Retired Chief Justice Patu Tiava’asu’e Falefatu Sapolu legal insight on several key court rulings that continues to be debated on the current political scene, has offered a wider public understanding on national television.
The depth of his lifetime experience in the Judiciary included the interpretation of the 10% minimum representation for women that entitles them to a 6th seat in Parliament.
His Honour also looked into the section of the Appeals Court ruling for the women’s seat to be put on hold until the court petitions and bi-elections are finalised.
Here is his response :
PATU : There are 3 important issues and decisions before us
Firstly, the Court of Appeal decision of 2nd June 2021 has clarified that the 10% minimum of 51 elected members of Parliament should be 6 and not 5, as the Supreme Court had earlier decided. In my view of the Court of Appeal decision if, after a general election, 6 women or more are elected, then the 10% provision will have been satisfied within 51 elected members and in accordance with article 44. of the Constitution.
However, if after a General Election, 6 women are not elected by general election, then additional women MPs will have to be chosen to attain the number of 6, being 10% of 51, as determined by the Court.
Secondly, Ali’imalemanu Alofa Tu’uau’s seat was declared void by the Court of Appeal so this reduced the number of HRPP seats from 26 to 25 and thus giving 26 seats to FAST and 25 to HRPP. Because the parties had held an equal number of seats prior to this, the question of holding a snap election arose, due to Aliimalemanu’s seat being voided.
Thirdly, the Court of Appeal decided that we will only know whether Ali’imalemanu Alofa could still become the 6th additional woman to the current 5 successful candidates elected in April this year and the fact is, that this can only be determined after the petitions and bi elections have been dealt with.
It is only at that point in time that we can know whether an additional woman member or members is required or not. It is only when the current petitions are completed and bi elections have been held, that we can be certain of what number of additional women is required to complete the 6, required by the law.
There are 2 types of Members of Parliament in Art. 44 of the Constitution; there are 51 elected members, 1 from each of the 51 districts of the country, together with women members referred to as “additional members” and the number of any additional members depends upon whether the 10% requirement is achieved through general election, or by appointment, to ensure that the number of women members number is never less than 10% of all elected members.
That part of the Court decision clearly states that to satisfy this provision (Art. 44) the number of women can be 6 upwards, as long as there is never less than 10% women members in Parliament. Secondly, the Appeal Court decision departed from the Supreme Court decision and effectively reduced the number of members from 26 to 25 for the HRPP and thirdly, we will only know and be clear about how many additional women members there will be, or whether there is a need for any further women members, after the hearing of petitions currently being heard and also the holding of bi elections.
In our country of Samoa, the difficulty facing us that this is to be the process we must now follow, to await the completion of bi elections for only then can we determine any additional women members.
So I put this question, what if, after the bi elections there are further petitions lodged to challenge those bi elections and we must go back to Court again?
What will be our position if that is the case? It could mean uncertainty and instability for Parliament and the decision making processes of our country and that is a troubling reflection on my part.
On the current seat arrangement of FAST 26 HRPP 25, Patu firmly rejected the question of whether Parliament should still be able to convene.
PATU : The answer is no…
The Legislature described in Article 111, clearly details the Legislature as being comprised by Article 44 of the Constitution.
Article 44 of the Constitution describes that Parliament is comprised of 51 elected members from a general election and additional women members of not less than 10% of 51.
So at this time, if someone asks me “How many women are there at the moment? Has the 10% minimum been satisfied? ”My answer is: NO.
The uncertainty continues because the Court of Appeal has now stated that this determination of the number of additional women members must wait until after the petition hearings and after bi elections are held and only then can we determine whether there is a need for additional women members or not. If there is a need for additional women members, then how many? The Constitution states that Parliament is comprised of 51 Members of Parliament and including not less than 10% of women members.
Therefore, at this time it is uncertain. So it’s difficult or if not impossible for Parliament to convene when the 10% of women members is not finalized with certainty, we must wait until this is determined before Parliament is convened.
There is a further challenge that hasn’t been discussed but is also contained in the Constitution that is the connection between the full number of the members of Parliament, which means elected members and additional women members and the majority of the full number of Members of Parliament.
I’d just like to state that if at this point in time we have 5 members and we need to add another 1 to make up 6 women members, that means we will have a total of 52 members of Parliament.
Half of 52 is 26 but that is not the term used, rather it is the English word “majority”, which does not mean half of the total, it means half of the total plus 1 to attain a majority in other words it must be more than half.
If after the petitions and bi elections there are 4 women elected we will need 2 women to attain 6 to satisfy the 10%. If there are only three then we need to add another 3 women members to satisfy the requirement for 6 members to satisfy the 10%.
So according to the full complement of Parliament required to convene, it is currently uncertain but is dependent upon the outcome of the petition hearings and the bi elections.
The majority will also be uncertain because if there is 52 members of Parliament then 26 is half but that is not a majority, it is only half.
The Constitution does not state: “If you attain half and the other side does not attain half, then your party can become the new Government the Constitution says, one party must attain a majority.
Therefore if there are 52 or 53 members, the majority is not 26.5 the majority must be put up to 27.
So these are some other difficulties that I have observed, that have arisen since the decision of the Court of Appeal.
Article 32(2) of the Constitution states that the Head of State appoints the Prime Minister, from the Members of Parliament that command the majority of the Members of Parliament.
So what is the majority at this time? That is undetermined at this point in time because the petitions and the bi elections have not been completed.
It is not until we have the results of all these preliminary matters and 6 additional members are included within the 51 members, it is only then that 26 can be considered a majority of 51.
But at the time, when Ali’imalemanu Alofa was part of the equation and there were 26 members per party, the majority was not 26 it would have to be 27, and now Ali’imalemanu Alofa’s seat has been voided, the situation is one of uncertainty because we do not know how many women’s additional seats will be required, so the question is, where is the majority at this time? The answer is, no one knows.
If we consider Article 49 of the Constitution it clearly states, the Speaker of the House is appointed by the party that commands the majority of members of the House, or the total members of Parliament in excess of half, of the Members of Parliament.
The question of where the majority is at this time, the answer must be, it is unclear and it will only be clear after the petitions have been heard and bi elections have been held, because only then can the Speaker of the House be appointed in Parliament.
The same applies to the appointment of the Deputy Speaker, who can only be appointed from a party that commands the majority of the House or is supported by a number of Members of Parliament in excess of half.
In my respectful view, the word “majority of all Members of Parliament” includes not only the Members of Parliament we currently have but includes new members who will be elected after the hearing of election petitions and holding of bi elections.
Therefore we are in a period of uncertainty at this time if we were to convene Parliament with FAST holding 26 and HRPP 25 seats, at this time, it would not be in compliance with the clear terms of the Constitution.
The Constitution does not state, the party with the higher numbers of Members of Parliament should appoint the Speaker of the House and the other party cannot. No.
The Constitution states that the person to be appointed as the Speaker of the House should be a member of the party commanding the confidence of the majority of the House.
It is clear under the Law, that the first item of business for any Parliament when it is convened after a General Election is to appoint a Speaker of the House according to the Constitution.
Therefore if it is not possible to appoint a Speaker of the House according to the Constitution and it is not possible to appoint the Deputy Speaker of the House according to the Constitution, then what sort of Parliament will we have? How can it be? Has there ever been a Parliament in the Commonwealth of Parliaments that has operated without a Speaker of the House?
It was interesting for me to hear Hon. Lealailepule MP on the “Good Morning Show” – Lealailepule stated that the terms and conditions of the Constitution are interconnected and should not be considered independently of each other. One article affects another and one article explains another article.
For that reason one must consider all parts of the Constitution and its requirements, in case one only takes into consideration one or two aspects of the Constitution, while forgetting that there are other articles of the Constitution that stated what steps should be followed and taken because they are interconnected. There is a close connection between the majority of the Members of Parliament, the total number of additional women members and the total number of Members of Parliament.
These matters are all interconnected and must be considered together and one part will be affected by other articles of the Constitution.
Patu in his views of a return to general elections state…
PATU : Some people have said to me : “Patu, if only the people were given another opportunity to decide, this situation would have been resolved by now and allow the country to decide whichever Government is to lead the country, because we do not understand all these laws.
So when I hear this wise advice from our traditional elders, it is comforting to hear and maybe they are correct, if we had taken that path that these matters would be concluded and resolved in an amicable way, having given the authority to the people to decide who should govern.
In that manner, the Court would not be the decision maker nor anyone else, but it would have been decided by the mandate of the people of Samoa to choose their elected representatives and give certainty as to who would lead the country for the next 5 years.
On the position of the Head of State Patu made this point….
PATU : Article 32 (2)of the Constitution is very clear, the Head of State appoints the Prime Minister who is chosen from the membership of the party that the Head of State is satisfied, commands the confidence of the majority of Members of Parliament.
If we look at Article 33, of the Constitution the conditions upon which the Head of State, may terminate the position of the Prime Minister is described.
There is no provision in the Constitution for anyone, other than the Head of State, to terminate the position of the Prime Minister.
That power is reserved solely for the Head of State, and it is stated in the Constitution.
The Head of State can terminate the term of a Prime Minister if he or she is no longer a Member of Parliament or if Parliament should pass a motion of no confidence in the Prime Minister because Parliament no longer had any trust in the Prime Minister and also in his Government.
In other words, the first situation has never occurred and neither has the second, so what this really means is that the elements of the Constitution have never been satisfied or met.
Then we come to the third part of this article 33, which states that The Head of State shall terminate the Prime Minister in the first sitting of parliament after a vote has been taken and this should be done within 7 days. Because Parliament has not been convened, therefore part 3 of this article cannot be satisfied.
In my humble opinion, this part of the Constitution should be carefully considered, regarding the termination and removal of a Government
Because it is the Head of State who appoints the Prime Minister and it is the Prime Minister who then appoints the Ministers of Cabinet.
Therefore if the Head of State suddenly terminates a Prime Minister according to this article, his Cabinet is automatically dismissed.
