Pro-independence Kanak leader Christian Téin will remain in a mainland French jail for the time being, a Court of Appeal has ruled in Nouméa.

This followed an earlier ruling on October 22 from the Court of Cassation, which is tasked to rule on possible procedural mistakes in earlier judgments.

The Court of Cassation found some flaws in the procedure that justified the case being heard again by a Court of Appeal.

Téin’s lawyer, Pierre Ortet, confirmed his client’s detention in a mainland prison (Mulhouse jail, north-eastern France) has been maintained as a result of the latest Court of Appeal hearing behind closed doors in Nouméa on Friday.

But he also told local media he now intends to bring the case to the European Court of Human Rights, as well as United Nations’ human rights mechanisms — especially on the circumstances that surrounded Téin’s transfer to France on 23 June 2024 on board a specially-chartered plane four days after his arrest in Nouméa on June 19.

Nouméa Public Prosecutor Yves Dupas told local media in an interview on Friday that in this case the next step should happen “some time in January”, when a criminal chamber of the Court of Cassation is expected to deliver another ruling.

Reacting to recent comments made by pro-independence party Union Calédonienne, which maintains Téin is a political prisoner, Dupas said Téin and others facing similar charges “are still presumed innocent”, but “are not political prisoners, they have not been held in relation to a political motive”.

Alleged crimes
The alleged crimes, he said, were “crimes and delicts related to organised crime”.

The seven charges include complicity as part of murder attempts, theft involving the use of weapons and conspiracy in view of the preparation of acts of organised crimes.

Téin’s defence maintains it was never his client’s intention to commit such crimes.

Christian Téin is the head of a “Field Action Coordinating Cell” (CCAT), a group created late in 2023 by the largest and oldest pro-independence party Union Calédonienne.

From October 2023 onward, the CCAT organised marches and demonstrations that later degenerated — starting May 13 — into insurrectional riots, arson and looting, causing 13 deaths and an estimated 2.2 billion euros (NZ$3.9 billion) in material damage, mainly in the Greater Nouméa area.

“The judicial inquiry aims at establishing every responsibility, especially at the level of ‘order givers’,” Dupas told local Radio Rythme Bleu on Friday.

He confirmed six persons were still being detained in several jails of mainland France, including Téin.

3 released under ‘judicial control’
Three others have been released under judiciary control with an obligation to remain in mainland France.

“You see, the manifestation of truth requires time. Justice requires serenity, it’s very important”, he commented.

Late August, Téin was also chosen as president of the pro-independence umbrella FLNKS at its congress.

The August 2024 Congress was also marked by the non-attendance of two other main pillars of the movement, UPM and PALIKA, which have since confirmed their intention to distance themselves from FLNKS.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

A Hamilton couple convicted of exploiting Pacific migrants have had their convictions quashed after the New Zealand’s Court of Appeal ruled there had been a miscarriage of justice.

Anthony Swarbrick and Christina Kewa-Swarbrick were found guilty on nine representative charges of aiding and abetting, completion of a visa application known to be false or misleading and provision of false or misleading information, at a trial in the Hamilton District Court in February 2023.

A month later, Kewa-Swarbrick, who originally came from Papua New Guinea, was sentenced to 10 months home detention. She completed nine months of that sentence.

Swarbrick served his full eight months of home detention.

In February this year the Court of Appeal found that in Swarbrick’s case, the trial judge’s summing up of the case was “not fair and balanced” leading to a “miscarriage of justice”.

It found the trial judge “undermined the defence” and “the summing up took a key issue away from the jury.”

“Viewed overall, the Judge forcefully suggested what the jury would, and impliedly should, find by way of the elements of the offence. The Judge made the ultimate assessment that was for the jury to make. The trial was unfair to Mr Swarbrick for that reason. We conclude that this resulted in a miscarriage of justice,” the decision states.

It ordered Swarbrick’s convictions be quashed and a retrial.

Charges withdrawn
It came to the same conclusions for Kewa-Swarbrick in April, but the retrial was abandoned after the Crown withdrew the charges in May, leading to the Hamilton District Court ordering the charges against the couple be dismissed.

Immigration NZ said it withdrew the charges after deciding it was no longer in the public interest to hold a re-trial.

The couple, who have since separated, are now investigating redress options from the government for the miscarriage of justice.

“We lost everything. Our marriage, our house. I lost a huge paying job offshore that I couldn’t go back to because we were on bail,” Swarbrick told RNZ.

“It’s had a huge effect, emotionally, financially. We had to take our children out of private school.”

Swarbrick had since been unable to return to his job and now had health issues as a result of the legal battles.

Kewa-Swarbrick said the court case had “destroyed” her life.

“It’s affected my home, my marriage, my children.”

Not able to return to PNG
She had not been able to return to Papua New Guinea since the case because she had received death threats.

“My health has deteriorated.”

The couple estimated they had spent at least $90,000 on legal fees, but their reputation had been severely affected by the case and media reports, preventing them from getting new jobs.

The couple’s ventures came to the attention of Immigration NZ in 2016 and charges were laid in 2018. The trial was delayed until 2023 because of the covid-19 pandemic.

Immigration NZ alleged the couple had arranged for groups of seasonal workers from Papua New Guinea to work illegally in New Zealand for very low wages between 2013 and 2016.

The trial heard the workers were led to believe they would be travelling to New Zealand to work under the RSE scheme in full time employment, receiving an hourly rate of $15 per hour, but ended up being paid well below the minimum wage.

However, Kewa-Swarbrick and Swarbrick argued they always intended to bring the PNG nationals to New Zealand for a cultural exchange and work experience.

“They fundraised $1000 each for living costs. We funded everything else. And when they got here they just completely shut us down,” said Kewa-Swarbrick.

She said it was “a relief” to finally be exonerated.

“The compensation part is going to be the last part because it will help us rebuild our lives.”

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

An Australian-born judge in Kiribati could well face deportation later this week after a tribunal ruling that he should be removed from his post.

The tribunal’s report has just been tabled in the Kiribati Parliament and is due to be debated by MPs this week — the last week of the current parliamentary session ahead of the general election.

The Kiribati judiciary has been in turmoil for nearly four years now, with key judges removed and huge backlogs in the system.

Historically Kiribati had relied on expatriate judges for its senior courts but the man drawing the government’s ire here is David Lambourne, who, while Australian, has lived in Kiribati for many years, and is married to the current opposition leader, Tessie Lambourne.

What does the case centre on?
There were a number of issues the government raised but the tribunal focused on one in particular and dismissed three others.

It said Lambourne had been remiss in failing to deliver a written decision on a civil court case in 2020.

This delay was at least partly due to covid-19 with Lambourne, in Australia for a judicial conference, unable to get back into Kiribati, which had shut its borders.

When he did get back, he faced myriad accusations, was stood down, and attempts were made to deport him, but a ruling heard by the then chief justice, New Zealand judge Bill Hastings, exonerated him.

An appeal by the government to the Court of Appeal also found in Lambourne’s favour, but the Kiribati government then removed all of those judges.

It should be noted that all of those judges were current or former members of the New Zealand judiciary and are held in high regard.

Where did this tribunal come from?
It was set up by the government in May 2022, but it suspended its work two months later after Lambourne had challenged its existence.

It was staffed by a lay magistrate, a legal practitioner, a former public servant and a retired teacher.

It started work again in 2023 but this was again suspended when the High Court issued an interim injunction.

Then last month the government reconfigured the tribunal and it very quickly produced the report which politicians are shortly to discuss.

What conclusions did the tribunal reach?
Its recommendation is that Parliament should consider removing Lambourne from his role as a Puisne Judge of the Kiribati High Court.

It said he had persistently disregarded the prompt delivery of written judgements, neglected to take thorough measures to prevent any misunderstanding about the fundamental role of a judicial officer, and, by behaving in a manner that created the perception of bias.

Another allegation claimed Lambourne bullied a 57-year-old staffer in the judiciary, by yelling at him. The tribunal said this was unacceptable.

What can Lambourne expect?
Kiribati President Taneti Maamau’s party dominates the Parliament and it will be wanting to eliminate this issue completely ahead of the elections, due in a few months.

So the Parliament could well vote later this week to deport him and for that to happen immediately.

Lambourne would have recourse to appeal the findings of the tribunal but doing that from outside of the country would be an issue.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

Four-time Vanuatu Prime Minister Sato Kilman has been elected to the top job for a record fifth time in Port Vila, ousting Alatoi Ishmael Kalsakau’s nine-month reign as the leader of government.

Kilman received a total of 27 votes, while Kalsakau got 23 votes.

Kilman, 65, was the deputy Prime Minister in Kalsakau’s government before being removed in May. At the time Kalsakau had stated that Kilman’s dismissal was for “stability of the coalition government”.

“Mr Speaker first and foremost I want to say a big thank you to the members of Parliament and the political parties that supported the change in government. Thank you,” he said.

“But thank you even more for standing your ground and for ensuring that democracy prevails in Vanuatu.”

Earlier on Monday, Vanuatu’s highest court — the Court of Appeal — dismissed an appeal against the removal of Kalsakau.

Last month, the opposition grouping, led by former prime minister Bob Loughman, brought a motion of no-confidence against Kalsakau.

Appeal to courts
They garnered 26 of the 49 votes cast but the parliamentary Speaker ruled they had not reached what he considered the minimum 27 required for a successful motion in the 52-member House.

Loughman’s group appealed to the courts, which last week ruled in their favour, but the Speaker appealed that decision.

That appeal was dismissed today bringing an end to Kalsakau’s tenure and triggering the election of the new Prime Minister.

Sato Kilman was sworn in as Prime Minister immediately after the vote on Monday evening.

He is expected to announce the composition of the cabinet of his new coalition government later this week.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

The #HoldTheLine Coalition has urged President Marcos of the Philippines to end persecution of journalists and independent media by dropping all charges against Nobel Peace Prize co-laureate Maria Ressa and her co-accused.

This week, the Philippine Court of Appeals rejected Ressa’s motion for a reconsideration of her 2020 conviction on a trumped-up charge of criminal cyber libel.

This means that after a two-year struggle to overturn her conviction, all that stands between Ressa’s freedom and a lengthy prison sentence is a final appeal to the Supreme Court, and the government’s political will.

“We call on President Marcos to show the world that he rejects the Duterte-era persecution and prosecution of journalists and independent media by immediately withdrawing all charges and cases against Ressa, her co-accused, and her Manila-based news outlet Rappler,” the #HoldTheLine Coalition steering committee said on behalf of more than 80 international organisations — including Reporters Without Borders — joining forces to defend Ressa and support independent media in the Philippines.

“President Marcos should begin by ending his government’s opposition to Ressa’s appeal against her conviction on spurious criminal cyber libel charges, which were pursued and prosecuted by the State despite the Philippine Supreme Court’s warning that the country’s criminalisation of libel is ‘doubtful’.”

There have been 23 individual cases opened by the state against Maria Ressa, Rappler and its employees since 2018.

The criminal cyber libel case is one of seven ongoing cases implicating Ressa. If she is successfully prosecuted in all cases, she theoretically faces up to 100 years in jail.

The criminal cyber libel conviction is the most urgent, with an increased sentence of up to six years and eight months handed down by the Philippine Court of Appeal in July 2022.

Ressa now has just two weeks to file a final appeal to the Philippine Supreme Court, which could then swiftly issue a written verdict, resulting in the enforcement of her prison sentence.

Concurrently, Rappler is also the subject of a shutdown order pursued by the Duterte administration.

— Julie Posetti (ICFJ), Rebecca Vincent (RSF), and Gypsy Guillén Kaiser (CPJ) on behalf of the #HoldTheLine Coalition.

The #HTL Coalition comprises more than 80 organisations around the world. This statement is issued by the #HoldTheLine Steering Committee, but it does not necessarily reflect the position of all or any individual Coalition members or organisations. Pacific Media Watch collaborates with Reporters Without Borders.

Article by AsiaPacificReport.nz

The Philippines Court of Appeals has denied the motion for reconsideration filed by Nobel Peace Prize laureate and Rappler CEO Maria Ressa and former Rappler researcher Reynaldo Santos Jr. over their cyber libel case.

In a 16-page decision dated October 10, the court’s fourth division denied the appeal.

Associate Justices Roberto Quiroz, Ramon Bato Jr., and Germano Francisco Legaspi signed the ruling. They were the same justices who signed the court decision, which earlier affirmed the conviction of Ressa and Santos.

According to the court, the arguments raised by Ressa and Santos were already resolved.

“A careful and meticulous review of the motion for reconsideration reveals that the matters raised by the accused-appellants had already been exhaustively resolved and discussed in the assailed Decision,” the court said.

The court also claimed Ressa’s and Santos’ conviction is not meant to curtail freedom of speech.

“In conclusion, it [is] worthy and relevant to point out that the conviction of the accused-appellants for the crime of cyberlibel punishable under the Cybercrime Law is not geared towards the curtailment of the freedom of speech, or to produce an unseemingly chilling effect on the users of cyberspace that would possibly hinder free speech.”

‘Safeguard’ for free speech
On the contrary, the court said, the purpose of the law is to “safeguard the right of free speech, and to curb, if not totally prevent, the reckless and unlawful use of the computer systems as a means of committing the traditional criminal offences…”

In a statement, Nobel Peace laureate Ressa said she was “disappointed” but not surprised by the ruling.

Rappler’s video report on YouTube.

“The ongoing campaign of harassment and intimidation against me and Rappler continues, and the Philippines legal system is not doing enough to stop it. I am disappointed by today’s ruling but sadly not surprised,” Ressa said.

“This is a reminder of the importance of independent journalism holding power to account. Despite these sustained attacks from all sides, we continue to focus on what we do best — journalism.”

Santos, in a separate statement, said he still believed that the rule of law would prevail.

“The [Appeal Court’s] decision to deny our motion is not surprising, but it’s disheartening nevertheless. As we elevate our case to the SC, our fight against intimidation and suppression of freedom continues. We still believe that the rule of law will prevail.”

Theodore “Ted” Te, Rappler’s lawyer and former Supreme Court spokesperson, said they would now ask the Supreme Court to review and reverse Ressa’s conviction.

“The CA decision denying the MFR [motion for reconsideration] is disappointing. It ignored basic principles of constitutional and criminal law as well as the evidence presented. Maria and Rey will elevate these issues to the SC and we will ask the SC to review the decision and to reverse the decision,” Te said in a statement.

The decision
The Appeal Court also explained its findings on the arguments based on:

• Applications of the provisions of cyber libel under the cybercrime law
• Subject article should have been classified as qualifiedly privileged” in relation to Wilfredo Keng as a public figure

On the validity of the cybercrime law, the court cited a ruling which, according to them, decided the constitutionality of the law.

“We find it unnecessary to dwell on the issue raised by accused-appellants since the Supreme Court, in Jose Jesus M. Disini, Jr., et al., v. The Secretary of Justice, et al. (Disini Case), 5 had already ruled on its validity and constitutionality, with finality.”

The court also reiterated that the story in question was republished. The court said the argument that ex-post facto was applied on the theory that the correction of one letter is too unsubstantial and cannot be considered a republication is “unavailing.”

“As settled, the determination of republication is not hinged on whether the corrections made therein were substantial or not, as what matters is that the very exact libelous article was again published on a later date,” the appeals court said.

On the increase of penalty, the CA said the argument that Wilberto Tolentino v. People has no doctrinal value and cannot be used as a binding precedent as it was “an unsigned resolution, is misplaced.”

That case said the “prescriptive period for the crime of cyber libel is 15 years.”

Traditional, online publications
The appeals court also highlighted the difference between traditional and online publications: “As it is, in the instance of libel through traditional publication, the libelous article is only released and circulated once – which is on the day when it was published.”

Such was not the case for an online publication, the court said, where “the commission of such offence is continuous since such article remains therein in perpetuity unless taken down from all online platforms where it was published…”

On the argument about Keng, the CA said it was insufficient to consider him a public figure: “As previously settled, the claim that Wilfredo Keng is a renowned businessman, who was connected to several companies, is insufficient to classify him as a public figure.”

The term “public figure” in relation to libel refers more to a celebrity, it said, citing the Ciriaco “Boy” Guingguing v. Honorable Court of Appeals decision. The decision said a public figure is “anyone who has arrived at a position where public attention is focused upon him as a person.”

It also cited the Supreme Court decision on Alfonso Yuchengco v. The Manila Chronicle Publishing Corporation, et al., which resolved the argument whether a businessman can be considered a public figure. The court said that being a known businessman did not make Keng a public figure who had attained a position that gave the public “legitimate interest in his affairs and character.”

There was no proof, too, that “he voluntarily thrusted himself to the forefront of the particular public controversies that were raised in the defamatory article,” the CA added.

In 2020, Manila Regional Trial Court (RTC) Branch 46 convicted Ressa and Santos over cyber libel charges filed by Keng. The case tested the 8-year-old Philippine cybercrime law.

The Manila court interpreted the cyber libel law as having a 12-year proscription period, as opposed to only a year. The lower court also decided that republication was a separate offence.

Aside from affirming the Manila court’s ruling, the CA also imposed a longer prison sentence on Ressa and Santos, originally set for six months and one day as minimum to six years as maximum.

The appeals court added eight months and 20 days to the maximum imprisonment penalty.

Jairo Bolledo is a Rappler journalist. Republished with permission.

Article by AsiaPacificReport.nz

A former president of Kiribati warns the crisis involving the island nation’s government and the courts has left the country with a “dysfunctional judiciary” and put a question mark over its democratic system.

The Kiribati government suspended its chief justice in July and last Thursday immigration and police detained and attempted to deport High Court Judge David Lambourne.

They were unsuccessful after the country’s highest court ordered the Australian-born judge to be released.

The Court of Appeal stopped the government from deporting Lambourne pending a further hearing expected to be held this week, escalating further acrimony between the executive and judicial arms of the state.

Anote Tong, who was president of Kiribati from 2003 to 2016, says the issue of Judge Lambourne has clear “political connotations” because he is married to the leader of the opposition.

But, he said, the actions of President Taneti Maamau’s government bordered on contempt of court.

“The deportation order by the president [Maamau] is really in direct contravention to the decision by the court. So, whether the government is now in contempt of court is the question that really needs to be addressed,” Tong told RNZ Pacific.

“To be in direct conflict with the decision of the court here, I think we know what that means.”

‘Abiding by the laws of Kiribati’
In a statement, the government maintained that Judge Lambourne had breached his visa conditions and national laws and raised concern “by the overreach of the Court of Appeal” to issue an injunction to prevent his deportation.

The government said it “abides by the laws and the Constitution of Kiribati … to protect the interest of the people of Kiribati”.

It blamed “neocolonial forces” for “weaponising the laws enacted to protect” the i-Kiribati people “to pursue their own interest and suppress the will of the people”.

But Tong said the separation of powers is a fundamental principle of a democratic society.

“We have a constitution. We have the laws in place, and we have a court. The question is: are we adhering to these legal provisions?,” he asked.

“It looks like the government is crossing that boundary and delving into the purview of the judiciary.”

Tong said the problem between the government and Judge Lambourne began after the 2020 elections when his wife, Tessie Lambourne, was elected as leader of the opposition.

“There is no question about it,” he said, adding it did not “give an excuse for the government to ignore a court decision”.

He said until Kiribati amended its laws and constitution “to recognise that the separation of powers is fundamental to its democratic system of government, everything else that has been done will become illegal”.

International condemnation
The Commonwealth Magistrates’ and Judges’ Association (CMJA), the Commonwealth Legal Education Association (CLEA), and the Commonwealth Lawyers Association (CLA) have all raised concerns and said they were “alarmed” at the situation.

The associations have urged the Kiribati authorities to respect the rule of law and comply with orders of the courts.

“The associations are alarmed that the tribunals set up to investigate alleged misbehaviour by Judge David Lambourne and the Chief Justice William Hastings have yet to report on any findings,” they said via a joint statement.

“The associations are further alarmed that there has been an attempt to deport Judge Lambourne without due process being followed and he has subsequently now been arbitrarily detained by the authorities in Kiribati.”

CMJA, CLEA and CLA are urging the Commonwealth Ministerial Action Group (CMAG) to consider the actions of the Kiribati government as a matter of urgency.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

Leaders of four political parties in Fiji are calling for a “complete clean-up” of the Elections Office before preparations for the 2022 election get underway.

A joint statement endorsed by the Social Democratic Liberal Party (SODELPA) leader Viliame Gavoka, Freedom Alliance Party leader Jagath Karunaratne, Fiji Labour Party leader Mahendra Chaudhry and Unity Fiji party leader Savenaca Narube also called for an investigation of the Supervisor of Elections, Mohammed Saneem, for alleged misbehaviour.

They claim that Saneem had made “haphazard and uninformed decisions” and should be investigated.

The leaders said they would take legal action against Saneem if they did not receive a response from the Constitutional Offices Commission (COC).

The four leaders have given seven days to the Constitutional Offices Commission (COC) to respond to their complaint against Saneem.

A joint statement by the leaders stated that they had lodged a complaint against Saneem to the chairman of the commission, Prime Minister Voreqe Bainimarama on August 20.

“Our lawyers have delivered a follow-up letter to the COC chairman on November 9, demanding that the commission replies to our original complaint within seven days, or we will take legal action,” the joint statement said.

‘Sufficient grounds’
“In our initial letter of complaint to COC, we had cited what we believe were sufficient grounds under the Constitution to appoint a tribunal to investigate the misbehaviours of the SOE.”

The leaders claimed that the government was quick to suspend Solicitor-General Sharvada Sharma when the state lost its case against MP Niko Nawaikula.

“Likewise, we call on the commission to immediately suspend the SOE pending the appointment of a disciplinary tribunal.

“In our view, the misbehaviours of the SOE are much more flagrant than what is alleged against the SG.”

They also said in November 2016 the Court of Appeal had ruled against Saneem on legal action taken by the Electoral Commission regarding the eligibility of two candidates in the 2014 General Election.

The statement noted that Saneem had disallowed the candidacy of a Fiji Labour Party candidate but allowed a candidate of the FijiFirst Party to contest the election despite a ruling against those decisions by the Electoral Commission.

‘Gross misbehaviour’
“The insubordination by Mr Saneem of the directive of the Electoral Commission is gross misbehaviour and, under normal disciplinary rules of the public service, should have led to his summary dismissal. The statement claimed that four court proceedings in recent years had gone against the SOE,” the statement said.

“We believe that most people have lost confidence in the incumbent SOE. His misbehaviour must be investigated as soon as possible.

“The people need to regain trust in the election administrators of the nation.”

Questions sent to Saneem and Bainimarama remained unanswered when The Fiji Times went to press last night.

Litia Cava is a Fiji Times reporter. Republished with permission.

Article by AsiaPacificReport.nz

The New Zealand government says it has full confidence Samoa’s new government and its judiciary will continue to act with integrity.

This comes after former prime minister, Tuila’epa Sa’ilele Malielegaoi, claimed that the recent actions of the judiciary had “shattered” the constitution and the law of the jungle now applied.

Tuila’epa claimed the rulings by the Court of Appeal, which last month confirmed FAST as the legitimately elected government, had destabilised the country.

He castigated New Zealand and Australia for not speaking out in support of his position.

But, in a statement, the Foreign Minister Nanaia Mahuta reiterated New Zealand’s backing for the new government of Fiame Naomi Mata’afa as the legitimate government of Samoa.

She said New Zealand’s recognition of the FAST government was swift and unequivocal, and that New Zealand had faith in the judicial and law enforcement systems to act appropriately, as they have done since the election on April 9.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

Samoa’s Court of Appeal ruled today that the Faatuatua ile Atua Samoa ua Tasi (FAST) party was the country’s new government bringing three months of political stalemate to a close.

The court, the highest in the country, found that a swearing-in ceremony conducted by the party on the lawns of Parliament on May 24 was in fact legally binding, immediately installing FAST as the nation’s new government and declaring it had been so for nearly two months.

The decision apparently brings to an end the 22-year reign of Tuila’epa Dr Sa’ilele Malielegaoi as the nation’s Prime Minister.

Under the court order he will be succeeded by Samoa’s first female Prime Minister, Fiame Naomi Mata’afa.

In their conclusion, the Court of Appeal said to avoid doubt Samoa has had a lawful government since May 24, namely that led by the FAST party.

The decision also ends nearly four decades of uninterrupted political dominance by the Human Rights Protection Party (HRPP), which first won government in 1982.

Fiame is a former member of Tuila’epa’s government and Deputy Prime Minister who quit the ruling party last September over what she said were plans to dismantle the rule of law in the form of three bills that were passed into law in December.

Widespread criticism
The bills drew widespread criticism for their effect on the independence of the courts from legal experts and the nation’s judges.

Fiame led the newly created FAST party to a slender one-seat victory 26-25 following the holding of April 9 national elections.

The impromptu swearing-in was held on May 24 — the last day on which Parliament was obliged to meet after a national election according to a stipulation in the nation’s constitution.

That ceremony, which was boycotted by HRPP members and the Head of State, was conducted before a majority of FAST Members of Parliament and followed a Supreme Court order the day prior ruling that must Parliament convene.

But the ceremony was held outside the Legislative Assembly building after the former Speaker of the Parliament, Leaupepe Toleafoa Faafis, ordered that it be locked down.

While the swearing-in was previously struck down by the Supreme Court, the FAST party argued that it needed to be held out of the “principle of necessity”, namely to stop the breach of that constitutional requirement.

The Chief Justice, Satiu Simativa Perese, alongside Justice Niava Mata Tuatagaloa and Justice Tafaoimalo Leilani Tuala-Warren delivered the decision at 4.30 pm this afternoon.

Legal challenges
Since then the swearing-in HRPP’s numbers on the floor of of Parliament has fallen by seven to reach 18 following successful seat-by-seat post-election legal challenges to its election victories that will result in fresh byelection contests.

The HRPP and the Head of State have ignored decisions instructing them to convene Parliament that they could not do so until all Members of Parliament were represented in the Legislative Assembly, particularly women MPs who are required to make up 10 percent of all legislators under a constitutional mandate.

The panel of justices said it did not recognise the caretaker government being legitimate and said it was unlawfully occupying office.

The court also ruled that the role of the Head of State in swearing-in the Speaker and members of the FAST are ceremonial roles to administer the swearing-in where the oath is to the Almighty God.

The appeal from the Attorney-General’s Office was dismissed and the cross appeal from the FAST party upheld.

The question of whether the courts have the legal right to force Parliament to sit in cases where the constitution had been violated, or whether that power was exclusively vested in the Head of State, lay at the heart of the case, which was held last week.

In that hearing, arguing on behalf of the Samoa Law Society, New Zealand QC Robert Lithgow said something had stood in the way of the Legislative Assembly convening despite the court’s clear power to force Parliament to sit within a day.

Constitution’s ‘higher purpose’
He said the constitution, as the supreme law of the land, could not be “bolted” down by interested parties but it had a broader, higher purpose: protecting the central interests of the Samoan people as expressed by them in their recent election.

Friday’s decision came as a surprise to parties involved in the case, who had previously been under the impression that a decision would not be handed down until Monday next week.

A notification that a decision on the matter had been reached was only sent to involved parties at about five minutes past 4 pm this afternoon with the decision handed down shortly after at about 4.30 pm.

The HRPP was added as a party to the Supreme Court case but no comment has yet been made by Tuila’epa or any of its other representatives.

In late May, Tuila’epa promised to abide by any ruling by Samoa’s highest court on the issue of the validity of the swearing-in.

Lanuola Tusani Tupufia-Ah Tong is a Samoa Observer journalist. Republished with permission.

Article by AsiaPacificReport.nz

The electoral stalemate in Samoa finally looks set to be resolved with a Court of Appeal ruling on Friday paving the way for a Supreme Court hearing today.

Today’s hearing will determine whether the swearing-in ceremony held last month by the election-winning FAST party was legal.

The Supreme Court is due to sit at 10am local time with a decision due as early as 12:30pm.

The Appellate Court on Friday declared that the issue of a contentious sixth women’s electoral seat could not prevent the convening of Parliament.

The decision refutes the caretaker Human Rights Protection Party (HRPP) government’s claim that the extra seat must be appointed before Parliament could sit.

FAST leader and Prime Minister-elect Fiame Naomi Mata’afa said whatever the Supreme Court decision was today, her party would continue to push to have Parliament convened and for the operational budget to be urgently approved by the end of June deadline.

Fiame has written to the Head of State requesting the house sit on Tuesday.

Back to Parliament
“If it goes against us, all we’ll really need to do is to go back into Parliament and get sworn in and just continue to formulate the government based on our numbers.”

The FAST Party now has a 26-24 seat majority following the HRPP loss of Sagaga No.2 this month in an electoral petition.

Both candidates have been voided for corruption and a byelection is pending.

The Samoa Observer reports that the caretaker prime minister – and leader of HRPP – Tuila’epa Sa’ilele Malielegaoi – has scoffed at FAST’s call to convene Parliament following the Appellate Court decision.

Tuilaepa said at least FAST have had the Appeal Court’s decision explained to them and they now understand what it means.

At an evening of singing at HRPP headquarters on Saturday Tuilaepa said the court has clarified what the decision meant.

“And now they’re claiming they won and want Parliament to convene. There’s no decision like that,” the Observer quotes him as saying.

Tuilaepa maintains that Parliament cannot convene until all legal challenges are dealt with and until a sixth woman member has been chosen as per Section 44 of the Constitution.

Doubts over HRPP members
Meanwhile, the prime minister-elect is questioning the legitimacy of the HRPP MPs who were not sworn in by deadline.

The constitution requires Parliament to convene and members to be sworn in by the 45th day following an election.

None of the HRPP’s 24-member caucus have taken the oath for this term.

FAST leader Fiame said if today’s Supreme Court hearing ruled in favour of her party’s swearing-in, then it brought the status of the HRPP members into doubt.

“There is still a big question on what exactly is the legal status of the HRPP MPs because, you know, they weren’t sworn in within the period that is required. So, you know, that’s another question that’s going to be challenging us.”

Also in court this week the caretaker government and officials face accusations of contempt of court for their role in blocking the FAST party from being sworn in.

FAST says the lockout at Parliament was in defiance of a Supreme Court ruling that Parliament should convene.

In Australia, the Morrison government has called on Samoa’s two political parties to cooperate and convene Parliament, while the Pacific Islands Forum Secretary-General Henry Puna has told media he has been assured by leaders of both parties that they will respect the court’s decisions.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

The Court of Appeal in Samoa says its ruling from June 2 on the sixth women’s seat cannot be used to delay the convening of Parliament.

The court had said a sixth woman is required to satisfy the constitutional requirements but that any decision on this be delayed until after the electoral petition process is complete.

The caretaker Human Rights Protection Party (HRPP), which lost the election on April 9 to the Fa’atuatua i le Atua Samoa ua Tasi (FAST) Party by one seat, had used this decision to justify delaying a parliamentary sitting.

FAST this week sought a clarification from the Court of Appeal and its decision has now been made public.

The court said the convening of Parliament is mandatory under Article 52 of the constitution, and that it did not declare that this was dependent on the activation of Article 44(1)(A), which determines the number of women’s seats.

It said there was insufficient evidence before the court to determine whether any of the persons who have provided interpretations contrary to this were made maliciously, carelessly or otherwise.

Electoral petitions
Meanwhile, two electoral petitions backfired yesterday with both plaintiffs losing their cases and in turn being found guilty of corrupt practices.

Samoa’s Supreme Court found in favour of the incoming FAST party candidates for the Salega No.1 and A’ana Alofi No.3 seats.

Salega No.1’s Fepulea’i Fa’asavalu Faimata Su’a and A’ana Alofi No.3’s Agaseata Valelio Tanuvasa Peto were accused of using corrupt and illegal practices to influence their electoral wins.

But the court dismissed the petitions for lack of proof.

Instead it agreed with counter-petitions and found the Tautua Party leader Afualo Wood Salele guilty of corruption in Salega No.1 and the A’ana Alofi No.3 independent candidate, Ili Setefano Tafili, guilty of two counts of bribery.

Both candidates are now ineligible to run for parliament for two electoral terms, or ten years.

A previous electoral petition has left Sagaga No.2 awaiting a by-election after both petitioners were found guilty.

The newcomer FAST party remains in top position with 26 seats while the caretaker HRPP, which lost Sagaga No.2, is at 24.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

Buoyed as he is by [Wednesday’s] court decision, Samoa’s caretaker Prime Minister has shown a character flaw weighing down upon our national politics: an inability to face up to hard truths.

Despite Tuilaepa Dr Sa’ilele Malielegaoi having just alleged the judiciary was conspiring against him, the Appellate Court ruled in favour of his argument that a minimum of six women MPs need to be appointed to meet a mandated quota in our 51-seat Parliament. We don’t expect that contradiction to be explained anytime soon.

The victory has been seized upon by supporters of the Human Rights Protection Party (HRPP), many of whom have incorrectly concluded the decision will lead to the installation of Aliimalemanu Alofa Tuuau and a Parliament in which the opposing party cannot form government.

They must read the court’s words, reprinted in today’s edition, more closely. In fact, the court voided Aliimalemanu’s warrant of election.

Aliimalemanu herself acknowledged this very point when she told the Samoa Observer that she did not mind which woman MP ended up being elected nor which party they were from, rather she was pleased to have struck a blow for female representation.

And, like the court we applaud her for her devotion to that worthy cause.

The reason Aliimalemanu’s election was voided was because it will not be until after the Supreme Court sorts through some 28 petitions and more counter-petitions that the rule requiring six women will be applied.

There are another six petitions involving women challenging or defending an election result alone, let alone other women candidates who could be elected if byelections are called if a legal challenge to a result is upheld. The number of women elected to the 17th Parliament of Samoa could be higher than the threshold, or it could be much much lower.

Exactly what role this unforeseen constitutional mandate will figure in the final election results is entirely unknowable.

That means two things of extreme significance for the immediate political future of this nation – neither of which Tuilaepa was willing to face up to when speaking on Wednesday afternoon.

For the time being, the Fa’atuatua i le Atua Samoa ua Tasi (FAST) party will retain its 26-25 lead over the HRPP until the election is completely finalised.

How long the courts take to settle the dozens of legal challenges before them will likely be a matter of weeks, not months.

Tuilaepa is increasingly being less seen as a strongman who can be depended upon to steer Samoa through choppy waters as an immovable object with whom much of the political deadlock originated.

Until that time, they notionally — depending, of course — on the outcome of a legal case about the validity of the party’s swearing in, the opponents should notionally have some political breathing room to establish government.

But speaking on Wednesday, Tuilaepa sounded like a man who had not familiarised himself with even the most elementary aspects of the judgment.

He asserted the decision cemented Aliimalemanu’s election and a 26-26 tie between FAST and the HRPP and his rightful place and the ongoing future “custodian” of government in Samoa.

No person with basic literacy skills could have reached either of these conclusions after reading what the court had to say in a succinct and articulate 12-page judgment.

Fiame Naomi Mata’afa, the leader of FAST, took a different and more reasonable view of the judgment, which, as it was, a victory in principle for the HRPP but one with few practical consequences for Samoa’s immediate future.

FAST, she said, had the numbers in Parliament for now and was ready to proceed to transition to a new government, just as previous Parliaments have sat while petitions are in progress.

That puts the two leaders on a collision course that cannot spell good outcomes for this nation.

But the decision also casts in stark relief the fact that the caretaker Prime Minister has shown himself at his most arrogant during a week when he should have learned about humility.

For so many years, Tuilaepa’s tendency toward over-the-top statements have merged with his public-political persona. But it is only in recent weeks as he has begun to feel his power ebb in the wake of an election defeat that we have seen the true depth of the caretaker Prime Minister’s unrelenting self-regard.

He dared to allege only a little more than a week ago that there was a conspiracy against him being cooked up by the nation’s judiciary after his party lost four court battles in a row while trying to use the courts to prevent a new government forming.

Tuilaepa then sought to assume for himself a merged role of judge, jury and Prime Minister by condemning FAST for holding an improvised swearing-in ceremony in order to uphold the constitution.

“I am well versed with this law because I own it; it’s mine,” he said.

Only weeks earlier he said that he was “appointed by God” to lead Samoa and that the judiciary had no authority over his appointment.

The recent decisions of the Supreme Court should have disabused him of the idea that the rule of law is something one man can own.

But the public of Samoa, in one way or another, be it by way of the ballot box or making their feelings known will prove decisive in the resolution of this seemingly endless political saga.

In this time of crisis Tuilaepa’s bombastic persona is no longer proving a political asset but rather something which grates upon the voters of Samoa, and he is losing support evidently.

He is increasingly being less seen as a strongman who can be depended upon to steer Samoa through choppy waters as an immovable object with whom much of the political deadlock originated.

The HRPP have been champing at the bit for another election to be called as a recourse to holding onto power.

But despite winning an absolute number of votes in the April election, almost every step taken by the party and its leader in the interim has done little to endear Tuilaepa to the public. If things continue as they are, the political confidence he had in April is likely to have evaporated by this month’s end.

We saw just as much at the Immaculate Conception Cathedral at Mulivai on Monday evening when he became the subject of a sermon and a general character appraisal by the Archbishop of the Catholic Church, Alapati Lui Mataeliga.

Tuilaepa, not known for welcoming differences of opinion, looked every inch a man in a furnace.

With his eyes closed and fan working overtime, he almost appeared to be hoping to deflect the Archbishop’s words.

It did not, of course.

His Grace’s sentiments are still lingering, long since his homily concluded.

The Archbishop referred to himself as Tuilaepa’s “spiritual father” and indeed he performed his role in this respect by dispensing some home truths to a man — and a nation — in need of them.

Speaking on the eve of Independence Day, His Grace noted that Samoa has had a history of oppression before; we have been colonised by Tongan, German and New Zealand forces in our recent history. Our paramount chiefs have had their natural status constrained and our people have suffered under the yoke of colonial governments which have misused their powers for personal gain.

The historical parallel was obvious.

The Archbishop lamented the current state of the nation which became the first in the Pacific to free itself from colonial rule but only after a long struggle.

“There is no peace and there is no unison and it appears as if our forefather’s shed blood for no reason,” he said.

“We are affected by [our leaders] abusing power due to high-mindedness and dictatorship.

“Without Samoa, there would be no leaders and the people should be well aware of that, the power in which is being abused by these leaders was given to them by us, the members of the public.”

Perhaps Monday’s homily dispossessed him of the conviction that he has a divine right to the Prime Minister’s chair.

It is impossible that Tuilaepa does not realise that his recent actions have sown division in this country.

The government’s recent decree that there be no public celebration of Independence Day clearly reflected a political fear of that day’s symbolism. The notional excuse provided, that large gatherings posed a risk to the public health, was undermined completely the day before when the Prime Minister addressed more than one thousand political supporters.

To have the head of your faith tell hurtful and shabby truths about your conduct must, even for a man of Tuilaepa’s bravado, be a wounding experience. For the sake of the country’s immediate future, we must hope against every indication it was also, deep down, a humbling one.

The Samoa Observer editorial of 2 June 2021. Republished with permission.

Article by AsiaPacificReport.nz

Samoa’s Court of Appeal (CA) ruled yesterday that Article 44(1A) of the Constitution requires that six women should sit in Parliament. With all due respect, I believe that the CA’s decision was incorrect.

This is on the grounds that the CA has overreached its powers by encroaching on the law-making powers of Parliament and has made an unpragmatic (or impractical) decision that has now prolonged and further complicated Samoa’s constitutional crisis.

While the CA’s decision is final and cannot be appealed, I believe that it is still important that this decision be critiqued because the decision has set a dangerous precedent for future judges interpreting the Constitution — a precedent which essentially signals to them that they can disregard the clear and unequivocal words of the Constitution and insert their own words as they see fit.

To be clear, nothing in this critique should be taken as my disapproval or dissatisfaction with the fact that more women are now required to sit in Parliament.

It goes without saying that having only six women in a Parliament with 51 seats is shameful for any country and is representative of a deeply entrenched gender inequity problem in Samoa that must be addressed.

However, I believe that it is important for all Samoans to understand both the dangerous precedent that has been set by the CA and the wider implications of the decision on Samoa’s constitutional crisis.

Accordingly, I set out three reasons here why I believe that that the CA’s decision was incorrect:

1. The CA encroached on the law-making powers of Parliament by ignoring the explicit wording of Article 44 of the Constitution
As stated in the Supreme Court’s judgment, the court’s function is to “give primary attention to the words used, and the Court does not have the power and ability to go beyond the clear and unequivocal words used”. This function was made clear in three previous landmark Court of Appeal cases on constitutional interpretation: Attorney-General v Saipaia Olomalu, Mulitalo v Attorney General, and Jackson & Ors v Attorney General.

This statement of the court’s function recognises the fundamental importance of the doctrine of separation of powers in any democracy. The doctrine of separation of powers follows that it is only for the democratically elected Parliament to make and amend the law (including the Constitution) and the courts, as the unelected independent body, should only interpret and apply the law as Parliament intended and not make or amend the law themselves.

In this case, the “clear and unequivocal words” of Article 44(1A)(a) that the Court of Appeal had to apply are: “…women Members of the Legislative Assembly shall: (a) consist of a minimum of 10 percent of the Members of the Legislative Assembly specified under clause (1) which for the avoidance of doubt is presently 5”.

Therefore, the CA’s decision to ignore the explicit wording of Article 44(1A) demonstrates that it consciously chose not to take the correct approach to interpret the Constitution that has been laid down in key landmark cases.

In the CA’s judgment, they state that “there is a principled way to resolve the two ideas which are presently before the court…guided by well-established principles of interpretation from earlier rulings of this Court”.

In my view, the CA’s approach to constitutional interpretation was not at all “principled”, but bizarre and dubious in a way that hopefully would not be adopted by any courts after them. This dubious approach was supported and encouraged by the arguments submitted by counsel for the appellants, that in my view, were insincere and unduly motivated by political gain.

In adopting this dubious approach, the CA deliberately ignored the great (if not determinative) significance of the passing of the Constitution Amendment Act 2019. This 2019 Act amended Article 44 to increase the number of seats in Parliament from 49 to 51 specifically for the “2021 general elections”

If they gave proper consideration to the impact of the 2019 Act, the CA would have recognised that if Parliament wanted to increase the minimum number of seats for women to six, they would have changed “five” to “six” while amending Article 44 for the “2021 general elections” when they had the chance. However, Parliament did not do this, and the courts are not authorised to do this for them.

Parliament’s choice to leave “five” in Article 44(1A)(a) untouched while amending other parts of the Article 44 specifically should be taken as a clear indication that they intended the minimum number of women to remain “five” and not “six” for the “2021 general elections”. Again, it should be emphasised that under the doctrine of the separation of powers, only Parliament can amend the Constitution as the democratically elected body – not the unelected judiciary.

In an attempt to reason or justify their disregard for the clear and unambiguous wording of the Constitution, the CA looked to the overall purpose of Article 44(1A) and said that: “We consider that Article 44 1A [of the constitution] is ambiguous as to the ideas it promotes and that primacy should be given to whichever of the competing ideas best promotes the establishment of human rights practice in Samoa.”

However, the CA knew, or should have known, that it is not for them, as a body of unelected apolitical justices, to consider political matters like what “best promotes the establishment of human rights practice in Samoa”. It is only for Parliament to do so as the democratically elected body which has been chosen by the people of Samoa to debate and legislate on these political issues.

This particular separation of powers is in place for a very good reason — Parliament is the only body that has the capabilities, time and resources to consider submissions from people in Samoa, (including experts and groups specialising in the relevant issues) in order to make the best laws possible that represent the will of the people. In contrast, the courts do not have the capabilities, time and resources to fully consider matters of great importance before making or amending the law (including the Constitution).

More fundamentally, judges and justices of the courts have not been elected by the people or appointed by elected officials based on their political views or sensibilities as MPs have. In fact, they have the constitutional mandate to act apolitically and objectively when interpreting and applying the law.

Therefore, I believe that the CA’s decision sets a dangerous precedent for other courts to possibly follow, where they have signalled to other judges and justices who’ll interpret the Constitution that they’re permitted to disregard clear and unequivocal words of the Constitution and insert their own words as they see fit.

2. The CA has encroached on the law-making powers of Parliament by creating its own process for Article 44(1A)

Another major part of the CA’s decision is the finding that a sixth woman can only be added only after all petitions and potential byelections have been completed.

For reasons similar to the ones I have given above, I argue that the CA’s creation of a process for Article 44(1A) was an overreach of their powers because it is only for Parliament to design and explicitly set out this process in the Constitution or any relevant legislation (i.e. the Electoral Act).

This was rightfully respected by Justice Tuatagaloa and Justice Vaai in the Supreme Court, who observed in their joint judgment that Parliament needed to provide:

“Some clarity as to the ‘process’ to be followed when Article 44(1A) is activated. There is no process provided in regards to a woman candidate appointed pursuant to Article 44(1A). Section 84 of the Electoral Act refers to successful candidates or elected candidates. Section 2 of the Electoral Act defines the word ‘election’ means the election of a Member in a general election or byelection to represent a constituency. The woman candidate coming in through Article 44(1A) is (in our view) not ‘elected’.”

Here, Justice Tuatagaloa and Justice Vaai acknowledge that Parliament (in 2013 and 2019) unfortunately did not provide a clear process for the activation of Article 44(1A). However, both justices chose not to go beyond their constitutional powers to engineer and create this process themselves.

Instead, they appreciated that it is only appropriate for Parliament to create this process lawfully and transparently after they have taken the time to fully consider the merits of different options and ideas.

Unfortunately, the CA did not show such respect for Parliament and the separation of powers and decided to engineer and create their own process for Article 44(1A) in less than three days.

In my view, the CA should have simply interpreted the clear and unambiguous words of Article 44(1A) as mentioned above, and stated that it was therefore unnecessary for them to discuss the process as this was a matter for Parliament to determine.

While the CA attempted to design their process with some regard to the practical realities surrounding election petitions, counter petitions and potential byelections — it was still wrong for them to create this process in the fraught context of a dispute in which arguments from parties, namely the appellants, are motivated by political gain.

Therefore, it would not be surprising if the rushed and unprincipled manner in which the CA created the process provides even more confusion, ambiguity, conflict and controversy in the near or distant future. In any case, it is hoped that the new Parliament takes the time needed to fix the problems with Article 44(1A), before designing a new process following its activation, fairly and democratically.

3. The CA’s process for Article 44 is unpragmatic for prolonging and further complicating Samoa’s constitutional crisis

Aside from the issues with the CA’s problematic interpretation of the Constitution, the CA’s decision should also be criticised as being unpragmatic (or in other words, impractical) for having the effect of prolonging and further complicating Samoa’s constitutional crisis.

The CA’s finding that a sixth woman can only be added after all petitions and potential byelections have been completed (and there are still only five women MPs), means that the addition of another woman MP could be several months away. This is due to the sheer volume of petitions that the courts are due to consider next week, a reality the CA was no doubt aware of.

While the courts are not necessarily required to be influenced by what is pragmatic and best for the general wellbeing and smooth running of the country, it is hoped that they at least do not go out of their way to make decisions that would create further uncertainty and delay in a country suffering from an already drawn out constitutional crisis.

Of course, there is already a degree of uncertainty around which party would hold the majority of seats due to the unprecedented number of petitions that have been filed and are yet to be heard,

However, adding the potential activation of Article 44(1A) to the mix does not help things at all. This has already been seen by how both the leaders of the FAST party and the HRPP have interpreted the CA’s decision to mean that their parties hold the majority in judgement and should be able to govern until the election petitions and any potential by-elections are completed.

In my view, had the CA interpreted Article 44(1A) in the correct, honest and principled manner (to find that the minimum number of seats for women is “five” and not six) this would not be a legitimate dispute as the leader of the HRPP would not have any real reason to believe that a sixth woman MP could be added as a 52nd seat in parliament in their favour.

FAST would then have a clearer path for transitioning into the government — a path which I believe they legitimately have because in my view, their convening of parliament was legitimate and constitutional in the extraordinary circumstances Samoa was facing. [NOTE: Although the constitutionality of FAST’s swearing-in on 24 May 2021 is another matter due to be heard by the courts on Friday, I have argued in a previous opinion piece that their swearing-in was constitutional and that the courts should declare this when they do rule on this case — most likely sometime next week.]

Another practical problem the CA could have (and should have) avoided was the risk of creating an even-numbered hung Parliament of 52, with each party having 26 seats. When Article 44(1A) was introduced in 2013, the parliament of that day (and any day up to the 2021 general election) didn’t foresee that its activation could lead to an even-numbered hung parliament which could create major issues in the future. For example, a hung 52 seated parliament (with 26 seats for both parties) could lead the Head of State to use their powers under Article 63 to dissolve parliament and call for a new general election on the grounds that the office of the Prime Minister has vacant beyond a “reasonable period” of time (Article 63(2)) or that the Prime Minister does not command the majority in parliament (Article 63(3)). With due respect, it can only be hoped that this wasn’t the underlying motivation behind the CA’s decision.

In any case, there is an urgent need for a government to come into power to govern Samoa. This is not only because Samoa is in a global pandemic, but also because the government should have already set and announced its annual budget by this time in the year. Therefore, the CA’s decision shows an unfortunate lack of pragmatism for which the people of Samoa will continue to bear the costs.

A case of ‘judicial activism’?
Some might celebrate and defend the CA’s decision as a case of “judicial activism” because it was apparently decided in the interests of gender equality and human rights in Samoa.

“Judicial activism” is a term that refers to when judges go outside their apolitical and objective roles to become “activists” in the courtroom pursuing their political agendas. They do this by interpreting and applying laws in a way that is obviously incorrect and contrary to established legal principles because they believe that the outcome would be morally unacceptable and unjust according to their political beliefs if they did not.

One key instance of “judicial activism” in New Zealand was in the 1985 case of Finnigan v New Zealand Rugby Football. In this case, the Court of Appeal of NZ disregarded well established legal principles in order to prevent the All Blacks from touring South Africa during the nation’s apartheid era.

It is well known now that the justices hearing this case were influenced not only by anti-apartheid protests outside the courtroom but by their own values and beliefs against South Africa’s racist system.

Of course, anyone committed to anti-racism (and the fundamental human right to freedom from discrimination) would not question or fault the Court of Appeal of NZ for being judicial activists in the Finnigan case. However, in my view, the CA’s decision should not be seen or understood as a legitimate and justified case of “judicial activism” like that in Finnigan.

Some may disagree and argue that the need to have six women (rather than five) in Parliament is a critically urgent and important human rights and social justice issue that is analogous or comparable to the moral dilemma the NZ justices faced in the Finnigan case.

However, if anything, this litigation has shown that Article 44(1A) is a deeply flawed mechanism for ensuring the representation of women in Parliament and upholding Samoa’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In my view, instead of further complicating a deeply flawed mechanism during a constitutional crisis, the CA should have upheld the observations of Justice Tuatagaloa and Justice Vaai in the Supreme Court to allow Parliament (and the people of Samoa whose voices they represent) to improve Samoa’s deeply entrenched gender inequity issue in the fair and transparent manner that is expected of a democratic state.

In terms of what a new gender-based quota system for Samoa would look like, it is clear that the new Parliament will need to pay closer attention to the laws and experiences of other democratic countries that have introduced similar gender-based quota laws, such as Finland, Sweden, Norway, and Denmark who have since achieved an average of 40 percent women in their parliaments.

It’s also important that the new Parliament tackle deeply entrenched gender inequity in Samoan politics more broadly. A 2015 report on “Political Representation and Women’s Empowerment in Samoa” by the Centre for Samoan Studies at the National University of Samoa (NUS) found that Article 44(1A) would “not address what this research found to be the core issue: the barriers to women’s equal participation in local government” and that Samoa does not have gender parity laws and candidate pre-selection mechanisms that other countries like France, Timor-Leste, Senegal and Rwanda have introduced to increase the number of women in their parliaments.

Similarly, Kiki Matire has commented that while Article 44(1A) would increase the representation of women in Samoa’s parliament, “much more needs to be done to address the cultural and tangible obstacles to women as political leaders”.

Fuimaono Dylan Asafo is a law lecturer at the Faculty of Law at the University of Auckland. He holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland. This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz

A Court of Appeal decision today may pave the way for the FAST party to assume control of the Samoan government.

Samoa’s Court of Appeal has voided the legal challenge by a Human Rights Protection Party (HRPP) women’s candidate, who said she was wrongly removed as an MP.

Ali’imalemanu Alofa Tuuau had been appointed as the sixth woman’s MP by the Electoral Commissioner, but then had her appointment rescinded in a decision by the Supreme Court.

That decision gave the newcomer Fa’atuatua i le Atua Samoa ua Tasi (FAST) party the slimmest majority in the new Parliament, and this latest decision now confirms that.

But, as FAST party lawyer Taulapapa Brenda Heather-Latu explained, the court also ruled that six women MPs was the correct number under the Samoan system of reserving parliamentary seats for women.

“But, that the decision whether or not to add a woman to make up the six cannot be determined until after the electoral petitions and the byelections are complete,” she said.

“So that there is certainty as to the exact members that make up the Parliament.”

Attempts by FAST to assume power have been thwarted at several points by HRPP leader Tuila’epa Sa’ilele Malielegaoi, who had been prime minister since 1999.

What does this decision mean?
HRPP leader Tuila’epa welcomed the Court of Appeal’s decision in clarifying the interpretation of Article 44 of the Constitution, which allows for no less than 10 percent of the elected members of parliament to be women.

The decision clarified that 10 percent of the elected members should be calculated as six women, and not five, as the FAST Party argued.

But the Court of Appeal did not allow the Electoral Commissioner’s appeal, and said he acted unconstitutionally when he appointed the sixth woman member, Ali’imalemanu Alofa Tuuau.

The Appeal Court panel of Chief Justice Satiu Simativa Perese and Justices Tafaoimalo Leilani Tuala-Warren and Fepulea’i Ameperosa Roma said the sixth women’s seat could not  be declared until all election petitions, and any subsequent byelections, were completed.

Speaking on TV3 this afternoon, Tuila’epa confirmed that his party now had 25 seats.

The ruling indicated that if a woman should win a byelection then there would be no need to activate Article 44 of the Constitution.

Tuila’epa said he would again seek a meeting with the leadership of FAST to discuss the way forward, but he argued that his caretaker government would remain until all petitions and byelections had been completed.

Last week, the FAST party swore themselves in as the next government, installing leader Fiame Naomi Mata’afa as the Prime Minister.

This article is republished under a community partnership agreement with RNZ.

Article by AsiaPacificReport.nz