appeal’s decision in Electoral Commissioner v FAST Party [2021] WSCA 2.
29. The applicants Notice of Motion for Declaratory Orders are accordingly dismissed.
30. Respondents are to file and serve Memorandum as to Costs by Friday 23 January 2026. Applicants to file and serve any response to Memorandum as to Costs by Friday 6 February 2026.
31. Finally, I wish to thank all counsel for their thoughtful and considered submissions.

JUSTICE CLARKE

^[1] At paragraph [29].
^[2] At paragraphs [6] – [8].
^[3] Electoral Commissioner v FAST Party [2021] WSCA 5 (25 June 2021) at [12].
^[4] At paragraph [29].
^[5] [1879] UKLawRpCh 217; (1879) 12 Ch D 88 cited in Accident Compensation Corporation v Smith [2016] NZHC 2051.
^[6] Under article 44(1E).

[7] Petaia v Pa'u [2007] WSSC 19 (15 January 2007)