The declaration by the Head of State to declare the results of the general election of 9 April 2021 void and call for a new general election on 21 May 2021 is unconstitutional and unlawful writes Fuimaono Dylan Asafo.
Fuimaono is a law lecturer at the Faculty of Law at the University of Auckland and holds a Master of Laws from Harvard University and a Master of Laws (First Class Honours) from the University of Auckland.
The three reasons why the Head of State's declaration is unconstitutional.
Firstly, the law provides for a process that requires the Head of State to wait 45 days following a general election for any election petitions (and counter petitions) to be heard in order to see whether a new parliament can be formed by the time the 45 day period is over. This requirement comes from Article 52 of the Constitution (the English version available on parliament's website here, which provides that a new parliament "shall meet not later than 45 days after the holding of a general election."
In my view, this Constitutional requirement is to be interpreted as setting a timeframe for election petitions (and counter petitions) to be filed and heard by the courts (as per the requirements laid down for petitions in sections 107-138 of the Electoral Act 2019 - the English version available on parliament's website here. Therefore, the Head of State's declaration is unconstitutional for effectively seeking to not only override the timeframe given by the Constitution, but altogether remove the election petitions process that is explicitly provided for in the Electoral Act 2019.
Secondly, neither the Constitution nor any Act of parliament (in other words, legislation) gives the Head of State the authority to declare a general election void and to call for a new general election. Due to the great power held by a Head of State in democratic nations like Samoa, it is critically important that their powers and responsibilities be explicitly clear in the Constitution and any legislation so that the scope of their powers is certain and unambiguous - in other words, it is not enough for the powers of the Head of State to be implied. Thankfully, the critical importance is demonstrated in the laws which specify the Head of State's powers and responsibilities, including those involving elections.
The relevant statutory provision granting the Head of State authority to call for a general election is section 52 of the Electoral Act 2019 (note: the Electoral Amendment Act 2020 substituted section 45 of the Election Act 2019 with section 52, an English version is available on Parliament's official website here, which states:
52. Writ of election issued by the Head of State:
(1) For a general election the Head of State shall, not later than seven (7) days after the day of the dissolution or expiration of the last Parliament as the case may be, under the Head of State's hand, issue a writ of general election to the Commissioner for the conduct of the general election of Members for all Constituencies.
(2) In a writ of general election the contents must have:
(a) a day for the polling to take place if a poll is required, being a Friday; and
(b) the latest day for the return of the writ being the date no later than the 14th day after polling day.
(3) The Commissioner must within three (3) days of receiving the writ issued under this section, give notice of the writ.
The wording in section 45 above is an example of the high level of specificity that is required when parliament grants the Head of State, or any government authority, power. Here, the particular power to call for a general election is specified to be exercised "not later than 7 days after the day of the dissolution or expiration of the last Parliament".
Therefore, for the Head of State's to extend these powers beyond what is stated in legislation is unlawful. If parliament intended for the Head of State to have the power to call for a new general election at their discretion (or even before all filed election petitions are heard and decided on), it would have stated so in the Constitution or any legislation. In my view, the power to call for a new general election before cases or election petitions are heard and determined is undoubtedly great and extensive and must be explicitly specified by parliament. It cannot be implied by the Head of State. The fact that the Head of State did not bother to state and explain the legal authority (or lack thereof) that they have relied upon to make their declaration is also deeply concerning as it demonstrates that they have exercised power arbitrarily.
In my initial and revised legal view of the stalemate published on RNZ Pacific, I advised that it would be fair for a new election to be called. However, this was only if the stalemate persisted after all cases and petitions (and counter petitions) had been heard and 45 days had passed. In my view, it is only in this extraordinary circumstance, that a new general election becomes the only fair way forward because the Constitution and the law are silent as to what is to happen in that very particular situation. In this particular situation, I also believe it would be prudent for the Head of State to seek both the advice of the courts (as they are allowed to do per Article 73(3) of the Constitution, upon advice by the Prime Minister) and approval from all the leaders of the participating parties to ensure that the decision to call for a new general election is made as impartially and fairly as possible.
Thirdly, and more fundamentally, the Head of State's declaration violates the foundational constitutional doctrine of the separation of powers. Upholding the doctrine of the separation of powers is an essential requirement of any democracy. The doctrine requires that the three branches of government (the legislature/parliament, the executive, and the judiciary) each fulfil their own distinct powers and responsibilities without interfering or encroaching on another branch's powers and responsibilities. This separation prevents power from being concentrated in one particular branch of government, thus preventing abuses of power, corruption and tyranny in a democratic state. In practice, the separation of powers means that the executive (which includes the Head of State) should not attempt to override legislation passed by parliament nor should it disrupt or interfere with cases (including election petitions) while they are before the courts.
Timing of announcement
Therefore, the Head of State's declaration, which effectively seeks to override legislation and undermine and remove the authority of the courts to hear an ongoing case of major constitutional significance and to hear 28 lawfully filed electoral petitions, is a significant violation of this fundamental constitutional doctrine of the separation of powers. The timing of Head of State's declaration, in being the night before the Supreme Court's hearing on FAST's motion seeking to declare the addition of a sixth woman to parliament unconstitutional, makes his violation particularly egregious and deeply concerning.
In my view, it gives credence to concerns regarding the Head of State's ability to be politically independent (that arose following the addition of a sixth woman to parliament, authorised by a warrant by the Head of State) and indicates their inability to act not only impartially, but lawfully if a new general election is to take place. For the Head of State to make such a declaration, is a major threat to another fundamental democratic principle, the rule of law, which generally means that no one is above the law, even the Head of State.
While some may welcome the Head of State's call for a new election due to the unsettling and unprecedented uncertainty and tensions surrounding the election in the last few weeks, it is critically important to Samoa that the Head of State is prevented from exercising their power arbitrarily and contrary to the law. This is essential for the rule of law to be upheld and for Samoa to be a fair and free democracy.
In any case, it would be irresponsible and short-sighted for a new election to take place without the Supreme Court first deciding on the constitutionality of the activation of Article 44(1A) of the Constitution, as well as a decision on the constitutionality of the Head of State calling for a new general election. In my view, the results of the general election of April 9 2021 demonstrate that both FAST and HRPP have roughly similar levels of support across Samoa, which follows that it would be naive to assume and act as if the same, or similar issues, would not arise again if a new election is to take place.
Therefore, I believe that the Courts should hear a motion to declare the Head of State's declaration unconstitutional and unlawful.