By Staff Writer
The Supreme Court handed down on Tuesday 30 August 2022, its ruling on the suspension of the Human Rights Protection Party leader Tuilaepa Sailele Malielegaoi and party secretary, MP Lealailepule Rimoni Aiafi.
The 33 page judgement cleared the way for the two opposition members to return to Parliament in the next session on 18 October 2022.
The official matters brought before the court was presided over by the Chief Justice and two other senior justices of the Supreme Court.
Set out below also is the final decision :
IN THE SUPREME COURT OF SAMOA HELD AT MULINUU
IN THE MATTER OF:
Articles 4, 10, 13, 15, 44, 45, 46, 47, & 62 of the Constitution of the Independent State of Samoa
IN THE MATTER OF: Rule 182 & 192 of the Supreme Court (Civil Procedure) Rules 1980, The Declaratory Judgments Act 1988 and the Government Proceedings Act 1964
IN THE MATTER OF: The Legislative Assembly Powers & Privileges Ordinance 1960.
BETWEEN:
HONOURABLE TUILAEPA LUPESOLIAI DR SAILELE MALIELEGAOI
First Applicant
A N D:
HONOURABLE LEALAILEPULE RIMONI AIAFI
Second Applicant
A N D:
SPEAKER OF THE LEGISLATIVE ASSEMBLY ON BEHALF OF THE LEGISLATIVE ASSEMBLY
Respondent
A N D:
SAMOA LAW SOCIETY
Amicus Curiae
Coram: Chief Justice Satiu Simativa Perese
Senior Justice Vui Clarence Nelson
Justice Tafaoimalo Leilani Tuala-Warren
Counsel: A M Leung Wai and P Lithgow for First and Second Applicants
T B Heather-Latu, M G Latu and B Keith for Respondent
A Su’a and Hon. C Finlayson QC as (Amicus Curiae)
Submissions: 10 August 2022
Judgment: 30 August 2022
Decision
[112] For the foregoing reasons, the Court finds:
- The Assembly resolved to approve the Committee’s report with respect to liability and penalty.
We consider the Court has jurisdicition to scrutinise all these intramural decisions of the Assembly pursuant to its express duty under the Constitution to declare “any existing law…which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.”
(b) The relevant law in this case concerns Parliament’s disciplinary rules arising under the Legislative Assembly Powers and Privileges Ordinance 1960, Parliament’s Standing Orders, and the customs of the Assembly, and their application.
We find these disciplinary rules and practice do not give the persons who are the subject of adverserecommendations by the Privileges and Ethics Committee, the opportunity to be heard as to penalty before the Assembly.
This is a failure which breaches a fundamental plank of the rules of fairness that are secured in Article 9(1) of the Constitution – the right to be heard.
(c) The Assembly’s resolution as to the Applicants’ liability for the contempt of Parliament, was not itself directly challenged, and so there is no reason for this Court to consider much less disturb that finding.
(d) There was a strongly run argument that the suspension was indeterminate.
We hold the suspensions are not indeterminate and do not engage the principles and rights in Article 44 of the Constitution.
On the facts, we consider that even had we found the suspension to have been indeterminate and therefore in breach of Article 44, this did not necessarily mean that liabilty was not properly made out.
(e) However, we consider the treatment of both of the Applicants rights to natural justice with respect to penalty were inconsistent with their rights preserved under Article 9(1) of the Constitution.
We accordingly declare that the part of the Assembly’s motion which purports to suspend the Applicants is void as at the date of the declaration in this judgment.
It may be that the Assembly may wish to revisit the penalty aspect, consistently with the Constitution, but that is entirely a matter for that body.
However, as at the date of this decision, there is no lawful impediment in the way of the Applicants resuming their duties as members.
(f) Costs are to lie where they fall. This is another significant public interest case.
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Chief Justice Satiu Simativa Perese
Senior Justice Vui Clarence Nelson
Justice Tafaoimalo Leilani Tuala-Warren